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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
- 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.
- 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
- 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.
- 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
- 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."
- Section
21 of the Human Rights Act 1993 specifies the prohibited grounds of
discrimination. These grounds include race.
- 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:
- does
the legislation draw a distinction based on one of the prohibited grounds of
discrimination?
- does
the distinction involve disadvantage to one or more classes of individuals?
- 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.
- In
our view there is no distinction drawn by the Bill because interests promoted
are particular to the four iwi concerned.
- 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.
- 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.
- 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
- Based
on the analysis set out above, we have concluded that the Bill appears to be
consistent with the Bill of Rights Act.
Melanie Webb
Manager, Ministerial Advice Office of Legal Counsel
|
Stuart Beresford
Acting Manager
Bill of Rights/Human Rights Team
|
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.
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