Committee on the Elimination of Racial Discrimination
Concluding observations on the combined twenty-first and twenty-second periodic reports of New Zealand *
1.The Committee considered the twenty-first and twenty-second periodic reports of New Zealand (CERD/C/NZL/21-22), submitted in one document, at its 2568th and 2569th meetings (CERD/C/SR.2568 and 2569), held on 15 and 16 August 2017. At its 2578th, 2579th and 2580th meetings, held on 22 and 23 August 2017, it adopted the following concluding observations.
A.Introduction
2.The Committee welcomes the submission of the combined twenty-first and twenty-second periodic reports of the State party. The Committee welcomes the open and constructive dialogue with the multisectoral delegation and expresses its appreciation for the statistical information submitted prior to the dialogue and for the oral presentation and the detailed replies provided by the delegation during the consideration of the report.
B.Positive aspects
3.The Committee commends the State party for:
(a)Acknowledging that social inequities exist today between racial groups and the acceptance by the State party of responsibility to correct them;
(b)Adopting the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017.
4.The Committee also welcomes the State party’s recent efforts to establish policies, programmes and administrative measures to further ensure the protection of human rights and the implementation of the Convention, including:
(a)The second national plan of action on human rights, for the period 2015-2019;
(b)Various educational and linguistic strategies and measures targeting Maori and Pasifika, including the Maori Language Act of 2016;
(c)He Kai Kei Aku Ringa (the Maori economic development strategy and action plan);
(d)English as a second language support for students of migrant and refugee backgrounds in schools;
(e)‘Ala Mo’ui: Pathways to Pacific Health and Wellbeing 2014-2018;
(f)The Whenua Maori Fund to improve the productivity of Maori land;
(g)The Whanau Ora development strategy;
(h)The Youth Crime Action Plan 2013-2023;
(i)He Korowai Oranga (the Maori health strategy) and the Healthy Families NZ initiative;
(j)The Pacific Economic Strategy 2015-2021;
(k)The $10 million fund to address Maori overrepresentation in the criminal justice system.
5.The Committee notes with appreciation the active role of a vibrant civil society and of the national human rights institution, the Human Rights Commission, which was again assigned “A” status by the Global Alliance of National Human Rights Institutions in May 2016.
C. Concerns and recommendations
National action plan on racism and the Race Relations Commissioner
6.The Committee welcomes the continued role of the Race Relations Commissioner, and commends the work accomplished by the Commissioner during the reporting period. However, the Committee is concerned about the lack of a current national action plan on racism (art. 2).
7. Given the accelerated pace of demographic changes in the State party ’s population , the Committee recommends that the Race Relations Commissioner play a leadership role in developing, in consultation with all stakeholders , a n ational p lan of a ction a gainst r acial d iscrimination and x enophobia in line with the Durban Declaration and Programme of Action. The Committee calls on the State party to guarantee adequate funding for successful implementation of the p lan . The p lan should include , but not be limited to:
(a) A ssess ing current , and project ing future , changes in the country ’s demographics;
(b) A ssess ing the adequacy of current structures and processes to respond appropriately to the country ’s changing demographics;
(c) M ak ing changes necessary to ensure that the diversity of the population is appropriately reflected in plannin g and delivery of services;
(d) D evelop ing and implement ing measures aimed at increasing social cohesion ;
(e) D evelop ing a comprehensive plan , working in partnership with M a ori and other relevant groups, that can be used to identif y actions, build ownership and measure results to meet the target s of the Sustainable Development Goal s to reduce inequalities in social indicators among ethnic groups in the population of the Sta te party with respect to health , employment, education and housing, with special emphasis on adequate, affordable and safe housing by 2030. The implementation plan should have a particular focus on security of tenure.
Racist hate speech and hate crimes
8.The Committee is concerned that while the State party’s legislation criminalizes incitement of racial disharmony and allows race-related hostility to constitute an aggravating factor in sentencing, there were no prosecutions for incitement of racial disharmony during the reporting period. The Committee is also concerned by the lack of comprehensive statistics relating to prosecutions, convictions and sanctions related to racist hate speech. The Committee notes with interest the State party’s current efforts to address those gaps, but is concerned that existing legislation may be inadequate to effectively combat acts of racial hatred (arts. 2 and 4).
