Equality, indigenous peoples, and positive measures: are positive measures for Māori justified?

Abstract

Positive measures have been provided for in numerous international and domestic legal instruments, debated in a number of cases and been the subject of a great deal of academic opinion and wider public debate. Yet the question of whether they are justifiable remains unsettled. Importantly, this issue has rarely been considered from the vantage point of indigenous peoples. Where it has, only brief attention has been paid to the indigeneity of the peoples in question. As a result, the effect that indigenous peoples' unique history and status may have on reconciling the opposing sides of the debate over the justifiability of positive measures has, for the most part, gone unexamined. This thesis seeks to rectify that gap in the analysis by examining the debate over the justifiability of positive measures for indigenous peoples with the unique history and status of indigenous peoples specifically in mind. Its focus is upon Māori and the New Zealand situation, although it is intended that the analysis will be generally applicable to indigenous peoples. The author's thesis is that positive measures for indigenous peoples, such as Māori, are justifiable. Although the law frames positive measures as necessary to compensate for past disadvantage, address current need or contribute to the diversity of important social institutions, none of these justifications are satisfactory or appropriate when applied to indigenous peoples. It is argued that instead positive measures should be framed as a human rights tool necessary to ensure respect for the equal dignity of indigenous peoples. Not only does such an argument avoid the major problems with the key justifications, but it is also consistent with indigenous peoples' aspirations.