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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 19 April 2015
DISCRIMINATION, THE STATE AND MAORI WOMEN:
An Analysis of International Human Rights Law and the Convention on the Elimination of All Forms of Discrimination Against Women
Kerensa Johnston*
The question of Rights. What are they? From my youthful thinking, dreaming and understandings of the word, from the context of a rights discourse, the word appeared like magic, making all things right and light. The darkness descending, and a happy ending. If this was to be, then why so hard, why was there no end in sight, no light at the end of the tunnel? Is the critical analysis of a rights discourse an academic wank, one that only those living in privileged comfort are able to indulge, in the feast of discussion? Or is this rights discourse, and the struggle to bring about `rights', the path to follow; the one that will keep us from being consumed entirely from the belly of genocide, a place where the majority of Indigenous peoples in this country reside. Irene Watson'
INTRODUCTION
In November 1999, I was one of a team of four women lawyers instructed by a Maori group to take a case to the Waitangi Tribunal. The team's first meeting with our clients took place at their ancestral meeting house. Upon arrival, my team was invited into the meeting house for formal introductions and to discuss the case. Once inside, my team were asked to sit on the floor of the meeting house as marae protocol required, while the local men sat at tables and chairs which had been set up for the meeting.
Kerensa Carter Johnston Nga mihi mahana ki a koutou mai to uri a Taranaki, tena koutou, tena koutou, tena koutou katoa. I am of Maori and Scottish descent and am affilated to Nga Ruahine Rangi, Te Ati Awa and Taranaki iwi. I am currently a lecturer at the Law Faculty,University ofAuckland, where I teach Contempory Tiriti Issues, Land Law and Law and Society. My research interests include international law, as it relates to the advancement of indigenous peoples' rights, the development of Maori customary law and Te Tiriti o Waitangi. I am also interested in exploring and discussing the role and position of Mana Wahine in Aotearoa, and the extent to which the law continues to play a role in supressing and advancing our development.
My thanks to Nga Pae o Te Maramatanga, The National Institute of Research Excellence for Maori Development and Advancement, for their assistance and support while writing this article.
Quoted in "One Indigenous Perspective" in Garkawe (ed) Indigenous Human Rights (Sydney, The Sydney Institute of Criminology, 2001) at 22.
This arrangement was not conducive to doing legal work and discussing their case. So, as the formal part of the meeting came to a close, the head of our legal team, a woman, stood and told the group that if they wanted us to act for them then we needed to be seated at the table alongside the men.
The following month we returned to the marae for our next meeting to find tables and chairs had been provided for us in the meeting house —opposite the men at a separate table. It was clear, however, that we had been given a place at the table because we were 'the lawyers' and that an exception to the general rule that women did not sit alongside the men inside the meeting house had been made. The local women attending the meeting sat on the floor.
This incident happened at the end of a decade in which Maori women had made several public challenges to the discriminatory practices of the Crown and others, including Maori men. These challenges attracted considerable publicity, one incident in particular because it involved the Prime Minister, Helen Clark.On Waitangi Day in February 1999, the Prime Minister was invited to sit on the paepae during the formal celebrations at Waitangi. In most areas, the paepae is reserved for male-speakers, who stand to speak and welcome visitors to the marae as part of the formal proceedings. Titewhai Harawira, a local Maori woman, challenged the Prime Minister's right to speak, referring to the double standard that allowed Pakeha women (and Pakeha men) to speak - but not Maori women on their own marae.2
In 1995, Cathy Dewes was elected as the Ngati Rangitihi representative to the Te Arawa Maori Trust Board in Rotorua. The existing trustees, all male, refused to allow her to take up her position on the basis that Te Arawa customs do not permit a women to act as a spokesperson for her iwi. She was eventually able to take up her position on the board, but only after High Court action.3 This incident raised Maori
women's awareness of how tikanga can be used to justify discrimination against women in Crown-imposed structures.4
In 1993, a group of Maori women submitted a claim to the Waitangi Tribunal (hereafter referred to as the Mana Wahine claim) alleging that the Crown's actions and policies since 1840 have systematically discriminated against Maori women and deprived us of our spiritual, cultural, social and economic well-being which is protected by the Treaty of Waitangi.5 The impetus for the claim was the removal of a respected Maori woman elder from the shortlist of appointees to the Treaty of Waitangi Fisheries Commission and the control of the fisheries settlement process almost exclusively by the Crown and Maori men.6 The Minister of Maori Affairs at the time, Doug Kidd, responded to news of the claim with the comment that the lack of status accorded to Maori women was the fault of Maori men — not the Crown.? The Minister's comment illustrated the Crown's unsympathetic attitude towards the position of Maori women and the Crown's unwillingness to consider its part in discriminating against Maori women. The Mana Wahine claim is yet to be heard by the Waitangi Tribunal.
I n December 2000, The Optional Protocol to the Convention on the Elimination of Discrimination Against Women (hereafter referred to as the Optional Protocol) came into force in New Zealand. The preamble to the Optional Protocol refers to the principles of equality and nondiscrimination as embodied in the Charter of the United Nations, the Universal Declaration of Human Rights, and other international human rights instruments, including the Convention on the Elimination of All Forms of Discrimination against Women (hereafter referred to as the
Women's Convention).8 The Optional Protocol reaffirms the determination of State parties, including New Zealand, to ensure the full and equal enjoyment by women of all human rights and fundamental freedoms in all areas of life and to take effective action to prevent violations of these rights and freedoms.
The Optional Protocol empowers the Committee for the Elimination of Discrimination Against Women (hereafter referred to as the Women's Committee) to consider individual communications submitted by a woman (or group of women) from New Zealand complaining of state party violations of the Women's Convention and the Optional Protocol since December 2000.9
The Optional Protocol procedure, along with other international human rights fora and procedures, is available to Maori women who wish to challenge discriminatory laws and practices, such as those described above, using international law.
In this article, I explore how effective international human rights law and in particular, the treaty-based committees such as the Women's Committee, is at protecting Maori women against discriminatory laws and practices. What, if anything, can Maori women achieve in international law fora? Is the struggle to bring about human rights, as Irene Watson, a Nunga women from South Australia, says, "the path to follow, the one that will keep us from being consumed entirely from the belly of genocide"? Or, is rights talk an indulgence that those living in privileged comfort enjoy — an indulgence that ultimately distracts Maori women (and all Indigenous peoples) from rebuilding our own communities and revitalising our own law?
Part one provides the background to the position of Maori women in New Zealand since 1840, focusing on the discriminatory impact of
colonial laws and values on Maori women. I argue that since 1840, the Crown's actions and policies have undermined the role and status of Maori women. In particular, Maori women have been almost entirely excluded from the political and public life of the state. The political marginalisation of Maori women has led to the marginalisation of Maori women's interests generally and contributes to the discriminatory laws and practices Maori women continue to face in New Zealand.
Part two discusses the international law fora that are available to Indigenous women who wish to challenge discriminatory laws and practices. Drawing on feminist perspectives, I consider some of the problems with the international human rights system and the treaty-based Committees, such as the Women's Committee. In particular, I examine the Women's Convention, alongside New Zealand's latest report to the Women's Committee. I discuss the Optional Protocol procedure and conclude that Maori women are more likely to obtain an effective remedy against discrimination using the Optional Protocol procedure and that they should not rely on state and non-governmental organisations reporting to the Women's Committee to address their concerns.
In Part three I question whether Indigenous women (and in particular Maori women) should consider turning to international law at all in our attempts to remedy discriminatory laws and practices. This is because Indigenous women have particular concerns about the development and application of international human rights. The concept of universal human rights, and in particular the emphasis on individual rights does not sit easily with many Indigenous women because it fails to recognise the importance of our communities and our struggle for self-determination. Despite my criticisms of the international human rights system, I conclude that Maori women should consider submitting an individual complaint to the Women's Committee based on a breach of article 7 of the Women's Convention (the failure to eliminate discrimination against women in political and public life).
I argue that Maori women should not submit a complaint based on article 5 of the Women's Convention, which requires New Zealand to take all appropriate measures to modify discriminatory cultural practices against women, which could include, for example, the restriction on
women's speaking rights on the marae. For the purposes of my discussion, I assume that the denial of women's speaking rights on the marae constitutes discrimination under the Women's Convention. I acknowledge, however, that this may not be the case if men and women's roles on the marae are seen as complementary and having different but equal status. Furthermore, the extent to which colonisation has altered and influenced male and female roles on the marae (and tikanga Maori generally) is not fully considered here.
