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Ngati Koroki Kahukura Settlement Bill (Consistent) (Sections 19, 20) [2013] NZBORARp 37 (3 October 2013)

Last Updated: 14 April 2019

Ngāti Koroki Kahukura Settlement Bill

Advice provided to the Attorney-General on the Ngati Koroki Kahukura Settlement Bill

3 October 2013 Attorney-General

Ngāti Koroki Kahukura Settlement Bill - (PCO 17320/3.14) – Consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/204

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 that the Bill appears to be consistent with the Bill of Rights Act.
   
2. The Bill effects a final settlement of the Ngāti Koroki Kahukura Claims as defined in the Bill. The Bill transfers to Ngāti Koroki Kahukura various items of cultural and commercial redress. Some cultural redress properties are vested in fee simple, some in fee simple to be administered as reserves and some to be administered as Māori reservations. The Bill

records the significance of Maungatautari and the Waikato River to Ngāti Koroki Kahukura. It provides for Maungatautari Mountain Scenic Reserve to be registered in the name of Te Hapori o Maungatautari (the Maungatautari community comprising iwi with customary interests in Maungatautari and members of the wider community connected with Maungatautari. The Bill provides Ngāti Koroki Kahukura with various associated rights in respect of culturally significant matters including statutory acknowledgements, and Deeds of Recognition.

Discrimination – Section 19

3. The Bill does not prime-facie limit the right to freedom from discrimination affirmed by s 19 of the Bill of Rights Act through conferring assets or rights on Ngāti Koroki Kahukura 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 Koroki Kahukura, 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 s 19 therefore arises by excluding others from the entitlements conferred under the Bill.

Privative Clause

4. The Bill provides in clause 15 that the settlement of the historical claims is final and excludes the jurisdiction of the Courts, the 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 Ngāti Koroki Kahukura Claims Settlement Act.
   
5. Legislative determination ought not conventionally to fall within the scope of judicial review. However to the extent that any excluded matters could be susceptible to judicial review, clause 15 constitutes a justified limit on the right affirmed by s 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 s 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 that the exclusion was consistent with articles 14 and 27 of the International Covenant of Civil and Political Rights, which are comparable to s 20 and 27 (2) of the Bill of Rights Act.
   

Review of this advice

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

Helen Carrad

Senior 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 Bail Amendment Bill 2012. 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.