9. Recalling its general recommendation No. 35 (2013) on combating racist hate speech , t he Committee recommends that the State party :
(a) R eview the adequacy of current legislation in addressing and sanctioning racist hate speech and incitement to racial hatred , and ensure that the legislative framework conforms to article 4 of the Convention ;
(b) E nsure that all incidents of racist hate crimes and racist hate speech are investigated and prosecuted , tha t the perpetrators are sanctioned and that victims are compensated ;
(c) S et as a government priority the collection of reliable and comprehensive statistics , disaggregated by the ethnicity of the victim s , concerning investigations, prosecutions, convictions and sanctions for racist hate speech and incitement to racial hatred , and provide such data in the next periodic report.
Acts of racial discrimination
10.The Committee notes with concern that while the Human Rights Commission has received many race-based discrimination complaints in recent years, including over 400 complaints alleging employment or pre-employment discrimination, human trafficking or harassment, the number of relevant investigations conducted and sanctions imposed is not clear from the information provided by the State party, and the Employment Relations Authority determined only six personal grievance cases featuring claims of racial discrimination or harassment, one of which was upheld. The Committee is also concerned about the lack of labour-inspection data in the State party’s report (arts. 2, 5 and 6).
11. The Committee recommends th at the State party ensure that acts of racial discrimination are investigated and that the perpetrators are prosecuted and sanctioned . The State party is requested to provide in its next periodic report information on : labour inspections and other administrative or legal proc edures relating to racial discrimination; cases on labour conditions, harassment or human trafficking; data on inspection visits, violations detected and sanctions or penaltie s imposed during the re porting period ; and compensation provided to victims, disaggregated , inter alia , by year, type of violation and age, sex, national origin and ethnic origin of the victim.
Treaty of Waitangi
12.The Committee is concerned by the apparent lack of progress in the implementation of the 2013 recommendations of the Constitutional Advisory Panel concerning the Treaty of Waitangi. It notes that an independent, Maori-led initiative, Matike Mai Aotearoa, has also undertaken wide-ranging consultation and issued its own report, in which it put forward other proposals for discussion on a range of constitutional models that also have not been taken up by the State party. The Committee sees that little progress has been made during the reporting period in securing indigenous rights to self-determination under the Treaty or the power-sharing arrangement between hapu and the State party required by the Treaty. The Committee is concerned by reports that the Waitangi Tribunal is underresourced, leading to long processing delays (arts. 2 and 6).
13. The Committee recommends that the State party:
(a) I ssue , without delay, a timetable for debating , in partnership with M a ori , the recommendations of the Constitutional Advisory Panel regarding the role of the Treaty of Waitangi within its constitutional arrangements , along with the proposals contained in the report of Matike Mai Aotearoa and all stakeholders ;
(b) E nsure that its public policy and legislative initiatives comply with the participation principle of arti cle 2 of the Treaty of Waitangi;
(c) G ive greater assurance that the State party recognizes the fundamental right to self-determination of M a ori and the obligation to establish shared govern ance with hap u ;
(d) P rovide adequate resources for the Waitangi Tribunal.
Maori land issues and the treaty settlement process
14.The Committee notes that its general recommendation No. 23 (1997) on the rights of indigenous peoples, as well as the United Nations Declaration on the Rights of Indigenous Peoples, make unequivocal the requirement that any decision affecting the rights and interests of indigenous peoples must be subject to their free, prior and informed consent. The Committee takes note of the treaty settlement process that seeks to settle Maori historical land clams in exchange for an apology on behalf of the State party and a compensation package that may include cultural, financial and/or commercial redress and incentives, along with possibly a variety of partnership opportunities with the State party (arts. 2, 5 and 6).
