May 2020 Māori Law Review

Mōtika Tangata mē Te Tiriti o Waitangi – mate korona mē te noho rāhui i Aotearoa taumata 4

Mōtika Tangata mē Te Tiriti o Waitangi: Mate Korona mē te Noho Rāhui i Aotearoa Taumata 4 | Human Rights and Te Tiriti o Waitangi: COVID-19 and Alert Level 4 in Aotearoa New Zealand

Te Kāhui Tika Tangata | Human Rights Commission

April 2020

The Human Rights Commission (Commission) has released a report on Te Tiriti o Waitangi (Te Tiriti) implications resulting from the government's response to the Covid-19 pandemic (Report).

Download Mōtika Tangata mē Te Tiriti o Waitangi: Mate Korona mē te Noho Rāhui i Aotearoa Taumata 4 (341 KB, PDF)

Introduction

The Commission has examined the Government's response to the Covid-19 pandemic and issued a short report on issues raised by Aotearoa moving to alert level 4 in its pandemic response.

The Commission commended the Government for its actions but identified some serious shortcomings in the pandemic response in New Zealand when measured against human right and Te Tiriti o Waitangi.

The Report discusses concerns relating to Te Tiriti rights. It identifies 10 human rights 'snapshots' showing areas of concern during alert level 4.

Discussion

The Commission has made a number of recommendations, which it suggests are used to address the issues identified by this report during alert level 3. These include government making decisions in partnership with iwi and Māori, addressing Māori equity issues, and ensuring access to data and information to enable effective participation of Māori in decision-making.

The Report also notes that "fast-tracked development projects must uphold indigenous rights to lands and resources, in line with Te Tiriti and the human rights obligation of free, prior and informed consent." This is particularly important given the government's intention to enact legislation removing public and council input into major works under the RMA.

Areas of concern - 10 human rights snapshots

In particular, the Report notes the following:

  1. Issues surrounding access and use of personal protective equipment (PPE). The Commission has noted that iwi response teams, Māori providers and Māori community organisations struggled to access PPE during level 4. Te Tiriti requires Māori leadership and partnership in relation to all health issues. Explicit consideration of Te Tiriti and human rights would address these issues in level 3;
  2. Access to justice issues due to the closure of the Human Rights Review Tribunal;
  3. Concerns about data gained during contact tracing (and the potential for it to be used for general intelligence gathering and surveillance). The Commission considers contact tracking must be voluntary and that "information should only be provided to public health workers, be of a minimal nature and be accessible only while COVID-19 remains a threat." The Commission considers "decisions on contact tracing, surveillance and data use must be made in partnership with iwi and Māori, uphold rangatiratanga and address Māori equity issues. Iwi and Māori should have access to data and information to enable their effective participation in decision-making, inform their self-determined responses, and monitor equity of outcomes."
  4. The impact lockdown has had on independent monitoring of places of detention, which is required to prevent ill treatment of those detained. The report notes the limitations of virtual inspections of detention facilities and identifies the importance of ensuring detaining agencies understand the unrestricted visits of the agencies required to carry out these inspections and their access is incorporated into detention centre emergency plans. The Commission considers a Te Tiriti based approach in this area is crucial given the disproportionate rates of detention of Māori, acknowledged structural discrimination and documented systemic failures identified in Tūruki! Tūruki! The second report of the Safe and Effective Justice Advisory Group.
  5. The increase in racism and hate speech during the lockdown (particularly aimed at Chinese and Asian communities). The Commission commended the government’s COVID-19 response funding for Māori and ethnic groups, to prevent disproportionate harm caused by existing inequities. However, there must also be an express commitment to address racism as part of the response and the government must take active steps to discourage racist behaviour by explicit public messaging and awareness raising. It considered the development of a National Action Plan Against Racism will be more important after the pandemic as it will build in a human rights lens to emergency preparation, planning and responses. The Commission has noted that any attempt to address racism must include honest discussions about all forms of anti-Māori racism.
  6. The inaccessibility of Covid-19 information for those with disabilities and the lack of disaggregated data on the impact of Covid on disabled people. The Commission considered decision makers must involve disabled people early on in the drafting of resources and ensure better data collection so that it understands how disabled people are impacted by Covid. It notes that Te Tiriti requires quality data collection and an assessment of impacts on Māori to ensure the equitable provision of services to Māori at all levels, which must be carried out in partnership with iwi and Māori.
  7. Increased family violence. The Commission commended the government's additional funding for those at risk of violence, however it considered it would need to increase in alert level 3. It noted that any family violence initiatives must reflect the Te Tiriti partnership, support Māori-led approaches and promote equitable outcomes.
  8. The impact on elderly and in particular their inability to take care of their own affairs and well-being sufficiently during alert level 4.
  9. The impact on women, namely increased poverty, hardship and stress for single parent families, an increase in child poverty and an increased burden of unpaid care work for women. The Commission noted that systemic failures to uphold Te Tiriti exacerbates the impacts for wāhine Māori. It considered the application of "Te Tiriti and human rights to economic and social policies will reinforce existing initiatives that strive to revalue low paid “essential” occupations, eliminate pay inequity by gender and ethnicity, alleviate poverty for single parent families, value unpaid work and enable flexible work."
  10. Significant increase in poverty and hardship due to loss of employment or reduced hours. The Commission noted that there is a real risk of ongoing unemployment for Māori, particularly as many Māori are employed in sectors that have been significantly affected by Covid. Therefore, the Commission considers it crucial that responses are grounded in Te Tiriti.

Overall, the Report urges "the government to renew and reinvigorate its commitment to Te Tiriti and to work in partnership with Māori and jointly devise and implement strategies in Level 3 and the recovery phase". Honouring Te Tiriti and human rights is integral to effectively responding to the pandemic, as well as ensuring the trust and confidence within Crown-Māori relationships is not eroded. It pointed to the iwi and hapū-led checkpoints as a positive example of the Te Tiriti partnership working in practice.

The Commission has noted that a striking aspect of the government's response was "almost total silence" regarding human rights. The Commission noted that while human rights do not provide "magic solutions" they have an important contribution to make by assisting in creating effective, equitable, balanced and sustainable responses to Covid-19.  This is particularly important during times of emergency because the government is granted wide reaching discretionary powers and robust accountability becomes crucial.

Conclusion

The Commission's observations demonstrate that Te Tiriti was not at the heart of the decision-making and reflect that government has some work to do achieve a true Te Tiriti based partnership.

For instance, the Cabinet Paper addressing powers and authorisations to give effect to Alert Level 3 did not mention Te Tiriti and only discussed human rights in general terms. While it would be easy to defend the government's failure to address this topic during this a time of emergency as an oversight, the reality is that it demonstrates that considerable work is needed to ensure that all decision making is anchored in Te Tiriti.

While the absence of adequate consideration of Te Tiriti is not good enough, the Commission has noted that "economic recovery efforts provide opportunities to embed Te Tiriti and human rights into government responses and to work in partnership with iwi and Māori." Responses in alert level 3 and beyond provide opportunities for the Crown to properly consider Te Tiriti and begin embedding Te Tiriti in a substantive and more meaningful way.