Communication No. 547/1993*
Submitted by: Apirana Mahuika et al. (represented
by Maori Legal Service)
Alleged victim: The authors
State party: New Zealand
Date of communication: 10 December 1992 (initial submission)
The Human Rights Committee, established under article
28 of the International Covenant on Civil and Political Rights,
Meeting on 27 October 2000
Having concluded its consideration of communication
No. 574/1993 submitted to the Human Rights Committee by Apirana Mahuika
et al. under the Optional Protocol to the International Covenant
on Civil and Political Rights,
Having taken into account all written information
made available to it by the author of the communication, and the State
party,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The authors of the communication are Apirana Mahuika and 18 other individuals,
belonging to the Maori people of New Zealand. They claim to be victims
of violations by New Zealand of articles 1, 2, 16, 18, 26 and 27 of the
International Covenant on Civil and Political Rights. They are represented
by counsel. The Covenant entered into force for New Zealand on 28 March
1979, and the Optional Protocol on 26 August 1989.
2. At its 55th session, the Human Rights Committee considered
the admissibility of the communication and found that the requirements
under article 5, paragraph 2, of the Optional Protocol did not preclude
it from considering the communication. However, the Committee declared
inadmissible the authors' claims under articles 16, 18 and 26 for failure
to substantiate, for purposes of admissibility, that their rights under
these articles were violated.
3. When declaring the authors' remaining claims admissible
in so far as they might raise issues under articles 14(1) and 27 in conjunction
with article 1, the Committee noted that only the consideration of the
merits of the case would enable the Committee to determine the relevance
of article 1 to the authors' claims under article 27.
4. In their submission on admissibility, both parties commented
extensively on the merits of the claims before the Committee. After the
communication was declared admissible, the State party presented additional
observations, to which the authors did not comment.
The factual background
5.1 The Maori people of New Zealand number approximately
500,000, 70% of whom are affiliated to one or more of 81 iwi (1).
The authors belong to seven distinct iwi (including two of the largest
and in total comprising more than 140,000 Maori) and claim to represent
these. In 1840, Maori and the predecessor of the New Zealand Government,
the British Crown, signed the Treaty of Waitangi, which affirmed the rights
of Maori, including their right to self-determination and the right to
control tribal fisheries. In the second article of the Treaty, the Crown
guarantees to Maori:
"The full exclusive and undisturbed possession of their
lands, forests, fisheries and other properties which they may collectively
or individually possess so long as it is their wish and desire to retain
the same in their possession..." (2)
The Treaty of Waitangi is not enforceable in New Zealand
law except insofar as it is given force of law in whole or in part by
Parliament in legislation. However, it imposes obligations on the Crown
and claims under the Treaty can be investigated by the Waitangi Tribunal.
(3)
5.2 No attempt was made to determine the extent of the fisheries
until the introduction of the Quota Management System in the 1980s. That
system, which constitutes the primary mechanism for the conservation of
New Zealand's fisheries resources and for the regulation of commercial
fishing in New Zealand, allocates permanent, transferable, property rights
in quota for each commercial species within the system.
5.3 The New Zealand fishing industry had seen a dramatic
growth in the early 1960s with the expansion of an exclusive fisheries
zone of nine, and later twelve miles. At that time, all New Zealanders,
including Maori, could apply for and be granted a commercial fishing permit;
the majority of commercial fishers were not Maori, and of those who were,
the majority were part-time fishers. By the early 1980s, inshore fisheries
were over-exploited and the Government placed a moratorium on the issue
of new permits and removed part-time fishers from the industry. This measure
had the unintended effect of removing many of the Maori fishers from the
commercial industry. Since the efforts to manage the commercial fishery
fell short of what was needed, in 1986 the Government amended the existing
Fisheries Act and introduced a quota management system for the commercial
use and exploitation of the country's fisheries. Section 88 (2) of the
Fisheries Act provides "that nothing in this Act shall affect any
Maori fishing rights". In 1987, the Maori tribes filed an application
with the High Court of New Zealand, claiming that the implementation of
the quota system would affect their tribal Treaty rights contrary to section
88(2) of the Fisheries Act, and obtained interim injunctions against the
Government.
5.4 In 1988, the Government started negotiations with Maori, who were
represented by four representatives. The Maori representatives were given
a mandate to negotiate to obtain 50% of all New Zealand commercial fisheries.
In 1989, after negotiation and as an interim measure, Maori agreed to
the introduction of the Maori Fisheries Act 1989, which provided for the
immediate transfer of 10% of all quota to a Maori Fisheries Commission
which would administer the resource on behalf of the tribes. This allowed
the introduction of the quota system to go ahead as scheduled. Under the
Act, Maori can also apply to manage the fishery in areas which had customarily
been of special significance to a tribe or sub-tribe, either as a source
of food or for spiritual reasons.
5.5 Although the Maori Fisheries Act 1989 was understood
as an interim measure only, there were limited opportunities to purchase
any more significant quantities of quota on the market. In February 1992,
Maori became aware that Sealords, the largest fishing company in Australia
and New Zealand was likely to be publicly floated at some time during
that year. The Maori Fisheries Negotiators and the Maori Fisheries Commission
approached the Government with a proposition that the Government provide
funding for the purchase of Sealords as part of a settlement of Treaty
claims to Fisheries. Initially the Government refused, but following the
Waitangi Tribunal report of August 1992 on the Ngai Tahu Sea Fishing,
in which the Tribunal found that Ngai Tahu, the largest tribe from the
South Island of New Zealand, had a development right to a reasonable share
of deep water fisheries, the Government decided to enter into negotiations.
