Right to Culture

18.1 Introduction

18.2 Recognition of the right to culture in human rights law

18.2.1 The International Covenant on Civil and Political Rights 1966

18.2.2 The International Covenant on Economic, Social and Cultural Rights 1966

18.2.3 The New Zealand Bill of Rights Act 1990

18.3 Extent of recognition of the right to culture by New Zealand law

18.3.1 What is the right to culture in the New Zealand Bill of Rights Act 1990 intended to cover?

18.3.2 What are examples of situations where aspects of the right to culture have been an issue in legal contexts?

18.4 Useful contact information

18.5 Recommended reading

18.1 Introduction

This chapter addresses, in a preliminary way, aspects of the right to culture as it is defined in human rights law. Given the increasing number of people living in New Zealand who identify as members of ethnic, religious or linguistic minorities, the right to culture is likely to become an increasingly important civil rights issue. For example, one of the priorities identified in the [Human Rights Commission\'s Action Plan for Human Rights (2005)]{.mark} is the need to promote discussion on the legislative status of economic, social and cultural rights. At present, economic and social rights are not recognised by the [New Zealand Bill of Rights Act 1990.]{.mark}

The Connecting Diverse Communities project is designed to promote social cohesion and stronger relationships between communities. The project is led by the Ministry of Social Development and the Office of Ethnic Affairs. A comprehensive public engagement process was undertaken between July and December 2007. The project\'s work programme focuses on five areas:

1. strengthening intercultural relations

2. addressing discrimination and promoting respect

3. improving connections with cultural identity

4. capacity building and community development

5. building the knowledge base

[[(]{.underline}International Covenant on Civil and Political Rights: Fifth Periodic Report of the Government of New Zealand, December 2007[, para 312-16; see also paras 411-37.)]{.underline}]{.mark}

18.2 Recognition of the right to culture in human rights law

18.2.1 The International Covenant on Civil and Political Rights 1966

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. [[(Article 27)]{.underline}]{.mark}

18.2.2 The International Covenant on Economic, Social and Cultural Rights 1966

> State Parties to the ... Covenant recognise the right of everyone to
> take part in cultural life ... [([Article
> 15(1)(a))]{.underline}]{.mark}

18.2.3 The New Zealand Bill of Rights Act 1990

A person who belongs to an ethnic, religious or linguistic minority... 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. [[(s 20)]{.underline}]{.mark}

18.3 extent of recognition of the right to culture by New Zealand law

• The [[Treaty of Waitangi Act 1975]{.underline}]{.mark} was established by the Waitangi Tribunal to hear grievances and to make reports and recommendations regarding alleged breaches of the Treaty by the Crown. In 1985, the Tribunal\'s jurisdiction was extended, thereby permitting Māori claimants to submit grievances arising out of any allegedly prejudicial legislation, policy or action of the Crown, since 1840. (See Office of Treaty Settlements, [[Healing the Past: Building a Future]{.mark}]{.underline} (1999). An updated version was published in 2004.)

• In 1986, a government policy directive was introduced providing that \'all future legislation referred to Cabinet at the policy approval stage shall draw attention to any implications for recognition of the principles of the Treaty of Waitangi.'

• The [[Māori Language Act 1987]{.underline}]{.mark} declares te reo Māori to be an official language of New Zealand. Under the Act, people are given the right to speak Māori in legal proceedings. (See [[Chapter 2, In Court]{.underline}.)]{.mark} This right was extended in 1991 to include commissions of inquiry and a number of specialist courts and tribunals (eg, the Tenancy Tribunal).

The [[Māori Language Act 1987]{.underline}]{.mark} also established the Māori Language Commission. The Commission\'s functions include the initiation, development, coordination and implementation of policies and procedures to promote te reo Māori as an official language of New Zealand.

• The [[Resource Management Act 1991]{.underline}]{.mark}, New Zealand\'s most important environmental law, expressly recognises \'cultural well-being\' as a component of the Act\'s primary purpose---the \'promotion of sustainable management\' [[(s 5]{.underline})]{.mark}. In addition, the seven \'matters of national importance\' include the \'relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wahi tapu, and other taonga\' [(s 6(e))]{.mark} and \'the protection of recognised customary activities\' [[(s 6(g))]{.underline}.]{.mark} In addition, the separate matter of national importance relating to \'the protection of historic heritage\' [[(s 6(f))]{.mark}]{.underline} specifically includes \'sites of significance to Māori, including wahi tapu\' [[(s 2)]{.underline}]{.mark}. Māori\'s core environmental concept, kaitiakitanga, is also expressly recognised [[(s 7(a)).]{.underline}]{.mark} The Act defines kaitiakitanga as `the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Māori in relation to natural and physical resources; and includes the ethic of stewardship\' [([Resource Management Amendment Act 1997]{.underline}, [s 2(4))]{.underline}.]{.mark} (See Roberts, Norman, Minhinnick, Wihongi, and Kirkwood, \'Kaitaikitanga: Māori Perspectives on Conservation\' [[(1995) 2 Pacific Conservation Biology 7-20.)]{.underline}]{.mark}