Ultimately, I conclude that international fora, such as the Women's Committee, are not the right places to remedy discriminatory cultural practices that are (arguably) sourced in tikanga Maori. What is needed is a rediscovery of Maori principles and practices as they relate to Maori women.10
Despite my conclusion that Maori women should not submit a tikanga-based complaint to the Women's Committee, I am not confident that a serious Maori re-examination of discriminatory practices, which have traditionally been justified according to tikanga, will take place in New Zealand any time soon. The only benefit, therefore, of submitting an individual complaint based on discriminatory customary practices, is that it may stimulate Maori discussion about the issues. There are, however, many pitfalls for Maori women to be wary of if they choose to submit a tikanga-based complaint. These issues are also discussed in part three.
I THE DENIAL OF MANA WAHINE*
A. INTRODUCTION
She is my goods, my chattels; she is my house
My household stuff, my field, my barn
My horse,
my ox, my ass, my anything.
(The Taming of the Shrew, 3.2)
10 See Mikaere, A, "Maori Women: Caught in the Contradictions of a Colonized
Reality" (1994) 2 WLR 149.
Ani Mikaere, Linda Smith, Leonie Pihama, Clea Te Kawehau Hoskins and many others have written about the role and status of Maori women in New Zealand prior to colonisation and the introduction of colonial laws." There is still a great deal to rediscover and learn about Maori women's pre-colonial history, particularly as some of the stories about Maori women been retold and recorded by officials, historians and writers to diminish the importance and contribution of Maori women.I2
It is known that prior to the introduction of colonial laws, and for some time afterwards, in some areas of New Zealand, Maori women were political leaders who exercised considerable power within their hapu and iwi." Te Rohu (Ngati Tuwharetoa - the eldest daughter of Te Heuheu Tukino II and Nohopapa) was active in Tuwharetoa's military and political campaigns. Similarly, Waitohi (Ngati Toa/Ngati Raukawa) led war campaigns in the North and South Islands. Her daughter, Rangi Topeora, signed The Treaty of Waitangi.14
Prior to the introduction of colonial laws and according to tikanga Maori, women were not regarded as chattels or possessions. Maori women retained their property rights upon marriage and both ambilateral and ambilineal descent was recognised.15 Women's sexuality was not
12 See Williams, D, "He Aha to Tikanga?" (Wellington, New Zealand Law Commission, 10 November 1998) [unpublished] at 16; where he argues that Mana Wahine was distorted by the perception of officials and writers during the contact period to diminish the importance of Maori women; also see Mikaere, supra note 7 at 81-83 where she explains how Maori cosmology stories have been reworked to exaggerate the importance of Maori men.
13 Mikaere, supra note 7 at 69.
14 Ibid.
suppressed and childbearing was considered a healthy and normal part of life.16 Furthermore, the Maori language is gender neutral in a way that English is not — ia, for example, means he and she.
The New Zealand Law Commission, in a recent report examining tikanga Maori chose Shakespeare's words, from the Taming of the Shrew, which are quoted at the beginning of this part of the article, to begin its discussion about the impact of colonial law and values on Maori women from 1840 onwards.17 The verse illustrates the attitude towards women of Pakeha men, who from 1840 onwards, dominated the development of New Zealand's law and the state. Petruchio, in the Taming of the Shrew, refers to his wife as, "my goods, my chattels, [...] my house" and his view reflects English law at that time. Women were considered male property and did not enjoy legal personality in the same way as did men: a married woman could not, for example, initiate legal action without her husband's consent.18 Furthermore, colonial law legitimised violence against women and until recently, the law in New Zealand did not recognise rape as a crime against a woman if her husband committed it.I9 Upon marriage, most women were expected to assume the domestic duties of wife and mother, while 'the man of the house' purported to represent his wife and family's interests outside of the home in public affairs.20°
Pakeha men came to New Zealand influenced by a long history of law and practice that assumed that a woman's role was confined to the domestic, 'private' sphere. These powerful assumptions prevented Pakeha men from recognizing Maori women as political leaders and representatives of their tribal groups and led ultimately to the state's denial of Mana Wahine.
16 Buck, P, The Coming of the Maori, quoted in Mikaere, A, infra note 67 at 38.
20 Blackstone, supra note 18; also see Mikaere, supra note 7, 107-110.
B. MANA WAHINE AND TE TIRITI 0 WAITANGI
The state's active denial of Mana Wahine began with the signing of Te Tiriti o Waitangi (hereafter called The Treaty) in 1840.21 Between February and October 1840, over 500 Maori leaders signed the Treaty on behalf of hapu and iwi. These Maori leaders possessed the requisite mana (authority) which enabled them to enter into such an important contract.
At least thirteen Maori women signed the Treaty, including Ana Hamu (the original patron of Pahia Mission), Te Rau o Te Rangi (Te Whanau Wharekauri/Ngati Toa) and Rangi Topeora (Ngati Toa/Raukawa). It is possible that more Maori women signed the Treaty.22 This is because many Maori names at that time were gender neutral — the unknown signatories could therefore be male or female.23
The history books, until very recently, did not refer to the women who signed the Treaty, or when they did, they claimed that only a few women — three or four at the most had signed. These women were portrayed as the exception to the norm and it was generally assumed that the exercise of political authority in Maori society was a male prerogative.24
It is possible that more women would have signed the Treaty but for the attitudes of the Crown agents who were responsible for negotiating the Treaty and collecting signatures.25 In some areas, Crown agents
24 See Williams, supra note 12 at 16.
25 See Sykes, supra note 4 and Mikaere, supra note 7.
refused to negotiate the Treaty with Maori women and would not allow them to sign. In the Ngati Toa region, for example, Major Bunbury refused to allow a high-ranking Ngati Toa woman to sign the Treaty. As a result of the insult her husband refused to sign.26 This incident was an early sign that the relationship between Maori women and the Crown would be problematic.27 As Annette Sykes has pointed out "this is a dramatic illustration of the imported cultural values and attitudes imposed by representatives of the English Settler Government. It is perhaps the first recorded example of the continuing practice of Pakeha men imposing their mono-cultural based decisions and restrictions on Maori women."28
C. THE IMPACT OF COLONIAL LAW AND VALUES ON MANA WAHINE
In 2001, the New Zealand Law Commission released its report entitled Maori Custom and Values in New Zealand Law which followed an earlier report entitled Justice: The Experiences of Maori Women.29 Both reports discuss the impact of colonisation on Maori women in detail. My intention in this part is to provide a brief background to the impact of colonisation on Maori women after the signing of the Treaty in 1840, to show how Maori women have been (and continue to be) excluded from public and political decision-making bodies and to illustrate the level of discrimination Maori women experience generally. This background is provided in order to inform my discussion in parts two and three, where I consider the international law remedies available to Maori women who wish to challenge discriminatory laws and practices.
It is difficult to overestimate the severe impact colonisation has had on Maori women. Colonial law and values intruded upon every aspect of Maori women's lives, dramatically changing our position and status within whanau, hapu and iwi structures.3° The progress of colonisation
26 See Orange, C, The Treaty of Waitangi, supra note 21 at 90.
28 Sykes,
supra note 4.
29 NZLC SP9 [2001]; NZLC R53 [1999].
30 See supra note 11
and supra note 15.
in New Zealand after 1840 was rapid and aggressive. By 1856, the settler population outnumbered the Maori population, which created an urgent settler demand for land and autonomy.31 This combined with the Maori realization that the Crown had no intention of respecting Maori authority, which had been guaranteed by the Treaty of Waitangi.
By 1860, Maori throughout the North Island were engaged in a large-scale war with the Colonial Government in an attempt to prevent further Pakeha incursions into autonomous Maori areas.32 The war continued throughout the 1860s and although there was never a decisive British victory, by 1870 fighting had come to an end in most areas of New Zealand. Maori communities, particularly in the Taranaki, Waikato and Bay of Plenty regions, were devastated.33
As is the case with most wars, women and children suffered considerable hardship.34 Maori Men (and some Maori women) were away from their homes and cultivations for long periods of time fighting. As a result, cultivations were neglected and resources were stretched. The combination of the loss of life as a result of the fighting, poor health and increasing mortality rates due to inadequate food and resources, created tension and uncertainty and laid the foundation for the economic and political unrest which followed.35
In 1863, the Government passed the New Zealand Settlements Act which authorized the confiscation of large areas of land from Maori who fought against the Crown or assisted or sheltered those who had participated in the fighting.36 This led to the forced removal of Maori
34 Ibid.
women and their families from their land. In areas, such as Taranaki„ Maori men were imprisoned, without trial, and separated from their families and communities for long periods of time.37
The ostensible aim of the land confiscations was to punish Maori 'rebels' for their part in the war. The Government's real objective, however, was to acquire valuable Maori land to satisfy the increasing settler demand for land.38
The confiscation of Maori land coincided with the enactment of the Native Land Act 1865 and the establishment of the Native Land Court. The Native Land Court aimed to facilitate the conversion of all Maori customary ownership of land (whereby whanau, hapu and iwi had communal rights to defined territorial areas) to individual title. The Native Land Court was phenomenally successful at fulfilling its task. By 1900, less than 10% of land in New Zealand was held according to Maori customary law.39
According to Ballara, from 1865 onwards, "Maori land tenure with respect to women was progressively undermined".40 This was partly because the Native Land Court consisted entirely of Pakeha men. They controlled the process of individualization of Maori land and were more likely to list Maori men as landowners of communal hapu land, rather than as the guardians of the land on behalf of the hapa.41
38 The Taranaki Report, supra note 33 at 10,108,113-114.
The effect of land alienation on Maori women was severe. Maori were forced to move away from their hapu and iwi areas in search of employment. This led to the breakdown of whanau, hapu and iwi relationships and Maori social, political and economic structures. Maori society had never been organized around the nuclear-family, but as women were forced away from their hapu and iwi base in search of work, the benefits of caring for their whanau in a communal environment, with all the support that it entails, were lost. Maori women relied less on the wider kin group and more on their male partners. As economic dependency on male partners grew so did the influence of colonial values, which required women to stay at home and fulfill the role of the good Christian wife. The state education of Maori girls reinforced the view that the woman's role was to fulfill subservient, domestic roles. Maori girls boarding schools such as Hukarere Protestant Girls' School and Queen Victoria Maori Girls School, focused on the domestic training of Maori girls and "providing good Christian wives for the boys of Te Aute."'