These negotiations led on 27 August 1992 to the signing of a Memorandum
of Understanding between the Government and the Maori negotiators.
5.6 Pursuant to this Memorandum, the Government would provide
Maori with funds required to purchase 50% of the major New Zealand fishing
company, Sealords, which owned 26% of the then available quota. In return,
Maori would withdraw all pending litigation and support the repeal of
section 88 (2) of the Fisheries Act as well as an amendment to the Treaty
of Waitangi Act 1975, to exclude from the Waitangi Tribunal's jurisdiction
claims relating to commercial fishing. The Crown also agreed to allocate
20% of quota issued for new species brought within the Quota Management
System to the Maori Fisheries Commission, and to ensure that Maori would
be able to participate in "any relevant statutory fishing management
and enhancement policy bodies." In addition, in relation to non-commercial
fisheries, the Crown agreed to empower the making of regulations, after
consultation with Maori, recognizing and providing for customary food
gathering and the special relationship between Maori and places of customary
food gathering importance.
5.7 The Maori negotiators sought a mandate from Maori
for the deal outlined in the memorandum of understanding. The memorandum
and its implications were debated at a national hui (4) and at
hui at 23 marae (5) throughout the country. The Maori negotiators'
report showed that 50 iwi comprising 208,681 Maori, supported the settlement
(6) . On the basis of this report, the Government was satisfied
that a mandate for a settlement had been given and on 23 September
1992, a Deed of Settlement was executed by the New Zealand Government
and Maori representatives. The Deed implements the Memorandum of Understanding
and concerns not only sea fisheries but all freshwater and inland fisheries
as well. Pursuant to the Deed, the Government pays the Maori tribes a
total of NZ$ 150,000,000 to develop their fishing industry and gives the
Maori 20% of new quota for species. The Maori fishing rights will no longer
be enforceable in court and will be replaced by regulations. Paragraph
5.1 of the Deed reads:
"Maori agree that this Settlement Deed, and the settlement it evidences,
shall satisfy all claims, current and future, in respect of, and shall
discharge and extinguish, all commercial fishing rights and interests
of Maori whether in respect of sea, coastal or inland fisheries (including
any commercial aspect of traditional fishing rights and interests),
whether arising by statute, common law (including customary law and
aboriginal title), the Treaty of Waitangi, or otherwise, and whether
or not such rights or interests have been the subject of recommendation
or adjudication by the Courts or the Waitangi Tribunal."
Paragraph 5.2 reads:
"The Crown and Maori agree that in respect of all fishing rights
and interests of Maori other than commercial fishing rights and interests
their status changes so that they no longer give rise to rights in Maori
or obligations on the Crown having legal effect (as would make them
enforceable in civil proceedings or afford defences in criminal, regulatory
or other proceedings). Nor will they have legislative recognition. Such
rights and interests are not extinguished by this Settlement Deed and
the settlement it evidences. They continue to be subject to the principles
of the Treaty of Waitangi and where appropriate give rise to Treaty
obligations on the Crown. Such matters may also be the subject of requests
by Maori to the Government or initiatives by Government in consultation
with Maori to develop policies to help recognise use and management
practices of Maori in the exercise of their traditional rights."
The Deed recorded that the name of the Maori Fisheries Commission
would be changed to the "Treaty of Waitangi Fisheries Commission",
and that the Commission would be accountable to Maori as well as to the
Crown in order to give Maori better control of their fisheries guaranteed
by the Treaty of Waitangi.
5.8 According to the authors the contents of the Memorandum
of Understanding were not always adequately disclosed or explained to
tribes and sub-tribes. In some cases, therefore, informed decision-making
on the proposals contained in the Memorandum of understanding was seriously
inhibited. The authors emphasize that while some of the Hui were supportive
of the proposed Sealords deal, a significant number of tribes and sub-tribes
either opposed the deal completely or were prepared to give it conditional
support only. The authors further note that the Maori negotiators have
been at pains to make clear that they had no authority and did not purport
to represent individual tribes and sub-tribes in relation to any aspect
of the Sealords deal, including the conclusion and signing of the Deed
of Settlement.
5.9 The Deed was signed by 110 signatories. Among the signatories
were the 8 Maori Fisheries Negotiators (the four representatives and their
alternates), two of whom represented pan-Maori organisations (7);
31 plaintiffs in proceedings against the Crown relating to fishing rights,
including representatives of 11 iwi; 43 signatories representing 17 iwi;
and 28 signatories who signed the Deed later and who represent 9 iwi.
The authors observe that one of the difficulties of ascertaining the precise
number of tribes who signed the Deed of Settlement relates to verification
of authority to sign on behalf of the tribes, and claim that it is apparent
that a number of signatories did not possess such authority or that there
was doubt as to whether they possessed such authority. The authors note
that tribes claiming major commercial fisheries resources, were not among
the signatories.
5.10 Following the signing of the Deed of Settlement, the
authors and others initiated legal proceedings in the High Court of New
Zealand, seeking an interim order to prevent the Government from implementing
the Deed by legislation. They argued inter alia that the Government's
actions amounted to a breach of the New Zealand Bill of Rights Act 1990
(8). The application was denied on 12 October 1992 and the authors
appealed by way of interlocutory application to the Court of Appeal. On
3 November 1992, the Court of Appeal held that it was unable to grant
the relief sought on the grounds that the Courts could not interfere in
Parliamentary proceedings and that no issue under the Bill of Rights had
arisen at that time.
