Andrew Erueti and Claire Charters

"You’re not the boss of me" is the Government’s response to the Committee on the Elimination of Racial Discrimination’s decision that the Foreshore and Seabed Act discriminates against Maori.

There is something disturbing about our Prime Minister and Deputy Prime Minister misrepresenting the substance of the decision, attacking a United Nations body and criticising Maori tribes who exercised their legal rights under international law. The Government’s reaction was a knee-jerk reflex to a decision that obviously hurt deeply.

Some clarification is necessary.

The Committee was concerned with the haste with which the Foreshore and Seabed Act was passed and that the Government gave insufficient consideration to alternatives more acceptable to Maori and all other New Zealanders. It found that the legislation discriminates in its extinguishment of the possibility of establishing customary title and failure to provide guaranteed redress. The Committee urged the Government to resume a dialogue with Maori to lessen the legislation’s discriminatory effects, including through legislative amendment.

The Committee is not an inconsequential body on the outer edges of the United Nations. The Prime Minister is correct: the Committee is not the Security Council. The Security Council focuses on peace and security. On human rights, however, the Committee is one of the most significant within the United Nations’ system.

The calibre of the members of the Committee is beyond doubt. They are nominated and elected by states such as New Zealand. States formally acknowledge the members as independent experts. All 18 members unanimously agreed that the Foreshore and Seabed Act discriminates. The Committee’s expert on New Zealand issues, Professor Patrick Thornberry from the United Kingdom, wrote the leading legal textbook on indigenous peoples under international law.

The Government participated in a robust process. It was alerted to the Taranaki Maori Trust Board’s, Ngai Tahu’s, and the Treaty Tribes Coalition’s petition to the Committee in August 2004. The Government provided lengthy written submissions on a number of occasions between then and the Committee’s finding in March 2005. Oral submissions were presented over three hours by senior Crown officials (including the Permanent Representative to Geneva and the First Secretary), two having been sent from Wellington (from Crown Law and the Prime Minister’s office). In contrast, tribal representatives had to persuade Committee members to hear their arguments in the Committee members’ lunch hours.

A finding that the Foreshore and Seabed Act racially discriminates is a finding that New Zealand is in breach of the International Convention on the Elimination of All Forms of Racial Discrimination. It is a breach of international law.

New Zealand ratified the Convention in 1972. The Government has participated in the Committee’s reporting processes for 33 years. It should not agree to the umpire and then refuse to comply with the umpire’s decision when it receives an adverse finding against it.

The Committee’s decision is obvious, really. If a state chooses to treat property rights differently based on race it is discriminating.

In fact, the Government could hardly be surprised by the Committee’s finding. Numerous submissions on the Foreshore and Seabed Bill and the Waitangi Tribunal had told the Government that its policies breached international human rights. Even the Attorney General indicated that an international human rights tribunal might find the Bill discriminatory.

The Government’s basic view is "did not": the majority of New Zealanders supported the Foreshore and Seabed Act and hence the racial discrimination is ok. But, this is a good example of how a majority can override minorities’ rights when its interests are at stake. In contrast, an international and independent body is well-placed to assess a state’s conformity with human rights.

Most countries protect their minorities with entrenched human rights codes. The Foreshore and Seabed Act would have never passed scrutiny under, for example, the Canadian Constitution.

The impact of the decision on New Zealand’s international reputation is serious. The decision to ignore the Committee’s decision has only aggravated it. New Zealand now shares a platform with states it has criticised for human rights abuse in the past. The Government will face allegations of hypocrisy when it speaks out on human rights issues. Officials are likely to feel very uncomfortable when the Committee reports New Zealand’s breach in front of its friends in the United Nations General Assembly.

The Government’s "I won’t play" response cannot last long. It is required to report to the Committee again soon. The Committee has said it will continue to monitor the Foreshore and Seabed Act. Other human rights tribunals and institutions will be similarly engaged.

Some have argued that the United Nations should be focused on states that are the real human rights abusers i.e., pick on someone else why don’t you? It is. However, there is no such thing as innocuous racial discrimination. All states, irrespective of their reputation, should be subject to the same scrutiny. Human rights are not for export only.

As for the Prime Minister’s comment that tribes went trotting to an institution about which she knows more about, one could simply dismiss it. The alternative response is that she should not denigrate tribes who explore their options under the international legal system.

How should one expect a principled Government to respond to the Committee’s decision? One would hope it would not be difficult to comply with a rational and balanced direction to the Government: to meet with Maori to negotiate an elimination of the discrimination under the Foreshore and Seabed Act. It makes sense that those discriminated against should have a role in eliminating that discrimination.

As for New Zealanders as a whole, their support for the decision is essential. A state that discriminates is of concern to all. Will you be next?