OPINION: UN human rights review a red flag for Government – Kerensa Johnston

OPINION: UN human rights review a red flag for Government – Kerensa Johnston

Every five years, New Zealand’s human rights record is scrutinised by the UN as part of its Universal Periodic Review (UPR). New Zealand’s fourth review took place last month, in Geneva.


It consisted of a national report submitted to the UN and published on its website; a three-hour hearing at which Hon Paul Goldsmith, Minister for Justice, delivered a national statement on behalf of the Government; and then recommendations from other countries on how we can improve our human rights situation.


This last element is perhaps the most crucial, and certainly the most telling as a gauge of how our nation is doing according to our peers on the international stage.


No fewer than 40 countries made recommendations for New Zealand to improve its performance in relation to the human rights of indigenous peoples.


It is significant that there is so much international concern about the state of human rights in New Zealand, particularly as it relates to Māori. This should be a red flag for us here at home and particularly for the Government.


Countries like Norway, Greece, Switzerland, Germany, China, Australia and the USA – countries that we trade with and partner with – have called on the Government to improve its protection of indigenous rights.


Their response follows the Government’s backdown from the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and other human rights issues that have emerged since the coalition took office.


Their criticisms, veiled as they were in diplomatic language, were criticisms, nonetheless, and highlight a serious erosion of human rights in Aotearoa. China, for example, noted with concern that racism or hate speech remains severe in New Zealand, while Germany recommended that Te Tiriti be incorporated into a written constitution and the New Zealand Bill of Rights Act amended to incorporate a broader range of rights, as set out in international covenants.


There are several recent examples of human rights violations to choose from. One close to home is the Government’s ongoing failure to meet its legal obligations, recognised by the Supreme Court in 2017, in relation to the Nelson Tenths Reserves, and the Government’s duty to reserve and protect that land for its Māori customary owners.


While the case is still before the courts, it engages critical human rights and international law obligations that will need to be resolved by the Government if it takes those rights and obligations seriously.


This is because the Crown’s ongoing failure to meet its duties in relation to the Nelson Tenths Reserves is a breach of fundamental human rights, including the right to culture and ancestral land.


Despite the Supreme Court’s landmark decision in 2017, not a single acre of land has been returned to its owners. Every day that goes by is a day that the customary owners are deprived of their rights to land and resources, to self-determination, to take part in cultural life, and to effective redress – rights that are guaranteed under the UNDRIP and deserve protection and recognition by our Government.


In a recent press release, indigenous rights scholar Professor Claire Charters describes our case, and others like it, as a miscarriage of justice.


“These modern-day experiences of iwi, hapū, and whānau highlight how readily Parliament can override human rights, and especially the rights of Indigenous peoples. It’s a serious flaw in the current system of government in Aotearoa.”


This year, alongside other organisations facing similar challenges, we submitted a report to the UPR process explaining our case and the history of the Nelson Tenths Reserves.


We also welcomed the UN Special Rapporteur on the Rights of Indigenous Peoples to Nelson to learn about our case and to gather information on the state of human rights breaches with respect to indigenous peoples in Aotearoa.


The lack of constitutional protections in Aotearoa, particularly for Māori, mean that international law mechanisms like the UPR are all the more important in order to hold state power to account.


The recommendations made by 40 UN member states this year provide an element of scrutiny and accountability that will be difficult for our Government to ignore. While they are not binding, they provide an important gauge on how the international community sees us and how we are meeting, or failing to meet – basic human rights standards.


The Government, will, presumably respond to the recommendations and criticisms. Hon Goldsmith said the input would be ‘considered’ as the Government shapes its work.


We can only hope that the Government will listen and take meaningful steps to undo the backward momentum.


Kerensa Johnston is a member of the Te Here-ā-Nuku Working Committee. 


This article was originally published in The Post and The Press.

The differences between a Treaty claim and a private law claim

Unlike many historical land claims in Aotearoa, Proprietors of Wakatū and Others v Attorney – General is a private law case against the government and not a Treaty of Waitangi claim.


The case is unique in the sense that it is led by the whānau and hapū who descend from the original Māori owners of the Nelson Tenths Reserves in Te Tauihu, who are seeking legal remedies for breaches of trust law, via the courts.


Wakatū Incorporation, the modern-day trustee of the remnants of the Tenths Reserves, is funding the case, and has been leading the work to resolve this matter for many years.


For these reasons, the government has grappled with how to treat our case, which has been subject to ongoing litigation through various Courts and Tribunals in Aotearoa since 1986.


Here are some of the key differences between Treaty claims and private law claims in Aotearoa.



Treaty claims under Te Tiriti o Waitangi



Treaty claims and settlements under Te Tiriti o Waitangi have been a prominent feature of the political landscape of Aotearoa since the introduction of the Treaty of Waitangi Act 1975 and the Waitangi Tribunal.


