The following letter to the Prime Minister was released by the Human Rights Commission yesterday, it is available Online (click here) in Microsoft Word Document (.doc) format - Scoop Editor

24 November 2003

The Right Honourable Helen Clark
Prime Minister
Parliament Buildings
WELLINGTON

Dear Prime Minister

FORESHORE AND SEABED:
PROTECTING BOTH PUBLIC ACCESS AND CUSTOMARY RIGHTS

The Commission has closely followed the public debate about both customary rights and public access to the foreshore and seabed. The character of the debate shows how important it is to reconcile Maori customary interests with practices that are seen as central to the way of life of all New Zealanders.

We have not made a submission on the substance of the issue, but do now feel it is appropriate to exercise our statutory function to report to you, pursuant to section 5(2)(k)(iii) of the Human Rights Act 1993, on “the implications of any proposed legislation (including subordinate legislation) or proposed policy of the Government that the Commission considers may affect human rights.”

There are clearly human rights dimensions to both customary interests and public access to the foreshore and seabed, and we believe that considering the issue in terms of human rights may be of help in identifying a way forward.

In short, we advise that:

- There is a clear process for assessing human rights standards in the development of law and policy;
- There are relevant international and national human rights standards which must be taken into account in this particular case;
- Processes for responding to the Court of Appeal decision need to take account of the principles of natural justice; and
- There are broader issues concerning the Treaty relationship between Crown and Maori which should be explored more fully.

We believe that the government’s objective of respecting and securing both customary rights and public access can be achieved by use of the human rights framework and a rigorous application of human rights principles.

Human Rights Standards in the Development of Policy and Legislation

There is an established framework for the consideration of human rights standards in the development of policy and legislative proposals. All actions of the three branches of government are required to be consistent with human rights standards, including the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 and Part 1A of the Human Rights Act. International human rights standards are also relevant.

Human rights standards must be formally considered at a number of stages, including problem definition, during consultation, when developing policy and legislative options, in the submission of proposals to Cabinet and when legislation is introduced to the House.

Any limits placed upon these standards by government action (including legislative action) require justification under section 5 of the Bill of Rights Act. Section 5 provides that the rights and freedoms affirmed in that Act may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Section 5 is both a substantive articulation of the test for reasonable limits on the rights and freedoms contained in the Bill of Rights Act and a process for determining how, and in what circumstances, such limits are permissible. It provides a useful tool for analysing the reasonableness of legislative and policy proposals and when choosing between different options.

Identifying justifications under section 5 can be approached using a two stage inquiry into:

- whether the action in question serves a significant and important objective; and, if so,
- whether there is a rational and proportional connection between that objective and the means used to achieve it, or whether the objective can be achieved in another way which interferes less with the right or freedom affected (in other words, asking whether a sledgehammer is being used to crack a nut).

It will generally be for the government to establish, with evidence, that any limitations are justified.

Relevant Human Rights Standards

A wide range of human rights standards are relevant to the current debate. Rather than being a framework for conflict, competing human rights standards provide a basis for principled negotiation of differences. This means that one set of rights cannot “trump” another. In addition, Article 29 of the Universal Declaration of Human Rights requires right holders to conduct themselves responsibly to ensure the realisation of the rights of others.

The recent debate has confirmed an emerging identity of New Zealanders, a key part of which includes customs and practices about the use of public land, including equal access to the foreshore and seabed. Many New Zealanders would believe that there is, or should be, a right to such equal access. This emphasis on equality has also emerged as a way in which New Zealanders see themselves and each other.
Claims to the right to freedom of movement have emerged, although we note that under international law this right is more generally associated with movement across and within national boundaries, rather than access to public places. Other relevant human rights standards include the right to leisure (Article 24 of the UDHR), although this, too, is generally construed more narrowly to apply to labour law and working conditions.

At the same time, key human rights standards are relevant to the consideration of Maori customary interests, including:

those related to the right to justice, such as:

- the Universal Declaration of Human Rights, Articles 7 and 8: equality before the law and the right to effective remedies;
- the International Covenant on Civil and Political Rights, Article 14: equality before the courts and tribunals;
- the New Zealand Bill of Rights Act, section 27: the right to natural justice;

those related to the right to property, such as:

- the Universal Declaration of Human Rights, Article 17: right to own property and right not to be arbitrarily deprived of one’s property (which can include the right to sue);

and those related to cultural rights, such as:

- the International Covenant Civil and Political Rights, Article 27: rights of cultural minorities;
- the Declaration on the Right to Development, 1986, Article 1: right to development;
- the New Zealand Bill of Rights Act, section 20: non-denial of the right to enjoy the culture of a cultural minority.

Taken together these international and national human rights standards place clear obligations upon the New Zealand government which require careful consideration. In particular, the right to natural justice includes the right for New Zealanders to be heard and the assurance that the outcome of a decision has not been pre-determined.