Since the signing of the Treaty, the Crown had never seriously considered Maori women as political leaders, and now the ideological forces of colonisation were beginning to influence Maori men to adopt discriminatory attitudes towards Maori women. In 1893, for example, Meri Mangakahia (Te Rarawa) had to petition Maori men in Te Kotahitanga (Maori Parliament) for Maori women's right to vote.43 Maori women finally gained the right to vote in Te Kotahitanga in 1897 — four years after universal suffrage had been attained in New Zealand. However, some Maori men remained resistant to women's right to vote and participate in political affairs. In 1933, for example, a group of Maori men from Te Arawa, went to Parliament for the express purpose of walking out in protest when Elizabeth McCombs, the first woman Member of Parliament, rose to give her maiden speech.44
44 See Te Kawehau Hoskins, C, supra note 11 at 25.
Although, by the early twentieth century, the opportunities for Maori women to participate in political life and engage with the Crown, were limited, Maori women continued to be politically active to the extent that was possible within colonial society.45 In 1951, Maori women established the Maori Women's Welfare League (hereafter referred to as the League) in an attempt to influence and implement Government policy that affected Maori.46 As Mira Szaszy, a former President of the League recalled, it was established "to set up a structure which was not dominated by men, that is, on non-Maori lines."47
The League had its origins in the Maori Social and Economic Advancement Act 1945 which expanded the Maori Affairs portfolio to include housing, education and social welfare.48 The Act allowed for the appointment of Maori welfare officers to administer services and implement government policies. Initially, all of the officers appointed were male but it soon became clear that Maori women were needed to work with Maori women and children.
Described as "the most comprehensively representative and durable ofthe national Maori organisations"49 , the League enjoyed considerable support from Maori women and throughout the 1950s its membership grew steadily. The League provided a forum where Maori women could express themselves and coordinate, irrespective of tribal differences and the restrictions that may have prevented women from participating formally in the tribal context.5°
45 Mikaere, supra note 7 at 162; also see Rei, supra note 43 at 313.
50 Koopu, A, quoted in Melbourne H (ed), Maori Sovereignty: The Maori Perspective (Auckland, Hodder Moa Beckett, 1995) at 42
Unfortunately, not all Maori men supported the League . A letter to the Minster of Maori Affairs in 1953 complained that the League had usurped the authority of men and that Maori women had taken over control of the pa.51 Crown officials were equally unenthused. In 1952, a Maori Affairs' Departmental officer observed:
[T]he Welfare League's activities are centered on the house and all its aspects. Our problems start at the house and in this respect the women can do a great deal of good. But they will not get very far without the backing of tribal committees. They were created to assist tribal committees on aspects of welfare which are the prerogative of women. As long as they confine themselves to that particular field they will do good."'
Fortunately, the League did not, as Rei points out, confine its activities to the house.53 It continued to assert itself as a pan-tribal political organisation, which sought to influence Maori policy generally, as well as policy which was particularly relevant to Maori women.
The criticism that Maori women were 'taking over' the political affairs of Maori men and asserting too much political authority led the Department of Maori Affairs to withdraw the League's administrative support in 1962.54 This coincided with the National Government s enactment of the Maori Welfare Act 1962, which established the New Zealand Maori Council (hereafter referred to as the NZ Maori Council). Dominated by Maori men, the NZ Maori Council modeled itself on Pakeha (white) male-dominated bureaucratic systems, which the (predominantly male) National Government related to and understood. The NZ Maori Council became the main pan-tribal body that the Government consulted on Maori policy, effectively replacing the League as a central political voice on Maori affairs. Until the1980s, the NZ Maori Council maintained a strong and viable male leadership and
53 Rei, supra note 43 at 9.
54 Ibid, 11.
provided advice on Maori issues to the Government. By the early 1990s, however, the NZ Maori Council was under attack from those it purported to represent for its lack of accountability. 55
The National Government's decision to establish the NZ Maori Council in preference to developing its relationship with Maori women and the League, illustrated the continuing force of colonial assumptions about the political power of Maori women. The assumption that Maori men, not Maori women, were able and entitled to exercise political power was still firmly entrenched in the minds of Crown officials. The establishment of the NZ Maori Council was a sign that Crown initiatives would continue to be imposed so as to exclude Maori women from decision-making roles, and worse, that Maori men were willing to collude with the Crown in this process. As Mikaere points out, perhaps the greatest tragedy in this event "[I]s that Maori men at that time perceived the threat to have been their own women rather than the white male structure they so wanted to be a part of."56
Throughout the 1980s and 1990s successive New Zealand governments embarked on neo-liberal reform of the market, introducing trade liberalisation and restructuring state activities.57 Job losses as a result of economic restructuring and state sector reform during this period fell heavily on Maori women employed in state-owned industries.58 The decline in job opportunities, combined with the increase in single-parent families, limited Maori women's employment and economic opportunities.59
56 See Mikaere, supra note 11 at 97.
59 Ibid.
The Maori population in New Zealand is approximately 500,000, amounting to fifteen per cent of the population; see supra note 58 (note: these statistics are based on a report prepared by Te Puni Kokiri in 1999 which relied on 1996 census figures. According to the 2001 Census, the Maori population comprised 526,281 of New Zealand's population. This figure is forecast to reach 750,000 (16.6% of the total population) by 2021: see http://www.teara.govt.nz/New ZealandlnBrief/Maori/i/en.
Today, Maori women account for about seven per cent of New Zealand's total population, which is approximately four million people.6° Maori women hold only 2.1% of senior management positions (although this number is increasing very gradually).61 Maori women have the highest rate of unemployment in New Zealand and generally receive lower incomes than men.62 The health of Maori women on low incomes is poor, with many women suffering from high rates of vitamin deficiency and anemia. At least a third of all Maori women and their families in the lowest income group cannot afford to eat properly all the time and basic food runs out for a third of Maori families in the low-income bracket.63
The trend towards privatisation and the process of economic globalisation has had a negative impact on Maori women's communities and lands, and on their ability to participate in public and political life.64
64 Maori Women, supra note 58 at 2.
Economic marginalisation and political marginalization go hand in hand, so it is not surprising that the economic reforms failed to improve the social, economic and political position of Maori women, nor have the reforms created more opportunities for Maori women to participate in political affairs and decision making bodies. The low level of political participation and representation of Maori women in political institutions and decision making bodies contributes to the marginalisation of Maori women's concerns and interests. In communities, such as Te Arawa, Maori women such as Cathy Dewes, have been denied the right to manage and account for the allocation of iwi resources. On the national level, respected Maori women elders have been excluded from making important, far-reaching decisions about Treaty rights and the Treaty settlement process. Maori women recognise that their exclusion from decision making processes contributes to their worsening economic position and that the so-called "trickle down" effect from Treaty settlements is unlikely to benefit most Maori women and children.65 As Ngahuia Te Awekotuku acknowledges:
I'd like to think that the proceeds of the Sealord deal will go to Maori women in the refuge movement, will go to kids with glue ear at kohanga reo [...] I'd like to think that proceeds from various initiatives will go into ensuring that Delcelia Whittaker and Craig Manukau will never happen again. But you know, will it? I see all these late model corporate cars with personalized Maori plates cruising Queen Street and Lambton Quay and I truly do wonder."66
D. CONCLUSION
With the exception of the Maori Women's Welfare League, Maori leadership and representation in the context of the Crown-Maori relationship, has been defined and controlled according to Pakeha patriarchal beliefs. Maori women, as a result, have been excluded from effective participation in most areas of governance and have been subject to discriminatory laws and practices.67
What can Maori women do to address this problem? What can international law offer Maori women, and Indigenous women generally, who wish to challenge discriminatory laws and practices? How effective is international human rights law at protecting Indigenous women from discriminatory laws and practices? Is international human rights law the best way of protecting Indigenous women against discriminatory laws and practices? These questions, along with an examination of the international human rights system, are considered in parts two and three."
