Chapter 18: Human rights and race relations
Te tika tangata, me te whakawhanaunga a iwi

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
(Universal Declaration of Human Rights, Article 2) [1]

1. Introduction — Timatatanga

What are the human rights issues in race relations [2]?

'Race relations' is a commonly used term for the relationship between ethnically and culturally diverse peoples, even though the concept of race itself, as a biological distinction, has long been discredited. [3] An important associated concept is racism, which uses biological differences, whether imagined or real, to assert superiority of one group over another - devaluing the 'other' - to justify aggression or privilege (De Diop, as cited in UNAIDS/World Health Organisation, 2001, p.10).

Harmonious race relations depend first and foremost on the equal enjoyment of human rights by all citizens, regardless of their ethnic or national origins. Other chapters in this report focus on a variety of civil, political, economic, social and cultural rights, and point to inequalities in their enjoyment.

Key rights that support the development of harmonious race relations include:

• the right to freedom from discrimination on the grounds of race, colour or ethnic or national origins
• the right to the equal enjoyment of civil, political, economic, social, and cultural rights
• the right of Indigenous peoples to self-determination and the protection of their language, culture, heritage, and relationship to the environment
• the right to enjoy one's culture and to use one's own language
• the right to freedom of religion and belief.

Harmonious race relations are not just a matter of the rights of minorities. They require the affirmation of the culture and heritage of all cultures, including those of majority groups.

There are both rights and responsibilities involved in achieving harmonious relations, and responsibilities lie not only with central government, local government, employers and unions and the media, but also within communities, community non-governmental organisations and every individual person.

Issues relevant to race relations are raised throughout other sections of this report, including the rights of migrant workers and their families, the right to asylum (refugees), the right to freedom of expression, the right to freedom of religion and belief, the rights of children and young people, the right to justice, and the rights to work, health and an adequate standard of living.

2. International context — Ki ngā kaupapa o te ao

The two key international treaties on the human rights of all people are the International Covenants on Civil and Political Rights (ICCPR) and on Economic, Social and Cultural Rights (CECSR). Both these and subsequent human rights treaties such as the Convention on the Elimination of Discrimination against Women (CEDAW), the Convention on the Rights of the Child (UNCROC) and the Convention on the Protection of All Migrant Workers and Members of their Families explicitly affirm the right to freedom from racial discrimination.

Because of the pervasive and destructive impact of racism and racial discrimination, a specific Convention on the Elimination of Racial Discrimination (CERD) was adopted by the United Nations in 1965. The Convention defines racial discrimination as:

Any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

The CERD requires State Parties:

• not to engage in any act or practice of racial discrimination against individuals, groups of persons or institutions, and to ensure that public authorities and institutions do likewise
• not to sponsor, defend or support racial discrimination by persons or organisations
• to review Government, national and local policies and to amend or repeal laws and regulations which create or perpetuate racial discrimination
• to prohibit and put a stop to racial discrimination by persons, groups, and organisations
• to encourage integrationist or multiracial organisations and movements and other means of eliminating barriers between races, as well as to discourage anything which tends to strengthen racial division.

The Convention does not apply to distinctions made between citizens and non-citizens (Article 1(2)). It exempts from the definition of racial discrimination special measures designed to deal with disadvantaged racial and ethnic groups, on the condition that such programmes must be based on an identified need and be discontinued once the objective for which they were introduced has been achieved. It states:

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

Article 2 of the Convention specifically calls on States Parties, when the circumstances so warrant, to:

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.

Indigenous peoples have the same human rights as all others, but it has long been recognised that there are also particular rights that pertain to them. ILO Convention 169 on the Rights of Indigenous Peoples, which was adopted in 1989, [4] comprehensively covers general policy, land, recruitment and conditions of employment, vocational training, traditional craft and rural industries, social security and health, education and means of communication, and contacts and cooperation across borders. The United Nations has been working with Indigenous peoples on a comprehensive Draft Declaration on the Rights of Indigenous Peoples for the past 25 years, but a number of concerns raised by Governments have yet to be resolved.

Article 29 of the United Nations Convention on the Rights of the Child (1989), in reference to the right to education, includes the following two directions for children's education:

1. The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;
2. The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin.

Article 30 states that:

In those states in which ethnic, religious or linguistic minorities or persons of Indigenous origin exist, a child belonging to such a minority or who is Indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her religion, or to use his or her own language.

The United Nations World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, held in Durban in 2001, adopted a Declaration and a wide-ranging World Programme of Action to Combat Racial Discrimination (United Nations, 2002). The Programme has 219 separate recommendations, but its main themes relevant to New Zealand are:

• effective legal mechanisms to address instances of racism and racial discrimination
• targeted programmes to reduce inequalities experienced by Indigenous peoples and ethnic minorities
• public education in schools and workplaces, and through public information programmes, about racism and racial discrimination, Indigenous peoples and migrant communities
• promotion of cultural diversity as a positive value in society, including the protection of the languages and cultures of Indigenous peoples and ethnic minorities
• diversity in Government and business to remove institutional barriers, provide equal access to services and enable equal participation by Indigenous peoples and ethnic minorities
• research, data collection and measurement to enable progress to be monitored in achieving racial equality.