5.11 Claims were then brought to the Waitangi Tribunal,
which issued its report on 6 November 1992. The report concluded that
the settlement was not contrary to the Treaty except for some aspects
which could be rectified in the anticipated legislation. In this
respect, the Waitangi Tribunal considered that the proposed extinguishment
and/or abrogation of Treaty interests in commercial and non-commercial
fisheries was not consistent with the Treaty of Waitangi or with the Government's
fiduciary responsibilities. The Tribunal recommended to the Government
that the legislation make no provision for the extinguishment of interests
in commercial fisheries and that the legislation in fact affirm those
interests and acknowledge that they have been satisfied, that fishery
regulations and policies be reviewable in the courts against the Treaty's
principles, and that the courts be empowered to have regard to the settlement
in the event of future claims affecting commercial fish management laws.
5.12 On 3 December 1992, the Treaty of Waitangi (Fisheries
Claims) Settlement Bill 1992 was introduced. Because of the time constraints
involved in securing the Sealords bid, the Bill was not referred to the
competent Select Committee for hearing, but immediately presented and
discussed in Parliament. The Bill became law on 14 December 1992. It is
recorded in the preamble to the Act that:
"The implementation of the Deed through legislation and the continuing
relationship between the Crown and Maori would constitute a full and
final settlement of all Maori claims to commercial fishing rights
and would change the status of non-commercial fishing rights so that they
no longer give rise to rights in Maori or obligations on the Crown
having legal effect but would continue to be subject to the principles of the
Treaty of Waitangi and give rise to Treaty obligations on the Crown."
The Act provides inter alia for the payment of NZ$
150,000,000 to Maori. The Act also states in section 9, that "all
claims (current and future) by Maori in respect of commercial fishing
.... are hereby finally settled" and accordingly:
"The obligations of the Crown to Maori in respect of commercial
fishing are hereby fulfilled, satisfied, and discharged; and no court
or tribunal shall have jurisdiction to inquire into the validity of
such claims, the existence of rights and interests of Maori in commercial
fishing, or the quantification thereof, ...."
"All claims (current and future) in respect of, or
directly or indirectly based on, rights and interests of Maori in commercial
fishing are hereby fully and finally settled, satisfied and discharged."
With respect to the effect of the settlement on non-commercial
Maori fishing rights and interests, it is declared that these shall continue
to give rise to Treaty obligations on the Crown and that regulations shall
be made to recognise and provide for customary food gathering by Maori.
The rights or interests of Maori in non-commercial fishing giving rise
to such claims shall no longer have legal effect and accordingly are not
enforceable in civil proceedings and shall not provide a defence to any
criminal, regulatory or other proceeding, except to the extent that such
rights or interests are provided for in regulations. According to the
Act, the Maori Fisheries Commission was renamed to Treaty of Waitangi
Fisheries Commission, and its membership expanded from seven to thirteen
members. Its functions were also expanded. In particular, the Commission
now has the primary role in safeguarding Maori interests in commercial
fisheries.
5.13 The joint venture bid for Sealords was successful.
After consultation with Maori, new Commissioners were appointed to the
Treaty of Waitangi Fisheries Commission. Since then, the value of the
Maori stake in commercial fishing has grown rapidly. In 1996, its net
assets had increased to a book value of 374 million dollars. In addition
to its 50% stake in Sealords, the Commission now controls also Moana Pacific
Fisheries Limited (the biggest in-shore fishing company in New Zealand),
Te Waka Huia Limited, Pacific Marine Farms Limited and Chatham Processing
Limited. The Commission has disbursed substantial assistance in the form
of discounted annual leases of quota, educational scholarships and assistance
to Maori input into the development of a customary fishing regime. Customary
fishing regulations have been elaborated by the Crown in consultation
with Maori.
The complaint:
6.1 The authors claim that the Treaty of Waitangi (Fisheries
Claims) Settlement Act confiscates their fishing resources, denies them
their right to freely determine their political status and interferes
with their right to freely pursue their economic, social and cultural
development. It is submitted that the Treaty of Waitangi (Fisheries Claims)
Settlement Act 1992 is in breach of the State party's obligations under
the Treaty of Waitangi. In this context, the authors claim that the right
to self-determination under article 1 of the Covenant is only effective
when people have access to and control over their resources.
6.2 The authors claim that the Government's actions are threatening their
way of life and the culture of their tribes, in violation of article 27
of the Covenant. They submit that fishing is one of the main elements
of their traditional culture, that they have present-day fishing interests
and the strong desire to manifest their culture through fishing to the
fullest extent of their traditional territories. They further submit that
their traditional culture comprises commercial elements and does not distinguish
clearly between commercial and other fishing. They claim that the new
legislation removes their right to pursue traditional fishing other than
in the limited sense preserved by the law and that the commercial aspect
of fishing is being denied to them in exchange for a share in fishing
quota. In this connection, the authors refer to the Committee's Views
in communication No. 167/1984 (Ominayak v. Canada), where it was
recognised that "the rights protected by article 27 include the right
of persons, in community with others, to engage in economic and social
activities which are part of the culture of the community to which they
belong." (9)
6.3 The authors recall that the Quota Management System
was found by the Waitangi Tribunal to be in conflict with the Treaty of
Waitangi since it gave exclusive possession of property rights in fishing
to non-Maori, and that the New Zealand High Court and Court of Appeal
had in several decisions between 1987 and 1990 restrained the further
implementation of the QMS on the basis that it was "clearly arguable"
that the QMS unlawfully breached Maori fishing rights, protected by s
88(2) of the Fisheries Act 1983. With the enactment of the Treaty of Waitangi
(Fisheries Claims) Settlement Act 1992, QMS has been validated for all
purposes. They state that by repealing s 88(2) of the Fisheries Act 1983,
Maori fishing rights are no longer protected.
