14 November 2005

CERD Committee's Review of the Foreshore and Seabed Act 2004

For a commentary (including background) on the CERD Committee's Review of the Foreshore and Seabed Act 2004 see the article by two of my colleagues in the most recent Victoria University of Wellington Law Review: Claire Charters and Andrew Erueti, "Report From the Inside: the CERD Committee's Review of the Foreshore and Seabed Act 2004" (2005) 36 VUWLR 257 Abstract:
This paper describes, from the perspective of the advocates for Mâori claimants, the substance of submissions to, and process followed by, the United Nations Committee on the Elimination of Racial Discrimination in determining that the Foreshore and Seabed Act 2004 discriminates against Mâori. The paper has a number of functions: it illustrates that, contrary to the Prime Minister's suggestions, the process followed by the Committee was robust; provides much needed comment on the Committee's early warning and urgent action procedure; should be useful to other individuals or groups seeking to challenge legislation in international fora; and, finally, sheds light on the Committee's succinct decision by placing it within the context from which it emerged.

1 comment:

Graeme Edgeler said...

This being a rather important topic, and despite spending the last week or so e-mailing various Herald reporters/columnists trying to explain various aspects of international law they (or more likely their sub-editors) don't appear to understand, I thought I'd play devil's advocate.

"The paper ... illustrates that, contrary to the Prime Minister's suggestions, the process followed by the Committee was robust; provides much needed comment on the Committee's early warning and urgent action procedure; ... and, finally, sheds light on the Committee's succinct decision by placing it within the context from which it emerged."

It could also be argued that the paper shows the great problems with the committee - just because CERD followed its usual process does not mean that process is robust. Clark's criticism of CERD process as unsatisfactory begins to bear some truth when you hear that much of the argument presented by the Claimants was presented by their "loitering around the meeting room" after the formal session with the Government and discussing things with (i.e. lobbying) individual committee members over the lunch-hour and during morning and afternoon teas (especially when the NZ permanent representative had raised concerns that this the claimant would have such opportunities).

The veiled insults lobbed at New Zealand politicians (especially with the knowledge that Dr Brash' Orewa speech was specifically brought to the Committee's attention) also bear little scrutiny. What happened to the opportunity to respond?

That New Zealand has not acceded to the protocol allowing individual claimants to complain to CERD does also raise concerns over the early warning and urgent action procedure. Yes - this procedure may be one the committee has adopted, and has formalised procedures around its use, but if it can be used to essentially allow private complaints against Governments that haven't agreed to allow private complaints against then substantial questions can be raised about sovereignty.

Where NZ has voluntarily agreed to be subject to complaints to international treaty bodies (like the HRC) then complaints about sovereignty have little merit, but here, where NZ has not agreed that there can be individual complaints they are actually important.

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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