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Ngati Makino Claims Settlement Bill (Consistent) (Sections 19, 20, 27(2), 27(3)) [2011] NZBORARp 41 (22 September 2011)

Last Updated: 29 April 2019

Ngāti Mākino Claims Settlement Bill

22 September 2011 Attorney-General

Ngāti Mākino Claims Settlement Bill (PCO 14090/9.0): Consistency with New Zealand Bill of

Rights Act 1990

Our Ref: ATT395/154

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 the final settlement of the Ngāti Mākino historical claims as defined in the Bill. [1] The Bill transfers to Ngāti Mākino 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 Ngāti Mākino by the Bill. These include making part of Lake Rotoma Scenic Reserve subject to a whenua rahui requiring it to be administered

having regard to Ngāti Mākino values and protection principles agreed by Ngāti Mākino, and providing for participation in resource management and related decision-making affecting other areas with which Ngāti Mākino have a special association.

Issues under sections 20 and 27(2)

3. The Bill provides in clause 11(4) 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 those matters from subsequent challenge is a legitimate incident of the negotiated settlement of the claims.
5. To the extent that exclusion of subsequent challenge could be said to limit the claimants’ 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 Bill of Rights Act. [4]

Whether s 27(3) at issue

7. Clause 20(3) of the Bill excludes damages as a remedy for any failure of the Crown to comply with a protocol under the Bill.
8. This clause 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, cl 20(3) affects the substantive law and does not fall within the ambit of s 27(3) of the Bill of Rights, which protects procedural rights. [5]
   

Whether s 19 at issue

9. Although the Bill confers assets and/or rights on claimants 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. [6] 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.
10. Clause 92(1) reserves a right of access to wāhi tapu on land transferred to Ngāti Mākino under the settlement to “Māori for whom the protected site is of spiritual, cultural, or

historical significance.” It is conceivable that this clause raises a s 19 issue in relation to a wāhi tapu site that also has, say, historical significance to non-Māori. However, it seems reasonable to consider the access right as an aspect of inchoate “cultural redress” in situations where the negotiation of cultural and commercial redress has to occur in a multi- iwi setting. I therefore conclude that the reasoning in paragraph 9 appropriately applies to this clause and that the s 19 right is not infringed. To the extent that it might be engaged, any infringement is justified by the objective of ensuring that other claimant groups are not inadvertently prejudiced by the settlement.

11. Further, even if the transfer of assets to the claimants or the conferral on claimants and

other Māori of rights which are not conferred on other people did amount to differential treatment for the purposes of s 19, they do 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 peer reviewed, in accordance with Crown Law protocol, by Jane Foster, Crown Counsel.
    

Yours faithfully

Ian Carter Crown Counsel

Footnotes:

1. Ngāti Mākino is defined in clause 9 of the Bill, historical claims are defined in clause

10.

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 practice 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).
5. 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 proceeding to enforce rights if such rights exist.”

6. McAlister v Air New Zealand Ltd [2009] NZSC 78, (2009) 8 HRNZ 801 at [51] and [105]. Hodge v Canada [2004] 3 SCR 357 at [1]-[3], [17]-[37]; R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006] 1 AC 173 at [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 Mākino 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.