New Zealand’s Bill of Rights Act, intended to protect us from discrimination on the grounds of race, has been left in tatters by the very lawyers tasked by Parliament with oversight of those rules. Intellectually dishonest or indoctrinated? Whichever the answer, Crown Law’s Constitutional and Human Rights Team should be sacked and replaced with lawyers capable of taking a principled stand.

One might expect highly paid human rights lawyers to understand our Bill of Rights Act which is really very simple:

Section 19(1) outlaws unjustified discrimination under prohibited grounds[i], including discrimination on the grounds of colour, race and ethnic origins[ii]. While s19(1) is intended to prohibit permanent discrimination, affirmative action programmes  i.e “temporary measures taken in good faith to advance persons from disadvantaged minorities” are permitted under section 19(2).

Let us state the obvious: as membership of tribal trusts (iwi) is determined by birth alone, any laws granting special rights to these trusts must on face value breach Section 19(1). While most of us will not quibble with affirmative action measures (eg educational scholarships to various ethnic groups allowed under 19(2) ), laws granting distinct, superior legal rights to members of tribal trusts such as co- governance over natural resources, title to the foreshore and seabed, and special rights  to be consulted under the Resource Management Act are clearly discriminatory. In any other developed country laws promoting racial discrimination would be a source of extreme embarrassment and actively opposed by civil rights lawyers. In stark contrast, Crown Law's Human Rights Team appear to busy themselves trying to justify discrimination. Witness their opinion[iii] on the Hawke’s Bay Regional Planning Committee Bill[iv] presented to Parliament by Chris Finlayson (in his capacity as Attorney General):

 “I have examined this Bill for consistency with the New Zealand Bill of Rights Act 1990... I advise that the Bill is consistent with the Bill of Rights Act.

"The Bill does not limit the freedom from discrimination affirmed by S 19 of the Bill of Rights Act through conferring rights on the iwi and hapu involved that are not conferred on other people. Discrimination arises if there is a difference in treatment on the basis of one of the prohibited grounds of discrimination between those in comparable circumstances. In the context of settlements to address specified historical claims no other person could be said to be in comparable circumstances to the iwi and hapu concerned"

 Paraphrasing the above:

(a) the Bill is discriminatory as it confers rights on iwi and hapu that are not conferred on other people, however:

(b) granting iwi and hapu separate and distinct rights is not discrimination when addressing historical claims; and

(c) the ability of section 19 to prevent discrimination on the grounds of race, is nevertheless, undiminished

Point (b) is confusing until you understand that the reasoning is deeply flawed. In the New Zealand context, no other persons could be in comparable circumstances to the ancestors of the wronged iwi and hapu. That doesn’t mean we can confer rights on iwi and hapu that are not conferred on other people in perpetuity, in effect creating a race based aristocracy, without breaching the right to freedom from discrimination. Monetary compensation is not discriminatory. But no magic wording can make a blatant breach of human rights non-discriminatory, or moral.

Point (c) is purely dishonest: granting distinct and superior rights to iwi and hapu to redress historical wrongs doesn’t merely create a loop-hole in section 19 – it leaves the door wide open for separate legal rights in favour of any group claiming to have been disadvantaged.