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Ngai Tamanuhiri Claims Settlement Bill (Consistent) (Section) [2011] NZBORARp 25 (5 August 2011)

Last Updated: 29 April 2019

Ngai Tāmanuhiri Claims Settlement Bill

5 August 2011 Attorney-General

Ngāi Tamanuhiri Claims Settlement Bill (PCO 14666/4.1): consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/155

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 is consistent with the Bill of Rights Act.

2. The Bill affects final settlement of the Ngāi Tamanuhiri historical claims as defined in the Bill. [1] The Bill transfers to Ngāi Tamanuhiri various items of cultural and commercial redress, including the vesting of property and right of first refusal over the purchase of certain land, in settlement of historical claims. Other various associated rights in respect of culturally significant matters are provided to Ngāi Tamanuhiri by the Bill. These include participation in resource management and related decision-making affecting the areas with which Ngāi Tamanuhiri have a special association, and right of access to protected sites within Whareata Forest.
   

Issue under sections 20 and 27(2)

3. The Bill provides in clause 13 that the settlement of the historical claims is final and excludes the jurisdiction of the courts, Tribunals or other judicial bodies from considering the settlement and historical claims, other than in respect of the interpretation and implementation of the deed of settlement, the Act or redress provided under the deed or Act.
4. To the extent that any matters excluded from subsequent challenge could be susceptible to judicial review, the exclusion constitutes a limit on the right to bring judicial review affirmed by s 27(2) of the Bill of Rights Act. 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. Excluding these matters from subsequent challenge is a legitimate incident of the negotiated settlement of the claims.
5. To the extent that the exclusion of subsequent challenge could be said to limit the claimant’s right under s 20 of the Bill of Rights Act. [3] It would similarly also 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 an incident of a negotiated settlement. The Committee found the exclusion was consistent with a 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) of the New Zealand Bill of Rights Act. [4]
   

Whether section 19 at issue

7. No prime facie limit on the right to freedom from discrimination affirmed by s 19 of the Bill

of Rights Act arises because the bill confers assets and/or rights on Ngāi Tamanuhiri that are

not conferred on other people. 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 this settlement, which addresses specified

historical claims brought only by Ngāi Tamanuhiri, 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. No differential treatment for the purposes of s 19 therefore arises by excluding others from the entitlements conferred under the Bill.

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

Jane Foster Crown Counsel

Footnotes:

1. Clause 11 defines Ngāi Tamanuhiri; clause 12 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 should 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 Ngai Tāmanuhiri 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.