16 March 2005

UN Committee on Elimination of Racial Discrimination - full text

Full text of the committee's statement:
Sixty-sixth session
17 February-11 March 2005
Decision 1 (66)
New Zealand
Foreshore and Seabed Act 2004
1. The Committee has reviewed, under its Early-Warning and Urgent Action Procedure, the compatibility of the New Zealand Foreshore and Seabed Act 2004 with the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination in the light of information received both from the Government of New Zealand and a number of Māori non-governmental organizations and taking into account its General Recommendation No. XXIII on indigenous peoples.
2. The Committee appreciates having had the opportunity to engage in a constructive dialogue with the State party at the Committee's 1680th meeting and the State party’s written and oral responses to its requests for information related to the legislation, including those submitted on 17 February and 9 March 2005.
3. The Committee remains concerned about the political atmosphere that developed in New Zealand following the Court of Appeal’s decision in the Ngati Apa case which provided the backdrop to the drafting and enactment of the legislation. Recalling the State party’s obligations under article 2(1)(d) and article 4 of the Convention, it hopes that all actors in New Zealand will refrain from exploiting racial tensions for their own political advantage.
4. The Committee, while noting the explanation offered by the State party, is concerned at the apparent haste with which the legislation was enacted and that insufficient consideration may have been given to alternative responses to the Ngati Apa decision which might have accommodated Māori rights within a framework more acceptable to both the Māori and all other New Zealanders. In this regard, the Committee regrets that the processes of consultation did not appreciably narrow the differences between the various parties on this issue.
5. The Committee notes the scale of opposition to the legislation amongst the group most directly affected by its provisions—the Māori—and their very strong perception that the legislation discriminates against them.
6. Bearing in mind the complexity of the issues involved, the legislation appears to the Committee, on balance, to contain discriminatory aspects against the Māori, in particular in its extinguishment of the possibility of establishing Māori customary title over the foreshore and seabed and its failure to provide a guaranteed right of redress, notwithstanding the State party’s obligations under articles 5 and 6 of the Convention.
7. The Committee acknowledges with appreciation the State party’s tradition of negotiation with the Māori on all matters concerning them and urges the State party, in a spirit of goodwill and in accordance with the ideals of the Waitangi Treaty, to resume a dialogue with the Māori community with regard to the legislation in order to seek ways of lessening its discriminatory effects, including where necessary through legislative amendment.
8. The Committee requests the State party to monitor closely the implementation of the Foreshore and Seabed Act, its impact on the Māori population and the developing state of race relations in New Zealand and to take steps to minimize any negative effects, especially by way of a flexible application of the legislation and by broadening the scope of redress available to the Māori.
9. The Committee has noted with satisfaction the State party’s intention to submit its fifteenth periodic report by the end of 2005, and requests the State party to include full information on the state of implementation of the Foreshore and Seabed Act in the report.
11 March 2005
1700th meeting

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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