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Waitaha Claims Settlement Bill (Consistent) (Sections 19, 27(2)) [2012] NZBORARp 43 (23 August 2012)

Last Updated: 28 April 2019

Waitaha Claims Settlement Bill

23 August 2012 ATTORNEY-GENERAL

Waitaha Claims Settlement Bill (version 9.0): Consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/180

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 Waitaha historical claims as defined in the Bill.1 The Bill transfers to Waitaha various items of cultural and commercial redress, including the vesting of certain property freehold and subject to reserve status. It provides claimants with various associated rights in respect of culturally significant matters, including statutory acknowledgements and overlay classifications with associated protection principles and rights of consultation.
   

Discrimination - Section 19

3. Although the Bill confers assets and interests on Waitaha that are not conferred on other people it does not, in my view, create a limit on the freedom from discrimination affirmed by s 19 of the Bill of Rights Act. Discrimination only arises if there is difference in treatment on the basis of one of the prohibited grounds of discrimination between two comparably situated groups.2 The settlement addresses specified historical claims brought only by Waitaha. No other persons or groups 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.
   
4. Clause 69(1) reserves a special right of access to reserve land transferred to Waitaha for members of the Tapuika iwi on and from the settlement of Tapuika’s historical claims. It is conceivable that this clause raises a s 19 issue if that reserve land also has, say, historical significance to other claimant groups or to non-Māori.

However, the reasoning in paragraph 3 further applies to this clause and on that basis s 19 is not infringed. To the extent that it might be engaged, any infringement is justified by the objective of ensuring that related claimant groups are not prejudiced by the settlement in situations where the negotiation of cultural and commercial redress has to occur in a multi-iwi setting.

1. Clause 10 defines Waitaha, cl 11 defines the historical claims.
2. Ministry of Health v Atkinson [2012] NZCA 184 at [55] and [109], McAlister v Air New Zealand Ltd [2009] NZSC 78; [2010] 1 NZLR 153 (SC) at [51] per Tipping J and [105] per McGrath J.

Exclusion of judicial review – section 27(2); Rights of minorities – section 20

5. Clause 12 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.
   
6. Legislative determination of a claim would not, in any case, conventionally fall within the scope of judicial review. Nonetheless, to the extent the clause covers determinations otherwise susceptible to judicial review, it limits the right to bring judicial review proceedings affirmed by s 27(2) of the Bill of Rights Act. Any such limitation on s 27(2) would, however, be justified under s 5 of the Bill of Rights Act as a legitimate incident of the negotiated settlement of the claims.
   
7. In so far as the section could be said to limit reliance on the protection of the rights of minorities under s 20 of the Bill of Rights Act, it would be justified under s 5 on the same basis.
   
8. The United Nations Human Rights Committee upheld a similar exclusion under the 1992 Fisheries Settlement, also 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) of the Bill of Rights Act.3
   

Limitation on civil proceedings - section 27(3)

9. Clause 21(3) of the Bill excludes damages or any form of monetary compensation as a remedy for any failure of the Crown to comply with a protocol under the Bill.
   
10. I have considered the potential application of 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 21(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.4
    
    11. This advice has been reviewed, in accordance with Crown Law protocol, by Jane Foster, Crown Counsel.
        
3. Apirana Mahuika v New Zealand, Communication No. 547/1993, U.N. Doc. CCPR/C/70/D/547/1993 (2000). 4 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.”

Yours faithfully

Ian Carter Crown Counsel

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 Waitaha 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.