HUMAN RIGHTS IN NEW ZEALAND 20 1 0 Mäori Congress; the Mäori Women’s Welfare League; • The Courts can apply Treaty principles where relevant the Federation of Mäori Authorities; and the Iwi Leaders’ and not explicitly prevented by legislation, and many Group. agencies and departments are required by legislation The Treaty in New Zealand’s constitution and legislation Since the 1970s, there has been a persistent call, particularly from Mäori, for constitutional change to give greater effect to the Treaty of Waitangi. Submissions to the Constitutional Arrangements Committee, a select to consider Treaty principles when carrying out their functions.11 The New Zealand Bill of Rights Act 1990 provides legal protection for the civil and political rights of all New Zealanders, including electoral rights, freedom of expression, freedom from discrimination, and freedom committee established in 2004 to inquire into New of thought, conscience and belief. While it includes Zealand’s existing constitutional arrangements, echoed provisions relating to the “rights of minorities”, it does this call. While the committee found that any significant not specifically protect indigenous rights or refer to the constitutional change should be made with great care and Treaty of Waitangi. There are no protections in the New be subject to informed public debate, it noted an issue Zealand Bill of Rights Act for economic and social rights. of continuing significance: “the relationship between the constitution and the Treaty of Waitangi, including whether it should and how it might form a superior law”.10 The Human Rights Act 1993 establishes the Human Rights Commission, with its primary functions being to advocate and promote respect for human rights and Several pieces of specific legislation provide for the to encourage the maintenance and development of principles of the Treaty to be given effect; the Treaty harmonious relations in New Zealand society. The act itself, however, is not directly enforceable in New Zealand prohibits discrimination on the grounds of colour, race, courts. The courts’ adopted practice is to interpret and ethnic or national origins, and also (in specified legislation according to the principles of the Treaty where appropriate, except where legislation states that this is not to be done. Although it is the principles of the Treaty that are legally enforceable, there is a range of views on them. In particular, there is concern that the focus on the principles moves away from focussing on the Treaty itself. More recently, Parliament has opted to describe Treaty implications for a particular policy area in legislation, circumstances) racial harassment and inciting or exciting racial disharmony. It provides exceptions to the grounds of discrimination for special measures to achieve equality. The Commission is required by the act to ”promote by research, education and discussion a better understanding of the human rights dimensions of the Treaty of Waitangi and their relationship with domestic and international rather than solely relying on generic references to the law”. principles of the Treaty. The Electoral Act 1993 makes continued provision for There are three main ways in which the principles of the Mäori representation in Parliament. Four Mäori seats were Treaty are observed: established in 1867. The number was increased in 1993, • The Waitangi Tribunal can inquire into claims by Mäori that the Crown acted in breach of Treaty principles. • The Crown has accepted a moral obligation to resolve historical grievances in accordance with the principles of the Treaty. with the introduction of proportional representation, and is now determined by a formula that divides the number of voters enrolled on the Mäori electoral roll by the ‘South Island quota’.12 The number of Mäori seats is currently seven. 10 Constitutional Arrangements Committee (2005), Inquiry to Review New Zealand’s Existing Constitutional Arrangements, Report of the Constitutional Arrangements Committee, 47th Parliament, Hon Peter Dunne chairperson, p 25. Accessible online at http://www.parliament. nz/NR/rdonlyres/575B1B52-5414-495A-9BAFC9054195AF02/15160/DBSCH_SCR_3229_2302.pdf 11 Office of Treaty Settlements (2004), Ka Tika ä Muri, Ka Tika ä Mua – Healing the Past, Building a Future: A Guide to Treaty of Waitangi Claims and Negotiations with the Crown (Wellington: Office of Treaty Settlements), p 11 12 For more information see the official elections website. Accessible online at http://www.elections.org.nz/elections/electorates/rep-commsfaqs.html 45