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Affiliate Te Arawa Iwi and Hapu Claims Settlement Bill (Consistent) (Sections 5 and 27) [2008] NZBORARp 20 (17 June 2008)

Last Updated: 16 March 2020

Affiliate Te Arawa Iwi and Hapu Claims Settlement Bill

17 June 2008

Attorney-General

Affiliate Te Arawa Iwi and Hapu Claims Settlement Bill PCO 7510/5.0: Consistency with the

New Zealand Bill of Rights Act

Our Ref: ATT395/42

1. I have considered the above Bill (version 7510/5.0) 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.

2. The Bill would effect a final settlement of the Affiliate historical claims (defined in cl 12). It excludes courts, judicial bodies and tribunals from considering the settlement and the historical claims (cl 13). The Waitangi Tribunal’s jurisdiction is specifically excluded (cl15). Such bodies retain jurisdiction over the interpretation or implementation of the deed or the Act.

3. The Bill would transfer various items of commercial and cultural redress in settlement of historical claims. Section 27(2) issue

4. The clauses in the Bill ousting the jurisdiction of courts and the Waitangi Tribunal (cll 13,

15 & 128) raise an issue about compliance with s 27(2) of the Bill of Rights. That section provides: “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.”

5. Section 27(2) has been held to apply only to a determination by a Tribunal or other public authority that is adjudicative in nature [1]. The settlement effected by the Bill and the decision of the Crown to agree to that settlement do not fall within that scope.

6. However, cl 13 also precludes judicial review of any previous determination of rights and interests, such as the Waitangi Tribunal’s Central North Island report and its report on the Impact of Crown Settlement Policy on Te Arawa Waka.

7. To the extent that any of these determinations fall within the scope of s 27(2), the exclusion of judicial review by cl 13 constitutes a limitation on that right.

8. I conclude, however, that that limitation is justifiable in terms of s 5 BORA: [2]

8.1 The settlement Bill reflects a reciprocal agreement between two parties. In return for the compensation under the settlement, the Affiliate has agreed that the subject matter of its historical claims should not be the subject of further litigation. The Crown is satisfied

there was the appropriate mandate to enter into such an agreement. (See explanatory note pages 3-4.) This assessment is also consistent with the decision of the Court of Appeal in New Zealand Maori Council v Attorney-General [2007] NZCA 269; [2008] 1 NZLR 318.

8.2 I also note the view of the United Nations Human Rights Committee that the exclusion of judicial review under the Fisheries Settlement, in the context of a negotiated settlement, was consistent with the right of access to the courts under art 14(1) of the International Covenant on Civil and Political Rights, which is comparable to s 27. [3]

Whether s 27(3) issue:

9. Clause 23(3), which excludes damages as a remedy for any failure of the Crown to comply with a protocol under Part 2 of the Bill may be seen to raise 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.

10. This clause affects the substantive law and does fall within the ambit of s 27(3), which protects procedural rights [4]. Accordingly, no inconsistency with s 27(3) of the Bill of Rights arises.

11. This advice has been reviewed, in accordance with Crown Law protocol, by Ben Keith, Crown Counsel.

Yours sincerely

Fergus Sinclair

Crown Counsel

Footnotes

1. Chisholm v Auckland City Council [2005] NZAR 661.

2. The application of s 5 entails an assessment of whether the restriction is rationally connected to an important objective and is proportionate to that objective: see, most recently, R v Hansen [2007] 3 NZLR 1 (SC) at [70], [123], [203]-[204] and [271].

3. Mahuika v New Zealand, Communication No. 547/1993, U.N.Doc.CCPR/C/70/D/547/1993 (2000).

4. Westco Lagan Ltd v Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40, 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 that the Crown shall have no procedural advantage in any proceedings to enforce rights if such rights exist.”.

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 Affiliate Te Arawa Iwi and Hapu 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.