Maori and human rights in New Zealand

By Elizabeth Willmott Harrop

December 2006

Matiu RataA study by Massey university in January 20061 found that disconnection from Maori culture is a key factor behind the high rates of Maori suicide and attempted suicide in New Zealand.

Maori have much higher rates of suicide in most age groups. For example, Maori males aged 15 to 24 in 2001 had a 34 per cent higher suicide rate than non-Maori. For young Maori women, the rate is 142 per cent higher than non-Maori. The report states that the comparatively high rates are symptomatic of the cultural alienation and social disintegration resulting from rapid colonisation.

However, Pakeha2 culture often criticises and derides Maori for wishing to maintain their own unique ethnic and cultural heritage. Hana O’Regan (2001) comments “They rubbish Maori for focusing on the past (especially the Treaty) yet they hold tightly to and value dearly their own ‘pioneering’ heritage … Despite many Pakeha feeling good about how well Maori have been treated, racism and negative stereotypes are alive and well in the actions of many of those same people.”3

Matauranga Maori and Human Rights

So although Matauranga Maori, the body and tradition of Maori knowledge, may not be considered ‘relevant’ by some, access to and acknowledgment of Maori culture, knowledge and beliefs are fundamental human rights, supported by international human rights law.

This body of international law is in place as a result of the ratification of international human rights treaties by dozens of countries, including New Zealand, and the development of a large body of customary law which has evolved as a result of state practice.

As O’Regan notes, New Zealand has a good reputation for respecting its indigenous population, particularly when compared to Australia. However, while progress has been made, for example in the 1975 establishment of the Waitangi Tribunal, there is still a long road to be traveled before the Maori population, who first inhabited New Zealand between AD 750 and 14004, are treated as equals of the Pakeha who arrived centuries later.

The Waitangi Tribunal and Human Rights

The Waitangi Tribunal seeks to provide recommendations for redress by the Crown for past violations, including “colonial wars, confiscation and large-scale land loss”5 relating to breaches of the Treaty of Waitangi, signed in 1840. In the settlement of the Ngai Tahu treaty claim for example, the Crown apologised for acting “unconscionably and in repeated breach of the principles of the Treaty of Waitangi in its dealings with Ngai Tahu in the purchase of Ngai Tahu land”6.

However the Tribunal has come under criticism from senior international human rights officials, notably The UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, who visited New Zealand in 2005.

Stavenhagen’s report7 noted that the Waitangi Treaty provisions are not directly enforceable under New Zealand law and that “in view of the importance of the Treaty as a founding constitutional document and its unenforceability as a constitutional guarantee of human rights, the Special Rapporteur considers that the entrenchment of the Treaty of Waitangi in constitutional law is long overdue.” Furthermore, he notes that the findings of the Tribunal “should be judicially recognized and become binding on the Crown”.

Others question the New Zealand judicial system’s legitimacy in assessing Waitangi claims, which is seen to represent only one of the two treaty parties. Jane Kelsey for example denies the legitimacy of arguing for treaty rights within the parameters of Pakeha law8.

As at 30 April 2006, 1,315 claims had been registered with the Waitangi Tribunal9. Between September 1992 and April 2005, there had been 18 settlements of historical Treaty claims, with a total value of $718 million10.

However, Stavenhagen for one is critical of these settlements sayingTreaty settlements that have been negotiated so far involve quantities of reparation that represent merely a fraction of the value of the land and resources lost by Maori during the colonial period… The average settlement received by claimants is estimated to correspond to approximately one per cent of real value.”

While the Waitangi Tribunal’s vision is to “create a future for two peoples as one nation”11, its lack of legal teeth mean that it is not able to address human rights violations in a thorough or enforceable way.

Specific Human Rights and Maori

There are many issues of ongoing concern to Maori, in terms of the protection of their human rights. Some relate to breaches in principles of the Waitangi Treaty, however the reference point for human rights standards is not just the Waitangi Treaty but the large body of international human rights principles. These span the whole spectrum of human right including Civil and Political Rights and Economic, Social and Cultural Rights.

Stavenhagen’s report speaks of “persistent inequalities between Maori and non-Maori regarding several social indicators such as health, education, housing, employment and income”, saying that there are significant and sometimes widening, disparities between Maori and the rest of the population. According to the UN Special Rapporteur’s report, Maori consider this the result of a trans-generational backlog of broken promises, economic marginalisation, social exclusion and cultural discrimination.

There are many examples of how the human rights of the Maori population are violated and how Matauranga Maori is systematically sidelined in New Zealand. These include:

The right to health

International Covenant on Economic, Social and Cultural Rights (ICESCR)12. Article 12.1 The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

Ethnic inequalities in health increased in the 1980s and 90s, particularly in relation to heart disease and cancer. Explanations for inequalities in health include societal structure, racism and discrimination, socioeconomic resources, behaviour, and health services13.

The right to protection and remedies against acts of racial discrimination

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)14. Article 6 States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.

According to the UN Special Rapporteur, “Redress (under the Waitangi Tribunal) seems to fall short of “just and adequate reparation or satisfaction for any damage suffered”.

The right to liberty and security of person

International Covenant on Civil and Political Rights (ICCPR)15. Article 9.1 Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

Arrests, prosecution rates and conviction rates are considerably higher for Maori than for non-Maori. Although representing 12 per cent of the population over 14 years of age, Maori account for over half the prison population and 60% of all proven Youth Court cases. Maori are also heavily over represented in the victim statistics.16

Williams (2001) comments “Social and economic disadvantage … has been entrenched over several generations. The resulting cycles of disadvantage relate closely to criminal offending and victimisation.

