Review of New Zealand's Constitutional Arrangements - Submission to the Constitutional Advisory Panel [2013] NZHRCSub 5 (31 July 2013)

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Please also refer to the companion document ‘Tell Us Your Dream: Analysis of community engagement for the constitutional review’ annexed to this submission. It contains a detailed analysis of – and raw data – from the Commission’s Tell Us Your Dream campaign and community engagements.

1.1 The Human Rights Commission welcomes the opportunity to participate in this review of New Zealand’s constitutional arrangements. Brief answers to the Constitutional Advisory Panel’s questions are provided in Appendix A.

1.2 Following the human rights approach, the Commission believes that people, as rights-holders, should be at the centre of any constitutional change in Aotearoa New Zealand. As duty-bearers, governments have three levels of obligation towards rights-holders: to respect, protect and fulfill their every right. In Aotearoa New Zealand, the Commission believes that the constitution would be enhanced by strenghtening human rights protections and increasing recognition of the Treaty of Waitangi / Te Tiriti o Waitangi.

1.3 Strengthening constitutional protections for human rights in New Zealand and the Treaty of Waitangi has been a matter of concern for a number of the UN Treaty bodies New Zealand has reported to since 2006. The key matters for concern are summarised in para 2.10 and the relevant extracts are appended to this submission at Appendix B.
Aspirations

1.4 The Commission has been involved in a number of community engagements connected with the current review. These include running a Tell Us Your Dream campaign for Race Relations Day and conducting constitutional review engagements and workshops designed to educate and stimulate interest in the review. The data and analysis from this programme of engagements is included in a separate document –Tell Us Your Dream: Analysis of community engagement for the constitutional review– and briefly summarised in this submission in section 3.

1.5 Recommendation: Given the resource and time limitations of the current review, and the need for greater education about New Zealand’s constitutional arrangements for many, the Commission supports a continued, longer conversation on constitutional matters.

The Treaty of Waitangi / Te Tiriti o Waitangi

1.6 Based on the work it has done to fulfil its statutory mandate in respect of the Treaty since 2003 – principally via the Te Mana i Waitangi programme – the Commission affirms that the Treaty is New Zealand’s founding document. For this submission, the Commission has reflected on and further developed its position to explore what would it mean to give substantive effect to the Treaty as New Zealand’s founding document. What this would entail depends on how the role of the Treaty is envisaged in New Zealand’s constitutional arrangements.

1.7 From a constitutional perspective, the Treaty is between the Crown and Rangatira, and it is between these partners to the Treaty that the constitutional basis of the Treaty remains unresolved. More broadly, the Treaty gave rights and responsibilities to all people in New Zealand – Tangata Whenua and Tauiwi – based on tūrangawaewae. The Treaty partnership endures in political rhetoric, but in practice it is variable and constitutionally insecure, dependent on both public and political goodwill.

1.8 Applying a human rights approach to the role of the Treaty involves exploring ways to best balance the core rights to self-determination of the Treaty partners, prioritising the rights of the more vulnerable in the Treaty relationship (i.e. Rangatira / tangata whenua rather than the Crown). In determining how best to balance these rights, the Commission has identified three broad scenarios (summarised in Table 2) by which the role of the Treaty in New Zealand’s constitutional arrangements could be enhanced:

1.9 Because the Treaty is the founding document of the New Zealand state, the Commission’s position is that New Zealand’s constitutional arrangements – its values, rules, institutions and practices – should flow from the Treaty (scenario c). This means giving substantive effect to the Treaty partnership between the Crown and Rangatira in every aspect of the way in which Aotearoa New Zealand is governed.

1.10 The Commission therefore believes that the Treaty provides the foundational source of legitimacy for co-existing systems of governance and law in Aotearoa New Zealand in order to give effect to the right to self-determination for both tangata whenua and tauiwi.

1.11 Recommendations: In the long term, the Commission recommends the development of a Treaty-based constitution that is developed by the Treaty partners, in conjunction with their respective peoples, to their mutual satisfaction. This would require:

1.12 In the short term, the Commission believes that the Treaty requires interim protections to place it above everyday politics. The decision as to what is or are the most appropriate interim protections should be made collaboratively between Treaty partners. Some good options for providing greater protection for the Treaty include:

1.13 Without foreclosing any of the other options listed above, the Commission’s own preference for interim protection is option (g) ‘Enact a Treaty of Waitangi Act that puts both texts of the Treaty / te Tiriti into New Zealand law, along with additional provisions that state that ‘all law must be developed consistently with the Treaty of Waitangi’.

Human Rights and the New Zealand Bill of Rights Act (NZBORA)

1.14 Before ratification of international human rights treaties, New Zealand attempts to ensure domestic legislation is compatible with it. Despite this, there continue to be some significant gaps in the domestic incorporation of the international human rights standards and their implementation.

1.15 Mechanisms for enforcing international standards include: justiciability, optional protocols, special procedures, and accountability to UN treaty bodies. The New Zealand Government considers that adequate remedies already exist to deal with breaches of Covenant rights. Wherever possible, national legislation is interpreted and applied consistently with international obligations and there is a broad range of non-judicial and quasi-judicial mechanisms for the implementation of Covenant rights.

1.16 Overall, the Commission considers while civil and political rights are reasonably well protected, aspects of social and economic rights are not recognised as fundamental, justiciable rights in New Zealand with the result that ‘the New Zealand courts lack the ability to test state and/or private action against broad [ESCR] protections.’^[2]

1.17 The rights and freedoms protected by NZBORA are set out in Part 2 and reflect some, but not all, of those incorporated in the ICCPR. There is, for example, no express right to privacy in the NZBORA, although some protections are available under New Zealand Law. There is also no specific reference in New Zealand law to the right to equality, a fact that the United Nations Committee on Human Rights has consistently criticised in assessing New Zealand’s compliance with international standards on equality and freedom from discrimination (see section 2.10 and Appendix B).

1.18 The Commission has consistently endorsed the approach in the international instruments that views equality as not simply restraint by the State, but as a positive duty on the State to take measures to promote substantive equality (including where appropriate, allocation of resources).

1.19 While there is no distinct right to property in human rights law, a case can be made for a more specific reference to property given its link to the realisation of social, economic and cultural rights, and Treaty of Waitangi and indigenous rights (including over natural resources such as water). It also has implications for the compulsory acquisition of property by the Canterbury Earthquake Recovery Authority.

1.20 If the right to property were included in the NZBORA then some thought needs to be given to the implications of the lack of an explicit remedies provision. As compensation is integral to the right, including it as part of the right itself establishes a new legislative path.

1.21 The Commission also notes the increasing importance of protecting the environment, which raises human rights issues for both present and future generations. This was one of the strong themes that emerged in the community engagements that the Commission undertook in 2013 (see separate Tell Us Your Dream document annexed to this submission). In the Commission’s view, greater constitutional recognition of the Treaty – whether through long-term reconfiguration of New Zealand as a Treaty-based state or greater short-term protections – can offer a means to provide greater protection for the environment and the rights of future generations.

1.22 Whether Parliament or the Courts is the best guardian of rights requires consideration of the relationship of Parliamentary sovereignty and the Rule of Law and how they function in a democracy. The conventional wisdom is that Parliament has the right to legislate on any matter it chooses and as a matter of principle the courts should not interfere with that process. The evolution and influence of international human rights over the past two decades has, however, led to a reappraisal of Parliamentary sovereignty through interpretation by the judiciary. Unless explicitly stated to the contrary, the Courts will interpret legislation in a way that is consistent with fundamental rights.

1.23 The Courts clearly fulfil a necessary role in moderating Parliament. While both are essential to a functioning democracy, the relationship is constantly mutating and changing and the Courts can be expected to take a more interventionist role in future particularly if an entrenched Constitution is enacted.

1.24 Recommendations: In accordance with its obligations under Article 2 of the ICCPR, the Commission recommends that the Government expressly incorporate all ICCPR rights into the NZBORA.

1.25 The Commission recommends that the Government commit to giving effect to the optional protocols to ICESCR and CRPD, as well as the Article 14 CERD complaints procedure.

1.26 In accordance with its obligations under ICESCR, the Commission endorses stronger protection of ESC rights through:

1.28 Specific wording to address the right to property and the Treaty of Waitangi and indigenous rights (including over natural resources such as water) should be negotiated between the Crown and tangata whenua.

1.29 The Commission recommends stronger protections to ensure better human rights compliance through:

1.30 On the question of whether or not the Bill of Rights Act – including the full range of civil, political, economic, social and cultural rights – should be entrenched, the Commission’s view is that human rights require greater protection than that provided by ordinary law. In the short-term, this would be achieved by entrenchment.

1.31 In the long-term, once the Treaty is better recognised and human rights protections strengthened in New Zealand’s constitutional arrangements, the Commission thinks that an entrenched and supreme codified constitution setting out the agreed rules, values, institutions and practices would be desirable (and if desired by both Treaty partners).

1.32 In the Commission’s view, greater constitutional recognition of the Treaty – whether through long-term reconfiguration of New Zealand as a Treaty-based state or greater short-term protections – can offer a means to provide greater protection for the environment and the rights of future generations.

Māori representation

1.33 The Electoral Act 1993 makes continued provision for Māori representation in Parliament, initially established as four Māori seats in 1867. The number was increased in 1993, with the introduction of proportional representation, and is now determined by a formula that divides the number of voters enrolled on the Māori electoral roll by the ‘South Island quota’. The number of Māori seats is currently seven. Professor Mason Durie has identified a constitutional convention that the future of the Māori seats in Parliament should be determined by Māori.

1.34 Māori are under-represented in local government. The number of Māori elected to local government remains far lower than their proportion of the population: in the 2007 local government elections less than five per cent of successful candidates were Māori, although Māori form nearly 15 per cent of the population. Many councils have no Māori members at all.

1.35 Through the Local Electoral Amendment Act 2002 all councils have the option of establishing Māori seats (wards for district and city councils, constituencies for regional councils). Since 2002, only two more councils have decided to establish Māori seats. Some councils decided against Māori seats; others consulted Māori, who were unsure. Other councils heard a clear Māori voice calling for guaranteed representation at governance level, but were reluctant to change.

1.36 Recommendation: In the short-term, the Commission believes that Māori seats in Parliament should be retained until such time as Māori voters decide that they are no longer necessary.

1.37 At the local level, the Commission believes that the government needs to legislate for dedicated Māori representation in local government. The Commission also supports enhanced representation within the organisational and operational structures of local government (e.g. in standing committees and by means of dedicated staff resources). At a minimum, Councils have an obligation to engage with Māori on the option, and to support the Māori view. If a poll is called for, the Council should take leadership in positively supporting the option.

1.38 In the long-term, the Commission believes that developing a constitution that is substantively founded in the Treaty of Waitangi would mean the establishment of co-existing systems of governance, along with clear processes for power-sharing between them, would ideally mean the existing provisions for Māori representation would no longer be necessary.

Electoral Matters

1.39 The Commission believes that the electoral matters identified in the CAP’s Terms of Reference form a sub-set of the broader issue of participation. Political participation is a central component of international human rights norms (cf. Article 25 of the ICCPR as well as CEDAW, CROC, CERD, UNDRIP, and CRPD). Electoral matters should be determined so as to ensure the widest and fairest public participation possible.

1.40 As participation is so central to the human rights approach, the Commission has developed extensive thinking in this area. In its advocacy work, the Commission has identified key participatory principles of representation, access, transparency, accountability, and equality. While New Zealand has many examples of international good practice in these areas (see Table 3 for a summary), provision for participation is limited in a number of key ways (see Table 4 for a summary).

1.41 The Commission is also concerned about the increased use of urgency, particularly in passing legislation with significant human rights implications (such as the Public Health and Disability Amendment Bill No 2), and gender and ethnic diversity in Parliament, which does not reflect population demographics.

1.42 Technological innovation and enhanced communication via the internet and social media and other information communication technologies (ICT) also have constitutional implications, particularly for public participation.

1.43 The Commission further notes that since the launch of the Open Government Partnership in 2011, over 50 governments have come together with civil society and the private sector to further promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance and support the implementation of multilateral commitments. New Zealand is notably absent from this initiative.

1.45 The Commission also recommends enhanced increased civic education for all New Zealanders, particularly those in compulsory education, to increase awareness of constitutional matters with a particular focus on addressing barriers to participation for disenfranchised groups

New Zealand’s constitutional arrangements and Pacific realm countries

1.46 The Commission sees the current review as an opportunity to clarify and recognise New Zealand’s constitutional obligations in respect of the Pacific realm countries and their citizens. The key constitutional concerns expressed by the Pacific Realm Group (PRG), with whom the Commission has engaged, are related to identity, status and access. Given that the people of Tokelau, Cook Islands and Niue are New Zealand citizens by birth in their home islands and in New Zealand, the PRG has questioned why the current constitutional review has not taken into account the views of those island nations, nor considered the implications of a written constitution for Niue, Tokelau and the Cook Islands.

1.47 Recommendation: The Commission recommends that New Zealand’s constitutional obligations in respect of the Pacific Realm countries and citizens be clarified and formally recognised. In addition, we recommend the need for a continued constitutional conversation on these matters with representatives from the Pacific Realm countries living in New Zealand, and in consultation with the Pacific Realm countries themselves.

New Zealand’s constitutional arrangements and Multi-culturalism

1.48 One of the key messages that emerged from the Commission’s ‘Tell Us Your Dream’ campaign was the importance of cultural diversity and multiculturalism to the future of Aotearoa New Zealand. New Zealand’s changing demographics are projected to greatly increase ethnic diversity over the next fifty years. Any significant constitutional change, particularly if a written constitution is considered to be desirable, will need to take account of this and provide for the protection and recognition of pluralism and cultural diversity.

1.49 Recommendation: The Commission recommends, as part of a longer constitutional conversation, a dedicated programme of engagement with ethnic communities for their views on New Zealand’s constitutional arrangements.

A written constitution?

1.50 At present, the Commission does not have a firm position on whether or not New Zealand should move to a written, codified constitution. The two areas of our constitutional arrangements that we think need most attention – the role of the Treaty and strengthened human rights protections – could be enhanced without necessarily moving to a codified constitution. Alternatively, a codified constitution could provide a defined and coherent means of achieving both ends.

1.51 In the future, once the Treaty is better recognised and human rights protections strengthened in New Zealand’s constitutional arrangements, the Commission thinks that a written codified constitution setting out the agreed rules, values, institutions and practices would be desirable. This decision should, however, be made to the mutual satisfaction of the Treaty partners.

2.1 The Human Rights Commission (the Commission) welcomes the opportunity to participate in this review of New Zealand’s constitutional arrangements (the Review).

2.2 For the Commission, people are at the centre of everything we do; we believe that this should also be the case for New Zealand’s constitutional arrangements. This philosophy is best expressed by the following whakataukī:

What is the most important thing in the world? It is people! It is people! It is people!

2.3 The Universal Declaration of Human Rights (1948) similarly places people at the centre of the post-war international human rights framework it inaugurated:

The recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world (UDHR Preamble).

2.4 The Commission’s aspirations for the future of Aotearoa New Zealand are likewise rooted in the inherent dignity and rights of every person and the central importance of our constitutional arrangements upholding and supporting that kaupapa.

2.5 In a human rights-based approach, every human being is recognised both as a person and as a right-holder. A rights-based approach strives to secure the freedom, well-being and dignity of all people everywhere, within the framework of essential standards and principles, duties and obligations. The rights-based approach supports mechanisms to ensure that entitlements are attained and safeguarded.

2.6 By human rights the Commission refers to the civil and political, economic, social and cultural rights set out in the Universal Declaration of Human Rights and subsequently codified in United Nations (UN) Covenants, Conventions and Declarations that have become part of international law. Together with the International Labour Organisation’s eight conventions on human rights, they form a robust international human rights legal framework.^[3] New Zealand has played an active role in developing this framework and, through ratification of these treaties and obligations by successive governments, has formally committed to respecting these rights. The Commission sees the current review as an opportunity for New Zealand to enhance its domestic recognition of this international framework.

2.7 The Commission’s submission is also founded on the ‘human rights approach’. The human rights approach is a conceptual framework which aims to ensure people and communities speak out on issues that affect them, putting the protection and realisation of human rights at the centre of decision-making for the wellbeing of all who live in Aotearoa New Zealand. In particular, it is designed to ensure that all those who are directly affected by a policy or law are better able to enjoy the rights they are entitled to under international law. The human rights approach requires:

2.8 In a human rights-based approach, governments have three levels of obligation: to respect, protect and fulfill every right.

2.9 A rights-based approach develops the capacity of duty-bearers to meet their obligations and encourages rights holders to claim their rights.^[4] The Commission’s submission on Aotearoa New Zealand’s constitutional arrangements will explore ways to best respect, protect and fulfill the rights of all New Zealanders.

2.10 We begin by noting that a number of UN Committees and Special Rapporteurs have commented on constitutional matters in their most recent reviews of New Zealand. These have been extracted and appended to this submission at Appendix B. Generally, these comments and recommendations have referred to nine key areas:

committees and also draw on the feedback we have received from the public in the range of community engagements we have undertaken (see attached annex to this submission Tell Us Your Dream: Analysis of community engagement for the constitutional review which contains a full analysis, as well as the raw data). In addition to the recommendations we make throughout this submission, the Commission also supports a continued conversation on constitutional matters.

constitutional matters with an appointed and independent Constitutional Advisory Panel (CAP). Matters to be considered by the review include:

Conversation, reflects one of the recommendations that the Commission made to the Constitutional Arrangements Committee in 2005:

The Commission recommends a New Zealand discussion – a conversation with the nation – on such development. That discussion can cover the merits of an entrenched constitutional document for New Zealand, the benefits that accrue when it includes the range of civil, political, economic, social and cultural rights, and the Treaty of Waitangi.^[15]

2.14 In its submission to the 2005 review, the Commission also recommended that:

2.15 The Commission’s submission to the current Review builds substantially on these beginnings.

increasing the role of the Treaty of Waitangi in New Zealand’s constitutional arrangements (and other aspects of the Crown-Tangata whenua relationship) and on strengthening human rights protections in New Zealand. This is in keeping with the Commission’s mandate under the Human Rights Act 1993, which enables the Commission ‘to advocate and promote respect for, and an understanding and appreciation of human rights’ and ‘to encourage the maintenance and development of harmonious relations between individuals and among the diverse groups in New Zealand society’.^[17] The Commission also has a statutory mandate to promote a better understanding of the human rights dimensions of the Treaty of Waitangi.^[18]

3.1 The Commission’s focus in developing its submission is drawn from its statutory mandate (see section 2.16): our aspiration for the future of Aotearoa New Zealand is that human rights protections will be strengthened and the Treaty of Waitangi will be increasingly recognised as the founding document of this country in a substantive way

3.2 This also reflects the human rights approach which establishes a framework to balance the rights of all individuals and communities, prioritising those of the most vulnerable.

3.3 Because this review is such an important opportunity to engage on constitutional matters related to the Commission’s mandate and to the New Zealand public in general, the Commission has sought to be actively engaged in the Review. This has involved both engagement with the CAP and an active programme of community engagement.

3.4 The Commission has engaged with the CAP and CAP secretariat on a number of occasions during the constitutional review process. The Chief Commissioner met with the CAP co-chairs to discuss initial matters on 10 August 2012. At this meeting, we provided copies of recent relevant work the Commission had done on Māori representation in local government, the Treaty of Waitangi, and guidance on accessible and inclusive meetings and publications.

3.5 CAP members participated in the session ‘Together We Grow: The Treaty, Diversity and the Constitution’ at the 2012 Diversity Forum held at the Aotea Centre, Auckland.^[19] Other speakers included Professor James Liu (Centre for Applied Cross-Cultural Research, VUW), Reverend Uesifili Unasa (Auckland Council Pacific Advisory Board) and Dr Claudia Orange, Director of Research at Te Papa Tongarewa. The session introduced the constitution and some of the areas on which the CAP were seeking feedback. Some of the issues raised during this session were the representativeness of public engagement (particularly in respect of Pacific and ethnic engagement) and the scope of the review (i.e. would everything be on the table?)

3.6 Commission staff have been in regular contact with the secretariat, particularly via monthly tri-partite meetings (jointly with Dr Orange at Te Papa).

3.7 In addition, Commission staff have also met with the Independent Constitutional Working Group Aotearoa Matike Mai and the Pacific Realm Group, and Commissioners have had informal discussions with members of the Independent Constitutional Review Panel.^[20]

3.8 The Commission dedicated its annual Race Relations Day programme of events to the constitutional review in 2013. The theme for Race Relations Day (21 March) was ‘My Dream for Aotearoa New Zealand is ...’ which aimed to link in with the CAP’s focus on New Zealanders’ aspirations for the future. As part of the activities associated with Race Relations Day, a ‘Tell Us Your Dream’ campaign was initiated via social media and community engagements.

3.9 Events at which the Tell Us Your Dream campaign took place included the Auckland Multicultural Festival, Polyfest, Mangere East Community Day, Culture Galore in Christchurch, the Addington Twilight Fair, the SAFVPN South Asian Youth Forum Manurewa, Gisborne Girls High School, St Martins Probus Club, the University of Otago Language Centre and Foundation, and an Auckland Regional Migrant Services event. In addition, the annual Race Unity Speech Awards for high school students, organised by the Ba’hai community with support from the Commission and New Zealand Police, took the Race Relations Day theme as its topic. The national finals of the speech competition were held in Auckland in April, with the winner announced as Naomi Kumar from Hillcrest High School in Hamilton.^[21]

3.10 The key areas of concern – many of which overlap – that emerged in the Tell Us Your Dream contributions from participants at Race Relations Day events were: race relations, government, law and order, living in New Zealand, education, human rights and the environment.

3.11 For a full breakdown of all the Tell Us Your Dream contributions see the separate document annexed to this submission Tell Us Your Dream: Analysis of the community engagement for the constitutional reivew.

3.12 The Commission’s External Relations Advisors devised a series of engagements – known as ‘bus-stop’ engagements – and workshops more specifically focussed on the constitutional review. The bus-stop engagements were a semi-structured short exercise that involved asking participants three questions, building on the ‘Tell Us Your Dream’ foundation. Advisors carried out four bus-stop engagements, which included engagements at Waitangi Day, the Wellington Soup Kitchen, Nelson-Marlborough Polytechnic and the Upper Hutt Teen Pregnancy Unit. Participants were asked: What are the key values/tikanga that you live by? What are the values, rules, practices you want to pass on to future generations? How would you like to achieve these things? The questions were also translated into te reo Māōri.

3.13 For a full analysis and the questions asked and answers received, see the separate document annexed to this submission Tell Us Your Dream: Analysis of the community engagement for the constitutional review.

3.14 Finally, the Commission Advisors developed a workshop specifically about constitutional matters. In it, participants were guided through a short presentation on what a constitution is and what the sources of New Zealand’s constitutional arrangements are. This was followed by a tūrangawaewae exercise. Participants were then divided into groups, asked to imagine that they had arrived on a deserted island, and to develop a series of rules by which they would live. The second part of this exercise involved two groups then getting together with their list of rules and trying to negotiate a way that they would live together. The major outcome of the workshop was a ‘Top Ten Priorities’ list.

3.15 There were ten community workshops held around the country, including workshops in Northland, Auckland, the West Coast and Wellington. For an analysis and the ten priorities list developed in each workshop, see the separate document annexed to this submission Tell Us Your Dream: Analysis of the community engagement for the constitutional review.

4.1 The current constitutional review has provided the Commission with an opportunity to develop its thinking about the Treaty of Waitangi / Te Tiriti o Waitangi (the Treaty) and contribute to the wider constitutional conversation that was initiated between the Crown and Rangatira as far back as 1835. In outlining our thinking in this section and providing recommendations, we acknowledge that this constitutional conversation does not end with this review.

4.2 The Commission’s mandate in respect of the Treaty is contained section 5 (2) (d) of the Human Rights Act 1993. This section states that one of the Commission’s functions is “to promote by research, education, and discussion a better understanding of the human rights dimensions of the Treaty of Waitangi and their relationship with domestic and international human rights law”.^[22]

4.3 Since 2003, the Commission has undertaken a major project – Te Mana i Waitangi – to engage the public on the human rights dimensions of the Treaty of Waitangi. From 2003 to 2007, the Commission facilitated a community dialogue with 45 regional symposiums, over 200 community dialogue sessions, and presentations to a wide variety of meetings and conferences. Over 16,000 people in total were involved in the project through these events and a Treaty framework Te Mana i Waitangi was subsequently developed for use in community engagements.

4.4 In 2011, the Commission published its Te Mana i Waitangi framework, which examines the Treaty in terms of tūrangawaewae/ belonging, kāwanatanga/ governance, rangatiratanga/ self-determination and rite tahi/ equality. It reiterates the key messages that the Treaty belongs to all of us, it is the promise of two peoples to take the best possible care of each other, and it is the founding document of Aotearoa New Zealand.^[23]

4.5 One of the key strands that emerged from the public discussion was the health of the Crown-Tangata Whenua relationship. Subsequent work in the Te Mana i Waitangi project focussed on developing case-studies of Crown-Tangata Whenua Relationships to see how the health of the relationship on the ground was working. A range of features of effective relationships were identified, including:

4.6 Drawing on this work, the Commission made the following statement about the Treaty in Human Rights in New Zealand 2010:

The Treaty of Waitangi is the founding document of New Zealand .... The Treaty is also important as a ‘living document’, central to New Zealand’s present and future, as well as its past. It establishes a relationship “akin to partnership” between the Crown and Rangatira, and confers a set of rights and obligations on each Treaty partner.^[25]

4.7 The Commission therefore agrees with many commentators that the Treaty is New Zealand’s founding document. For this submission, the Commission has reflected on and further developed its position to explore what would it mean to give substantive effect to the Treaty as New Zealand’s founding document. What this would entail depends on how the role of the Treaty is envisaged in New Zealand’s constitutional arrangements.

4.8 To provide background to our eventual recommendation in this area, we first outline the relevant international human rights standards, focussing particularly on the right to self-determination and indigenous rights. We then turn to the domestic context, and explore the question of who the Treaty partners are and what the health of the Treaty partnership is like today. Following that, we explore three different constitutional scenarios for the role of the Treaty. We conclude this section by outlining the Commission’s vision for the role of the Treaty in New Zealand’s constitutional arrangements, which contains both long-term and short-term recommendations.

The Treaty and international human rights standards

4.9 For ease of discussion, the Commission has broken down each of the articles of the Treaty – including the unwritten promise sometimes referred to as ‘Article 4’ – and identified the related international human rights standards. A fuller discussion of the standards in respect of the right to self-determination and indigenous rights is given below. A separate section on property rights, including property rights and the Treaty, is included in section 5 (see paras 5.60-5.96) of this submission, which explores Bill of Rights issues.

Table 1: Summary table of the Treaty of Waitangi and Related Human Rights Standards

4.10 The right to self-determination is a core human right, contained in both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The first Article of both ICCPR and ICESCR states in its first paragraph that: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status, and freely pursue their economic, social and cultural development.” In General Comment No 12 (1984), the United Nations Human Rights Committee stated that this part of Article 1 related to the constitutional and political processes which in practice allow the exercise of this right.^[26]

4.11 The second paragraph of ICCPR Article 1 refers to self-determination in respect of economics:

All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

4.12 The ICCPR reference to the maintenance of an economic base and the means of subsistence as integral to the right to self-determination has major implications for land rights, resource management and the re-vitalisation of the Māori economy in Aotearoa New Zealand.

4.13 In General Comment No 12, the Human Rights Committee said in respect of ICCPR Article 1 paragraph 3, which refers to the specific obligations that this right imposes on States:

vis-à-vis all peoples which have not been able to exercise or have been deprived of the possibility of exercising their right to self-determination. ... The obligations exist irrespective of whether a people entitled to self-determination depends on a State party to the Covenant or not.^[27]

4.14 Article 1 Paragraph 3 makes clear that self-determination is not solely about states but also about peoples, irrespective of whether their right to self-determination is recognised in a state formation.

4.15 This fundamental right is reiterated in the Preamble to the UN Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP), which acknowledges both ICCPR and ICESCR, and affirms ”the fundamental importance of the right to self-determination of all peoples”. This echoes the right to self-determination (rangatiratanga) in Article 2 of the Treaty.^[28]

4.16 Professor James Anaya, the current UN Special Rapporteur on the Rights of Indigenous Peoples has commented:

Understood as a human right, the essential idea of self-determination is that human beings, individually and as groups, are equally entitled to be in control of their own destinies, and to live within governing institutional orders that are devised accordingly.^[29]

4.17 The right to self-determination was central to the development of UNDRIP, (discussed further below in paras 4.31-4.34 on indigenous rights). Anaya discusses the centrality and inter-linkage between them:

As representatives of indigenous peoples from around the world advocated for the Declaration through the UN system for over two decades, it became increasingly understood that self- determination is a foundational principle that anchors the constellation of indigenous peoples’ rights.^[30]

4.18 Anaya also makes clear that the right to self-determination is not synonymous with a right of secession:

Under a human rights approach, attributes of statehood or sovereignty are, at most, instrumental to the realization of these values—they are not the essence of self-determination for peoples. As now made clear by the Declaration, “peoples” are transgenerational communities with significant attributes of political or cultural cohesion that they seek to maintain and develop. And for most peoples— especially in light of cross-cultural linkages and other patterns of interconnectedness that exist alongside diverse identities—full self-determination, in a real sense, does not justify – and may even be impeded by – a separate state. It is a rare case in the post-colonial world whereby self-determination, understood from a human rights perspective, will require secession or the dismemberment of states.^[31]

4.19 Furthermore, remedies for the human rights violations of colonialism, according to Anaya, must be appropriate to the specific cultural and historical circumstances of Indigenous peoples and the states in which they live:

Substantive self-determination may be achieved from a range of possibilities of institutional reordering other than the creation of new states. What is important is that the remedy be appropriate to the particular circumstances and that it genuinely reflect the will of the people, or peoples, concerned. Thus it is indeed possible to take seriously the proposition that self-determination applies to all segments of humanity, that is, all peoples. The substance of the right of self-determination, as opposed to remedies that may result from violations of the right, is the right of all peoples to control their own destinies under conditions of equality. ^[32]

4.20 Professor Erica-Irene Daes, the long-time chair of the UN Working Group on Indigenous Populations, has described this kind of change as entailing a form of ‘belated state-building’ through negotiation or other appropriate peaceful procedures involving meaningful participation by indigenous groups. Self-determination entails a process:

through which indigenous peoples are able to join with all the other peoples that make up the State on mutually-agreed upon and just terms, after many years of isolation and exclusion. This process does not require the assimilation of individuals, as citizens like all others, but the recognition and incorporation of distinct peoples in the fabric of the State, on agreed terms.^[33]

4.21 Anaya also discusses the importance of recognizing the dual aspects of self-determination – on the one hand, autonomous governance and, on the other, participatory engagement – as reflecting the view that Indigenous peoples are not disconnected from the larger social and political structures in which they live their daily lives. He concludes that:

It is perhaps best to understand the Declaration and the right of self-determi- nation it affirms as instruments of reconciliation. Properly understood, self-de- termination is an animating force for efforts toward reconciliation—or, perhaps more accurately, conciliation—with peoples that have suffered oppression at the hands of others. Self-determination requires confronting and reversing the legacies of empire, discrimination, and cultural suffocation. It does not do so to condone vengefulness or spite for past evils, or to foster divisiveness but rather to build a social and political order based on relations of mutual understanding and respect. That is what the right of self-determination of indigenous peoples, and all other peoples, is about.^[34]

4.22 Realising the right to self-determination should therefore not necessarily be interpreted as synonymous with achieving state sovereignty. Indeed, some international relations theorists have warned against falling into the ‘territorial trap’ when negotiating between conflicting political identities. Political scientist John Agnew, for example, writes:

[E]ven when rule is territorial and fixed, territory does not necessarily entail the practices of total mutual exclusion which the dominant understanding of the territorial state attributes to it. Indeed, depending on the nature of the geopolitical order of a political period, territoriality has been ‘unbundled’ by all kinds of formal and informal practices, such as common markets, military alliances, monetary and trading regimes.^[35]

4.23 Similarly, political theorist Ilona Klimovà-Alexander argues that the focus on territorial solutions can undermine the right to self-determination of stateless groups:

Since the current international system only recognises territorial control as the basis for political legitimacy, stateless communities which desire self-determination but do not want to establish their own territorial states ... are caught in a vicious circle which keeps them politically subordinated by eclipsing their right to self-determination at all levels ... dispersed ethno-national communities are [therefore] left without a satisfactory and fair remedy to their grievances.^[36]

This approach allows a group to express its preferences that might be taken into account, but the negotiations and their outcome are not based on equality between the parties, instead depending on the benevolence of the majority group. The result ... is that any progress made towards justice within this framework is marginal because ‘it is tolerated by the state only to the extent that it serves, or at least does not oppose, the interests of the state itself’.^[37]

the right to participate in determining the rules and institutions which govern us, where cultures are both equal before the law and equal in determining the law ... once self-determination is understood as types and degrees of participation rather than the exclusive control of territory, the need to limit its application all but evaporates.^[38]

4.26 In order to give effect to the right to self-determination, Klimovà-Alexander looks to the non-territorial cultural autonomy (NCA) framework developed by Karl Renner and Otto Bauer to provide a practical solution.^[39]

4.27 The Commission has provided a case-study of the Sámi Parliaments of North-western Europe at Appendix C to explore contemporary examples of Indigenous self-governance and what the implications are for Aotearoa New Zealand (these implications are discussed further in paras 4.84-4.87 below).

