Home | Databases | WorldLII | Search | Feedback New Zealand Bill of Rights Act Reports

Maungaharuru-Tangitu Hapu Claims Settlement Bill (Consistent) (Sections 19, 27(2)) [2013] NZBORARp 26 (24 June 2013)

Last Updated: 7 April 2019

Maungaharuru-Tangitū Hapū Claims Settlement Bill

24 June 2013 Attorney-General

Maungaharuru-Tangitū Hapū Claims Settlement Bill (PCO16511/Version 3.10):

Consistency with the New Zealand Bill of Rights Act 1990 Our Ref: ATT395/197

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 Maungaharuru-Tangitū Hapū (MTI) historical claims as defined in the Bill [1]. The Bill provides MTI with various items of cultural and commercial redress. This includes the vesting of certain property freehold and subject to reserve status. It provides MTI with various associated rights in respect of culturally significant matters including a partnership agreement over a specified area, protocols, statutory acknowledgements, deeds of recognition, and overlay classifications with associated protection principles and rights of consultation.
   

Discrimination – Section 19

3. The Bill does not prima facie limit the right to freedom from discrimination affirmed by section 19 of the Bill of Rights Act through conferring assets and/or rights on MTI that are not conferred on other people. Discrimination arises only 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 MTI, no other persons or groups who are not party to those claims are in comparable circumstances to the recipients of the entitlements under the Bill. No differential treatment for the purpose of section 19 therefore arises by excluding others from the entitlements conferred under the Bill.
   
4. Clause 118 reserves a special right of access to protected sites [2] on Crown forest licensed land transferred to MTI. This right of access applies to Māori for whom the protected site is of special cultural, historical, or spiritual significance. It is conceivable that this clause raises a section 19 issue if the protected sites also have significance to non- Māori. However, the reasoning in paragraph 3 above also applies to clause 118 and on that basis section 19 is not infringed. To the extent that section 19 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.

Privative Clause

5. Clause 14 provides that the settlement of the historical claims is final and excludes the jurisdiction of the courts, the Waitangi Tribunal 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. [3]
   
7. However, to the extent that any excluded matters could be susceptible to judicial review, clause 14 constitutes a justified limit on the right affirmed by section 27(2) of the Bill of Rights Act. Excluding subsequent challenge is a legitimate incident of the negotiated settlement of claims.
   
8. Any limit on minority rights under section 20 of the Bill of Rights Act would be justified on the same basis.
   
9. The United Nations Human Rights Committee upheld a similar exclusion under the 1992 fisheries settlement. The Committee found that the exclusion was consistent with articles 14 and 27 of the International Covenant on Civil and Political Rights, which are comparable to sections 20 and 27 (2) of the Bill of Rights Act. [4]
   

Exclusion of Remedy of Compensation - clauses 30(3) and 34(3)

10. Clause 30(3) excludes any form of monetary compensation as a remedy for any failure of the Crown to comply with Te Kawenata (a partnership agreement between MTI and the Crown applying to a specified area). Clause 34(3) is a similar provision excluding any form of monetary compensation for failure to comply with a protocol issued under Part 2 of the Bill. We have considered whether these clauses limit the right to bring civil proceedings against the Crown affirmed by section 27(3) of the Bill of Rights Act. However, section 27(3) protects only procedural rights [5] while clauses 30(3) and 34(3) affect the substantive law. Accordingly, no inconsistency arises.
    

Review of this advice

11. This advice has been reviewed in accordance with Crown Law protocol by Austin Powell, Senior Crown Counsel.
    

Yours sincerely Helen Carrad

Senior Crown Counsel

Footnotes

[1] Clause 12 defines Maungaharuru – Tangitū Hapū, clause 13 defines the historical claims.
[2] Protected site is defined in clause 108 as meaning “any area of land situated in the

licensed land that:

(a) is wāhi tapu or a wāhi tapu area within the meaning of section 2 of the Historic Places

Act 1993; and

(b) is a registered place within the meaning of section 2 of that Act”.
[3] Westco Lagan Limited v Attorney General [2000] NZHC 1350; (2001) 1 NZLR 40 (HC).
[4] Apirana Mahuika v New Zealand Communication Number 547/1993, UN Doc CCPR/C/70/D/547/1993 (2000)

[4] Westco Lagan Limited v Attorney General at [63] Section 27(3)... cannot restrict the power of the legislature to determine what substantive right 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 Maungaharuru-Tangitū Hapū 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.