6.4 Some of the authors claim that no Notices of Discontinuance
were signed on behalf of their tribes or sub-tribes in respect of fisheries
claims that were pending before the courts and that these proceedings
were statutorily discontinued without their tribes' or sub-tribes' consent
by s 11(2)(g) and (i) of the Treaty of Waitangi (Fisheries Claims) Settlement
Act 1992. This is said to constitute a violation of their right under
article 14(1) of the Covenant, to have access to court for the determination
of their rights and obligations in a suit at law. In this context, the
authors submit that Maori fishing rights are clearly "rights and
obligations in a suit at law" within the meaning of article 14(1)
of the Covenant because they are proprietary in nature. Prior to the enactment
of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, Maori
filed numerous fishing claims in the courts. The authors submit that article
14(1) of the Covenant guarantees the authors, and their tribes or sub-tribes,
the right to have these disputes determined by a tribunal which complies
with all of the requirements of article 14. In this context, it is submitted
that although customary and aboriginal rights or interests can still be
considered by the Waitangi Tribunal in the light of the principles of
the Treaty of Waitangi, the Waitangi Tribunal's powers remain recommendatory
only.
6.5 The authors submit that prior to the enactment of the
Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, they had a
right of access to a court or tribunal based on s 88 of the Fisheries
Act to protect, determine the nature and extent, and to enforce their
common law and Treaty of Waitangi fishing rights or interests. The repeal
of this section by the 1992 Act interferes with and curtails their right
to a fair and public hearing of their rights and obligations in a suit
at law as guaranteed by article 14(1) of the Covenant, because there is
no longer any statutory framework within which these rights or interests
can be litigated.
The State party's observations
7.1 With regard to the authors' claim under Article 27,
the State party accepts that the enjoyment of Maori culture encompasses
the right to engage in fishing activities and it accepts that it has positive
obligations to ensure that these rights are recognised. The Fisheries
Settlement, it submits, has achieved this. According to the State party,
the right to revenue through quota, together with Maori participation
in the Sealords deal, is the modern day embodiment of Maori claims to
the commercial fishery. The outcome of the Fisheries Settlement is that
Maori, who constitute approximately 15% of the population of New Zealand,
now have effective control of New Zealand's largest deep water fishing
fleet and over 40% of New Zealand's fishing quota. The Settlement is the
vehicle that has ensured Maori participation in the commercial fishing
industry - on terms set by Maori in a company in which Maori exercise
effective control through their shareholding and their representatives
on the Board of Directors. According to the State party, the Fisheries
Settlement has placed Maori in an unprecedented position to expand their
presence in the market through the acquisition of further quota and fishing
assets, as well as through diversification in international catching,
processing and marketing. This is a route that the Treaty of Waitangi
Fisheries Commission and its companies, as well as individual tribes,
are increasingly following. The Fisheries Settlement also specifically
protects Maori non-commercial fishing rights and statutory regulations
have been developed to ensure that provision is made for customary food
gathering and that the special relationship between Maori and places of
importance for customary food gathering is recognised.
7.2 Further, the State party notes that rights of minorities
contained in Article 27 are not unlimited. They may be subject to reasonable
regulation and other controls or limitations, provided that these measures
have a reasonable and objective justification, are consistent with the
other provisions of the Covenant and do not amount to a denial of the
right. In the case of the Fisheries Settlement the State party had a number
of important obligations to reconcile. It was necessary to balance the
concerns of individual dissentients against its obligations to Maori as
a whole to secure a resolution to fisheries claims and the need to introduce
measures to ensure the sustainability of the resource.
7.3 Moreover, the State party emphasizes that it is evident
from the Memorandum of Understanding that it was the common understanding
of the Government and the Maori Fisheries Negotiators that the settlement
was conditional on confirmation of the Negotiators' mandate to act on
behalf of all Maori. Subject to this confirmation, the proposal stipulated
that the Sealords purchase would result in the settlement of all
Maori rights and interests in New Zealand's commercial fisheries, that
the settlement would include the introduction of legislation to repeal
section 88(2) of the Fisheries Act 1983 and all other legislation conferring
legal entitlements to all Maori fisheries rights and interests, the discontinuance
of all litigation in pursuit of Maori rights or interests in commercial
fishing and Maori endorsement of the Quota Management System. The State
party refers to the Court of Appeal's decision in Te Runanga o Wharekauri
Rekohu v. Attorney-General, in which it was found that the proposal
negotiated between the Government and the Maori Fisheries Negotiators
was consistent with the Government's duty under the Treaty of Waitangi
and that a failure to take the opportunity presented by the availability
of Sealords for purchase would have been inconsistent with that duty.
The State party further refers to similar sentiments expressed by the
Waitangi Tribunal.