15.As the s ettlement process and its implications and consequences go to the core of the right of M a ori to own, develop, control and use their communal lands , territories and resources, and their rights under the Convention, the Committee urgently requests the State party to supply the following information:
(a) T he total area of land and percentage of the total territory that has been the subject of the settlement process;
(b) T he total area of land and percentage of the total territory not subjected to the settlement process and the reasons for the exemptions;
(c) A description of the compensation package given in each settlement and its current market value ;
(d) T he percentage of land under the ownership of M a ori who declined to engage with the settlement process;
(e) W hether , in the view of the S tate party, completion of the settlement process will extinguish the rights under the t reaty.
Maori intellectual and cultural property rights
16.While noting the steps taken, the Committee is concerned about the lack of progress in implementing the recommendations contained in the Waitangi Tribunal’s 2011 Wai 262 report regarding, among other issues, Maori intellectual and cultural property rights and Maori treasured possessions, including language, culture and knowledge (art. 5).
17. The Committee recommends that the State party produce and publish a plan with targets and a timetable for implementing the remainder of the recommendations contained in the Wai 262 decision. It also recommends that the State party take the steps necessary to freeze recognition of the validity of acts taken under the framework established in the Wai 262 report that do not comply with the Treaty of Waitangi and the United Nations Declaration on the Rights of Indigenous Peoples.
Special Housing Area 62
18.The Committee is concerned by conflicting information regarding consultation with local Maori in connection with the designation of Special Housing Area 62 at Ihumatao on land traditionally and currently occupied by Maori. The Committee notes that this land has been sold to a commercial developer who is required to actively mitigate the effects of development. While noting the State party’s position that it adequately consulted and obtained support from Maori authorities regarding the designation, the Committee is concerned by alternate reports that Maori have not had the opportunity to formally take part in decision-making with respect to use of the land (arts. 2 and 5).
19. The Committee recommends that the State party review , in consultation with all affected M a ori, the designation of Special Housing Area 62 to evaluate its conformity with the Treaty of Waitangi , the U nited Nations Declaration on the Rights of Indigenous Peoples and other relevant international standards , and that the State party obtain the free and informed consent of M a ori before approving any project affecting the use and development of their traditional land and resources.
Marine and coastal rights
20.The Committee is concerned about the application of the Marine and Coastal Area (Takutai Moana) Act of 2011 on Maori land and resource rights, and by reports that the State party has not attempted to review the Act in accordance with the relevant recommendation contained in the previous concluding observations (see CERD/C/NZL/CO/18-20, para. 13). While noting the delegation’s statement in this regard, the Committee remains concerned by reports that the State party has not consistently applied the principle of free, prior and informed consent in matters affecting Maori customary marine interests (arts. 2, 5, 6.).
21. The Committee reiterates its recommendation that the State party review the Marine and Coastal Area ( Takutai Moana) Act of 2011 with a view to respecting and protecting the full enjoyment by M a ori communities of the ir rights regarding the land and resources they traditionally own or use, and their access to places of cultural and traditional significance. The Committee requests that the State party provide in its next periodic report all information on applications for recognition of cu stomary interests in the common marine and coastal area .
Freshwater and geothermal resources
22.The Committee is concerned by reports that the State party has granted private companies the right to use freshwater resources located on traditional Maori land despite consistent opposition by local Maori. The Committee welcomes the adoption of the Te Awa Tupua (Whanganui River Claims Settlement) Act of 2017. The Committee notes with interest the State party’s efforts to engage and consult with iwi and hapu concerning their freshwater rights, and to provide advice to Maori organizations on geothermal assets (arts. 2, 5 and 6).
23. The Committee urges the State party ensure full respect for the rights of M a ori communities to freshwater and geothermal resources, as protected by the Treaty of Waitangi and in accordance with the provisions of the Convention .
Criminal justice
24.Despite welcome reductions, through commendable efforts, in Maori adult and youth offending in recent years, the Committee is concerned at the State party’s information that Maori remain overrepresented as offenders in rates of arrest, prosecution, conviction, imprisonment and re-imprisonment and as victims (arts. 2, 5 and 6).
