The Application of the "Best Interests" Principle to Maori Children's Collective Cultural Rights: A Conceptual Shift for the New Zealand Family Court?
Macbeth, S. A. (2015). The Application of the ‘Best Interests’ Principle to Maori Children’s Collective Cultural Rights: A Conceptual Shift for the New Zealand Family Court? (Thesis, Master of Laws (LLM)). University of Waikato, Hamilton, New Zealand. Retrieved from http://hdl.handle.net/10289/11479
Permanent Research Commons link: https://hdl.handle.net/10289/11479
Indigenous Peoples assert their collective rights in a world where Western liberal theory and individual rights dominate. International human rights law, however, increasingly recognises Indigenous Peoples collective rights in addition to their members’ individual rights. In 2007 the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples, which represents the most comprehensive acknowledgement of Indigenous Peoples collective rights within international law. In 2009 the Committee on the Rights of the Child issued under the United Nations Convention on the Rights of the Child General Comment No. 11 “Indigenous children and their rights under the Convention”. The Comment references the United Nations Declaration on the Rights of Indigenous Peoples as providing important guidance on the rights of indigenous children. The Comment provides authoritative guidance to State Parties that the application of the “best interests” principle to indigenous children under the Convention requires the assessment of indigenous children’s collective cultural rights and their need to exercise such rights collectively with members of their group, in addition to the indigenous children’s individual rights. Only then can the best interests of indigenous children be determined. As a State Party, New Zealand is obliged to implement the United Nations Convention on the Rights of the Child through legislation, judicial determinations and administrative processes. The best interests principle is already the paramount consideration and touchstone for judicial decision-making under the Children, Young Persons, and Their Families Act 1989 and Care of Children Act 2004. The Family Court of New Zealand (while making some inroads in the 1980s and 90s) has yet, however, to develop a coherent and robust approach to the assessment of Maori children’s collective cultural rights when applying the best interests principle as it is obliged to do. General Comment No. 11 and the United Nations Declaration on the Rights of Indigenous Peoples assist by providing authoritative guidance. They augment New Zealand’s family legislation, common law and social policy, which already acknowledge cultural rights and the collective nature of Maori familial relationships. This paper looks beyond children’s individual rights and the universal application of such rights. It considers the assessment of Maori children’s collective cultural rights in addition to their individual rights under the best interests principle. Further, it analyses the relevant international and domestic authority the Family Court of New Zealand must consider when applying the best interests principle to Maori children, and the practical realities the recognition of Maori children’s collective cultural rights present. A conceptual shift by the Family Court and counsel is required. This paper urges the Family Court to develop the application of the best interests principle under the Care of Children Act 2004 and the Children Young Persons and Their Families Act 1989 to include the assessment of Maori children’s collective cultural rights in addition to their individual rights. In so doing the common law will reflect New Zealand’s unique history and circumstances, and comply with the United Nations Convention on the Rights of the Child. If it fails to do so, the Family Court risks being the subject of criticism for breaching the Convention, being out of sync with international human rights law, domestic legislation and social policy, and increasingly losing relevancy.
University of Waikato
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