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Ngati Tamaoho Claims Settlement Bill (Consistent) (Sections 19, 20, 27(2), 27(3)) [2017] NZBORARp 31 (7 June 2017)
Last Updated: 7 January 2019
7 June 2017
Attorney-General
Ngāti Tamaoho Claims Settlement Bill (v 6.0) — Consistency with the
New Zealand Bill of Rights Act 1990
Our Ref: ATT395/266
- We
have considered the above Bill for consistency with the New Zealand Bill of
Rights Act 1990 (“the Bill of Rights Act”).
We advise that the Bill
appears to be consistent with the Bill of Rights Act.
- The
Bill will effect a final settlement of the Ngāti Tamaoho historical claims
as
defined in the Bill.1 It provides for
acknowledgements and an apology to Ngāti
Tamaoho, as well as for cultural and commercial redress. Measures for
cultural redress include:
2.1 protocols for Crown minerals and taonga tūturu;
2.2 acknowledgement of statements of association made by Ngāti Tamaoho,
2.3 a deed of recognition for certain areas administered by the Department of
Conservation;
2.4 declaration of official geographic names;
2.5 the vesting of certain properties in Ngāti Tamaoho; and
2.6 a joint management scheme for Hūnua Falls reserve land.
Whether s 19 at issue
- Notwithstanding
that the Bill will confer assets or rights on Ngāti Tamaoho that are not
conferred on other people, the Bill
does not prima facie limit the right
to freedom from discrimination affirmed by s 19 of the Bill of Rights Act.
Discrimination arises only 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 this settlement, which addresses specified
historical claims brought by Ngāti Tamaoho, no other persons or
groups who
are not party to those claims are in comparable circumstances to the recipients
of the entitlements under the Bill.
1 Clause 13(1)
defines Ngāti Tamaoho, cl 14 defines historical claims.
Accordingly, excluding others from the entitlements conferred by the Bill is
not differential treatment for the purposes of s 19.
Sections 20 and 27(2) of the Bill of Rights Act: privative clauses
- The
effect of cll 15 and 16 is that the settlement of historical claims is final and
excludes the jurisdiction of any court, tribunal
or other judicial body to
consider the settlement and historical claims, other than in respect of the:
- 4.1 interpretation
or implementation of the deed of settlement with
Ngāti
Tamaoho;
4.2 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Deed;
4.3 Ngāti Tamaoho Claims Settlement Act (once enacted); and
4.4 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014.
- Legislative
determinations ought not conventionally to fall within the scope of judicial
review.2 However,
to the extent any excluded matters could be susceptible to judicial review, cl
15 constitutes a justified limit under s 5
of the Bill of Rights Act on the
right affirmed by s 27(2). Excluding subsequent challenge is a legitimate
incident of the negotiated
settlement of claims.
- To
the extent the exclusion of subsequent challenge could be said to limit a
claimant’s minority rights under s 20 of the Bill
of Rights Act, this
would be justified on the same basis.
- The
United Nations Human Rights Committee upheld a similar exclusion under the 1992
Fisheries Settlement. The Committee found the
exclusion was consistent with arts
14 and 27 of the International Covenant on Civil and Political Rights, which are
comparable to
ss 20 and 27(2) of the Bill of Rights Act.3
Whether s 27(3) at issue
- Clause
25(3) of the Bill excludes damages or other forms of monetary compensation as a
remedy for a failure of the Crown to comply
with a Crown minerals or taonga
tūturu protocol. If the Crown fails to comply with a protocol without good
cause, the Ngāti
Tamaoho trustees may enforce the
protocol,4 and recover the
costs of doing so in the ordinary manner.5
- This
clause appears to raise the issue of consistency with s 27(3) of the 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.
2 Westco Lagan
Limited v Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40 (HC).
3 Apirana Mahuika v New
Zealand Communication Number 547/1993 UN Doc CCPR/C/70/D/547/1993
(2000).
4 Clause 25(2).
5 Clause 25(4)(b).
However, cl 25 affects the substantive law and does not fall within the ambit
of s 27(3) of the Bill of Rights Act, which
protects procedural
rights.6
Review of this advice
- This
advice has been reviewed in accordance with Crown Law protocol by Vicki McCall,
Crown Counsel.
Daniel Perkins
|
Crown Counsel
|
Constitutional & Human Rights Team Manager
Noted
Hon Christopher Finlayson QC
Attorney-General
7 / 06 /2017
6 Westco Lagan Limited 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 proceeding to enforce rights if such
rights
exist.”
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