There have been many decisions interpreting the application of the above sections in particular factual contexts. The various conventional and electronic publications on the Resource Management Act should be consulted. These publications include Nolan\'s [[Environmental and Resource Management Law]{.underline},]{.mark} LexisNexis (NZ), and Brookers [[Resource Management Law Handbook]{.underline}]{.mark} (2007). There has also been an outpouring of academic articles in this area (eg, Beverley, \'The Mechanisms for the Protection of Māori Interests under Part II of the Resource Management Act 1991\' [[(1998) 2 NZ Journal of Environmental Law 121-55]{.underline}]{.mark} and Vince, \'Māori Consultation under the Resource Management Act and the 2005 Amendments\' [[(2006) 10 NZ Journal of Environmental Law 295-327)]{.underline}.]{.mark}

• The [[Historic Places Act 1993]{.underline}]{.mark} provides for the registration of 'wahi tapu\' or `wahi tapu Areas.' A wahi tapu is defined in the Act as \'a place sacred to Māori in the traditional, spiritual, religious, ritual or mythological sense\' [[(s 2)]{.underline}.]{.mark} The registration process is administered by the Māori Heritage Council, which operates using Māori procedures and protocols. [([See Parliamentary Commissioner for the Environment, Historic and Cultural Heritage Management in New Zealand, 1996, ch. 4.]{.underline})]{.mark}

• The [[Arts Council of New Zealand Toi Aotearoa Act 1994]{.mark}]{.underline} provides that in achieving its purpose the Arts Council shall recognise, among other things:

• the cultural diversity of the people of New Zealand

• the role in the arts of Māori as tangata whenua

• the arts of the Pacific Island people of New Zealand

Under the [[1994 Act]{.underline}]{.mark}, the Arts Council apportions funding between two arts boards---Te Waka Toi, which funds Māori arts, and the Arts Boards, which support the arts of all New Zealanders.

18.3.1 What is the right to culture in the New Zealand Bill of Rights Act 1990 intended to cover?

The object is protect \'the rights of minorities to practise their culture in private and in community with others\' [[(A Bill of Rights for New Zealand: A White Paper, 1985).]{.underline}]{.mark} The provision is aimed at protecting members of ethnic, religious or linguistic minorities against oppressive government action seeking cultural conformity.

[[Section 20]{.underline}]{.mark} of the [[New Zealand Bill of Rights Act 1990]{.underline}]{.mark} is modelled closely on [[Article 27]{.underline}]{.mark} of the [[International Covenant on Civil and Political Rights 1966]{.underline}]{.mark}:

> [[Article 27]{.underline}]{.mark} is based on the assumption that in
> addition to protection against discrimination, members of minority
> groups need special rights to enable them to preserve and develop
> their ethnic, religious or linguistic characteristics ... (Sohn,
> [[\'The Rights of Minorities\']{.underline} (1981)]{.mark} quoted in
> Elkind and Shaw, [[A Standard of Justice---A Critical Commentary on
> the Proposed Bill of Rights for New Zealand]{.underline} (1986)
> Oxford University Press, 79]{.mark})

The authors highlight particular problems in defining the rights of ethnic, religious or linguistic minorities:

• what is the basis for the demand of such groups that they receive equality of treatment with the majority of the population?

• what is the basis for the claims of some ethnic, religious or linguistic minorities for special measures of protection over and above those of the majority of the population?

18.3.2 What are examples of situations where aspects of the right to culture have been an issue in legal contexts?

• challenges to the allocation of the radio spectrum ([[Attorney-General v New Zealand Māori Council [1990] NZCA 352; [1991] 2 NZLR 129 (CA)]{.underline})]{.mark}

• challenges to development proposals that may lead to the destruction of archaeological sites [[(Ngatiwai Trust Board v New Zealand Historic Places Trust [1997] NZHC 1978; (1997) 3 ELRNZ 370; [1998] NZRMA 1 (HC))]{.underline}]{.mark}

• challenges to the issuing of a removal order under the [[Immigration Act 1987]{.underline}]{.mark} [[(Manilcam v Chief Executive of the Department of Labour [1999] BCL 330]{.mark})]{.underline}

