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Te Tau Ihu Claims Settlement Bill (Consistent) (Sections 14, 19(1), 20, s 27(2)-(3)) [2013] NZBORARp 19 (15 May 2013)

Last Updated: 1 April 2019

Te Tau Ihu Claims Settlement Bill

15 May 2013

Attorney-General

Te Tau Ihu Claims Settlement Bill (PCO 14036/4.1): Consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/194

1. We have considered the above Bill for consistency with the New Zealand Bill of Rights Act 1990. We conclude that the Bill appears consistent with the Bill of Rights Act.*
   
2. In summary:
   
   • 2.1 The Bill effects agreed settlements between the Crown and Ngāti Apa ki te Rā Tō, Ngāti Kuia, Rangitāne o Wairau, Ngāti Kōata, Ngāti Rārua, Ngāti Tama ki Te Tau Ihu, Te Ātiawa o Te Waka-a-Māui, and Ngati Toa Rangatira of the historic claims of those iwi. The Bill records the accounts of those claims, the Crown’s apologies, the terms of the agreed settlements and provides for a range of cultural and commercial redress in final settlement of those claims.
     
   • 2.2 The Bill of Rights Act issues raised by the Bill are as follows:
     
     • 2.2.1 Whether the provision for the provision of various redress to the iwi claimants amounts to discrimination on the basis of ethnicity and/or family status under s 19(1) of the Bill of Rights Act. We conclude, however, that the provision of redress over rights and interests of the claimant iwi does not engage s 19(1);
       
     • 2.2.2 Whether the provision for certain intellectual property rights for the Ka Mate haka is a justified limit on the freedom of expression affirmed by s 14. We conclude that it is; and
       
     • 2.2.3 Whether the provision for final settlement of the iwi claimants’ claims is consistent with the rights of the claimants as minority groups under s 20 and/or rights to judicial review and procedural equality with the Crown under s 27(2)-(3). We conclude that while these rights are limited by the Bill, that limitation is justified by the objective of effecting an agreed settlement.

Analysis

The Bill

3. The Bill comprises three separate sections that give effect to the settlements agreed with

Ngāti Apa ki te Rā Tō, Ngāti Kuia and Rangitāne o Wairau (Parts 1-3); Ngāti Kōata, Ngāti

Rārua, Ngāti Tama ki Te Tau Ihu and Te Ātiawa o Te Waka-a-Māui (Parts 4-7); and Ngati Toa Rangatira (Parts 8-11).

4. Each of these sections includes:
   
   • 4.1 Summary historical accounts for each of the claimant iwi, Crown acknowledgements, and Crown apologies (cll 8-16, 197-208 and 424-426);
     
   • 4.2 Definitions of the claimant iwi and the relevant claims (see, for example, cll 18- 20);
     
   • 4.3 Provision that the settlement is final and may not be pursued before any court, tribunal or judicial body, and consequential amendments to the Treaty of Waitangi Act 1975, the State-Owned Enterprises Act and other legislation and instruments (see, for example, cll 22-25);
     
   • 4.4 Provisions for cultural and commercial redress (Parts 2-3; 5-6; 9-10). These include:
     
     • 4.4.1 Vesting, return and other provision for particular lands or places (see, for example, Part 2, subparts 1-7);
       
     • 4.4.2 Provision for certain activities, such as fossicking for minerals and gathering of various natural resources, to be undertaken by members of each claimant iwi with the permission of that iwi (see, for example, Part 2, Subparts 8-11);
       
     • 4.4.3 Provision for forms of participation in particular resource management matters (see, for example, Part 2, Subparts 13-14); and
       
     • 4.4.4 The vesting of land and other rights (see, for example, Part 3, Subparts 1-4).
       
5. In addition:
   
   • 5.1 Part 7 deals with governance reorganization and taxation for Ngāti Tama ki Te

Tau Ihu; and

5.2 Part 11 makes specific provision for the Ka Mate haka and for its attribution to Te Rauparaha as its composer and as a chief of Ngati Toa Rangatira.

6. The Bill raises three questions under the Bill of Rights Act:
   
   • 6.1 Whether the grant of redress to claimant iwi and/or members of those iwi, and not others, raises any issue of discrimination on the grounds of family status and/or ethnicity under s 19(1);
     
   • 6.2 Whether the provision of legal rights in respect of Ka Mate is a justifiable limit on the freedom of expression affirmed by s 14; and
     
   • 6.3 Whether the exclusion of judicial review and other recourse is a justifiable limit on the rights of the claimant iwi as members of a minority group under s 20 and/or the rights to judicial review and procedural equality with the Crown under s 27(2)- (3).
     

