CCPR/C/70/D/547/1993
Page 15
margin of appreciation, but by reference to the obligations it has undertaken in article 27.
Article 27 requires that a member of a minority shall not be denied his right to enjoy his
own culture. Thus, measures whose impact amount to a denial of the right will not be
compatible with the obligations under article 27. However, measures that have a certain
limited impact on the way of life of persons belonging to a minority will not necessarily
amount to a denial of the right under article 27.” 15
9.5 The Committee recalls its general comment on article 27, according to which, especially in
the case of indigenous peoples, the enjoyment of the right to one’s own culture may require
positive legal measures of protection by a State party and measures to ensure the effective
participation of members of minority communities in decisions which affect them. 16 In its case
law under the Optional Protocol, the Committee has emphasised that the acceptability of
measures that affect or interfere with the culturally significant economic activities of a minority
depends on whether the members of the minority in question have had the opportunity to
participate in the decision-making process in relation to these measures and whether they will
continue to benefit from their traditional economy. 17 The Committee acknowledges that the
Treaty of Waitangi (Fisheries Settlement) Act 1992 and its mechanisms limit the rights of the
authors to enjoy their own culture.
9.6 The Committee notes that the State party undertook a complicated process of consultation in
order to secure broad Maori support to a nation-wide settlement and regulation of fishing
activities. Maori communities and national Maori organizations were consulted and their
proposals did affect the design of the arrangement. The Settlement was enacted only following
the Maori representatives’ report that substantial Maori support for the Settlement existed. For
many Maori, the Act was an acceptable settlement of their claims. The Committee has noted the
authors’ claims that they and the majority of members of their tribes did not agree with the
Settlement and that they claim that their rights as members of the Maori minority have been
overridden. In such circumstances, where the right of individuals to enjoy their own culture is in
conflict with the exercise of parallel rights by other members of the minority group, or of the
minority as a whole, the Committee may consider whether the limitation in issue is in the
interests of all members of the minority and whether there is reasonable and objective
justification for its application to the individuals who claim to be adversely affected. 18
9.7 As to the effects of the agreement, the Committee notes that before the negotiations which
led to the Settlement the Courts had ruled earlier that the Quota Management System was in
possible infringement of Maori rights because in practice Maori had no part in it and were thus
deprived of their fisheries. With the Settlement, Maori were given access to a great percentage of
quota, and thus effective possession of fisheries was returned to them. In regard to commercial
fisheries, the effect of the Settlement was that Maori authority and traditional methods of control
as recognised in the Treaty were replaced by a new control structure, in an entity in which Maori
15
Committee’s Views on case No. 511/1992, Lansmann et al. v. Finland, CCPR/C/52/D/511/1992, para. 9.4
16
General Comment No. 23, adopted during the Committee’s 50th session in 1994, paragraph 3.2.
17
Committee's Views on case 511/1992, I. Länsman et al. v. Finland, paras. 9.6 and 9.8
(CCPR/C/52/D/511/1992).
18
See the Committee’s Views in case No. 197/1985, Kitok v. Sweden, adopted on 27 July 1988,
CCPR/C/33/D/197/1985.