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Moriori Claims Settlement Bill (Consistent) (Sections 19,27) [2020] NZBORARp 33 (6 March 2020)
Last Updated: 30 July 2020
6 March 2020
Attorney-General
Moriori Claims Settlement Bill – PCO 20386/14: Consistency with the New
Zealand Bill of Rights Act
Our Ref: ATT395/312
- We
have considered the Moriori Claims Settlement Bill (“the Bill”) for
consistency with the New Zealand Bill of Rights
Act 1990 (“the Bill of
Rights Act”). We advise the Bill appears to be consistent with the Bill of
Rights Act.
- The
Bill effects a final settlement of the Moriori historical claims as defined in
the Bill.1 The Bill provides for acknowledgements and
an apology as well as cultural and commercial redress. Measures for cultural
redress include
protocols for Crown minerals, fisheries and taonga tūturu,
a statutory acknowledgement by the Crown of the statements made by
Moriori of
their association with certain statutory areas together with deeds of
recognition for all but two of the statutory areas
and an overlay classification
applying to certain areas of land.
- The
Bill also transfers to Moriori various items of cultural and commercial
redress.
Discrimination – Section 19
- The
Bill does not prima facie limit the right to freedom from discrimination
affirmed by s 19 of the Bill of Rights Act through conferring assets or rights
on Moriori
that are not conferred on other people. 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 Moriori,
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. No
differential treatment for the purpose of s 19 therefore arises by excluding
others from the entitlements conferred under the Bill.
Privative Clause
- Clause
15 of the Bill provides that the settlement of the historical claims is final.
It excludes the jurisdiction of the Courts,
the Tribunal and other judicial
bodies to inquire into the historical claims, the deed of settlement, the
Moriori Claims Settlement
Act (“the Settlement Act”) or the redress
provided. Jurisdiction remains in respect of the interpretation or
implementation
of the deed of settlement or the Settlement Act.
1 Clause 13 defines Moriori, clause 14
defines historical claims.
- Legislative
determination of a claim 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, clause 15 constitutes a
justified limit on the
right affirmed by s 27(2) of the Bill of Rights
Act. Excluding subsequent challenge 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 Committee found the
exclusion was consistent with
articles 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
Exclusion of remedy of compensation
- Clause
24(3) of the Bill excludes damages and other forms of monetary compensation as a
remedy for any failure by the Crown to comply
with a protocol under the
Bill.
- This
clause may be seen 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 these heard according to law in the same way as civil proceedings between
individuals. However,
clause 24(3) 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.4 Accordingly, no inconsistency arises.
Review of this advice
- This
advice has been reviewed in accordance with Crown Law protocol by Peter
Gunn, Team Manager.
Helen Carrad Crown Counsel
|
Noted
Hon David Parker Attorney-General / /2020
|
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).
- Westco
Lagan Limited v Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40 (HC) at 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 the Crown shall have no procedural advantage in any proceeding to
enforce rights if such rights
exist.”
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