Yeah, Rights

Human “rights” are often riddled with ambiguity – which is why they can be such a worry.

Listener: 29 May, 2010.

Keywords: History of Ideas, Methodology & Philosophy; Maori;

How is it possible to say New Zealand’s signing of the UN Declaration of the Rights of Indigenous Peoples is of no great consequence (the Prime Minister’s interpretation) yet represents a major step forward for Maori (the Minister of Maori Affairs’ view)? Because the whole idea is riddled with ambiguities.

Consider Article 16, which says, “Indigenous peoples have the right to establish their own media in their own languages.” Some would argue this means there should be no specific legal prohibition on indigenous peoples setting up their own radio and television stations, other than the general law and commercial considerations. Others would say it means the state has an obligation to help set them up.

(Maori broadcasting is established and publicly funded as a consequence of a provision in Te Tiriti o Waitangi, in which the Crown guarantees to protect taonga, which includes the Maori language, so the UN declaration is not particularly relevant.)

But the interpretations of Article 16 are two quite distinct takes on “rights”, sometimes summarised as “negative rights” and “positive rights”. A negative right is when others (including the state) are not allowed to prevent you doing something – like setting up your own media outlet. A positive right is when others have an obligation to help you do something, such as set up (and fund) a media outlet.

The classic case of negative rights are those embodied in our Human Rights Act – which many think only codified in statute rights that already existed. An example of positive rights might be the onus on the state to give children an adequate education (which you may think is a right even if it is not in legislation). Authoritarian states aside, there is a widespread acceptance of negative rights (although there is some debate about how far they should go). The existence and appropriateness of positive rights are more contested.

We often confuse the two. The notion of human rights is so powerful that people use “rights talk” to make claims that are a long way from the fundamentals. I can claim that I have a “right” to park in my street, but all I am saying is I am aggrieved that my council charges parking fees. It is clumsier and less rhetorical to refer to “entitlements”. That entitlements to social security and accident compensation may be being cut back is surely not as heinous as withdrawing habeas corpus, but it is still serious enough to argue over.

The UN declaration does not say what sort of rights it is referring to, which is why John Key and Pita Sharples could disagree (and yet obscure their differences). It may well be that there are no significant effects in the immediate future, but over time the positive-right interpretation may become increasingly important.

Any evolution will cause considerable anxiety among lawyers and political philos%ophers. A very limited judicial decision could trigger a public debate – as happened over the Supreme Court’s decision on potential hapu entitlements to the foreshore and seabed.

The declaration’s Articles 3 and 4 may be the crunch: “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development . Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.”

“Self-determination” is another ambiguous notion. Apparently, some Maori think it means the right to a separate governance structure – a state within a state. The secrecy that surrounded New Zealand’s accession to the declaration means we don’t know what the Government’s position is – or even whether it has one.

Although we think our rights are eternal but need reinterpretation for changing circumstances, there is an ongoing struggle to extend (and limit) their scope, not just for Maori. The main aim of the misleadingly entitled Regulatory Responsibility Bill is to give a statutory basis to certain property rights. If enacted, it could be as perplexing and revolutionary as the Declaration of Indigenous Rights.