Covid-19: The ‘choices’ Māori and Pasifika don’t have
27 August 2020
Opinion: Dylan Asafo looks at the 'choices' Māori and Pasifika don't have during this pandemic, highlighting their current lack of human rights in New Zealand.
What does it mean to be a Māori and Pasifika secondary school student in a global pandemic and economic crisis?
For many, it means being forced to make the heart-breaking 'choice' between staying in school or putting food on the table for their families. I put 'choice' in quotes because while no guns are being held to heads, when it comes to family for Māori and Pasifika, there's no such thing as a 'choice'. As Associate Professor Khylee Quince explained in Stuff last week:
"Both Māori and Pasifika cultures are radically collectivist, subverting individual desires to responsibilities to communities. In te ao Māori, the principles of manaakitanga and whanaungatanga – the ethics of care and kinship responsibility – remain the glue of our healthy identity as tangata whenua. As they say in Samoa, "e leai se mea e sili atu i lo lou aiga" – nothing is more important than your family. All Pacific cultures reflect similar values of family loyalty, respect and devotion."
Pasifika activist and Aorere College’s head girl, Aigagalefili Fepulea'i Tapua'i, also poignantly described this 'choice' as the “the biggest act of sacrifice and love”, because "[no] child wants to watch their parent have to struggle when they know they could do something...".
While Māori and Pasifika youth have been making these 'choices' long before Covid-19, the pandemic, and resulting economic crisis, has revealed deep and long-standing inequities. As Quince pointed out, some of these inequities were made clear by Manurewa High School principal Pete Jones, who stated 10 percent of his school roll (about 200 students) couldn't return to school after the first lockdown ended. They needed to find work to make ends meet after parents and older siblings faced redundancies and reduced hours.
For these students and their families, the Prime Minister's calls for the "team of five million" to "be kind" meant nothing. The Government's wage subsidy was far from enough, especially without a legal requirement for employers to cut large senior salaries to keep their lowest paid in work or a law requiring all employees receive a living wage. There was no rent freeze or government move to reduce living costs or ensure every family had the essentials.
The various inequities strengthened by Covid-19 have raised important questions about our Government's laws and policies – including our ‘Rebuilding Together’ budget, our two-tier welfare scheme and ongoing breaches of Te Tiriti o Waitangi. And they have also raised important questions about our human rights laws, in particular, the human rights that are currently being violated.
I am not talking here about the human rights of freedom of assembly, association, and movement that many New Zealanders have been preoccupied with lately. I am talking about the human rights that are especially critical for our most vulnerable including, but not limited to: the right to an adequate standard of living (including adequate food, clothing and housing); the right to the enjoyment of the highest attainable standard of physical and mental health; the right to culture and intellectual property; and the right to education.
These rights are known as 'economic, social and cultural rights' (ESCRs), and they are different from the other type of human rights, civil and political rights (CPRs) that are protected under the New Zealand Bill of Rights Act 1990 (NZBORA).
Some may be surprised to learn the law does not recognise ESCRs as fundamental human rights worthy of protection by our courts. In fact, when drafting the New Zealand Bill of Rights Act 1990, the government purposely left out ESCRs for reasons stated in the White Paper, prepared by former prime minister, Sir Geoffrey Palmer (then Attorney-General) in 1985. It was thought each government should decide for themselves how (and to what extent) they want to protect ESCRs. It was argued ESCRs (as ‘positive rights’ requiring action) should not be enforced against government as they would set unrealistic and unattainable expectations. Instead, governments could “adequately” uphold ESCRs through laws and policies outside NZBORA. Later, Palmer doubled down on this view, saying issues relating to ESCRs were "best left to politics”.
But by far the most bizarre reason for excluding ESCRs was the idea that they did not need to be protected in NZBORA, compared to CPRs which were considered to be under threat. However, as lawyer Joss Opie noted in an excellent law review article advocating for the inclusion of ESCRs, there were no threats to CPRs in 1985-1990. But there were real threats to ESCRs then, as there are today.
I am talking about the human rights that are especially critical for our most vulnerable including, but not limited to: the right to an adequate standard of living (including adequate food, clothing and housing); the right to the enjoyment of the highest attainable standard of physical and mental health; the right to culture and intellectual property; and the right to education.
