Brash and Baragwanath

Yesterday's Herald reported that National Leader Don Brash had put his foot in his mouth again over Maori over a paper delivered to the Law Commission last month by Justice David Baragwanath. But rather than paying attention to his nonsensical claim that Maori don't exist (sorry, Dr Brash, but six hundred thousand Kiwis beg to differ - and those are just the ones who belong to that "nonexistent" group), I sat down and read the paper he was objecting to. And its clear after doing so that, despite pontificating upon it, Dr Brash hadn't even bothered to do that much.

The paper, What is distinctive about New Zealand law and the New Zealand way of doing law? New Zealand law and Maori [PDF], examines the topic of "how the law does and perhaps should treat Maori differently". The topic

embraces laws specific to Maori, laws that affect Maori, and the contribution of Maori custom and value to what Professor Frame calls "our common law with bicultural characteristics"

The sweep of the paper is rather broad, covering issues of international law (including New Zealand's position on the UN draft declaration on the rights of indigenous peoples [DOC]), domestic law, as well as the legal enforcement of economic, social and cultural rights in various jurisdictions. It also touches on the problem of the Foreshore and Seabed Act 2004, which Justice Baragwanath regards as an example of the "tyranny of the majority". According to Baragwanath, the law

accepts a lower standard of protection than the Australian Commonwealth Native Title Act 1993. It infringes the principles laid down by the Privy Council [of respect for aboriginal title and compensation for compulsory acquisition] and is discriminatory and will sooner or later run into a Quilter v Attorney-General [1998] 1 NZLR 523 declaration from the Courts to that effect. The decision could not have been reached under English law where article 14 of the European Convention on Human Rights protects even foreign suspected terrorists from discrimination and gives the courts power to strike down inconsistent legislation...

The latter point on the use of binding human rights instruments to protect the rights of the weak against government abuse and uphold basic standards of decency and the rule of law is a constant theme throughout, and Baragwanath clearly regards their absence as a significant flaw in our constitution. He notes:

We have traditionally assumed that, like the United Kingdom, our constitutional basics were protected by adherence to settled conventions. It has appreciated that they are not enough. Now that the final Privy Council link with the British Crown has virtually gone, we must not deprive our Supreme Court of tools to do justice as effective as those available in the jurisdictions which we benchmark ourselves. All New Zealanders, and not least Maori New Zealanders, are entitled to the protection of laws that meet international standards in content, as they already do in the quality of their drafting.

As for his conclusions, Justice Baragwanath does not suggest any "special rights" for Maori. Rather, he proposes amending the Foreshore and Seabed Act so that it conforms to those settled conventions, by (at minimum) allowing compensation to be awarded where ownership can be proven. We accept this principle with regards to Pakeha property, and we should do the same for Maori. And more generally, he argues that we need to

enact a measure equivalent to the European Convention on Human Rights to ensure that the words of our international obligations can be delivered on. Each of these would tend to remove a form of distinctiveness we can do without.

In other words, what Justice Baragwanath is proposing is "one law for all": universal human rights protection regardless of skin colour. I thought that would be something Don Brash would approve of...