1.
Introduction
1.1. I am a Pākehā woman living in Wellington/Te-Whanganui-a-Tara. I am
studying Law, Political Science and History. I have a very strong interest in
social and environmental justice.
1.2. This submission will focus on three aspects of Aotearoa’s
constitution which I believe require transformation. Firstly, Te Tiriti o
Waitangi must be the starting point for all constitutional change. Secondly, our
Bill of Rights Act must be strengthened in various ways. Thirdly, our
constitution must protect the rights of nature.
2.
Te Tiriti o Waitangi
2.1. Te Tiriti o Waitangi is the founding document of New Zealand and
must be recognised as such.
2.2. The text in Te Reo Māori is the text that was understood and signed
by Māori, and according to the contra preferentum rule in international law,
when there is a conflict between versions of a treaty, the indigenous language
version must prevail.
2.3. Therefore, we must recognise that Te Tiriti allowed Pākehā the right
of kawanatanga or governorship, and Māori to retain rangatiratanga or
sovereignty. To see Te Tiriti as a document of cession (either legally or
morally) is erroneous.
2.4. As Pākehā, I acknowledge that Te Tiriti allowed, and continues to
allow, my people to settle here. It must be the basis for all current and future
settlement of Tauiwi in New Zealand, and the foundation of our relationship
with Tangata Whenua.
2.5. New Zealand’s Constitution must take Te Tiriti as its starting
point, rather than Te Tiriti being fitted within some other framework.
3.
The Bill of Rights Act (BORA)
3.1. Economic, social and cultural rights must be included in BORA. We
are bound at international law to protect these rights.
3.2. Civil and political rights are also important, but are unable to be
realised when people are denied rights such as food, shelter and a living wage.
3.3. Parliament’s current scrutiny of rights violation is inadequate. Section
7 reports are frequently ignored, and under urgency, the process is bypassed
completely.
3.4. We need a more robust system. Options include mandatory s 7 reports
for every bill, or a dedicated Select Committee for human rights issues.
3.5. The BORA should be supreme law, in order to give the judiciary some
power to protect minorities against Parliament’s majority rule.
3.6. The BORA should be entrenched, in order to protect against the
erosion of rights. This could be as part of a written constitution, or incorporated
into the current BORA.
4.
The Rights of Nature
4.1. Everything that our society and economy depends on stems from our
relationship with the environment. The rate of environmental degradation in New
Zealand and internationally is alarming, especially as we begin to feel the
effects of Climate Change.
4.2. Intergenerational justice depends on us taking action now to stop
this spiral of destruction.
4.3. New Zealand is one of only 16 countries in the world that does not
in some way recognise environmental rights in its law.
4.4. One way we could do this would be to enshrine the (human) right to a
healthy environment in our BORA. This has been done, for example, in South
Africa.
4.5. Another, more preferable option is to give rights to nature itself.
This has been done in both Bolivia and Ecuador, in different ways.
4.6. New Zealand should look at these different models and assess what
would work in our legal framework in order to offer the environment the best
possible protection.
4.7. This should be done in a way which is consistent with a constitution
grounded in Te Tiriti, giving appropriate decision making power to Tangata
Whenua.
4.8. A New Zealand model should give power to the judiciary to enforce
the rights of nature against breaches by both the Government and private
bodies.
Helpful links!
The Greens' submission guide, as already mentioned, is a fantastic starting point.
Forest and Bird have an excellent analysis of environmental rights.
Peace Movement Aotearoa have some great ideas for Te Tiriti based constitutional change.
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