1. RECOGNITION OF LAND RIGHTS / TITLE
|Recognition of Land Rights/ Title Scores|
- Under the 1840 Treaty of Waitangi (Article 2), the Maori are guaranteed "the full exclusive and undisturbed possession of their lands and estates, forests, fisheries, and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession."
- Maori land can only be alienated to the British Crown. The treaty affords the Crown with "the exclusive right of pre-emption over such lands as the proprietors thereof may be disposed to alienate."
- Legislation in 1993 created what are called Maori reservations. Under the Te Ture Whenua Maori Act 1993 (also called the Maori Land Act 1993), any Maori freehold land or any general land may be set aside as a Maori reservation. As well, Crown land with historical, spiritual, or emotional significance to the Maori can also be set aside with this designation.
- Under the Te Ture Whenua Maori Act 1993, a reservation can be established for any of the following purposes: a village site; sports grounds; a catchment area or other source of water supply; a place of cultural, historical, or scenic interest; a timber reserve, among others.
- Maori reservations are distinct from Maori reserves which are administered by the New Zealand government under the Maori Reserved Land Act 1955. Under this legislation, the Maori were granted land freeholds to tracts of land set aside by the Crown and leased to the owner (which need not be Maori) in perpetuity.
- With the enactment of the Treaty of Waitangi Act 1975, a Maori Land Court was established, though this body had been in existence since 1862 as the Native Land Court under the jurisdiction of the Native Land Act.
- The Native Land Court was established largely to confiscate Maori lands (Gilling 1993). However the newer Maori Land Court, with powers limited to those of a tribunal, conducts hearings concerning Maori land claims, as well as successions, title improvement, and Maori land sales.
- In 2011, the government repealed the 2004 Foreshore and Seabed Act. The replacement act – the Marine Coastal Area (Takutai Moana) Act 2011 – removed Crown ownership of the foreshore and seabed and introduced a “no ownership” principle. This change subsequently restored the rights of the Maori to seek title and customary rights through the courts or through negotiation with the government.
2. RECOGNITION OF SELF-GOVERNMENT RIGHTS
Partial, but limited to community bylaws.
|Recognition of Self-government Scores|
- The Maori Social and Economic Advancement Act passed in 1945 conferred a limited measure of self-government upon organized Maori communities. This act was consolidated and amended with the enactment of the Maori Community Development Act 1962.
- The Maori Community Development Act 1962 recognizes established Maori District Committees and District Maori Councils. The 1962 legislation groups local community committees into districts and then combines these districts so as to allow for the creation of a New Zealand Maori Council at the national level.
- Under this legislation, Maori District Committees are given authority to exercise Maori customary law by way of bylaws in Maori communities.
- The act, however, is administered by the New Zealand Minister of Maori Affairs under his or her general direction and control.
- The Treaty of Waitangi Act of 1975 established the Waitangi Tribunal, which is charged with making recommendations on claims relating to the practical application of the principles of the Treaty of Waitangi. Moreover, the Tribunal is a permanent commission of inquiry charged with making recommendations on claims brought by Maori relating to actions or omissions of the Crown that breach the promises made in the Treaty of Waitangi. The recommendations of the Tribunal are not, however, binding upon the Crown.
- Maori interpretations of the Treaty of Waitangi maintain that Maori autonomy is a requirement of the Crown in its obligation to treaty duties. Although the English version of the text grants the Crown sovereignty, the Maori text limits the Crown's rights of government short of sovereignty (Wiessner 1999).
- In 2015, the Waitangi Tribunal, found in favour of Maori arguments, agreeing that original Treaty of Waitangi signed in 1840, did not include a cession of Maori sovereignty as has been claimed by the Crown. The government has not publicly accepted this finding; nonetheless, it supports and affirms the Maori position on self-determination (O’Sullivan 2017).