4.28 Professor Bartolomé Clavero discusses the example of Bolivia and its response to UNDRIP as giving practical and constitutional effect to the right of Indigenous peoples to self-determination:

In November 2007, only a couple of months after the adoption of the Declaration, the Bolivian Congress transposed it fully into domestic law. It was not done as an act of lower rank than the Constitution, quite the opposite. A Constituent Assembly was at the same time completing a draft Constitution that was to break open doors, opening up spaces for the exercise of the right of self-determination of the peoples. One Latin American State now understands that it has to revise its entire organisational power structure in order to make effective the rights that a number of the region’s constitutions have been recognising and which have now culminated in their most consistent expression in the Declaration.^[40]

4.29 Clavero’s analysis makes clear that giving effect to the right to self-determination has constitutional implications, necessitating some change to the way in which public power is configured and exercised.

4.30 The Commission wishes to emphasise Anaya’s point that the right to self-determination is not necessarily synonymous with state-hood, that it is at base a human right rather than a state right. Considering Article 1 and Article 2 in terms of balancing the rights to self-determination of diverse groups, rather than a conflict between Crown sovereignty and tino rangatiratanga (or mana Māori as discussed further in para 4.46 below) may be a more enabling means of re-configuring the constitution of Aotearoa New Zealand in terms of the Treaty. Put simply, the Treaty guarantees non-Māori or tauiwi the right to be here too. The key constitutional question, then, is how best to balance the rights of Indigenous and non-Indigenous New Zealanders to self-determination.

Indigenous rights

4.31 It is important to note that indigenous rights are not solely reducible to international human rights standards, such as UNDRIP. Other sources of indigenous rights include international law and the Treaty. In addition, tikanga was and is a means for determining rights for tangata whenua. This section is concerned primarily with the international human rights framework, but acknowledges that the whakapapa of human rights in Aotearoa New Zealand significantly pre-dates colonial contact and the Treaty of Waitangi.

4.32 Indigenous peoples have the same human rights as all others, and “indigenous rights” express how these are interpreted and applied in the context of their specific individual and collective situation. Indigenous rights affirm that Indigenous peoples, like other peoples, are entitled to their distinct identity. They recognise the historical and ongoing circumstances that have prevented them from fully enjoying their rights on an equal basis with others. The rights set out in UNDRIP are to be interpreted as minimum standards (Article 43).^[41] Further, UNDRIP cannot be construed as diminishing any other rights which Indigenous peoples have (Article 45); and it is to be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, nondiscrimination, good governance and good faith (Article 46). With its strong focus on the reciprocal relationships between Indigenous people and the State, many of the UNDRIP’s provisions reinforce the Treaty and the need for cooperation, good faith, consultation and partnership.^[42]

4.33 All of UNDRIP is relevant to this discussion, but we here single out the key Articles – in addition to article 3 on self-determination – that have formed the basis of the Commission’s thinking in this area. These include:

4.34 In addition to UNDRIP, other international human rights standards refer to the specific rights on indigenous peoples. The UN Convention on the Rights of the Child (UNCROC), for example, provides at Article 30 for Indigenous children to learn and practise their own culture. In its General Comment No. 11, the Committee on the Rights of the Child discusses the link between Article 30 of UNCROC and Article 27 of ICCPR, i.e. that the right to enjoy culture is closely associated with the use of traditional territories and its resources: ‘Denial of land rights for the Indigenous peoples will directly affect their right to practice and transmit their culture, thus denying indigenous children of this experience and subsequently violating Article 30 of UNCROC’.^[44]

4.35 In the Commission’s Te Mana i Waitangi resource the Treaty is described as ‘the promise of two peoples to take the best possible care of each other’.^[45] These two peoples are identified as:

4.36 From a constitutional perspective, the Treaty is between the Crown and Rangatira, and it is between these partners to the Treaty that the constitutional basis of the Treaty remains unresolved.^[46] More broadly, the Treaty gave rights and responsibilities to all people in New Zealand – Tangata Whenua and Tauiwi – based on tūrangawaewae. Hiwi and Pat Tauroa describe tūrangawaewae as ‘a standing place from where you gain the authority to belong.’^[47]

4.37 This section of the submission looks more closely at who the Crown and Rangatira are today, and identifies a range of concepts relating to both.

4.38 The dominant concept of power within New Zealand’s current constitutional arrangements is sovereignty, and the site of that power is the Crown. Article 1 of the English text of the Treaty – as well as a declaration of sovereignty based on the doctrine of discovery^[48] – is considered to be the source of legitimacy for Crown sovereignty in New Zealand. This assumption of Crown sovereignty is controversial, particularly when put in context with the Māori text of the Treaty. Bearing that controversy in mind, who or what is the Crown in the New Zealand context?

4.39 In its March 2013 discussion paper on the Interpretation Act 1999, the Parliamentary Counsel Office (PCO) noted:

The term ‘the Crown’ is not defined in the Interpretation Act for the purposes of section 27 (which provides that a statute binds the Crown only if such an intention is clear from its terms) or for determining its meaning where it is used in other statutes.^[49]

4.40 PCO’s paper seeks public input on whether or not the Crown should be defined in this Act because ‘the meaning of this term can cause difficulties.’^[50] The paper cited the Law Commission’s 1990 report, which noted that ‘the question of who is the Crown is difficult’,^[51] and that there are a range of definitions of the Crown across the statute book (including Treaty settlement legislation).^[52] This question has an impact on the nature of the Treaty partnership at both a constitutional and practical level.

4.41 In a 2008 article, Janet McLean explored the many different understandings of the Crown operating in modern New Zealand legal and political discourse.^[53] In McLean’s view, the Crown comprises different aspects in different situations:

4.42 From her analysis, McLean concludes that there ‘is no single or simple answer to “who is the Crown generally” or “for the purposes of the Treaty of Waitangi”’. This is not a cause for apathy, however, as McLean suggest that it is time once again to bring the political and legal aspects of these relationships together’.^[59] This could also involve a consideration of what parliamentary sovereignty should be: parliament as sovereign or parliament as a limit on Crown sovereignty, the latter reflecting ‘the ends of constitutionalism as the limitation of arbitrary government’ (emphasis added).^[60]

4.43 Elsewhere, Ngāpuhi have historically viewed the Crown as the British Crown with whom their Rangatira signed the Treaty of Waitangi. In Ngāpuhi Speaks, the independent report prepared for the Ngāpuhi Nui Tonu Claim before the Waitangi Tribunal, the claimants said:

that in order to understand He Wakaputanga and Te Tiriti , it was critical to establish the relationship between their rangatira and the British Crown during the early decades of the 1800s. In the Ngāpuhi view, a relationship of rangatira-to-rangatira developed with the British monarchs during these years.^[61]

4.44 One of the claimants, E Henare, gave an example of ongoing Ngāpuhi loyalty to the covenant with the British Crown, saying ‘as late as 1939 ... Ngāpuhi met and declared war on Hitler, before the New Zealand government did so, that was how they saw their obligation to the Crown of England, under Te Tiriti.’^[62]

4.45 No less than for the Crown, ‘who are Rangatira’ and ‘what does Rangatiratanga mean today’ are complicated questions, involving discussion of both historical and contemporary configurations.

4.46 Moana Jackson describes the Māori concept of power as mana and the site of this power as Rangatira:

For centuries the concept of power was called “mana,” although some Iwi and Hapū used the terms “mana taketake” or “mana motuhake” to define the absolute and independent authority to govern.

The site of power in each Iwi and Hapū was the institution of the rangatira, hence the later use of the term “rangatiratanga” to describe the absolute authority to govern.^[63]

4.47 Legal academic Linda Te Aho concurs: ‘Māori society was collectively organised with whakapapa (genealogy) forming the backbone of a framework of kin-based descent groups led by rangatira – leaders for their ability to weave people together’.^[64]

4.48 Ngāpuhi assert that He Wakaputanga o te Rangatiratanga o Nu Tireni (the Declaration of Independence of the United Tribes of New Zealand 1835) provides the foundation for the relationship between Rangatira and the Crown:

Ngāpuhi would agree that the treaty is the basis for the Crown to have a legitimate place within the governing structures of this country. However, the foundation for government in this country rests with the hapū and their relationships into the whenua (land). In terms of government at a unified level, He Wakaputanga is the foundation. He Wakaputanga is a statement of collective mana that reinforces and upholds the mana of each hapū; it allows a place for a foreign authority, but only in accountability to Te Wakaminenga o ngā Hapū o Nu Tireni (the General Assembly of Hapū).^[65]

4.49 As expressed in He Wakaputanga o te Rangatiratanga o Nu Tireni, Rangatira as an institution, are the location of:

All sovereign power and authority within the territories of the United Tribes of New Zealand [which] is hereby declared to reside entirely and exclusively in the hereditary chiefs and heads of tribes in their collective capacity.

4.50 In He Wakaputanga o te Rangatiratanga o Nu Tireni, furthermore, the Rangatira who constituted themselves as part of the Confederation of United Tribes:

also declare[d] that they will not permit any legislative authority separate from themselves in their collective capacity to exist, nor any function of government to be exercised within the said territories, unless by persons appointed by them, and acting under the authority of laws regularly enacted by them in Congress assembled.

Ko te Kingitanga ko te mana i te wenua o te wakaminenga o Nu Tireni ka meatia nei kei nga Tino Rangatira anake i to matou huihuinga, a ka mea hoki e kore e tukua e matou te wakarite ture ki te tahi hunga ke atu, me te tahi Kawanatanga hoki kia meatia i te wenua o te wakaminenga o Nu Tireni, ko nga tangata anake e meatia nei e matou e wakarite ana ki te ritenga o o matou ture e meatia nei matou i to matou huihuinga.^[66]

4.51 In addition to their traditional roles, Rangatira have sought to establish various national institutions to give Māori voice in the nation’s affairs since colonial government was established. In the 19^th century, these included the Kotahitanga movement,^[67] which held its own parliaments, and Te Kauhanganui, the Great Council of the Kingitanga movement.^[68] National gatherings such as the Kohimarama conferences were held.^[69] In the twentieth century, important national hui were held at Ngāruawāhia in 1984 and Hirangi marae in 1995.^[70]

4.52 In the wake of the rapid urbanisation of Māori away from their traditional lands in the second half of the twentieth century, urban Māori authorities formed to provide collective support in the new environment. Many of these entities were not iwi or hapū-based. Professor Mason Durie notes, however, that the traditional whānau concept was the basis for the formation of one such urban authority, Te Whānau o Waipareira.^[71]

4.53 Other non-traditional entities include the New Zealand Māori Council, which is the only national Māori institution supported by legislation,^[72] the National Māori Congress,^[73] the Federation of Māori Authorities,^[74] and the Māori Women’s Welfare League.^[75] In diverse fields such as social policy, health services provision, museum policy, and fisheries management, Māori have been ‘making decisions for Māori under a kaupapa Māori framework of decision-making, or have been moving in that direction.’^[76] National organisations are sometimes criticised as being established for the benefit and convenience of the Crown, not Māori. Ideally, their role should be one of engagement rather than negotiation.

4.54 Other contemporary entities include iwi authorities and rūnanga (tribal councils).^[77] Some of these contemporary institutions are post-settlement governance entities, established by legislation to receive financial and commercial assets as redress from the Crown for past breaches of the Treaty. Although the entities are established through legislation, some draw on more traditional models, including for example Waikato-Tainui Te Kauhanganui Incorporated^[78] and Te Rūnanga o Ngāi Tahu.^[79]

4.55 A range of commentators have noted the effect of the Crown’s Treaty claims-settlement process on Māori governance and decision-making entities. With its preference for negotiating with ‘large natural groupings’, the Crown has assisted in the process of a ’re-tribalisation’ of Māori society.^[80] In outlining the impact settlements have had, Paul McHugh comments that ‘the claims-settlement processes have required the tribes to organise on a more legally secure basis than mere tribalism alone. Customary organisation alone will not suffice in the new era of aboriginal asset-management.’ He notes the status quo - without endorsing it – that ‘Māori political being in terms of iwi and whakapapa ... [has been considered by the government to be] a safer, less jurisprudentially hazardous course.’^[81]

4.56 In recent years, some Iwi leaders have grouped together to act collectively as the Iwi Leaders Group.^[82] The Iwi Leaders’ Group has met with some criticism as lacking in accountability, transparency and representativeness. This partially stems from the view that iwi leaders may have a mandate from their iwi on some issues but not on others. There is also a perception that the group concentrates decision-making power in the hands of some iwi leaders – particularly those that have already settled their Treaty claims – and not others. Others have commented that the definitions of Māori society preferred in the claims-settlement process rigidly fix the fluidity of Māori relationships, and/or that they marginalise the approximately 20 percent of Māori who do not or cannot identify with their tribal affiliations.^[83]

4.57 Lawyer Donna Hall has, however, commented on the necessity for finding an answer to these questions, as ‘the Crown must have a Treaty of Waitangi partner to talk to, ... hence Māori need to identify and (re)establish the systems and structures required to provide for Māori governance and accountability in today’s world.’^[84]

4.58 Respecting the right of peoples to self-determination, determining in whom the constitutional institution of the Rangatira is vested in the present, and in what ways they would exercise Rangatiratanga today are questions that must be answered by tangata whenua rather than by the wider New Zealand public. The Commission acknowledges that the CAP have recognised this by devising a separate engagement process with tangata whenua on constitutional issues in the current review,^[85] and by their engagement with the Independent Iwi Constitutional Working Group, Aotearoa Matike Mai.^[86]
The current health of the Treaty partnership

4.59 In its 2011 report Ko Aotearoa Tēnei, the Waitangi Tribunal concluded that New Zealand was at a crossroads in terms of the Treaty partnership, and offered a series of recommendations as to how New Zealand could more truly reflect its bicultural origins.^[87] As the Commission has found in its Te Mana i Waitangi engagement, relationships between the Crown and Rangatira based on their Treaty obligations vary. They fall into the categories of being:

4.60 The Treaty partnership endures in political rhetoric, but in practice it is variable and constitutionally insecure, dependent on both public and political goodwill. Legal academic Alex Frame is one commentator who has suggested that rhetoric of partnership needs a more substantive basis in fact:

The comfortable, but insubstantial, concept ‘partnership’...draws attention away from the need to formulate in respect of each matter arising in the Treaty relationship such conditions as agreement on purpose, co-ordination of effort and common goals. These are all most important questions from an operational point of view, whether the objective in view is the development of good health policies for Māori, the advancement of language or other economic development. If that essential and practical planning requisite for authentic co-operation does not occur, then the parties will oscillate between inactivity and unrealisable expectations.^[88]

4.61 From a constitutional perspective, Frame’s analysis can be applied to interrogate the ways in which the Treaty partnership can best be given effect in New Zealand’s institutions, laws, policies and practices.

Determining the role of the Treaty in Aotearoa New Zealand’s constitutional arrangements

4.62 Applying a human rights approach to the role of the Treaty involves exploring ways to best balance the core rights to self-determination of the Treaty partners, prioritising the rights of the more vulnerable in the Treaty relationship (i.e. Rangatira / tangata whenua rather than the Crown). In determining how best to balance these rights, the Commission has identified three broad scenarios (summarised in Table 2 below) by which the role of the Treaty in New Zealand’s constitutional arrangements could be enhanced:

4.63 Each scenario identifies what the concepts of power are and where those sites of power are located. Each will outline a broad constitutional narrative, describe how the Treaty is foundational, and briefly outline some options for the kinds of institutions and/or practices that might result from the approach. Following this analysis, the Commission will outline its preferred scenario and the recommendations that flow from it.

Table 2: Three scenarios for the role of the Treaty in New Zealand’s constitutional arrangements

4.64 The core concept of power in this configuration is sovereignty. The constitutional narrative about power would be as follows: in 1840, the British gained sovereignty over New Zealand by means of a treaty of cession (i.e. the English text of the Treaty). In return for sovereignty, they agreed to protect the rights and resources of Rangatira.

4.65 In this scenario, the principal site of power would remain the Crown; the Treaty would be seen as foundational in terms of priority in time, providing legitimacy and limiting the exercise of public power. Current legal and political institutions would remain in place, but relevant laws, agreements, practices would be reviewed to ensure that they refer to the Treaty (e.g. land law, resource management, education, health and so on) and affirm the right to self-determination.

4.66 This scenario would most resemble the status quo though in a less ad hoc manner, and could for example, include entrenched Māori seats in central and local government; identified mechanisms for adjudicating Treaty matters; enforceable references to Treaty in (an entrenched) BORA – and these would be recognised as distinctive features of New Zealand democracy that transcend political partisanship.

4.67 While there are historical reasons behind the exclusion of a reference to the Treaty in the BORA, Paul McHugh has commented that ‘Māori lost an important opportunity when their representatives rejected inclusion of a Treaty principles clause in the Bill of Rights Act 1990. This would have given the principles a clear application throughout the public sector.’ He also explores the possibility that the courts might invoke the notion of Crown fiduciary duty to aboriginal peoples if reference to Treaty principles were removed from legislation.^[89]

4.68 Matthew Palmer suggests a range of pragmatic options for dealing with the uncertainty around the role of the Treaty:

The options for dealing with the uncertainty of meaning include the ambitious option of seeking a national consensus on restating the general meaning of the Treaty ....^[90]

Another way of dealing with uncertainty is the radical option of making the Treaty supreme law ...^[91]

[A] moderate change ... is to stablise the legal status and constitutional place of the Treaty by mitigating the uncertainty about who resolves the uncertainty of specific meaning. This would involve the primacy of the relationships between the Crown and Māori in resolving the meaning of the Treaty in concrete situations, about specific issues ... I suggest giving the Treaty of Waitangi legal force, judged independently by a new Treaty of Waitangi Court, composed of selected High Court judges and Waitangi Tribunal members. One of each would be assigned to a particular case, with appeal lying to the Court of Appeal and Supreme Court.^[92]

4.69 In a 2010 article, barrister Edward Willis, drawing on Waitangi Tribunal jurisprudence, outlined a framework of Treaty rights that he considered to be ‘consistent with both the principles of the Treaty and legal principle’:

First, the He Maunga Rongo Report articulates how the Treaty may constitute a principled limit on the exercise of Crown sovereignty. Second, the Muriwhenua Fishing Report demonstrates how Maori rights based on the Treaty may take precedence over competing interests. Finally, the Petroleum Report discussed the Crown’s obligation to provide a substantive remedy to vindicate the infringement of a Treaty right.^[93]

4.70 The core concept of power in this configuration is shared, meaning that the exercise of sovereignty is integrated with that of mana. The constitutional narrative about power would be as follows: in 1840, Rangatira exercised their mana to grant powers of self-government to British settlers (in the form of the Crown). Rather than co-existing as separate but equal institutions, the British settlers and Rangatira saw benefits in each others’ laws and systems and agreed that they would actively try to live together and develop institutions that recognised both their systems of law, governance and other practices.

4.71 Read this way, the Treaty founds a series of hybrid constitutional values and institutions based on core constitutional values of biculturalism or partnership. This means that institutions are not separate, but are developed together to become more genuinely bicultural. In this scenario, sites of power would be located in substantially altered or new institutions that contain features of both parliamentary democracy and indigenous self-governance, tikanga and common law. In some respects, this provides a more challenging path than that in scenario c (see paras 4.76-4.83 below).

4.72 There have been some models proposed domestically as to how a bicultural constitution might work. Why and how bicultural institutions can be developed in New Zealand, for instance, was the subject of the Waitangi Tribunal’s Ko Aotearoa Tēnei report. The Tribunal commented:

Unless it is accepted that New Zealand has two founding cultures, not one; unless Māori culture and identity are valued in everything government says and does; and unless they are welcomed into the very centre of the way we do things in this country, nothing will change. Māori will continue to be perceived, and know they are perceived, as an alien and resented minority, a problem to be managed with a seemingly endless stream of taxpayer-funding programmes, but never solved.^[94]

4.73 In order to address this imbalance, the tribunal recommended the development of genuine partnership bodies at the governance level and the reform of law, policies or practices relating to (among others) health, education, resource management, conservation, the Māori language, arts and culture, heritage, and Māori involvement in the development of New Zealand’s positions on indigenous rights. This includes recognition of and support for traditional Māori approaches in each of these areas.^[95]

4.74 Elsewhere, lawyer David V Williams considers that Bills of constitutional importance should require both a super-majority and a “consideration of the appropriate governance structures to reflect the tino rangatiratanga/ kawanatanga power relationships of the Treaty’.^[96] Alex Frame has explored the concept of giving the Treaty of Waitangi itself legal personality, particularly in respect of the governance and management of the foreshore and seabed. Giving the Treaty legal personality would then involve developing bicultural institutions to ‘speak for’ the Treaty.^[97]

4.75 In August 2012, Frame’s proposal took a step closer to becoming reality when the Agreement in Principle (AIP) between the Whanganui River iwi and the Crown was signed. Under this agreement, the Whanganui River will become a legal entity in its own right, with its own legal voice.^[98] The AIP provides for statutory recognition of the status of the Whanganui River as Te Awa Tupua, a legal entity with standing in its own right. It also provides for the establishment of Te Pou Tupua (guardian of the river) to represent the interests and act on behalf of the river. The agreement also provides for the development of a set of values (Te Awa Tupua Values) and a ‘Whole of River’ strategy.

4.76 The concepts of power in this configuration – mana Māori and Crown sovereignty – exist independently of each other with clearly defined spheres of influence and established processes for working together. The constitutional narrative about power in this scenario would be as follows: in 1840, Rangatira exercised their mana to grant limited governance of their own affairs to the incoming settlers. In order to do this, they agreed to a Treaty (i.e. the Māori text) which set out what powers they would give to the settlers, and what they expected in return. They expected that the new government would govern their own people as kawana but respect the existing powers and rights of the Rangatira.^[99] Justice Joe Williams has described this as ‘the gift of legitimacy.’^[100]

4.77 Read this way, the Treaty provides the foundational source of legitimacy for co-existing systems of governance and law in order to give effect to the right to self-determination for both Māori and the incoming settlers. In the present, this might take the form of a federation, special administrative regions, ‘domestic dependent nations’,^[101] or devolution. Constitutional values would be located in both British-derived sources and Māori sources.

4.78 In this scenario, sites of power would therefore be in the co-existing systems of parliamentary democracy and indigenous self-government. There are both historical and contemporary precedents for this. Both the historic and contemporary Kauhanganui of the Kingitanga, as well as the Kohimarama parliaments, offer examples of self-governance. The Urewera District Native Reserve Act 1896 made provision for ‘the Ownership and Local Government of the Native Lands in the Urewera District’, although this was systematically undermined by the government.^[102] The settlement agreed between the Crown and Ngāi Tūhoe in 2012 provides for shared governance of Te Urewera National Park, with eventual resumption of authority by the iwi: Te Urewera will have its own legislation and exist as a separate legal identity. It will be governed by Crown and Ngāi Tūhoe nominees acting on its behalf with Ngāi Tūhoe having an increasing role in management over time.^[103]

4.79 Internationally, contemporary forms of self-governance or devolution are provided by the Welsh Assembly Government,^[104] Sámi Parliaments (see case-study at Appendix C),^[105] tribal governments in the United States (the Navajo nation,^[106] for example, is a semi-autonomous Navajo-governed territory), and the Legislative Assembly of Nunavut.^[107] Similarly, there would need to be institutions to support co-existing systems of law: tikanga and common law. There are international precedents for this, as, for example, in the United States, where Native American nations exercise tribal law on tribal lands.

4.80 The way in which indigenous sovereignty, for example, is recognised in international constitutional arrangements impacts on how indigenous rights and treaty rights are protected. In New Zealand the orthodox position is that sovereignty was completely taken from Māori. Sovereignty is seen as indivisible and Parliament as supreme.

4.81 This contrasts with the United States system, which can be conceptualised as having three sovereigns: federal government, state government and American Indian governments.^[108] The United States pluralist system conceptualises the sovereignty of American Indians as being inherent, although subject to the exercise of plenary power by the federal government.^[109] Only two of these sovereigns are subject to the constitution: federal and state governments. There are over 500 recognised American Indian governments, and their territories have their own courts and laws. Unlike New Zealand, there are multiple treaties that were made with American Indian nations, and these have the same status as federal legislation (federal legislation and treaties being supreme over state law).

4.82 In Canada, indigenous sovereignty is conceived as having been taken away, and in some cases delegated back.^[110] Section 35 of the Canadian Constitution recognises aboriginal and treaty rights. This constitutional protection allows Courts to overturn laws that breach these rights.

4.83 These examples raise a number of questions about the integrity of the state (a key concern of UNDRIP), and about how best to configure non-territorial self-determination. We now turn to explore this issue further by assessing the implications of the Sámi experience for Aotearoa New Zealand (see Appendix C for the full case-study).

4.84 The realisation of the Sámi right to self-determination as the Indigenous peoples of North-western Europe has taken a number of forms: parliaments, councils, a convention, constitutional protections, and links with governments at the local, regional, national and EU level. Recognising the diversity of the iwi, hapū and whānau of Aotearoa New Zealand would similarly require a range of options for realising self-determination.

4.85 In some respects, the current Māori electorates operate in a similar way: although they are designed to elect Māori representatives to the New Zealand Parliament, Māori electorates overlap with the general electorates; that is, they cover the same territory but represent different groups of people. One option for the future could be to further develop the current system of Māori electorates so that representatives are elected to an Indigenous parliament, one which had a clearly and constitutionally-defined relationship with the New Zealand Parliament, as is the case with the Sámi Parliaments.

4.87 The case of the Sámi shows that Indigenous self-determination can be realised in semi-autonomous institutions that do not threaten the territorial integrity of the state.

It is worth remembering also that our original form of representative government enabled a form of federation both in the arrangements for provincial government and the space left for self-government within Māori districts. These earlier limitations on Parliament and forms of devolution suggest that we should not be too quick to dismiss contemporary calls for similar modern constitutional adaptions as contrary to our history and traditions. They were not unthinkable in the past.^[111]

4.89 Such a radical revisioning of New Zealand governance would, of course, require a robust deliberative process. Some examples of how the development of this kind of constitution might take place – without predetermining the outcome – are provided by Hohaia Collier and Moana Jackson. Collier outlines a kaupapa-based model for constitutional change based on whanaungatanga, rangatiratanga, kotahitanga, mana whenua, and whakapapa.^[112] Similarly, Moana Jackson advocates for beginning with the idea of kawa or rules as understood in customary terms rather than in the terms that the Crown sets. Starting from the right place would enable iwi and hapū to develop robust constitutional frameworks sourced in their own laws and systems.^[113]

4.90 Recommendations: Because the Treaty is the founding document of the New Zealand state, the Commission’s position is that New Zealand’s constitutional arrangements – its values, rules, institutions and practices – should proceed from the Treaty. This means giving substantive effect to the Treaty partnership between the Crown and Rangatira in every aspect of the way in which Aotearoa New Zealand is governed.

4.91 In light of the preceding analysis in this section, the Commission believes that the Treaty provides the foundational source of legitimacy for co-existing systems of governance and law in Aotearoa New Zealand in order to give effect to the right to self-determination for both tangata whenua and tauiwi.

4.92 In the longer term, the Commission therefore recommends the development of a Treaty-based constitution that is developed by the Treaty partners, in conjunction with their respective peoples, to their mutual satisfaction. This would require:

4.93 The Commission acknowledges, however, that giving substantive effect to the Treaty partnership will take time to get right and requires a longer conversation. The Commission therefore supports interim measures to protect the Treaty from everyday politics while this process unfolds. This would help to demonstrate the good faith of the Crown in the eventual development of a Treaty-based state.

4.94 The decision as to what is or are the most appropriate interim protections should be made collaboratively between Treaty partners. Some good options for providing greater protection for the Treaty include:

4.95 Without foreclosing any of the other options listed above, the Commission’s own preference for interim protection is option (g) ‘Enact a Treaty of Waitangi Act that puts both texts of the Treaty / te Tiriti into New Zealand law, along with additional provisions that state that ‘all law must be developed consistently with the Treaty of Waitangi’.

5.1 Human rights as presently conceived have their origin in the Universal Declaration of Human Rights (UDHR). The UDHR consists of a set of aspirational principles that are made enforceable in a variety of treaties which States can commit to delivering domestically through a process of ratification.^[116] The UDHR, together with the two main treaties - the International Covenant on Civil and Political Rights (‘ICCPR’) which deals with civil and political rights, and the International Covenant on Economic Social and Cultural Rights (‘ICESCR’) which deals with social, economic and cultural rights - make up the International Bill of Rights.

5.2 Before ratification, New Zealand attempts to ensure domestic legislation is compatible with the treaty. The strong common law tradition in New Zealand at the time that the ICCPR was ratified (along with the separation of powers and an independent judiciary) was considered to provide adequate protection for civil and political rights.^[117] New Zealand’s historic commitment to social welfare rights, coupled with the common law constraints on administrative action, was thought to provide satisfactory protection for ICESCR rights.

5.3 Despite this, there continue to be some significant gaps in the incorporation of the international human rights standards and their implementation.

5.4 Justiciability: The major difference between legislating specifically for certain rights and recognising those rights indirectly, or through generic legislation, is that a remedy is available through the courts when there is a violation of the right. That is, the right is said to be justiciable.

5.5 Justiciability has traditionally been regarded as an impediment to legal recognition of economic, social and cultural rights as it raises the legitimacy of judicial intervention and whether the courts are the appropriate body to adjudicate on their enforcement given that allocation of resources is more properly seen as the role of the executive arm of government (see paras 5.102-5.110 on parliamentary sovereignty and the rule of law below).^[118]

5.6 In 2003 the Committee on Economic Social and Cultural Rights (‘CESCR’) recommended that New Zealand:

... reconsider its position regarding the justiciability of economic, social and cultural rights ... the State party remains under an obligation to give full effect to the Covenant in its domestic legal order, providing for judicial and other remedies for violations of economic, social and cultural rights.^[119]

5.7 Optional protocols: Some of the international treaties are supplemented by optional protocols. A State has to ratify an optional protocol in the same way as a treaty for it to be effective.

