Ministry of Justice, New Zealand

1.1 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.

1.2 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]

1.3 Nation

The Canadian political philosopher, Will Kymlicka [2] 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 ago[3], 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].

1.4 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.

1.5 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]

1.6 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]

1.7 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]

1.8 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.

1.9 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]

1.10 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.

1.11 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:

E kore e ngaro he kakano i ruia mai i Rangiatea

(the seeds from Rangiatea shall not be lost)

- a reference to the physical and spiritual things which voyaged from central Polynesia to New Zealand with the first Polynesian settlers.

Each of these features will be developed in subsequent parts of this report. For the moment it is enough to note that, together, these features distinguish these Pacific Island communities in New Zealand from other immigrant communities, although much of what is said about the need to have regard for identity and substantive equality for all ethnic groups within the state applies to all ethnically conscious groups of whatever origin.

1.12 Supporting the Polynesian cultures - the holistic approach

The value of bio-diversity is beginning to be understood in the modern world. Preservation of the varieties of life forms is now seen as a work of protection for the future of all humankind. It cannot be predicted which variety may be the key to some future advance, or prove to be a life-raft in future peril. The same is true for the varieties of Polynesian and Pacific culture, for example, the preservation of Niuean culture, with its own variant of the Polynesian language, and its own distinctive accounts of the world and of the place of people in it.

This report suggests that the history of New Zealand's involvement in the South Pacific has created at least a moral obligation to support these island nations in the preservation of their cultures. Furthermore, it is suggested that this supportive role will best be discharged by viewing these cultures in an holistic manner - that is, in viewing the culture situated in the homeland and that situated in New Zealand as two parts of a whole.

In policy terms, this blurs the lines between foreign and domestic policy - but it is argued that the approach will produce gains for each branch of policy. It will be important that such an approach involve the governments of the homelands while avoiding any suggestion of interference in their domestic affairs. The existing organisations for consultation and co-operation in the South Pacific, especially the South Pacific Forum and its Secretariat, may provide the machinery for such an approach, and indeed may already be facilitating some initiatives fitting the recommended model.

Although this report points to some obligations the state owes to its minorities in accordance with international and domestic law, it also draws attention to some features of the Pacific Island communities in New Zealand, which suggest a particular approach to policy-making. In the second case, policy-makers are doing no more than heeding the judgement in the Ministry of Justice's recently commissioned study titled Healthy Constitutional Relationships in a Culturally Diverse Society that states:

'The characteristics of healthy and robust working relationships between the Crown and the groups that make up our society and between each of those groups is similar to the characteristics of healthy and robust working relationships between individuals, communities or countries. These characteristics can be summarised as involving commitment and communication leading to co-operation'.[17]

Footnotes

1. The point is made more laboriously in UNESCO 's Statement on Race (1950): 'One problem of the academic study of racial relations is that it has been dominated by scholars from the English-speaking world, and particularly by social scientists who have either grown up in the United States or have unconsciously taken over assumptions originating there...the economic and mass media power of the United States has permitted that country 's folk definitions on race to be transmitted to other regions and represented as universal categories ' UN Doc E/CN.4/Sub.2/1987/5

2. Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights, Clarendon Press, Oxford, 1995. p. 11.

3. Sir John Salmond, Jurisprudence, seventh edition, Sweet and Maxwell, London, 1924. This edition was the last for which Salmond was responsible and is therefore regarded as the most definitive of Sir John's concluded views.

4. For in depth discussion of the nature of nationhood, see Benedict Anderson Imagined Communities: Reflections on the Origin and Spread of Nationalism, Verso, London, 1991; E J Hobsbawn Nations and Nationalism Since 1780, Redwood Press Ltd, Wiltshire, 1990, and Ernest Gellner Nations and Nationalism Basil Blackwell, Oxford, 1983. For a New Zealand perspective, see Angus Ross New Zealand Aspirations in the Pacific in the 19th Century Oxford University Press, 1964.

5. Amitai Etzioni, The Spirit of Community, first published 1993. Fontana Press, 1995 p.37.

6. James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge University Press, 1995.

7. Etzioni, supra note 5, p.148.

8. Martha Nussbaum, "The Sleep of Reason," Times Higher Education Supplement, Feb.2 1966, p.17. Nussbaum is Professor of Law and Ethics at the University of Chicago.

9. Prime Minister Kirk, NZPD Vol. 391 (1974) at p.2691.

10. Salmond, Jurisprudence, supra note 5, p.146-147.

11. Prime Minister Kirk to Premier Henry, 4 May 1973, App.J.H.R. 1973, A-10.

12. W.A. McKean, Equality and Discrimination under International Law, Clarendon Press, Oxford, 1983, at page 288. McKean here foreshadows Kymlicka 's point noted above, that genuine civic equality may require different treatment for members of minorities.

13. McKean, supra, p.288.

14. For discussion, see Thornberry (note 15 infra) at p. 314-318. Judge Tanaka's opinion is reported at ICJ reports 1966, 4 at p.284-316.

15. The distinction is found in the very title of the UN's Sub-Commission on Prevention of Discrimination and Protection of Minorities. For a full discussion of the background to the tension, and the rival views, see Patrick Thornberry, International Law and the Rights of Minorities, Clarendon Press, Oxford, 1991.

16. The apparent exception, Fiji, also has Polynesian connections: the island of Rotuma has a population mainly of Polynesian origin (a feature recognised in the special treatment of Rotuma in the Constitution of Fiji (1997) see Article 6(d)). In addition, Polynesian elements have historically been mixed with the indigenous Fijian people. It is however true that Fiji presents a different case, especially because of a very strong Indo-Fijian minority.

17. 'Healthy Constitutional Relationships in a Culturally Diverse Society.' Internal resource paper prepared for the Ministry of Justice in 1998, marked 'Not Government Policy ', p.33 of typescript.