3. UPHOLDING HISTORIC TREATIES AND / OR SIGNING NEW TREATIES
|Upholding Treaties Scores|
- Signed on 6 February 1840, the Treaty of Waitangi is a founding document of government in New Zealand, and established the country as a nation. According to the English text, the Maori ceded the sovereignty of New Zealand to Britain and gave the Crown an exclusive right to buy lands they wished to sell. In return, the Maori were guaranteed full rights of ownership of their lands, forests, fisheries and other possessions, and were given the rights and privileges of British subjects (New Zealand 2010).
- In a submission to the United Nations, the Government of New Zealand made it clear that, "The Treaty of Waitangi continues to be the founding document for the ongoing and evolving relationship between Maori and the Crown" (UN 2006a, 13).
- The Treaty of Waitangi has never been ratified, however it is commonly held to be the founding document of New Zealand and the source of political legitimacy for current state institutions. The principles of the treaty have been given statutory force in legislation, and it is argued that the treaty is part of the "unwritten" constitution of New Zealand (Pryor 2008, 86).
- The Office of Treaty Settlements, under the Ministry of Justice, was established and continues in operation to negotiate the settlement of historical Treaty of Waitangi claims and build positive relationships between the Crown and Maori. The Government of New Zealand has stated an objective of having all claims settled by 2020 (UN 2006a, 15).
- 46 treaty settlements were finalized and passed into legislation between 2010 and 2019; upwards of thirty treaty negotiations and settlement processes remain ongoing (where deed of settlement have not yet been signed) (Government of New Zealand 2020).
4. RECOGNITION OF CULTURAL RIGHTS (LANGUAGE, HUNTING / FISHING, RELIGION)
|Recognition of Cultural Rights Scores|
- The Maori language was confirmed and guaranteed by the Crown in the Treaty of Waitangi. The Maori Language Act of 1987 declared the Maori language to be an official language of New Zealand. The act confers upon the Maori the right to speak Maori in legal proceedings, however the right does not entitle any person to insist on being addressed or answered in Maori.
- With the enactment of the Maori Language Act 1987, the government of New Zealand established the Maori Language Commission. The main function of the commission is to "promote the Maori language, and, in particular, its use as a living language and as an ordinary means of communication."
- In 2003, the commission initiated the Maori Language Strategy. The strategy aimed to move the Maori language to the next stage of revitalization over the next twenty-five years. The strategy has received confirmation and direction from the New Zealand Cabinet.
- In 2016, the Māori Language Act 2016 was enacted. The Act gives the Māori language (Te Reo Maori) official status. This means that Te Reo Maori can now be used in signs and official notices, in legal proceedings, and to conduct business. The Act further created a new organization, Te Mātāwai, to develop and lead language revitalization activities.
- Maori are entitled to both commercial and non-commercial fishing rights in New Zealand in both legislation and under the common law doctrine of Aboriginal rights. Moreover, the orthodox position is that the Treaty of Waitangi guarantees, under Article 2, protection of Maori fisheries where Aboriginal title has not been clearly extinguished (Maihi 2003, 18).
- The doctrine of Aboriginal rights entitle the Maori to a range of hunting, fishing and other types of food gathering (classed as being similar in nature to rights to take and rights of access and passage). In Te Weehi v. Regional Fisheries Officer , Maori fishing rights were affirmed and deemed protected under the doctrine of Aboriginal rights.
- Among the first statutes to explicitly confer Maori fishing rights was the Fisheries Act 1983. This legislation stated that, "nothing in this Act shall affect any Maori fishing right." This legislation has since been repealed, yet the obligations it contained form part of the new statutory base through which Maori fisheries rights are now conferred. Customary fishing rights are guaranteed by theTreaty of Waitangi (Fisheries Claims) Settlement Act 1992 and the 1992 Deed of Settlement. Under the Deed of Settlement, the New Zealand government has specific obligations to Māori to provide for both customary fisheries management practices and the traditional gathering of fish. Further legislation and regulations include the Fisheries Act 1996; Maori Fisheries Act 2004; and the Maori Commercial Aquaculture Claims Settlement Act 2004; the Waikato-Tainui (Waikato River Fisheries) Regulations 2011 (New Zealand 2009; New Zealand 2019).
