47 United Nations Human Rights Council, Report of the Special Rapporteur on the rights of indigenous people James Anaya Addendum, The Situation of Maori people in New Zealand, UN Doc A/HRC/18/35/Add.4, (31 May 2011). 48 The Declaration, Articles 8, 11, 15 and 31. 49 Human Rights Committee General Comment 20, UN Doc HRI/GEN/1/Rev.1 at 38 (1994) at [1]. The HRC in its General Comment on article 27 interprets culture to include ways of life associated with the use of land resources, particularly in the case of indigenous peoples. 50 The Declaration, Article 11 and Article 31; Committee on Economic, Social and Cultural Rights, General Comment No. 21: Right of everyone to take part in cultural life (art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights), UN Doc E/C.12/GC/21, (21 December 2009); Committee on the Rights of the Child, General Comment No 11: Indigenous Children and their Rights under the Convention, UN Doc CRC/C/GC/11 (12 February 2009). 51 The Independent Working Group on Constitutional Transformation, He Whakaaro Here Whakaumu Mo Aotearoa: The Report of Matike Mai Aotearoa (2016), at 40. Note Professor Margaret Mutu was Working Group Chair and Moana Jackson its Convener. 52 Human Rights Committee, General comment No. 23(50) (art 27),1994, UN Doc CCPR/C/21/Rev.1/Add.5, at [7]. 53 Bernard Ominayak, Chief of the Bubion Lake Band v Canada, HRC Communication No 167/1984, 26 March 1990, UN Doc CCPR/C/38/D/167/1984; Sandra Lovelace v Canada, Communication No. 24/1977: Canada 30/07/81, UN Doc. CCPR/C/13/D/24/1977; Ivan Kitok v Sweden, Human Rights Committee, Communication No. 197/1985; UN Doc CCPR/C/33/D/197/1985; Mahuika v New Zealand HRC Communication No 547/1992, 13 October 1995, UN Doc CCPR/C/55/D/547/1993, reported in (2000) 7 HRNZ 629. 54 Takamore v Clarke [2012] NZSC 116. There, it accepted that Māori custom according to tikanga is part of the common law [94] and it was the role of the courts not to validate tikanga but to resolve disputes which required the Court’s intervention [97]. The Chief Justice also acknowledged the importance of Māori thinking in their ability to appropriately enjoy their culture. To this end it engaged s 20 of NZBORA and made the wishes of the whānau a proper matter to be weighed by the Court [100]. She went on to say that the loss to the culture was grave because it loosened links of whakapapa, not only for the individual concerned but also their descendants [102]. Sally Blundell, What Ihumātao reveals about NZ’s protection of Māori heritage sites, 31 January 2019, https://www.noted.co.nz/currently/social-issues/ihumatao-maori-heritage-sites-nz-protection/. 55 56 This includes cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. This includes the International Covenant on Civil and Political Rights 1966 Article 27 which states that “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language”; the International Covenant on Economic, Social and Cultural Rights 1966 Article 27 which states that “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language”; and the Convention on the Rights of the Child 1989 Article 15 which urges States to take steps to ensure the realization of the right to cultural life for everyone, including steps necessary for the conservation of culture. The right is also reinforced by the International Labour Organisation Convention 169 which affirms the special importance for indigenous peoples of their lands to their culture and spiritual values in Article 13 where it states “In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship” and in Article 14 which states “indigenous peoples have the right to “use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities”. 57 27