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Mauao Historic Reserve Vesting Bill (Consistent) (Section 19(1)) [2007] NZBORARp 43 (1 November 2007)

Last Updated: 5 January 2019

Mauao Historic Reserve Vesting Bill

1 November 2007 Attorney-General LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

MAUAO HISTORIC RESERVE VESTING BILL

1. We have considered the Mauao Historic Reserve Vesting Bill (the ‘Bill’) (PCO 8259/6), for consistency with the New Zealand Bill of Rights Act 1990 (the ‘Bill of Rights Act’). We understand that this Bill will be considered by the Cabinet Legislation Committee at its meeting on 7 November 2007.
   
2. We have concluded that the Bill appears to be consistent with the Bill of Rights Act. In coming to this conclusion we considered whether an issue with section 19(1) (freedom from discrimination) arises.
   

PURPOSE OF THE BILL

3. The Bill implements an agreement between the Crown; Ngāi Te Rangi, Ngāti Ranginui and Ngāti Pūkenga; The Trustees of the Mauao Trust; and, Waitaha (the

‘Agreement’). The Bill provides for the transfer of the fee simple estate in Mauao historic reserve, by way of gift, to the trustees of the Mauao Trust subject to enumerated encumbrances.

4. The Bill recognises the significant cultural, traditional, historical and spiritual importance of Mauao, or Mount Maunganui, to the Ngāi Te Rangi, Ngāti Ranginui and Ngāti Pūkenga. In addition, Bill recognises that the Waitaha have ancestral associations and historical connections with Mauao.
   

CONSISTENCY WITH SECTION 19(1) OF THE BILL OF RIGHTS ACT

5. Section 19(1) of the Bill of Rights Act provides:
   

"Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993."

6. Section 21 of the Human Rights Act 1993 specifies the prohibited grounds of discrimination. These grounds include race.
   
7. In our view, taking into account the various domestic and overseas judicial pronouncements as to the meaning of discrimination, the key questions in assessing whether discrimination under s. 19 exists are:

1. does the legislation draw a distinction based on one of the prohibited grounds of discrimination?
   
2. does the distinction involve disadvantage to one or more classes of individuals?
   
   8. If these questions are answered in the affirmative, we consider that the legislation gives rise to a prima facie issue of "discrimination" under section 19(1) of the Bill of Rights Act.
      
   9. In our view there is no distinction drawn by the Bill because interests promoted are particular to the four iwi concerned.
      
   10. Although the Bill provides that the vesting is not a settlement of a Treaty of Waitangi or other claim, the Agreement and the Bill both specifically recognise the unique

interests of the Ngāi Te Rangi, Ngāti Ranginui, Ngāti Pūkenga and Waitaha.

11. A discrimination assessment requires a relevant comparator group. No group possesses the same unique interests as the Ngāi Te Rangi, Ngāti Ranginui, Ngāti Pūkenga and Waitaha, and therefore, there is no group to be treated differently under the Bill.
    
12. In the interests of completeness, even if there was a comparator group, the Bill does not have the intention or effect of creating a disadvantage for any other group. The Bill provides that general law continues to apply as if Mauao historic reserve is vested in the Crown; the Reserves Act 1977 continues to apply as if the Mauao historic reserve was vested in the Crown; and, the vesting does not affect any rights or obligations in respect of the Mauao historic reserve of any person who is not a party to the Agreement.
    

CONCLUSION

13. Based on the analysis set out above, we have concluded that the Bill appears to be consistent with the Bill of Rights Act.
    

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 Mauao Historic Reserve Vesting 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.