HUMAN RIGHTS AND THE TREATY OF WAITANGI: HEALTHY CHRISTCHURCH Monday 24 July 2006

1. HUMAN RIGHTS AND THE TREATY OF WAITANGI:HEALTHY CHRISTCHURCHMonday 24 July 2006 Warren Lindberg, Commissioner New Zealand Human Rights Commission Te Kahui Tika Tangata

2. What are human rights? “Rights, in their earliest incarnation, were invented by ordinary people from all walks of life, not by lawyers and judges” Francesca Klug, Values for a Godless Age. Penguin Books, 2000

3. Human Rights Commission – primary functions • to advocate and promote respect for, and an understanding and appreciation of, human rights in New Zealand society; and • to encourage the maintenance and development of harmonious relations between individuals and among the diverse groups in New Zealand society (S5 Human Rights Act 1993)

4. A new responsibility… • 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 human rights law

5. Te Mana I Waitangi Aim • Through talking and listening to each other, New Zealanders will develop a better understanding of human rights and the Treaty of Waitangi Activities • draft discussion paper • regional symposia • facilitated community dialogue • presentations • survey research to monitor public opinion

6. Some challenges • Does the Treaty privilege New Zealanders of Maori and British descent? • Where do other New Zealanders fit in? • How do kawanatanga and rangatiratanga relate to each other? • Who is disadvantaged if Maori exercise of rangatiratanga and taonga are protected? • How can Maori live as Maori in New Zealand?

7. What are human rights? “…recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Preamble: Universal Declaration of Human Rights 1948

8. Fundamental human rights law • International Covenant on Civil and Political Rights • International Covenant on Economic, Social and Cultural Rights • CERD • CEDAW • CROC • Convention on the rights of disabled people • Declaration on the rights of indigenous people

9. Human rights law in New Zealand • Adoption of international covenants 1976 • Human Rights Commission Act 1977 • New Zealand Bill of Rights Act 1990 • Human Rights Act 1993 • Foundations of human rights in NZ • Treaty of Waitangi 1840 • Votes for women 1896 • Race Relations Act 1991

10. dignity • All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. • Article 1 Universal Declaration of Human Rights 1948

11. equality • All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. • Article 7 Universal Declaration of Human Rights 1948

12. responsibility • Everyone has duties to the community in which alone the free and full development of his personality is possible. • In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others…. (Article 29 UDHR)

13. Special measures to ensure equality • States parties shall, when the circumstances so warrant, take… • special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, • for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. • These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved. • Art 2.2 International Convention on the Elimination of All Forms of Racial Discrimination 1965

14. Special measures in New Zealand law • Human Rights Act 1993 s73(1) Anything done or omitted which would otherwise constitute a breach of ….this Act shall not constitute such a breach if – (1) It is done in good faith for the purpose of assisting or advancing persons or groups disadvantaged because of discrimination that is unlawful …… (2) those persons or groups need or may be reasonably supposed to need assistance or advancement in order to reach an equal place with other members of the community. • NZ Bill of Rights Act 1990 s19(2) Measures taken in good faith for the purpose of assisting or advancing persons or groups disadvantaged because of discrimination that is unlawful by virtue of the Human Rights Act 1993 do not constitute discrimination.

15. Principles underlying temporary special measures • Must be required to ensure genuine equality for disadvantaged groups • Must be carried out in good faith • Must reduce the actual disadvantage experienced • Must be proportional to the degree of under-representation or disadvantage • The impact on those to whom it does not apply must be considered • Must be temporary

16. Special measures and the Treaty of Waitangi • Treaty Article 2 rights are those associated with tangata whenua status e.g. • preserving possession of taonga • the right to rangatiratanga • Inequalities in regard to Treaty Article 3 rights require consideration of special measures e.g. • education, employment, health status

17. Treaty Overview • Declaration of Independence (1835) • Treaty of Waitangi (1840) RANGATIRATANGA KAWANATANGA

18. The Treaty as a living document “A covenant is an agreement based on the promises of two people to take the best possible care of each other.” Bishop Bennett

19. FOR MORE INFORMATION Webpage: www.hrc.co.nz/treaty Email: treaty@hrc.co.nz Toll Free: 0800 378 254