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New Zealand Geographic Board (Nga Pou Taunaha o Aotearoa) Bill (Consistent) (Sections 14, 19) [2007] NZBORARp 61 (18 April 2007)
Last Updated: 7 January 2019
New Zealand Geographic Board (Ngā Pou Taunaha O Aotearoa)
Bill
18 April 2007 Attorney-General
LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:
NEW ZEALAND GEOGRAPHIC BOARD (NGĀ POU TAUNAHA O AOTEAROA) BILL
- We
have considered the New Zealand Geographic Board (Ngā Pou Taunaha o
Aotearoa) Bill (PCO 6792/7) (‘the Bill’) for
consistency with the
New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). We
understand that the Bill is likely
to be considered by the Cabinet Business
Committee at its meeting on Monday, 23 April 2007.
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
that conclusion, we
have considered possible inconsistencies with sections 14 (freedom of
expression) and 19 (freedom from discrimination).
PURPOSE OF THE BILL
- The
Bill repeals and replaces the New Zealand Geographic Board Act 1946. It
continues the existence of the New Zealand Geographic
Board (‘the
Board’) which is responsible for assigning, approving, altering, or
discontinuing the use of official names
for geographic features in New Zealand
and Antarctica.
POSSIBLE INCONSISTENCIES WITH THE BILL OF RIGHTS ACT
Section 14: Freedom of Expression
- Section
14 of the Bill of Rights Act affirms that:
Everyone has the right to freedom of expression, including the freedom to seek,
receive, and impart information and opinions of any
kind in any form.
- Clause
32 of the Bill requires official names to be used in official documents.
Official documents include documents created by a
public office (defined in the
Public Records Act 2005) or local authority, as well as geographic or scientific
publications, or publications
intended for travellers or tourists.
- We
have considered whether clause 32 limits the freedom of expression affirmed in
section 14 of the Bill of Rights Act. Freedom of
expression includes the right
to say nothing or the right not to say certain things.[1] It is arguable whether the use of official
names is truly expressive in nature and, therefore, whether compelling their use
limits
freedom of expression. The voluntary use of unofficial names could have
an expressive component, however, we note that the Bill does
not prevent the use
of such names in official documents provided the document indicates that the
names are unofficial. That indication
is a
mandatory statement of
fact, rather than an expression of ideas or opinions. Accordingly, we have
concluded that clause 32 does not
limit the freedom of expression.
Section 19(1): Freedom from Discrimination
- Section
19(1) of the Bill of Rights Act affirms the freedom from discrimination on
prohibited grounds set out section 21 of the Human
Rights Act 1993 including
race and ethnic origins. In our view, taking into account the various domestic
and overseas judicial pronouncements
as to the meaning of discrimination, the
key questions in assessing whether discrimination under section 19 exists
are:
- Does
the provision draw a distinction based on one of the prohibited grounds of
discrimination; and
- Does
the distinction involve disadvantage to one or more classes of individuals?
- If
these questions are answered in the affirmative, the provision gives rise to a
prima facie issue of ‘discrimination’ under section 19(1) of
the Bill of Rights Act. Where a provision is found to be prima facie
inconsistent with a particular right or freedom, it may
nevertheless
be consistent with the Bill of Rights Act if
it can be justified under section 5 of that Act.[2] A limitation on a right or freedom might
be justifiable where:
- the
provision serves an important and significant objective; and
- there
is a rational and proportionate connection between the provision and that
objective.
Possible Inconsistencies with section 19(1) in the Bill
- Clause
11(1) of the Bill makes it a function of the Board to collect original
Māori names and encourage their use on official
charts and official maps.
In support of this function, schedule 1 of the Bill requires that at least two
people appointed to the
Board have knowledge of
tikanga
Māori.
- Schedule
1 could be seen as giving rise to indirect discrimination on the basis of race
or
ethnic origins because Māori are more likely than
non-Māori to have knowledge of tikanga Māori. Non-Māori could
therefore be disadvantaged in appointments to the Board. It could also be argued
that clause 11(1) appears to discriminate on the
basis of race or ethnic origin
because it gives the Board a specific direction to collect and encourage the use
of Māori placenames.