25. In the li ght of these concern s , t he Committee recommends that the State party strengthen its efforts to address the root causes leading to disproportiona te incarceration rates of M a ori . It further recommends that the State party ensure that justice, social sector and care and protection initiatives for M a ori are connected , have transparent governance frameworks and are based on partnerships with and inclusion of M a ori . The Committee also recommends that the State p arty take robust measures to increase the representation of M a ori , Pa sifika and other minority groups as decision makers , including as prosecutors and judges, at all levels of the c riminal justice system.
Health
26.The Committee is concerned that Maori and Pasifika have poorer health outcomes than other groups, including with respect to life expectancy, mortality and disability. It notes with concern reports that despite the existence of the Maori health strategy, entitled He Korowai Oranga, and the Healthy Families NZ initiative, Maori needs are not adequately integrated in health policies or in the administration of health services, and that Maori encounter significant barriers in accessing basic health services on an equal footing with other New Zealanders. The Committee is concerned by reports that structural biases exist in the health care system, that Maori providers are marginalized and their input into policy decisions is discounted and that a negative differential compensation for Maori providers is maintained (arts. 2 and 5).
27. The Committee r ecommends that the State party robustly increase the provision and accessibility of primary health - care services to M a ori and Pasifika communities and ensure they are equally r epresented and empowered in decision-making processes concerning health and disability policy planning and in service delivery and evaluation .
28. The Committee urges the State party to significantly reduce overall hospitalizations for medical conditions with a social gradient and reduce disparities in both hospitalization and mortality rates, particularly among M a ori and Pasifika children.
Employment
29.The Committee is concerned by evidence of discrimination against Maori in employment. While welcoming the reduction in Maori unemployment in recent years and the State party’s commitment to work towards reducing it to 7.5 per cent by 2021, the Committee is also concerned by the State party’s information that Maori, Pasifika and Asian ethnicities are underrepresented in the top three tiers of public service management. The Committee is further concerned by reports that qualified Maori nurses receive significantly lower pay (arts. 2 and 5).
30. The Committee urges the State party to take effective measures to eliminate racial discrimination in public and private sector employment with respect to hiring, retention and promotions . It requests the State party to , in the next periodic report, describe those measures along with goals , targets and results achieved . The Committee urges the State party to s et targets to increase representation of M a ori , Pasifika and other minorities in corporate governance and senior management in the public sector , and to provide data on M a ori , Pasifika and other minorities currently employed in the public sector with regard to distribution at job and managerial levels. It also requests additional information on program me s undertaken to ensure effective implementation of the principle of equal opportunity and treatment in employment, without distinction as to race, colour, descent or national or ethnic origin.
Migrants
31.While noting with interest the New Zealand Migrant Settlement and Integration Strategy of 2014 and the strategy on preventing migrant exploitation, the Committee is concerned by reports that migrant workers risk being subjected to labour discrimination and exploitation, including through receipt of salaries below the minimum wage. The Committee is also concerned about the exploitation of international students. It is further concerned by reports of inadequate access to social services, including mental health programmes, housing and employment for migrants, asylum seekers and refugees. The Committee is concerned at reports that some asylum seekers and undocumented migrants are detained in correctional facilities for criminal offenders and at reports about the conditions in which some migrants are detained (arts. 2 and 5).
32. The Committee recommends that the State party :
(a) T ake appropriate and effective measures to ensure equal opportunity and equal treatme n t for migrant s in employment ;
(b) P rovide information on progress made on the 16 indicators of the New Zealand Migrant Settlement and Integration Strategy in its next periodic report;
(c) E nsure that all asylum seekers and refugees have access to adequate and appropriate services , including social work and counselling services, so as to fully enjoy their economic, social and cultural rights ;
(d) E nsure adequate funding to support the continuation of psychosocial services ;
(e) E nsure that migrants are not detained in inappropriate facilities and are never held with prisoners in correctional facilities , and consider further increasing its annual refugee quota.
Maori and Pasifika children
33.The Committee is alarmed by reports of the alleged abuse of children in foster care or State institutions that is alleged to have included physical, sexual and emotional abuse. The reports focus on a period of approximately 40 years, during which time up to 100,000 children were in care, the majority of whom were Maori children. The Committee notes the State party has expressed its intention to compensate victims. However, the Committee is concerned that such an approach by the State party will fail to expose the systemic problems that may have existed. The Committee is also concerned that Maori children are still more likely to be placed in government care. It notes that the recent amendments to the Oranga Tamariki Act 1989 (through the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017) provide certain safeguards for children in care but concerns remain about, among other things, a parliamentary proposal to send young offenders to a military-style boot camp for a year (arts. 2, 5 and 6).
