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Nga Punawai o Te Tokotoru Claims Settlement Bill (Consistent) (Sections 19, 20, 27) [2013] NZBORARp 24 (19 June 2013)
Last Updated: 7 April 2019
Nga Punawai o Te Tokotoru Claims Settlement Bill (Ngati
Rangiteaorere)
19 June 2013
Attorney-General
Legal advice
Consistency with the New Zealand
Bill of Rights Act 1990: Nga Punawai o Te Tokotoru Claims Settlement Bill (Ngati
Rangiteaorere)
- The
draftsman advises that these three Bills are to be combined into an omnibus Nga
Punawai o Te Tokotoru Claims Settlement Bill.
The consolidated Bill will not be
available until closer to the date that it is put before the Cabinet Legislation
Committee, but
he assures us that the consolidation will not involve any
substantive changes. I have examined the three component Bills for consistency
with the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). I advise
that each is consistent with the Bill of Rights Act.
- The
Bill will effect final settlements of the Ngati Rangiteaorere, Tapuika and Ngati
Rangiwewehi historical claims as defined in the
Bill.1 It provides for
acknowledgments and apologies to Ngati Rangiteaorere, Tapuika and Ngati
Rangiwewehi in respect of historical
breaches of the Treaty of Waitangi along
with cultural and commercial redress.
Discrimination
- The
Bill does not limit the right to freedom from discrimination affirmed by s 19 of
the Bill of Rights Act by conferring assets or
rights on Ngati Rangiteaorere,
Tapuika and Ngati Rangiwewehi that are not conferred on other people.
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 a settlement that addresses specified
historical claims brought by these iwi, no other person could be said to
be in
comparable circumstances to those who are to receive entitlements under the
Bill.
- In
respect of both Tapuika (clause 287A) and Ngati Rangiwewehi (clause 162A) the
Bill reserves a special right of access to protected
sites on Crown forest land
transferred to iwi as part of the settlement. This right of access applies to
Māori for whom the
protected site is of special cultural, historical, or
spiritual significance. It is conceivable that this clause raises a section
19
issue if the protected sites also have significance to non-Māori. However,
the reasoning in paragraph 3 above also applies
to these provisions and on that
basis section 19 is not infringed. To the extent that section 19 might be
engaged, any infringement
is justified by the objective of ensuring that related
claimant groups are not prejudiced by the settlement in situations where the
negotiation of cultural and commercial redress has to occur in a multi-iwi
setting.
Natural Justice
- The
Bill provides that the settlements of the historical claims of Ngati
Rangiteaorere, Tapuika and Ngati Rangiwewehi are final and
it excludes the
jurisdiction of the Courts, the Waitangi Tribunal and other judicial bodies from
further consideration of the settlements
and the historical claims, other than
in respect of the interpretation and implementation of the Deeds of Settlement
or the Act.
- Legislative
determination of historical claims would not conventionally fall within the
scope of judicial review.2 Even if any of
the excluded matters were susceptible
to juridical review, the clauses excluding jurisdiction are a justified limit on
the right
affirmed by s 27(2) of the Bill of Rights Act. Excluding subsequent
legal challenges is a legitimate incident of the negotiated settlement
of
claims.
- Any
limit on minority rights under s 20 of the Bill of Rights Act would be justified
on the same basis.
- The
United Nations Human Rights Committee upheld a similar exclusion under the 1992
Fisheries Settlement. The Human Rights Committee
found that the exclusion was
consistent with articles 14 and 27 of the International Covenant on Civil and
Political Rights, which
are comparable provisions to s 20 and s 27(2) of the
Bill of Rights Act.3
- In
respect of each settlement the Bill will exclude any form of monetary
compensation as a remedy for any failure of the Crown to
comply with protocols
issued under the Bill. Although s 27 affirms the right to bring civil
proceedings against the Crown, the section
protects only procedural rights,
while these provisions concern the substantive law and no inconsistency
arises.
Review of this advice
- This
advice has been reviewed in accordance with Crown Law protocol by Helen Carrad,
Senior Crown Counsel.
Austin Powell
Senior Crown Counsel
Footnotes
- For
Ngati Rangiteaorere giving effect to an earlier partial settlement and a Deed of
Settlement on 14 June 2013; for Tapuika giving
effect to a Deed of Settlement on
16 December 2012; and for Ngati Rangiwewehi giving effect to a Deed of
Settlement on 16 December
2012.
- Westco
Lagan Ltd v Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40 (HC).
- Apirana
Mahuika v New Zealand Communication No. 547/1993, UN Doc
CCPR/C/70/D/547/1993(2000).
Disclaimer
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 Nga Punawai o Te Tokotoru Claims Settlement Bill (Ngati Rangiteaorere). 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.
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