7.4 As regards the authors' statement that the settlement
received only limited support from Maori, the State party recalls the
process of consultation pursued by the Maori negotiators following the
initialling of the memorandum of understanding, on the basis of which
the Maori negotiators and subsequently the Crown concluded that there
was a sufficient mandate for the negotiation and execution of the Deed
of Settlement. The State party refers to the opinion of the Waitangi Tribunal
that the report of the Maori negotiators conveyed the impression that
there was indeed a mandate for the settlement, provided that the Treaty
itself was not compromised, and that in the light of the report it was
reasonable for the Crown to believe it was justified in proceeding. The
State party also refers to the opinion of the Waitangi Tribunal, "that
the settlement should proceed despite the inevitable compromise to the
independent rangatiratanga (10) of the dissentients.... On the
basis then that the settlement is to introduce new national policy for
the benefit of tribes, to perfect rights rather than abrogate them and
with protection for the customary position, we consider this settlement
can be dealt with not just at an iwi level, but a pan iwi level, where
the actual consent of each iwi is not a pre-requisite, and a general consensus
can be relied upon". The State party emphasizes that responsibility
for satisfying the Government that the proposal had the support of Maori
lay with the Negotiators, and that the process of internal decision making
within Maori was not a matter of direct concern to the Government which
was entitled to rely on the report of the Negotiators. The State party
further refers to the Committee's decision in Grand Chief Donald Marshall
et al. v. Canada (11) where the Human Rights Committee rejected
a claim that all tribal groups should have a right to participate in consultations
on aboriginal matters.
7.5 As to the authors' criticism of the Quota Management
System, the State party states that the system was introduced out of the
need for effective measures to conserve the depleted inshore fishery.
In this context, the State party submits that it had a duty to all New
Zealanders to conserve and manage the resource for future generations.
The State party recalls that the decisions by the Waitangi Tribunal and
the Court of Appeal, while criticising the initial implementation, recognised
that the purpose and intention of the Quota Management System was not
necessarily in conflict with the principles and terms of the Treaty of
Waitangi. The State party emphasizes that while the Quota Management System
imposed a new regime which changed the nature of the Maori commercial
fishing interest, this was based on the reasonable and objective needs
of overall sustainable management.
7.6 With regard to the Committee's statement when declaring
the communication admissible that only at the determination of the merits
of the case will the Committee be able to determine the relevance of Article
1 to the authors' claims under Article 27, the State party submits that
it would be most concerned if the Committee were to depart from the position
which has been accepted by States parties to the Covenant and by the Committee
itself that the Committee has no jurisdiction to consider claims regarding
the rights contained in Article 1. Those rights have long been recognised
as collective rights. Therefore, they fall outside the Committee's mandate
to consider complaints by individuals, and it is not within the ambit
of the Optional Protocol procedures for individuals purporting to represent
Maori to raise alleged violations of the collective rights contained in
Article 1. The State party further argues that the rights in Article 1
attach to "peoples" of a state in their entirety, not to minorities,
whether indigenous or not, within the borders of an independent and democratic
state. Moreover, the State party challenges the authors' authority to
speak on behalf of the majority of the members of their tribes.
7.7 With respect to the authors' claim that they are victims
of a violation of Article 14(1) of the Covenant, the State party submits
that the authors' complaint is fundamentally misconceived and amounts
to an attempt to import into the Article a content which is not consistent
with the language of the Article and which was not intended at the time
the Covenant was drafted. According to the State party, Article 14 does
not provide a general right of access to courts in the absence of rights
and jurisdiction recognised by law. Rather Article 14 sets out procedural
standards which must be upheld to ensure the proper administration of
justice. The requirements of Article 14 do not arise in a vacuum. The
State party submits that the introductory words of the Article make it
clear that the guarantee of those procedural standards arises only when
criminal or civil proceedings are in prospect; that is, when there is
a legal cause of action to be tried in a court of competent jurisdiction.
The consequence of the position put forward by the authors would be that
a State's legislature could not determine the jurisdiction of its Courts
and the Committee would be involved in making substantive decisions on
the justiciability of rights in domestic legal systems which extend far
beyond the guarantees in the Covenant.
7.8 The State party adds that the authors' complaint seeks to obscure
the central element of the 1992 Settlement. In the State party's opinion,
the authors' argument that the Settlement extinguished a right to go to
court in respect of pre-existing claims ignores the fact that the Settlement
in fact settled those claims by transforming them into a guaranteed entitlement
to participate in the commercial fisheries. Since those claims had been
settled, by definition there could no longer be a right to go to court
to seek a further expansion of those rights. The State party explains,
however, that while any pre-existing claims can no longer found a cause
of action, Maori fisheries issues do remain within the jurisdiction of
the courts. Decisions of the Treaty of Waitangi Fisheries Commission regarding
the allocation of the benefits of the Settlement are subject to review
by the courts in the same manner as decisions of any other statutory body.
Likewise the regulations regarding customary fishing rights and decisions
taken pursuant to these regulations are reviewable by the courts and the
Waitangi Tribunal. Recent litigation before the New Zealand courts, including
that before the Court of Appeal regarding the extent to which urban Maori
who are unaffiliated with iwi structures have the right to benefit from
the Settlement and regarding a proposed allocation of benefit of the Settlement,
demonstrate conclusively that access to the courts remains. In addition,
Maori who are engaged in fishing activities have exactly the same rights
as any other New Zealander to go to court to challenge decisions of the
Government which affect those rights or to seek protection of those rights
from encroachment by others.
7.9 In conclusion, the State party asserts that the Fisheries Settlement
has not breached the rights of the authors, or of any other Maori, under
the Covenant. On the contrary, the State party submits that the Settlement
should be regarded as one of the most positive achievements in recent
years in securing the recognition of Maori rights in conformity with the
principles of the Treaty of Waitangi. The State party states that it is
committed to resolve and settle Maori grievances in an honourable and
equitable manner. It acknowledges that any such settlements, which require
a degree of compromise and accommodation on both sides, are unlikely to
attract unanimous support from Maori. In this context, it states that
the Settlement did not have unanimous support from non-Maori New Zealanders
either. Indeed, it was evident from public reaction at the time that a
significant proportion of non-Maori New Zealanders were opposed to the
Settlement and did not accept that Maori should be accorded distinctive
rights to the New Zealand fisheries. However, the State party observes
that it cannot allow itself to be paralysed by a lack of unanimity, and
it will not use the withholding of agreement by some dissentients, Maori
or non-Maori, as an excuse for failing to take positive action to redress
Maori grievances in circumstances where such action has the clear support
of the majority of interested Maori. The State party therefore submits
that the Committee should dismiss the authors' complaints.
