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Ngaati Manawa and Ngaati Whare Claims Settlement Bill (Consistent) (Sections 5, 19, 20, 27) [2010] NZBORARp 65 (13 September 2010)

Last Updated: 6 May 2020

Ngāti Manawa and Ngāti Whare Claims Settlement Bill

13 September 2010

ATTORNEY-GENERAL

Ngāti Manawa and Ngāti Whare Claims Settlement Bill PCO14148/1.15: Consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/142

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 Manawa and Ngāti Whare historical claims. [1] The Bill transfers to Ngāti Manawa and Ngāti Whare claimants various items of cultural, financial and commercial redress, including the ability to purchase certain commercial properties, [2] 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 affecting areas and rivers with which Ngāti Manawa and Ngāti Whare have a special association.

Issue under ss 20 and 27(2)

3. Clauses 13 [3] and 143 [4] of the Bill state that the settlement of the historical claims is final and excludes, other than in certain respects, the jurisdiction of the courts, tribunals [5] 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. Legislative determination of a claim would not, in any case, conventionally fall within the scope of judicial review. [6] 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, [7] it would likewise be justified under s 5 on the same basis.

6. 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 ss 20 and 27(2). [8]

Whether s 27(3) at issue

7. Clauses 36 [9] and 174 [10] of the Bill excludes damages as a remedy for any failure of the Crown to comply with a protocol under the Bill.

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 36 and 174 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. 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 the Bill.

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, create 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. [11] 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

Ian Carter

Crown Counsel

Footnotes:

1. Defined in cl 12 (Ngāti Manawa) and cl 142 (Ngāti Whare).

2. Either as deferred selected properties or Right of First Refusal.

3. Ngāti Manawa.

4. Ngāti Whare.

5. Clause 14 (Ngāti Manawa) and 144 (Ngāti Whare) of the Bill provide for the Waitangi

Tribunal’s jurisdiction to be specifically excluded.

6. Westco Lagan Ltd v Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40.

7. 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”.

8. Apirana Mahuika v New Zealand, Communication No. 547/1993, U.N. Doc.

CCPR/C/70/D/547/1993 (2000).

9. Ngāti Manawa.

10. Ngāti Whare.

11. McAlister v Air New Zealand [2009] NZSC 78, (2009) 8 HRNZ 801 at [51] and [105].

Hodge v Canada [2004] 3 SCR 357, [1]-[3], [17]-[37]; R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [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 Ngāti Manawa and Ngāti Whare 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.