II MANA WAHINE AND INTERNAITONAL LAW
A. INTRODUCTION
New Zealand is a party to many international agreements that are relevant to women's rights.69 They include the Universal Declaration on Human Rights (1948), the Convention on the Political Rights of Women (1952), the International Covenant on Economic, Social and Cultural Rights (1966), the International Covenant on Civil and Political Rights (1976), the Convention on the Elimination of All Forms of Discrimination Against Women (1979), the Beijing Platform for Action (adopted at the 4th World Conference on Women 1995) and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (1999).70
Despite the array of international instruments that are relevant to women's rights, there is a lack of consciousness about women's issues within the United Nations (hereafter called the UN).71 This may be due to the lack of women on UN treaty-based committees and the lack of women in professional and high-level posts within the UN generally.72 With the exception of the Women's Committee, the treaty-based committees are male-dominated and Indigenous peoples are poorly represented.73 All 23 members of the Women's Committee are women and on this basis the Economic and Social Council (ECOSOC) has criticised the Women's Committee for its gender imbalance.74 Ironically, in the one area where women are over-represented in the UN system, ECOSOC has made efforts to decrease female participation, while the invisibility of women in other areas has not seriously been challenged.75
In 1993 the Vienna World Conference on Human Rights recognised that the human rights system did not adequately reflect the reality of women's lives.76 In 1995 the Beijing Declaration and Platform for Action went further by acknowledging the range of factors such as
74 Charlesworth, supra note 71 at 66.
race, age, ethnicity and gender, which operate against women.77 As Burrows reminds us, "[fl or most women, what it is to be human is to work long hours in [...] agriculture or the home, to receive little or no remuneration, and to be faced with political and legal processes which ignore their contribution to society and accord no recognition of their particular needs".78 These political and legal processes include the international human rights system which, for the most part, ignore the reality of women's lives. The treaty-based committees, for example, apart from the Women's Committee, have not adequately addressed women's rights. The Human Rights Committee, in particular, has been slow to recognise the position and experience of women.79 General Comment No 9 (the right to privacy) of the Human Rights Committee, for example, makes no reference to reproduction rights. General Comment No 6 (right to life) makes no reference to the tensions between the right to life and a women's right to abortion, nor does it refer to gender-based violence or genital mutilation.8°
Feminist writers and critical legal theory scholars such as Hilary Charlesworth, Christine Chinkin and Catherine MacKinnon, have criticised the development of the international human rights system, arguing that it is dominated by men and as a result, reflects male concerns and interests.81 International human rights, as they have developed and been expressed in declarations, conventions and treaties do not reflect issues of immediate and central concern to most women,
82 quoted in Charlesworth, H and Chinkin, C, supra note 76 at 231.
81 Charlesworth and Chinkin, supra note 76.
such as protection against gender-based violence, access to conditions for healthy child-bearing and sufficient resources to sustain themselves and their families.82
Furthermore, international law has traditionally played a limited role in the private lives of individuals and has been most concerned with regulating state behavior." The traditional focus of international human rights law on the public life of individuals and the role of the state has had serious consequences for women because the worst abuses of women's human rights, such as murder, rape and assault, take place in the 'private' sphere — that is, in women's homes and communities.
In recent years, the public and private distinction has been challenged and the international community has shown a greater willingness to uphold rights in the private sphere, in extreme cases holding individuals (rather than the state) accountable.84 The Women's Convention reflects the relaxation of the distinction between the public and private sphere by requiring, in article 2(e) for example, the state party to take "all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise". Article 5 requires state regulation of society and cultural patterns of conduct regardless of whether the conduct is public or private. Similarly, article 16 requires states to take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family.85
82 Ibid, 231.
83 Charters, supra note 3 at 22.
B. THE WOMEN'S CONVENTION
1. Substantive Provisions
The Women's Convention is the most comprehensive legally binding treaty on women's rights. It was adopted by the United Nations in 1979 and entered into force in 1981.86 New Zealand ratified the Women's Convention in January 1985.87
The Women's Convention reaffirms the fundamental human rights of men and women and establishes minimum standards for overcoming discrimination. The preamble recalls that discrimination against women "violates the principles of equality of rights and respect for human dignity [and] is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries."
Article 1 defines discrimination against women as "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality with men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." The definition is not limited to state-imposed discrimination and is wide-ranging, applying to discrimination in the political, economic and cultural sphere or any other field.
Article 2 requires state parties to the Women's Convention to pursue "by all appropriate means and without delay a policy of eliminating discrimination against women." Article 2(d) requires the state to refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions conform with this obligation; Article 2(e) requires the state to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise. Article 2(f) requires the state "to take all appropriate steps, including legislation, to modify or abolish existing laws, regulations,
86 United Nations, Treaty Series, vol 1249, 13, and online:
87 See supra note 69.
customs and practices which constitute discrimination against women." The application of article 2 is, again, potentially very wide, requiring states to take steps to eliminate or modify discriminatory laws, practices and customs which discriminate against women.
Article 5 of the Women's Convention refers to the social and cultural life of women and requires states to take all appropriate measures:
To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.
The Women's Convention is the only international treaty to require the eradication of discriminatory customary practices.88
Article 7 relates to the political and public life of women and requires states to ensure equality with respect to voting rights and participation in the formulation and implementation of government policy.
The Women's Convention has been ratified by almost every country —by March 2005, 180 countries (over ninety percent of the UN) had ratified the Women's Convention.89
2 Some CiNCISMS of the Women's Convent/on
Although there is a limited acknowledgment (for example in article 5 and article 16) that women experience oppression in the home and family sphere, the Women's Convention has come under attack for focusing too much on rights which relate to public life, rather than on the issues that most concern women." Like other international instruments, such as the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Forms of Racial Discrimination (CERD), the rights expressed in the Women's
88 Charters, supra note 3 at 13; also see Alston & Steiner, supra note 79
at 193.
89 See http://www.un.org/women/watch/daw/cedaw/.
90 Charlesworth
and Chinkin, supra note 76 at 231.
Convention focus mainly on public life, the economy, education, the legal system and the equal status of men and women in relation to these rights.
Charlesworth and Chinkin have criticised the Women's Convention for reinforcing male views of equality with little consideration of whether the existing male standards are appropriate.9I This, Charlesworth and Chinkin argue, promotes the view that gender-based discrimination is remedied once men and women are equally represented on decision-making bodies. While increasing the number of women in decision-making positions is important this will not in itself necessarily change the underlying attitudes and behavior that oppress women.92 Increasing the number of Maori women (on Trust Boards for example) may go some way towards remedying discrimination towards Maori women. It should, however, coincide with the recognition that the way men do things may not be appropriate or desirable for women.
As Denese Henare, Counsel for the Mana Wahine claimants has explained, the Mana Wahine claim is not just about challenging discriminatory practices towards Maori women, the claim is also about protecting those aspects which Maori women bring to decision-making processes — such as humanity, care and "[t]he quality of aroha, not only for whanau, but for hapu and iwi as well."93 So, increasing the number of women in decision-making roles must be accompanied by support structures for women in traditionally male-dominated environments, otherwise there is a risk that discriminatory practices will continue to operate against women in those environments to undermine their work and contribution.
C. THE OPTIONAL PROTOCOL
The Optional Protocol to the Convention on the Elimination of Discrimination Against Women (hereafter called the Optional Protocol) came into force in December 2000. The Optional Protocol empowers
91 Ibid.
92 Charlesworth and Chinkin, supra note 76 at 231.
the Women's Committee to consider individual communications submitted by a woman (or group of women) complaining of state party violations of the Women's Convention and the Optional Protocol.94
Under the Optional Protocol Procedure, all domestic remedies must be exhausted before the Women's Committee will consider a complaint.95 Furthermore, the violation must be committed by the state after the state has ratified the Optional Protocol.96 If the Mana Wahine claim is to go before the Women's Committee, it would therefore need to be amended to refer to alleged discrimination suffered after December 2000. Furthermore, the Women's Committee would need to be satisfied that all domestic remedies have been exhausted in New Zealand.
Any woman or group of women within New Zealand can submit a complaint to the Committee for an alleged breach by the state of any of the rights contained in the Women's Convention.97 Maori women could submit a complaint arguing a breach of the rights in article 7 which requires New Zealand to take all appropriate measures to eliminate discrimination against women in political and public life (for example, when appointing Commissioners to the Fisheries Commission or Maori Trust Boards), or under article 2(f) which requires states "to take all appropriate measures, including legislation, to abolish [...] customs and practices which constitute discrimination against women."