Authors' comments on the State party's submission:
8.1 The authors argue that article 27 of the Covenant requires
the Government of New Zealand to adduce convincing and cogent evidence
which establishes the necessity and proportionality of its interferences
with the rights and freedoms of the authors, and their tribes or sub-tribes,
as guaranteed by article 27. The authors submit that the State party has
not advanced any reasons why, nor provided any empirical evidence to substantiate
that ss 9, 10, 11, 33, 34, 37 and 40 of the Treaty of Waitangi (Fisheries
Claims) Settlement Act 1992 are "reasonable or necessary" to
achieve the objectives of ensuring proper management of fisheries, including
meeting international obligations for the conservation and management
of marine living resources. The authors further submit that "if the
Government of New Zealand wishes to arrogate to itself the power to regulate
Maori fisheries without the consent of the authors, and their tribes or
sub tribes who are recognised as having rangatiratanga and dominion over,
and property interests in, those fisheries pursuant to the Treaty of Waitangi,
article 27 of the Covenant requires the Government of New Zealand to adduce
convincing and cogent evidence which established the necessity and proportionality
of its interferences with the rights and freedoms of the authors, and
their tribes or sub-tribes, as guaranteed by article 27." The authors
submit that the State party has not adduced any such evidence.
8.2 Furthermore, the authors submit that article 27 of the Covenant requires
the State party to take positive steps to assist Maori to enjoy their
own culture. They argue that, far from fulfilling this aspect of its obligations
under article 27 of the Covenant, the State party has, by its enactment
of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, seriously
interfered with the enjoyment by the authors, and their tribes or sub-tribes,
of their rights or freedoms under article 27. The authors also submit
that article 27 of the Covenant requires the Government of New Zealand
to implement the Treaty of Waitangi. The authors emphasize that fishing
is a fundamental aspect of Maori culture and religion. As an articulation
of this close relationship they refer to the following passage in the
Muriwhenua Fishing Report by the Waitangi Tribunal. (12)
"To understand the significance of such key Treaty words as "taonga"
and "tino rangatiratanga" each must be seen within the context
of Maori cultural values. In the Maori idiom "taonga" in relation
to fisheries equates to a resource, to a source of food, an occupation,
a source of goods for gift-exchange, and is a part of the complex relationship
between Maori and their ancestral lands and water. The fisheries taonga
contains a vision stretching back into the past, and encompasses 1,000
years of history and legend, incorporates the mythological significance
of the gods and taniwha, and of the tipuna and kaitiaki. The taonga
endures through fluctuations in the occupation of tribal areas and
the
possession of resources over periods of time, blending into one, the
whole of the land, waters, sky, animals, plants and the cosmos itself,
a holistic body encompassing living and non-living elements.
This taonga requires particular resource, health and fishing
practices and a sense of inherited guardianship of resources. When areas
of ancestral land and adjacent fisheries are abused through over-exploitation
or pollution, the tangata whenua and their values are offended. The
affront is felt by present-day kaitiaki (guardians) not just for themselves
but for their tipuna in the past.
The Maori "taonga" in terms of fisheries has
a depth and a breadth which goes beyond quantitative and material questions
of catch volumes and cash incomes. It encompasses a deep sense of conservation
and responsibility to the future, which colours their thinking, attitude
and behaviour towards their fisheries.
The fisheries taonga includes connections between the
individual and tribe, and fish and fishing grounds in the sense not
just of tenure, or "belonging", but also of personal or tribal
identity, blood and genealogy, and of spirit. This means that a "hurt"
to the environment or to the fisheries may be felt personally by a Maori
person or tribe, and may hurt not only the physical being, but also
the prestige, the emotions and the mana.
The fisheries taonga, like other taonga, is a manifestation
of a complex Maori physico-spiritual conception of life and life's forces.
It contains economic benefits, but it is also a giver of personal identity,
a symbol of social stability, and a source of emotional and spiritual
strength.
This vision provided the mauri (life-force) which ensured
the continued survival of the iwi Maori. Maori fisheries include, but
are not limited to a narrow physical view of fisheries, fish, fishing
ground, fishing methods and the sale of those resources, for monetary
gain; but they also embrace much deeper dimensions in the Maori mind."
8.3 In this context, the authors refer to the Committee's General Comment
on article 27 and submit that article 27 of the Covenant clearly
protects
Maori enjoyment of their fishing rights. They contest the State party's
position that the right of Maori to engage in fisheries activities
has
been "secured" by
the provisions of the Treaty of Waitangi (Fisheries Claims) Settlement
Act 1992 and the Maori Fisheries Act 1989. Indeed,
they claim that these rights have been effectively extinguished and/or
abrogated and that the benefits provided to Maori under the legislation
do not constitute lawful satisfaction. It is submitted that the Treaty
of Waitangi (Fisheries Claims) Settlement Act 1992 imposes an artificial
division upon their fishing rights or interests in their fisheries without
regard to the sacred nature of the relationship which exists between
the
authors (both personal and tribal) and their fisheries; it effectively
curtails the ability of the authors, and their tribes or sub-tribes,
to
protect their fisheries for future generations; it extinguishes and/or
effectively abrogates their common law and Treaty of Waitangi rights
or
interests; it affects their ability to harvest and manage their fisheries
in accordance with their cultural and religious customs and traditions;
and it imposes a regime which relocates regulatory power over Maori fisheries
in the hands of the Director-General of Fisheries.
