Home | Databases | WorldLII | Search | Feedback New Zealand Bill of Rights Act Reports

Ngati Porou Claims Settlement Bill (Consistent) (Section 19, 27) [2011] NZBORARp 2 (3 February 2011)

Last Updated: 28 April 2019

Ngati Porou Claims Settlement Bill

3 February 2011 Attorney-General

Ngati Porou Claims Settlement Bill (PCO14132/2.11) – consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/141

1. I have considered the above Bill (version 3.11) for consistency with the New Zealand Bill of

Rights Act 1990 (“NZBORA”). I advise that the Bill appears to be consistent with the Act.

2. The Bill would effect a final settlement of the Ngati Porou historical claims (defined in cl 12). It excludes courts, judicial bodies and tribunals from considering the settlement and the historical claims (cl 13). The Waitangi Tribunal’s jurisdiction is specifically excluded (cl 14). Such bodies retain jurisdiction over the interpretation or implementation of the deed or the Act.
3. The Bill would transfer various items of commercial and cultural redress in settlement of historical claims.
   

Section 27(2) issue

4. Clause 13 provides that the historical claims are finally settled. It also removes the jurisdiction of the courts and Waitangi Tribunal over the historical claims and the settlement. This raises an issue about compliance with s 27(2) of the New Zealand Bill of Rights Act 1990.
5. That subsection provides:
   

“Every person whose rights, obligations or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.”

6. Legislative determination of a claim would not conventionally fall within the scope of judicial review. [1] The clause would preclude judicial review of a previous determination of rights (for example, the East Coast Settlement Report of the Waitangi Tribunal). This limits the right under s 27(2), but the limitation is justifiable under section 5. The United Nations Human Rights Committee considered that the exclusion of judicial review under the Fisheries Settlement, in the context of a negotiated settlement, was consistent with the right of access to the courts under art 14(1) of the International Covenant on Civil and Political Rights, which is comparable to s 27. [2]
   

Whether s 27(3) at issue

7. Clause 40(3) excludes damages as a remedy for any failure of the Crown to comply with a protocol under Part 2 of the Bill. This may be seen to raise the issue of compliance with s 27(3) of the New Zealand Bill of Rights Act, namely the right to bring civil proceedings against the Crown and have those heard according to law in the same way as civil proceedings between individuals.

8. This clause affects the substantive law and does not fall within the ambit of s 27(3), which protects procedural rights. [3] Accordingly, no inconsistency with s 27(3) of the Act arises.
   

Whether s 19 at issue

9. Although the Bill confers assets and rights on Ngati Porou that are not conferred on other people it does not, in my view, create a prima facie limit on the right to freedom from discrimination, affirmed by section 19. Discrimination only arises if there is a difference in treatment, on the basis of one of the prohibited grounds of discrimination, between those in comparable circumstances. In the context of the present settlement, which addresses specified historical claims brought only by Ngati Porou, no other persons or groups who are not party to these claims are in comparable circumstances to the recipients of the entitlements under the Bill. Accordingly, excluding others from the entitlements conferred under the Bill is not differential treatment for the purposes of section 19.
10. Clause 95 concerns access to wahi tapu on Crown forest land transferred under the settlement. A right of access is reserved to “to Maori for whom the protected site is of special spiritual, cultural, or historical significance”. I am advised that the clause is addresses the possibility that such land may contain wahi tapu significant to Maori other than Ngati Porou. Because forests transferred in Treaty settlements may be large and, in places, inaccessible, it may be difficult to identify and otherwise provide for all wahi tapu. It is conceivable that this clause raises a section 19 issue in relation to a wahi tapu site that also has, say, historical significance to people who are not Maori.
11. Although the conferral of the access right may not be an identified element of compensation in any Treaty settlements with other groups, it seems reasonable to consider it as an aspect of inchoate “cultural redress” in situations where the negotiation of commercial and cultural redress has to occur in a multi-iwi setting. I therefore conclude that the reasoning in paragraph 9 appropriately applies to this clause and that the s 19 right is not infringed. To the extent that it might be engaged, any infringement is justified by the objective of ensuring that other claimant groups are not inadvertently prejudiced by settlement.
12. This advice has been reviewed, in accordance with Crown Law protocol, by Victoria Casey, Crown Counsel.
    

Yours sincerely

Fergus Sinclair Crown Counsel

Footnotes:

1. Westco Lagan Ltd v Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40.
2. Apirana Mahuika v New Zealand, Communication No. 547/1993, U.N.Doc.CCPR/C/70/D/547/1993 (2000).
3. Westco Lagan Ltd v Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40, 55: “[s]ection 27(3) ... cannot restrict

the power of the legislature to determine what substantive rights the Crown is to have. Section 27(3) merely directs that the Crown shall have no procedural advantage in any proceedings to enforce rights if such rights exist.”.

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Ngati Porou Claims Settlement Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney- General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.