As Maori academic, Claire Charters has suggested, Maori women could also submit a complaint based on article 5(a) which requires New Zealand to take all appropriate measures to modify (with a view to achieving the elimination of) discriminatory cultural practices and all other practices which discriminate against women.98 As Charters
96 Article 3 of the Optional Protocol.
97 Article
2 of the Optional Protocol.
pointed out, Maori women may therefore argue that the state has failed to take an active role to modify the custom that in some areas of New Zealand prevents Maori women from speaking on the Marae Atea during formal proceedings (although whether this course of action is desirable or not is discussed in part three).99
1. The Optional Protocol Procedure
Articles 6 and 7 of the Optional Protocol establish the communications procedure.'°° According to the provisions of the Optional Protocol, the Women's Committee examines all information provided by a complainant in closed meetings. The Women's Committee's views and recommendations are then transmitted to the parties concerned. The state party has six months to consider the Women's Committee's views and provide a written response, including remedial steps taken. Importantly, article 11 of the Optional Protocol requires a state party to protect women submitting a complaint from ill treatment or intimidation, which may result from making the complaint.
Under the Optional Protocol, the Women's Committee can request the state party concerned to take specific measures to remedy violations of the Women's Convention. The requests could include, the amendment of legislation, or temporary measures such as affirmative action schemes and quotas to advance women's integration into politics or employment.1°1
D. THE REPORTING PROCEDURE
Another of the Women's Committee's functions is to monitor the progress ofthe implementation of the Women's Convention by examining
99 Ibid.
100 Article 6 establishes that where a communication has been found admissible, the Women's Committee will confidentially bring it to the state party's attention, provided the complainant consents to the disclosure of their identity to the state party. The state party is given six months to provide a written explanation or statement to the complainant.
101 See Article 4 of the Women's Convention and General Recommendation No 5 (Women's Committee) (seventh session, 1988).
state reports submitted in accordance with Article 18 of the Women's
Convention.' °2
New Zealand last reported to the Women's Committee in
July 2003.103 The report covered the period March 1998 to
February 2002. Prior to that, the last time the Women's Committee considered a
report
from New Zealand was in 1999. Commenting on New Zealand's report in 1999,
the Women's Committee made the following comments about
the situation of Maori
women in New Zealand:
The Committee is concerned that the situation of Maori women remains unsatisfactory in many areas, including the high percentage of Maori girls leaving school early, higher-than-average teenage pregnancy rates, the continuing low number of Maori women in tertiary education, their employment situation, their absence from the judiciary and political decision-making, their health situation and access to health services and higher-than-average incidences of domestic violence."104 (my emphasis added)
The Women's Committee urged the Government to continue its efforts to implement fully the Treaty of Waitangi, with particular emphasis on achieving equality for Maori women in all areas covered by the Women's Convention. The Committee did not refer to the Mana Wahine claim (although it was mentioned in New Zealand's last (1998) report), nor did they criticise New Zealand for the Waitangi Tribunal's failure to hear the claim.
In New Zealand's latest report (hereafter referred to as the 2002 Report), the Government responded to the Women's Committee's concerns by noting that the Government is implementing a "whole of government" approach to addressing inequalities.105 This approach
102 State parties must submit a national report to the Women's Committee, outlining measures they have taken to comply with the Women's Convention, within one year of accession or ratification of CEDAW and thereafter every 4 years or at the Women's Committee's request.
103 Ministry of Women's Affairs, The Status of Women in New Zealand 2002, Report to CEDAW, (Wellington, The Ministry of Women's Affairs) (hereafter referred to as the 2002 Report), online: .
105 The 2002 Report, supra note 103 at 18-19.
requires Government departments such as the Ministry of Women's Affairs and Te Puni Kokiri (Ministry of Maori Development), to undertake policy work to analyse impacts and links policy initiatives across sectors and to develop a Women's Strategy that will address these issues for Maori.1°6
The 2002 Report refers to the Ministry of Women's Affair's recent publication, Maori Women: Mapping Inequalities & Pointing Ways Forward (September, 2001). This document provides disaggregated data on the status of Maori women compared with Maori men and non-Maori women and men across six sectors — education, employment, income, health, housing, and criminal justice.1°7
In response to the Women's Committee's second criticism (relating to the implementation of the Treaty) the 2002 Report pointed to the Government's efforts to uphold the principles of the Treaty of Waitangi.108 This time, however, the 2002 Report did not refer to the Mana Wahine claim or to the fact that the claim is yet to be heard by the Waitangi Tribunal.
In the last reporting period, the Women's Committee referred to article 7 (participation in political and public life) and expressed concern about New Zealand's failure to set targets for gender balance through the use of temporary special measures, such as positive action, preferential treatment programmes or quota systems to advance women's integration into politics.109 The Committee recommended the use of targets and flexible numerical goals to achieve gender equity.
106 Ibid.
107 The 2002 Report, ibid, at 19, is intended to provide a tool to assist agencies to: undertake gender analysis as it applies to Maori women and their roles within whanau, hapu, iwi and Maori society. The report identifies persistent inequalities that continue to be experienced by Maori women across all six sectors and suggests areas where further government attention is necessary and work is currently being undertaken.
108 For instance, the first of six key Government goals guiding public sector policy and performance is to strengthen national identity and uphold the principles of the Treaty of Waitangi. Another goal refers to reducing inequalities in health, housing, education, employment and housing; see supra note 104 at 20.
109 See Article 4 of the Women's Convention and General Recommendation No 5 (CEDAW) (seventh session, 1988).
For the first time in 2003, a New Zealand Women's non-governmental organisation prepared a separate report (hereafter referred to as the NGO Report) to accompany New Zealand's report to the Women's Committee."° The NGO Report criticised the Government's failure to take action since the last reporting period to actually improve the human rights status of Maori women and girls. As the NGO Report highlighted, the Government has spent valuable time and resources analysing the situation of Maori women and collecting data about them. It is action, however, not more publications about the position of Maori women, that is needed to improve the quality of women's lives.111 This view is consistent with the views of Maori women who were consulted by the Ministry of Women's Affairs, on the 2002 Report. The Maori women consulted raised concerns about the lack of recognition by government of their status as Treaty partners, and in particular they were concerned about:112
[T]he government using data to articulate Maori women's status from a disadvantage or deprivation perspective, which fails to recognise Maori women's innovation to pursue, develop and control their own solutions and strategies...
The Maori women consulted suggested that the government recognise the status of Maori women within the context of iwi, hapu and whanau, and the role and value of Maori women in communities. In particular, the government needed to focus more on developing solutions for Maori women, rather than on defining problems.
E. TREATIES AND DECLARATIONS RELATING TO INDIGNEOUS
PEOPLES
As well as the aforementioned international treaties, conventions and fora, there are instruments and declarations that refer specifically to Indigenous peoples' rights although significantly there are no reporting
110 Aotearoa/New Zealand Non-Governmental Organisations Non-Maori Report,
Status of Women, Comments to the UN CEDAW Monitoring Committee
on New Zealand's
Progress in Implementing the Convention on the Elimination of All Forms of
Discrimination Against Women, (September 2002) at 13.
111 Ibid at
13.
112 The 2002 Report, supra note 103 at 159.
or complaint procedures in place to examine complaints of individual or group infringements of Indigenous Peoples rights.
Article 3 of The International Labour Organisation Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169) provides that Indigenous peoples shall enjoy the full measure of human rights without discrimination to male and female members."3
Article 2 of Draft Declaration on the Rights of Indigenous Peoples (Draft Declaration) provides that Indigenous peoples are "free and equal to all other individuals and have the right to be free from any kind of adverse discrimination.„114 In addition, according to article 16, states must take appropriate measures, in consultation with the Indigenous peoples concerned, to "eliminate prejudice and discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all segments of society.” Although the Draft Declaration has yet to be adopted by the General Assembly, there is widespread support among Indigenous Peoples for the Draft Declaration, largely due to the role we have played in drafting and negotiating the Draft Declaration."5
F. CONCLUSION
The aforementioned instruments, declarations and fora are some possible options for Indigenous women to consider when challenging discriminatory laws and practices.
In my view, if Maori women are considering utilising international human rights law to address discriminatory laws and practices in New Zealand, then the Optional Protocol procedure, which is available under the Women's Convention may provide an effective remedy for a complaint submitted (for example) under article 7 of the Women's Convention (political and public representation).
113 The ILO Convention 169 is a revision of the ILO Convention No 107 (adopted in 1957).
114 Draft United Nations Declaration on the Rights of Indigenous Peoples, United Nations Working Group on Indigenous Populations, 12th session, UN Doc E/ CN.4 Sub.2/AC.4/1994/4/Add. 1 .