8.4 They also argue that the Waitangi Tribunal clearly expressed
the view that the acceptability of any "inevitable compromise to
the independent rangatiratanga of the dissentients" was predicated
upon the modification of the implementing legislation by the Government
of New Zealand in accordance with the Waitangi Tribunal's recommendations.
The authors further argue that their case is distinguishable from the
case of Grand Chief Donald Marshall et al. v. Canada, since that
case did not concern the necessity of obtaining a minority group's consent
to the extinguishment and/or effective abrogation of its property rights
and denial of access to the courts to enforce those rights.
8.5 With respect to the discontinuance of the legal proceedings in the
Court, five authors argue that the notices of discontinuance signed on
behalf of their tribe were not signed by those who had the authority to
do so. Another five authors state that no notice of discontinuance was
signed on behalf of their tribes.
Issues and proceedings before the Committee
9.1 The Human Rights Committee has considered the present
communication in the light of all the information made available to it
by the parties, as provided in article 5, paragraph 1, of the Optional
Protocol.
9.2 The Committee observes that the Optional Protocol provides a procedure
under which individuals can claim that their individual rights have been
violated. These rights are set out in part III of the Covenant, articles
6 to 27, inclusive. (13) As shown by the Committee's jurisprudence,
there is no objection to a group of individuals, who claim to be commonly
affected, to submit a communication about alleged breaches of these rights.
Furthermore, the provisions of article 1 may be relevant in the interpretation
of other rights protected by the Covenant, in particular article 27.
9.3 The first issue before the Committee therefore is whether
the authors' rights under article 27 of the Covenant have been violated
by the Fisheries Settlement, as reflected in the Deed of Settlement and
the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. It is undisputed
that the authors are members of a minority within the meaning of article
27 of the Covenant; it is further undisputed that the use and control
of fisheries is an essential element of their culture. In this context,
the Committee recalls that economic activities may come within the ambit
of article 27, if they are an essential element of the culture of a community.
(14) The recognition of Maori rights in respect of fisheries
by the Treaty of Waitangi confirms that the exercise of these rights is
a significant part of Maori culture. However, the compatibility of the
1992 Act with the treaty of Waitangi is not a matter for the Committee
to determine.
9.4 The right to enjoy one's culture cannot be determined
in abstracto but has to be placed in context. In particular, article
27 does not only protect traditional means of livelihood of minorities,
but allows also for adaptation of those means to the modern way of life
and ensuing technology. In this case the legislation introduced by the
State affects, in various ways, the possibilities for Maori to engage
in commercial and non-commercial fishing. The question is whether this
constitutes a denial of rights. On an earlier occasion, the Committee
has considered that:
" A State may understandably wish to encourage development or allow
economic activity by enterprises. The scope of its freedom to do so
is not to be assessed by reference to a margin of appreciation, but
by reference to the obligations it has undertaken in article 27. Article
27 requires that a member of a minority shall not be denied his right
to enjoy his own culture. Thus, measures whose impact amount to a denial
of the right will not be compatible with the obligations under article
27. However, measures that have a certain limited impact on the way
of life of persons belonging to a minority will not necessarily amount
to a denial of the right under article 27." (15)
9.5 The Committee recalls its general comment on article 27, according
to which, especially in the case of indigenous peoples, the enjoyment
of the right to one's own culture may require positive legal measures
of protection by a State party and measures to ensure the effective participation
of members of minority communities in decisions which affect them. (16)
In its case law under the Optional Protocol, the Committee has emphasised
that the acceptability of measures that affect or interfere with the culturally
significant economic activities of a minority depends on whether the members
of the minority in question have had the opportunity to participate in
the decision-making process in relation to these measures and whether
they will continue to benefit from their traditional economy. (17)
The Committee acknowledges that the Treaty of Waitangi (Fisheries Settlement)
Act 1992 and its mechanisms limit the rights of the authors to enjoy their
own culture.
9.6 The Committee notes that the State party undertook a
complicated process of consultation in order to secure broad Maori support
to a nation-wide settlement and regulation of fishing activities. Maori
communities and national Maori organizations were consulted and their
proposals did affect the design of the arrangement. The Settlement was
enacted only following the Maori representatives' report that substantial
Maori support for the Settlement existed. For many Maori, the Act was
an acceptable settlement of their claims. The Committee has noted the
authors' claims that they and the majority of members of their tribes
did not agree with the Settlement and that they claim that their rights
as members of the Maori minority have been overridden. In such circumstances,
where the right of individuals to enjoy their own culture is in conflict
with the exercise of parallel rights by other members of the minority
group, or of the minority as a whole, the Committee may consider whether
the limitation in issue is in the interests of all members of the minority
and whether there is reasonable and objective justification for its application
to the individuals who claim to be adversely affected. (18)
9.7 As to the effects of the agreement, the Committee notes
that before the negotiations which led to the Settlement the Courts had
ruled earlier that the Quota Management System was in possible infringement
of Maori rights because in practice Maori had no part in it and were thus
deprived of their fisheries. With the Settlement, Maori were given access
to a great percentage of quota, and thus effective possession of fisheries
was returned to them. In regard to commercial fisheries, the effect of
the Settlement was that Maori authority and traditional methods of control
as recognised in the Treaty were replaced by a new control structure,
in an entity in which Maori share not only the role of safeguarding their
interests in fisheries but also the effective control. In regard to non-commercial
fisheries, the Crown obligations under the Treaty of Waitangi continue,
and regulations are made recognising and providing for customary food
gathering.