- The Government of New Zealand, acting on behalf of the Crown, has developed the Fisheries Treaty Strategy. In partnership with the Maori, the treaty strategy is designed to ensure the Crown meets its obligation to Maori under treaty principles, legislative obligations in the area of fisheries and aquaculture.
5. RECOGNITION OF CUSTOMARY LAW
|Recognition of Customary Law Scores|
- Maori customary law refers to the established governance arrangements, social structures, and system of norms and customs that existed prior to European settlement. Together, these customs and laws are generally referred to as tikanga Māori.
- In New Zealand, Maori custom law is a source of treaty law, with the Treaty of Waitangi promising the protection of Maori custom and cultural values. Maori customary law is relevant in several areas such as sentencing, family protection claims, in the protection and utilization of natural resource, as well as the administration of land.
- New Zealand subscribes to the common law "doctrine of aboriginal rights" which is based on the presumption of continuity, namely that customs, particularly long-standing and universally observed customs of a particular community or in relation to a particular piece of land, are granted the force of law under English domestic law and may be enforced in accordance with the remedies available at law and in equity (NZLC 2001, 11).
- The New Zealand Law Commission points out that, in recent times, judges are increasingly being required to develop an understanding of Maori cultural values and practices and how they apply to particular situations (NZLC 2001, 49).
- The Māori Land Court created in 1993 is guided by tikanga Māori. The Land Court has the authority to hear cases relating to the ownership, administration, and transfer of ownership of Māori Land. Most cases that come before the Court relate to freehold land (with multiple owners), however, the court may determine and declare “land that is held by Māori in accordance with tikanga Māori” to be “Māori customary land.”
- Customary law and Māori customary rights relating to the foreshore and seabed were a major site of debate and protest in the early 2000s. As mentioned elsewhere, the Marine and Coastal Area (Takutai Moana) Act 2011, removed Crown “ownership” from the foreshore and seabed, enabling Māori to seek recognition of rights and title of these areas in the courts. The legislation further enshrined the right of the Māori to participate in conservation processes in marine and coastal areas (Buchanan 2013).
6. GUARANTEES OF REPRESENTATION / CONSULTATION IN THE CENTRAL GOVERNMENT
Yes, both representation and consultation.
|Guarantees of Representation Scores|
- According to the New Zealand Ministry of Justice, the Treaty of Waitangi provides a set of reasons to consult with Maori, namely the principle that the Treaty stipulates a constructive and mutually respectful relationship between the Crown and Maori. "The Treaty of Waitangi, as the founding document of New Zealand, was the first step in bringing together two parties with distinct backgrounds and cultures. Consultation is a way of ensuring that Maori are given the opportunity to provide their views during the development of justice policy" (New Zealand 1997).
- Moreover, the courts and various jurisprudence have developed guidelines that entail: the relationship should be built on mutual cooperation and trust, there are basic principles of reasonableness and good faith, and the Crown has to make informed decisions (ibid.).
- The Government of New Zealand has moved toward direct reference of the Treaty of Waitangi in legislation, moving away from general references to a clear articulation of the responsibilities of government or local government to provide for consultation with Maori or Maori participation in decision-making in relation to specific activities (UN 2006a, 13).
- The Government of New Zealand established a department devoted solely to Maori, the Ministry for Maori Development, with an act of parliament in 1992. The department monitors policy and legislation, providing the government with advice on Maori relations. The department has developed the "Maori Potential Approach," a policy framework designed with the ultimate aim to better position Maori to build and leverage their collective resources, knowledge, skills and leadership capability (New Zealand 2008).
- New Zealand's electoral system includes what are known as Maori electorates that guarantee Maori representation in the New Zealand Parliament. Separate electoral seats in Parliament are reserved to represent those New Zealand electors choosing to register on a separate Maori election roll.