5.8 The Optional Protocol mechanism allows individuals to make complaints directly to the relevant UN body about a breach of the treaty if they have exhausted their domestic remedies. For example, the optional protocol to ICCPR (which New Zealand ratified in 1989) allows individuals to complain directly to the UN Human Rights Committee about the violation of a civil and political right.

5.9 In 2008, after lengthy deliberation, a complaints procedure in relation to ICESCR was adopted by the General Assembly.^[120] The optional protocol deals with progressive realisation and resource limitations by incorporating a test for reasonableness^[121] which explicitly recognises that States may employ a range of policy measures to determine the best use of their resources to meet their obligations. New Zealand has not ratified the OP to ICESCR.

5.10 Special procedures: The UN system also provides for “special procedures” to deal with specific issues or thematic matters. They may be individuals (known as special rapporteurs or special representatives) or a working group of up to five people, and are designed to promote and ensure compliance with human rights standards.^[122]

5.11 A Special Rapporteur can receive a complaint if he or she considers it is credible and reliable and falls within their mandate. The Rapporteur can then take the issue up with the Government asking it to respond to the allegation and urging the government to investigate and provide adequate remedies.

5.12 Rapporteurs can also visit a country to examine the situation but must be invited by the Government to undertake a visit. After carrying out a visit, the Rapporteur presents a report setting out their findings and recommendations to the Human Rights Council. The recommendations are not binding and the success of the process depends on the willingness of the State to comply with the recommendations and co-operate with the UN.

5.13 Accountability to UN treaty bodies: Once a State has ratified a treaty, it does not have an unfettered discretion in how it goes about giving effect to the resulting commitments - its performance is reviewed at regular intervals by a United Nations Committee of Experts. The Committee’s reports provide an indication of how well a country is observing its international obligations. While non-compliance can attract the censure of the United Nations, the Committee’s concluding observations are not binding on the country concerned.

5.14 In the case of the ICESCR, the CESCR has expressed concern that, notwithstanding existing legislation providing for some elements of economic, social and cultural rights, the provisions of the Covenant are not fully incorporated into the domestic legal order in New Zealand. In its most recent report the Committee urged the government to take the necessary measures, in the context of the on-going constitutional review process, to give the Covenant full effect and to incorporate ECS rights in the NZBORA^[123].

5.15 The UN Human Rights Committee which has responsibility for oversight of the ICCPR has repeatedly called for entrenchment of the NZBORA. Equally consistently, the Government has rejected it, arguing that individual rights are adequately protected.

5.16 The New Zealand Government’s views on increasing protection of ESC rights can be found in its most recent response to CESCR^[124]. The Government considers that adequate remedies already exist to deal with breaches of Covenant rights. Wherever possible, national legislation is interpreted and applied consistently with international obligations and there is a broad range of non-judicial and quasi-judicial mechanisms for the implementation of Covenant rights.

enforced in New Zealand: directly, through judicial review, and through legislative incorporation.

certain rights directly and by enforcement through specialist tribunals such as the Human Rights Review Tribunal or in Court. Targeted legislation also specifically implements ESC rights such as rights relating to education, conditions of employment, equal pay, parental leave, environment, family law, health, housing, copyright protection, and social security. However, while the Covenant has been invoked in proceedings before the New Zealand courts on a range of matters^[125], ESC claims are more often pursued through the relevant legislative scheme, including via specialised administrative procedures.

5.19 Judicial review: An application for judicial review may be considered for any exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power. “Statutory power” is widely defined and includes (but is not limited to) the power or right to make regulations and rules, and to exercise a statutory power of decision. Judicial review in the context of ICESCR rights will be focussed primarily on the rights as expressed in the particular statute, but, where applicable, the Court will also have regard to the Convention.

5.20 Legislative incorporation: Some legislation directly incorporates the promotion of economic, social and cultural well-being as part of the statutory framework. For example, the Education Act 1989 (the object of provisions relating to tertiary education includes the “development of cultural and intellectual life” and “sustainable economic and social development of the nation”). In this type of legislation, the applicable principles in the ICESCR will be directly relevant to how the statute is interpreted and implemented.

5.21 Despite the Government’s claims, the Courts have been ambivalent about relying on, or endorsing, international human rights unless they are explicitly legislated for. Further, on the rare occasion where ESC rights language is found in a statute, they have tended to treat the language as non-justiciable.^[126] They have also been reluctant to bring their judicial review powers to bear in the area of socioeconomic entitlement because of the “political” nature of social policy questions.^[127]

5.22 Perhaps more concerning, however, has been the government’s response to those decisions where international rights have been taken into account by Courts. For example, when the Court of Appeal issued a declaration of inconsistency that a family care policy of the Ministry of Health was discriminatory,^[128] the Government passed the Public Health and Disability Amendment Act to retrospectively validate the policy and oust the jurisdiction of the Human Rights Commission in relation to any further complaints.^[129] The Government has also recently introduced legislation to repeal a discretionary provision in the Social Security Act relating to debt recovery in the case of inadvertent welfare fraud following the High Court’s decision in Harlen v Ministry of Social Development.^[130]

5.23 Overall, the Commission considers while civil and political rights are reasonably well protected, aspects of social and economic rights are not recognised as fundamental, justiciable rights in New Zealand with the result is that “... the New Zealand courts lack the ability to test state and/or private action against broad [ESCR] protections.”^[131]

5.24 The long title of the NZBORA states that the purpose of the Bill of Rights is to affirm, protect, and promote human rights and fundamental freedoms in New Zealand and to affirm New Zealand’s commitment to the ICCPR. The rights and freedoms protected by NZBORA are set out in Part 2 and reflect some, but not all, of those incorporated in the ICCPR. In particular, there is no equivalent of Art. 17 of the ICCPR which guarantees “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” Nor, for example, is there a right to found a family,^[132] a general right of equality before the law,^[133] or additional rights protecting children.^[134]

5.25 Although there is no express right to privacy in the NZBORA, some protections are available under New Zealand Law.

5.26 Article 21 of the NZBORA states "Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise." The New Zealand Court of Appeal has interpreted this provision in several cases as protecting the important values and interests that comprise the right to privacy. Through the common law a limited tort of privacy is developing.

5.27 In addition New Zealand's Privacy Act of 1993 regulates the collection, use and dissemination of personal information in both the public and private sectors. It also grants to individuals the right to have access to personal information about them held by any agency.

5.28 The clearest statement about the equality of New Zealanders is found in Article 3 of the Treaty of Waitangi, in which the Crown extended to tangata whenua the Queen’s protection and imparted to them ‘all the rights and privileges of British subjects’. Apart from this, there is no specific reference in New Zealand law to the right to equality, a fact that the United Nations Committee on Human Rights has consistently criticised in assessing New Zealand’s compliance with international standards on equality and freedom from discrimination (see section 2.10 and Appendix B).

5.29 The NZBORA does not address the right to equality and only indirectly affirms it by reference to New Zealand’s commitment to the ICCPR.

5.30 The meaning of equality in practice can be problematic as it can give rise to a variety of interpretations. The Taskforce Report for the Regulatory Reform Bill suggested that the phrase – which was part of a clause in the Bill – should be interpreted as only applying to administrative equality, that is, equal administration of the law or formal equality. However, formal equality can lead to significant injustice in cases where groups have been disadvantaged in the past because of characteristics such as race or sex, or a history of rights violations (e.g. by colonialism). Treating these groups the same as everyone else perpetuates existing injustices and patterns of discrimination and social exclusion remain unchanged.

5.31 The Commission has consistently endorsed the approach in the international instruments that views equality as not simply restraint by the State, but as a positive duty on the State to take measures to promote substantive equality (including where appropriate, allocation of resources).^[135]

5.32 An area in which a specific reference to equality may improve the current legislative provisions is in provision for legal capacity and supported decision-making for disabled people. Article 12(1) of the Convention on the Rights of Persons with Disabilities (CRPD) requires equal recognition before the law for all persons with disabilities and reaffirms that irrespective of their disability they have the right to exercise their legal capacity on an equal basis with others in all aspects of life (12.2). Article 12(3) requires that people with disabilities who need support in taking decisions should be provided with a system of supported decision making.

5.33 The UN Human Rights Council has indicated that measures taken to satisfy CRPD Art.12 (3) include legal recognition of the right of persons with disabilities to self-determination; of alternative and augmentative communication; of supported decision-making – that is, the process whereby a person with a disability is enabled to make and communicate decisions with respect to personal or legal matters; and the establishment of regulations clarifying the legal responsibilities of supporters and their liability.^[136] The notion of supported decision making is not the same as the concept of traditional guardianship where the person’s decision-making power is delegated to a legal guardian.^[137] Supported decision making can co-exist with substitute decision making when different areas of decision making are involved.^[138]

5.34 Greater constitutional protections for measures to promote substantive equality in this area in respect of legal capacity and supported decision-making, would likely impact on the Protection of Personal and Property Rights Act 1988, the Mental Health (Compulsory Assessment & Treatment) Act 1992 and Intellectual Disability and Compulsory Care & Rehabilitation Act 2003 (Criminal Procedure Mentally Impaired Persons Act 2003 & s. 23 Crimes Act 1961).

5.35 The NZBORA affirms New Zealand’s commitment to the ICCPR. Although considered to have “constitutional status” because of the nature of the rights that it protects, the NZBORA^[139] is not entrenched and can be overridden by a simple majority of Parliament. Successive governments have been reluctant to resile from this position, in part because there has been no public debate about the separation of powers and no wider understanding of what it could mean in practice – something arguably addressed by the present review.

5.36 The NZBORA consists of three parts. Part 2 lists the substantive rights. Part 3 states that existing rights and freedoms are not abrogated because they are not included in the NZBORA and that legal persons enjoy the benefit of the NZBORA “so far as practicable”.

5.37 The interpretative provisions are found in ss.3 to 7 of Part 1.Section 3 describes the actors to whom the legislation applies. Section 4 states that enactments cannot be repealed simply because they are inconsistent with the rights in the NZBORA. Section 5 is an explicit acknowledgment that the rights and freedoms in the NZBORA can be limited or restricted if they can be justified “in a free and democratic society”. Section 6 requires Courts to interpret legislation consistently with the rights and freedoms in the NZBORA if at all possible. Section 7 requires the Attorney-General to report to Parliament on apparent inconsistencies between proposed legislation and the rights in the NZBORA and is designed to ensure that Parliament is made aware of a possible breach so it can either rectify it or enact the legislation recognising there is a breach. Currently, the Attorney-General only reports to Parliament if discrimination is unable to be justified as a reasonable limit on the particular right or freedom under consideration.

5.38 The present review provides an opportunity to strengthen the NZBORA to ensure that it protects the rights of all New Zealanders more fully by:

5.39 The provision of effective remedies by a State for breach of an individual's rights or freedoms is mandated by article 2(3) of the ICCPR. Article 2(3) provides that:

Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy, (c) To ensure that the competent authorities shall enforce such remedies when granted.

5.40 In its White Paper form, the Bill of Rights was to contain a remedies clause (providing for 'such remedy as the Court considers appropriate and just in the circumstances'). Amendment of the Bill during its passage through Parliament saw this remedies provision removed. The resulting Act contains no express remedies clause.^[146]

5.41 The Human Rights Committee has repeatedly expressed its concern about the absence of express provision for remedies for all those whose rights under the Covenant or the NZBORA have been violated. Notwithstanding the absence of an express remedies clause in NZBORA, remedies have been granted by the courts where breaches of the rights and freedoms contained therein have occurred. Three principle remedies have been developed by the courts: compensation and civil damages; the grant of a stay of execution for undue delay and/or the failure to allow for testing of evidence; and declarations of incompatibility.

5.42 However, in practice the courts have been reluctant to award a NZBORA remedy, generally only awarding such a remedy where other common law remedies are unavailable or insufficient. The current practice of the courts to treat NZBORA remedies as residual is not consistent with promoting human rights, nor does it fully reflect New Zealand’s obligations under the ICCPR. It would therefore be desirable to include an express remedies clause in NZBORA.

5.43 The original draft of the NZBORA included specific reference to the Treaty of Waitangi. The reference was not, however, incorporated in the final version because of concern by Māori that doing so would have left the Treaty with the status of ordinary law. There is some indication that this position has changed it is now considered appropriate for the Treaty to be included in a revised Bill of Rights (see, however, section 4 on the Treaty of Waitangi for a discussion of other means of protecting the Treaty).

5.44 The ICESCR indirectly addresses the issue of group rights, affirming the right to self-determination and stating that all peoples may freely dispose of their natural wealth and resources but that ‘in no case may a people be deprived of its own means of subsistence’^[147].The right to self determination in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) explicitly refers to the right of indigenous peoples to ... ‘freely pursue their economic, social and cultural development” (see section 4 for a fuller discussion on self-determination and indigenous rights). What this means in practice remains unclear, however. As Robertson puts it:

The expression “freely pursue their economic, social and cultural development” ... could mean that a people as a group must be free to pursue its development free from outside interference or it could mean that the individual members of the group are free to pursue their own economic, social and cultural development. The latter interpretation would be more consonant with individual freedom and rights such as the right to choose one’s occupation. The former, however seems more natural in the context of self–determination in the previous clause.^[148]

5.45 While specific statutory recognition of ESC rights would be both consistent with the Treaty of Waitangi and acknowledgment of the importance of group rights in New Zealand, it may impact on individual autonomy - particularly if a right to property is included in the NZBORA.

5.46 Ratifying the Optional Protocol to ICESCR: As noted earlier, the Optional Protocol provides individuals with the ability to lodge a complaint with the CESCR if they have experienced a breach of the treaty rights – provided that the State has ratified the OP.^[149] Currently there is no indication that the New Zealand government considers it necessary to ratify the OP. Should it do so, however, there will need to be adequate domestic remedies because of the requirement to exhaust all domestic remedies.^[150]

5.47 The omission of ESC rights from the NZBORA may mean – despite the government’s assertions to the contrary – that domestic enforcement mechanisms are inadequate and the international obligations not appropriately reflected in New Zealand law.

5.48 Ratifying the Optional Protocol to CRPD: New Zealand ratified the United Nations Convention on the Rights of People with Disabilities (CRPD) in 2008. CRPD does not create any new rights but is designed to ensure that people with disabilities enjoy the rights in the international treaties in the same way as everybody else. CRPD applies to the full spectrum of rights in the ICCPR and ICESCR. The disability sector has a strong interest in the Government ratifying the Optional Protocol to the CRPD so disabled people are able to submit communications to the United Nations alleging a breach of their rights.

5.49 The New Zealand government has indicated that it is unlikely to ratify the OP to the CRPD before ratifying the OP to the ICESCR as it would create an individual complaints mechanism for breach of ESC rights for people with disability that is not available to other citizens.^[151] By comparison, however, Australia acceded to the OP to CRPD on 21 August 2009.^[152] Like New Zealand, it has neither ratified nor acceded to the OP to ICESCR.

5.50 CERD Article 14 complaints mechanism: Under Article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) the Committee on the Elimination of Racial Discrimination may consider complaints from individuals if the individual is within the jurisdiction of a state that has recognised the competence of the Committee to receive such complaints. New Zealand has yet to opt into this process. As at May 2013, the government was still reviewing this position.

5.51 Alternative dispute resolution: Ensuring an effective remedy for violation of ESC rights is not just about court action. More innovative options are necessary, given the cost and possible systemic implications.^[153] As Porter notes:^[154]

The implementation of ESC rights is not simple and will rarely involve a singular policy option. There will, in most cases, be a range of measures and a multiplicity of choices available. Remedies will often need to recommend a process through which compliance can be achieved, rather than recommending the precise details of the solution.

5.52 The White Paper, while clearly considering the enforcement of complaints about alleged breach of fundamental rights and freedoms in the Courts, also defended existing remedies such as accessing the Ombudsman or the Human Rights Commission specifically noting that “... the procedures that these bodies adopt in seeking to resolve disputes between the citizen and the State are in many ways preferable to court action”.^[155]

5.53 The Commission’s own figures for the last three years for handling discrimination complaints under the Human Rights Act show that an average of 80% of all matters are resolved via dispute resolution, with only an average of 20% requiring further litigation.^[156]

5.54 Creating a Human Rights Select Committee: Ensuring the development of human rights compliant legislation would be enhanced by the establishment of a dedicated Human Rights Select Committee to scrutinise selected legislation and section 7 vets, and conduct thematic inquiries and issue reports. Treaty body recommendations and New Zealand’s reports on its compliance with human rights treaty standards should also be tabled in Parliament, to strengthen the process for vetting legislation for compliance with NZBORA.

5.55 Strengthening the Cabinet Manual: The New Zealand Cabinet Manual expressly requires Ministers to advise the Cabinet of any ‘international obligations’ affected by proposed legislation.^[157] However, this requirement is consistently overlooked and there is seldom any transparent assessment of New Zealand’s international human rights obligations in the development of legislation.

5.56 The Commission recommends that the requirement set out in section 7.60 of the Cabinet Manual be more explicit in requiring identification of implications in relation to international human rights commitments and extended to apply to all policy and legislation (both primary and secondary). Ministers should be directed to strictly adhere to current and extended Cabinet Manual requirements.

5.57 Property plays a fundamental role in our society, providing us with material things we need to sustain life and a base from which we can participate in civic life. For most of us it does much more. We use our clothes, automobiles, and personal possessions to differentiate ourselves from one another; we use our property to shelter and nurture our families; and we use our wealth to support causes we want to promote. Protection of our property is vital to our sense of security and is a core function of our legal system.^[158]

5.58 The right to property can be traced back to the Magna Carta^[159] which became part of New Zealand law in 1840. In 2013 more than 50 English statutes were still in force in New Zealand^[160] including Chapter 29 of the Magna Carta^[161] which provides that “No freeman shall be ... disseised of his freehold ... but ...by the law of the land”. This aspect of the Magna Carta has been recognised by the Courts over the years^[162] and is implicit in Article 2 of the Treaty of Waitangi.

5.59 As a result property rights are protected to some extent by the common law^[163]and legislation such as the Public Works Act 1981 and the Resource Management Act 1991, but they are not among the rights and freedoms in the New Zealand Bill of Rights Act (NZBORA)/^[164]

5.60 The Universal Declaration of Human Rights (UDHR) is regarded as the bedrock of the contemporary human rights framework. Article 17 of the UDHR states that:

Everyone has the right to own property alone as well as in association with others. No-one shall be arbitrarily deprived of his property.

5.61 The UDHR is essentially aspirational. In order to make the rights enforceable, they are translated into a number of international treaties: ICCPR and ICESCR are the two major treaties. The right to property is not found in either of these - principally as a result of the intractable differences that arose out of the ideological division between the capitalist and socialist countries during the Cold War. A number of the other treaties, however, include clauses that prohibit discrimination on the basis of property, or in relation to property, by reason of a person’s sex, religion, race or similar ground^[165]

5.62 By contrast, regional arrangements such as the European Convention of Human Rights include the right to property (in the sense of peaceful enjoyment of possessions)^[166] as do both the American and African Charters - although the protection against expropriation and regulatory takings is relatively weak. As a general principle, the right to property is recognised as a personal right but State interference is permitted in the public interest.

5.63 A major obstacle to the human right to property is what is meant by ‘property’. While the UDHR does not explicitly refer to private property, it is often conceived of as such. As a result, much mainstream human rights thinking is averse to the notion of property because historically it has been:

... the privilege of the few and served as a means of excluding the large mass of non-possessors from social and political life. The merit of this argument is that it pinpoints an intrinsic tension between the right to property as a civil right and its social function. The right to property, understood as means of survival, is closely related to the realisation of the right to life and of other human rights of the individual. At the same time, however, its limitation may be necessary for the realisation of other human rights....Western liberal tradition places this right among other freedoms, while its characteristics unequivocally would lead to its inclusion among economic, social and cultural rights.^[167]

5.64 Some commentators have gone so far as to interpret the right to property as requiring the redistribution of property so that everyone can live a life of dignity.^[168] How far one can go with this line of reasoning is debatable, but it is clear that the right to property can impact on the realisation of many economic and social rights such as the right to food and an adequate standard of living.

5.65 Property rights can also be as fundamental to civil and political rights.^[169] Those who endorse the concept of private property argue that it is integral to individual autonomy and a free society^[170]arguing that:

...property rights allow human beings to have autonomy of action over their own property; rights-holders can put property to the uses they desire, provided such uses are socially acceptable; and they can reap the rewards from those uses without fear of unjustified and uncompensated expropriation of their property rights by government.’^[171]

5.66 If the right to property is considered necessary to realise human rights, then it imposes certain obligations:^[172]

5.67 The right to property, however conceptualised, is not absolute. Property can be taken by the State provided the “taking” is not arbitrary. This has been interpreted as meaning that the taking must be prescribed by law and in the public interest.

5.68 Although the absence of a specific right to property means there is no jurisprudence from the international treaty bodies, there is enough comment from courts such as the European Court of Human Rights (ECtHR) to suggest that protection of property rights would be “largely illusory and ineffective” in the absence of compensation^[173].

5.69 The level of compensation has, however, been the subject of debate particularly the question of whether full compensation is necessary. In Lithgow & Ors v. the United Kingdom^[174] for example, the ECtHR stated that full compensation is not a guaranteed right and reimbursement of less than the full market price of a property may be legitimate if the aim is economic reform or greater social justice.
How property rights are addressed in other jurisdictions

5.70 Although most of the world’s liberal democracies include property rights in their constitutions (see Appendix D), the nature of the right can differ significantly. As noted earlier it may be conceived of as an individual or personal function closely connected to personal liberty and economic activity; or as a social and public good which advances the collective good of society^[175]. The United States provides an example of the former and the German Constitution, the latter.

5.71 The US Constitution does not include a property clause as such. Property is only mentioned in the takings clause of the Fifth Amendment and the due process clause of the Fourteenth Amendment. While human dignity is the cornerstone of the German Constitution, it is not construed as an individual right but rather the right of a person as part of the community. Article 14 of the German Basic Law recognises the right to property as indispensable for individuals to realise their own potential^[176]. As the Constitutional Court has noted:

The image of man under the Basic Law is not that of [an] isolated, sovereign individual; rather, the Basic Law resolves the conflict between the individual and the community by relating and binding the citizen to the community but without detracting from his individuality^[177]

5.72 The right to property under Article 14 can be infringed even if the property is taken in the public interest and monetary compensation provided. The basis for this conception of private property as a social obligation finds no real analogy in legislation such as the American constitution.

5.73 There is no specific statutory recognition of the right to property in the NZBORA. In 1988 the Final Report of the Justice and Law Reform Committee on a White Paper on a Bill of Rights for New Zealand noted that submissions to the Committee suggested that certain social and economic rights should be included in the Bill - including the right to property^[178]. The Committee also suggested that the Bill should include “the right to own property and not be deprived of private property for public use without just compensation”^[179].

5.74 The Parliamentary Counsel Office subsequently drafted a version of the NZBORA which included a clause that read:

Right to own property

Every person has the right to own property, and the right not to have that person’s property taken, for public use, without just compensation.

5.75 The clause (and other clauses dealing with economic and social rights) did not survive the Bill’s introduction as it was opposed by the Government of the day, the then Prime Minister, Sir Geoffrey Palmer, stating that:

The Select Committee recommended the inclusion of some social and economic rights as principles to aim at. Such rights would not have been enforceable, and it was decided not to include any of them in the Bill. Bills of Rights are traditionally about putting restraints on the powers of the State. Hence, they tend to focus on procedural rather than substantive rights. Social and economic rights are in a different category. That does not mean that those rights are of lesser importance, but, rather that they should be protected in a different way.^[180]

5.76 21 years after the NZBORA was enacted Palmer considered that the right to property could be included, subject to certain qualifications – including how property should be defined and “the cost implications of providing compensation for statutory invasion of property rights.” ^[181]

5.77 In 2005 a private member’s bill was drawn from the Ballot that would have added a right to property to the NZBORA. The argument in support of the Bill was that it would have influenced judicial interpretation and promoted greater discussion about proposed legislation involving the infringement of property rights. The Bill was eventually defeated because interpretation of certain terms (including what was meant by property) was unclear; it could have complicated the legal interpretation of property for the purposes of the Resource Management Act 1991; and the right to compensation could have incurred unintended costs by government and local authorities^[182].

5.78 Then in 2011, the Government introduced the Regulatory Standards Bill to the House. The Bill was an ACT initiative and ostensibly designed to improve the quality of legislation. However, it also included the right “not to take or impair property... unless it is necessary in the public interest”. This was criticised as having the effect of preventing Parliament from doing anything redistributive as it would basically freeze the existing distribution of wealth^[183]. It was also observed that “... as the principle would make it very expensive to impose limits on how property owners may act, this would sharply curtail planning and environmental protection laws among others”^[184]. At the time of writing, progress on the Bill had stalled.

5.79 More recently, the Government passed the Canterbury Earthquake Recovery Act 2011 (CERA Act). The CERA Act sets out the functions and powers of the Minister and creates a new Authority - the Canterbury Earthquake Recovery Authority (CERA) - to ensure a coordinated recovery effort. The Act provides a framework for compensation for land compulsorily acquired under the Act^[185]which is set at the current market at the time of acquisition^[186].

5.80 However, while New Zealand’s domestic human rights legislation is silent on the right to property^[187], other legislation and policy – in addition to the Magna Carta - supports the existence of the right. For example, the Crown has the power to acquire property in the national interest (contingent on the payment of compensation) under the Public Works Act 1981; the Crimes Act 1961 proscribes property offences such as theft; the Land Transfer Act 1952 reflects the indefeasibility of title in s.62 (along with other sections of that Act); and the Resource Management Act 1991 is premised on ownership of property. The Treaty of Waitangi settlements negotiated by the Crown through the Office of Treaty Settlements also reflect the concept of property as a right.

5.81 The right to property raises particular issues in relation to the Treaty of Waitangi, indigenous rights in the UNDRIP, and the right to self-determination in the various international treaties. Prior to the Treaty, the relationship between the people and the land was ‘we belong to the land’. Article 2 of the Treaty added a new relationship: ‘the land belongs to us’. This part of the Treaty created property rights for tangata whenua in Aotearoa.

5.82 The common law doctrine of native title recognised the pre-existing rights of Indigenous peoples in lands the Crown sought to acquire and required a clear process for extinguishing native title before it could assume authority over a new territory.

5.83 The establishment of the native land laws to convert customary tenure into individualised title, and extensive Crown purchasing of Māori land were the main processes by which the Crown sought to extinguish native title.^[188] The Treaty of Waitangi introduced, among other things, the common law doctrine of native title:

The Treaty of Waitangi thus endorsed the position at common law: a change in sovereignty does not extinguish Indigenous peoples’ property rights, and specifically, Māori remain the proprietors until they wish to sell to the Crown.^[189]

5.84 Treaty settlements are intended to provide some redress for historical breaches of the Treaty by the Crown. Compensation for property compulsorily acquired for public works, however, has historically been poorly observed for owners of Māori freehold land.^[190]

5.85 A variety of international standards are designed to ensure indigenous peoples are adequately compensated for loss or taking of their land. Article 8 (2) of UNDRIP, for example, requires ‘States [to] provide effective mechanisms for prevention of, and redress for: ... any action which has the aim or effect of depriving them of their lands territories or resources.’ Under Article 28 redress can include ‘restitution or when this is not possible, just, fair and equitable compensation for the lands, territories and resources which they have traditionally owned or occupied’^[191] and which have been taken without their ‘free, prior and informed consent’.

5.86 The UN General Assembly’s 1986 Declaration on the Right to Development^[192] states that:

The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.

The human right to development also implies the full realisation of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.

5.87 Articles 3, 4 and 10 call on governments to assist with the realisation of these rights. In 1998 the General Assembly expressed its concern that the Declaration should be taken into account in national development strategies and policies and urged States to eliminate all obstacles to development by pursuing the promotion and protection of economic, social, cultural, civil and political rights.^[193]For Māori, the right to development is a Treaty right, extensively articulated by the Waitangi Tribunal, particularly in He Maunga Rongo: Report on the Central North Island Claims.^[194]

5.88 The right is also recognised in Article 32 of UNDRIP which states that Indigenous peoples have the ‘right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources’. The Waitangi Tribunal has found that the right to development is not ‘frozen in time’.^[195] Extensive Māori fishing rights, for example, have been formalised in settlement legislation, which enables Māori to fish both for traditional and commercial use.^[196]

5.89 The ownership of water raises particular issues for tangata whenua as a result of the partial privatisation of certain State Owned Enterprises.

5.90 The question of ownership has been the subject of long-standing claims based on the Crown’s failure to protect tangata whenua in their “full exclusive and undisturbed possession” or ‘”Tino rangatiratanga” of their water properties or taonga guaranteed by the Treaty.

5.91 In an interim decision in the Freshwater and Geothermal Resources Inquiry (2012), the Waitangi Tribunal established that the claimant iwi and hapū have property rights akin to ownership in English law over specific bodies of water based on:

5.92 How Treaty rights are recognised in practice will be the subject of the second stage of the Inquiry and will build on the Tribunal’s finding that such rights are in the nature of ownership. It will inquire into whether such rights and interests are adequately recognised and provided for under existing regulation and whether Crown policies are in breach of the Treaty. If a breach of the Treaty is found, the Tribunal will then consider what steps should be taken to comply with the Treaty.^[198]

5.93 While there is no distinct right to property in human rights law, a case could be made for a more specific reference to property given its link to the realisation of social, economic and cultural rights.

5.94 If it was included in the NZBORA then some thought need to be given to the implications of the lack of an explicit remedies provision. As compensation is integral to the right, including it as part of the right itself establishes a new legislative path. However, this could be justified because the ICCPR imposes an obligation on States to ensure that any person whose rights have been violated has access to an adequate remedy by a competent authority and enforceable; international jurisprudence is clear that compensation should be available for breaches of human rights^[199].

5.95 In Baigent’s case the New Zealand courts developed the concept of a public law remedy for a breach of s.21 of the NZBORA, noting:

[The Act’s] purpose being the affirmation of New Zealand’s commitment to the Covenant ... it would be wrong to conclude that Parliament did not intend there to be any remedy for those whose rights have been infringed ... I do not accept that Parliament intended it to be what most would regard as no more than legislative window dressing, of no practical consequence, in the absence of appropriate remedies for those whose rights and freedoms have been violated.^[200]

5.96 If it is considered appropriate to include property rights in the NZBORA then the Commission considers that the following wording would reflect the international standards:^[201]

5.97 Specific wording to address the right to property and the Treaty of Waitangi and indigenous rights (including over natural resources such as water) should be negotiated between the Crown and tangata whenua.

5.98 The Commission also notes the increasing importance of protecting the environment, which raises human rights issues for both present and future generations. This was one of the strong themes that emerged in the community engagements that the Commission undertook in 2013 (see separate Tell Us Your Dream document annexed to this submission).

5.99 Legal academic Catherine J Iorns Magallanes notes that Constitutions around the world are increasingly including statements of environmental protection, both in terms of rights to healthy environments and obligations to protect them.^[202]

5.100 The 2009 Bolivian constitution, for example, provides an example of a recent constitution that codifies environmental and inter-generational rights. A core part of that constitution is the protection of Pachamama or the Earth Mother.^[203] Furthermore chapter 5 of the constitution, which provides for economic and social rights, includes a separate section on environmental rights, which provides that:

5.101 Included in Article 108 which outlines the ‘Duties of Bolivians’ at the end of the constitution are duties 15 and 16:

5.102 In the Commission’s view, greater constitutional recognition of the Treaty – whether through long-term reconfiguration of New Zealand as a Treaty-based state or greater short-term protections – can offer a means to provide greater protection for the environment and the rights of future generations. One option for this could be to make kaitiakitanga (guardianship) a core constitutional principle.

5.103 Whether Parliament or the Courts is the best guardian of rights requires consideration of the relationship of Parliamentary sovereignty and the Rule of Law and how they function in a democracy.