34. The Committee recommends that the State party :
(a) I m mediately set up and empower an independent commission of inquiry into a buse of children and adults with disabilities in S tate care from 1950 to 1990 , with the authority to determine redress , rehabilitation and reparations for victims, including an apology from the State party ;
(b) T ake effective steps to reduce the number of M a ori and Pasif ika children in S tate care , including through the policy of “ whanau - first ” placement for M a ori children .
Maori language
35.The Committee notes from statistics in the State party’s report that the number of students receiving instruction in Maori language (Te Reo Maori) has steadily increased in recent years. However, it is concerned by other reports that low levels of conversational Te Reo Maori ability persist among Maori, in some instances because students are reportedly discouraged from using the language (art. 5).
36. The Committee recommends that the State party strengthen the inclusion of T e R eo M a ori instruction i n its core educational curriculum for all New Zealand students , and increase its efforts to mainstream the use of the M a ori language throughout the country.
Education
37.The Committee regrets the scarcity of information or socioeconomic indicators to demonstrate that improved access to all levels of the education system and improved qualifications from educational institutions have translated into upward social mobility for Maori and Pasifika.
38. The Committee encourages the State party to provide in its next periodic report information on measures taken to improve the educational outcomes of M a ori and Pasifika students.
D. Other recommendations
Ratification of other instruments
39. T he Committee encourages the State party to consider ratifying the International Convention on the Protection of the Rights of All Migrant Workers and Members of T heir Families , and the Indigenous and Tribal Peoples Convention , 1989 ( No. 169 ) and the Domestic Workers Convention, 2011 (No. 189) of the International Labour Organization .
International Decade for People of African Descent
40. In the light of General Assembly resolution 68/237, the Committee requests that the State party include in its next periodic report precise information on the concrete measures adopted in th e framework of the International Decade for People of African Descent , taking into account its general recommendation No. 34 (2011) on racial discrimination against people of African descent.
Consultations with civil society
41. The Committee recommends that the State party consult and broaden its dialogue with civil society organizations working in the area of human rights protection, in particular those working to combat racial discrimination, in the preparation of the next periodic report and in follow-up to the present concluding observations.
Declaration under article 14 of the Convention
42. The Committee encourages the State party to make the optional declaration provided for in article 14 of the Convention recognizing the Committee’s competence to receive and consider individual communications.
Common core document
43. The Committee encourages the State party to update its common core document (HRI/CORE/NZL/2010) , in accordance with the harmonized guidelines on reporting under the international human rights treaties, in particular those on the common core document, as adopted at the fifth inter-committee meeting of the human rights treaty bodies held in June 2006 (HRI/GEN/2/Rev.6, chap. I) . In the light of General Assembly resolution 68/268, the Committee urges the State party to observe the limit of 42,400 words for such documents.
Follow-up to the present concluding observations
44. In accordance with article 9 (1) of the Convention and rule 65 of its rules of procedure , the Committee requests the State party to provide, within one year of the adoption of the present concluding observations, information on its implementation of the recommendations contained in paragraphs 15, 17 and 34 above.
Dissemination of information
45. The Committee recommends that concluding observations of the Committee be made readily available and accessible to the public at the time of their submission and that the concluding observations of the Committee with respect to those reports be similarly publicized in the official language of the State party and other commonly used languages.
Preparation of the next periodic report
46. The Committee recommends that the State party submit its combined tw enty-third and twenty- fourth periodic reports, as a single document, by 22 December 202 1 , taking into account the reporting guidelines adopted by the Committee during its seventy-first session (CERD/C/2007/1) and addressing all the points raised in the present concluding observations. In the light of General Assembly resolution 68/268, the Committee urges the State party to observe the limit of 21,200 words for periodic reports.