- Despite being reserved for Maori representation, the Maori seats do not guarantee that the representative will be of Maori descent. Since 1967, the stipulation that the representative be a non-European ended. However, there has yet to be a non-Maori elected in a Maori electorate seat, although non-Maori candidates have contested these seats since 1967 (Wilson 2003, 19).
- Under the new electoral rules that accompanied the introduction of Mixed-Member Proportional representation in 1993, the number of Maori electorates is allowed to fluctuate. Though previously fixed, the number of Maori seats must represent an average electoral population of 68,150 Maori. As of 2020, based on the 2018 census, there are seven dedicated seats in Parliament for the Maori electorates.
- In 2019, the Electoral (Entrenchment of Maori Seats) Amendment Bill was introduced into the New Zealand Parliament. The bill would have made it harder to remove Maori seats from Parliament by requiring 75 per cent of MPs to vote to get rid of them in the future. The bill failed to pass its second reading in the House (Jancic 2019).
7. CONSTITUTIONAL OR LEGISLATIVE AFFIRMATION OF THE DISTINCT STATUS OF INDIGENOUS PEOPLES
|Affirmation of Distinct Status Scores|
- The privileged status of the Treaty of Waitangi is an affirmation of the distinct status of Maori.
- The 1980s was characterized by the formal recognition of indigenous rights, accompanying a re-interpretation of Maori rights as constituting a treaty-based partnership between the Crown and the Maori people (Ivison, Patton and Sanders 2000, 141).
- With the passage of the Treaty of Waitangi Act 1975, Maori tribal groups were effectively recognized as indigenous peoples, having existed prior to the 1840 signing of the Treaty of Waitangi (ibid.).
8. SUPPORT / RATIFICATION FOR INTERNATIONAL INSTRUMENTS ON INDIGENOUS RIGHTS
|Support for International Instruments Scores|
- New Zealand has not ratified ILO Convention 169 Indigenous and Tribal Peoples Convention, 1989.
- New Zealand was among the four countries that voted against the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP). In April 2010, New Zealand reversed its position and endorsed the UN DRIP. This declaration is non-binding and does not impose duties or obligations on the New Zealand government or Crown.
- In 2019, the New Zealand government announced it will begin to develop a plan to implement UNDRIP in relation to the Māori. As part of the development, the Māori Development Minister noted that a delegation from the UN’s Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) was invited to New Zealand to participate in consultations and provide advice (Bennett 2019).
9. AFFIRMATIVE ACTION
Partial, but very limited.
|Affirmative Action Scores|
- There is a statutory basis that sanctions practices of affirmative action in the Bill of Rights Act 1990 and the Human Rights Act 1993. The Bill of Rights Act holds that “everyone has a right to freedom from discrimination” while the Human Rights Act 1993 includes “race” as a prohibited ground of discrimination. Moreover, the Human Rights Act articulates that policies and measures taken for the purposes of assisting or advancing disadvantaged groups does not constitute discrimination (thus laying the foundation for affirmative action programs) (Sadler 2005).
- However, despite the statutory framework, affirmative action policies are relatively limited.
- In 1980, the Government of New Zealand introduced the Maori and Pacific Islander Recruitment Scheme to increase the participation of Maori in the public sector. Later, in 1987, the New Zealand Race Relations Conciliator proposed that the government implement a comprehensive system of affirmative action. The government responded with the State Sectors Act in 1988 (Lashley 2006, 138).
- In the State Sectors Act of 1988, the New Zealand public service legislation, the chief of a Department should strive to be a "good employer." As per section 56.1 (c), this entails recognition of: (i) the aims and aspirations of the Maori people; and (ii) the employment requirements of the Maori people; and (iii) the need for greater involvement of the Maori people in the Public Service.
- Affirmative action for Maori is a matter of policy regarding medical and law studies admissions. For medical and law schools, Maori (as well as Pacific Islanders) can enter through targeted "Special Entry Quotas." Universities are empowered by the Education Act 1989, which affords them the authority to sanction discriminatory decisions relating to affirmative action programs.