Chris Lawrence: Risk of red faces over seabed law

COMMENT

New Zealand's international reputation on human rights matters may be at risk because the Government's foreshore proposal is probably inconsistent with our international legal obligations.

The legislation is likely to be challenged before the bodies that monitor compliance with human rights treaties. The outcome may be embarrassing.

The promised legislation will allow Maori to establish certain so-called customary rights but will place actual ownership, in whatever form, beyond reach.

This is unfortunate because it is quite likely a model could have been found to accommodate everybody's concerns.

Overseas experience suggests a range of ways in which indigenous people's rights can be recognised within modern post-colonial legal systems.

The chosen model, however, is at the lower end of the spectrum of possibilities. It makes little allowance for the right of Maori to use their customarily owned resources to develop in modern ways. It is based on a hunter-gatherer model of indigenous rights. It is not very post-colonial at all.

Sure, the chance to establish various cultural and usufructuary rights, as proposed, is a good thing. But calling this a "customary title", when it is a denial of any ownership at all, is a tergiversation.

And what about the right to have one's day in court - on the issue of actual ownership? What is being taken away is not just any ownership rights that Maori may have been able to establish. What is also being compromised is the right of access to the courts on the question of ownership.

The Universal Declaration of Human Rights declares, among others, the rights to own property and not be arbitrarily deprived of it; to equality and non-discrimination before the law; and to an effective remedy for the breach of one's rights.

The principles of the declaration were later developed in a series of treaties to which New Zealand is a party. They include the International Covenant on Civil and Political Rights and the International Convention on the Elimination of all Forms of Racial Discrimination. Each embodies the rights referred to above.

It is strongly arguable that the foreshore proposal offends against the principle of non-discriminatory equality before the law.

After all, it singles out a group of New Zealanders, defined by race and indigeneity, and legislates away property they claim to own.

Furthermore, it denies that group the right, which the Court of Appeal says exists, to pursue any ownership claim through the courts. It is difficult to escape the conclusion that such a law will be discriminatory; after all, it harms only Maori.

Furthermore, under our constitutional system, there is no effective remedy against legislative discrimination. Thus it seems there will be at least two separate breaches of our international legal obligations.

The first is seen in the discriminatory and confiscatory nature of the proposed statute. The second is the failure of New Zealand law generally to provide an effective remedy against this discrimination.

Both the International Convention on Civil and Political Rights and the International Convention on the Elimination of all Forms of Racial Discrimination establish treaty-monitoring bodies. It is possible for individuals to take legal proceedings (a "communication" in the jargon) in either of these bodies over an alleged breach by one of the state parties.

It is very likely Maori will do so, and preparatory steps are being taken in some quarters.

It is also possible that any communication will challenge the weakness of our domestic human rights laws as well. The Human Rights Committee has already criticised our Bill of Rights Act because it can be over-ridden by inconsistent legislation.

Perhaps it is time we woke up to the fact that New Zealand is one of the last bastions of the doctrine of parliamentary sovereignty.

In the great majority of other democracies, there are limits on what even the Parliament can do to whittle away basic rights. Our somewhat absolutist doctrine of parliamentary sovereignty (which is what gave us raupatu in the first place) does not fit at all well with our treaty obligations to provide effective remedies for legislative breaches of rights.

And, although it has recently become possible to obtain a judicial declaration that a statute discriminates in a way inconsistent with the Bill of Rights Act, such a declaration has no effect on the ongoing operation of the statute being challenged. It is, therefore, not an adequate remedy.

The Human Rights Committee has already made a similar point at Canada's expense.

Australia's experience may provide an example of what lies ahead for us. In 1998, the Howard Government secured amendments to the Native Title Act, which were then the subject of a communication to the Convention on the Elimination of all Forms of Racial Discrimination committee.

The committee "expressed concern over the compatibility of the Native Title Act, as amended, with the state party's international obligations under the convention". The language is diplomatic but the point is clear: Australia had fallen short of its obligations under international law.

The convention committee also said the amendment "appears to create legal certainty for governments and third parties at the expense of indigenous title". That comment applies to the New Zealand proposal, too, because one of the Government's guiding principles is the need for certainty.

At this stage of the development of international human rights law, no mechanism exists for directly enforcing human rights treaties against states that breach them. The system works, to the extent that it does, by naming and shaming.

On January 28, Foreign Affairs Minister Phil Goff announced New Zealand would seek election to the United Nations Commission on Human Rights. He noted that "membership is highly sought after", and New Zealand "has excellent credentials".

I agree. I have seen our diplomats at work in the international human rights system, including that commission. We are very well served by them.

But if the foreshore legislation leads any of the treaty-monitoring bodies to say that New Zealand has fallen short of its international obligations, our diplomats will be arguing the country's case with a rather blotted copybook. The risk of being named and shamed is unacceptably high. This would not matter if we did not care. But I thought we did.

* Chris Lawrence is an Auckland barrister who acts for a number of Maori interests. He was a Human Rights Commissioner for six years.