18 December 2007

Pōwhiri and Human Rights: A Contest of Values?

I was recently in Australia working on an address on this issue, which I presented at "Markings: sites of analysis, discipline, interrogation", the 24th Annual Law and Society Association of Australia and New Zealand conference at the University of Melbourne Law School.
Below is a link to my speaking notes:
Dean R Knight, "Pōwhiri and Human Rights: A Contest of Values?" 
It's not a fully-fledged paper, but it will give you some flavour of my present thinking. I'm presently working on completing a fully referenced paper.
And, as usual, feedback is welcomed!


Nigel Kearney said...

This is not about primarily about race or indigeneity, it's about religion. A person's race doesn't leads them to discriminate based on sex, but their religion might. The religion beliefs in question are ones that most Maori no longer hold.

You didn't say this explicitly, but I'm assuming you wouldn't permit non-Maori to let their invisible friends dictate how Corrections does its job, especially if those invisible friends want Corrections staff to discriminate based on sex. This in an exception for the religious beliefs of Maori only. If so, it must be based on the Treaty of Waitangi because there is no other legal or moral basis for treating Maori differently than anyone else.

I should confess that some people, especially academics, seem to be able to find things in the Treaty that I've never found even after reading it many times. That said, I think this whole situation is covered by the two articles that you didn't mention, namely articles one and three. Article one provides that the Crown exercises kawanatanga, or government, over New Zealand. This might not include everything our government currently does but surely includes corrections. Article three provides that Maori and non-Maori have the same rights. If religion trumps anti-discrimination when dealing with Maori offenders, it must be the same for non-Maori offenders.

Also, if Maori religion provides the necessary demonstrable justification under art 5 BORA, then why stop at Powhiri? Could we have a rule that only male, Maori judges, lawyers and jury members can be used in cases with a Maori defendant?

Anonymous said...

Re: exception for the religious beliefs of Maori only

I think that religious practices of many different cultures should be respected. For example, most people would accept that Muslim women can wear Burkha and that Sikh men wear turbans. This practice involves differentiation between men and women but we accept it as their choice. Likewise, if Maori people are happy with their religion and believe it is not discrimination then they should be allowed to practice it. Only Maori should have the power to change their religion.

Re: religion trumps anti-discrimination

One of the most important points from Mr Knight's article is that the different roles allocated to women and men in the powhiri are equally important. A formal equality point of view would regard the different roles in a powhiri as discrimination. However, the reality is that the roles are different but equal in value. Therefore, religion is not trumping anything. There is no discrimination.

Problem: the powhiri has been incorporated into the public sphere

I agree that the incorporation of the powhiri into state systems is an example of the Government trying to respect its obligations under the Treaty of Waitangi. However, I would focus on article 2 as it seems like the state is respecting Maori culture. If the state wants to do this, it must respect the Maori customs.

Re: rule regarding Maori males

It is important to remember that women are not allowed to speak during that particular part of the powhiri ceremony however in general Maori women are allowed to speak. In the past, Maori women could also have mana, influence, and leadership roles. This is evident in the fact that many Maori women signed the Treaty of Waitangi and owned property. Therefore, while the Powhiri is an incredibly tapu (sacred/tense) ceremony, outside of the powhiri it should be remembered that tikanga does not discriminate against Maori women and would not support the view that only men can act as court cases.

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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