The Treaty settlement process was introduced by the government in an attempt to address historical grievances and injustices with Māori arising from the signing of Te Tiriti in 1840. Disputes and grievances include land confiscations, breaches of Treaty principles and issues surrounding Māori land rights, among others.


In order to receive settlement redress a body known as a post settlement governance entity (PSGE) is required by the Government to represent all members of the claimant group and to receive the settlement. A PSGE is arguably representative of an iwi.


The Treaty settlement process typically follows the below steps:

  1. A representative Māori group (usually an iwi) raises a historical claim with the Government, outlining the specific breaches of Te Tiriti and the impacts of these breaches on people and resources;
  2. Once a claim is accepted, the next stage is negotiations between iwi and government. These negotiations usually take several years and can involve issues such as the return of culturally significant sites and lands, financial compensation and the establishment of resources or co-governance arrangements;
  3. When iwi and government have reached agreement, these terms of settlement are recorded in a Deed of Settlement, a legally binding document. This document sets out the redress package and the steps the government will take to attempt to address historical grievances;
  4. The Deed of Settlement is then presented to iwi members for consideration and ratification. The Deed is put to vote and a majority vote is required to accept the settlement;
  5. Once the Deed of Settlement is ratified, the settlement is implemented and the government must fulfil its obligations outlined in the Deed including any financial payments, land transfers and cultural or social initiatives.


A private claim against the government


A private claim against the government is significantly different to a Treaty claim. It arises when a person or entity believes that they have suffered a legal harm or loss due to the actions or omissions of the government or its agencies.


A private claim is not made under the Treaty of Waitangi Act 1975 and therefore doesn’t follow the Treaty settlement process. It is a claim filed in the court as a legal proceeding, with legally enforceable consequences in the event the legal claim is satisfied.


The general steps involved in pursuing a private claim in the courts in Aotearoa are:


  1. Identifying the claim and gathering evidence to support it. You are required to demonstrate the harm and/or loss suffered
  2. Filing the claim in the appropriate Court; and
  3. Once the Court process has been actioned, it follows usual civil litigation procedures. This involves the exchange of information and evidence (discovery) and, failing successful settlement discussions, will result in Court hearings


Following the court hearing, the Court will issue a decision in favour of the claimant or the government. If the claimant succeeds, the Court will determine the appropriate remedy such as damages or other forms of relief. This is enforceable. This can include compensatory damages such as restoring the injured party to the position they would have been in (as practically as possible), had the wrongful action not occurred.


Proprietors of Wakatū and Others v Attorney-General – a private law claim


Our case is known as Proprietors of Wakatū and Others v Attorney-General and is a private law claim against the government. In 2017, the Supreme Court, by a majority of 4-1, determined that the Crown owes a legal duty, as fiduciary to the owners of Nelson Tenths Reserves.The Supreme Court directed the parties back to the High Court to determine issues of breach, remedies and Crown defences.


The nature of the duty owed is as follows:


  • A duty to reserve one-tenth of the Nelson settlement area, amounting to 15,100 acres of land in Nelson, Tasman and Golden Bay; and
  • A duty to protect and reserve the land where our whānau and hapū lived, cultivated food, and established sacred places, such as urupā


Our case asserts that the government is in breach of its fiduciary duties in relation these two important duties.



This article has been written by civil litigation lawyer Sade Sadd. Sade received a Wakatū Incorporation tertiary education scholarship in 2017 and is part of Te Hunga Panuku scholarship alumni group. Sade’s original owner tūpuna is Hakopa Hotu and she connects to Wakatū through her Ngāti Rārua whakapapa.

Resolving the Nelson Tenths: A call to Minister Parker

Opinion: In a move that raises questions about its priorities, the government has chosen to allocate $5million of taxpayer money in the Budget to engage in a protracted legal battle against the customary landowners of the Nelson Tenths Reserves.

It’s a decision that lacks economic prudence and, following the Supreme Court ruling in favour of the customary owners in 2017, illustrates another failed opportunity to resolve matters directly.

Instead of throwing good money after bad, the government should reconsider its approach and focus on pursuing a principled and pragmatic solution that serves the best interests of all parties involved.


The case relates to the Nelson Tenths Reserves and cultural lands in the Nelson region, and the Crown’s fiduciary duties concerning this land. For many years, the customary Māori owners, led by kaumātua Rore Stafford, have fought for the Crown to restore the lands to the whānau and hapū who descend from the original owners of the Reserves, who were identified by the Native Land Court in 1893.

This is not a Treaty case, and this is important. It is a case about trust law and the Crown’s legal obligations as the trustee to act in the best interests of the Tenths’ owners, which it failed to do.


In 2017, the Supreme Court, our highest court, ruled in favour of the customary landowners. It decided that the Crown has a legal duty to reserve the Nelson Tenths land for their benefit as well as protect their cultural lands, including papakāinga, across the region.