Racist but not necessarily illegal

The Sunday Star-Times today has a story about a Pakeha farmer who was refused a customary fishing permit last year by Ngai Tahu. The Human Rights Commission agrees that Ngai Tahu was being racist, but has decided not to escalate the case to the Human Rights Tribunal as it was complex and uncertain whether it would succeed.

I agree that a kaitiaki refusing to grant a permit to someone because they're not Maori is racist. But I'm not at all sure that it's illegal. And the key point here is in the farmer's complaint that

"[i]f I had said 'no, you're not allowed to come onto our farm and shoot ducks because you're Maori', that would have been the same thing."

Yes, it would be. But there's also no question whatsoever that the farmer would be perfectly within his rights to do so. If it's not in the "public sphere" - if it's not being done as a business with an expectation of both general public access to whoever pays and of lesser privacy and discretion because of this, for example - then someone is perfectly entitled to stick up a sign at the end of their driveway saying "No Maori allowed". Racist, despicable, rude, but perfectly legal.

The question is whether granting customary rights permits is a public or a private function. And I think it fairly clearly falls into the latter. Customary fishing rights are a property right, belonging to an iwi. They can't be sold or traded, and it is entirely up to that iwi who is allowed to exercise them. While some iwi are generous and will grant a permit to anyone who asks, Ngai Tahu are entirely within their rights to refuse a permit to anyone they feel like - even on the basis of race.

I don't like it, just as I wouldn't like the hypothetical farmer with his "no Maori allowed" sign. But if its in the private sphere, then I have to accept it, regardless.