Ihumātao: NZ breaching human rights obligations

Opinion: The UN has asked Government to stop development of Ihumātao. Until then, NZ is in breach of international human rights, writes Claire Charters.

Protestors and police are pictured at Ihumātao. Photo: Julie Zhu Photography
What's happening at Ihumātao is a breach of Indigenous peoples’ human rights to their lands, territories and resources. Photo: Julie Zhu Photography

Friday was the UN-designated international day of Indigenous Peoples. However, there is no cause for celebration on Ihumātao.

In March this year, the leading UN human rights watchdogs on Indigenous peoples’ rights and housing urged New Zealand “that all necessary interim measures be taken to halt the alleged violations and prevent their re-occurrence”. This means the UN has asked the Government to stop the development of Ihumātao.

The crux of the human rights issue is that land of cultural significance to Māori (and the nation), that was confiscated from iwi, a practice universally condemned including by Government, is slated for development contrary to the free, prior and informed consent of Māori. This breaches Indigenous peoples’ human rights to their lands, territories and resources, their rights to culture, their rights to fair redress, their rights to consultation and consent and their right to self-determination. In similar cases in the Americas, an international human rights court has ordered the state to purchase the land and return it to the relevant Indigenous peoples.

Much of the so-called “complexity” of this situation comes from the alleged difference of opinion between people claiming mana whēnua over Ihumātao around the development. In fact, it seems clear that no iwi, hapū or whānau with mana whenua is seeking Fletcher’s development of the land. It is just that some took a more pragmatic approach to agree to an outcome that is, arguably, better than nothing in a context where there is no other legal option. That is not “free, prior and informed” consent, which is the standard required by the UN Declaration on the Rights of Indigenous Peoples.

What aggravates the situation is that New Zealand has been subject to criticism and “please explain” requests from almost every UN human rights tribunal that exists, from independent experts to multilateral human rights bodies, with respect to its dealings with Māori land both historically and today. New Zealand’s Treaty settlements policy has been found wanting.

More specifically, Ihumātao has been repeatedly addressed by UN human rights tribunals. As one example, in 2017 the UN Committee on the Elimination of Racial Discrimination recommended that New Zealand review, “in consultation with all affected Māori, the designation of Special Housing Area 62 to evaluate its conformity with the Treaty of Waitangi, the U.N. Declaration on the Rights of Indigenous Peoples and other relevant international standards.”

It is law such as this that illustrates the systemic and inherent bias in the law against the protection of Māori rights, which is skewed in favour of non-Māori interests.

The last time the UN was so engaged in an Indigenous peoples’ rights issue with respect to New Zealand was in relation to the Foreshore and Seabed Act 2004.

This brings me to the next question: Fletcher’s responsibility to respect human rights, and the Government’s obligation to ensure businesses operating within its jurisdiction do not breach human rights. Again, the Government has been criticized by UN human rights monitoring bodies for not strengthening its legal framework so that it might better compel business to comply with human rights.

The UN Global Compact’s Business Reference Guide to the Rights of Indigenous Peoples states “all businesses have a responsibility to avoid causing or contributing to adverse human rights impacts through their own activities and addressing any such impacts when they occur.” Fletcher’s persistence in continuing with its development plans, despite the human rights implications that development causes, is in disregard of its own responsibilities as a good corporate citizen.

The law regulating this situation, by which I mean and include legislation enabling extraordinary and speedy approval of development of Ihumātao land for housing, is suspect. It did not provide for any adequate consultation or consent of mana whenua, it limits the rights of people to challenge the decision, undermining rights to access justice, and it does not provide sufficient protection of land of tremendous importance to Māori under tikanga Māori.

It is law such as this that illustrates the systemic and inherent bias in the law against the protection of Māori rights, which is skewed in favour of non-Māori interests.

New Zealand’s smug self-perception as a leading human rights nation is again shown to be misplaced when it comes to Māori rights. I urge the Government, and New Zealanders, to take seriously its rhetoric, and make right the rights at stake at Ihumātao.

Associate Professor Claire Charters is from the University of Auckland Law School.

This article reflects the opinion of the author and not necessarily the views of the University of Auckland.

Used with permission from Newsroom Ihumātao: NZ breaching human rights obligations on 12 August 2019.

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