Maori and the Bill of Rights Act: A Case of Missed Opportunities?

Abstract

There is a striking lacuna in the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). The Bill of Rights Act purports to be a human rights instrument for all New Zealanders. But it does not refer to Mdori - the Indigenous peoples of New Zealand - or to the Treaty of Waitangi. Few scholars have considered the impact of this exclusion or of the Bill of Rights Act more generally on Mdori, especially in recent years. The twenty-first anniversary of New Zealand's enactment of the Bill of Rights Act is a good opportunity to reflect on the extent to which the Bill of Rights Act protects the human rights and fundamentalfreedoms of Mlori despite these omissions. In this paper I offer my reflections on this issue I make a distinction between the Bill of Rights Act's protection of human rights generally, the benefits of which Mdori enjoy alongside all other New Zealanders, and the Bill of Rights Act's protection of the rights of Maori as Indigenous peoples. I identify selfdetermination as the cornerstone of Milori rights as Indigenous peoples. I argue that the Bill of Rights Act offers the potential for a degree of protection of aspects of the categories of norms that elaborate the right to self-determination. I then assess the extent to which the Bill of Rights Act 's potential for protecting Mdori rights as Indigenous peoples has been realised in practice. I argue that, thus far, the Bill of Rights Act has not demonstrated itself as an effective tool for protecting the rights of Mdori as Indigenous peoples. In the final part of the paper I consider why this is so. I argue that a combination of factors is at play focusing, in particular, on the Bill of Rights Act's silence regarding Miori