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SPOT ON NEW-ZEALAND: Barriers to the Use of Māori Language in Legal Proceedings PDF Imprimer Envoyer
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Photo_Marae_pres_de_la_ville_de_GisborneMe Alberto Costi (Wellington, New-Zealand)

Over the years, there has been increasing recognition of the right of minority groups to use their languages. The United Nations has referred to minority language rights in many instruments, including the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 2007 Declaration on the Rights of Indigenous Peoples (UNDRIP).

New Zealand, though, has been slow to follow suit. The ICCPR, ratified in 1978, was only incorporated into domestic legislation by the Bill of Rights Act (BORA) in 1990. In domestic law, there is no statutory right to use written Māori in legal proceedings. The right is limited to spoken Māori, despite the importance of Māori in New Zealand’s political and legal environment.

This short article looks at New Zealand’s legal developments concerning the right to use the Māori language before domestic courts, and then briefly considers whether international law adequately protects the right to use minority languages in legal proceedings.

The Māori Language Act (MLA), enacted in 1987, for the first time declares Māori to be an official language of New Zealand. Its preamble recognises that Māori is a taonga (treasure) guaranteed under the Treaty of Waitangi (an agreement, in Māori and English, made between the British Crown and about 540 Māori rangatira (chiefs), and New Zealand’s founding document, taking its name from the place in the North Island where it was first signed, on 6 February 1840).

Section 4 of the Treaty provides the right to use spoken – not written – Māori during legal proceedings. However, the right to speak Māori does not extend to the right to be answered or addressed in Māori. Part 1.12 of the Judicature (High Court Rules) Amendment Act 2008 limits the ability to use written Māori in court to those who can satisfy the Registrar that they are unable to “read the document but could read it if it were translated into the Maori language.”

Section 20 BORA incorporates article 27 of the ICCPR by stating that a person belonging to “an ethnic, religious, or linguistic minority in New Zealand shall not be denied the right, in community with other members of that minority, ... to use the language ... of that minority.” There is no case that specifically discusses the scope of the language right in section 20.

New Zealand case law suggests, however, that BORA rights are to be construed generously and it could be argued that the scope of section 20 extends to using written Māori in court. Unfortunately, the words of section 20 do not support this interpretation. Under section 20, the language right is part of a wider right to enjoy one’s culture “in community with other members of that minority”. The words thus imply that the scope of the right to “use” Māori does not extend beyond the Māori community itself.

Besides, BORA rights are not absolute. Section 5 states that any right is “subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The distinction between written and spoken Māori is arguably prescribed by law by virtue of section 4 MLA. The Crown could also argue that the cost of translating Māori court documents is disproportionately high considering the limited number of Māori speakers.

In the Broadcasting Assets cases (New Zealand Māori Council v Attorney-General HC Wellington CP942/88, 3 May 1991; New Zealand Māori Council v Attorney- General [1992] 2 NZLR 576 (CA); New Zealand Māori Council v Attorney- General [1994] 1 NZLR 513 (PC)), the Crown conceded “an obligation to recognise and protect the Maori language and culture which derives from the Treaty obligation to protect Taonga” and accepted it must act with “utmost good faith, fairly, and reasonably”.

Nevertheless, on appeal to the Privy Council, their Lordships agreed that there was a Crown obligation, but restricted the nature of the obligation to action that may be reasonable “in the prevailing circumstances”. The reasoning thus allows the Crown to argue that, considering the relatively few speakers of Māori and the potentially high administrative cost to translate Māori documents, the obligation does not extend to recognising a right to use written Māori in the courtroom.

Turning to now to the ICCPR, article 27 protects the use of minority languages with two qualifications. First, the wording “shall not be denied the right...” suggests that the right is a negative one that imposes no positive obligation on the state to actively protect a declining language.

Although the Human Rights Committee (HRC) states in its General Comment No 23 – The Rights of minorities that “positive measures by states might be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language” (paragraph 6.2), it sheds no light on what kind of measures might be required.

Furthermore, there is no way of measuring whether positive actions are sufficiently meeting obligations under article 27. Second, the protection is part of a right to culture and “in community with other members of their group”. This is a common phenomenon of comparable international instruments. For instance, art 13(1) UNDRIP provides indigenous peoples the right “to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions”.

The HRC has clarified the focus of article 27 ICCPR in a number of individual complaints. In Diergaardt v Namibia (CCPR/C/69/D/760/1997, 6 September 2000), the majority was of the view that article 27 protected the use of minority language within the community; not during legal proceedings.

In conclusion, despite the recent momentum on indigenous rights at international law, the focus on indigenous self-determination has overshadowed an equally important discussion on how to protect rights of minorities when they interact with state institutions.

In New Zealand, the right to use Māori in legal proceedings is heavily qualified. BORA provides inadequate protection for the right to use Māori language; its terminology suggests only a negative right. The right to use Māori language in civil proceedings for example could easily be justifiably limited under section 5. Moreover, the status of Māori as a Treaty right also contains significant legal restrictions that impose a limited obligation on the Crown. The distinction between a written and spoken right to use Māori devalues the important role Māori language has in New Zealand society.

 

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