Ministry of Justice, New Zealand

6.1 The special relationship with Pacific People

New Zealand has a special relationship with Pacific people. The nature of the special relationship cannot be isolated to one factor. Instead, it derives from a combination of intersecting factors including:

• the historical relationships between New Zealand and Pacific nations, that in many instances were deliberately fostered by the early colonial aspirations of the New Zealand Government;

• the high proportions of Pacific people in New Zealand;

• the geographic relationships and proximity between New Zealand and the Pacific homelands;

• the fact that New Zealand is host to the majority, and in some instances almost all, of the nationals of some Pacific nations;

• the constitutional links that continue to exist between New Zealand and a number of Pacific nations;

• New Zealand's identity in the twenty-first century as a Pacific nation.

These intersecting factors mean that the place of Pacific people, both individually and collectively, in New Zealand society, is unique, and that New Zealand has particular moral responsibilities vis a vis its Pacific people. The special relationship is not, however, a hard core legal obligation, but rather a part of the Government's responsibility to act reasonably and appropriately towards the individuals and groups whom it governs and with whom it interacts, and its recognition of Pacific people as significant groups in this respect.

The special relationship is a generic one that exists in respect of all the Pacific nations discussed in the report. When preparing this report, thought was given to whether it would be possible or appropriate to analyse the nature of the relationship on a nation by nation basis. Such an analysis could, however, set up a hierarchy of rights as between nations, which would be undesirable and counterproductive. Furthermore, any attempt to break down the relationship into sub categories or gradations of "specialness" risks becoming esoteric.

The special relationship between the New Zealand government and Pacific people manifests itself in a need to protect and foster Pacific cultures and identities, particularly when they are threatened. It also manifests itself in a need to recognise that Pacific people should have the same socio-economic opportunities as non-Pacific people.

The special nature of the relationship is already recognised by the Government in a number of ways. There is a separate Ministry of Pacific Island Affairs charged with the task of developing policies with respect to Pacific people in New Zealand, and monitoring the impact of policy initiatives on Pacific people. The Government has recently set up a Cabinet Committee committed specifically to closing the gaps between Maori and Pacific people, and other New Zealanders. The Ministry of Pacific Island Affairs has also recently released a Pacific Directions Report (1999), which suggests a pathway for the Government to offer a co-ordinated policy response to help improve outcomes for Pacific People. The Ministry of Justice and other departments have developed goals in the context of the Report. The Government has formally accepted the Report to inform its work plan for Pacific peoples in its programme for Closing the Gaps.

In many areas need must remain the primary basis on which resources are allocated, for example in the health area. How these needs are met, however, will frequently necessitate taking account of cultural imperatives and the desirability of empowering communities to design and deliver services for their own communities. Such an approach would lead to both cultural empowerment and contribute to improving the position of Pacific peoples in New Zealand. These twin goals are recognised in the Government's programme for Closing the Gaps. In areas where need is not a primary determinant of resource allocation, the special place of Pacific cultures and the moral obligation to help foster these cultures should be key factors in the Government's decision-making process.

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

Article 27 of the ICCPR

Article 27 of the International Covenant on Civil and Political Rights provides that minority groups shall not be denied the right to exercise their culture, religion or language. This right is incorporated into New Zealand law through section 20 of the New Zealand Bill of Rights Act. Given that Pacific people can, both as members of their separate national groups, and collectively, be viewed as minority groups at international law, this provides Pacific people with a legal platform on which to base the right to maintenance of their culture.

The 1992 Declaration on the Rights of Persons belonging to National, Ethnic, Religious and Linguistic Minorities indicates a strengthening of the status of minority rights at international law in favour of a positive duty on the part of States to create conditions which enable members of minority groups to manifest their cultural identities, including their language. In light of the Declaration's express link to Article 27 of the ICCPR, it may be used by the Courts as a tool in interpreting New Zealand's obligations under section 20 of the New Zealand Bill of Rights Act, although to date the Courts have held that the Government's obligations under section 20 are passive only.

This international and domestic legal context underlines the importance of New Zealand continuing to be proactive in its approach to maintaining the cultural identities of Pacific people.

Fiduciary relationship

The question of whether there can be seen to be a fiduciary duty on the part of the Government towards Pacific people in New Zealand has been raised in the context of preparing this report. The question of whether Governments owe a fiduciary duty towards non-indigenous peoples whom they govern has, to our knowledge, not been developed in international law or practice.

It should be noted that the existence of property rights on the part of indigenous peoples has generally been a key component of the fiduciary relationships that have to date been established by Courts in other countries. This suggests that fiduciary relationships in respect of Pacific people in New Zealand might be difficult to establish. However, the existence of a "good government" obligation in respect of Pacific cultures means that the establishment of a fiduciary relationship is not a necessary prerequisite to recognition of the special relationship with Pacific people.

6.3 Intersection of legal position and special relationship

Pacific people therefore have a complex and unique position in the New Zealand constitution. They have status as a minority group to whom legal rights flow collectively under section 20 of the New Zealand Bill of Rights Act, which incorporates Article 27 of the ICCPR. Furthermore, over and above their legal rights as a minority group, historical and contemporary factors give rise to a special relationship with the New Zealand Government. These dual factors underline the significance of continuing to respond to Pacific people's socio-economic and cultural needs.

6.4 Policy implications

Ways to facilitate the creation of favourable conditions to enable Pacific people to maintain their cultures, particularly as language knowledge, an important determinant of cultural vitality, is decreasing among the younger generation of Pacific people in New Zealand, will be an important policy challenge. Bridging the socio-economic gaps between Pacific people and other New Zealanders, and building on ways of involving Pacific people in decision making, particularly in decisions relating to themselves, will also be an important issue. The structural frameworks discussed above that have been recently developed for addressing issues relevant to Pacific people (i.e., the Cabinet Committee on Closing the Gaps and the Pacific Directions Report) will assist in consolidating the government's focus on these pivotal issues.

In the Ministry of Justice, examples where the need to maintain Pacific cultures and identities have been taken into consideration in the policy context are:

• Research on attitudes to sentencing, which has a specific focus on Pacific peoples;

• Research on the use of s16 of the Criminal Justice Act relating to cultural considerations in sentencing;

• The development, in consultation with the Ministry of Pacific Island Affairs, of best practice programmes for violent offending for Pacific young people;

• Development of the Ministry of Justice research strategy;

• The Pacific principles of Justice report; Closing the Gaps - Pacific Youth Justice Strategy and Victims;

• The appointment of community magistrates.

These will provide useful precedents for future research and policy projects.

6.5 Conclusion

A key determinant of a healthy constitutional arrangement is whether it is acknowledged as legitimate by the relevant citizens. Thus the constitutional arrangements need to be dynamic, and to have the capacity to respond to the reasonable aspirations of Pacific people. Because there is a constitutional dimension to the relationship with Pacific people it will be important to maintain processes to identify issues relevant to the health of the relationship with Pacific people and also ensure that the responsibilities resulting from that relationship are appropriately reflected in policy and legislative initiatives.