Monday, November 14, 2005

Plus ca change...

So, the UN Committee on the Elimination of Racial Discrimination (established under the International Convention on the Elimination of All Forms of Racial Discrimination, which New Zealand has been a party to since 1972) is sending someone to investigate whether the Foreshore and Seabed Act violates the rights of Maori. Good. And something they may wish to consider is that this is not the first time the New Zealand government has denied Maori access to the courts in order to subvert justice and prevent well-grounded land claims. In 1894, Rangitane chief Nireaha Tamaki claimed land in the Mangatainoka block on the grounds that it had neither been surveyed or passed through the Native Land Court, and therefore remained under customary title. The Court of Appeal applied the Wi Parata doctrine - that Maori were savages and therefore there was no such thing as Maori customary title, and that even if there was, any dealings with them were Acts of State and therefore not subject to judicial review.

Tamaki did what Maori have been doing since the beginning: he appealed. The case was heard by the Privy Council in May 1900, and the decision handed down a year later. Here's the result according to his short bio on the Treaty of Waitangi page:

The New Zealand Court of Appeal decision was reversed. The Law Lords rejected the argument that there was no M?ori customary law, and commented that it was "rather late in the day" for New Zealand courts to adopt such a view, given that several existing New Zealand statutes, including the nineteenth-century Native Lands Acts, referred to M?ori custom. The New Zealand Court of Appeal was also adjudged to have jurisdiction over the question of whether the land in dispute had been ceded to the Crown. It would be an understatement to say that the New Zealand judiciary was unhappy with this decision.

The government's response was to limit Maori rights to investigate the government’s land purchases through the courts...

And this was to a decision which simply said that the facts around customary title "were either known to lawyers, or discoverable by them by evidence". Plus ca change, plus c'est la meme chose...


For a commentary (including background) on the CERD Committee's Review of the Foreshore and Seabed Act 2004 see the article in the most recent Victoria University of Wellington Law Review.

[Link available on my blog:]

Posted by Dean Knight : 11/14/2005 04:33:00 PM