I United Nations
| Author | Ineke Boerefijn |
| Date | 01 June 2001 |
| Published date | 01 June 2001 |
| DOI | 10.1177/092405190101900204 |
| Subject Matter | Part B: Human Rights News |
Part
B: Human Rights News
I UNITED NATIONS
InekeBoerefijn
A.The Human Rights Committee
The HumanRights Committee held its 70th session from 16
October-S
November 2000in
Geneva.
Issuesconcerning the reporting procedure were dealt with in the previous issue of
the
NQHR,
the presentcontribution deals with the case law.
Communication
No.
547/1993,
Apirana
Mahuika
etal. vs New
Zealand,
viewsof20
October
2000
(No violation of Article
14(1),
no violation of Article27)
The
authors
of the communication areApirana
Mahuika
and 18other individuals, belonging
to the Maori people of New
Zealand.
They claimed to be victims of violations by New
Zealand
of Articles 1,2, 16, 18,26 and 27 of the
Covenant.
The claimsconcerning Articles
16, 18 and 26 were declared inadmissible for
failure
to substantiate, for purposes of
admissibility, that the authors' rightsunderthese articles were violated.
. In
1840,
Maoriand the predecessor of the NewZealandGovernment, the British
Crown,
sIgned
the Treatyof Waitangi, whichaffirmed the rights of Maori, includingtheir right to
self-determination andthe right to control tribal
fisheries.
In the secondarticleof the
Treaty,
the Crown guaranteed to
Maori:
'The full exclusive and undisturbed possession of their
lands,
forests, fisheries and other properties which they may collectively or individually
Possess
so longas itis their wish and desireto retain the same in their possession ...' In
1986
the
Government
amended
the Fisheries Actand introduced a quota management systemfor
thecommercial use andexploitation of the country's
fisheries.
Section88(2)of the Fisheries
Act provides 'that nothing in this Act shall affect any Maori fishing rights'. In
1992
a
memorandum
ofunderstanding
between
theGovernment and theMaoriwas
signed.
Pursuant
tothis
memorandum,
the Government
would,
inter
alia,
provideMaori with
funds
required
topurchase 50% of the majorNew Zealand
fishing
company,
whichowned 26%of the then
available
quota.
Inreturn,Maoriwouldwithdraw allpendinglitigationand supportthe
repeal
of
Section
88(2)of the Fisheries Act as well as an amendment to the Treaty ofWaitangi Act
1975,
to exclude from the
Waitangi
Tribunal'sjurisdiction claims relating to
commercial
fishing.
The
Maori
negotiators sought a mandate from
Maori
for the deal outlined in the
memorandum
of understanding. The
memorandum
and its implications were
debated
throughout the country. The
Maori
negotiators' reportshowed that 50 tribessupported the
settlement. On the basis of this report, the Government was satisfied that a mandate for a
settlement hadbeen givenand on 23 September 1992,a Deed of Settlementwasexecuted by
theNewZealand Government and
Maori
representatives. TheMaori fishing rightswouldno
longerbe enforceable in court and wouldbe replaced by regulations.
The authors observed that one of the difficulties of ascertaining the precise numberof
tribes
whosignedthe Deed of Settlement relatedto verification of authorityto signonbehalf
of thetribes. They claimed that it was apparent that a number of signatories did not possess
SUch
authority or that there was doubt as to whether they possessed such authority. The
authors
notedthat tribesclaiming major
commercial
fisheries resources werenot
among
the
signatories.
Netherlands Quarterly
of
Human Rights, Vol. J9/2, J67-207, 200J.
lCNetherlands Institute
of
Human Rights (SIM). Printed in the Netherlands.
167
NQHR
2/2001
On 3 December 1992, the Treaty ofWaitangi (Fisheries Claims) Settlement Bill 1992 was
introduced, which provides in its preamble:
'The implementation of the Deed through legislationand the continuingrelationshipbetweenthe Crown
andMaori would constitutea full and final settlementof all Maori claimsto commercial fishingrights and
wouldchangethe status of non-commercial fishingrightsso that they no longer give rise to rights in Maori
or obligationson the Crownhaving legal effect but wouldcontinueto be subjectto theprinciples of the
Treatyof Waitangiandgive riseto Treaty obligations on theCrown.'
With respect to the claim concerning Article 1
of
the Covenant, the Committee observed that
the Optional Protocol provided aprocedure under which individuals can claim that their
individual rights have been violated. These rights are set out in part III
of
the Covenant,
Articles 6 to 27, inclusive. The Committee referred to its jurisprudence which showed that
there was no objection to a group
of
individuals, who claimed to be commonly affected, to
submit acommunication about alleged breaches
of
these rights. The Committee also noted
that the provisions
of
Article 1could be relevant in the interpretation
of
otherrights protected
by the Covenant, in particular Article 27.
The Committee examined whether the authors' rights under Article 27
of
the Covenant
had been violated. It noted that it was undisputed that the authors were members
of
a
minority within the meaning
of
Article 27
of
the Covenant; it was further undisputedthat the
use and control
of
fisheries was an essential element
of
their culture. In this context, the
Committee recalled that economic activities could come within the ambit
of
Article 27,
if
they were an essential element
of
the culture
ofa
community.
The Committee stated that the right to enjoy
one's
culture could not be determined in
abstracto but had to be placed in context. It observed that Article 27 did not only protect
traditional means
of
livelihood
of
minorities, but allowed also for adaptation
of
those means
to the modem way
of
life and ensuing technology. In this case the legislation introduced by
the State affected, in various ways, the possibilities for Maori to engage in commercial and
non-commercial fishing. The question was whether this constituted adenial
of
rights. The
Committee referred to its earlier case law, in which it had considered that:
'A Statemayunderstandably wish to encourage developmentor allow economic activity by enterprises.
The scope of its freedom to do so is not to be assessedby referenceto a margin of appreciation, but by
referenceto the obligationsit has undertakenin Article27. Article27 requires that a member of a minority
shallnot be denied his right to enjoyhis own culture.Thus, measureswhose impact amount to a denial of
the right willnot be compatible with the obligationsunder Article 27. However, measures that havea
certainlimitedimpact on the way of life of persons belongingto a minority willnot necessarilyamount to
a denial of the rightunder Article 27.
,I
The Committee further recalled its general comment on Article 27, according to which,
especially in the case
of
indigenous peoples, the enjoyment
of
the right to
one's
own culture
could require positive legal measures
of
protection by a State party and measures to ensure
the effective participation
of
members
of
minority communities in decisions which affect
them?
The Committee further referred to its case law under the Optional Protocol, in which
it had emphasised that the acceptability
of
measures that affected or interfered with the
culturally significant economic activities
of
aminority depended on whether the members
of
the minority in question had had the opportunity to participate in the decision-making
Committee's Views on Case No. 511/1992, I. Lansman et al. vs Finland., para. 9.4,
CCJPRJCl521D/511/1992
GeneralComment No. 23, adopted during the Committee's 50th session in 1994,para. 3.2.
168
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