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Ngati Pahauwera Claim Settlement Bill (Consistent) (Sections 19, 20, 27(2)) [2011] NZBORARp 1 (17 January 2011)

Last Updated: 28 April 2019

Ngāti Pāhauwera Treaty Claims Settlement Bill

17 January 2011 ATTORNEY-GENERAL

Ngāti Pāhauwera Claim Settlement Bill (version 7.3): Consistency with the New Zealand Bill

of Rights Act 1990 Our Ref: ATT395/153

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 Pāhauwera historical claims as defined in the Bill. [1] The Bill transfers to Ngāti Pāhauwera claimants various items of cultural and commercial redress, including the vesting of property and right of first refusal over the purchase of certain commercial property, 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 the

land, lakes and rivers with which Ngāti Pāhauwera has a special association and control over the taking of hāngi stones from the Mohaka and Te Hoe rivers.

Issue under ss 20 and 27(2)

3. Clause 14 of the Bill states that the settlement of the historical claims is final and excludes, other than in respect of the interpretation and implementation of the deed of settlement or the Act, the jurisdiction of the courts, tribunals 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. [2] 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. 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). [4]
   

Whether s 19 at issue

7. Although the Bill confers assets and/or rights on Ngāti Pāhauwera 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 those in comparable circumstances. In the context of the present settlement, which addresses specified historical claims brought only by Ngāti Pāhauwera, no other

persons or groups who are not party to these claims are in comparable circumstances 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.

8. This advice has been reviewed, in accordance with Crown Law protocol, by Jane Foster, Crown Counsel.
   

Yours faithfully

Martha Coleman Crown Counsel

Footnotes:

1. Cl 12 and Schedule 1 defines Ngāti Pāhauwera; cl 13 defines the historical claims.
2. Westco Lagan Ltd v Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40.
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. Apirana Mahuika v New Zealand, Communication No. 547/1993, U.N. Doc. CCPR/C/70/D/547/1993 (2000).
   

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 Pāhauwera Treaty 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.