9.8 In the consultation process, special attention was paid to the cultural
and religious significance of fishing for the Maori, inter alia
to securing the possibility of Maori individuals and communities to engage
themselves in non-commercial fishing activities. While it is a matter
of concern that the settlement and its process have contributed to divisons
amongst Maori, nevertheless, the Committee concludes that the State party
has, by engaging itself in the process of broad consultation before proceeding
to legislate, and by paying specific attention to the sustainability of
Maori fishing activities, taken the necessary steps to ensure that the
Fisheries Settlement and its enactment through legislation, including
the Quota Management System, are compatible with article 27.
9.9 The Committee emphasises that the State party continues
to be bound by article 27 which requires that the cultural and religious
significance of fishing for Maori must deserve due attention in the implementation
of the Treaty of Waitangi (Fisheries Claims) Settlement Act. With reference
to its earlier case law (19), the Committee emphasises that in
order to comply with article 27, measures affecting the economic activities
of Maori must be carried out in a way that the authors continue to enjoy
their culture, and profess and practice their religion in community with
other members of their group. The State party is under a duty to bear
this in mind in the further implementation of the Treaty of Waitangi (Fisheries
Claims) Settlement Act.
9.10 The authors' complaints about the discontinuance of
the proceedings in the courts concerning their claim to fisheries must
be seen in the light of the above. While in the abstract it would be objectionable
and in violation of the right to access to court if a State party would
by law discontinue cases that are pending before the courts, in the specific
circumstances of the instant case, the discontinuance occurred within
the framework of a nation wide settlement of exactly those claims that
were pending before the courts and that had been adjourned awaiting the
outcome of negotiations. In the circumstances, the Committee finds that
the discontinuance of the authors' court cases does not amount to a violation
of article 14(1) of the Covenant.
9.11 With regard to the authors' claim that the Act prevents
them from bringing claims concerning the extent of their fisheries before
the courts, the Committee notes that article 14(1) encompasses the right
to access to court for the determination of rights and obligations in
a suit at law. In certain circumstances the failure of a State party to
establish a competent court to determine rights and obligations may amount
to a violation of article 14(1). In the present case, the Act excludes
the courts' jurisdiction to inquire into the validity of claims by Maori
in respect to commercial fishing, because the Act is intended to settle
these claims. In any event, Maori recourse to the Courts to enforce claims
regarding fisheries was limited even before the 1992 Act; Maori rights
in commercial fisheries were enforceable in the Courts only to the extent
that s 88(2) of the Fisheries Act expressly provided that nothing in the
Act was to affect Maori fishing rights. The Committee considers that whether
or not claims in respect of fishery interests could be considered to fall
within the definition of a suit at law, the 1992 Act has displaced the
determination of Treaty claims in respect of fisheries by its specific
provisions. Other aspects of the right to fisheries, though, still give
the right to access to court, for instance in respect of the allocation
of quota and of the regulations governing customary fishing rights. The
authors have not substantiated the claim that the enactment of the new
legislative framework has barred their access to court in any matter falling
within the scope of article 14, paragraph 1. Consequently, the Committee
finds that the facts before it do not disclose a violation of article
14, paragraph 1.
10. The Human Rights Committee, acting under article 5,
paragraph 4, of the Optional Protocol to the International Covenant on
Civil and Political Rights, is of the view that the facts before it do
not reveal a breach of any of the articles of the Covenant.
______________
* The following members of the Committee participated in
the examination of the present communication: Mr. Abdelfattah Amor, Mr.
Nisuke Ando, Mr. Prafullachandra Natwarlal Bhagwati, Lord Colville, Ms.
Elizabeth Evatt, Ms. Pilar Gaitan de Pombo, Mr. Louis Henkin, Mr. Eckart
Klein, Mr. David Kretzmer, Ms. Cecilia Medina Quiroga, Mr. Martin Scheinin,
Mr. Hipólito Solari Yrigoyen, Mr. Roman Wieruszewski, Mr. Maxwell Yalden,
Mr. Abdallah Zakhia. The text of an individual opinion signed by one Committee
member is appended to the present document.
[Adopted in English, French and Spanish, the English text
being the original version. Subsequently to be translated into Arabic,
Chinese and Russian as part of the Committee's Annual Report to the General
Assembly.]
Individual opinion by Mr. Martin Scheinin (partly
dissenting)
I concur with the main findings of the Committee in the case, related
to article 27 of the Covenant. However, I express my dissent on paragraph
9.10 of the Views. In my opinion, the fact that an overall settlement
of fisheries claims is found to be compatible with article 27, provided
that the conditions of effective consultation and securing the sustainability
of culturally significant forms of Maori fishing are met, does not exempt
the State party from its obligations under article 14, paragraph 1. In
my opinion, there has been a violation of the rights of the authors under
article 14, paragraph 1, to the extent that:
- the legislation in question had the effect of discontinuing pending
lawsuits instituted by the same authors or persons duly representing
them;
- such discontinuation was not approved by the authors
or other persons duly authorised to withdraw the lawsuit in question;
and
- the implementation of the Treaty of Waitangi (Fisheries
Claims) Settlement Act or other measures provided by the State party
have not resulted in those authors subject to discontinuation meeting
the conditions above having received an effective remedy in accordance
with article 2, paragraph 3, of the Covenant.
