Pacific People’s Constitution Report



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Pacific People’s Constitution Report

First published in September 2000 by the



Ministry of Justice

P O Box 180

Wellington

New Zealand



www.justice.govt.nz

Ministry of Pacific Island Affairs

P O Box 833

Wellington

New Zealand

www.minpac.govt.nz


Crown Copyright

ISBN 0-478-20145-1




Acknowledgements


It is appropriate to thank many people at this stage of the project for their sponsorship and practical assistance, which has contributed to the project and the report that follows:

Co-sponsors of the costs – the Ministry of Pacific Island Affairs and The Ministry of Justice.

The Pacific peoples Consultative Panel to the Ministry of Justice, for their persistent strength of vision for Pacific peoples in New Zealand


  • Statistics New Zealand staff

  • MFAT South Pacific Division Director and staff

  • The Race Relations Conciliator

  • Human Rights Commission Staff

  • Parliamentary library staff

  • Department of Labour

  • Victoria University



Disclaimer

The information contained in this report is not necessarily the view of the Ministry of Justice. All information contained is believed to be correct but the Ministry of Justice takes no responsibility for error or omission.

CONTENTS


Acknowledgements 3

CONTENTS 4

Preface 6

Objectives, definitions and approach 9

Introduction 9

Definitions and theoretical framework 9

Nation 9

State 10

An apparent contradiction resolved 10

Biculturalism versus multiculturalism 11

The relationship between individual freedom and group rights 12

Citizenship – the common bond 13

Equality - form or substance? 13

The rights of minorities 15

Pacific Island communities in New Zealand 16

Supporting the Polynesian cultures - the holistic approach 17

The history of New Zealand's Pacific connection 18

Introduction: understanding the history 18

Early expansionist ambitions 18

Samoa is added 20

New Zealand's administration of the Island Territories, and of Pacifc people in New Zealand 22

Decolonisation after World War II 24

Independence and self-government 26

Contemporary constitutional status of the homelands and modern relations with New Zealand 30

Introduction 30

The Cook Islands and Niue - associated states 30

The special relationship between Samoa and New Zealand 33

Modern regional relations 34

The constitutions of Tonga and Fiji 35



Description of Pacific populations in New Zealand 37

Population 37

Health 38

Education 38

Income and Employment 40

Housing 42

Justice 42

International and domestic law on minorities 44

International law – the ICCPR 44

Meaning of minority 45

Is Article 27 an individual or a collective right? 46

Is the obligation of the state under Article 27 active or only passive? 47

The meaning of the Article 27 right 47

Specific international expressions of the rights of minorities 48

New Zealand reporting to the United Nations on discrimination and minority rights 49

New Zealand domestic law 50

Conclusions 53



Implications 54

The special relationship with Pacific People 54

The legal relationship between the New Zealand Government and Pacific People 55

Intersection of legal position and special relationship 56

Policy implications 56

Conclusion 57



Summary of Conclusions 57

4.Formal legal equality does not always translate into equal enjoyment of social benefits such as health, education, or housing. Where serious and persistent imbalances in the enjoyment of such benefits by minority groups as compared to the wider society can be demonstrated, domestic law as well as international norms and practice permits Government to consider community-specific initiatives aimed at progressively reducing the gaps. 57



To provide an analysis of the obligations and responsibilities of the New Zealand Government towards Pacific Island communities in New Zealand against the background of:

  1. New Zealand’s international obligations under the relevant international treaties, and the provisions of section 20 of the New Zealand Bill of Rights Act 1990.

  2. The unique interdependence between the well-being of Pacific Island communities in New Zealand and that of the home island states with which New Zealand has historic and sometimes constitutional protective relationships.

To identify relevant implications for the Ministry of Justice as a State sector policy agency.


Preface


The Ministry of Justice convenes a Pacific peoples Focus Group. This group is an external advisory body comprising people of Pacific descent with in depth experience in working with Pacific peoples, and recognised expertise in areas related to Justice. The Focus Group challenged the Ministry to articulate the nature of the special relationship shared between Pacific peoples and New Zealand, and to locate Pacific peoples within the constitutional framework of New Zealand. The Focus Group envisaged that such a location would reflect the nature of the relationship between New Zealand and Pacific peoples and the implications of this relationship for Pacific peoples and the New Zealand government. The group also envisaged that such a location would depict Pacific peoples as having a status and relationship with the New Zealand government that is distinct from other immigrant groups.