115 Charters, supra note 3 at 48.
The Optional Protocol procedure enables the Women's Committee to make recommendations on a specific complaint and to request the state to take immediate action to remedy the violation. The Women's Committee's recommendations could include implementing temporary measures such as affirmative action programmes or quotas, to ensure the equal participation of Maori women on public decision making bodies such as the Treaty of Waitangi Fisheries Commission.
There may be other benefits to the Optional Protocol procedure, such as the level of publicity the complaint could attract internationally and in New Zealand (compared with the Women's Committee's country reports which receive little attention).116 This publicity, along with a recommendation from the Women's Committee that action must be taken to remedy discrimination against Maori women, could bring considerable political pressure to bear on the Crown to take remedial action to address the low level of Maori women's participation in political and public decision-making bodies. It may also stimulate discussions within Maori society and among Maori women about our own role and position, and the effect that the Crown's discriminatory actions has had on Maori women and on Maori society generally.
Although Maori women may see immediate results from submitting a complaint to the Women's Committee or any other international forum (such as receiving a positive recommendation, gaining publicity and promoting discussion and debate about Mana Wahine), whether there is any long term benefit to Maori women and our communities, particularly when the complaint involves tikanga Maori, is questionable. The international human rights system poses many challenges to Indigenous women seeking to remedy discriminatory laws and practices. Some of these challenges are discussed in part three.
116 Charlesworth, supra note 71 at 68-69.
III INDIGENOUS WOMEN AND THE INTERNATIONAL HUMAN
RIGHTS SYSTEM
A. INTRODUCTION
The following discussion of the international human rights system is intended to provide some insight into the system from an indigenous feminist perspective. The purpose of my discussion is to shed light on some of the issues Indigenous women, and particularly Maori women, may confront when engaging with international law and its processes in order to examine whether, as Watson suggests, rights are the "path to follow"? If so, what hazards should Indigenous women be aware of along the way?
There is a growing body of work from Indigenous women who are critical of the application of western feminist theories to international human rights law.I 17 This work has grown out of the recognition that the application of Western feminist theories (which focus on gender and class oppression) to international human rights law does not adequately explain or reflect Indigenous women's experiences of racism and colonialism.I 18 To even talk using the language of universal rights
117 See for example, Tomas, supra note 2, 21; Watson, supra note 1, 21 and
Trask, H, From a Native Daughter: Colonialism and Sovereignty in Hawaii
(Hawaii, University of Hawaii Press, 1993) at 112; see also Te Kawehau
Hoskins, supra note 11.
118 See Tomas, supra note 2; and Watson, supra note
1.
is the antithesis to some Indigenous women of what it means to be indigenous. As Trask, an Indigenous Hawaiian woman has said:
Ideologically, 'rights' talk is part of the larger, greatly obscured historical reality of American colonialism...by entering legalistic discussions wholly internal to the American system, Natives participate in their own mental colonisation. Once [I]ndigneous peoples begin to use terms like language `rights' and burial 'rights', they are moving away from their cultural universe, from the understanding that language and burial places come out of our ancestral association with our lands of origin. These ['Indigenous, Native practices are not 'rights' which are given as the largesse of colonial governments. These practices are, instead, part of who we are, where we live, and how we feel... When Hawaiians begin to think otherwise, that is,
to think in terms of 'rights', the identification as "Americans' is not far off. 119
Indigenous women are naturally wary ofturning to a 'universal' language of rights that is foreign to us.120 Apart from the Draft Declaration on the Rights of Indigenous Peoples, Indigenous women have not played a part in drafting and developing international human rights instruments.
A cursory examination of human rights declarations Indigenous people have drafted shows how differently we think about and express our rights. They are often expressed in relation to land (and in particular a woman's relationship with the land) as the following quote from the
119 Trask, supra note 117, 23; Moana Jackson makes a similar point reminding
us that the debate about self-determination (in the context
of the Draft
Declaration on the Rights of Indigenous Peoples) has been "[C]aptured by
lawyers, reworked by political scientists,
and sloganised by new age
colonizers"; see Jackson, M, "Self-Determination: The Principle and the Process"
(Paper presented to the
New Zealand Human Rights Commission, Wellington, New
Zealand, 8-9 August 2002) at 1 [unpublished].
120 Tomas, supra note 2 at
118.
Kimberley Declaration, which was drafted by Indigenous peoples attending the Johannesburg Earth Summit in August 2002, illustrates:
We are the original peoples tied to the land by our umbilical cords and the dust of our ancestors.'
Indigenous peoples tend to emphasize the obligations we owe to each other and to our land. The Kari-Oca Declaration (which was drafted by Indigenous People at the 1992 Earth Summit in Brazil) expresses rights and obligations in the following way:
We the Indigenous peoples walk to the future in the footprints of our ancestors...the footprints of our ancestors are permanently etched upon the lands of our peoples...we maintain our inalienable rights to our lands and territories, to all of our resources, above and below — and to our waters, we assert our ongoing responsibility to pass these on to future generations...122
This language contrasts sharply with the language of existing human rights instruments such as Article 17 of the UDHR, which recognises "the right to own property alone as well as in association with others."' 23
As well as questioning the language of human rights, Indigenous women have questioned the value of turning to international law for protection when international law has traditionally been used against them to justify colonial expansion and the removal of Indigenous women from their land.124 As Irene Watson says:
121 The Kimberley Declaration, International Summit on Sustainable Development Khoi-San Territory, Kimberley, South Africa, 20-23 August 2002; For other examples of Declarations drafted by Indigenous People see the Charter of the International Alliance of Indigenous and Tribal Peoples of the Tropical Forests; the Mataatua Declaration; the Santa Cruz Declaration on Intellectual Property; the Leticia Declaration of Indigenous Peoples and Other Forest Dependent Peoples on the Sustainable Use and Management of All Types of Forests; the Charter of Indigenous Peoples of the Arctic and the Far East Siberia; the Bali Indigenous Peoples Political Declaration; and the Declaration of the Indigenous Peoples of Eastern Africa in the Regional WSSD Preparatory Meeting.
122 Kari-Oca Declaration, signed at Brazil, 30 May 1992.
123 Universal Declaration of Human Rights 1948, UN Doc A/810 at 71.
124 Watson, supra note 1 at 29-30.
125 Ibid.
How do we negotiate rights with the unequal power of thieves? How do we engage with their law when we have never consented to their stolen title of our lands? When is it our turn to de-colonise in a universal world order, which nurtures the myth and language of post-colonialism?125
C. UNIVERSAL RIGHTS AND CULTURAL RELATIVISM
Indigenous women have criticised the value of universal human rights and in particular the emphasis on individual rights, which it is argued, fail to recognise the importance of communities and groups to Indigenous women.126
The assumption that rights attach to all human beings and must therefore be applied universally, irrespective of the cultural context, raises serious issues for Indigenous women.127 Critics of the universal application of human rights (or cultural relativists, as they are sometimes called) challenge the assumption that international human rights should be applied universally on the basis that the perception and valuation of rights is culturally partial and that practices which are valid according to a particular culture should not be overridden by 'outsiders' .128
Cultural relativists argue that human rights should be applied in context and that a woman's particular cultural, ethnic, religious or other beliefs must be considered when applying rights. They are critical of a human rights regime that ignores the impact of colonialism, makes assumptions about the history, position and experiences of women worldwide and
126 See Watson, supra note 1, 30 for a discussion of how Western philosophy
and rights are separated from Indigenous Peoples' understandings
of the natural
world; also see Hunt, P "Reflections on International Human Rights Land and
Cultural Rights" in Culture, Rights and Culture Rights, (Wilson and Hunt
ed) (Wellington, Huia Publishers, 1998) at 25 for a review of existing rights
(such as Article 27 of the Universal
Declaration of Human Rights and Article 27
of the International Covenant on Civil and Political Rights, for example) and a
discussion
of how existing rights fail to recognise Indigenous Peoples rights;
also see Kenyatta, J, "Facing Mount Kenya: The Tribal Life of
the Gikuyu"
(United States, Vintage Books, 1965) at 109, where he explains that Kenyan
social and economic organisation depends on
family and tribal obligations and in
Kenya, an individualist is looked upon with suspicion.
127 MacKinnon, C,
Sex Equality (New York, Foundation Press, 2001) at 471.
128
Ibid.
