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Ngati Whatua Orakei Claims Settlement Bill (Consistent) (Sections 19, 20, 27) [2012] NZBORARp 4 (22 February 2012)

Last Updated: 26 April 2019

Ngāti Whātua Ōrākei Claims Settlement Bill

22 February 2012 ATTORNEY-GENERAL

Ngāti Whātua Ōrākei Claims Settlement Bill (PCO 15376 v 23.0): Consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/167

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 Ōrākei historical claims as defined in the Bill [1]. The Bill provides cultural and commercial redress to Ngāti Whātua Ōrākei, including vesting property and securing participation in decision-making affecting areas with which Ngāti Whātua Ōrākei have a special association. The Bill also replaces existing

legislation in respect of the Ōrākei block [2], and provides for the transition to new governance entities.

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 Ōrākei 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 Ōrākei, 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.

4. Further, even if the conferral of assets or rights on Ngāti Whātua Ōrākei and not 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.
   

Privative clause

5. The Bill provides in cl 13 that the settlement of the historical claims is final and excludes the jurisdiction of the courts, the Tribunal [3] 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.

6. Legislative determination of a claim would not conventionally fall within the scope of judicial review [4]. However, to the extent that any excluded matters could be susceptible to judicial review, cl 13 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.
   
7. Any limit on minority rights under s 20 of the Bill of Rights Act would be justified on the same basis [5].
   
8. 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 [6].
   

Exclusion of remedy of compensation/civil liability

9. Clause 24(3) excludes any form of monetary compensation as a remedy for any failure of the Crown to comply with a protocol under Part 2 of the Bill. Clause 82 excludes various categories of civil liability that may otherwise arise from the dissolution of the two existing governance entities and transfer of functions to a single governance entity, Ngāti Whātua Ōrākei Trust. As part of the transition, existing members of the two existing governance entities are excluded from any compensation remedy when the new governance entity is created (cl 76(2) and cl 79(2)). It might be argued that these clauses limit 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 [7], while cls 24(3), 76(2), 79(2) and 82 affect the substantive law. Accordingly, no inconsistency arises.
   

Negotiating mandate

10. Clause 17(2) provides that the trustee of the Ngāti Whātua Ōrākei Trust has sole authority to negotiate outstanding claims that are not covered by the settlement and which relate to the customary rights and usages of Ngāti Whātua Ōrākei. The predecessor to the Ngāti Whātua Ōrākei Trust is the Ngāti Whātua o Ōrākei Māori Trust Board which under s 19 Orakei Act 1991 (to be repealed by the Bill), holds the statutory mandate to negotiate the settlement of all remaining Ngāti Whātua Ōrākei claims. Clause 17(2) does not limit the right to freedom from discrimination (s 19) for the same reasons outlined in paragraphs 3 and 4 above. Clause 17(2) does not limit the right of an individual claimant or group to apply for judicial review against the Crown (s 27(2)) or to bring civil proceedings against the Crown (s 27(3)). Individuals and groups are not prevented from bringing, independently of the trustee, such proceedings in the courts concerning unsettled claims, notwithstanding that the statute directs that the sole authority with whom the Crown may negotiate any future political settlement is the trustee [8]. No inconsistency arises.

Review of this advice

11. This advice has been reviewed, in accordance with Crown Law protocol, by Charlotte Griffin, Crown Counsel.
    

Ian Carter Crown Counsel

Footnote 1:

Clauses 11 and 12

Footnote 2:

Orakei Act 1991, which relates to a prior partial settlement of Ngāti Whātua Ōrākei claims

Footnote 3:

Expressly provided for in cl 14

Footnote 4:

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

Footnote 5:

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”

Footnote 6:

Apirana Mahuika v New Zealand Communication No. 547/1993, UN Doc CCPR/C/70/D/547/1993(2000)

Footnote 7:

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.”

Footnote 8:

Note also that the High Court has held that there is no legal right to negotiate: Powell v Attorney-General HC Auckland M1079-AS/00

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 Ōrākei 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.