5.104 The concept of Parliamentary sovereignty has its origins in Article 9 of the Bill of Rights of 1688^[206] which states that “the freedom of speech and debates and proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. The influential nineteenth century legal scholar, A. V. Dicey, described it as Parliament’s right to make – or unmake – laws^[207].

5.105 The Rule of Law prevents the exercise of arbitrary power. Although legal scholars describe the concept differently, all stress certain principles. Namely, government should be subject to the law not just ordinary citizens; those who administer the law (such as lawyers and judges) must be independent of government; there needs to be access to the courts to ensure a remedy or relief; and the law should be certain and apply equally to all.

5.106 As Parliamentary sovereignty in its purest form anticipates Parliament being able to legislate without restriction, in theory Parliament is not bound by the Rule of Law and can act arbitrarily^[208]. However, as respect for fundamental rights is considered part of responsible government, Parliament is presumed to legislate consistently with such rights. As Cooke J (as he then was) observed:

I do not think that literal compulsion, by torture, for instance would be within the lawful powers of Parliament. Some common law rights presumably lie so deep that even Parliament could not override them.^[209]

5.107 The conventional wisdom therefore is that Parliament has the right to legislate on any matter it chooses and as a matter of principle the courts should not interfere with that process. Parliament makes the laws and the Courts interpret and apply them. However, this position is not immutable and the need to reconcile Parliamentary sovereignty with the Rule of Law has led to a divergence of views about where the proper balance between the legislature and the judiciary lies.^[210]

5.108 The evolution and influence of international human rights over the past two decades has led to a reappraisal of Parliamentary sovereignty through interpretation by the judiciary. Unless explicitly stated to the contrary, the Courts will interpret legislation in a way that is consistent with fundamental rights. It has also been suggested that an activist judiciary might one day refuse to apply an Act of Parliament if it infringes a fundamental right^[211].

5.109 If this is a good or bad thing will depend to a large extent on whether the judiciary is seen as making well reasoned policy decisions and how Parliament reacts to them.

5.110 A recent legislative response to a decision of the Court of Appeal scarcely engenders confidence in Parliamentary sovereignty. Following the grant of a declaration that a government policy was discriminatory^[212], Parliament introduced an amendment to the Public Health and Disability Act which not only undermined the effect of the declaration but ousted the jurisdiction of the Human Rights Commission and the Courts in relation to future complaints. As the NZLawyer noted^[213]

This appears to be telling the judiciary that they are not allowed to look at a government policy in order to decide if it is in breach of legislation enacted by Parliament (i.e. the New Zealand Bill of Rights Act 1990). This is viewed as impeding the Courts in the exercise of their judicial function, thus impacting upon the constitutional doctrine of the separation of powers, so fundamental to our Westminster based democracy.

5.111 The Courts clearly fulfil a necessary role in moderating Parliament. While both are essential to a functioning democracy, the relationship is constantly mutating and changing and the Courts can be expected to take a more interventionist role in future particularly if an entrenched Constitution is enacted.

5.112 Recommendations: In accordance with its obligations under Article 2 of the ICCPR, the Commission recommends that the Government expressly incorporate all ICCPR rights into the NZBORA.

5.113 The Commission recommends that the Government commit to giving effect to the optional protocols to ICESCR and CRPD, as well as the Article 14 CERD complaints procedure.

5.114 In accordance with its obligations under ICESCR, the Commission endorses stronger protection of ESC rights through:

5.115 While there is no distinct right to property in human rights law, it is closely linked to the realisation of many ESC rights. In the past, the Commission has considered that the issues of compensation poses no insuperable obstacles to greater protection of the right to property.^[215] The Commission therefore endorses specific legislative protection of property rights and considers the following wording appropriately reflects international standards:

5.116 Specific wording to address the right to property and the Treaty of Waitangi and indigenous rights (including over natural resources such as water) should be negotiated between the Crown and tangata whenua.

5.117 The Commission recommends stronger protections to ensure better human rights compliance through:

5.118 On the question of whether or not the Bill of Rights Act – including the full range of civil, political, economic, social and cultural rights – should be entrenched, the Commission’s view is that human rights require greater protection than that provided by ordinary law. In the short-term, this would be achieved by entrenchment. In the long-term, once the Treaty is better recognised and human rights protections strengthened in New Zealand’s constitutional arrangements, the Commission thinks that an entrenched and supreme codified constitution setting out the agreed rules, values, institutions and practices would be desirable (and if desired by both Treaty partners).

6.1 This section is separated from the other electoral matters identified for review in the CAP materials. The Commission’s analysis and recommendations in this section are primarily drawn from its 2010 report, Māori Representation in Local Government: the Continuing Challenge.^[216]

6.2 The Electoral Act 1993 makes continued provision for Māori representation in Parliament, initially established as four Māori seats in 1867. The number was increased in 1993, with the introduction of proportional representation, and is now determined by a formula that divides the number of voters enrolled on the Māori electoral roll by the ‘South Island quota’. The number of Māori seats is currently seven.

Through their mere existence, the Māori seats legitimated a Māori polity based not only on distinctive cultural and political needs, but also on a residual sense of dominion that had prevailed prior to the Treaty ... In addition ... a convention had emerged that Māori, rather than the government, should decide the question of abolishing the seats. ^[217]

6.4 Durie also notes the positive impact of MMP on Māori representation, but stresses the importance of retaining dedicated Māori seats, as without them ‘Māori influence within the system would be diffuse and unfocussed.’ The particular significance of the Māori seats comes from the capacity they provide for dedicated Māori representation. Durie points out that under MMP the seats have taken on a further significance: ‘all political parties realised the Māori vote had assumed a new strategic importance ... the seven Māori seats could make the necessary difference to having the numbers to form a government’.^[218]

6.5 Matthew Palmer summarises the position of Māori representation at the constitutional level:

Because of the political nature of New Zealand’s constitution, I conclude that Māori political representation is the most significant manifestation of the Treaty of Waitangi in New Zealand’s constitution in reality. This accords with representative democracy and parliamentary sovereignty being fundamental norms of New Zealand’s constitution. Māori political representation relies on representative democracy to access influence over the exercise of parliamentary sovereignty. Māori have managed to convert a pragmatic Pākehā initiative, the Māori seats, into a symbolic representation of their own identity and political relationship with the State. MMP has broadened that representation and given it real political power. This ensures that Māori have a voice in the constitutional dialogue in New Zealand – in the branch of government that speaks the loudest, Parliament.^[219]

However loudly Māori voices are heard within Parliament, that institution is ultimately ruled by the majority and Māori do not now constitute a majority in New Zealand. A group of people that consistently forms the majority [i.e Pākehā] has few incentives not to exploit, or ignore a group of people that consistently forms a minority.^[220]

6.7 Bearing Palmer’s caution in mind, the Māori seats in Parliament should be retained until such time as Māori decide that they are no longer needed.

6.8 Māori are under-represented in local government. The number of Māori elected to local government remains far lower than their proportion of the population: in the 2007 local government elections less than five per cent of successful candidates were Māori, although Māori form nearly 15 per cent of the population. Many councils have no Māori members at all.^[221]

6.9 In addition, a Māori perspective is often not reflected in the governance of local resources, and those who do govern have limited connection with Māori communities or understanding of Māori aspirations. That is in spite of changes to the legislative framework to provide ways for councils to address the imbalance. Through the Local Electoral Amendment Act 2002 all councils have the option of establishing Māori seats (wards for district and city councils, constituencies for regional councils).

6.10 The legislation followed the establishment of three Māori constituencies for Environment Bay of Plenty Regional Council. Since then, only two more councils have decided to establish Māori seats. Some councils decided against Māori seats; others consulted Māori, who were unsure. Other councils heard a clear Māori voice calling for guaranteed representation at governance level, but were reluctant to change.

6.11 Since 2001, the 13 Environment Bay of Plenty councillors have been elected by voters in four general constituencies and three Māori constituencies, producing ten general constituency councillors and three Māori constituency councilors.^[222] Voters only have one vote and the number of councillors is based on the number of people on the electoral rolls. Voters in the Māori constituencies are those who have opted to be on the Māori electoral roll rather than the general roll.

6.12 A special act of Parliament was required for Bay of Plenty Māori to get the right to vote for regional councillors in their own constituencies. The Bay of Plenty Regional Council (Māori Constituency Empowering) Act was passed in 2001, after an extensive process of public consultation. The Local Electoral Amendment Act 2002 extended the same possibility to other councils, who could resolve to do it by a resolution of the council challengeable by a poll of electors. A number of councils have considered the option since then, but none have taken it up.

6.13 The Royal Commission on Auckland Governance considered Māori representation when making recommendations on the composition of the new Auckland Council.^[223] Its report took note of the electoral arrangements for the Bay of Plenty Regional Council and similar ones that existed briefly for the Auckland Regional Council from 1986 to 1989. It recommended that two Māori members should be elected to the new Auckland Council by voters registered on the parliamentary Māori electoral roll and, in addition, one councillor should be appointed by a Mana Whenua Forum to represent the interests of mana whenua in the region.

6.14 There was widespread public support for this proposal in Auckland, but the Government rejected it, opting instead for the establishment of a statutory Māori Advisory Board. The Royal Commission’s recommendation remains the first occasion since 2001 that a proposal to establish Māori seats has been supported by a government- appointed body.^[224]

6.15 Since the passage of the Local Electoral Amendment Act 2002, all councils have had the option of establishing Māori constituencies or wards on the same basis as Environment Bay of Plenty, by resolution of the council challengeable by a poll of all voters. The Act does not provide for Māori themselves to determine whether they wish to be represented as Māori.^[225]

6.16 In early 2010 the then Race Relations Commissioner (the Commissioner) wrote to councils to survey them on whether they had ever considered establishing Māori seats. A total of 63 out of 83 councils said that they had at some time considered the option. Of those, only fourteen had considered Māori seats alongside a specific consultation process with iwi or Māori organisations. Survey results were discussed at a forum at the New Zealand Diversity Forum in August 2010. At the forum, Councillor Benita Cairns of Wairoa District Council commented that if Māori waited for “goodwill” on the part of local authorities to establish dedicated Māori seats, they would be waiting a long time.

6.17 In October 2010, the Commission published Māori representation in local government: the continuing challenge with commentary about issues raised by councils in their response to the survey. The report included a case study about the success of Māori seats on Environment Bay of Plenty Regional Council, who were at that time the only council to have established Māori seats.

6.18 In March 2011, the Race Relations Commissioner wrote again to councils. He requested that councils consider the option of establishing Māori seats, as provided for under Section 19Z of the Local Electoral Act. In accordance with the Act, council decisions were required before 23 November 2011, in order for any decision to come into effect in time for the 2013 local government election. The Commissioner asked that:

as a first step, the Council engages with local tangata whenua on the issue, in order to ascertain their preferences. It is very easy for discussion of this topic to be about Māori, rather than with Māori, and it is thus particularly important to enable their voice to be heard at the outset.

6.19 Only eight councils replied to the letter. The Commissioner wrote again in July 2011, this time asking for information under the Official Information Act about whether councils would consider establishing Māori seats before the November deadline, He also asked, of councillors on each council, how many are Māori. This time, all councils responded.

6.20 In 2011, perhaps in part due to letters from the Commissioner, 49 councils considered the option of establishing Māori seats. Responses to the Commissioner’s question about considering the option varied hugely, from flat ‘nos’ to ‘nos’ with additional information provided. Additional information included previous consideration of the option; planned consideration in future years; or informal indication from Māori that they did not want council to establish Māori seats. Those who considered the option in 2011 did so with varying degrees of consultation with Māori. For some councils, consideration of the issue was accompanied by public debate, sometimes visceral, via social media websites, sometimes through heated exchange and walk-outs at council meetings. Even where councils did not consider the option, reporting about the Commissioner’s letter drew outraged online postings.

6.21 With support from the local iwi and Mata Waka, Nelson City Council agreed to establish a Māori ward in time for the 2013 election. Nelson City Council was the first unitary council in the country to decide in favour of a Māori ward. The decision was fast-tracked, raising concerns from some about the decision being “railroaded” through Council. However former Te Tai Tonga MP Rahui Katene praised the “foresight and the responsible approach” to the Treaty relationship demonstrated by the Nelson City Council in its decision to create a Māori ward. She said Environment Waikato and Nelson City Council stood out as two institutions in local government prepared to show leadership and make structural change to enable greater power sharing with Māori.^[226] In its press release, ‘Why move now, and why it is important’, Nelson City Council listed reasons for creating a Māori ward:

6.22 Looking at this from a practical viewpoint, the needs of the Council to govern our city requires access to a Treaty of Waitangi partner/Māori point of view to help Councillors make informed decisions on behalf of all the citizens of Nelson. Council is aware that although the Crown is the Treaty partner, an increasing part of the implementation of Treaty settlement falls to mana whenua iwi and local councils.^[227]

6.23 However electors in Nelson disagreed with Rahui Katene, and with the Council. Electors were polled in May 2012. The poll was forced by a petition of more than five per cent of Nelson electors. Mr Kevin Gardiner, who ran the petition calling for a poll, said it had been easy to get signatures because of the willingness of ratepayers to sign the petition. He referred to the proposal to establish a Māori ward as “separatist”. The poll rejected the Council’s proposal to establish a Māori ward, with 12387 votes (79.5%) voting against the proposal and 3192 votes (20.5%) for the proposal.

6.24 Electors in Wairoa were also polled on the establishment of Māori seats on Wairoa District Council in May 2012. The margin was much smaller between voters for and against in Wairoa than in Nelson: 1306 (51.9%) of those who responded voted against the establishment of Māori seats, and 1210 (48.1%) voting for Māori seats. This raises significant concerns about a simple majority of a poll – in this case, fewer than 3 % of voters – deciding the outcome on this issue for the foreseeable future.

6.25 Waikato Regional Council voted in 2011 to establish Māori wards at the 2013 election. It is the second Regional Council to do so. Waikato Regional Council’s decision to establish Māori seats was in part because it wanted to extend the governance arrangements achieved through the Waikato River Treaty settlement. The new governance board for the Waikato River, established through Waikato River Treaty settlement legislation, has 50:50 Crown and Māori membership.

6.26 However, those governance arrangements apply only to the Waikato River. Council wanted to extend Māori representation in the Waikato region, beyond the River and to other hapū and iwi in the region. It voted eight to three in favour of introducing two Māori constituencies for the 2013 election. The decision was foreshadowed in 2006, when the Council elected to reduce its number of elected members from 14 to 12, to allow for two members to be elected from Māori constituencies in future.^[228]

6.27 Waikato Tainui principal negotiator Tukoroirangi Morgan welcomed the establishment of Māori constituencies, as recognition of the place for iwi at the highest level and a sign of maturity. Councillor Livingston voted in favour of Māori constituencies. She said Māori had had no representation on the council for more than 20 years and the time was now ‘absolutely right’ for the seats: ‘Māori make up 20 per cent of the population here and we know what the outcome would be if this went to a poll - people would be completely against the idea.’^[229]

6.28 Recommendations: In light of the recommendations already made regarding the Treaty of the Waitangi (see section 4 above), the Commission has both short-term and long-term recommendations concerning Māori representation.

6.29 In the short-term, the Commission believes that Māori seats in Parliament should be retained until such time as Māori voters decide that they are no longer necessary (to some extent, this is already an ‘unwritten’ constitutional convention as Durie has identified).^[230] At the local level, however, the Commission believes that the government needs to legislate for dedicated Māori representation in local government (as exemplified by the Māori wards of Environment Bay of Plenty). The Commission also supports enhanced representation within the organisational and operational structures of local government (e.g. in standing committees and by means of dedicated staff resources).

6.30 At a minimum, Councils have an obligation to engage with Māori on the option (cf. UNDRIP article 19 which requires states to consult and cooperate in good faith with Indigenous peoples), and to support the Māori view. If a poll is called for, the Council should take leadership in positively supporting the option. As Hon Georgina Te Heuheu said in her speech to Parliament about the Bay of Plenty Regional Council (Māori Constituency Empowering) Bill, “it is no answer, in my view, for the majority to knock down a proposal because of some perceived damage to democracy. After all, that becomes tyranny of the majority over the minority.”^[231]

6.31 In the long-term, the Commission believes that developing a constitution that is substantively founded in the Treaty of Waitangi – as outlined in section 4 – would mean a greatly enhanced governing role for Rangatira and tangata whenua. The establishment of co-existing systems of governance, along with clear processes for power-sharing between them, would ideally mean the existing provisions for Māori representation would no longer be necessary. In keeping with the current constitutional convention, however, the fate of these arrangements should be determined by Māori.

7.1 The Commission believes that the electoral matters identified in the CAP’s Terms of Reference form a sub-set of the broader issue of participation. This section is framed around strengthening the right to participation within Aotearoa New Zealand’s constitutional arrangements.

7.2 Political participation is a central component of international human rights norms.^[232] Article 25 of the ICCPR provides for the right of all citizens to take part in the conduct of public affairs on a non-discriminatory basis without unreasonable restrictions -

7.3 The preparatory notes to the ICCPR provide an indication of the drafters’ intent. The notes indicate that the drafters saw article 25 as consisting of two parts. The first is procedural and requires guarantees that elections will be held regularly, ensuring equality, universal suffrage and a secret ballot. The second is outcome oriented and requires the free expression of the will of the electors.

7.4 The right to participation is reinforced in other international treaties applying to specific population groups such as the Convention on Elimination of All Forms of Discrimination against Women,^[234] the Convention on the Elimination of Forms of Racial Discrimination, the Convention on the Rights of the Child,^[235] the Convention on the Rights of Persons with Disabilities,^[236] and the Declaration on the Rights of Indigenous Peoples.^[237]

7.5 To ensure human rights are reflected in the democratic process people should be treated with respect and as of equal worth (political equality) and should be able to have an influence over public decisions and decision makers (empowerment and popular control). This requires:

7.6 As participation is so central to the human rights approach, the Commission has developed extensive thinking in this area. In its advocacy work, the Commission has identified key participatory principles of representation, access, transparency, accountability, and equality via a range of pieces of work that include:

7.7 In addition, the Commission’s report on the Status of Human Rights in New Zealand 2010 identified a range of priorities that relate to enhanced participation. These include: establishing a fund for civil society participation in human rights mechanisms; e-representation in local govt; establishing a Human Rights Select Committee; developing new pathways to partnership between the Crown and tangata whenua; increasing avenues for children and young people to participate and have their views heard; and developing an integrated response to CRPD.

7.8 Participation is currently provided for in New Zealand’s constitutional arrangements in the following ways:

Table 3: Current provision for participation in Aotearoa New Zealand’s constitutional arrangements

Principle of Participation	Current provision in New Zealand’s constitutional arrangements
Representation	Central and local government elections are held every three years; the Prime Minister has the discretionary power to dissolve Parliament early Entrenched electoral legislation determines frequency of election and provides for free and fair elections, and voting eligibility Māori representation in central government; there is a convention that the fate of Māori seats in Parliament should be determined by Māori; the Māori Electoral Option – which allows Māori to choose whether to be registered on the general or Māori rolls – determines the number of Māori seats in Parliament. There is a mechanism for Māori representation in local government; one Council to date has dedicated Māori representation Proportional representation in Parliament (MMP) and selective use of proportional representation in local government (usually STV) has meant greater representation by women and minority groups (and a larger Parliament). It has also resulted in coalition governments which can provide a ‘brake’ on policy. Entrenched electoral legislation that determines the size of Parliament, size of electorates and the Māori electoral option Right to vote in free and fair elections in BORA by means of equal suffrage (from age 18) and secret ballot
Access	The Official Information Act 1982 gives effect to the right of the public to access official information, and promotes good government and enhancement of respect for the law by enabling more effective public participation in the making and administration of laws and policies, and increasing the accountability of Ministers and officials.^[246] It also applies to local government. The government provides free interpreting via Language Line in 44 languages when accessing public services.^[247]
Transparency	Standing Orders specify that select committee hearings are open to the public.^[248] Select committee consideration of bills allows members of Parliament, interest groups, and the general public to examine and have input into draft legislation before it passes into law.^[249] Sittings of Parliament are open to the public and broadcast on television. Council meetings are also open to the public. The New Zealand court system provides for a process of review and appeal; the highest court is the Supreme Court. New Zealand has consistently scored highly at the top of Transparency International’s index of global corruption perceptions index.^[250]
Accountability	MMP provides for both electorate and party list MPs. Electorate MPs are directly elected from their electorate, while list MPs enter parliament based on the proportion of party votes cast.^[251] There are direct democratic provisions for both government-sponsored and citizens-initiated referenda. The Citizens Initiated Referenda Act 1993 establishes a process that allows persons or organisations to initiate a non-binding national referendum on a subject of their choice, if 10 percent of registered voters sign a petition in support of the question.^[252] Standing Orders provide for select committees to be appointed to consider legislation and other business.^[253] Select committees play an important role in terms of the House's functions of scrutinising the Executive and holding it to account, examining proposed and past expenditure, and considering bills specify that parliamentary processes should be transparent and open to the public. Section 7 of the BORA provides a process for the Attorney-General to vet Bills for inconsistency with the BORA. The Attorney-General reports to Parliament only if the discrimination cannot be justified as a reasonable limit on the particular right or freedom under consideration. Around sixty pieces of legislation make reference to the principles of the Treaty of Waitangi or detail means of applying the Treaty to a particular area. A series of ‘watchdog’ organisations, including the Ombudsmen, Human Rights Commission, and Auditor General scrutinise the performance of government and act on complaints and enquiries from the public.
Equality	The BORA provides for the right to vote by means of equal suffrage (for those over 18). New Zealand has ratified most international instruments developed to ensure equality and non-discrimination. There are Ministers for a variety of population groups (e.g. the Ministers of Māori Affairs, Pacific island Affairs, Women’s Affairs, Disability Issues). The Ministers are supported by ‘population’ ministries or offices who provide advice and carry out policy.

7.9 There are, however, limits on the current provisions for participation, particularly when it comes to good practice. Examples are included in the table below:

Participation principle	Limitations in current provisions (either in terms of constitutional framework or in practice)
Representation	Certain groups are disqualified from voting under section 80 of the Electoral Act. They include some detainees under the Mental Health (Compulsory Assessment and Treatment) Act 1992, and those imprisoned for three years or more. There are also problems in exercising of their secret ballot for some people with disabilities.^[254] Some young people have called for the voting age to be lowered. Voter turnout is declining, particularly among young people and migrant groups. Māori representation in central government is often under political attack. The mechanism for Māori representation in local government is not often used (only one local authority has established Māori seats to date, although there are a wide variety of other mechanisms meant to foster Māori participation in use).^[255] The MMP system is periodically subject to political attack. In 2011, a referendum on whether or not to continue with MMP was held during the general election. A subsequent review of MMP was established in 2012.^[256] There has also been discussion that MMP is not the fairest form of proportional representation. Although MMP has increased the diversity of Parliament, representation by gender, ethnicity and disability does not yet reflect population demographics. Representation of minorities in local governance is still patchy and voter engagement in local elections is low (particularly among some groups)
Access	There have been situations where review and appeal rights have been denied to particular groups e.g. the Foreshore and Seabed Act removed the right of access to justice from Māori;^[257] the proposed Environment Canterbury (ECan) legislation limited access to the Environment Court, following early legislation which suspended elections of ECan councillors;^[258] and the New Zealand Public Health and Disability Amendment Bill passed under urgency in 2013 removed access to justice for parents as caregivers of adult disabled children.^[259] Accessibility of information (particularly in different formats and languages) is patchy and there are also issues with accessibility of elections and other public events.^[260] Information in official and community languages during emergencies (e.g. swine flu threat, fruit-fly threat) can be slow to emerge.^[261] There are patchy policies and practices in place to ensure the full participation of disabled Members of Parliament cf. debates about payment for equipment costs when Mojo Mathers, New Zealand’s first Deaf MP was elected.^[262] There can be a range of barriers to participation for certain groups, including structural discrimination, lack of resources and/or technical expertise, lack of provision for reasonable accommodation and universal design;^[263] changes to legal aid provision; little civic education especially for first time voters; lack of information available in official and community languages. People living in geographically large electorates (e.g in the South Island and in Māori electorates) can face barriers in accessing their elected representatives. Move to e-governance may reinforce the ‘digital divide’ and perpetuate existing inequalities.
Transparency	Parliaments are increasingly using of urgency to pass legislation – most recently in March 2013 with the New Zealand Public Health and Disability Amendment Bill^[264] - and scrutiny of Parliamentary business can be inadequate.^[265] A reliance on Supplementary Order Papers -– which are not subject to section 7 BORA vets – for adding to or altering legislation that the public cannot comment on.^[266] To date, New Zealand is one of the few countries that has not signed up to the Open Government Partnership, an international organisation promoting multilateral initiatives and seeking strong commitments from participating government institutions to promote transparency, increase civic participation, fight corruption, and harness new technologies to make government more open, effective, and accountability. The reasons provided via OIA requests are the cost of compliance and commitment of government resources needed to do so in the current financial climate.^[267]
Accountability	Not all of the international human rights instruments New Zealand has ratified have been incorporated into domestic law (cf. Section 5 on human rights protections above). Section 7 BORA vets are only reported to Parliament in the instance of inconsistency with the BORA.^[268] There is no dedicated human rights select committee in Parliament. Truncated time periods for public participation in the select committee process can occur.^[269] In some cases, the select committee process has been bypassed e.g. for the legislation governing the establishment of the new Auckland council. On occasion, members of the government have been public dismissive of the role of statutory bodies such as the Waitangi Tribunal.^[270] In some instances, human rights and Treaty responsibilities can be abrogated e.g. by delegating authority to local government, or relying on secondary legislation. There are declining rates of voter participation in both central and local elections.
Equality	There is no specific mention of equality in the BORA or the Human Rights Act. The Treaty of Waitangi – which does contain a statement on equality – only has force to the extent provided for in legislation (cf. section 4 and paras 5.28-34 above). Data collection is patchy for some population groups (e.g. by disability or ethnicity) so limited analysis drives policy / legislative development.

7.10 Public participation is an important constitutional check and balance and relates to the CAP’s questions on electoral matters. A UCL study of six unicameral parliamentary systems found that the following factors were key constitutional checks and balances:

7.12 Until recently, the three-year parliamentary term was seen as a significant check on public power in New Zealand, as it required the government to be accountable to the electorate on a more a regular basis than in many other countries. With the addition of other constitutional checks and balances since the 1980s, it is timely to revisit the question of whether to extend the parliamentary term. The table below outlines the reasons for and against extension.

7.13 In the Commission’s view, the electoral cycle should ensure the widest public participation possible. This does not only mean in terms of voter turnout. Another key consideration is ensuring the select committee process has adequate time to conduct its business and hear from the public, and that parliament’s use of urgency is reasonable and limited to exceptional circumstances. Given the increasing use of urgency and occasional bypassing of the committee process, a human rights approach tends to indicate an extended term (four or five years) may be desirable. In line with the human rights approach, however, this question should be put to the electorate, ideally by a referendum that is well-supported by an information campaign that canvasses all the pros and cons.

Reasons for	Reasons against
Greater accountability was introduced in 1980s and 1990s with the Bill of Rights Act and Treaty clauses in legislation, as well as the introduction of MMP. Three-yearly elections may no longer be the best form of accountability to the electorate.	Because New Zealand lacks an upper house and supreme law, regular three-yearly elections are the main means of ensuring accountability to the people.
A 4-year term received a sizeable minority share of the vote in a 1990 referendum (c. 30%). The 1990 referendum mainly focused on changing the electoral system to MMP and is now over 20 years old.^[272]	A 3-year term was the clear preference of majority of people in New Zealand in the 1990 referendum (c. 67%), as well as in an earlier referendum in 1967.
Public polling in 2013 has shown increased support for a switch to a 4-year term. Just over half of those asked in a Herald-DigiPoll survey in March 2013 said they believed the three-year term should stay, while 48 per cent believed it should increase to four years. The Herald-DigiPoll result was closer than a One News Colmar Brunton poll taken in February 2013 which showed 56 per cent supported a change to four years.^[273]	A bare majority still support 3-year term as the preferred option. The two polls have small sample sizes, especially when compared with the early referenda results.
A longer term – 4 or 5 years – would give politicians the chance to act and vote in a more long-term way, without constant concern about the next election campaign. Former Minister of Justice Margaret Wilson has said that a three-year term can be a problem for making good human rights law.	A 3-year term does not necessarily mean short-term policy, for e.g. the tax reforms announced by the Minister of Finance in 2008 were described as the work of 15 years. MMP and a greater need for consensus decision-making has lessened the development of ‘short-term’ policy.
New Zealand is one of only a few democracies to have such a short term. Australia also has three years (Sweden went to four years in the 1990s) and in America the House of Representatives is just two years (compared to the Senate at six and President at four). But all other democracies have either four or five year terms.	The 3-year term is a distinctive feature of New Zealand democracy, and provides a constitutional check in the absence of an upper house, or constitutional courts as exist in other comparable jurisdictions.
A longer term will mean less need to resort to urgency to ensure that parliament’s work can be done.	Urgency is not always used to finish business, but can refer to the urgent need for legislation e.g. the legislation passed in response to the Canterbury earthquakes.
A longer term could create more stability for business, the financial sector and labour markets.	The needs of business, the financial sector and labour markets shouldn’t override important principles of participation and accountability.
At present, leaders of nearly all major parties support extension to 4-year term. While some have called for referendum on the issue, technically Parliament could use the 75% provisions in the electoral legislation to pass this change.	It is unlikely Parliament would opt to do this. If Parliament were to use its powers to make this change without recourse to the people, it would likely prove very unpopular.

7.14 The above reasoning also supports maintaining or increasing the current size of Parliament in order to ensure that it can conduct its business most effectively. As the recent media attention given to nursing mothers in the House has shown,^[274] the size of Parliament could also be better informed by good EEO practice: a greater number of MPs means a more manageable workload, both in terms of attending to the work and attending to other responsibilities.^[275]

7.15 On the question of the fixing of the election date, the Commission thinks that it should be reviewed to ensure that the method used is equitable between the parties and will encourage the greatest level of public participation. The current discretionary power arguably gives a greater advantage to the government.

7.16 Due to the fact that New Zealand hosted the Rugby World Cup in September / October 2011, the last general election date of Saturday 26 November 2011 was publicly announced in February 2011. This ensured that not only the government, but also the opposition, and the wider public, had ample notice of the date and departed from the usual practice of keeping the election date secret until the last possible moment. The early notice of the 2011 election date was well-received by politicians and voters alike.

7.17 Options to provide greater transparency for the date of the election is either to prescribe a semi-fixed date in legislation along with mechanisms for dissolving Parliament in certain circumstances, or consider making the practise of publicly announcing the election date 6-9 months beforehand routine practice.

Size and number of electorates

7.18 According to the Electoral Commission, electorates must have about the same population size. The current practice is that the number of South Island General electorates is fixed at 16 by the Electoral Act 1993. To calculate the number of electorates the Government Statistician:

7.19 The number of Māori and North Island General electorates are rounded to the nearest whole number.

7.20 The results of the Census to be held on 5 March 2013 and the Māori Electoral Option to be held between 25 March and 24 July 2013 will be used by the Government Statistician to calculate the number of Māori and General electorates for the 2014 and 2017 General Elections. The number of electorates will be announced by Statistics New Zealand in early October 2013.

7.21 It is not possible to predict exactly how many electorates there will be as a result of this process, as the last population census and Māori Electoral Option were in 2006. Population change over the last 7 years will be a vital part of the calculation. Although we know there has been some population redistribution because of the Christchurch earthquakes in 2010 and 2011, we will not know how much population change there has been and where people are living in New Zealand until after the 2013 Census.

7.22 The Commission supports the current practice, but is concerned that the late census and the possible de-population of the South Island may cause an aberration in the number of electorates that will be announced later this year. This should be monitored on an ongoing basis.