129 See Charlesworth and Chinkin, supra note 76 at 225.
assumes everyone in the world wants to be treated the same.129 Some Indigenous critics go further, arguing that the imposition of universal human rights on indigenous cultures is another form of colonialism and that the universalisation of norms risks destroying the diversity of cultures.13°
Supporters of the universal application of human rights reject the claim that if human rights norms conflict with cultural practices, the particularity of the culture takes precedence over the universal standard. This, they say, challenges the validity of human rights (and the belief that all human beings are equal and therefore, are entitled to equal protection) and retards the development of universal standards." 1 Universalists claim that an objective yardstick must be used to measure behavior and allowances should not be made for cultural preferences.I32 These arguments are probably not all that helpful for Indigenous women who are trying to improve their immediate situation. As Rosalind Higgins points out:
[lit is sometimes suggested that there can be no fully universal concept of human rights, for it is necessary to take into account the diverse cultures and political systems of the world. In my view this is a point advanced mostly by states, and by liberal scholars anxious not to impose the western view of things on others. It is rarely advanced by the oppressed who are only too anxious to benefit from perceived universal standards.133
This statement may be true, particularly for Indigenous women who are facing serious and imminent threats to their lives.134 There are, however, good reasons for Indigenous women to question the concept
130 Charlesworth and Chinkin, ibid at 223.
131 Charlesworth and Chinkin, supra note 76 at 223; also see Alston, supra note 79 at 193.
133 See supra note 80 at 219.
134 Such as Muslim women in Northern India (Gujarat) who have been the target of brutal Hindu attacks; see "How has the Gujarat Massacre Affected Minority Women? The Survivors Speak", online: http://www.isiswomenorg/pub/we/ archive/msg00074.html.
of universality and the application of universal human rights to us and to our communities. This is because the application and enforcement of universal human rights may not always lead to an improvement in the lives of Indigenous women.135
Lovelace v Canada is a case which concerned an individual complaint brought under the Optional Protocol to the ICCPR against Canada.136 Sandra Lovelace, a Native American woman who argued that the Indian Act which provided that an Indian woman lost her legal status as an Indian upon marriage to a non-Indian male breached her right to enjoy culture in Article 27 of the ICCPR. Although the complaint was upheld and amending legislation was passed to remedy the situation, the practical effect of the amendments led to further discrimination against Indian women from within their own tribes.137
Maori women seeking to enforce rights using international law should be aware of the practical impact of a decision like Lovelace on indigenous communities. In Lovelace, the enforcement of the right to enjoy one's culture created resentment within her group due to a perceived increased burden on resources and this may have contributed to Lovelace's exclusion from her group. Maori women who consider that we suffer discrimination on the marae and seek to enforce the right to speak on the marae during the formal proceedings using international law, are particularly vulnerable to criticism and exclusion from the rest of the group (although this is of course different from the situation in Lovelace, where the decision involved an increased burden on overstretched tribal resources). Regardless of what the Women's Committee say about the right to speak on the marae, it is impossible to exercise that right as an individual. The enjoyment of a Maori women's right to speak on the marae (and her participation in iwi and hap fora and Maori society generally) depends on the support and consent of
135 Charters, C, "The utility of international and constitutional law in resolving the tensions between Indigenous Peoples' rights to self-determination and culture and discrimination against indigenous women", (Paper presented to Faculty of Law staff, Victoria University of Wellington, New Zealand, 27 November 2001) at 6 [unpublished].
136 Sandra Lovelace v Canada, Communication No R/6/24 (29 December 1977) UN Doc Supp, No 40 (A/36/40) (1981).
137 Charters, supra note 3 at 45.
the wider Maori group. This highlights the main conflict between individual and group rights and why the emphasis on individual human rights often does not serve Indigenous women wel1.138
Furthermore, the New Zealand Government may be unwilling to take steps to modify discriminatory practices on the marae, even if the Women's Committee recommends that it do so. The language of the Women's Convention, like other international instruments, is broad and vague which allows the state to argue that that it is not "appropriate" (using the language in articles 2 and 5) in the political circumstances to take steps to remedy the discrimination.139 The Government could, for example, point to its Treaty of Waitangi obligations, which require the state to protect and recognise rangatiratanga, arguing that this prevents the state from interfering in marae protocols.
Another important issue for Maori women to be wary of when submitting a complaint to the Women's Committee based on allegedly discriminatory cultural practices is that tikanga Maori risks being distorted further by an international body such as the Women's Committee, which has developed out of its own particular western liberal tradition. The risk of distorting tikanga Maori (or any culture's practices and principles) exists whenever those practices and principles are considered out of context.140 The rules of tikanga Maori, for example, have developed over a long period of time, in connection with different territorial areas and environments in New Zealand. Importantly, the rules of tikanga Maori are based in the Maori language and make the most sense when they are explained and discussed in the Maori language. There is a serious risk that tikanga Maori will be
138 Although see Tomas, supra note 2 at 130, where she argues that once Indigenous groups have had the opportunity to develop their nationhood, the rights of individuals will become more of an issue in the same way that they have within existing western state practice.
139 Article 2 requires the state to pursue "by all appropriate means" a policy of eliminating discrimination; article 5 requires states to "take all appropriate measures" to modify and eliminate discrimination.
140 Tikanga Maori can be translated as a flexible set of laws, practices and principles which have been handed down by the ancestors and establish the correct way to live in harmony with one another and the environment; "tika" is also used to refer to the right or correct way of doing or saying something.
misunderstood and misapplied if considered out of context by Committee members with no (or a limited) understanding of the indigenous culture.
In my view, the risks associated with a tikanga-based complaint to the Women's Committee, do not apply to a complaint concerning discrimination in the context of the Crown-Maori relationship (for example, a complaint based on the state's failure to take steps to eliminate discrimination against Maori women in New Zealand's political and public life by ensuring equal representation of men and women on the Treaty of Waitangi Fisheries Commission). The Human Rights Committee has already considered an individual complaint submitted under the Optional Protocol (to the ICCPR) about Maori representation issues and the Treaty of Waitangi Fisheries settlement process. This case provides an indication of how the Women's Committee may deal with a similar claim from Maori women.
Mahuika et al v New Zealand141 concerned a complaint made to the Human Rights Committee by nineteen Maori authors about the Treaty of Waitangi (Fisheries Claims) Act 1992 and the process that led to its enactment. The Human Rights Committee rejected the complaint, acknowledging that although the Settlement Act and its mechanisms limited the right in Article 27 to enjoy one's culture, "the acceptability of measures that affect or interfere with the culturally significant economic activities of a minority depends on whether the members of the minority in question have had the opportunity to participate in the decision-making process in relation to these measures."142
In Mahuika, the Human Rights Committee considered that wide-ranging and effective consultation had taken place and the settlement legislation was enacted only after following the Maori representatives' report that substantial Maori support for the settlement deal existed. In making this finding, the Human Rights Committee relied on the report, rather than the evidence to the contrary — that is that substantial Maori support for the proposal did not exist. The Human Right's Committee
141 Communication No 547/1993, views adopted on October 27 2000. CCPR/C/70/ D/547/1993,2.
142 Ibid, at 13.
accepted New Zealand's argument that there should be no inquiry into the (Maori) internal decision making process.143
The Human Rights Committee did not agree that the author's minority rights had been interfered with. The Committee stated "where the right of individuals to enjoy their own culture is in conflict with the exercise of parallel rights by other members of the minority group, or of the minority as a whole, the Committee may consider whether the limitation in issue is in the interests of all members of the minority and whether there is reasonable and objective justification for its application to the individuals who claim to be adversely affected".144
It is difficult to predict accurately whether the Women's Committee will reach the same result as the Human Rights Committee, particularly as the Women's Committee complaint is more likely to focus on the low level of Maori women's participation and discrimination issues with respect to the fisheries settlement process. The result in Mahuika, however, illustrates the Human Rights Committee unwillingness to inquire into internal decision making processes where the issue of race-based mandates and representation is involved. This may suggest an uncertainty on the part of the treaty-committee bodies generally about how to determine cases involving Indigenous Peoples' rights and internal conflicts within Indigenous Groups.
In 1995, Indigenous women attending the 4th World Conference of Women in Beijing argued that the women's movement should be framed in terms of self-determination for women — not gender equity.I45 This
143 The Government relied on the case of Grand Chief Donald Marshall et al v Canada, Communication No 205/1986, Views adopted on 4 November 1991, CCPR/C/43/D/205/1986, in which the Human Rights Committee rejected a claim that all tribal groups should have a right to participate in consultations on aboriginal matters. (However, this case did not require a minority group's consent to extinguish its property rights or deny access to the courts to enforce those rights).
144 Mahuika, supra note 141 at 13.
145 Watson, supra note 1 at 35.
view is reflected in article 5 of the Beijing Declaration which states: "We the women of the original peoples of the world have struggled actively to defend our rights to self-determination and to our territories which have been invaded and colonized by powerful nations and interests."146
The international community has not yet recognised Indigenous peoples' right of self-determination. The Draft Declaration has not been adopted by the General Assembly and many states, including New Zealand, oppose the inclusion of the right of self-determination in the Draft Declaration.147 This is a serious concern to many Indigenous women who are actively working towards realizing self-determination in their communities.
