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Ngaa Rauru Kiitahi Claims Settlement Bill (Consistent) (Sections 27(2), 27(3)) [2004] NZBORARp 40 (17 November 2004)
Last Updated: 23 March 2021
Ngaa Rauru Kiitahi Claims Settlement Bill
17 November 2004
Attorney-General
LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:
Ngaa Rauru Kiitahi Claims Settlement Bill(PCO 5896/6)
Our Ref:
ATT114/1298
- I
have considered the above Bill for consistency with the New Zealand Bill of
Rights Act 1990 ("the Bill of Rights"). I advise that
the Bill appears to be
consistent with the Bill of Rights.
- The
Bill sets out in detail the settlement between the Ngaa Rauru Kiitahi 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 a settlement of Ngaa Rauru Kiitahi claims (as defined in
clause 13), to be affected by the deed of settlement
and this legislation, is
final (clause 14). The Bill excludes courts, judicial bodies and tribunals from
considering the final settlement,
including the validity of the deed of
settlement and adequacy of the benefits provided to the Ngaa Rauru Kiitahi
people under the
deed or the Bill (clause 14(3)). The Waitangi Tribunal’s
jurisdiction is specifically excluded (clause 15).
Section 27(2)
Issue
- The
clauses in the Bill ousting the jurisdiction of courts and the Tribunal (clauses
14 and 15) raise an issue about compliance with s 27(2) of the Bill of
Rights (the right to seek judicial review).
- Clause
14 does limit the ability to bring judicial review. However, looked at in
context, there is no prima facie breach of s 27(2) and in any event, if
there were, it would be justified in terms of s 5. My conclusion that there is
no prima facie
breach of s 27(2) is based on the wording of that section.
- Section
27(2) of the Bill of Rights provides that:
"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."
- There
are two reasons why there is no breach of s 27(2). First, the section refers to
a "determination" which is said to have an "adjudicative
connotation" (in
Chisholm v Auckland City Council, CA 326/02, 29 November 2002 at para
32). I do not believe a negotiated settlement between two parties can be
considered to be an "adjudication"
of the matters in dispute. Negotiation and
adjudication are quite distinct concepts. Secondly, the determination needs to
be by a
tribunal like body for the section to apply (Chisholm supra). The
Crown is not such a body.
- Even
if the ouster clause was to represent a prima facie breach of the rights
of those persons (if any) within the iwi who dispute the mandate or the
settlement process, I consider the limitation
on the right to judicial review to
be justified. The limitation is justified because the legislation reflects a
reciprocal agreement
between two parties who have agreed on the effect
settlement would have on their future claims. I also 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.
Further, the Bill
specifically does not exclude the jurisdiction of courts, judicial bodies or
tribunals (including the Waitangi
Tribunal) in respect of the interpretation
with implementation of the deed or the Act (clauses 14(4) and 15).
- This
analysis with respect to s 27(2) of the Bill of Rights is consistent with advice
given in respect of other settlements. See our
advice in respect of the Ngati
Tuwharetoa (Bay of Plenty) settlement (dated 6 September 2004), the Ngati
Awa settlement (dated 4 August 2004), the Ngati Tama settlement (dated 4 April
2003), the Te Uri-o-Hau
settlement (dated 22 November 2001), the Pouakani
settlement (dated 12 September 2000) and the Ngati Tahu settlement (dated 24
March
1998). 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.
Section 27(3) 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 alleging failure to comply
with the
protocols. This clause affects the substantive law and does not in my view fall
within the ambit of s 27(3) that protects
procedural rights. Accordingly, clause
22(3) of the Bill is not inconsistent with s 27(3) of the Bill of
Rights.
Yours faithfully
Jane Foster
Associate 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 Ngaa
Rauru Kiitahi 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.
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