Whether any issue under s 19(1)

7. The redress provisions of the Bill confer assets and other rights on the claimant iwi, and in some instances members of those iwi or other individuals, that are not conferred on other people. For example, and in addition to the grant of particular assets and rights to claimant iwi, the redress includes provision such as cl 92(1), which reserves a right of access to

certain wāhi tapu to “Māori for whom the protected site is of spiritual, cultural, or historical significance.” While the Bill does, in that respect, make distinctions based in ethnicity and/or family status, those distinctions do not engage s 19(1).

8. Discrimination arises only 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 [1]. In the context of the present settlements, which address 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. The provision for other rights such as in cl 92(1) again does not differentiate between similarly situated people. Accordingly, excluding others from the entitlements conferred under the Bill does not engage s 19(1).
   

Whether provision for Ka Mate a justified limit under ss 5 and 14

9. Part 11 of the Bill provides for Ka Mate as follows:
   
   • 9.1 A Crown acknowledgement of the haka and its composer (cl 638);
     
   • 9.2 A requirement that anyone who publishes or communicates the haka in whole or in part, other than by performance, for educational, media or review purposes or by non-commercial communication for those purposes, must give an attribution identifying Te Rauparaha as its composer and as a chief of Ngati Toa Rangatira (cll 639-641); and

• 9.3 Review of the provision made in Part 11 five years after its commencement (cl 642).
  

10. The requirement of attribution imposes a condition upon a number of forms of expression and so limits the right to freedom of expression affirmed by s 14 [2]. In considering whether that limit is justifiable [3]:
    
    • 10.1 The restriction serves a sufficiently important objective, both in terms of the broader moral rights principles on which it is based and in ensuring due recognition of the iconic Ka Mate haka;
      
    • 10.2 The requirement of attribution is a limited restriction directed at that objective, and the sanction for non-compliance is limited to court-ordered compliance and payment of costs, without liability for damages or compensation; and
      
    • 10.3 While the exceptions provided by Part 11 are more limited than those provided in, for example, the related provision for moral rights under ss 94 and 97 of the Copyright Act 1994, the provisions can nonetheless be seen to strike a reasonable balance between the contending interests of Ngati Toa Rangatira, those wishing to publish or otherwise make use of Ka Mate and the wider public.
      
11. The limit therefore appears justifiable in terms of s 5 of the Bill of Rights Act.
    

Whether final settlement consistent with ss 20 and 27(2)-(3)

12. The Bill provides in each of Parts 1, 4 and 8 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. The Bill also removes associated protections under the State-Owned Enterprises Act and elsewhere.
    
13. The removal of recourse to the courts and otherwise raises three related questions under the Bill of Rights Act:
    
    • 13.1 These provisions limit the available protection for cultural practice, which may include necessary rights to lands and resources, as protected by s 20;
      
    • 13.2 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). Legislative determination of a claim would not in any case conventionally fall within the scope of judicial review, but underlying claims could engage the right; and
      
    • 13.3 The exclusion of further proceedings may be seen to engage 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, the removal of substantive rights, as under the Bill, does not fall within the ambit of s 27(3) of the Bill of Rights Act, which protects procedural rights [4].

14. To the extent that the rights affirmed by ss 20 and/or 27(2) are limited by the Bill, those limits are justified in terms of s 5. The United Nations Human Rights Committee upheld a similar exclusion under the 1992 fisheries settlement as an incident of a negotiated settlement. The Committee found the exclusion was consistent with the analogous rights under arts 14(1) and 27 of the International Covenant on Civil and Political Rights [5], and the same reasoning applies here.
    

Ben Keith

Crown Counsel

Footnotes

* This advice is provided in respect of the Bill as referred to LEG on 14 May 2013. Amended advice will be provided in the event of any material amendment to the Bill prior to introduction.

[1] See Ministry of Health v Atkinson [2012] NZCA 184; [2012] 3 NZLR 456 (CA), [79]ff; McAlister v Air New Zealand Ltd [2009] NZSC 78; (2009) 8 HRNZ 801, [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].

[2] Ashdown v Telegraph Group [2001] EWCA Civ 947; [2001] EMLR 44 (EWCA), [30] (observing that “[c]opyright is antithetical to freedom of expression” but that the two are in general reconciled through applicable exceptions to copyright; Eldred v Ashcroft [2003] USSC 722; 537 US 186 (2003), 218-222 (freedom of expression in part protected through copyright exceptions); Ashby Donald v France (ECtHR App No. 36769/08, 10 January 2013), [38] & [41] (holding that copyright protections, as a limit on freedom of expression, must be shown to be necessary but are also subject to a broad margin of appreciation).

[3]See R v Hansen [2007] 3 NZLR 1 (SC) at [70], [123], [203]–[204] and [271].

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

[5] 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 Te Tau Ihu 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.