MPs who leave their parties

7.23 In the Commission’s view, the question of what should happen if an MP leaves or is expelled from the party from which he or she was elected to Parliament is closely linked to the key participatory principles of representation, transparency and accountability. Ultimately, MPs are in Parliament to represent the views of a constituency of voters – whether in an electorate or for a Party’s views – and the differing ways in which they were elected to do this needed to be considered when answering this question.

7.24 Electorate MPs are elected to parliament by the voters of their electorates. While the party they belong to may be a significant factor in the voters’ decision, they nonetheless have a mandate from voters and should be allowed to retain their seats as independents.

7.25 List MPs, on the other hand, are primarily elected to Parliament because of their position on the Party List and do not have an electoral mandate (although it could be argued that a voter gives a party his or her vote because of the candidates on its list). List MPs who leave or are expelled from their Party should be encouraged to either resign or seek public endorsement for their continued presence in Parliament.

7.26 Since 2008, the government has passed over 70 Bills (see Appendix E for full list) through at least one legislative stage under urgency (as noted in the table above). The use of urgency has decreased since 2011 with the introduction of a process by which Parliament can agree to extended sitting hours. Nevertheless, urgency continues to be used in situations which have significant implications for the realisation of human rights.

7.27 Although the use of urgency can arguably be justified for some of the Bills, for others it cannot. Neither the Commission nor the public was able to submit on a number of significant pieces of legislation that had fundamental human rights implications because they were passed under urgency. These included the Environment Canterbury legislation, which was introduced under urgency and forced through three readings in one sitting,^[276] the Canterbury Earthquake Response and Recovery Act 2010,^[277] and the Employment Relations (Film Production Work) Amendment Act 2010.^[278] The New Zealand Public Health and Disability Amendment Act (No 2) is arguably the most stark example of legislation being passed under urgency (see paras 5.21-5.23 for further discussion).

7.28 The Commission recommends that parliamentary democracy in New Zealand be strengthened by limiting the use of urgency to exceptional circumstances and subject to bi-partisan support. It further recommends ensuring greater discipline in limiting the legislative programme to allow for sound parliamentary practice.

7.29 Using the 2006 census data if the current New Zealand Parliament was representative of society there would be eight Pacific MPs; there are five. There would be three Indian MPs; there are two. There would be eight Asian MPs; there are three. There would be one Middle Eastern, Latin American, or African MP; there are none. There would be 18 Maori MPs; there are 22.^[279] In addition there, would be 50 percent women MPs; there are only 33 percent women MPs.

7.30 Women’s representation in politics has remained static at around 32% for the last 5 elections, following an increase from around 20% as a result of the first MMP election in 1999. If this data were extrapolated, it could take at least 60 years before women made up 50% of Parliament if no action was taken to address this gender imbalance.

7.31 Political parties may wish to voluntarily consider the composition of their candidate lists, as the percentage of women making up the five main party caucuses ranges from 25.4% to 57.1%. One option is to select women to stand in safe or winnable seats. Women hold 39% of list seats and only 27% of electoral seats. In the 2011 general election 120 women candidates stood out of a total of 453, or 26.5%. The percentage of women candidates elected was 27.1%.^[280]

7.32 In the Commission’s view, a debate needs to occur on the use of temporary special measures or quotas to improve the number of women MPs in Parliament. It can be argued that quotas for women do not discriminate, but compensate for actual barriers that prevent women from their fair share of the political seats. Women bring different life experiences to the table and have the right as citizens to equal representation.

7.33 Technological innovation and enhanced communication via the internet and social media also have constitutional implications, particularly for public participation. Commentators in this area have explored the possibilities raised by information communication technologies (ICT) for enhancing democratic participation and fostering pluralism.

7.34 One means of more effectively using ICT is in the area of participation: instead of creating a dichotomy between representative democracy and direct democracy (e.g. by referendum), ICT could help foster deliberative participation. According to Kate Stone, deliberative participation enabled by ICT has the potential to change the ways in which citizens deal with information:

Deliberative activities conducted through ICT could facilitate the appropriate management of information, and the efficacious participation of citizens in the decision-making process or long term planning by changing the nature of information exchange between the citizen and the state, and the arrangements of interests in society. Further, through participation in deliberative activities citizens receive the political socialisation to engage in the democratic debate that reconsideration of society’s core values requires.^[281]

7.35 Using the example of wiki creation – Wikipedia is the most well-known example – Stone argues that ICT provides low-cost, two-way communication that is immediate and based on collaboration. The focus then becomes as much about the process as the product.

7.36 The risk of not harnessing ICT to foster participation is a citizenry that is increasingly disengaged from traditional political process, even as they simultaneously engage in political issues via social media.^[282] According to theorist Peter Ferdinand:

a political system which only seeks to engage citizens at predetermined intervals is losing relevance amongst a generation which is ‘accustomed to empowerment, open discussion and immediacy – all antithetical to the disempowerment and myopic discussion of bureaucratic government processes.^[283]

7.37 James Fishkin concurs, arguing for the importance of re-thinking deliberative activities as they ‘galvanise interest in public affairs’. The theorists acknowledge, however, that changing participation via ICT depends on three key factors: access to resources, technical skills, and mobilization.

7.38 There are already some real-world examples of ICT being used to enhance deliberative participation. The UK, for example, has experimented with a Virtual Parliament. This is an online forum in which topical political issues were debated, and the results presented to the ‘real’ Parliament every two weeks. The take-up to date has, however, been limited.^[284] Similarly, in the US, President-elect Obama, while transitioning to office, started the online Citizen’s Briefing Book (CBB) initiative in 2008. People were asked to submit ideas to the President, with the best-rating ones to be collected and put into a briefing book – ‘like the ones the President receives every day from experts and advisors’ – for consideration. Via the CBB, the administration received 44,000 proposals and 1.4 million votes for those proposals. According to journalist Anand Giridharadas, however, the results were somewhat unexpected:

in the middle of two wars and an economic meltdown, the highest-ranking idea was to legalize marijuana, an idea nearly twice as popular as repealing the Bush tax cuts on the wealthy. Legalizing online poker topped the technology ideas, twice as popular as nationwide Wi-Fi. Revoking the Church of Scientology’s tax-exempt status garnered three times more votes than raising funding for childhood cancer.^[285]

7.39 Undeterred, the White House continued to use ICT to canvas public opinion. The Office of Science and Technology Policy hosted an online brainstorm about making government more transparent. Good ideas came, but many had no connection to transparency: some examples included marijuana legalization and debate about the authenticity of President Obama’s birth certificate.

7.40 Giridharadas sums up the debate about the efficacy of using ICT to enhance public participation:

There is a lively debate in progress about what some call Gov 2.0. One camp sees in the Internet an unprecedented opportunity to bring back Athenian-style direct democracy....

Another camp sees the Internet less rosily. Its members tend to be enthusiastic about the Web and enthusiastic about civic participation; they are skeptical of the Internet as a panacea for politics. They worry that it creates a falsely reassuring illusion of equality, openness, universality....

Because it is so easy to filter one’s reading online, extreme views dominate the discussion. Moderates are underrepresented, so citizens seeking better health care may seem less numerous than poker fans. The Internet’s image of openness and equality belies its inequities of race, geography and age.

Lies spread like wildfire on the Web; Eric Schmidt, the chief executive of Google, no Luddite, warned last October that if the great brands of trusted journalism died, the Internet would become a “cesspool” of bad information. ... Perhaps most menacingly, the Internet’s openness allows well-organized groups to simulate support, to “capture and impersonate the public voice.’^[286]

7.41 Despite the limitations experienced in these two examples, it is clear that ICT will play a continuing and increasingly important role in ensuring people’s participation in public affairs. Because of this, its use has constitutional implications. For this current review, the Commission thinks that, at a minimum, the government should explore effective means of enhancing deliberative democracy via ICT.

7.42 The Commission further notes that since the launch of the Open Government Partnership in 2011, over 50 governments have come together with civil society and the private sector to further promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance and support the implementation of multilateral commitments. New Zealand is notably absent from this initiative. The Commission therefore recommends that New Zealand commit to open, transparent and participatory governance and actively engage with the Open Government Partnership.

7.43 Closely related to the question of greater use of ICT to enhance participation is that of civic education. A closer look at New Zealand’s declining voter turnout shows that youth and migrants are generally not participating as much as the rest of the population. In 2011 only 77 percent of eligible voters aged 18-24 were enrolled to vote, down from 82 percent at the previous election.

7.44 Anecdotal evidence from Canada, the United States and Australia suggests that civic education has a positive impact on key factors associated with voter turnout, such as political knowledge, interest, attitudes, civic participation and intent to vote. Voters must understand their rights and responsibilities, and must be sufficiently knowledgeable and well informed to cast ballots that are legally valid and to participate meaningfully in the voting process. The United Nations Centre for Human Rights has stated:

Funding and administration should be provided for objective, non-partisan voter education and information campaigns. Such civic education is especially critical for populations with little or no experience with democratic elections. The public should be well informed as to where, when and how to vote, as well as to why voting is important. They must be confident in the integrity of the process and in their right to participate in it.^[287]

7.45 Following a report by the Advisory Group on Citizenship, Britain adopted citizenship education into their national curriculum in 2002. The Advisory group unanimously concluded that “citizenship education and the teaching of democracy... is so important both for schools and the life of the nation that there must be a statutory requirement on schools to ensure that it is part of the entitlement of all pupils.”^[288]

7.46 Civic and election education is particularly important for first time voters. Statistics from the 2011 election suggest that where people do not engage early in the election process they are likely to remain disengaged. In 2011 only 85 percent of voters in the 25-29 age bracket were enrolled to vote, down from 93 percent in 2008.

7.47 Recommendations: Many of the limitations identified in the sections above refer to shortcomings in the practice of government, rather than limitations in New Zealand’s current constitutional framework per se. The BORA, for example, gives New Zealanders the right to vote by secret ballot, but some disabled people are, in practice, not able to fully exercise this right. The limitations in the constitutional framework could be remedied by the following proposals:

7.48 The Commission also recommends enhanced increased civic education for all New Zealanders, particularly those in compulsory education, to increase awareness of constitutional matters with a particular focus on addressing barriers to participation for disenfranchised groups (e.g. young people, migrant groups).

8.1 At the Diversity Forum session on the constitutional review in August 2012, one of the speakers, Reverend Uesifili Unasa of the Auckland Pacific Advisory Board, raised concerns about the apparent lack of attention to Pacific issues in the review’s Terms of Reference. The Commission acknowledges that the CAP has since worked to address that gap, and has engaged with a number of Pacific community groups throughout the country, in conjunction with the Auckland Pacific Advisory Board and the Ministry of Pacific Island Affairs. The Commission is supportive of this engagement, and Commission staff have attended a number of these events.

8.2 In this section, we explore the position of the Pacific Realm countries in New Zealand’s constitutional arrangements. We draw particularly on the Pacific Peoples Constitutional Report and on feedback from Commission engagements with members of the Pacific Realm Group.^[290] The Commission sees the current review as an opportunity to clarify and recognise New Zealand’s constitutional obligations in respect of the Pacific realm countries and their citizens.

The position of the Pacific Realm countries in New Zealand’s constitutional arrangements.

8.3 The standard constitutional position of the Pacific Realm countries can be summarised as follows:

8.4 In 2000, the Ministry of Justice released a report – commissioned by the Ministry of Pacific Island Affairs – to clarify New Zealand’s responsibilities towards six Pacific countries, including the three Realm countries (the other three being Samoa, Fiji and Tonga). The Pacific Peoples’ Constitutional Report (PPCR) emphasised that New Zealand has a special relationship with Pacific people due to: historical relationships (many fostered by New Zealand’s early colonial aspirations); high proportions of Pacific peoples in New Zealand (including nearly all of the population of some Pacific nations); geographical proximity; and constitutional links (particularly in the case of the Cook Islands, Niue, Tokelau,and Samoa).

This is not a hard core legal obligation, but rather part of the Government's responsibility to act reasonably and appropriately towards the individuals and groups whom it governs, recognising that Pacific people are a significant group in this respect.^[291]

8.6 In Human Rights in New Zealand 2010, the Commission outlined the constitutional links between Aotearoa New Zealand and Pacific Realm countries, as well as exploring its responsibilities to the wider Pacific:

New Zealand is also a Pacific nation with responsibilities to the wider Pacific. These historical connections are becoming increasingly urgent as climate change impacts on low-lying Pacific islands such as Kiribati and Tuvalu. If the land on which these Indigenous peoples live disappears, what will happen to their cultures, languages and identities?^[292]

8.7 Increasingly pressing environmental concerns raise constitutional questions for New Zealand and the nature of its responsibilities towards its Pacific neighbours. The PPCR similarly noted that ‘the history of New Zealand's engagement in the South Pacific has created at least a moral obligation to support the island nations of the region in the preservation of their cultures.’^[293]

8.8 The key constitutional concerns expressed by the Pacific Realm Group (PRG) are related to identity, status and access.^[294] Given that the people of Tokelau, Cook Islands and Niue are New Zealand citizens by birth in their home islands and in New Zealand, the PRG has questioned why the current constitutional review has not taken into account the views of those island nations, nor considered the implications of a written constitution for Niue, Tokelau and the Cook Islands.

8.9 The PRG are also concerned about the ambiguous nature of the Realm of New Zealand in theory and practice, and of its people’s identity and status within New Zealand. As evidence of this ambiguity, the PRG point out that:

When New Zealand [is] used as a territorial description, [it] means the islands and territories within the Realm of New Zealand; but does not include the self-governing State of the Cook Islands, the self-governing State of Niue, Tokelau, or the Ross Dependency. By contrast, the Governor General’s definition states ‘New Zealand is an independent sovereign nation. Because we are a monarchy, our country is styled a "Realm". The Realm of New Zealand comprises New Zealand, Tokelau and the Ross Dependency, and the self-governing states of the Cook Islands and Niue.^[295]

8.10 The PRG further noted the absence of representation for the Realm countries on the CAP itself, and the absence of consultation with them.

8.12 The PRG does recognise the status of the Treaty of Waitangi as a founding document for New Zealand, but notes that there is no similar recognition of the Indigenous status of Cook Island, Tokelau and Niue citizens within the Realm of New Zealand. This has significant impacts on their respective Indigenous identities, cultures and heritage.

8.13 We note that the PPCR affirmed the equal constitutional status of New Zealand citizens of Pacific origin. The report did, however, note that formal equality does not always translate into equal outcomes:

The constitutional status of New Zealand citizens of Pacific Island origin is one shared with all New Zealand citizens of whatever origin, and will entitle all citizens to the same rights and obligations.

Formal legal equality does not always translate into equal enjoyment of social benefits such as health, education, or housing. Where serious and persistent imbalances in the enjoyment of such benefits by minority groups as compared to the wider society can be demonstrated, domestic law as well as international norms and practice permits Government to consider community-specific initiatives aimed at progressively reducing the gaps.^[296]

8.14 In June 2012 hundreds of people participated in a march through downtown Auckland organised by Advance Pasifika to highlight the issues facing Pacific communities in housing, employment, education and health.^[297] The PRG similarly raised the issue of New Zealand’s responsibilities in this area, commenting:

[there is] a lack of recognition by the New Zealand State that Tokelauans, Cook Islanders and Niueans by definition are New Zealand citizens and as such New Zealand has some legal obligations to their well-being in New Zealand and in their island nations.^[298]

8.15 The realisation and protection of economic, social and cultural rights are a pressing concern for Pacific communities. See section 5 for the Commission’s recommendations concerning greater protection for these rights.

8.16 Recommendation: The Commission recommends that New Zealand’s constitutional obligations in respect of the Pacific Realm countries and citizens be clarified and formally recognised. In addition, we recommend the need for a continued constitutional conversation on these matters with representatives from the Pacific Realm countries living in New Zealand, and in consultation with the Pacific Realm countries themselves. Such a consultation could focus on both the civil and political rights of Pacific Realm citizens within New Zealand, and enhance protection for their economic, social and cultural rights.

9.1 One of the key messages that emerged from the Commission’s ‘Tell Us Your Dream’ campaign was the importance of cultural diversity and multiculturalism to the future of Aotearoa New Zealand (see separate Tell Us Your Dream document , especially section 2, pp 6-20). The Commission notes that the CAP’s Terms of Reference do not make particular reference to this as a main area of concern for the review. Nonetheless, given the Commission’s mandate on race relations, we wish to raise it as an important constitutional principle.

9.2 In Human Rights in New Zealand 2010, the Commission noted that the Treaty of Waitangi established a basis for multiculturalism as well as biculturalism:

The Preamble to the Treaty enabled the first non-Māori people – immigrants ‘from Europe and Australia’ – to settle in New Zealand. In doing so, it set the stage for further waves of immigrants from around the world. While the Treaty established a bicultural foundation for New Zealand – which has still to be fully realised – it simultaneously established a basis for multiculturalism. Given the Crown’s responsibilities under Article 1 to govern and make laws for all New Zealanders, this could include the establishment of multicultural policies.

It is vitally important to the future of New Zealand that all groups in the community engage with the Treaty. The New Zealand Federation of Multicultural Councils has, for example, made a clear commitment to uphold the Treaty of Waitangi and “to raise the consciousness among ethnic communities of the needs, aspirations and status of Māori”.^[299]

9.3 New Zealand’s changing demographics are projected to greatly increase ethnic diversity over the next fifty years.^[300] Any significant constitutional change, particularly if a written constitution is considered to be desirable, will need to take account of this and provide for the protection and recognition of pluralism and cultural diversity.

9.4 Recommendation: The Commission recommends, as part of a longer constitutional conversation, a dedicated programme of engagement with ethnic communities for their views on New Zealand’s constitutional arrangements.

10.1 At present, the Commission does not have a firm position on whether or not New Zealand should move to a written, codified constitution. The two areas of our constitutional arrangements that we think need most attention – the role of the Treaty and strengthened human rights protections – could be enhanced without necessarily moving to a codified constitution. Alternatively, a codified constitution could provide a defined and coherent means of achieving both ends.

10.2 In this section, we provide a brief analysis of the pros and cons of a written constitution from the point of view of strengthening these two areas.

10.3 In the future, once the Treaty is better recognised and human rights protections strengthened in New Zealand’s constitutional arrangements, the Commission thinks that a written codified constitution setting out the agreed rules, values, institutions and practices would be desirable. This decision should, however, be made to the mutual satisfaction of the Treaty partners.

The aspirations of the Human Rights Commission are to strengthen human rights protections and increase recognition of the Treaty of Waitangi in our constitutional arrangements. These aspirations derive from both from the Commission’s statutory mandate and the human rights approach. It is also in line with the most recent recommendations made by UN Treaty bodies and special procedures when reviewing New Zealand’s performance.

The key aspirations identified through the Tell Us Your Dream community engagements we conducted in 2013 are related to race relations, government, living in New Zealand, law and order and education.

The Commission received 1357 responses to its Tell Us Your Dream campaign for Race Relations Day. Participants were asked for their conclusion to the statement ‘My Dream for Aotearoa / New Zealand is ...’ –. The responses were sorted into 16 broad categories determined by the content of the responses themselves. They are listed below in descending order from the highest to the lowest number of responses.

For a full analysis of this campaign and related activities see the separate document annexed to this submission, Tell Us Your Dream: Analysis of community engagement for the constitutional review.

The Treaty of Waitangi is positioned as the foundational document of Aotearoa New Zealand and constitutional arrangements flow from it (see section 4 of this submission for further detail). The rights of all people in Aotearoa New Zealand are safeguarded by strengthened human rights protections extending to the full range of civil, political, economic, social and cultural rights in an entrenched Bill of Rights Act (see section 5 of this submission for further detail).

The Treaty of Waitangi should be substantively positioned as Aotearoa New Zealand’s founding document, and all constitutional arrangements should flow from it (see section 4 for further detail). This means that that all rules, values, practise and institutions should be Treaty-based and a long-term process to establish a Treaty-based constitution should be developed between the Treaty partners. In the interim, greater protections for the Treaty are required.

Yes, because it is New Zealand’s founding document. In the short-term, this could be by means of enhanced protection agreed by the Treaty partners e.g. enacting a Treaty of Waitangi Act that put both texts of the Treaty into law (see also other options listed in para 4.94). In the long-term, this should be in the form of co-governing rules, values, practices and institutions agreed by the Treaty partners to their mutual satisfaction (see section 4 for further detail).

No, because it does not include the full range of the civil, political, economic, social and cultural rights, and it has no greater protection than any other piece of ordinary legislation. The government can and has passed legislation to override rights affirmed by the Courts, as for example with the passage by urgency of the Public Health and Disability Amendment Act 2013.

Incorporation of remaining rights in the International Covenant on Civil and Political Rights (ICCPR) into domestic legislation, including specific statutory recognition of property rights. Specific wording to address the right to property and the Treaty of Waitangi and indigenous rights (including over natural resources such as water) should be negotiated between the Crown and tangata whenua.

Explicit statutory recognition of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and adding an equality provision to the BORA.

Ratification of the Optional Protocols to ICESCR, and the Convention on the Rights of Persons with Disabilities, as well as adopting the Article 14 complaints procedure for the Convention on the Elimination of Racial Discrimination.

An express remedies provision should be included in the BORA. This should include provision for low-cost options such as alternative dispute resolution as well as Court action.

Greater oversight of human rights compliance, including the establishment of a human rights select committee in Parliament, improving the section 7 process by which the Attorney-General vets legislation, addressing the conflict of interest in the Attorney-General’s role as a member of the government and guardian of human rights, formal tabling of all concluding observations from UN treaty bodies in Parliament, and strengthening Cabinet Manual requirements for human rights oversight.

Yes. The Commission believes that the BORA should be entrenched. This would make it more difficult to alter than ordinary legislation and would strengthen rights protections for all people who live in New Zealand.

In the long-term, once the Treaty is better recognised and human rights protections strengthened in New Zealand’s constitutional arrangements, the Commission thinks that an entrenched and supreme codified constitution setting out the agreed rules, values, institutions and practices would be desirable (and if desired by both Treaty partners).

Both. A human rights select committee, a more rigorous scrutinising process by the Attorney-General, and greater attention to human rights issues in the policy development process would mean both Parliament and the Executive would have enhanced powers to decide whether legislation is consistent with the Act. Ideally, this should mean that legislation is more human rights compliant by the time it passes its third reading.

The Courts should, however, have enhanced powers to make declarations of inconsistency and provide remedies in the event of human rights breaches (see section 5 above for further detail).

The Act should provide for the domestic expression of all the rights contained in the international human rights conventions to which New Zealand is a signatory. This means that it would need to incorporate the remaining rights from the ICCPR – specifically rights to property, privacy and equality – and the rights contained in ICESCR.

The Commission’s answers to these questions should be read in conjunction with its recommendations concerning the Treaty of Waitangi (see section 4 of this submission). The answers to the questions below assume a similar set of constitutional institutions to the status quo. In the event of a decision to move to a Treaty-based constitution, the means by which Māori would be represented in government would need to be reviewed.

At minimum, by retention of the existing Māori electoral roll and dedicated Māori electorates. These should be retained until such time as Māori themselves decide that they are no longer necessary (see section 6 of this submission).

By undertaking a fundamental review of the country’s constitutional arrangements with the aim of better reflecting the Treaty partnership, ideally via the scenario outlined in the Commission’s recommendation on the Treaty (see section 4 of this submission).

Assuming the retention of the status quo, the Commission believes that Māori views and perspectives are best represented by the establishment of dedicated Māori wards, as is currently the case for Environment Bay of Plenty. The government should legislate for councils to do this, as most have proved unwilling to seriously consider this option in the past (see the Commission’s 2010 paper Māori Representation in Local Government: the Continuing Challenge / He Kanohi Māori Kei Roto i te Kawanatanga-ā-Rohe: te taki Moroki for further detail). Enhanced representation should be supported internally by both standing committees dedicated to Treaty and/or indigenous issues, and operational structures to implement Council decisions and policy.

At present, the Commission does not have a firm position on whether or not New Zealand should move to a written, codified constitution. The two areas of our constitutional arrangements that we think need most attention – the role of the Treaty and strengthened human rights protections – could be enhanced without necessarily moving to a codified constitution. Alternatively, a codified constitution could provide a defined and coherent means of achieving both ends.

In the future, once the Treaty is better recognised and human rights protections strengthened in New Zealand’s constitutional arrangements, the Commission thinks that a written codified constitution setting out the agreed rules, values, institutions and practices would be desirable, providing both Treaty partners agree to it.

Yes. In order to provide better protection for the rights of those who live in New Zealand and to increase recognition of the Treaty of Waitangi.

The conventional wisdom is that Parliament has the right to legislate on any matter it chooses and as a matter of principle the courts should not interfere with that process. Parliament makes the laws and the Courts interpret and apply them.

The evolution and influence of international human rights over the past two decades has, however, led to a reappraisal of Parliamentary sovereignty through interpretation by the judiciary. Unless explicitly stated to the contrary, the Courts will interpret legislation in a way that is consistent with fundamental rights.
The Courts clearly fulfil a necessary role in moderating Parliament. While both are essential to a functioning democracy, the relationship is constantly mutating and changing and the Courts can be expected to take a more interventionist role in future particularly if an entrenched Constitution is enacted.

In line with the human rights approach, which emphasises empowerment, participation and accountability, the Commission believes that these questions are best determined by the electorate. We also answer these questions on the assumption of the retention of the status quo, and our answers should be read in context with the section on the Treaty of Waitangi.

Either the same or increased so Parliament is able to conduct its business in an efficient but robust manner, without unduly resorting to the use of urgency which may result in the passing of legislation that is not human rights compliant.

In the Commission’s view, the electoral cycle should ensure the widest public participation possible. This does not only mean in terms of voter turnout. Another key consideration is ensuring the select committee process has adequate time to conduct its business and hear from the public, and that parliament’s use of urgency is reasonable and limited to exceptional circumstances. Given the increasing use of urgency and occasional bypassing of the committee process, a human rights approach tends to indicate an extended term (four or five years) may be desirable. In line with the human rights approach, however, this question should be put to the electorate, ideally by a referendum that is well-supported by an information campaign that canvasses all the pros and cons.

On the question of the fixing of the election date, the Commission thinks that it should be reviewed to ensure that the method used is equitable between the parties and will encourage the greatest level of public participation. The current discretionary power arguably gives a greater advantage to the government.

Options to provide greater transparency for the date of the election are either to prescribe a semi-fixed date in legislation along with mechanisms for dissolving Parliament in certain circumstances, or consider making the practise of publicly announcing the election date 6-9 months beforehand routine practice (as for the 2011 general election).

The Commission supports the current practice for determining the size and number of electorates, but is concerned that the late census and the possible de-population of the South Island may cause an aberration in the number of electorates that will be announced later this year. This should be monitored on an ongoing basis.

MPs are in Parliament to represent the views of a constituency of voters – whether in an electorate or for a Party’s views – and the differing ways in which they were elected to do this needed to be considered.

Electorate MPs are elected to parliament by the voters of their electorates. While the party they belong to may be a significant factor in the voters’ decision, they nonetheless have a mandate from voters and should be allowed to retain their seats as independents.

List MPs, on the other hand, are primarily elected to Parliament because of their position on the Party List and do not have an electoral mandate (although it could be argued that a voter gives a party his or her vote because of the candidates on its list). List MPs who leave or are expelled from their Party should be encouraged to either resign or seek public endorsement for their continued presence in Parliament.

