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Ngati Haua Claims Settlement Bill (Consistent) (Sections 20, 27(2)) [2013] NZBORARp 33 (6 September 2013)

Last Updated: 7 April 2019

Ngāti Haua Claims Settlement Bill

6 September 2013

ATTORNEY-GENERAL

Ngāti Haua Claims Settlement Bill (PCO17494 / version 6.4) - consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/203

1. We have considered the Ngāti Hauā Claims Settlement Bill for consistency with the New Zealand Bill of Rights Act 1990 (“the Bill of Rights Act”). We advise that the Bill appears to be consistent with the Bill of Rights Act.
   
2. The Bill effects a final settlement of the Ngāti Hauā historical claims (defined in cl 8). The key elements of the Bill are an agreed historical account, Crown acknowledgements and apology, transfers to Ngāti Hauā of various items of cultural redress, and the provision of financial and commercial redress. With respect to cultural redress, the Bill provides claimants with various associated rights in respect of culturally significant matters, including participation in governance, resource management and related decision-making.
   

Privative Clause

3. Clause 15 provides 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.
   
4. Legislative determination of a claim would not conventionally fall within the scope of judicial review.[1]
   
5. However, to the extent any excluded matters could be susceptible to judicial review, clause 15 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.
   
6. Any limit on minority rights under section 20 of the Bill of Rights Act would be justified on the same basis.
   
7. The United Nations Human Rights Committee upheld a similar exclusion under the 1992 fisheries settlement. The Committee found 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]
   

Exclusion of Remedy of Compensation - clause 25(3)

8. Clause 25(3) excludes any form of monetary compensation as a remedy for any failure of the Crown to comply with the taonga tuturu protocol issued under Part 2 of the Bill.
   
9. 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[3] while clause 25(3) affects the substantive law. Accordingly, no inconsistency arises.
   

Discrimination – Section 19

10. 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 Ngāti Hauā 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 Ngāti Hauā, 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.

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

Yours faithfully Debra Harris

Crown Counsel

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).
[3] 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 Ngāti Haua 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.