As a Pasifika person, this idea that ESCRs (and the lives of dignity they can potentially provide to Māori, Pasifika and other marginalised groups) do not require legal protection as fundamental human rights, but are best left to games of political football is deeply offensive and quite frankly, racist. To be even more frank, when you are a white, privileged lawmaker shielded from the realities that Māori, Pasifika and other peoples of colour face due to ongoing colonisation and rampant institutional racism, you probably cannot see why or when ESCRs are at risk and in need of protection because your particular ESCRs are always guaranteed.
Unsurprisingly, in the 30 years from 1990, government disregard for ESCRs has continued and so too have grave socioeconomic inequities for Māori and Pasifika. For example, as of 2019, Māori (23.3 percent) and Pasifika peoples (28.6 percent) had higher rates of children living in households that experience material hardship than the national average (13.4 per cent). Closely related to this are education inequities, including that, as of 2018, only 20.7 percent of Māori and 18.0 percent of Pasifika peoples 15 years and older gained a post-secondary school qualification, compared to 34.6 per cent of the total population.
Because ESCRs are not incorporated in NZBORA, Māori and Pasifika cannot hold governments accountable in court for creating policies that maintain these inequities. A few New Zealanders have tried unsuccessfully to claim in court that various government policies and lack of laws have infringed their ESCRs. These claims have been rejected by the courts on the basis that ESCRs exist in New Zealand as aspirations and guiding points for government, rather than rights or entitlements New Zealanders can demand and hold the government accountable to.
Therefore, as we head into election season and hear of more Māori and Pasifika youth leaving school to feed their families and other heart-breaking stories of inequity, we need to put incorporating ESCRs into NZBORA back on the political agenda. And it must be made clear that ESCRs are CPRs – you cannot have one type of fundamental human rights without the other. For Māori, Pasifika and other marginalised groups to fully enjoy key CPRs enshrined in NZBORA – such as the right to life, the right to vote and the right to freedom from discrimination, we need to be have the essentials such as housing, food and education.
Another critical point is that ESCRs are all interconnected and heavily dependent on each other. For example, for the right to education to be fully realised, the right to adequate standards of living must be upheld and vice versa. This way, Māori and Pasifika youth have a higher chance of finishing high school even in times of economic crisis, because the government can be held accountable if its laws and policies fail to uphold the right to an adequate standard of living among other relevant ESCRs.
Other policies impacting the right to education for Māori and Pasifika, could be fought for in court as well. As ActionStation director Laura O'Connell Rapira has said: “there are proven and practical solutions” to addressing inequities in education like ending problematic school zoning policies and racist streaming practices. Incorporating ESCRs in NZBORA would mean these evidence-based solutions can be argued for openly in court rather than left in the inboxes and desks of law and policy makers.
To be clear, incorporating ESCRs in NZBORA is not the ‘silver bullet’ for all inequities. There are other important issues to consider. For example, many powerful and privileged people (in Parliament, the judiciary and wider society) are heavily invested in socioeconomic inequities and will strongly oppose strengthening ESCRs as that would threaten their status and power.
Other issues include the financial and cultural barriers Māori, Pasifika and other marginalised peoples face in accessing justice through the courts, thus making litigating ESCRs easier said than done. Furthermore, any plans to incorporate ESCRs into NZBORA must be shaped by and centred on obligations owed to Māori under Te Tiriti o Waitangi – another controversial constitutional issue which would encounter racist resistance as well.
But despite these issues, demanding our political parties (in particular the Labour Party most likely to win this election) work towards including ESCRs in NZBORA should never be seen unnecessary or even impossible. As noted above, ESCRs are being threatened every day and it’s very clear the ‘trust government and Parliament to do the right thing’ approach that Sir Geoffrey advocated for is not working. To put it simply, we cannot allow government to dismiss this important call for reform with the same baseless excuses used back in the 1980s.
More importantly, ESCRs (and the racial justice they allow for) need to be seen by all as fundamental, permanent and immovable requirements for a fair and democratic society – not as a matter of political ideology or preference. Until then, New Zealand will always fail our Māori and Pasifika youth, and therefore fail to be the fair and equal democracy it claims to be.
Dylan Asafo is a lecturer at Auckland Law School, researching the areas of racial justice and Pacific legal issues.
This article reflects the opinion of the author and not necessarily the views of the University of Auckland.
Used with permission from Newsroom Covid-19: The ‘choices’ Māori and Pasifika don’t have 27 August 2020.
Alison Sims | Research Communications Editor
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