UN Treaty Body and Special Procedures Comments and Recommendations to New Zealand on Constitutional Matters 2006-2013

Date	UN Body	Recommendations or Comment
1 March 2013	Committee for the Elimination of Racial Discrimination (CERD) Concluding Observations	Treaty of Waitangi 7. The Committee recalls its previous concluding observations (CERD/C/NZL/CO/17, para. 13) and notes with regret that the Treaty of Waitangi is not a formal part of domestic law even though the State party considers it the founding document of the nation. The Committee also notes that the decisions rendered by the Waitangi Tribunal are not binding. The Committee notes that a constitutional review is underway and an independent Constitutional Advisory Panel has been appointed that will consider a wide range of issues including the role of the Treaty of Waitangi within the State party’s constitutional arrangements (art. 2 and 5). The Committee recalls its previous recommendation (CERD/C/NZL/CO/17, para. 13), and urges the State party to ensure that public discussions and consultations are held on the status of the Treaty of Waitangi within the context of the on-going constitutional review process. In particular, the Committee recommends that public discussions and consultations should, inter alia, focus on whether the Treaty of Waitangi should be entrenched as a constitutional norm. The Committee further recommends that the State party consider adopting the recommendation by the Special Rapporteur on Indigenous Peoples that any departure from the decisions of the Waitangi Tribunal should be accompanied by a written justification by the government. Ratification of other treaties 22. Bearing in mind the indivisibility of all human rights, the Committee encourages the State party to consider ratifying international human rights treaties which it has not yet ratified, in particular treaties with provisions that have a direct relevance to communities that may be the subject of racial discrimination, such as the International Convention on the Protection of the Rights of All Migrant Workers and Members of of Their Families and the ILO Convention No. 169 on Indigenous and Tribal Peoples, 1989. ... Declaration to article 14 of the Convention 24. The Committee notes that the State party has not made the optional declaration provided for in article 14 of the Convention. It further notes the statement by the delegation that the State party intends to consider making such a Declaration at a stage when this will coincide with the next review of the State party under the Universal Periodic Review of the Human Rights Council. The Committee, however, invites the State party to make the declaration as soon as possible.
27 July 2012	CEDAW Concluding Observations	Definition of gender discrimination and gender equality 10. Recalling its previous recommendation (CEDAW/C/NZL/CO/6), the Committee remains concerned that there is still no explicit and comprehensive prohibition against direct and indirect discrimination against women within the State party’s constitution or legislation in accordance with article 1 of the Convention. The Committee is concerned that sufficient protection against direct and indirect discrimination by private actors regarding equal pay for work of equal value is not provided for by law. 11. The Committee recommends that, in the context of the current constitutional review, the State party ensure full incorporation into the constitution and/or other legislation, of the principle of equality between women and men in accordance with article 2(a) of the Convention. The State party is urged to establish a legal definition of discrimination on the basis of sex in line with article 1 of the Convention, and to extend state responsibility for acts of discrimination by both public and private actors in accordance with article 2(e) of the convention, with a view to achieving formal and substantive equality between women and men. ... 42. The Committee notes that the adherence of the State party to the nine major international human rights instruments1 would enhance the enjoyment by women of their human rights and fundamental freedoms in all aspects of life. The Committee therefore encourages the State party to consider ratifying the treaties to which it is not yet a party, i.e. the International Convention for the Protection of All Persons from Enforced Disappearance and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.
18 May 2012	Committee on Economic, Social and Cultural Rights (CESCR) Concluding Observations	9. In view of the State party’s dualist regime, the Committee is concerned that, notwithstanding existing legislation providing for some elements of economic, social and cultural rights, the provisions of the Covenant have not been fully incorporated into the domestic legal order. (art. 2(1)) The Committee urges the State party to take the necessary measures, in the context of the on-going constitutional review process, to give the Covenant full effect in its domestic legal order. The Committee also calls on the State party to ensure that redress for violations of the Covenant rights can be sought through the State party’s varied recourse mechanisms. The Committee requests that the State party provide in its next periodic report information on court cases where the provisions of Covenant have not only been invoked but also applied. 10. The Committee is concerned that economic, social and cultural rights are not recognized in the Bill of Rights adopted by the State party in 1990. Moreover, the Committee is concerned that the legislative and policy-making processes do not allow for a review of the compatibility of draft laws, regulations and policies with the rights enshrined in the Covenant. (art. 2(1)) The Committee urges the State party to incorporate economic, social and cultural rights into the 1990 Bill of Rights. The Committee also calls upon the State party to take steps so that the competent authorities review draft laws, regulations and policies to ensure their compatibility with the provisions of the Covenant. The Committee recommends that the State party make additional efforts to raise awareness of economic, social and cultural rights among parliamentarians and policy-makers. 11. The Committee is concerned that the State party does not give sufficient protection of the inalienable rights of indigenous people to their lands, territories, waters and maritime areas, and other resources, as manifested by the fact that Māori’s free, prior and informed consent on the use and exploitation of these resources has not always been respected. (arts. 1(2), 15) The Committee calls on the State party to ensure that the inalienable rights of Māori to their lands, territories, waters and marine areas and other resources as well as the respect of the free, prior and informed consent of Māori on any decisions affecting their use are firmly incorporated in the State party’s legislation and duly implemented. The Committee also urges the State party to take the necessary measures to guarantee Māori’s right to redress for violations of these rights, including through the implementation of the recommendations of Waitangi Tribunal’s proceedings, and to ensure that Māori receive proper compensation and enjoy tangible benefits from the exploitation of their resources. 30. The Committee recommends that the State party adopt such legislative measures so as to enable it to withdraw its reservation to article 8 of the Covenant. 31. The Committee encourages the State party to ratify the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. 32. The Committee encourages the State party to consider signing and ratifying the Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, the International Convention for the Protection of all Persons from Enforced Disappearance, the Optional Protocol to the Convention on the Rights of Persons with Disabilities, and the Optional Protocol to the Convention on the Rights of the Child on a communications procedure.
11 April 2011	Committee on the Rights of the Child (CRC) Concluding Observations	8. The Committee notes efforts taken towards removing obstacles to the withdrawal of the State’s general reservation and its specific reservations with regard to articles 32, paragraph 2, and 37 (c). Nevertheless, it deeply regrets that this work has not yet resulted in the withdrawal of the reservations. The Committee also regrets that no progress has been made so far regarding the application of the Convention to Tokelau. 9. The Committee reiterates its previous recommendations and urges the State party: (a) To withdraw its general reservation and its reservations to articles 32, paragraph 2, and 37 (c); (b) To extend the application of the Convention to the territory of Tokelau. 10. The Committee notes with concern that in spite of recent legislative developments in the field of child rights, the harmonization of national law with the Convention and its Optional Protocols is not completed (for example, in the area of adoption legislation) and that not all domestic laws affecting children are harmonized even among themselves. ... 11. The Committee urges the State party: (a) To ensure that all existing domestic legislation relating to children is consistent and is brought into compliance with the Convention and that it supersedes any existing customary law, including Maori customary law; (b) To ensure that the principles and provisions of the Convention and its Optional Protocols are applicable to all children in the territory of the State party; ... 59. The Committee recommends that the State party swiftly proceed with the ratification of the Optional Protocol on the sale of children, child prostitution and child pornography. 60. The Committee encourages the State party to consider ratifying the international human rights instruments to which it is not yet party, namely, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the International Convention for the Protection of All Persons from Enforced Disappearance, the Optional Protocol to the Convention on the Rights of Persons with Disabilities and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.
17 February 2011	Report of UN Special Rapporteur on Indigenous Rights James Anaya	72. Any decision by the Government to act against the recommendations of the Waitangi Tribunal in a particular case should be accompanied by a written justification and in accordance with the principles of the Treaty of Waitangi and international human rights standards. 75 ... consideration should be given to the formation of an independent and impartial commission or tribunal that would be available to review Treaty settlements 77. The principles enshrined in the Treaty of Waitangi and related internationally-protected human rights should be provided security within the domestic legal system of New Zealand so that these rights are not vulnerable to political discretion. At a minimum, the development of safeguards similar to those under the Bill of Rights Act would be important in the context of the Treaty of Waitangi. The Special Rapporteur encourages the Government to open up discussions with Māori as soon as possible regarding the constitutional review process.
7 April 2010	Human Rights Committee (Convention on Civil and Political Rights CCPR) Concluding Observations	7. The Committee reiterates its concern that the Bill of Rights Act 1990 (BORA) does not reflect all Covenant rights. It also remains concerned that the Bill of Rights does not take precedence over ordinary law, despite the 2002 recommendation of the Committee in this regard. Furthermore, it remains concerned that laws adversely affecting the protection of human rights have been enacted in the State party, notwithstanding that they have been acknowledged by the Attorney-General as being inconsistent with the BORA. (art. 2) The State party should enact legislation giving full effect to all Covenant rights and provide victims with access to effective remedies within the domestic legal system. It should also strengthen the current mechanisms to ensure compatibility of domestic law with the Covenant. ... 20. The Committee welcomes the initiative of the State party for constitutional reform which also aims at giving greater effect to the Treaty of Waitangi. It notes, however, that the Treaty is currently not a formal part of domestic law, which makes it difficult for Māori to invoke it before the courts. The Committee also welcomes the efforts of the State party to settle historical Treaty claims, but is concerned at reports that in one particular case, the State party put an end to consultations despite the claim of some Māori groups that the settlements did not adequately reflect original tribal ownership. (arts. 2, 26 and 27) The State party should continue its efforts to review the status of the Treaty of Waitangi within the domestic legal system, including the desirability to incorporate it into domestic law, in consultation with all Māori groups. Furthermore, the State party should ensure that the views expressed by different Māori groups during consultations in the context of the historical Treaty claims settlement process are duly taken into account.
7 May 2009	Universal Periodic Review of New Zealand Conclusions and Recommendations	1, 2. Ratify / Consider the possibility of signing and ratifying the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 3. Accelerate the ratification of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography; 4. Ratify the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights 5, 6, 7. Ratify International Labour Organization (ILO) fundamental conventions and in particular the Indigenous and Tribal Peoples Convention No. 169 12. Consider accepting the individual complaint procedure under article 14 of the International Convention on the Elimination of all Forms of Racial Discrimination 15. Further incorporate, as appropriate, its international human rights obligations into domestic law 16. Ensure that the Bill of Rights Act appropriately reflects all of New Zealand’s international human rights obligations and that all subsequent legal provisions, including immigration laws, are in accordance with it and cannot limit its scope 17. Consider integrating the provisions of the International Covenant on Economic, Social and Cultural Rights into domestic legislation to ensure the justiciability of these rights 18. Take appropriate measures to bring domestic law into full compliance with the International Covenant on Civil and Political Rights 19. Take further measures to ensure full and consistent protection of human rights in domestic law and policies, taking into account recommendations made by several United Nations human rights bodies in this regard 20. In line with the concern expressed by a number of treaty bodies, take action to provide constitutional protection to both national and international human rights acts and standards 21. Continue the public discussion over the status of the Treaty of Waitangi, with a view to its possible entrenchment as a constitutional norm ... 29. Continue to address all forms of political, economic and social discrimination against the Māori by meeting their various demands for constitutional and legal reforms and recognition
4 June 2009	Committee Against Torture(CAT) Concluding Observations	Incorporation of the Convention in national legislation 4. While appreciating the steps the State party has taken to bring its domestic laws into compliance with its obligations under the Convention, the Committee is concerned that the Convention has not been fully incorporated into domestic law. The Committee notes with concern that the New Zealand Bill of Rights, while giving effect to a number of provisions of the Convention, including article 2, has no higher status than ordinary legislation in the domestic legal order, which may result in the enactment of laws that are incompatible with the Convention. The Committee further notes that judicial decisions make little reference to international human rights instruments, including the Convention. (art.2) The State party should: (a) Enact comprehensive legislation to incorporate into domestic law all the provisions of the Convention; (b) Establish a mechanism to consistently ensure the compatibility of domestic law with the Convention; and (c) Organize training programmes for the judiciary ... 19. The Committee invites the State party to ratify the core United Nations human rights treaties to which it is not yet a party, namely the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the International Convention for the Protection of All Persons from Enforced Disappearance.
15 August 2007	CERD Concluding Observations	13.The Committee notes that the Treaty of Waitangi is not a formal part of domestic law unless incorporated into legislation, making it difficult for Maori to invoke its provisions before courts and in negotiations with the Crown. It welcomes, however, the holding of a public discussion on the status of the Treaty and the efforts to enhance Crown-Maori relationships. The Committee remains concerned that other steps such as those described in paragraphs below tend to diminish the importance and relevance of the Treaty and to create a context unfavourable to the rights of Maori (arts. 2 and 5). The Committee encourages the State party to continue the public discussion over the status of the Treaty of Waitangi, with a view to its possible entrenchment as a constitutional norm. The State party should ensure that such debate is conducted on the basis of a full presentation of all aspects of the matter, bearing in mind the importance of enhancing Crown-Maori relationship at all levels and the enjoyment by indigenous peoples of their rights. 14. The Committee notes with concern the proposal to remove statutory references to the Treaty of Waitangi through the Principles of the Treaty of Waitangi Deletion Bill (2006). It welcomes, however, the undertaking by the State party not to support the progress of that Bill any further (arts. 2 and 5). The State party should ensure that the Treaty of Waitangi is incorporated into domestic legislation where relevant, in a manner consistent with the letter and the spirit of that Treaty. It should also ensure that the way the Treaty is incorporated, in particular regarding the description of the Crown’s obligations, enables a better implementation of the Treaty. 18. The Committee notes with concern that recommendations made by the Waitangi Tribunal are generally not binding, and that only a small percentage of these recommendations are followed by the Government. The Committee considers that such arrangements deprive claimants of a right to an effective remedy, and weaken their position when entering into negotiations with the Crown (arts. 2, 5 and 6). The Committee recommends that the State party consider granting the Waitangi Tribunal legally binding powers to adjudicate Treaty matters. The State party should also provide the Tribunal with increased financial resources.
13 March 2006	Report of UN Special Rapporteur Rodolfo Stavenhagen	*Constitutional issues* 84. Building upon continuing debates concerning constitutional issues, a convention should be convened to design a constitutional reform in order to clearly regulate the relationship between the Government and the Maori people on the basis of the Treaty of Waitangi and the internationally recognized right of all peoples to self-determination. 85. The Treaty of Waitangi should be entrenched constitutionally in a form that respects the pluralism of New Zealand society, creating positive recognition and meaningful provision for Maori as a distinct people, possessing an alternative system of knowledge, philosophy and law. 86. The MMP electoral system should be constitutionally entrenched to guarantee adequate representation of Maori in the legislature and at the regional and local governance levels. 87. Iwi and hapu should be considered as likely units for strengthening the customary self-governance of Maori, in conjunction with local and regional councils and the functional bodies created to manage treaty settlements and other arrangements involving relations between Maori and the Crown. 88. *The Legal Services Act should be amended to ensure that legal aid is available to Maori iwi* and hapu as bodies of persons so as to afford them access to the protection mechanisms of human rights, and in order to eliminate discrimination against Maori collectives.** Human rights and the Waitangi Tribunal. 89. The Waitangi Tribunal should be granted legally binding and enforceable powers to adjudicate Treaty matters with the force of law.

The Sámi are the Indigenous people of the northern areas of Norway, Sweden, Finland and Russia, an area called Sápmi or Sámiland. Numbering 70,000 across the four countries, the Sámi were divided when the Nordic states drew up their national borders. They still experience different conditions in the three Nordic countries, where there are three separate Sámi parliaments. There is an ongoing attempt to set up a Sámi Parliament in Russia, which is home to an estimated 2,000 Sámi.

Modern Sámi politics are mainly based on the Sámi Parliaments, which are representative bodies for peoples of Sámi heritage in Finland, Sweden and Norway elected by eligible voters on the (voluntary) Sámi register.^[305] The table below summarises the key differences between the three Sámi Parliaments.^[306]

Finland was the first to establish a publicly-elected Sámi body – Sámi Párlameanta or the Delegation for Sámi Affairs – which was formed in 1973. In 1996, Sámi Párlameanta was restructured to correspond to the Swedish and Norwegian Sámi Parliaments, with administrative duties in relation to Sámi culture and the Sámi language. In addition, Sámi has been an official language in some municipalities in northern Finland since 1992. The authorities in Finland are obliged to negotiate with the Parliament regarding all measures that can have a direct and specific impact on the Sámi 's status as an indigenous people. The Sámi Parliament has relatively few duties, and receives a small amount of money from the Finnish state.^[307]

According to the Finnish constitution, the Sámi enjoy genuine autonomy following a decision by the Finnish Parliament in June 1996. The constitutional protection reinforces the Sámi 's position as an Indigenous people, with the right to preserve their language and culture. Article 17, third subsection recognises the Sámi's status as an indigenous people, as well as the right to use their native language when submitting inquiries to the authorities. Article 121, fourth subsection states that the Sámi have linguistic and cultural autonomy within their homeland to the extent that this is stipulated in other legislation.^[308] However, provision for their linguistic and cultural autonomy has to be included in ordinary law and is yet to be fully achieved.

In 1995 the Finnish Parliament adopted an Act on the Sámi Parliament (No. 974 of 17 July 1995). Section 1 states: ‘The Sámi as an indigenous people shall, as is further detailed in this act, be ensured cultural autonomy within their homeland in matters concerning their language and culture’. Section 5 goes on to stipulate that the Sámi Parliament may consider all issues concerning the Sámi 's language, culture and status as an indigenous people.^[309]

The majority of Sámi live in Norway, with an estimated population of at least 40,000. The Norwegian Sámi Parliament was established in 1989. Along with cultural contributions, the appropriation from the Norwegian government to the Sámi Parliament is around NOK 250 million.

The Sámi Parliament in Norway has no clear constitutional position. It is not under the control of the Government, but neither is it an independent body. According to the Norwegian constitution, the state authorities have to create conditions to ensure that the Sámi people can preserve and develop their language, culture and social life. The Sámi Parliament's remit covers everything that, in the Parliament's opinion, affects the Sámi people.

The Sámi Parliament in Sweden was established in 1993 as a publicly elected body and a state authority, with the overall task of working to achieve a living Sámi culture. The publicly-elected part comprises 31 members who meet three times a year in the Plenary Assembly. Only the President is a full-time employee of the Parliament.

Although the Sámi Parliament in Sweden is not considered to be a body for self-government, the existence of the Sámi Parliament entails a kind of recognition of the Sámi as a separate people. The status of the Sámi people is not, however, written into Sweden's constitution. The Sámi Parliament Act states that Sámi Parliament's primary purpose is ‘to monitor issues that relate to Sámi culture in Sweden’. The Sámi Parliament's operations are controlled by the Swedish Parliament and the Government through laws, ordinances and appropriation decisions, although it does receive an annual appropriation of several million SEK to conduct its business. ^[310]

A 2010 study by Eva Josefsen identifies a number of channels by which the Sámi exercise political influence in the three Nordic countries, including and in addition to the parliaments:

the political understanding of the relationship between the majority and minority, between the State and the Saami, has changed. Upon establishment of the national Saami parliaments, the states accepted the principle of group rights. Not only did the establishment of the Saami parliaments result in a structural change of the national political systems, but also in a broader understanding of representative democracy.^[312]

The three Sámi Parliaments also have a common political framework called the Sámi Parliamentary Conference, established in 2001.^[313] In this annual meeting, a plenary of all Sámi Parliamentarians meet, together with observers from the Sámi Council and the Russian Sámi associations. Between sessions, a Sámi Parliamentary Council operates.

In addition to the channels they can access at a local and national level, the Sámi in Sweden have an extra-state relationship with the European Union (EU). The Sámi protocol, which has been attached to the agreement on Swedish membership of the EU recognises the obligations and undertakings that Sweden has in relation to the Sámi people in accordance with national and international law. The protocol states that Sweden is committed to preserving and developing the Sámi people's living conditions, language, culture and way of life. Sweden and the EU have also jointly observed that the Sámi culture and lifestyle are dependent on primary sources of income such as reindeer herding in areas where the Sámi traditionally live.

Other ways that a relationship with the EU has strengthened the Sámi position include:

In 2005, a draft Nordic Sámi Convention was prepared by an expert group consisting of government-appointed members from Norway, Sweden and Finland. The Convention has a total of 51 articles and its purpose is to allow the Sámi people to safeguard and develop their language, culture, livelihoods and way of life with the least possible interference by national borders. The Convention stipulates minimum rights, states that the Sámi are an indigenous people in the three countries and that the Sámi have the right of self-determination. The states' responsibility comprises all administration levels: national, regional and local.

The Convention is divided into a total of seven chapters, which include Sámi control through the rights of the Sámi parliaments and their relationship to the State, Sámi language and the status of the culture, e.g. through Sámi media, education and research, Sámi land and water rights and Sámi livelihoods. The preface mentions the Finnish representatives' difficulties with accepting parts of the Convention, including Article 3 on the right to self-determination, Chapter 4 on Sámi land and water rights, and Article 42 on reindeer husbandry as a Sámi livelihood. The Convention is, however, supported by all members, has been subjected to a consultation process and is currently being considered by the various governments. Russia is not covered by the draft convention.^[315]

In April 2010, UN Special Rapporteur Professor James Anaya travelled to Sápmi to meet with representatives of the Sámi parliaments and NGOs, as well as State officials from all three Nordic countries. He welcomed the agreement in principle of the Nordic governments to restart negotiations on a Nordic Sámi convention with the participation of Sámi leaders:

The proposed convention has the potential to strengthen Sami self-determination and protections for their rights to lands, natural resources and culture, in the face of ongoing human rights challenges. The challenges ahead in Sápmi are no doubt significant, and to meet them requires serious commitment, political will, and hard work. However, I am encouraged by the commitment of all parts and the progress that has already been made in advancing the human rights of indigenous peoples within the region.^[316]

Contemporary Sámi politics therefore both transcends the borders of four nation-states and works within them. While their situation is not the same as that of the tangata whenua of Aotearoa New Zealand, their experience of developing self-governing institutions and their relationships with the existing governments of the four respective nation-states provide some insights for Aotearoa New Zealand.

Countries	Human Rights Legislation	Acknowledgment of property rights?	Text in legislation
Australia	No specific human rights legislation or human rights in the constitution	NO
Austria	Basic Law on the General Rights of Nationals 1867	YES	Article 5: Property is inviolable. Expropriation against the will of the owner can only occur in cases and in the manner determined by law.
Belgium	Constitution of Belgium 1970	YES	Article 16: No one can be deprived of his property except in the case of expropriation for a public purpose, in the cases and manner established by law, and in return for a fair compensation paid beforehand.
Canada	Constitution Act 1982	YES	... in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law
Czech Republic	Charter of Fundamental Rights and Basic Freedoms 1992	YES	Article 11 (1) Everyone has the right to own property. Each owner’s property right shall have the same content and enjoy the same protection. Inheritance is guaranteed. ... (4) Expropriation or some other mandatory limitation upon property rights is permitted in the public interest, on the basis of law, and for compensation.
Denmark	Constitutional Act of the Kingdom of Denmark 1953	YES
Finland	Constitution of Finland 1999	YES	Section 15: (1) The property of everyone is protected. (2) Provisions on the expropriation of property, for public needs and against full compensation, are laid down by an Act.
France	Declaration of the Rights of Man and Citizen 1789	YES	Article 17: Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified
Germany	Basic Law for the Federal Republic of Germany 1949	YES	Article 14: (1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws. ... (3) Expropriation shall only be permissible for the public good. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation ...
Greece	The Constitution of Greece 2001	YES	Article 17: (1) Property stands under the protection of the State; the rights, however, derived therefrom, may not be exercised in a manner detrimental to the public interest. (2) No one shall be deprived of his property except for public benefit which must be duly proven, when and as specified by statute and always following full compensation corresponding to the value of the expropriated property at the time of the court hearing on the provisional
Hungary	Constitution of the Republic of Hungary 1949	YES	Article 13: (1) The Republic of Hungary guarantees the right to property.(2) Expropriation shall only be permitted in exceptional cases, when such action is in the public interest, and only in such cases and in the manner stipulated by law, with provision of full, unconditional and immediate compensation.
Iceland	Constitution of Iceland 1944	YES	Article 72: The right of private ownership shall be inviolate. No one may be obliged to surrender his property unless required by public interests. Such a measure shall be provided for by law, and full compensation shall be paid.
Ireland	Constitution of Ireland 1937	YES	Article 43: (1.1) The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.
Italy	Constitution of the Italian Republic 1947	YES	Article 42: (2) Private ownership is recognized and guaranteed by laws determining the manner of acquisition and enjoymend [sic] and its limits, in order to ensure its social function and to make it accessible to all.(3) Private property, in cases determined by law and with compensation, may be expropriated for reasons of common interest.
Japan	Constitution of Japan 1946	YES	Article 29: (1) The right to own or to hold property is inviolable.(2) Property rights shall be defined by law, in conformity with the public welfare. (3) Private property may be taken for public use upon just compensation therefor [sic].
South Korea	Constitution of South Korea 1948	YES	Article 23: (1) The right to property of all citizens is guaranteed. Its contents and limitations are determined by law. (2) The exercise of property rights shall conform to the public welfare.(3) Expropriation, use, or restriction of private property from public necessity and compensation therefore are governed by law. However, in such a case, just compensation must be paid.
Luxembourg	Constitution of Luxembourg 1868	YES	Article 16: No one may be deprived of his property except on grounds of public interest in cases and in the manner laid down by the law and in consideration of prior and just compensation.
Mexico	Political Constitution of the United Mexican States 1917	YES	Article 14: No person shall be deprived of life, liberty, property, possessions, or rights without a trial by a duly created court in which the essential formalities of procedure are observed and in accordance with laws issued prior to the act. Article 27: Private property shall not be expropriated except for reasons of public use and subject to payment of indemnity.
Netherlands	Constitution of the Netherlands 1983	YES	Article 14: (1) Expropriation may take place only in the public interest and on prior assurance of full compensation, in accordance with regulations laid down by or pursuant to Act of Parliament.
New Zealand	Bill of Rights Act 1990	NO
Norway	Constitution of the Kingdom of Norway 1814	YES	Article 104: Land and goods may in no case be made subject to forfeiture.’ Article 105: ‘If the welfare of the State requires that any person shall surrender his movable or immovable property for the public use, he shall receive full compensation from the Treasury.
Poland	Constitution of the Republic of Poland 1997	YES	Article 21: (1) The Republic of Poland shall protect ownership and the right of succession. (2) Expropriation may be allowed solely for public purposes and for just compensation. Article 64: (1) Everyone shall have the right to ownership, other property rights and the right of succession.
Portugal	Portuguese Constitution 1976	YES	Article 62: (1) Everyone is secured, in accordance with the Constitution, the right to private property and to its transfer during lifetime or by death.(2) The requisition of property or its expropriation for public purposes are carried out only on the strength of the law and only against the payment of fair compensation.
Slovak Republic	Constitution of the Slovak Republic 1992	YES	Article 20: (1) Everyone has the right to own property. The ownership right of all owners has the same legal content and deserves the same protection. Inheritance of property is guaranteed. (4) Expropriation or enforced restriction of the ownership right is admissible only to the extent that it is unavoidable and in the public interest, on the basis of law, and in return for adequate compensation.
Spain	Constitution of Spain 1978	YES	Article 33: ‘(1) The right to private property and inheritance is recognized.... (3) No one may be deprived of his property and rights except for justified cause of public utility or social interest after proper indemnification in accordance with the provisions of law.’
Sweden	The Instrument of Government 1975	YES	Article 18: Every citizen whose property is requisitioned by means of an expropriation order or by any other such disposition shall be guaranteed compensation for his loss on the bases laid down in law.
Swtzerland	Swiss Federal Constitution 1999	YES	Article 26: (1) Property is guaranteed.(2) Expropriation and restrictions of ownership equivalent to expropriation are fully compensated.
Turkey	Constitution of Turkey 1982	YES	Article 35: (1) Everyone has the right to own and inherit property.
United Kingdom	Human Rights Act 1998	YES	Schedule 1, Part II, Article 1: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
United States	Fifth Amendment to the Constitution of the United States of America 1791	YES	Amendment V: No person shall ... be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation

^[1] Note that this Act wouldn’t necessarily create a right to action based on the Treaty, but would function as an interpretive Act and send a strong political message. Justiciability could come later. Jurisdiction for inquiries into and remedies for breaches of the Treaty would remain with the Waitangi Tribunal.
^[2] Palmer M & Geirginer C (2007) “Human Rights and Social Policy in New Zealand” 30 Social Policy Journal of New Zealand p 12
^[3] The Commission notes that New Zealand has not ratified the International Labour Organisation Convention on Indigenous and Tribal Peoples in Independent Countries (ILO No. 169). Both ILO No. 169 and UNDRIP lay out ‘a normative framework that seeks to promote and protect the rights of indigenous peoples’. Jeanmarie Fenrich and Jorge Contesse, ‘It’s Not OK’: New Zealand’s Efforts to Eliminate Violence Against Women (New York: Leitner Centre for International Law and Justice, Fordham Law School, p 16)
^[4] United Nations Population Fund (UNFPA), ‘Human Rights: the human-rights based approach’. Accessed online at http://www.unfpa.org/rights/approaches.htm on 23 July 2013.
^[5] Committee on Economic, Social and Cultural Rights (CESCR 2012) Committee on the Rights of the Child (CRC 2011), Special Rapporteur (SR) James Anaya (2011), Human Rights Committee (CCPR 2010) Universal Periodic Review (UPR 2009), Committee Against Torture (CAT 2009)
^[6] Committee for the Elimination of Racial Discrimination (CERD 2013), CESCR (2012), CRC (2011) UPR (2009)
^[7] CERD (2013), Committee for the Elimination of Discrimination Against Women (CEDAW 2012), CESCR (2012), CRC (2011), UPR (2009)
^[8] CEDAW (2012)
^[9] CESCR (2012) CCPR (2010), UPR (2009)
^[10] CCPR (2010), UPR (2009), CAT (2009),
^[11] CERD (2013, 2007), SR Anaya (2011), CCPR (2011), UPR (2009) SR Rodolfo Stavenhagen (2006)
^[12] CERD (2013, 2007), SR Anaya (2011), SR Stavenhagen (2006)
^[13] CESCR (2012)
^[14] Ministry of Justice, Consideration of Constitutional Issues: Terms of Reference (May 2012). Accessed online at http://www.cap.govt.nz/store/doc/terms-of-reference.pdf on 13 May 2013.
^[15] Human Rights Commission (2005), Submission on the Review of New Zealand’s Constitutional Arrangements to the Constitutional Arrangements Committee, 14 April, p 3.
^[16] Human Rights Commission (2005) Constitutional Review submission, p 4.
^[17] S.5.(1)(a) Human Rights Act 1993 No 82
^[18] S.5.(2)(d) Human Rights Act 1993 No 82
^[19] Human Rights Commission, ‘Together We Grow: the Treaty, Diversity and the Constitution’, Sunday 19 August, Diversity Forum 2012. Accessed online at http://www.hrc.co.nz/race-relations/new-zealand-diversity-forum-2/programme/together-we-grow-the-treaty-diversity-and-the-constitution on 24 June 2013.
^[20] New Zealand Centre for Political Research, Independent Constitutional Review. Accessed online at http://www.nzcpr.com/ConstitutionalReview.htm on 26 July 2013.
^[21] Naomi Kumar’s speech was posted on the Tell us your dream page, and also featured in a Stuff article (also containing a link to video of her speech). The Ba’hai Facebook page As One For Racial Harmony also has extensive photos of all the regional winners and finalists
^[22] Section 5 (2) (d) Human Rights Act 1993
^[23] Human Rights Commission (2012) Te Mana i Waitangi: Human Rights and the Treaty of Waitangi, p 8. Accessed online at http://www.hrc.co.nz/human-rights-and-the-treaty-of-waitangi/human-rights-and-the-treaty/ on 24 June 2013.
^[24] Human Rights Commission, Crown-Tangata Whenua Engagement, Accessed online at http://www.hrc.co.nz/human-rights-and-the-treaty-of-waitangi/crown-tangata-whenua-engagement on 21 November 2012.
^[25] New Zealand Māori Council v Attorney-General [1987] NZLR 641 cited in Human Rights Commission, Human Rights in New Zealand 2010. Accessed online at http://www.hrc.co.nz/human-rights-environment/human-rights-in-new-zealand-2010 on 21 November 2012.
^[26] Human Rights Committee, General Comment No 12, Article 1 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 12 (1994). Accessed online at http://www1.umn.edu/humanrts/gencomm/hrcom12.htm on 24 May 2012.
^[27] Human Rights Council. General Comment No 12, paragraph 6.
^[28] Human Rights in New Zealand 2010, p 42.
^[29] S James Anaya, (2009) “The Right of Indigenous Peoples to Self-Determination in the Post-Declaration Era”, Making the Declaration Work: the United Nations Declaration on the Rights of Indigenous Peoples, eds Claire Charters and Rodolfo Stavenhagen, Document No 127 (Copenhagen: International Work Group for Indigenous Affairs), pp 184-199 (p 187). Accessed online at http://www.internationalfunders.org/documents/MakingtheDeclarationWork.pdf on 24 June 2013.
^[30] Anaya, ‘Right of Indigenous Peoples to Self-Determination,’ p 184.
^[31] Anaya, ‘Right of Indigenous Peoples to Self-Determination,’ p 188
^[32] Anaya, ‘Right of Indigenous Peoples to Self-Determination,’ pp 188-89
^[33] Professor Erica-Irene A. Daes, (1993) Some Considerations on the Right of Indigenous Peoples to Self-Determination” (3) Transnational Law & Contemporary Problems, 1,9 cited in Anaya, ‘Right of Indigenous Peoples to Self-Determination,’ p 192
^[34] Anaya, ‘Right of Indigenous Peoples to Self-Determination,’ p 193, 196.
^[35] John Agnew (1994), ‘The Territorial Trap: The geographical assumptions of international relations theory,’ Review of International Political Economy, 1:1, pp 53-80 (54). Accessed online at http://www.tandfonline.com/doi/pdf/10.1080/09692299408434268 on 26 May 2012. In the case of Aotearoa New Zealand, such practices include the various free trade agreements, historic and contemporary military alliances such as ANZUS and SEATO, and Closer Economic Relations with Australia (to name but a few).
^[36] Ilona Klimovà-Alexander (2007), ‘Transnational Romani and Indigenous Non-territorial Self-Determination Claims’, Ethnopolitics, 6:3, pp 395-416 (396).
^[37] Klimovà-Alexander, ‘Transnational’, p 408, citing D. Short (2005), ‘Reconciliation and the Problem of Internal Colonialism’, Journal of Intercultural Studies, 26 (3), pp 267-82.
^[38] Klimovà-Alexander, ‘Transnational’, pp 408-409. Citing M E A Goodwin 2004 and 2006 [full details in bibiliography]

^[39] Under the Renner-Bauer NCA scheme:
[R]epresentatives of national groups would be allowed to set up public corporations and elect their own cultural self-governments. Once constituted, these institutions could assume full control over schooling in the relevant language and other issues of specific concern to the group. The jurisdiction of the aforementioned bodies would not be confined to particular territorial sub-regions of the state, but would extend to all citizens who professed belonging to the relevant nationality, regardless of where they lived. Herein lies the main novelty of the NCA scheme – the ‘personality principle, which holds that ‘totalities of persons are divisible only according to their personal, not territorial characteristics.’