The underlying impetus motivating the Focus Group’s call for this work is a concern for the well-being of current and future generations of Pacific peoples in New Zealand. Current and future generations of Pacific peoples require a clear platform from which to meaningfully interact with government on issues that affect them, and participate in the social, economic and political arenas of New Zealand society. The composition of this platform will reflect the historical and contemporary relationships between New Zealand and Pacific nations and peoples. Many Pacific peoples view New Zealand as ‘home’ and this is likely to increase with future generations of Pacific peoples in New Zealand.

Disparities between the social and economic position of Pacific peoples and the rest of the New Zealand population are evident, and in many areas glaring. Government is demonstrating its commitment to addressing these disparities and this is evidenced by the Government’s work-programme for Closing the Gaps. The Pacific Focus Group applaud the current Government’s commitment and are concerned to ensure that the well-being of Pacific peoples in New Zealand continues to be addressed by successive governments both as a priority, and as a matter of course.

Pacific people in New Zealand collectively benefit from the rights of minority groups recognised in international law under Article 27 of the International Covenant on Civil and Political Rights, incorporated into New Zealand law through section 20 of the New Zealand Bill of Rights Act. In that sense there is a special constitutional role for the relationship with Pacific Island people in New Zealand and the New Zealand Government has legal constitutional obligations in respect of Pacific people. On top of this legal status as a minority group, Pacific people have a special relationship with New Zealand, deriving from a range of unique historical, demographic and geographic factors which are detailed in this report. This gives rise to a moral obligation on the part of the New Zealand Government to advance the interests of Pacific people, in particular to address their socio-economic needs and the need to maintain their cultures.

This document is an attempt to trace the involvement and contribution of successive New Zealand governments to the present situation and circumstances of Pacific people, and to draw from this and from the international legal context a framework for conducting and informing interactions between the New Zealand government and Pacific peoples in New Zealand.


Executive Summary

The Ministry of Justice has prepared this Pacific Island Peoples’ Constitution Report in conjunction with the Ministry of Pacific Island Affairs.

It has endeavoured to assemble a descriptive account of the history and modern development of some demographically-significant Pacific Island communities in New Zealand. It includes an assessment of any reasons or principles that might be relevant to recognition of these communities and the development of policies in regard to them by New Zealand Governments. The communities chosen are those originating from the Cook Islands, Niue, Samoa, the Tokelau Islands, Fiji and Tonga.

This report is a constitutional inquiry in three senses.

Firstly, because it seeks to analyse the ways in which the rights and obligations of New Zealand citizenship   a core constitutional concept   are relevant to the lives and aspirations of citizens and communities choosing to maintain a link with the cultures of their particular Pacific Island homelands.

Secondly, because four of the six communities trace their origins to homelands with current or recent formal constitutional links to New Zealand (the Cook Islands, Niue, Tokelau and Samoa).

Thirdly, the report proposes how the New Zealand Government might approach policy-making for these communities, while remaining true to the terms and spirit of both New Zealand and international law, and maintaining the reputation of New Zealand as an honourable and responsible state in the South West Pacific.

Chapter 1 defines the objectives, definitions and the approach taken in the preparation of the report. It seeks to clarify the terms ‘nation’ and ‘state’ and the rights of people living outside of their homeland.

The second chapter follows the history of New Zealand's Pacific connection, including Seddon’s voyage in 1900 and New Zealand's 'little empire'. It follows subsequent developments including decolonisation.

Chapter 3 discusses the contemporary character and constitutional status of the chosen Pacific states – the homelands and modern relations with New Zealand.

Current demographics of the Pacific Island populations in New Zealand are looked at in Chapter 4. This includes health, education, income and employment, housing and justice.

New Zealand Domestic Law and International Law on Minorities and Ethnic Groups is the subject of Chapter 5. This includes New Zealand Domestic Law on Minorities, the Bill of Rights Act, the Human Rights Act, the International Law on Minorities, the International Covenant on Civil and Political Rights, the UN Economic and Social Committee (ECOSOC) and the Human Rights Commission jurisprudence on Minorities.

Chapter 6 sets out the implications of the report.

A Summary of Conclusions completes the report.


Objectives, definitions and approach


Introduction

The expression “Pacific peoples” refers to the whole nation, those living in the homelands and those living in New Zealand. The nation as a whole may therefore be regarded as properly the subject of international law regarding self-determination. But this is not to suggest that the same applies to those living as citizens in another state - in this case New Zealand.
Definitions and theoretical framework

The terms state, nation, nation-state, people, culture, bicultural, multicultural, and others, are the building blocks of modern debate about identity and politics. Unfortunately, they are often used without either definition or consistency - the result is sometimes intellectual chaos and misunderstanding. To avoid this result, definitions of some key terms are proposed and discussed.