Indigenous women seeking to address discriminatory laws and practices using international law have recognised that their aspirations for gender-equity can become subsumed by their aspirations for self-determination. In New Zealand, Maori women such as Clea Te Kawehau Hoskins acknowledge that the primary (but not exclusive) site of struggle for Maori women is within a struggle for Maori independence.148 Maori women's status, as tangata whenua, along with Maori men, their shared culture and experiences of colonisation, places Maori women in a much larger reality than that of women's rights.149 This explains why some Maori women will not openly challenge discriminatory practices from within their group, when interacting with the state or the dominant Pakeha culture. They may choose not to disagree publicly with a male speaker or air grievances with respect to sexist behavior - in the interests of protecting the integrity of the group and to avoid exposing the group to criticism.15°
146 Ibid.
148 See Te Kawehau Hoskins, supra note 11, 38-39; Although Te Kawehau Hoskins argues that the struggle for self-determination necessarily includes the struggle for gender equality both within Maori culture and the wider society.
149 Ibid.
150 Ibid.
Unfortunately Maori men are not always as concerned about protecting Maori women and will sometimes side with the dominant Pakeha view at the expense of Mana Wahine. Nin Tomas illustrates this point when relaying the incident involving Titewhai Harawira, discussed at the beginning of this article, at Waitangi in 1999. She describes entering the wharenui with Titewhai Harawira to a chorus of young Maori men (some of whom were relatives) shouting "you're just shit, that's what you are, shit!".151 Tomas explains that although many Maori women will not tolerate this type of behavior, a significant number still do because of the whakama (shame) it attaches to the whanau when male elders are publicly disgraced.' 52
Maori women who submit a complaint to the Women's Committee, regardless of its subject matter, are potentially vulnerable to a host of criticisms - that by submitting a complaint to an 'outside' international forum they are compromising tino rangatiratanga; that they are overly litigious; anti-Maori or not really Maori at all.
I am not convinced that these criticisms are justified, particularly with respect to a complaint concerning discrimination in the context of the Crown-Maori relationship (for example, a complaint based on the state's failure to take steps to eliminate discrimination against women in New Zealand's political and public life). An individual complaint of this nature concerns the relationship between Maori women and the Crown and an examination of how Crown actions and structures have discriminated against Maori women. Maori have a long history of challenging the Crown's discriminatory practices using the Crown's own tools (by going to Court or petitioning the Queen, for example). Furthermore, Maori women have already sought 'outside' help by submitting the Mana Wahine claim to the Waitangi Tribunal.
There are good practical reasons for submitting a complaint to the Women's Committee based on discrimination in the Crown-Maori context. The research and legal work for the Mana Wahine claim is underway and so the cost of preparing and submitting the written submissions could be low.153 Provided the claim is amended to refer
151 Tomas, supra note 2 at 133.
152 Ibid.
153 Email received from Areta Koopu, Mana Wahine Claimant, 8 October 2002.
to incidents of discrimination, which occurred after December 2000 (and once all domestic remedies are exhausted)154 it can be submitted to the Women's Committee for determination.
The issue of allegedly discriminatory practices on the marae and in the Maori customary context is more complicated and requires a consideration of whether domestic and international law are appropriate tools for eliminating discrimination against Maori women pursuant to their culture. In my view, Maori criticism will be widespread and virulent with respect to a complaint concerning tikanga Maori, such as women's speaking rights on the marae. This is because the marae is considered a wholly Maori domain and is one of the few places where Maori can, at present, exercise limited rights of self-determination in New Zealand. Maori are likely to be extremely resistant to any outside interference in marae protocols. A Tuhoe elder explains why, affirming that: "Tuhoe will make no concessions whatsoever in things that happen on their marae because we have given way in every other area of Maoriness." 1 55
In my view, the Optional Protocol procedure is not the appropriate mechanism, at present, for Maori women seeking to remedy allegedly discriminatory practices on the marae. Even if the Women's Committee is prepared to make a recommendation, for example, that the state should take steps to modify, with a view to eliminating, discriminatory cultural practices on the marae, the Government is unlikely to be willing to take action to implement the recommendation, and would probably argue that it is not politically or constitutionally appropriate for it to do so in New Zealand's present political circumstances.
Maori are unlikely to accept any state intrusion into marae affairs. Ultimately a Maori women trying to enforce a recommendation of the
154 Claimants will need to persuade the Women's Committee that domestic remedies have effectively been exhausted in New Zealand, perhaps by arguing that because the Waitangi Tribunal is under resourced and faces a backlog of historical and contemporary claims, the Mana Wahine claim is unlikely to be heard in the near future.
155 Quoted in Mikaere, supra note 7, 126 (this view tends to ignore the impact of colonization on the marae, and the degree to which Maori custom has been influenced by colonization).
Women's Committee, could find herself excluded from her group or the subject of extreme criticism and ridicule — this is hardly the desired result. The only benefit I can see, therefore, of submitting an individual complaint based on discriminatory customary practices is that it may provoke Maori women and Maori men to debate and discuss the role and status of Maori women in modern Maori society. This may in turn, contribute in some way, towards recognizing and restoring Mana Wahine.
Maori women such as Ani Mikaere and others have argued that a complaint about discriminatory practices within Maori society, can only be resolved by Maori. What is needed is a re-examination and rediscovery of Maori principles and practices as they relate to women.I56 As Mikaere says:
The challenge for Maori, women and men, is to rediscover and reassert tikanga Maori within our own whanau, and to understand that an existence where men have power and authority over women and children is not in accordance with tikanga Maori. 157
This re-examination will require a flexible attitude and the willingness to think about the justifications for certain practices (rather than blind acceptance of them) and the extent to which those practices are sourced in tikanga Maori or have been corrupted by the influence of colonial law and practice.
CONCLUSION
Many of the issues I have raised in this article have been discussed by Maori women elsewhere — in books and articles, on the marae and in our homes. I have attempted to bring together these different ideas and my understanding of international human rights law — in order to determine whether international human rights law is, as Irene Watson says at the beginning of this article, "the path to follow, the one that will keep [Indigenous women] from being consumed entirely from the belly of genocide, the place where the majority of Indigenous People reside."
156 Mikaere, supra note 11.
157 Mikaere, supra note 10 at 149.
In my view, there may be some benefits for Maori women utilising the Optional Protocol procedure, under the Women's Convention, who submit an individual complaint based on the discriminatory laws and practices of the Crown. The Women's Committee could, for example, recommend that New Zealand takes urgent remedial action to address the low level of Maori women's participation in political affairs by implementing temporary measures such as quotas or affirmative action programmes to improve the representation of Maori women on Crown-Maori decision-making bodies. Even if the Women's Committee follows the Human Rights Committee's approach in Mahuika, and refuses to inquire into the internal processes which lead to the appointment of Maori representatives on Crown-Maori decision-making bodies such as the Treaty of Waitangi Fisheries Commission, the complaint may help to raise national and international awareness about the discrimination Maori women face and the barriers we are seeking to overcome.
I do not think the Optional Protocol Procedure, or international law and its processes generally, is the best way at present of addressing allegedly discriminatory cultural practices on, for example, the marae. The solution lies with Maori to resolve complaints about allegedly discriminatory practices and to determine the extent to which those practices are inherent in our culture.
Ultimately, Maori women, Maori men and the state, (as the Treaty partner and consistent with its international obligations) must face the challenge of recognising and restoring Mana Wahine so that Maori women can contribute and participate equally in our society. The richness and diversity of our culture and the survival of Maori as a people, depends on it.
VI GLOSSARY OF TERMS
Aroha Love, support
Hap Sub-tribe (economic, social and political group consisting of extended families or whanau who are related by blood and shared customary practices)
Iwi Tribe (larger economic, social and political group related by blood and shared customary practices)
Mana Wahine The power and strength of Maori women
Marae Atea The area directly in front of the meeting house, usually where speakers stand to welcome
visitors to the marae.
Marae The meeting place. This term refers to a collection of land and buildings, which includes the meeting house, dining areas and ablution blocks. The marae is usually, (although not always)-situated on ancestral Maori land belonging to the whanau, hap and iwi groups who are responsible for the marae.
Ngati Toa Lower North Island tribe.
Ngati Raukawa Lower North Island tribe.
Pakeha Person of European (usually British) descent.
Paepae The area outside of the meeting house, usually beside or at the front of the meeting house, where the home people (tangata whenua) sit to welcome visitors during formal proceedings. In many areas of New Zealand, although not all, this area is reserved for men.
Tangata Whenua Literally meaning people of the land (refers to the local Maori people from a particular area)
Tikanga Maori Maori custom law — the right way of doing things according to Maori law and custom.
Tino rangatiratanga Maori authority or sovereignty; this
term can also be translated as Maori self-determination.
Tuhoe Maori Tribe located in the central
eastern area of the North Island of New Zealand.
Tuwharetoa Central North Island tribe.
Whanau Extended family.
Wharenui Ancestral meeting house.
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