David J. Smith, The Revival of Cultural Autonomy in Certain Countries of Eastern Europe: Were Lessons Drawn from the Inter-War Period? CRCEES Working Papers, WP2008/06, p 1. Accessed online at http://www.gla.ac.uk/media/media_209916_en.pdf on 26 May 2012.
^[40] Bartolomé Clavero (2009), ‘Cultural Supremacy, Domestic Constitutions, and the Declaration on the Rights of Indigenous Peoples’, Making the Declaration Work, pp 344-51 (349-50)
^[41] United Nations Declaration on the Rights of Indigenous Peoples (2008). Accessed online at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf on 30 July 2013.
^[42] Human Rights in New Zealand 2010, p 43

^[43] International law on the rights of Indigenous peoples has explicitly and implicitly recognised the importance of their lands, territories and resources to Indigenous peoples, and the maintenance of their cultures. Contemporary international law on Indigenous peoples’ rights to their lands, territories and resources is developing in the direction that Indigenous peoples have the right to their traditional lands held under their own indigenous laws and customs.
^[44] UNCROC Article 30, Committee on the Rights of the Child (2009) General Comment No 11 “Indigenous Children and their Rights Under the Convention’, Accessed online at http://www2.ohchr.org/english/bodies/crc/docs/GC.11_indigenous_New.pdf on 24 June 2013.
^[45] Bishop Manu Bennett, cited in Human Rights Commission, Te Mana i Waitangi, p 8.
^[46] Human Rights Commission, Te Mana i Waitangi, p 8.
^[47] Hiwi and Pat Tauroa, Te Marae: a Guide to Customs and Protocol, Raupo Publishing, 2004, cited in Human Rights Commission, Te Mana i Waitangi, p 9.

^[48] Claudia Orange, The Treaty of Waitangi (Wellington: Allen & Unwin, 1987), p 60.

The doctrine of discovery is a concept of public international law expounded by the United States Supreme Court in a series of decisions, most notably Johnson v. M'Intosh in 1823. Chief Justice John Marshall justified the way in which colonial powers laid claim to lands belonging to sovereign indigenous nations during the Age of Discovery. Under it, title to lands lay with the government whose subjects explored and occupied a territory whose inhabitants were not subjects of a European Christian monarch. The doctrine has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor of colonial or post-colonial governments.

The origins of the doctrine can be traced to Pope Nicholas V's issuance of the papal bull Romanus Pontifex in 1455. The bull allowed Portugal to claim and conquer lands in West Africa. Pope Alexander VI extended to Spain the right to conquer newly-found lands in 1493, with the papal bull Inter caetera, after Christopher Columbus had already begun doing so. Arguments between Portugal and Spain led to the Treaty of Tordesillas which clarified that only non-Christian lands could thus be taken, as well as drawing a line of demarcation to allocate potential discoveries between the two powers. See Steve Newcomb (1992) ‘Five Hundred Years of Injustice: The Legacy of Fifteenth Century Religious Prejudice’, Shaman’s Drum, pp 18-20. Accessed online at http://ili.nativeweb.org/sdrm_art.html on 27 May 2013.
In its eleventh session in May 2012, the UN Permanent Forum on Indigenous Issues (PFII) convened a special theme on the doctrine of discovery: “The Doctrine of Discovery: its enduring impact on indigenous peoples and the right to redress for past conquests (articles 28 and 37 of the United Nations Declaration on the Rights of Indigenous Peoples)". The PFFI called for ‘States to repudiate such doctrines as the basis for denying indigenous peoples’ human rights’” and made a series of recommendations for addressing the contemporary consequences of this doctrine. See Permanent Forum on Indigenous Issues, Report on the eleventh session (7-18 May 2012) Economic and Social Council E/2012/43-E/C.19/2012/13pp8-10. Accessed online at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N12/359/17/PDF/N1235917.pdf?OpenElement on 27 May 2013.
^[49] Parliamentary Counsel Office, (2013) Interpretation Act 1999: A discussion paper, 6 March, para 3.15, p 23. Accessed online at http://www.pco.parliament.govt.nz/assets/Uploads/pdf/Interpretation-Act-1999-discussion-paper-2013-03-06.pdf on 27 May 2013.
^[50] PCO (2013), Interpretation Act, para 3.16, p 23.
^[51] PCO (2013), Interpretation Act, para 3.21, p 24.
^[52] PCO (2013), Interpretation Act, para 3.20, p 24. See, for example, the Nga Rauru Kiitahi Claims Settlement Act 2005, s 12, which uses the definition of the Crown contained in the Public Finance Act 1989.
^[53] Janet McLean, '”Crown Him with Many Crowns”: The Crown and the Treaty of Waitangi’, New Zealand Journal of Public and International Law Volume 6 Issue 1 (June 2008). The usual constitutional explanation has been that it is the political account of the Crown, understood in democratic parliamentary terms, that really matters. McLean contends, however, that this hitherto standard view underestimates the political content of different common law conceptions of the Crown. It is also being challenged by a revivified common law constitution which has partially reconceived the Crown in its relationship to Māori. Some of these common law conceptions have been adopted by Māori for political ends.
^[54] McLean, ’Crown Him With Many Crowns’, p 37
^[55] McLean, ’Crown Him With Many Crowns’, pp 42-3
^[56] McLean, ’Crown Him With Many Crowns’, p 56
^[57] J W Salmond cited in McLean, ’Crown Him With Many Crowns’, p 47
^[58] McLean, ’Crown Him With Many Crowns’, p 53
^[59] McLean, ’Crown Him With Many Crowns’, p 58
^[60] Janet McLean, ‘The New Zealand Bill of Rights Act 1990 and Constitutional Propriety’, Unpublished paper, Public lecture, Victoria University of Wellington, 30 August 2011, p 5.
^[61] Ngāpuhi Speaks: He Wakaputanga o te Rangatiratanga o Nu Tireni and Te Tiriti o Waitangi, Independent Report on the Ngāpuhi Nui Tonu Claim (2012) Commissioned by Kuia and Kaumātua of Ngāpuhi. Whangarei: Te Kawariki & Network Waitangi Whangarei, p 65
^[62] Ngāpuhi Speaks, p 76.
^[63] The Working Group for Constitutional Transformation, Primer Number One, 2011, p 4. Accessed online at http://www.converge.org.nz/pma/iwi-primer1.pdf on 21 November 2012.
^[64] Linda Te Aho, ‘Contemporary Issues in Māori Law and Society’, Waikato Law Review Vol 15, p n 15, p 140
^[65] Ngāpuhi Speaks, p 322. This view informs Ngāpuhi’s contemporary vision also. The conclusion to the independent report states:

The Ngāpuhi rangatira who assented to the Treaty fully expected that the governor would take his place within this model, standing alongside them as leader of the Queen’s people. He would work with Te Wakaminenga and other rangatira to ensure that Māori authority and rights were safeguarded; and together they would develop policy and law that would bring prosperity to all. That is still the Ngāpuhi vision today. Ngāpuhi Speaks, p 329.

^[66] Article 2 of He Wakaputanga o te Rangatiratanga o Nu Tireni. NZ History Net, ‘1835 Declaration of Independence.’ Accessed online at http://www.nzhistory.net.nz/media/interactive/the-declaration-of-independence on 27 May 2012.
^[67] The 19^th century Kotahitanga movement pushed for the abolition of the Native Land Court and all Māori land legislation and called for disputes to be settled by Māori committees through traditional law. The movement also sought a degree of local self-government through a Māori (Kotahitanga) Parliament, which would allow Maori to control their lands and manage their own affairs.
^[68] The Kingitanga, or the Māori King Movement, was established in 1858 as a pan-iwi and hapū response to the pressure that rapid European settlement was having on Māori to sell their land, and the consequ
ent sense that Māori were losing control of their own affairs. It continues today under the present King, Tuheitia, and is an important and enduring expression of Māori unity.
^[69] The first Kohimarama conference – described by the Waitangi Tribunal as ‘the nearest gathering to a Government-sponsored Maori Parliament in New Zealand history’ was convened in 1860. Subsequent major tribal gatherings, specifically called Māori Parliaments, were held in 1879, 1880 and 1889. The proceedings of the first two gatherings were officially recorded in the Appendices to the Journals of the House of Representatives (Kohimarama Conference AJHR, 1860 E-9, First Maori Parliament AJHR Sess II 1879 G-8).
^[70] Williams, ‘Indigenous Customary Rights’, p 124
^[71] This authority became a major provider of a range of social services and a staunch advocate for local residents, especially when ties with hapū and other blood relatives have been lost or seriously eroded: ‘the notion of whānau spread to encompass groups of Māori that shared an association based on some common interests such as locality, an urban marae, a workplace’. Mason Durie, Ngā Tai Matatū: Tides of Māori Endurance (Melbourne and Auckland: Oxford University Press, 2005), p 22. The status of Te Whānau o Waipareira as a Māori organisation able to provide social services was the subject of a Waitangi Tribunal report. The report is available at http://www.waitangi-tribunal.govt.nz/reports/summary.asp?reportid={1C99EEB3-27C4-4E47-8A37-C64B1A7F0E52} Among its findings that Tribunal noted that the trust exercised rangatiratanga on behalf of its ‘whānau of beneficiaries’ in the same way as a kin-based organisation.
^[72] The Māori Community Development Act 1962, which established the New Zealand Māori Council, was reviewed in 2009. See brief description of the review in Human Rights Commission, Te Tiriti o Waitangi: 2009 in Review, p 18. The New Zealand Māori Council was the plaintiff in two landmark cases in the 1980s that established the framework of modern Treaty jurisprudence: NZ Maori Council v Attorney General [1989] (‘the Lands case’) and NZ Maori Council v Attorney-General [1992] (‘the Broadcasting Assets case’)
^[73] The National Māori Congress was formally established on 13 July 1990 by the United Tribes of Aotearoa New Zealand. The Congress was made up of 45 participating iwi and bodies. One of the major objectives of the National Māori Congress is to provide a national forum for participating tribes to address economic, social, cultural, environmental and political issues within a Māori framework, and to advance a unified national Māori position on significant policy matters both nationally and internationally.
^[74] The Federation of Māori Authorities is an incorporated society that brings together representatives from Māori trusts and incorporations around the country for the purpose of business networking and economic development. For further information, see http://www.foma.co.nz/
^[75] Established in the early 1950s, the Māori Women’s Welfare League grew out of a conference aimed at addressing social and economic issues attended by 90 Māori women from around the country. It has branches around New Zealand, some of which are involved in social service provision. For further information, see http://christchurchcitylibraries.com/TiKoukaWhenua/OMWWL/
^[76] David V Williams, ‘Indigenous Customary Rights and the Constitution of Aotearoa New Zealand’, Waikato Law Review volume 14 (2006), pp 120-35. p 132 - 33
^[77] Legal academic Richard Boast observes, for example, that ‘hapū still certainly endure and exercise a range of functions, flanked by other more formally legal bodies (incorporations and trusts under Māori Land Act 1993/Te Ture Whenua Māori Act1993, for example, as well various local and regional trust boards and other entities)’ Richard Boast, ‘The Treaty and Local Government: Emerging Jurisprudence’ in Local Government and the Treaty of Waitangi, Janine Hayward, ed., (Auckland: Oxford University Press, 2003), p 159
^[78] See the Waikato-Tainui website for further information at http://www.tainui.co.nz/companyprofile/company_profile.htm
^[79] See the Ngai Tahu website for further information at http://www.ngaitahu.iwi.nz/Te-Runanga/Governance/
^[80] See, for example, E. S. Te Ahu Poata-Smith, ‘The Changing Contours of Maori Identity and the Treaty Settlement Process’, in The Waitangi Tribunal: Te Roopu Whakamana i te Tiriti o Waitangi, Janine Hayward and Nicola Wheen, eds (Wellington: Bridget Williams Books, 2004), pp 168-83.
^[81] McHugh, “Treaty Principles”, pp 62-3
^[82] The Iwi Leaders’ Group is an informal network of iwi leaders from across New Zealand who have held high-level discussions with the government on matters affecting Māori, most recently on how best to address recognition of customary rights in the foreshore and seabed. As the Waitangi Tribunal outlines in its Interim Report on the Freshwater and Geothermal Resources Claim:

The Freshwater Iwi Leaders Group first met with the government in 2007. Its membership was ‘endorsed’ by the ‘Iwi Leaders Forum’ [also called the Iwi Chairs Forum, constituted of some 60 iwi organizations]. The Iwi Leaders Group is chaired by Sir Tumu Te Heuheu of Ngati Tuwharetoa. It receives technical support and advice from an Iwi Advisory Group, which also participates in the Land and Water Forum and provides advice to officials. (p 31)
^[83] Commenting on this issue, Richard Boast notes the lack of consensus on whether Māori self-determination is to be exercised by Māori as an ethnic community or by Māori organised politically into iwi and hapū. Boast, ‘Treaty’, p. 169. In a separate, but related, discussion of what is understood by the term ‘Māori’ in law and politics, legal academic Natalie Coates canvasses the range of legal and political definitions of ‘Māori’ currently operating. Coates concludes that:

‘Māori’ should be defined within the law as a person who has both Māori descent and identifies as being ethnically Māori. However, in conjunction with this, I also believe that individual statutes should be able to incorporate further criterion, if suitable, that limits those who actually receive the right attached to being ‘Māori’. Such reasoning for preferring this dual approach is that it seems to reconcile a number of varying Māori views and concerns. It takes into account the importance of whakapapa in determining a Māori identity as well as providing that a person has at least a limited degree of cultural affinity to Māori by virtue of their ethnicity.

See Natalie Coates (2009), Kia tū ko taikākā: Let the heartwood of Māori identity stand - An investigation into the appropriateness of the legal definition of ‘Māori’ for Māori. Fourth Year Honours Dissertation (University of Otago), p 69. Accessed online at http://eprintstetumu.otago.ac.nz/67/01/Coates_1.pdf on 27 May 2013.
^[84] Donna Hall, ‘Maori Governance and Accountability’ in Hayward and Wheen, eds, Waitangi Tribunal, p 184
^[85] Constitutional Advisory Panel, Engagement Strategy for Consideration of Constitutional Issues, May 2012, pp 9-10. Accessed online at http://www2.justice.govt.nz/cap-interim/documents/strategy.pdf on 21 November 2012.
^[86] Accessed online at http://www.converge.org.nz/pma/iwi.htm on 27 May 2013.
^[87] Waitangi Tribunal, (2011) Ko Aotearoa Tēnei A Report into Claims Concerning New Zealand Laws and Policies Affecting Māori Culture and Identity. Te Taumata Tuatahi, Accessed online at http://www.waitangi-tribunal.govt.nz/scripts/reports/reports/262/52823D9E-6BD4-465E-86EE-8A917BAE12D1.pdf on 16 May 2013.
^[88] Alex Frame, ‘Consequences for Jurisprudence’, in In Good Faith: Symposium proceedings marking the 20^th anniversary of the Lands Case, Jacinta Ruru, ed., (Wellington: New Zealand Law Foundation; Dunedin: University of Otago Faculty of Law, 2008), pp 106-7
^[89] P G McHugh, ”Treaty Principles”: Constitutional Relations Inside a Conservative Jurisprudence’ (2008) 39 VULWR p 67, 69-70. Accessed online at http://www.austlii.edu.au/nz/journals/VUWLawRw/2008/6.pdfon 22 November 2012.
^[90] Palmer then opines, however, that this might do more harm than good. Matthew S. R. Palmer (2008) The Treaty of Waitangi in New Zealand’s Law and Constitution (Wellington: Victoria University Press), p 26.
^[91] Palmer believes, however, that this is not feasible in the current state of New Zealand’s constitutional arrangements but may be possible in the future. Palmer, The Treaty of Waitangi, p 27.
^[92] This is Palmer’s preferred option. Palmer, The Treaty of Waitangi, p 28.
^[93] Edward Willis, ‘Legal Recognition of Rights Derived from the Treaty of Waitangi,’ [2010] 8 New Zealand Journal of Public and International Law, p 223
^[94] Waitangi Tribunal, Ko Aotearoa Tēnei, p 2.

^[95] Waitangi Tribunal, Ko Aotearoa Tēnei, pp 205-5, 227-8
^[96] Williams, ‘Indigenous Customary Rights’ pp 120-35. p 132
^[97] Alex Frame, ‘Treaty Title Bill,’ Portion of a presentation by Alex Frame at Capital City Forum Saturday 5^th March 2005, at Connolly Hall, Wellington
^[98] Kate Shuttleworth ‘Agreement entitles Whanganui River to legal identity’, New Zealand Herald, 30 August 2012. Accessed online at http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10830586 on 13 November 2012.
^[99] See ‘Constitutional Transformation’, Weeping Waters, p 329.
^[100] Justice Joe Williams, Confessions of a Native Judge, Address to Native Title Conference Perth 4 June 2008, cited in Hon Justice David Baragwanath, ‘Magna Carta and the New Zealand Constitution’, Unpublished paper, Address to the English Speaking Union, 29 June 2008, p 8.
^[101] For a discussion of ‘domestic dependent nations’ and tribal law in the US context California Tribal Business Alliance, ‘Public Law 280 and Concurrent Tribal Authority’. Accessed online at http://www.caltba.org/resources/compacts-and-documents/018__public_law_280_and_concurrent_tribal_authority.pdf on 22 November 2012.
^[102] This process was extensively explored in the Waitangi Tribunal’s Te Urewera District Inquiry. See Waitangi Tribunal, Te Urewera: Pre-publications reports 1 and 2. Accessed online at http://www.waitangi-tribunal.govt.nz/reports/ on 21 November 2012.
^[103] Hon Christopher Finlayson, Minister for Treaty of Waitangi Negotiations, ‘Crown Offer Accepted by Ngai Tuhoe Settlement Negotiators’, Press Release, 11 September 2012. Accessed online at http://www.scoop.co.nz/stories/PA1209/S00138/crown-offer-accepted-by-ngai-tuhoe-settlement-negotiators.htm on 27 May 2013.
^[104] Welsh Assembly government website available at http://wales.gov.uk/splash;jsessionid=7A4AAD7628FC4E0D0D2A93CB3100730D?orig=/
^[105] Information about the Sámi Parliaments is available at the Sápmi (Sámiland) website http://www.eng.samer.se/servlet/GetDoc?meta_id=1111
^[106] Information about the government and legal systems of the Navajo nation is available at http://www.navajo-nsn.gov/
^[107] Information about the government of the territory of Nunavut is available at http://www.gov.nu.ca/en/Home.aspx
^[108] Note that the constitutional positions of American Indians and native Hawaiians are different.
^[109] See Cherokee Nation v Georgia [1831] and Worcester v Georgia (1832).
^[110] See R v Sioui (1990) and R v Pamajewon [1996]
^[111] Rt Hon Dame Sian Elias, Chief Justice of New Zealand, ‘Fundamentals: A Constitutional Conversation’ Harkness Henry Lecture 2011, p 6
^[112] Hohaia Collier, ‘A Kaupapa-based Constitution’, in Mulholland and Tawhai, eds, Weeping Waters, pp 314-15
^[113] ‘Constitutional Transformation,’ in Mulholland and Tawhai, eds, Weeping Waters, pp 325-336
^[114] ‘Constitutional Transformation,’ in Mulholland and Tawhai, eds, Weeping Waters, p 334.
^[115] Note that this Act wouldn’t necessarily create a right to action based on the Treaty, but would function as an interpretive Act and send a strong political message. Justiciability could come later. Jurisdiction for inquiries into and remedies for breaches of the Treaty would remain with the Waitangi Tribunal.
^[116] On ratifying, a State accepts an obligation to deliver the rights in the treaty to their citizens and agrees to be accountable for its performance to the relevant international treaty monitoring body.
^[117] New Zealand Ministry of Foreign Affairs and Trade, New Zealand Handbook on International Human Rights, Wellington (2008) p 23.
^[118] Lord Lester of Herne Hill & Colm O’Cinneide, “The Effective Protection of Socio-Economic Rights” in Ghai, Y & Cotterill,C Economic, Social & Cultural Rights in Practice: the Role of Judges in Implementing Economic, Social and Cultural Rights, Interights (2004) p 17
^[119] Committee on Economic, Social and Cultural Rights (CESCR) Concluding Observations: New Zealand E.C.12/1/Add.88 (2003) See also Opie, J “A Case for Including Economic, Social and Cultural Rights in the New Zealand Bill of Rights Act 1990”(2012) 43 VUWLR p 473
^[120] At the time the OP was being developed the New Zealand government recognised that it would strengthen the implementation of the ICESCR but signalled its concern with the progressive nature of the Covenant and what it considered to be its subsequent lack of justiciability. Letter from MFAT to the Commission, Draft Optional Protocol to ICESCR: NZ position (2003).
^[121] Article 8(4) also requires the Committee to “bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant”. Despite this, an argument can be made based on the drafting history of the Protocol that the interpretation of what is “reasonable” must be guided by adjudication and remedies to ensure the rights of the most disadvantaged are recognised: Porter, B “The Reasonableness of Art.8(4) – Adjudicating Claims for the Margins” Nordisk Tidsskrift for Menneskerettigheter Vol.27, Nr.1 S.39-53 ISSN 1503-6480(2009). See also Albuquerque, C “Chronicle of An announced Birth: The Coming into life of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights – the missing Piece of the International Bill of Human Rights” Human Rights Quarterly 32.1 (2012):144-178

^[122] Ministry of Foreign Affairs and Trade (2008), p.31
^[123]CCPR/C/NZL/Q/5 (24 August 2009)
^[124]CCPR/C/NZL/Q/5 (24 August 2009)
^[125]See for example,Air New Zealand Ltd v Kippenberger [2000] 1 NZLR 418 and Lawson v. Housing New Zealand [1996] NZHC 1528; [1997] 2 NZLR 474.
^[126] A-G v Daniels [2003] 2 NZLR 742
^[127] Lawson v Housing New Zealand [1996] NZHC 1528; (1996) 3 HRNZ 285; CPAG v Attorney-General HC Auckland CIV 2009-404-273 [2010] NZHC 1568; [2011] NZAR 185 (10 September 2010)
^[128] Ministry of Health v Atkinson [2012] 3 NZLR 456T
^[129] [2012] NZCA 184; [2012] 3 NZLR 456
^[130] [2012] NZHC 669; [2012] NZAR 491 (HC)
^[131] Palmer M & Geirginer C (2007) “Human Rights and Social Policy in New Zealand” 30 Social Policy Journal of New Zealand p 12
^[132] Article 23, ICCPR.
^[133] Article 26, ICCPR.
^[134] Article 24, ICCPR.
^[135] Substantive equality expressly addresses the interaction between recognition and redistribution, focussing not on status per se, but those groups for whom status differentiation is correlated with disadvantage. Sandra Fredman, Human Rights transformed: positive rights and positive duties, OUP (2008) p 178
^[136] Annual Report of the UNHCHR and reports of the Office of the High Commissioner and the Secretary General: Thematic Study of the UNHCHR on enhancing awareness and understanding of the Convention on the Rights of Persons with Disabilities. A/HRC/10/48 at para 45
^[137] The use of the description ‘traditional’ is important here because it would arguably not cover aspects of the PPR Act (as I explain later).
^[138] Ibid. at 20
^[139] Rishworth, P. Huscroft, G., Optican S., and Mahoney R. (2003) The New Zealand Bill of Rights (Auckland: OUP).
^[140] Such as the Attorney-General’s reporting procedure under s7 of NZBORA
^[141] Which refers to equality in Article 3
^[142] White paper A.6 at 10.81 & 10.82
^[143] New Zealand Law Society Human Rights Committee (2010) Submission to the 96^th Session of the Human Rights Committee: Shadow Report to New Zealand’s Fifth Periodic report under the International Covenant on Civil and Political Rights accessible at http://www2.ohchr.org/english/bodies/hrc/docs. Accessed on 10/05/2011.
^[144] New Zealand Human Rights Commission (2010) Comment of the New Zealand Human Rights Commission on New Zealand’s implementation of the International Covenant on Civil and Political Rights in Connection with the Consideration of the Fifth periodic report of New Zealand (CCPR/C/NZL/5)
^[145] HRA, s.92J. To date, there have been three findings of inconsistency, Howard v Attorney–General (No.3) (2008) 8 HRNZ 378, and Atkinson v the Ministry of Health HRRT 33/05, Decision No.01/2010 (upheld by the HC and CA), IDEA Services v the Ministry of Health .
^[146] For discussion of this, see Simpson v Attorney-General (Baigent’s case) [1994] NZCA 287; [1994] 3 NZLR 667, 698- 699.
^[147] ICESCR Article 1
^[148] In relation to the ICCPR, the HRC has expressed the view that the right to self determination does not allow for a complaint about a collective right but is conferred on individuals or groups of individuals. While not directly justiciable it is relevant to the interpretation of other rights: Australia’s Ratification of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Human Rights Law Resource Centre Ltd (2009) www.hrlrc.org.au
^[149] The OP comes into force when it has been ratified by 10 countries. As at 16/11/2012 only 10 States had ratified the OP.
^[150] The reason for this is that it ensures there are adequate remedies available to enforce ESC rights at a domestic level. It also provides the State with an opportunity to avoid international criticism. Article 3(1): the obligation to exhaust domestic remedies also forms part of customary international law.
^[151] A recent report of the disability monitoring group also recommended ratification of the OP citing the example of Australia (which has also not ratified the OP to ICESCR).
^[152] United Nations Treaty Collection, ‘Optional Protocol to the Convention on the Rights of Persons with Disabilities: Status as at 27 June 2013’. Accessed online at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15-a&chapter=4&lang=en on 27 June 2013. ‘Accession’ is an act by which a State signifies its agreement to be legally bound by the terms of a particular treaty. It has the same legal effect as ratification, but is not preceded by an act of signature.
^[153] We note that there are also resource implications for the full realisation of civil and political rights, as, for example, in providing for disabled people to exercise their right to vote by secret ballot.
^[154] Supra fn 21 at 50
^[155] White Paper A.6 at 51
^[156] The figure of 80% is an average for the last three years. Commission Annual Reports for the last three years are available online at http://www.hrc.co.nz/resources under the heading ‘Annual Report and Statement of Intent’.
^[157] Section 7.60 of the Cabinet Manual, Cabinet Office, 2008.
^[158] Kochan D.The Property Platform in Anglo-American Law and the Primacy of the Property Concept Georgia State University Law Review Vol.29 no.29 (2013).citing Casner et al., Cases and Text on Property (5th ed. 2004).
^[159]See also Sir William Blackstone Commentaries on the Laws of England, Clarendon (1765)
^[160]Imperial Laws Application Act 1988
^[161]Chapters 1 to 28 having been repealed by s.4(1) of the Imperial Laws Application 1988
^[162]In decisions such as Cooper v Attorney-General [1996] NZHC 1115; [1996] 3 NZLR 480 & Maori Council No.2 [1989] NZCA 43; [1989] 2 NZLR 142
^[163] A concept reflected in the well known adage, “a man’s house is his castle”
^[164] But see Andrew Butler, The Scope of s.21 of the New Zealand Bill of Rights Act 1990: Does it provide a general guarantee of property rights? NZLJ, February 1996 at 58. The author considers that s.21 (which refers to the protection of property) should be interpreted restrictively and confined to breaches of privacy committed by law enforcement agencies. However, he also notes that provisions other than s.21 – for example, s.9 which relates to cruel and unusual punishment - may be implicated if, for example, property is taken without compensation
^[165] The travaux preparatoires state that non-inclusion does not equate with denial of the right ... “(...) no one questioned the right of the individual to own property (...) it was generally admitted that the right to own property was not absolute” and there was wide agreement that the right (...) was subject to some degree of control by the State” while “certain safeguards against abuse must be provided”: Annotations on the text of the draft International Covenants on Human Rights, 1/7/95 UN Doc. A/2929 , para.197,202, 206
^[166] It does afford some protection against expropriation but allows the State a very wide margin of appreciation: Mchangama, J The Right to Property in Global Human Rights Law Cato Policy Report (2011) available at http://www.cato.org/pubs/[policy_report/v33n3/cprv33n3-1.html
^[167] Golay, C.& Cismas, I. Legal opinion: The Right to Property from a Human Rights Perspective, Geneva Academy of International Humanitarian Law and Human Rights (2010)
^[168] Eide, A. Krause, C.& Rosas (eds) Economic, Social and Cultural Rights: A Textbook, Martinus Nijhoff (2001)
^[169] The US Supreme Court for example, has even gone so far as to state: “Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation ... is in truth , a “personal” right ...In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognised“: Lynch v Household Corp.[1972] USSC 86; , 405 U.S 538, 552 (1972)
^[170] Ibid. & Robertson (supra at 60) It is argued that if this interpretation is adopted, property rights underpin the right to self-determination found in all of the core international human rights instruments to which New Zealand is a signatory.
^[171] Evans et al. (supra) at 9
^[172] Golay & Cismas (supra) at 28
^[173] James & Ors v.The United Kingdom: Application no.8793/79, Judgment of 21 February 1986, para 54.
^[174] Application no.9006/80,9262/81,9263/81,9266/81,9313/81, 9405/81. Judgment 8 July 1986
^[175] Alexander, G. “Constitutionalising Property: Two Experiences, Two Dilemmas” in Property and the Constitution, McLean, J (ed.) Hart Publishing 1999 at 89
^[176] Property as a Fundamental Constitutional Right? The German Example, Alexander, G available at www.scholarship.law.cornell.edu/clsops_papers
^[177] Quoted in Sontheimer, K “Principles of Human Dignity in the Federal Republic” in Karpen, U (ed.) The Constitution of the Federal Republic (Baden-Baden: Nomos Verlagsgesellschaft,1988) at 213
^[178] Final Report of the Justice and Law Reform Committee On a White Paper on a Bill of Rights for New Zealand 1.8C, 1988 at 10
^[179] Citing Art.17 of the Declaration, the Fifth Amendment to the US Constitution and section 51 (xxxi) Australian Constitution Act
^[180] Hansard: Introduction of New Zealand Bill of Rights, 10 October 1989, Rt. Hon Geoffrey Palmer. See also G. Palmer, New Zealand’s Constitution in Crisis (Dunedin, McIndoe, 1992) at 57 (cited in Joseph, P. Constitutional and Administrative Law in New Zealand (2^nd ed) Wellington, Brookers, 2001 at para 26.3)
^[181] Palmer, G. “The Bill of Rights After 21 years: the NZ Constitutional Caravan Moves On” August 2011 at 28 cited by Mai Chen in Public Law Tool Box LexisNexis 2012 at 12.12.1
^[182] Evans et al. supra citing Report of the Justice and Electoral Committee: The New Zealand Bill of Rights (Private Property Rights) Amendment Bill at http://www.parliament.nz/NZ/rdonlyres