There is no such direction in respect of non-Maori
placenames which could be of equal importance to those groups. Whether this
would
result in disadvantage to non- Māori is not clear, however, we have
considered clause 11(1) further on the basis that it could
be prima facie
inconsistent with section 19(1) of the Bill of Rights Act.
Significant and important objective
- We
consider collecting, and encouraging the use of, original Māori place names
to be a significant and important objective. The
preservation of Māori
place names reflects the Crown’s obligations under the Treaty of Waitangi
to protect Māori
cultural heritage. The United Nations has identified the
preservation of minority and indigenous group culture as
an
important aspect of the standardisation of geographical names. It has recognised
that the geographical names of indigenous peoples
are a significant part of the
cultures and traditions of the area or country in which they live. It has
recommended that all countries
with indigenous people make a special effort to
collect their geographical names along with
other appropriate information. Whenever possible and appropriate, a written
form of those names should be adopted for official use
on maps and other
publications.[3]
Rational and proportionate connection
- Conferring
on the Board the function of collecting and encouraging the use of Māori
place names is rationally connected to the
objective. It is the Board that is
responsible for official geographic names in New Zealand and so it is the
appropriate body to
fulfil such a role. The provision is proportionate because
the Board is not prevented from considering the collection and use of
non-Māori names.
- We
have also concluded that the appointment of Members with knowledge of tikanga
Māori
is rationally connected to the objective because such
knowledge is necessary to fulfil the
Board’s function of gathering and encouraging the use of Māori
names. This knowledge
requirement is directly relevant to the credibility of Board decisions
regarding Māori names of geographic features. The requirement
is also
proportionate to the objective because it allows for non-Māori to be
appointed where they have knowledge of tikanga
Māori.
- For
these reasons, to the extent that the Bill might give rise to discrimination of
the basis of race or ethnic origins, we believe
it can be justified under
section 5 of the Bill of Rights Act.
CONCLUSION
- For
the reasons set out above, we have concluded the Bill is consistent with the
rights and freedoms affirmed in the Bill of Rights
Act.
Melanie Webb
Manager, Ministerial Advice
|
Margaret Dugdale
Policy Manager, Bill of Rights/Human Rights
|
Footnotes
- Slaight
Communications v Davidson 59 DLR (4th) 416; Wooley v Maynard [1977] USSC 59; 430 US
705
(1977)
- Moonen
v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9
3 See Resolution V/22 (Aboriginal/native geographical names) of the Fifth United
Nations Conference on the Standardization of Geographical
Names relating to the
recording and use of aboriginal/native geographical names, London 10-31 May
1972, United Nations Publication
E.74.I.2 (1974); Resolution VIII/1 (Promotion
of minority group and indigenous geographical names) Eighth United Nations
Conference
on the Standardization of Geographical Names (Berlin, 27 August-5
September 2002) United Nations Publication
E.03.I.14 (2003)
In addition to the general disclaimer for all documents on this website,
please note the following: This advice was prepared to assist
the
Attorney-General to determine whether a report should be made to Parliament
under s 7 of the New Zealand Bill of Rights Act 1990
in relation to the New
Zealand Geographic Board (Ngā Pou Taunaha O Aotearoa) Bill. It should not
be used or acted upon for any
other purpose. The advice does no more than assess
whether the Bill complies with the minimum guarantees contained in the New
Zealand
Bill of Rights Act. The release of this advice should not be taken to
indicate that the Attorney- General agrees with all aspects
of it, nor does its
release constitute a general waiver of legal professional privilege in respect
of this or any other matter. Whilst
care has been taken to ensure that this
document is an accurate reproduction of the advice provided to the
Attorney-General, neither
the Ministry of Justice nor the Crown Law Office
accepts any liability for any errors or omissions.
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