It must also be acknowledged that discussion about identity and power has tended to employ a particular set of terms as if they had universal validity, and while these building block terms cannot claim universal validity, they do provide the language of the contemporary debate.1


Nation

The Canadian political philosopher, Will Kymlicka2 proposes the term nation:

'means a historical community, more or less institutionally complete, occupying a given territory or homeland, sharing a distinct language and culture'.

It will be noticed that Kymlicka expressly disclaims descent and blood connection as a requirement for the nation. He says ( p.23):

'Such descent-based approaches to national membership have obvious racist overtones...It is indeed one of the tests of a liberal conception of minority rights that it defines national membership in terms of integration into a cultural community, rather than descent. National membership should be open in principle to anyone, regardless of race or colour, who is willing to learn the language and history of the society and participate in its social and political institutions'.

On the other hand, the internationally-known New Zealand jurist, Sir John Salmond (1862-1924), writing nearly a century ago3, made descent an essential feature of his definition:

'A nation is a society of men united by common blood and descent and by the various subsidiary bonds incidental thereto, such as common speech, religion and manners'.

For the purpose of this report, a definition which synthesises the Kymlicka and Salmond proposals, is adopted:

'A nation is a community united by descent or history, and by a distinct language and culture'.

Accordingly, this report proposes that either a blood connection or a shared history, or both, together with common language and culture, can constitute a nation.

This widening of the term means it will be possible to speak of a New Zealand nation, a Maori nation, a New Zealand-based part of the Niuean nation, and perhaps even a Pacific-wide Polynesian nation as subsisting at the same time and with overlapping memberships.4


State

Sir John Salmond proposed that a state is:

'a society of men united under one government'.

Modernisation of the gender reference will produce this variation:

'a society united under one government'.

The members of a society so united are properly described as 'citizens' of the state.

An apparent contradiction resolved

Salmond drew attention to two apparently contradictory tendencies. First, he observed:

'in every nation there is an impulse, more or less powerful, to develop into a state - to add to the subsisting community of descent a corresponding community of government and political existence'.

He also noted that:

'every state tends to become a nation; that is to say, the unity of political organisation eliminates in the course of time the national diversities within its borders, infusing throughout all its population a new and common nationality…'

If Sir John Salmond is right, states containing more than one nation seem doomed to fragmentation as those nations follow the aspiration to separate statehood, unless those aspirations are overtaken by the counter-tendency of the state to generate a sufficient sense of commonality in its citizens to constitute a new meta-nation. This report suggests that the two tendencies are not only compatible, but are simultaneously required if the potentially negative consequences of each are to be avoided.

The optimal situation is one of balance between the tendencies, so avoiding the extremes of ultra-nationalism and ultra-statism. The enlightened state, therefore, may encourage its several national identities and at the same time seek to build the new synthetic common national identity.

Such a policy is not contradictory, but rather a means of maintaining an equilibrium under which the respective benefits of diversity and societal order around agreed values may be realised. If the purpose of encouraging contrary tendencies is recognised, then governments will detect the point at which that balance has moved too far in either direction. As Etzioni has observed:

'there are always the twin dangers of too much and too little social pressure. As when we ride a bike, we need to lean in the opposite direction of where the course of social history is tilting us'.5


Biculturalism versus multiculturalism

A former Prime Minister of New Zealand, the Rt. Hon. Mike Moore, when an opposition Member of Parliament, proposed a private Member's Bill that would enable the convening of a Constitutional Convention for certain purposes. Without in any way commenting on the merits of the proposal, attention is drawn to the following passage in the recitals to the proposed Bill as published:

'New Zealand has attained the status of a sovereign nation and become a bicultural and multicultural society' (emphasis added).

As a matter of logic it would appear untenable because contradictory. But as a matter of practical politics it is an imperative conclusion from the current jurisprudence of the Treaty of Waitangi, and the content of domestic and international law regarding minorities. However, the dichotomy troubles many New Zealanders and it may be worth considering Tully's complaint that the terms carry the assumption that cultures are fixed and separate streams:

'The modern age is intercultural rather than multicultural… Cultural diversity is a tangled labyrinth of intertwining cultural differences and similarities, not a panopticon of fixed, independent and incommensurable worldviews in which we are either prisoners or cosmopolitan spectators in the central tower'.6

Another mode of expressing the dichotomy is provided by Kymlicka's system of definitions. Of his own country, Canada, Kymlicka would say that it is both a multination state (the First Nations, the Francophone Quebecois, and the Anglophone Canadians), and a polyethnic state (comprising many other ethnic groups, such as Chinese, Hungarians etc.).