Relevance of Human Rights Standards to the Foreshore and Seabed Proposals

There has been some confusion in the public debate between the process and legal requirements for recognition of Maori customary interests and the circumstances in which title to land where customary rights exist can be altered. This is despite the Court of Appeal’s extremely careful articulation of the differences between the two and the numerous legal hurdles to be traversed in considering them. For example, the Chief Justice noted that:

The current legislation is therefore no longer an inexorable mechanism for conversion of customary land into freehold land.

And further:

The proper starting point is not with assumptions about the nature of property (which, as was recognised in Amodu Tijani, may be culturally skewed if they are "conceived as creatures of inherent legal principle"), but with the facts as to native property. The nature of Maori customary interests is, as the Privy Council said in Nireaha Tamaki v Baker at 577, "either known to lawyers or discoverable by them by evidence."

The distinction between these two matters is an important element in the application of human rights standards to policy objectives and development of policy and legislative proposals.

The objective of ensuring proper processes for recognition of Maori customary interests (including the legal requirements for a finding that such interests exist) might well be different from the objective of determining whether, and if so how, conditions might attach to the title to land in which customary interests are recognised.

For example, if the government’s objective is to ensure certainty of the existence of customary interests, and the determination of whether customary interests exist is a matter of fact, not law, it might well be that the human rights standards relating to the rights of cultural minorities and the right to natural justice do not need to be limited in order to achieve that objective. In fact, abiding by these human rights standards may provide a higher degree of certainty and therefore meet the desired objective.

As Justice Tipping noted in his judgment:

It is also important to recognise that the concept of title, as used in the expression Maori customary title, should not necessarily be equated with the concepts and incidents of title as known to the common law of England. The incidents and concepts of Maori customary title depend on the customs and usages (tikanga Maori) which gave rise to it. What those customs and usages may be is essentially a question of fact for determination by the Maori Land Court.

Quite separate questions arise when considering the processes used to deal with forms of title to land in which customary rights have been established or the nature of any regulation of such land. In respect of that issue, the human rights framework again offers assistance by allowing a focus on the objectives to be achieved and the measures used to achieve those objectives in a rational and proportional manner. As noted earlier, the negotiation of differences in a human rights framework also requires rights holders to exercise their rights responsibly in order to ensure the realisation of the rights of others in the community.

In our view, alternative options to each of these two key issues (recognition of cultural interests and the conditions on which title to land, in which customary rights exist, can be altered) should be fully explored in the process of developing policy and legislative responses to the issues raised by the Court of Appeal decision.

For example, we are aware that at least two submissions, those of Te Atiawa Taranaki Whanui and Nga Rauru, raise human rights issues and suggest a way forward that might allow for a focus on the consequences which flow from proof of Maori customary interests in land, rather than on the determination of those customary interests in the first instance. We understand these submissions (and possibly others) suggest protections for public access so as to balance competing human rights standards and ensure responsible action by rights holders.

The government may well be considering a range of other options in light of the submissions received and more detailed analysis. In our view, if the government’s process for considering policy and legislative proposals incorporates a human rights framework, and specific human rights standards, a more robust outcome is likely.

Treaty Relationships

Quite apart from the issue of recognition of customary interests, is the matter of the relationship between Crown and Maori (including whanau, hapu and iwi). We raise this in light of our function in section 5(1)(b) of the Human Rights Act to “encourage the maintenance and development of harmonious relations between individuals and among the diverse groups in New Zealand society.”

As you will be aware, the Commission has been developing the Human Rights and Treaty of Waitangi Dialogue project. At the heart of that dialogue project is the recognition of a simple but important concept: Te Mana I Waitangi.

This concept speaks to the mana and respect that should be accorded to both parties who entered into the Treaty. The mana element of that relationship speaks to the trust that was needed before the Treaty could be signed by either party.

In our view, it is important, whatever happens next on this particular issue, that the mana of the Treaty relationship is fostered and enhanced.

Summary

There are human rights dimensions to the issues of both customary rights and public access to the foreshore and seabed. Considering these issues within a human rights framework is more likely to produce an outcome that balances rights, interests and responsibilities of New Zealanders. In particular this framework provides a way to ensure an appropriate balance between Maori customary interests and the emerging identity of New Zealanders evidenced in their practice of access to the foreshore and seabed.

Given that a human rights analysis will in any event be required for legislation that results from the government’s consideration of the issue, we submit that it would be both sensible and useful to use a human rights framework from the outset in developing policy or legislative proposals.

The Commission recognises that the active application of a human rights framework to policy review and development is still a very new and evolving concept and we are most willing to respond to questions, to clarify or to expand on any aspect of this report.

Yours sincerely

Rosslyn Noonan
Chief Commissioner
Te Amokapua

Cc: Hon. Margaret Wilson
Associate Minister of Justice

ENDS

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