• application by Māori grandparents to adopt a part-Māori child in order to preserve the child\'s culture and heritage [[(Tv F (1996) 14 FRNZ 415]{.underline}]{.mark})

• relevance of cultural rights in determining who has custody of a child ([[Makiri v Roxburgh (1988) 4 NZFLR 673; (1988) 4 FRNZ 78]{.underline})]{.mark}

• cultural significance involved in the construction of a Hindu temple ([[Mitchell v Auckland City [1991] BCL 1397]{.underline})]{.mark}

18.4 Useful contact information

(a) Human Rights Commission Te Kahui Tika Tangata

National office

Postal address: PO Box 6751, Wellesley Street, Auckland 1141

Physical address: Level 10, Tower Centre, 45 Queen Street, Auckland 1010

Freephone (infoline): 0800 496 877 or phone: 09 309 0874

Fax: 09 377 3593

Email: infoline@hrc.comz

Website: [[www.hrc.co.nz]{.underline}]{.mark}

(b) Māori Language Commission Te Taura Whirl I Te Reo Māori

> Postal address: PO Box 411, Wellington 6140
>
> Physical address: Level 14, Investment Centre, Cnr Featherston and
> Ballance Streets,
>
> Wellington 6011
>
> Phone: 04 471 0244
>
> Fax: 04 471 2768
>
> Email: tereo@tetaurawhiri.govt.nz
>
> Website: [[wwwtetaurawhiri.govt.nz]{.underline}]{.mark}

(c) Ministry of Culture and Heritage Te Manatu Taonga

> Postal address: PO Box 5364, Lambton Quay, Wellington 6145
>
> Physical address: Levels, Radio NZ House, 155 The Terrace, Wellington
> 6011
>
> Phone: 04 499 4229
>
> Fax: 04 449 4490
>
> Email: info@mch.govt.nz
>
> Website: [[www.mch.govt.nz]{.underline}]{.mark}

(d) Ministry of Māori Development Te Puni Kokiri

> National office
>
> Postal address: PO Box 3943, Wellington 6140
>
> Physical address: Te Puni Kokiri House, 143 Lambton Quay, Wellington
> 6011
>
> Phone: 04 819 6000
>
> Fax: 04 819 6299
>
> Email: info@tpk.govt.nz
>
> Website: [[www.tpk.govt.nz]{.underline}]{.mark}

(e) Ministry of Pacific Island Affairs

> National office
>
> Postal address: PO Box 833, Wellington 6140
>
> Physical address: Level 2, ASB House, 101-103 The Terrace, Wellington
> 6011
>
> Phone: 04 473 4493
>
> Fax: 04 473 4301
>
> Email: contact@mpia.govt.nz
>
> Website: [[www.minpac.govt.nz]{.underline}]{.mark}

(f) Office of Ethnic Affairs Te Tad Matawaka

> National office
>
> Postal address: PO Box 805, Wellington 6140
>
> Physical address: do The Department of Internal Affairs, 46 Waring
> Taylor Street,
>
> Wellington 6011
>
> Phone 04 494 0546
>
> Fax: 04 495 7231
>
> Email: ethnic.affairs@dia.govt.nz
>
> Website: [[www.ethnicaffairs.govt.nz]{.underline}]{.mark}

(g) Office of Treaty Settlements Te Tad Whakatau Take E Pa Ana Ki Te Tiriti 0 Waitangi

> Postal address: PO Box 919, Wellington 6140
>
> Physical address: Level 1, The Vogel Centre, Kate Sheppard Place,
> Wellington 6011
>
> Phone: 04 494 9800
>
> Fax: 04 494 9801
>
> Email: reception.ots@justice.govt.nz
>
> Website: [[www.ots.govt.nz]{.underline}]{.mark}

(h) Waitangi Tribunal Te Ropu Whakamana I Te Tiriti 0 Waitangi

> Postal address: PO Box 5022, Lambton Quay, Wellington 6145
>
> Physical address: Level 2, Fujitsu Tower, 141 The Terrace, Wellington
> 6011
>
> Phone: 04 419 3000
>
> Fax: 04 419 3001
>
> Email: tribunal@courts.co.nz
>
> Website: [[www.waitangi-tribunal.govt.nz]{.underline}]{.mark}

18.5 Recommended reading

Hunt and Wilson, eds[, [Culture, Rights and Cultural Rights: Perspectives from the South]{.underline} ]{.mark}

[[Pacific (2000)]{.mark}]{.underline} Huia Publishers.

Tomas, ed., [[Collective Human Rights of Pacific Peoples (1998) Human Rights]{.underline}]{.mark}

[[Commission/International Research Unit for Māori and Indigenous Education, University]{.underline}]{.mark}

[[of Auckland.]{.mark}]{.underline}