^[183] Brian Fallow, New Zealand Herald 24 March 2011
^[184] Richard Ekins, Regulatory Responsibility? [2010] NZLJ 25
^[185] Subpart 5 & ss.40 & 41
^[186] The Act also includes a mechanism for appealing a determination about compensation.
^[187] Evans et al. consider state that Australia and New Zealand are the only two OECD countries without explicit property rights protections - though the Constitution of Australia refers to the acquisition of property on ‘just terms.’ (supra, 10)
^[188] Jacinta Ruru (2009), “The common law doctrine of native title possibilities for freshwater’. Unpublished paper presented at the Indigenous Legal Water Forum, 27July 2009, Wellington. Accessed online at http://www.otago.ac.nz/law/nrl/water/NativeTitlePossibilites.pdf
^[189] Ruru, ‘Common law doctrine’, p 5
^[190] See, for example, the chapter on public works acquisitions in Tauranga Moana, in Waitangi Tribunal (2010), Tauranga Moana 1886-2006, pp 280-307. Accessed online at http://www.waitangi-tribunal.govt.nz/reports/downloadpdf.asp?ReportID={2ADE8F1E-FBB7-4402-88DB-C3C7B947A229} on 15 November 2012. Māori freehold land is different to Māori customary land, of which there is very little now left in New Zealand. The native land laws established in the mid-nineteenth century facilitated the individualisation of Māori freehold land through fragmentation and fractionation of title.
^[191] Emphasis added. ‘Resources’ should be broadly construed to include water resources.
^[192] UN General Assembly Declaration on the Right to Development 4 December 1986 Resolution 41/128, at Article 1(1) & (2). A similar right is also provided the African Charter on Human and Peoples’ Rights, and the South African Constitution. Note that New Zealand’s UN membership obliges respect for the Articles of the Universal Declaration, and that this property right has been described as an emerging international customary law.
^[193] UN General Assembly Resolution 53/155, 9 December 1998 and 25 February 1999, at paragraph 7
^[194] Waitangi Tribunal (2012), Interim Water Report. According to the Tribunal’s report on the Central North Island claims, the right to development ‘extended to the development of their property, including through the use of new technologies and/or for new purposes, and to having an equal opportunity to do so. It also included the ability to develop, or profit from, resources in which they have a proprietary interest under Maori custom, even where the nature of that property right was not necessarily recognised under British law.’ See summary of the findings of the Waitangi Tribunal’s report He Maunga Rongo: Report on the Central North Island Claims, accessible online at http://www.waitangi-tribunal.govt.nz/reports/summary.asp?reportid={F093A91B-6F97-408C-BBB7-C38873281702}
^[195] See, for example, Waitangi Tribunal Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim Wai 22 (1988), at pages 222 to 223.
^[196] Treaty of Waitangi (Fisheries Claims) Settlement Act 1992
^[197] Waitangi Tribunal, Interim Water Report, p 38
^[198] New Zealand Maori Council v Attorney-General [2013] NZSC 6 at [para 11]
^[199] See, for example, Maharaj v Attorney-General of Trinidad & Tobago (No.2) [1978] UKPC 3; [1979] Ac 385 (PC) which was instrumental in the New Zealand Court of Appeal developing the concept of a public law remedy in Simpson v Attorney-General (Baigent’s case) [1994] 1 NRNZ 42
^[200] At pp.73 & 74 Two of the judges noted on the course of the judgment that “it would be strange if New Zealand citizens could get a remedy from the United Nations Committee in New York that they could not obtain in New Zealand”.
^[201] Human Rights Commission, Submission on the New Zealand Bill of Rights (Private Property Rights) Amendment Bill.
^[202] Catherine J Iorns Magallanes (2013), ‘Eco-constitutionalism: Recognising Environmental Rights and Values in a Constitution’, Public Lecture, New Zealand Centre for Public Law, 12 June 2013.
^[203] ‘We found Bolivia anew, fulfilling the mandate of our people, with the strength of our Pachamama and with gratefulness to God.’ See English translation of the Preamble to Bolivia: Political Constitution of the State 2009. Official Translation, Bolivian Embassy, Washington DC., p 3. Accessed online at http://www.scribd.com/doc/73770823/Bolivia-2009-Official-Translation on 27 May 2013.
^[204] Articles 33 and 34, Bolivia: Political Constitution of the State, p 12
^[205] Article 108, Bolivia: Political Constitution of the State, pp 26-7.
^[206] The Bill of Rights 1688 applies in New Zealand as a result of the Imperial Laws Application Act 1988
^[207] A V Dicey, Introduction to the Study of the Law of the Constitution, Macmillian(1959) pp39 -40. Parliament is considered the appropriate body in which to vest this power because it reflects the collective wisdom of elected community representatives.
^[208] T Bingham The Rule of Law 2010 at 162
^[209] Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 a7 398
^[210] J F Burrows, Statute Law in New Zealand 3ed LexisNexis (2003) at 23
^[211] Burrows, supra at 18
^[212] Ministry of Health v Atkinson [2012] NZCA 184
^[213] NZLawyer 12 July 2013 at 17
^[214] See HRA Part 3 sections 75 and 76 which outline the Commission’s role and functions in respect of Part 1A and Part 2.
^[215] Human Rights Commission, Submission on the New Zealand Bill of Rights (Private Property Rights) Amendment Bill.
^[216] Human Rights Commission (2010), Māori Representation in Local Government: the Continuing Challenge: He kanohi Māori kei roto i te Kawanatanga-ā-Rohe: Te Taki Moroki. Accessed online at http://www.hrc.co.nz/hrc_new/hrc/cms/files/documents/08-Nov-2010_16-07-00_MaoriRepresentation_web.pdf on 24 June 2013.
^[217] Mason Durie (2005), Ngā Tai Matatū: Tides of Māori Endurance (Oxford University Press) p 222
^[218] Durie, Ngā Tai Matatū, p 221
^[219] Palmer, The Treaty of Waitangi p 291
^[220] Palmer, The Treaty of Waitangi, p 292
^[221] Human Rights Commission, Māori Representation in Local Government p.74.
^[222] Environment Bay of Plenty (nd), ‘Councillors’, Accessed online at http://www.envbop.govt.nz/Council/Councillors.aspx on 4 April 2010.
^[223] Royal Commission on Auckland Governance, Chapter 22 ‘Māori’, pp 477-496. Accessed online at http://ndhadeliver.natlib.govt.nz/ArcAggregator/frameView/IE1055203/http://www.royalcommission.govt.nz/ on 25 June 2013.
^[224] Human Rights Commission, Māori Representation in Local Government, p 6.
^[225] See Human Rights Commission, Māori Representation in Local Government, p 2
^[226] Neal, T., ‘MP praises Maori ward decision, but readers unconvinced’, Nelson Mail, 11 May 2011. Accessed online at http://www.stuff.co.nz/nelson-mail/news/5914620/MP-praises-Maori-ward-decision-but-readers-unconvinced on 25 June 2013.
^[227] Nelson City Council, (2012) ‘Why move now, and why it is important’, Press release. Accessed online at http://www.nelsoncitycouncil.co.nz/maori-ward/?commentStart=0 on 22 December 2012.
^[228] Clare Cricket, ‘Report to Council July 2011 – Decision Required’ accessed online at http://www.waikatoregion.govt.nz/PageFiles/19529/1996565.pdf
^[229] Ihaka J. & Preston N., ‘Public debate Regional council votes in Māori seats but city against’ NZ Herald, 28 October 2011. Accessed online at http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=10762152 on 25 June 2013.
^[230] Durie, Ngā Tai Matatū, p 222.
^[231] Hon. Georgina Te Heuheu, (2000) Speech on the The Bay of Plenty Regional Council (Māori Constituency Empowering) Bill cited in Human Rights Commission, Māori representation in Local Government, p 15
^[232] Steiner, H (1988) Political Participation as a Human Right Human Rights Yearbook, Vol.1
^[233] New Zealand ratified the ICCPR in 1978. There are no reservations registered against the articles discussed in this submission.
^[234] Art.7(b) CEDAW
^[235] UNCROC includes Art 12 Rights of the child to be heard and express views freely particularly in judicial and administrative proceedings affecting them.
^[236] ICPRD includes general principles of non-discrimination and full and effective participation and inclusion in society; accessibility (art 9) equal recognition before the law (art 12) access to justice (art 13) participation in political and public life (art 29) statistics and data collection (art 31)
^[237] UNDRIP includes Art 5 maintenance of distinctive institutions and retention of right to participate in life of the State; Art 8 2 States should provide effective mechanisms for prevention of deprivation of distinct identity and any form of forced assimilation or integration Art 18 right to participate in decision-making about matters that affect them through own representatives Art 19 States shall consult and cooperate in good faith through own representative institutions to obtain free prior and informed consent; Art 27 States shall establish and implement process to give due recognition to IPs own laws Art 37 right to enforcement of Treaties.
^[238] D Beetham, Democracy and Human Rights: Contrast and Convergence (2002) cited in Human Rights in New Zealand Today: Nga Tika Tangata O te Motu: Human Rights Commission, Wellington (2004) p 91.
^[239] Human Rights Commission (2011), Strengthening Parliamentary Democracy. Accessed online at http://www.hrc.co.nz/2011/feedback-on-strengthening-parliamentary-democracy-paper on 19 July 2013.
^[240]Human Rights Commission (2012), Submission on the Environment Canterbury (Temporary Commissioners and Improved Water Management Bill. Accessed online at http://www.hrc.co.nz/2012/submission-on-the-environment-canterbury-temporary-commissioners-and-improved-water-management-bill on 19 July 2013. Human Rights Commission (2012), Submission on the Local Government Act 2002 Amendment Bill. Accessed via the Commission’s ‘Resources’ page under the heading ‘Human Rights Submissions’. Accessed online at http://www.hrc.co.nz/resources on 19 July 2013. The Commission’s submissions on the re-organisation of local government in Auckland, visit the library catalogue at http://library.hrc.co.nz/liberty3/libraryHome.do
^[241] Human Rights Commission (2012), The Wider Journey (three reports). Accessed online at http://www.hrc.co.nz/disabled-people/disabled-peoples-rights-reports on 19 July 2013. Human Rights Commission, ‘Convention on the Rights of Persons with Disabilities’. Accessed online at http://www.hrc.co.nz/disabled-people/convention-on-the-rights-of-persons-with-disabilities on 19 July 2013.
^[242] Human Rights Commission (2013), The Right to Sign: New Zealand Sign Language and Human Rights. Accessed online at http://www.hrc.co.nz/key-projects/the-right-to-sign-new-zealand-sign-language-and-human-rights on 19 July 2013. Human Rights Commission, ‘Māori Language Week’. Accessed online at http://www.hrc.co.nz/race-relations/maori-language-week on 19 July 2013.
^[243] Human Rights Commission, ‘Te Waka Reo – National Language Policy Network’. Accessed online at http://www.hrc.co.nz/race-relations/te-ngira-the-nz-diversity-action-programme/te-waka-reo-national-language-policy-network on 19 July 2013.
^[244] Human Rights Commission, ‘Canterbury Earthquake Recovery’. Accessed online at http://www.hrc.co.nz/key-projects/canterbury-earthquake-recovery on 19 July 2013.
^[245] Human Rights Commission (2013), ‘UPR 13/14: New Zealand’s Second Universal Periodic Review’. Accessed online at http://www.hrc.co.nz/international-human-rights-new/upr-1314-nzs-second-universal-periodic-review on 19 July 2013. The Commission’s finalised UPR submission is available on request.
^[246] See Cabinet Manual (2008), ‘Official Information Act 1982’, Accessed online at http://cabinetmanual.cabinetoffice.govt.nz/8.13 on 14 March 2013.
^[247] The Office of Ethnic Affairs, (nd) ‘How Language Line Works’, Accessed online at
http://ethnicaffairs.govt.nz/story/how-language-line-works on 25 June 2013.
^[248] 219 (1) The proceedings of any select committee during the hearing of evidence on a bill or other matter, which is the subject of consideration by the committee, are open to the public. New Zealand Parliament, (nd), ‘Standing Orders’. Accessed online at http://www.parliament.nz/en-NZ/PB/Rules/StOrders/Chapter4/a/0/2/00HOHPBReferenceStOrdersChapter4HHearing1-Hearing-of-evidence.htm 14 March 2013
^[249] Cabinet Manual 7. 99. Accessed online at http://cabinetmanual.cabinetoffice.govt.nz/node/56#7.97 on 14 March 2013
^[250] Michael Daly, ‘NZ shines again in transparency poll’, Fairfax News NZ, 5 December 2012. Accessed online at http://www.stuff.co.nz/national/politics/8040198/NZ-shines-again-in-transparency-poll on 14 March 2013
^[251] Electoral Commission, (nd) ‘How are MPs elected’. Accessed online at http://www.elections.org.nz/voting-system/mmp-voting-system/how-are-mps-elected on 14 March 2013
^[252] Cabinet manual 7.126. Accessed online at http://cabinetmanual.cabinetoffice.govt.nz/7.126 on 14 March 2013
^[253] New Zealand Parliament (nd), ‘Establishment of Committees’. Accessed online at http://www.parliament.nz/en-NZ/PB/Rules/StOrders/Chapter4/c/d/1/00HOHPBReferenceStOrdersChapter4AEstablishment1-Establishment-of-committees.htm on 14 March 2013
^[254] Human Rights Commission (2011) Political Participation for Everyone: Disabled Peoples’ Rights and the Political Process, pp 5, 7-9. Accessed online at http://www.hrc.co.nz/disabled-people/disabled-peoples-rights-reports/political-participation-for-everyone on 25 June 2013.
^[255] See Human Rights Commission, Māori Representation in Local Government for a discussion of the issue.
^[256] Ministry of Justice (nd), ‘MMP Referendum’. Accessed online at http://www.justice.govt.nz/electoral/mmp-referendum on 25 June 2013.
^[257] Human Rights Commission (2009), Submission to the Ministerial Review Panel, Foreshore and Seabed Act 2004 Review. Available on request.
^[258] Human Rights Commission (2012), Submission on the Environment Canterbury (Temporary Commissioners and Improved Water Management) Bill. Accessed via library catalogue online at http://library.hrc.co.nz/liberty3/opac/search.do?queryTerm=environment%20canterbury&mode=BASIC&activeMenuItem=false# on 25 June 2013.
^[259] Human Rights Commission (2013), ‘Commissioned concerned new family carer legislation will compromise disability rights’. Accessed online at http://www.hrc.co.nz/2013/commission-concerned-new-family-carer-legislation-will-compromise-disability-rights on 19 July 2013.
^[260] Human Rights Commission, Political Participation, pp 5, 7-9.
^[261] See Human Rights Commission (2012) ‘Communication in a Crisis: is New Zealand Prepared?’ Te Waka Reo newsletter, May 2012. Accessed online at http://www.hrc.co.nz/newsletters/diversity-action-programme/te-waka-reo/2012/05/communication-in-a-crisis-is-new-zealand-prepared/ on 19 July 2013. Human Rights Commission (2009) ‘Ministry of Health asked to provide swine flu information in community languages.’ Te Waka Reo newsletter, June 2009.
Accessed online at http://www.hrc.co.nz/newsletters/diversity-action-programme/te-waka-reo/2009/06/ministry-of-health-asked-to-provide-swine-flu-information-in-community-languages/ on 19 July 2013.
^[262] Human Rights Commission, Political Participation, p 10. Green Party of Aotearoa New Zealand (2012), ‘Mojo Mathers Maiden Speech to the House’. Accessed online at http://www.greens.org.nz/speeches/mojo-mathers-maiden-speech-house on 25 June 2013. Funding was eventually approved through Parliamentary Services. See Office of the Speaker (2012), ‘Funding Decision for Mojo Mathers’, Press release, 9 March. Accessed online at http://www.scoop.co.nz/stories/PA1203/S00132/funding-decision-for-mojo-mathers.htm on 25 June 2013.
^[263] See, for example, Human Rights Commission, Political Participation, for a discussion of some of these issues.
^[264] Isaac Davidson, ‘Government slammed over censored caregiver legislation,’ New Zealand Herald, 20 May 2013. Accessed online at http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10884835 on 25 June 2013.
^[265] Human Rights Commission, (2011) Strengthening Parliamentary Democracy: a discussion paper, p 3. Accessed online at http://www.hrc.co.nz/wp-content/uploads/2011/05/Strengthening-Parliamentary-Democracy-final-17June11.pdf on 25 June 2013.
^[266] Human Rights Commission, Strengthening Parliamentary Democracy, pp 3, 11-12
^[267] See, for example, Andrew Ecclestone, (2012) ‘Open Government Partnership,’ Accessed online at https://fyi.org.nz/request/open_government_partnership on 25 June 2013.
^[268] Human Rights Commission, Strengthening Parliamentary Democracy, p 9
^[269] Human Rights Commission, Strengthening Parliamentary Democracy, p 3

The Prime Minister has hit back at the Maori Council, describing its Waitangi Tribunal claim for water ownership as "opportunistic". ..., the Prime Minister ... asked ... if water is so important, where was the Maori Council when Contact Energy was sold? “Why wasn't it tested in 1999 when Contact was sold?” asks John Key. “In my view it's opportunistic.” He was backed up by his deputy. “The Maori Council doesn't have any interest in any river, lake, spring or creek,” says Finance Minister Bill English.
See Duncan Garner, ‘Maori claims opportunistic – Prime Minister’, TV3 News, 17 July 2012. Accessed online at http://www.3news.co.nz/Maori-claims-opportunistic--Prime-Minister/tabid/1607/articleID/261651/Default.aspx on 12 March 2013.
^[271] Richard Cornes (1998), Checks and Balances in Single Chamber Parliaments: a Comparative Study, Working Paper 24. The Constitution Unit, School of Public Policy, University College, London, p 33. Accessed online at http://www.ucl.ac.uk/spp/publications/unit-publications/24.pdf on 25 June 2013.
^[272] Electoral Commission (nd), ‘Referenda’. Accessed online at http://www.elections.org.nz/voting-system/referenda on 25 June 2013.; Electoral Commission (nd), Report of the Royal Commission on the Electoral System 1986. Accessed online at http://www.elections.org.nz/voting-system/mmp-voting-system/report-royal-commission-electoral-system-1986 on 25 June 2013.
^[273] Claire Trevett, ‘Voters divided on four-year term,’ New Zealand Herald, 25 March 2013. Accessed online at http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10873403 on 25 June 2013.
^[274] Claire Trevett, ‘Call to relax rules for MPs with babies,’ New Zealand Herald, 20 May 2013. Accessed online at http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10884750 on 25 June 2013. Claire Trevett, ‘Baby issue “up to Speaker”’, New Zealand Herald, 21 May 2013. Accessed online at http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10884994 on 25 June 2013.
^[275] Human Rights Commission, Strengthening Parliamentary Democracy, p 9.
^[276] P Joseph, (2010) ‘Environment Canterbury Legislation’, NZLJ at 193
^[277] The Act was passed under extended sitting hours adopted by leave of Parliament, rather than under urgency.
^[278] The Act changed the status of film workers to independent contractors and removed their right to collectively bargain. It was passed under urgency and no regulatory impact statement was prepared. Nor were any public submissions heard.
^[279] Data supplied by the Parliamentary Library in response to an email request from former MP Jackie Blue.

^[280] Human Rights Commission (2012), New Zealand Census of Women’s Participation. Accessed online at http://www.hrc.co.nz/2012/commission-releases-census-of-women%E2%80%99s-participation-2012 on 30 July 2013.
^[281] Kate Stone, ‘Creating a Constitutional People’, p 1, in The Institute of Policy Studies and the New Zealand Centre for Public Law, Reconstituting the Constitution: Conference Papers, 2-3 September 2010.
^[282] Stone, ‘Creating a Constitutional People’, pp 8-9
^[283] Peter Ferdinand (2000), ‘The Internet, Democracy and Democratization’, cited in Stone, ‘Creating a Constitutional People’, p 10
^[284] The ‘Virtual Parliament UK’ website at www.virtualparliament.org.uk was live at the time of research for this section in March-April 2013. The website appears to be no longer operational.
^[285] Anand Giridharadas (2009) ‘Democracy 2.0 awaits an upgrade’, New York Times, http://www.nytimes.com/2009/09/12/world/americas/12iht-currents.html?pagewanted=all&_r=0 14 March 2013.
^[286] Giridharadas (2009) ‘Democracy 2.0’.
^[287] United Nations Centre for Human Rights, Human Rights and Elections: A Handbook on the Legal, Technical and Human Rights Aspects of Elections, Geneva, 1994.
^[288] Education for Citizenship and the Teaching of Democracy in Schools: Final Report of the Advisory Group on Citizenship, QCA, London, 2007.
^[289] Giridharadas, ‘Democracy 2.0 awaits an upgrade’.

^[290] Formed in Auckland, the Pacific Realm Group (PRG) involves community leaders from Tokelau, Cook Islands and Niue. The PRG was established as an outcome of the first set of consultations by the Constitutional Advisory Panel, University of Auckland Law Faculty and Auckland Council’s Pacific Peoples Advisory Panel, and has met regularly since then.
^[291] Ministry of Justice, (2000) Pacific Peoples’ Constitutional Report, Chapter 6.2. Accessed online at http://www.justice.govt.nz/publications/publications-archived/2000/pacific-peoples-constitution-report-september-2000/implications on 17 June 2013.
^[292] Human Rights in New Zealand 2010, p 49.
^[293] Ministry of Justice, ‘Summary of Conclusions: Chapter 1’, Pacific Peoples’ Constitutional Report, p ?
^[294] Email correspondence outlining PRG concerns and issues, Dr Nuhisifa Seve-Williams (PRG) to Samuelu Sefuiva (Human Rights Commission), 12 June 2013.
^[295] Definitions cited in email correspondence between Dr Nuhisifa Seve-Williams (PRG) and Samuelu Sefuiva (Human Rights Commission), 12 June 2013.
^[296] Ministry of Justice, ‘Summary of Conclusions: Chapter 1’, Pacific Peoples’ Constitutional Report, p ?
^[297] Nicola Russell, ‘Auckland Pasifika March Draws Crowds,’ Fairfax News New Zealand, 16 June 2012. Accessed online at http://www.stuff.co.nz/national/7115776/Auckland-Pasifika-march-draws-crowds on 17 June 2013.
^[298] Email correspondence between Dr Nuhisifa Seve-Williams (PRG) and Samuelu Sefuiva (Human Rights Commission), 12 June 2013.
^[299] Human Rights in New Zealand 2010, p 39.
^[300] Statistics New Zealand (2010), National Ethnic Population Projections: 2006(base)-2026(update). Accessed online at http://www.stats.govt.nz/browse_for_stats/population/estimates_and_projections/NationalEthnicPopulationProjections_HOTP2006-26.aspx on 30 July 2013. The next National Ethnic Populations Projections, based on the 2013 census, are expected to be released in 2015.
^[301] Elias, ‘Fundamentals: A Constitutional Conversation’, p 1.
^[302] Palmer, The Treaty of Waitangi, p 25.
^[303] These questions were taken from the various sections on the Constitution Conversation website under the heading ‘These are the questions we would like your feedback on.’ Accessed online at http://www.ourconstitution.org.nz/ on 24 June 2013.
^[304] Consistent with the Commission’s Race Relations programme, this category includes responses related to religious diversity, and the right to freedom of religion and belief.
^[305] Eva Josefsen (2010) The Saami and the national parliaments: Channels for political influence, (Inter-Parliamentary Union and United Nations Development Programme), p 17. Accessed online at http://www.ipu.org/splz-e/chiapas10/saami.pdf on 25 June 2013.
^[306] Information taken from Sami Parliament websites.
^[307] Sápmi, ‘Politics: The Sami Parliament in the Nordic Region,’ Accessed online at http://www.eng.samer.se/servlet/GetDoc?meta_id=1111 on 25 June 2013.
^[308] Josefsen, The Saami and the National Parliaments, p 7
^[309] Josefsen, The Saami and the National Parliaments, p 7
^[310] Sápmi, ‘Politics: The Sami Parliament in Sweden’ Accessed online at http://www.eng.samer.se/servlet/GetDoc?meta_id=1103 on 25 June 2013.
^[311] Josefsen, The Saami and the national parliaments, p 4
^[312] Josefsen, The Saami and the national parliaments p 6

^[313] Wikipedia (nd), ‘Sámi Politics’, Accessed online at https://en.wikipedia.org/wiki/Sámi_politics on 25 June 2013.
^[314] Sápmi, ‘The Sámi and the EU’. Accessed online at http://www.eng.samer.se/servlet/GetDoc?meta_id=1110 on 25 June 2013.

^[315] Josefsen, The Saami and the national parliaments, p 9. The Nordic Sami Convention: International Human Rights, Self-Determination and other Central Provisions. Accessed online at http://www.arcticgovernance.org/the-nordic-sami-convention-international-human-rights-self-determination-and-other-central-provisions.4644711-142902.html on 25 June 2013.

^[316] S James Anaya (2010), ‘Nordic Sami Convention would strengthen human rights of Sami in the Nordic Region’, Press release, 20 April. Accessed online at http://unsr.jamesanaya.org/notes/nordic-sami-convention-would-strengthen-the-human-rights-of-sami-in-the-nordic-region-apr-2010 on 25 June 2013.

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Article	English	Te Reo	English Translation of Te Reo	Related Human Rights Standards
One	Sovereignty	Kawanatanga	Governorship	Right to self-determination (for incoming settlers) Democratic rights (including citizenship rights and legal rights protected by the rule of law)
Two (a)	Full, exclusive and undisturbed possession	Tino Rangatiratanga	The unqualified exercised of their chieftainship	Right to self-determination (for tangata whenua) Indigenous rights
Two (b)	The exclusive right of Pre-emption	Ka tuku ki te Kuini te hokonga	Will sell land to the Queen	Property rights
Three	All the Rights and Privileges of British subjects	Nga tikanga katoa rite tahi ki ana mea ki nga tangata o Ingarani	The same rights and duties of citizenship as the people of England	Rights to equality and non-discrimination (in the realisation of civil, political, economic, social and cultural rights)
‘Four’	The several faiths (beliefs) of England, of the Wesleyans, of Rome and also Māori custom shall alike be protected (verbal)			Right to freedom of religion and beliefs

	_Scenario	_{Principal concept of power}	_{Site of power}	_{Power relationship}	_{Constitutional Outcomes}
_a	_{The Treaty is part of NZ’s constitutional arrangements}	_{Sovereignty (with minimal recognition of Mana)}	_{Crown (with a limited role for Rangatira)}	_{Crown sovereignty fettered by the Treaty to respect Māori customary rights}	_{Government needs to more systematically protect the rights and resources of Māori e.g. by greater legal and/or constitutional protection for the Treaty}
_b	_{The Treaty shapes NZ’s constitutional arrangements}	_{Mana + Sovereignty}	_{Rangatira + Crown}	_{Mana Māori and Crown sovereignty shared via the Treaty}	_{A robust process should be established to develop bicultural governing institutions}
_c	_{NZ’s constitutional arrangements flow from the Treaty}	_Mana _Soveriegnty	_Rangatira _Crown	_{Mana Māori delegated rights via Treaty to settlers in order for them to govern their own affairs}	_{A robust process should be developed to re-constitute self-governing institutions for Māori that work in tandem with existing governing arrangements}

Focus question	Benefits and risks of a written constitution
Would a codified constitution better guarantee rights and protections?	Benefits: It could clearly set out the roles and responsibilities of the branches of government and how they are to protect rights It could promote heightened constitutional and human rights vigilance It could more fully establish judicial independence by institutional means It could provide standards with which government agencies must comply in the development of laws and policy It could better guarantee that declarations of the court re: inconsistencies with rights / constitutional standards would be obeyed (cf. MacLean) It could more fully articulate the role of the Treaty in the constitution and identify an avenue for redressing Treaty issues Risks: Important rights – economic, social and cultural rights, for example – could be excluded and may therefore be seen as ‘lesser’ rights It could marginalise the Treaty of Waitangi if not developed as part of a robust process to establish a state based on the Treaty
Would a codified constitution clarify the ‘uneasy’^[301] and ‘uncertain’^[302] aspects of New Zealand’s constitution?	Benefits: It could more clearly articulate the ‘constitutional dialogue’ and the roles and institutions of Parliament, the Executive and the Judiciary In practice, written constitutions also draw on ‘unwritten’ values and conventions, and unwritten constitutions are defined by written documents i.e. the opposition between written and unwritten is not as great as it appears It could more fully articulate the role of the Treaty in the constitution and identify an avenue for redressing Treaty issues Risks: The full range of constitutional texts could be under-included in a codified text Codification could introduce too much rigidity and impede evolution Not having a written would avoid the process of having to discern the ‘original intent’ of constitutional framers
Would a codified constitution provide a better avenue for the definition of New Zealand’s values and institutions?	Benefits: It could more fully articulate the role of the Treaty in the constitution It could provide a check on laws and practices being established in an ad hoc way that are contrary to New Zealand’s stated values It could provide judges with a statement of common shared values to apply, rather than to ‘discover’ from the common law It could distinguish New Zealand further from the United Kingdom, and further underline its specific national character and (post-colonial) values It could more fully articulate values and institutions that respect the diversity of New Zealand’s population. rather than relying on a ‘common sense’ shared understanding It could assist New Zealanders in coming to a consensus about shared values if a process of defining them in writing was properly carried out Risks: Important values could be left out (whether unintentionally or as a result of politics) and hence marginalised in judicial interpretation and the development of laws and policies

Category	Number	Percentage (out of 1357)
Race Relations^[304]	212	15.62%
Government	199	14.66%
Living in New Zealand	186	13.71%
Law and Order	169	12.45%
Education	138	10.17%
Human Rights	128	9.43%
Environment	87	6.41%
Health	44	3.24%
Poverty	42	3.10%
Young People’s Issues	33	2.43%
Marriage Equality	32	2.36%
Treaty of Waitangi	23	1.69%
Housing	21	1.55%
Disability	17	1.25%
Miscellaneous	16	1.18%
Canterbury Earthquake Recovery	10	0.74%
Total:	1357

Country	Sámi Population	Date Established	Constitutional Position	Funding from the state
Finland	6,000	Delegation for Sámi Affairs established 1973; Sámi Parliament established 1996	The Finnish Constitution recognizes the Sámi as Indigenous People and protects their cultural and linguistic autonomy within their homeland.	Yes. The Sámi Parliament in Finland receives the least funding of the three countries
Norway	40,000	1989	No clear constitutional position: not fully independent, but not state-controlled.	Yes. The Sámi Parliament in Norway receives the most funding of the three.
Sweden	20,000	1993	Not considered to be self-governing and controlled by the Swedish state.	Yes. The Sámi Parliament in Sweden receives an annual appropriation of several million kroner.

1	Executive Summary	5
2	Introduction	16
3	Aspirations	21
	Commission aspirations and engagement with the Panel Tell Us Your Dream campaign for Race Relations Day 2013 Constitutional review engagements and workshops	21 22 22
4	The Role of the Treaty of Waitangi In New Zealand’s constitutional arrangements	24
	The Commission’s Treaty Framework The Treaty and international human rights standards Right to self-determination Indigenous rights The domestic context: the Treaty partners The Crown Rangatira The current health of the Treaty partnership Determining the role of the Treaty in New Zealand’s constitutional arrangements The Treaty is part of New Zealand’s constitutional arrangements The Treaty shapes New Zealand’s constitutional arrangements New Zealand’s constitutional arrangements flow from the Treaty Recommendations	24 25 26 32 35 35 38 43 44 46 47 49 53
5	Human rights and the New Zealand Bill of Rights Act	56
	The international human rights framework Mechanisms for enforcing international standards The government’s view on the need for additional human rights protections Public Health and Disability Amendment Bill No. 2. Protection of ICCPR rights New Zealand Bill of Rights Act (NZBORA) Further options for increasing human rights protections Protection of property rights Protection for the environment Parliamentary sovereignty and the rule of law Recommendations	56 56 58 59 60 62 66 69 79 80 82
6	Māori Representation	85
	Māori representation in central government Mechanism provided for Māori representation in local government Recommendations	85 86 91
7	Electoral Matters	92
	International standards Principles of participation Analysis of participation in New Zealand’s constitutional arrangements Electoral matters: providing checks and balances The parliamentary term The size of Parliament The election date Size and number of electorates MPs who leave their parties The use of urgency Gender and ethnic diversity in Parliament Future innovation Civic education Recommendations	92 93 94 101 102 104 104 105 106 106 107 108 111 112
8	New Zealand’s constitutional arrangements and Pacific realm countries	114
9	New Zealand’s constitutional arrangements and multi-culturalism	119
10	A Written Constitution?	120

1	Summary table of the Treaty of Waitangi and related Human Rights Standards	26
2	Three scenarios for the role of the Treaty in New Zealand’s constitutional arrangements	45
3	Current provision for participation in Aotearoa New Zealand’s constitutional arrangements	94
4	Limits on provision for participation in New Zealand	97
5	Reasons for and against extending the parliamentary term	102
6	Benefits and risks of moving to a written constitution	120
7	Differences between the Sámi Parliaments	136

A	Brief answers to Constitutional Advisory Panel questions	122
B	UN Treaty Body and Special Procedures Recommendations to New Zealand on Constitutional Matters 2006-2013	129
C	Case-study of the Sámi Parliaments of North-western Europe	136
D	Treatment of Property Rights as Human Rights in OECD Countries	141
E	List of Bills Passed Under Urgency since 2008	146

New Zealand Human Rights Commission Submissions

Review of New Zealand's Constitutional Arrangements - Submission to the Constitutional Advisory Panel [2013] NZHRCSub 5 (31 July 2013)