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Ngati Tama Claim Settlement Bill (Consistent) (Sections 14, 27) [2003] NZBORARp 16 (4 April 2003)
Last Updated: 4 November 2020
Ngati Tama Claim Settlement Bill
4 April 2003
Attorney-General
Ngati Tama Claim Settlement Bill - PCO 4553/5
Our Ref:
ATT114/1197(6)
- We
have considered the above Bill for consistency with the New Zealand Bill of
Rights Act 1990 ("the Bill of Rights"). We advise that
the Bill appears to be
consistent with the Bill of Rights.
- The
Bill sets out in detail the settlement between the Ngati Tama people and the
Crown, with a view to this being a final settlement
under the Deed of Settlement
and this legislation.
- The
Bill provides that the settlement of Ngati Tama claims (as defined in
clause 11), to be effected by the deed of settlement and
this legislation,
is final (clause 12). The Bill excludes courts, judicial bodies and tribunals
from considering the final settlement,
including the validity of the deed of
settlement and the adequacy of the benefits provided to the Ngati Tama people
under the Deed
or the Bill (clause 12(3)). The jurisdiction of the Waitangi
Tribunal is specifically excluded (clause 13).
Section 27(2) BORA
issue
- The
clauses in the Bill ousting the jurisdiction of the Courts and the Tribunal
(clauses 12 and 13) raise questions about compliance
with s 27(2) of the Bill of
Rights (the right to seek judicial review).
- While
clause 12 does limit the ability to bring judicial review, our view is that,
looked at in context, there is probably no breach
of s 27(2) and in any event,
would be a justified limit in terms of s 5. Our conclusion that there is
probably no breach of s 27(2)
is based on the fact that this Bill reflects a
reciprocal agreement between two parties who have agreed on the effect that
settlement
would have on their ability to take future claims. We note that it is
relevant that the deed of settlement was only signed after
the Crown was
satisfied there was the appropriate mandate to enter into such an
agreement.
- We
note that this is the same approach as we took in respect of the Ngai Tahu
settlement (see our advice dated 24 March 1998), the
Pouakani settlement (see
our advice dated 12 September 2000) and the Te Uri o Hau Settlement (see our
advice dated 22 November 2001).
Those in turn reflected the approach taken in
respect of other Treaty settlements—the Treaty of Waitangi (Fisheries
Claims)
Settlement Act 1992 and the Waikato Raupatu Claims Settlement Act 1995.
The approach appears still to be sound.
- We
accept that it could be argued that the clause represents a prima facie
breach of the rights of those persons (if any) within the iwi who dispute the
mandate or the settlement process. Such an approach
rejects the idea that the
existence of a mandate, and the consequent reciprocal agreement, means there is
no prima facie breach. However, even taking that approach it is our view
that the ouster provisions would clearly be a justified limitation under
s 5 of
the Bill of Rights. The limitation is justified for the reasons discussed above,
namely that the legislation reflects a reciprocal
agreement between two parties
who have agreed on the effects settlement would have on their future claims.
Further we note the Bill
specifically does not exclude the jurisdiction of
Courts, judicial bodies or Tribunals (including the Waitangi Tribunal) in
respect
of the interpretation or the implementation of the deed or the Bill
(clauses 12(4) and 13).
Section 27(3) BORA issue
- Clause
22(3) of the Bill raises the issue of compliance with s 27(3) of the Bill of
Rights, 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.
- Clause
22(3) of the Bill excludes damages as a remedy in respect of a public law action
against the relevant Minister who issued a
protocol alleging failure to comply
with his or her obligations under the protocol. This clause affects the
substantive law and does
not in our view fall within the ambit of s 27(3) which
protects procedural rights. Accordingly, clause 22(3) of the Bill is not
inconsistent
with s 27(3) of the Bill of Rights.
Section 14 BORA
issue
- Clause
20 of the Bill raises the issue of compliance with s 14 of the Bill of Rights.
Section 14 protects the right to "freedom of
expression, including the freedom
to seek, receive and impart information and opinions of any kind in any
form".
- Clause
20 provides for protocols to be issued in the form set out in the Cultural
Redress Schedule in the Deed of Settlement. One
of those protocols, the DOC
Protocol set out at pp134-150 of the Deed, raises freedom of expression issues.
Clause 7.5.5 of the DOC
Protocol provides that "the Department will work with
Ngati Tama at the area office level to "when issuing concessions to carry out
activities on the land administered by the Department, request that the
concessionaire consult with the Governance Entity before
using cultural
information of Ngati Tama".
- A
requirement for consultation prior to use of information potentially limits the
right to impart information protected by s 14. However,
after consideration we
do not consider clause 7.5.5 of the DOC Protocol and clause 20 of the Bill
represent a prima facie breach of s 14. First, there is no mandatory
requirement for a concessionaire to consult, only a request. Secondly, clause 2
of the
Bill expressly provides that the protocols do not restrict the ability of
the Crown to perform its functions in accordance with the
law, which necessarily
includes the Bill of Rights. Accordingly, any protocol issued under clause 20
must comply with the Bill of
Rights.
- We
note, however, that for the avoidance of doubt it may be prudent to include in
clause 21(a) a specific reference to the Bill of
Rights. Whilst BORA is plainly
included in the earlier expression of "in accordance with the law", the
inclusion in the Act of an
express reference might emphasise the need to ensure
Protocols are BORA consistent. We stress, however, that the absence in the Bill
of such an express provision does not raise a s 7 consistency
concern.
Simon France Crown
Counsel
|
Jane Foster Assistant Crown Counsel
|
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
Tama Claim 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.
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