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Ngati Apa (North Island) Claims Settlement Bill (Consistent) (Sections 20, 27(2)) [2009] NZBORARp 44 (17 July 2009)

Last Updated: 28 April 2020

Ngāti Apa (North Island) Claims Settlement Bill

17 July 2009

Attorney-General

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: Ngati Apa (North Island) Claims Settlement Bill

Our Ref: ATT395/104

1. I have considered the above Bill for consistency with the New Zealand Bill of Rights Act

1990 ("the Bill of Rights Act"). I advise that the Bill appears to be consistent with the Bill of

Rights Act.

2. The Bill effects a final settlement of the Ngāti Apa (North Island) historical claims (defined in cl 12). The Bill transfers to Ngāti Apa (North Island) claimants various items of cultural and commercial redress in settlement of historical claims. The Bill also provides claimants with various associated rights in respect of culturally significant matters, including participation in resource management and related decision-making.

Issue under ss 20 and 27(2)

3. Clause 13 of the Bill provides the settlement of the historical claims is final and excludes, other than in certain respects, the jurisdiction of the courts, tribunals [1] or other judicial bodies from considering the settlement and historical claims.

4. That exclusion constitutes a limit on the right to bring judicial review affirmed by s 27(2) of the Bill of Rights Act, to the extent that any matters excluded from subsequent challenge may amount to decisions or actions susceptible to judicial review [2]. I note that legislative determination of a claim would not, in any case, conventionally fall within the scope of judicial review. However, to the extent that s 27(2) is limited, it would be justified under s 5 of the Bill of Rights Act. The exclusion of these matters from subsequent challenge is accepted as a legitimate incident of the negotiated settlement of the claims.

5. Similarly, in so far as the exclusion of subsequent challenge could be said to limit the claimant's rights under s 20 of the Bill of Rights Act [3], it would likewise be justified under s

5 on the same basis.

6. In particular, I note that the United Nations Human Rights Committee upheld a similar exclusion under the 1992 Fisheries Settlement, which was similarly an incident of a negotiated settlement, as consistent with the right of access to the courts as affirmed by art

14(1) of the International Covenant on Civil and Political Rights and with art 27, which are comparable to s 27(2) and 20 [4].

Whether s 27(3) at issue

7. Clause 22(3) of the Bill excludes damages as a remedy for any failure of the Crown to comply with a protocol under Part 2 of the Bill. Clause 75(2) prohibits any court or tribunal, between the settlement date and the date of registration, from doing or omitting to do anything in respect of settlement licence land if it is inconsistent with Part 3 of the Bill or Part 7 of the Deed of Settlement.

8. These clauses may be seen to raise the issue of compliance with s 27(3) of the Bill of Rights Act, 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. However, both cll 22(3) and 75(2) affect the substantive law. Accordingly, in my view they do not fall within the ambit of s 27(3) of the Bill of Rights, which protects procedural rights.

Whether s 19 at issue.

9. As noted, the Bill provides for the transfer of various assets to claimants and for claimants (and other Maori) to have rights which are not conferred on other people. For example claimants have the right to be consulted and to participate in various government decision making processes, including under the protocols provided for in Part 2 of the Bill. A further example is cl 82 of the Bill, which confers a right of access across land to protected sites on "Maori for whom the protective site is of a special spiritual, cultural, or historical significance.

10. Although the Bill confers assets and/or rights on claimants and certain other Maori that are not conferred on other people it does not, in my view, a prima facie limit on the right to freedom from discrimination affirmed by s 19 of the Bill of Rights Act. Discrimination only arises if there is a difference in treatment on the basis of one of the prohibited grounds of discrimination between two comparably situated groups that causes disadvantage [5]. In the context of the present settlement, which addresses specified claims by the recipient groups, no other persons or groups who are not party to these claims are comparably situated to the recipients of the entitlements under the Bill. Accordingly, excluding others

from the entitlements conferred under the Bill is not differential treatment for the purposes of s 19.

11. Further, even if this did amount to differential treatment for the purposes of s 19 it does not result in the type of disadvantage that s 19 aims to protect against. That is disadvantage arising from prejudice and negative stereotyping that perpetuates legal, social or political disadvantage faced by a marginalised group in our society.

12. This advice has been reviewed, in accordance with Crown Law protocol, by Fergus

Sinclair, Crown Counsel.

Yours faithfully

Jane Foster

Associate Crown Counsel

Footnotes

1. Clause 14 of the Bill provides for the Waitangi Tribunal's jurisdiction to be specifically excluded.

2. Westco Lagan Ltd v Attorney-General [2001] 1 NZLR40.

3. Which provides that "A person who belongs to an ethnic, religious, or linguistic minority in New Zealand shall not be denied the right, in community with other members of that minority, to enjoy the culture, to profess and practise the religion, or to use the language, of that minority.

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

5. Air New Zealand v McAlister [2008] NZCA 264; [2008] 3 NZLR 794 (CA), [81]; Hodge v Canada [2004] 3 SCR

357, [1]-[3], [17]-[37]; R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC

173, [14], [25]-[27].

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 Apa (North Island) 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.