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Nga Mana Whenua o Tamaki Makaurau Collective Redress Bill (Consistent) (Sections 19, 20, 27(2)) [2013] NZBORARp 27 (26 June 2013)

Last Updated: 7 April 2019

Ngā Mana Whenua o Tāmaki Makaurau Collective Redress

Bill

Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Bill (PCO 14581/48.0):

Consistency with the New Zealand Bill of Rights Act 1990

26 June 2013 Attorney-General

Legal Advice

Consistency with the New Zealand Bill of Rights Act 1990:Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Bill (PCO 14581/48.0):

1. We have considered the above Bill for consistency with the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). We advise the Bill appears to be consistent with the Bill of Rights Act.
2. The Bill gives effect to certain matters contained in the deed entered into by the

Crown and Ngā Mana Whenua o Tāmaki Makaurau (the collective deed).

3. The collective deed provides collective redress for the shared interests of Ngā Mana Whenua o Tāmaki Makaurau in relation to specified tūpuna maunga (volcanic

cones), motu (islands) and lands within Tāmaki Makaurau. It does not settle any historical claims. Settlement of the historical claims of each iwi and hapū comprising Ngā Mana Whenua o Tāmaki Makaurau is progressing, and in some cases has been completed through negotiations with the Crown. It is intended the redress provided by the collective deed will ultimately form part of each of these individual iwi or hapū settlements.

4. The Bill provides the Tūpuna Taonga o Tāmaki Makaurau Trust (the Taonga Trust), is the beneficiary of the cultural redress provided under the Bill. This includes the vesting of certain maunga in fee simple in the trustee of the Taonga Trust The Bill also provides for matters relating to the ownership, use, access, etc, of improvements attached to the maunga.
5. The Bill also provides (in Subpart 7) for the carrying out of authorised cultural

activities by 1 or more members of Ngā Mana Whenua o Tāmaki Makaurau on the maunga (other than Maungauika and Rarotonga/Mount Smart) and the administered lands. It further provides for the vesting of various motu in the trustee of the Taonga Trust, no later than 1 year after the effective date, and for their vesting back to the Crown 32 days later.

6. The Bill provides for the vesting of the Rangitoto Island properties in fee simple in the trustee of the Taonga Trust, for matters relating to the ownership, use, access, etc, of improvements attached to the properties, and technical provisions to facilitate the vestings. Each property is declared a reserve and, for the purposes of the Reserves Act 1977, Ngā Pona-toru-a-Peretū is to be administered, controlled and

managed by the Crown and the Islington Bay Hall property and the Islington Bay Bach 80 property are to be controlled and managed by the trustee.

7. Subpart 10 requires the preparation and approval of a conservation management plan for the Hauraki Gulf/Tīkapa Moana inner motu (the Tāmaki Makaurau motu plan).
8. Subpart 11 provides for the assignment and alteration of geographic names, sets out the requirements for publishing a notice of a new geographic name, and provides for the process for altering any new geographic name.
9. Part 3 establishes the Tūpuna Maunga o Tāmaki Makaurau Authority (or Maunga Authority) and sets out matters relating to its membership, functions and powers, administration, and procedures.
10. Part 4 of the Bill provides for commercial redress. Subpart 1 (clauses 120 to 152) provides the Whenua Haumi Roroa o Tāmaki Makaurau Limited Partnership (the Limited Partnership) and the rōpū entities with a right of first refusal in relation to RFR land. The owner of RFR land must not dispose of the land to a person other than the Limited Partnership (without offering it to the Limited Partnership on the same or better terms) unless a specified exception applies.
    

Discrimination – Section 19

11. 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 Ngā Mana Whenua o Tāmaki Makaurau 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 Bill, which addresses specified historical claims brought by Ngā Mana Whenua o Tāmaki Makaurau, 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.
12. Clause 78 does provide the trustee may restrict or prohibit public access to the improvements on the Islington Bay Bach 80 property; or for spiritual or cultural purposes, authorise exclusive private use of those improvements by the trustee or invitees of the trustee. It is conceivable that this clause raises a section 19 issue if the property also has significance to non-Māori. However, the reasoning in paragraph 11 above also applies to clause 78 and on that basis section 19 is not infringed.
    

Privative Clause

13. Clause 12 of the Bill provides that no court, tribunal, or other judicial body has jurisdiction in respect of any matter that arises from the application of Te Ture Whenua Maori Act 1993 if the matter relates to 1 or more of the maunga; or 1 or more of the Rangitoto Island properties; or certain land subject to the Bill, or any governance arrangement over such land, including those relating to the carrying out

of authorised cultural activities or certain related decisions made or other action taken in relation to such land, before the transfer of the land.

14. Legislative determination of a claim for redress would not conventionally fall within the scope of judicial review.1
15. However, to the extent that any excluded matters could be susceptible to judicial review, clause 12 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 for collective redress.
16. Any limit on minority rights under section 20 of the Bill of Rights Act would be justified on the same basis.
17. 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.2
18. Clause 104 provides no enforcement order may be made by the Environment Court requiring the trustee to act under section 314(1)(da) of the Resource Management Act 1991 to avoid, remedy, or mitigate any actual or likely adverse effect on the environment relating to 1 or more of the maunga vested in the trustee under this or 1 or more of the Rangitoto Island properties. This restriction applies only to the extent the effect is caused by or results from 1 or more activities or events that were carried out or occurred at any time before the vesting of the maunga or, in the case of the Rangitoto Island properties, before the effective date; and is not identified in the disclosure information provided by the Crown to Ngā Mana Whenua o Tāmaki Makaurau.
19. For the same reasons as those identified above it is our view that clause 104 constitutes a justified limit on the right affirmed by section 27(2) of the Bill of Rights Act.
    

Review of this advice

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

Peter Gunn

Team Manager

Footnotes

1. Westco Lagan Limited v Attorney General [2000] NZHC 1350; (2001) 1 NZLR 40 (HC).
   
2. Apirana Mahuika v New Zealand Communication Number 547/1993, UN Doc CCPR/C/70/D/547/1993 (2000)

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 Ngā Mana Whenua o Tāmaki Makaurau Collective Redress 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.