“Maori social advance requires a system of social management that better reflects their values and social norms … assimilation in this aspect of government is neither acceptable or effective.”

The right to freedom from discrimination

ICERD Article 7 States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination.

A 2005 report18 revealed that a significant minority of newspaper and TV stories undermined Maori.

For example the “Privilege” theme implied that Maori had unfair benefits denied to other New Zealanders, and the “Financial probity” theme implied that Maori were poor financial managers. The use of terms such as “Race debate ” instead of “Treaty debate” alluded to notions of racial difference when the issue was the Treaty.

The UN Special Rapporteur commented that the findings “highlight a systematic negative description of Maori in media coverage, an issue that should be addressed through the anti-racism provisions of New Zealand’s Human Rights Act.”19

The right to adequate housing

ICESCR Article 11.1 The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.

The UN Committee on Economic, Social and Cultural Rights General comment 420 states that “The human right to adequate housing, which is thus derived from the right to an adequate standard of living, is of central importance for the enjoyment of all economic, social and cultural rights.”

According to the Human Rights Commission20, Maori and Pacific peoples are disadvantaged in terms of affordability and habitability of housing. They are four times more likely to live in overcrowded houses than the national average.

The right to education

Convention on the Rights of the Child21. Article 13.1 The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers.

Article 29.1.c States Parties agree that the education of the child shall be directed to … the development of respect for the child’s parents, his or her own cultural identity, language and values.

“Teachers, through control over curriculum and pedagogy, have traditionally denied the authenticity of Maori experiences and voice.”22

The Waitangi Tribunal concluded that the education system in New Zealand is operating unsuccessfully. “Maori children are not being successfully taught, and for that reason alone, quite apart from the duty to protect the Maori language, the education system is being operated in breach of the Treaty (of Waitangi)”.23

Conclusion

While the UN human rights system provides a good framework for human rights and the treaties are legally binding, the system has basic limitations in terms of effectively enforcing implementation of the various UN human rights treaties. The initial stage of implementation is at the behest of the state, which must first ratify the treaties. Then, once a party to the various covenants, the system requires a minimum level of voluntary cooperation by the state.24

Indeed this is the exact same problem presented by the Waitangi Tribunal which can only make recommendations, not present legally binding decisions, to the Crown.

Matauranga Maori represents the basis of cultural knowledge and cohesion, “a separate way of knowing and being”25, which is vital to the integrity of the Maori peoples. Only through having a respect for and an appreciation of Matauranga Maori can Pakeha hope to feel a connection with this land they now call home.

Most importantly, there can be no culture of democracy and freedom in New Zealand without respect for human rights.

* * *

Footnotes

1. Massey University, Cultural disconnect behind Maori suicides http://www.massey.ac.nz/massey/about-massey/news/article.cfm?mnarticle=cultural-disconnect-behind-mori-suicides-30-01-2006

2. Defined as New Zealanders not of Maori blood lines

3. Ko Tahu, Ko Au Kai Tahu Tribal Identity, Hana O’Regan, Horomaka Publsiging 2001, p128

4. Ki Te Whaiao An Introduction to Maori Culture and Society, Ka’ai, Moorfield, Reilly and Mosley, Pearson Longman 2004, p27

5. Waitangi Tribunal http://www.waitangi-tribunal.govt.nz/news/thewaitangitribunalandthesettlementofhistoricaltreatyclaims.asp

6. Crown Settlement Offer, Consultation Document from the Ngai Tahu Negotiating Group, 1997

7. Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, Addendum MISSION TO NEW ZEALAND 13 March 2006 http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G06/118/36/PDF/G0611836.pdf?OpenElement

8. Quoted in Waitangi and Indigenous Rights, FM Brookfield, Auckland University Press1999, p168

9. Waitangi Tribunal FAQ http://www.waitangi-tribunal.govt.nz/about/frequentlyaskedquestions.asp

10. The Treaty of Waitangi http://www.treatyofwaitangi.govt.nz/settlements/#redress8

11. http://www.waitangi-tribunal.govt.nz/

12. ICESCR Ratified by New Zealand in 1979

13. Health Inequalities Research Programme, University of Otago

14. ICERD Ratified by New Zealand in 1972

15. ICCPR Ratified by New Zealand in 1979

16. The Too-Hard Basket, Maori and Criminal Justice since 1980, Charlotte Williams, Institute of Policy Studies 2001

17. Media and Te Tiriti Treaty Resource Centre September 2005 http://www.trc.org.nz/resources/media.htm

18. Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, Addendum MISSION TO NEW ZEALAND 13 March 2006

19. The right to adequate housing CESCR General comment 4 1991 http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+comment+4.En?OpenDocument

20. Human Rights in New Zealand Today September 2004 http://www.hrc.co.nz/home/hrc/newsandissues/summaryofconclusions.php

21. CRC ratified by New Zealand in 1993

22. Culture Counts, Changing Power Relations in Education, Bishop & Glynn, Zed Books, 1999, p200

23. ibid p27

24. For a more thorough discussion of this issue, please see Elizabeth Willmott Harrop human rights mechanisms and international law

25. Matauranga Maori as an Epistemology, Tau, Rawiri Te Maire, 2001 in Histories, Power and Loss: Uses of the Past – A New Zealand Commentary. Andrew Sharp and Paul McHugh, Wellington: Bridget Williams Books, pp 61-73

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