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Ngati Whatua o Kaipara Claims Settlement Bill (Consistent) (Sections 19, 20, 27) [2012] NZBORARp 21 (22 June 2012)

Last Updated: 27 April 2019

Ngāti Whātua o Kaipara Claims Settlement Bill

Ngāti Whātua o Kaipara Claims Settlement Bill (PCO15167/Version 1.13): Consistency with

the New Zealand Bill of Rights Act 1990 Our Ref: ATT395/174

22 June 2012

ATTORNEY-GENERAL

Ngāti Whātua o Kaipara Claims Settlement Bill (PCO15167/Version 1.13): Consistency with

the New Zealand Bill of Rights Act 1990 Our Ref: ATT395/174

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 effects final settlement of the Ngāti Whātua o Kaipara historical claims as defined in the Bill.[1] It provides for acknowledgements and apologies to Ngāti Whātua o Kaipara in respect of historical breaches of the Treaty of Waitangi along with cultural and commercial redress.
   

Discrimination

3. The Bill does not prima facie limit the right to freedom from discrimination affirmed by s 19 of the Bill of Rights Act through conferring assets and/or rights on Ngāti Whātua o Kaipara 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 by Ngāti Whātua o Kaipara, 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 purpose of s 19 therefore arises by excluding others from the entitlements conferred under the Bill.
   

Privative clause

4. The Bill provides in cl 14 that the settlement of the historical claims is final and excludes the jurisdiction of the courts, the Tribunal[2] and other judicial bodies from considering the settlement and historical claims, other than in respect of the interpretation and implementation of the deed of settlement or the Act.

5. Legislative determination of a claim would not conventionally fall within the scope of judicial review.[3] However, to the extent that any excluded matters could be susceptible to judicial review, cl 14 constitutes a justified limit on the right affirmed by s 27(2) of the Bill of Rights Act. Excluding subsequent challenge is a legitimate incident of the negotiated settlement of claims.
   
6. Any limit on minority rights under s 20 of the Bill of Rights Act would be justified on the same basis.[4]
   
7. The United Nations Human Rights Committee upheld a similar exclusion under the 1992 fisheries settlement. The Committee found that the exclusion was consistent with arts 14 and 27 of the International Covenant on Civil and Political Rights, which are comparable to ss 20 and 27(2) of the Bill of Rights Act.[5]
   

Exclusion of remedy of compensation

8. Clause 29(3) excludes any form of monetary compensation as a remedy for any failure of the Crown to comply with a Culture and Heritage protocol issued under Part 2 of the Bill. It might be argued that this clause limits the right to bring civil proceedings against the Crown affirmed by s 27(3) of the Bill of Rights Act. However s 27(3) protects only procedural rights,[6] while clause 29(3) affects the substantive law. Accordingly, no inconsistency arises.
   

Review of this advice

9. This advice has been reviewed, in accordance with Crown Law protocol, by Fergus Sinclair, Crown Counsel.
   

Austin Powell Crown Counsel

Team Leader (Human Rights)

Footnotes

1. Giving effect to a deed of settlement entered on 9 September 2011.
2. Expressly provided for in cl 15.
3. Westco Lagan Ltd v Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40 (HC).
4. Section 20 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”.
5. Apirana Mahuika v New Zealand Communication No. 547/1993, UN Doc CCPR/C/70/D/547/1993(2000).

6. Westco Lagan v Attorney-General at [63]: “[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.”
   

Disclaimer

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 Whātua o Kaipara 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.