Kymlicka prescribes much greater legal protection and autonomy for nations – especially where they are in a demographic minority – than for ethnic groups who are viewed as having waived their autonomy (although not their diversity) by immigrating to the new state.

This report will prefer the expression intercultural, to capture the changing, creative and adaptive process by which the many cultural identities within New Zealand society interact and, together, encourage us to speak of a 'New Zealand identity'. Etzioni has used the expression 'a community of communities' and makes the point that:

'if by multiculturalism one means that young Americans should learn more about the many backgrounds of those who together make up America, it would enrich us all. If (however) one means that there would be no shared heroes or values, that there would be no recognition of one shared core – especially democracy, mutual respect, and individual rights…it might destroy our unity and thus our society'.7


The relationship between individual freedom and group rights

Modern writers have pointed to a link, overlooked in some quarters, between the flourishing of individual potential and freedom and the fostering of minority national cultures.

Kymlicka and Tully have suggested that the realisation of individual freedom is only possible in the context of a societal culture that supplies the options and values in which freedom is exercised. To the extent that some citizens languish outside the majority societal culture, and that the alternative culture to which they belong goes unrecognised and unsupported by the institutions of state, they are correspondingly deprived of meaningful freedom, whatever theoretical equality is guaranteed to them by formal constitutional law.

It cannot be forgotten that the foundation on which this link is built is the liberal tradition, which is characterised by Martha Nussbaum:

'At the heart of the liberal tradition is a two-fold intuition: that all, just by being human, are of equal dignity and worth, no matter where they are situated in society; and that the primary source of this worth is a power of moral choice within them, which consists in the ability to plan a life in accordance with one's own evaluation of ends…' 8

A former New Zealand Prime Minister, Norman Kirk, perhaps expressed the essential balance between unity and diversity, and the connection between culture and civil rights, in some pungent observations made in the New Zealand Parliament not long before his death in 1974:

'...we are not one people; we are one nation. The idea of one people grew out of the days when fashionable folk talked about integration. So far as the majority and the minority are concerned integration is precisely what cats do to mice. They integrate them. The majority swallow up the minority; make it sacrifice its culture and traditions and often its belongings to conform to the traditions and the culture of the majority...' 9


Citizenship – the common bond

The constitutional status of New Zealand citizens of Pacific Island origin is one shared with all New Zealand citizens of whatever origin. It entitles all citizens to the same rights and obligations. In addition, visitors to New Zealand who are not New Zealand citizens also enjoy rights, and have obligations, under New Zealand law and international law. Sir John Salmond observes that:

'The state, therefore, consists in the first place, of all those who…are its citizens or subjects, and, in the second place, of all those who for the time being reside within its territory, and so possess a temporary and territorial title to state-membership. Both classes are equally members of the body politic, so long as their title lasts; for both have claims to the protection of the laws and government of the state, and to such laws and government both alike owe obedience and fidelity…The practical importance of the distinction between the two forms of state-membership lies chiefly in the superior privileges possessed by citizens or subjects'.10

Salmond points to the reciprocal nature of the relationship between a state and its members:

'The state owes protection to its members, while they in turn owe obedience and fidelity to it….in return for its protection the state exacts from its members services and sacrifices to which outsiders are not constrained'.

In a context which will be examined later, then Prime Minister Norman Kirk stated in a letter to Premier Albert Henry of the Cook Islands in 1973:

'The very survival of a state may depend upon the belief of its citizens in common ideals and their sense of loyalty towards each other'.11

Citizenship thus provides the common bond, the constitutional glue that underpins the political and constitutional reality of the state. This chapter suggests that it needs to be balanced by support for diversity where citizens perceive themselves simultaneously as members of other cultural groups. But as Norman Kirk warned, the common ideals will be neglected at the peril of all.

Equality - form or substance?

A question in relation to the position of minorities arises from the demonstrable fact that formal legal equality does not always translate into equal enjoyment of social benefits such as health, education, or housing. The reasons for this are complex, and will be investigated later in this report, and any serious and persistent imbalances in relation to Pacific Island communities identified.

This report argues that equality in substance, rather then merely in form, may sometimes call for community-specific initiatives. Such an argument might rely on the dispensation of section 19 (2) of the New Zealand Bill of Rights Act 1990 that contemplates:

'Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of colour, race, ethnic or national origins…do not constitute discrimination'.

