Thursday, April 06, 2006

Editorial: UN report worthy of discussion

It does no harm to hear an outside view of ourselves. Rodolfo Stavenhagen, the special rapporteur for the United Nations Commission on Human Rights, might not be dispassionate on the subject of his mission, "the fundamental freedoms of indigenous people", and his conclusions may be predictable. But they deserve discussion.

Having made a fairly comprehensive survey of Maori fortunes, past and present, the main deficiencies he sees are constitutional. He thinks the Treaty of Waitangi should be entrenched in law in some way, the Waitangi Tribunal's decision should be legally binding on the Government and iwi and hapu should have a greater degree of self-governance.

The informality of our constitutional understandings would probably strike any visitor as a deficiency and Professor Stavenhagen might be unaware of the standing of the Treaty today. He is unlikely to have heard its entrenchment in law urged by many of the Maori he consulted here. Even if the Treaty could be enshrined in a way that put it beyond parliamentary amendment or repeal, its meaning would be the subject of more litigation than it might bear.

The professor suggests it should be entrenched in a form that "respects the pluralism of New Zealand society" and makes provision for Maori "as a distinct people possessing an alternative system of knowledge, philosophy and law". That is a contradictory prescription to start with. The Treaty is better left to stand, with its contradictions and imprecision, as a touchstone for the national aspirations of Maori and Pakeha.

Likewise, the Waitangi Tribunal would struggle with the constitutional authority he recommends. The Tribunal is primarily a sounding board for tribes to tell their stories of land loss. To turn it into a court of binding adjudication would force it to take a much more critical approach to history and load it with more political contention than it might bear. Better that the tribunal remain a commission of inquiry whose findings form a good basis for the aggrieved and the Government to negotiate redress.

The UN's emissary has been notably unhelpful on the particular issue that brought him here: the foreshore and seabed. Understandably, he finds it contrary to human rights that the Government has unilaterally extinguished indigenous customary right following its recognition in principle by the Court of Appeal. But the best he can recommend is that the Government try to reach a negotiated settlement that recognises an inherent right of Maori to foreshore and seabed and establishes a regime that allows for free public access to the coast. That is more or less what the Government has done, albeit unilaterally.

He also confronts the National Party's Orewa doctrine that race has no place in political representation or in the design of social welfare. He advocates constitutional entrenchment of MMP to ensure Maori are represented in the legislature and in local government. And strictly race-blind social programmes, he says, neglect one of the causes of persistent inequalities. There is still value, he believes, in services delivered "by Maori for Maori". That needed to be said.

The cold reception of the UN report by both sides in Parliament suggests it is not going to provoke much change. But it deserves better than some of the derision that has greeted it. When criticism from outside is met by defensive resentment it has probably found a vulnerable target. This report recognises our progress as well as our problems. It offers no new suggestions but it has argued for minority recognition as a matter of human rights. That is worth pondering.

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