3. New Zealand context — Ki ngā kaupapa o Aotearoa

The Treaty of Waitangi

The Treaty of Waitangi is a fundamental reference point for race relations in New Zealand , giving the Crown the authority to establish a Government. It sets out the basis of the relationship between the Crown and Maori iwi, hapu and whanau, and affirms Maori control over their own affairs and equality of citizenship for all. It is a document that provides for rights for all New Zealanders, including Maori, Pakeha [5] and subsequent migrants.

The Treaty of Waitangi Tribunal was established in 1975 to hear claims relating to contemporary breaches of the Treaty of Waitangi. Its brief was subsequently extended to consider historical breaches of the Treaty back to 1840. A number of key statutes now include reference to the Treaty of Waitangi, and this has led to a significant body of case law about the Treaty's contemporary application. The Maori Language Act 1987 recognised Maori as an official language of New Zealand , and established the Maori Language Commission to protect and foster the use of Te Reo Maori.

The historical context

Since human settlement, New Zealand has experienced periods of inter-tribal and inter-ethnic armed conflict. The 1830s were a period of considerable turmoil, with Maori inter-tribal warfare and the unruly behaviour of visitors and early settlers. In 1840 the Treaty of Waitangi established a compact between the Crown and Maori that provided a framework for relationships between Maori and non-Maori. Subsequent Maori-Crown conflict reached its height in the New Zealand Wars as a result of breaches of the Treaty and disputes over the sale and confiscation of Maori land.

For the majority of our common history, the key race relations issues in New Zealand have been the relationship between Maori and the Crown and between Maori and Pakeha citizens. Small groups of other migrants, such as Indians, Chinese, Dalmatians and other continental Europeans, have also been in New Zealand since the nineteenth century, and have had their own, sometimes extremely difficult, experiences of gaining freedom from discrimination and receiving acceptance and respect. [6] The vast majority of settlers until the middle of the twentieth century were, however, of English, Irish, Scottish and Welsh descent, and they outnumbered Maori from the second half of the nineteenth century.

While United Kingdom and Irish migration has continued to the present day, significant numbers of migrants have also, since World War II, come from continental Europe , Australia , the nations of the Pacific, the countries of Asia and from Africa , as well as refugees from many areas of conflict around the world. The relationship between Maori and Pakeha has continued to be a major issue, but these more recent migrations have brought new race relations challenges, particularly in relation to the full acceptance of New Zealanders of Pacific Island and Asian origin, and of refugees from Africa , the Middle East and elsewhere.

For a long time, official policies favoured assimilation into the predominant Pakeha culture, and immigration of people from non-European countries was severely restricted. There was also a degree of anti-Semitism in government immigration policy during and after World War II. [7] These policies have changed as a result of the increased Maori challenge to assimilation from the 1960s, the Pacific migration in the 1970s, and the Asian migration in the 1990s. The major population groups in New Zealand are now Maori, Pakeha, Pacific and Asian, and there is a rich diversity of people of other cultures. This diversity is expected to continue to strengthen over the next fifty years, through both population growth and intermarriage. On present trends it is projected that, by 2051, half of all New Zealanders will be of Maori, Pacific and Asian descent. Many of these will, of course, also be of Pakeha descent.

Legislation

The New Zealand Bill of Rights Act 1990 (BoRA) guarantees freedom from discrimination and the rights of minorities.

The Race Relations Act 1971 established the office of the Race Relations Conciliator and set up procedures for complaints about racial discrimination. Amendments to the Human Rights Act 1993 (HRA) in 2001 merged the Race Relations Office with the Human Rights Commission. Both the Commission's primary functions under the HRA are relevant to race relations:

• to advocate and promote respect for, and an understanding and appreciation of, human rights in New Zealand society; and
• to encourage the maintenance and development of harmonious relations between individuals and among the diverse groups in New Zealand society.

The HRA prohibits discrimination on the grounds of colour, race, and ethnic or national origins, and also (in specified circumstances) racial harassment and inciting or exciting racial disharmony. It provides exceptions to the grounds of discrimination for special measures to achieve equality. The Commission is also required by the Act to promote understanding of the human rights dimensions of the Treaty of Waitangi.

The HRA does not specifically refer to language or culture - an omission that has led to criticism by the United Nations Human Rights Committee (2002). However, because the HRA makes it unlawful to discriminate on the grounds of ethnicity or national origin, this can be taken to include discrimination by reason of language or cultural practice. Section 65 of the HRA also addresses indirect discrimination. (Indirect discrimination by reason of ethnicity, for example, may involve discrimination on the grounds of language and culture.)

The HRA provides a dispute resolution mechanism for complaints about racial discrimination, racial harassment and creating racial disharmony. Where disputes cannot be resolved by mediation and related options, complaints can be referred to the Human Rights Review Tribunal.

Section 4 of the Summary Proceedings Act 1981, which relates to offensive behaviour and language, is relevant to incidents of racial vilification, harassment and abuse in public places. The Sentencing Act 2002 requires courts to consider it an aggravating factor when an offender commits an offence out of hostility based on the victim's race, colour, or nationality.

Racial discrimination in employment and accommodation are further prohibited in the Employment Relations Act 2000 and the Residential Tenancies Act 1986. The Employment Relations Service and Tenancy Services offer mediation to settle differences. If these cannot be resolved they can be referred to the Employment Relations Authority or the Tenancy Tribunal.

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