Indeed, Article 2 (2) of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), to which New Zealand is party, requires that:

'states Parties shall, when the circumstances so warrant, take, in the social economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms…'

A New Zealand scholar who made a significant contribution to modern thinking on the rights of minorities, the late Dr Warwick McKean, summarised the position in this way in a 1983 publication:

'It is now generally accepted that the provision of special measures of protection for socially, economically, or culturally deprived groups is not discrimination, so long as these special measures are not continued after the need for them has disappeared. Such measures must be strictly compensatory and not permanent or else they will become discriminatory. It is important that these measures should be optional and not against the will of the particular groups affected...The other type of protective measure which is permissible is the provision of special rights for minority groups to maintain their own languages, culture and religious practices, and to establish schools, libraries, churches and similar institutions. These measures are not discriminatory because they merely allow minorities to enjoy rights that are exercised by the rest of the population. Such measures produce an equilibrium between different situations and should be maintained as long as the groups concerned wish'.12

McKean emphasised that:

'The principle of the equality of individuals under international law does not require a mere formal or mathematical equality but a substantial and genuine equality in fact'.13

It is in keeping with current government policy that serious and persistent imbalance in the enjoyment of social and economic benefits as between identifiable ethnic groups should be the subject of official study with a view to progressive improvement. Indeed, the Government is currently endeavouring to address the imbalances experienced by Maori and Pacific people vis a vis other New Zealanders, and to this end has set up a Cabinet Committee for that specific purpose. This programme can be seen as part of the Government’s “good governance” obligations in respect of all groups whom it governs. The question arises whether special treatment for demonstrably disadvantaged groups, or special recognition of ethnic or cultural identity, are not a form of separate development based on race, and as such, comparable to the universally-condemned former regime of apartheid in South Africa.

The contention by the former South African Government in the South West Africa Cases in the 1960s was that 'geographical, historical, ethnological, economic and cultural differences and variations between population groups' necessitated the adoption of a policy of separate development, which was the best method of achieving well-being and social progress.

The list of justifying features is not unlike the support of special treatment for Pacific Island communities. The answer to the attempted comparison is that different treatment imposed by the dominant group to the detriment of the minority group is clearly distinguishable from different treatment requested by a minority for what it perceives as its benefit. Judge Tanaka's dissenting opinion in the South West Africa Case is widely regarded as the most eloquent judicial exposition of that distinction.14


The rights of minorities

The rights of minorities are recognised in international instruments to which New Zealand has bound itself (the International Covenants on Civil and Political Rights and on Economic and Social Rights) and in domestic law in section 20 of the New Zealand Bill of Rights Acts 1990:

'A person who belongs to an ethnic, religious, or linguistic minority in New Zealand shall not be denied the right, in community with other members of that minority, to enjoy the culture, to profess and practise the religion, or to use the language, of that minority'.

The link between the ICCPR (Article 27) and section 20 of the New Zealand Bill of Rights Act is clear both from the almost identical wording and the explicit preambular declaration in the Act that it is enacted to affirm New Zealand's commitment to the Covenant. Furthermore, New Zealand's acceptance since 1989 of the process under the Optional Protocol means that New Zealand citizens are able to invoke scrutiny of New Zealand laws and practices for conformity with the Covenant. A later chapter of this report will survey and analyse the pronouncements of the Human Rights Committee of the United Nations as to the meaning and content of Article 27 in relation to ethnic and linguistic minorities, and to relate that to the position of Pacific Island communities in New Zealand.

A tension is evident in the work of the United Nations concerning protection of minorities, prevention of discrimination and active support for minorities. The difference is sometimes expressed as one between minorities by will (groups choosing to remain different), and minorities by force (groups kept in a minority position by discriminatory action of the dominant culture).15 However, no one doubts that both approaches are relevant to the human rights of members of minority groups.

A brief survey of New Zealand domestic legislation concerning discrimination on ethnic and related grounds will also be presented in Chapter 5.

Pacific Island communities in New Zealand

Two features distinguish the six Pacific Island communities chosen for this study:

(i) An historical, geographical, and (in three cases) a current constitutional relationship between the homelands and New Zealand.

(ii) A significant, and growing, proportion of the total national population of the homelands is resident in New Zealand.

In addition, all of these communities have homelands within the Polynesian family, and thus have ethnic and historical connections with the tangata whenua in New Zealand, the Maori Nation.16 Although this feature does not, of itself, entitle the newer Polynesian arrivals to rights additional to those attaching to New Zealand citizenship, it is a reminder that the culture and history of the Pacific Ocean (Te Moana Nui A Kiwa) is part of Maori culture in accordance with the well-known whakatauki:


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