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Te Hiku Claims Settlement Bill (Consistent) (Sections 19, 20, 27(2)) [2014] NZBORARp 3 (11 February 2014)

Last Updated: 24 March 2019

Te Hiku Claims Settlement Bill

11 February 2014 Attorney-General

Te Hiku Claims Settlement Bill - (PCO 15369/6.2) – Consistency with the New Zealand Bill of Rights Act 1990

1. We have considered the Te Hiku Claims Settlement Bill (the 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 claims 1 of four iwi - Ngāti Kuri, Te Aupouri, Ngāi Takoto and Te Rarawa. It also provides for the Ngāti Kahu Acumulated Rentals Trust 2. It is intended to divide the respective parts of the Bill into separate bills at the committee of the Whole House stage.
   
3. The Bill transfers to the respective settling iwi various items of cultural and commercial redress. Some cultural redress properties are vested in representative bodies of the four iwi as tenants in common. Other cultural redress includes the establishment of Te Oneroa a Tōhē Board comprising representation of all four iwi and the Northland Regional Council and Far North District Council. The purpose of the Board is to provide governance and

direction to all those who have a role in, or responsibility for, Te Oneroa a Tōhē management . The Board is responsible for preparing a beach management plan that identifies the vision, objectives and desired outcomes for Te Oneroa a Tōhē management 3 area. The Bill also establishes Te Hiku o Te Ika Conservation Board comprising four members appointed by the four iwi and four members appointed by the Minister of

Conservation. The Bill provides for the preparation of a draft Te Hiku o Te Ika Conservation Management Strategy by the Board.

Discrimination – Section 19 Bill of Rights Act

4. 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 the respective iwi 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, 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.
   
5. Clauses 150, 332, 535 and 745 reserve a special right of access to protected sites on certain licensed land transferred to the respective iwi. This right of access applies to Maori for whom the protected sites are of special spiritual, cultural or historical significance. It is

conceivable that this clause raises a section 19 issue if the protected sites also have significance to non-Maori. However, the reasoning in paragraph 4 above also applies to these clauses and on that basis s 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 – section 27(2) Bill of Rights Act

6. The Bill provides 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 Settlement legislation. 4
   
7. Legislative determination ought not conventionally to fall within the scope of judicial review. 5 However to the extent that any excluded matters could be susceptible to judicial review, the relevant clauses constitute 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.
   
8. Any limit on minority rights under s 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 of Civil and Political Rights, which are comparable to s 20 and 27 (2) of the Bill of Rights Act. 6
   

Exclusion of Remedy of Compensation – s 27(3) Bill of Rights Act

10. Clauses 126, 308, 508 and 705 exclude any form of monetary compensation as a remedy for any failure by the Crown to comply with a protocol issued under the respective parts of the Bill. We have considered whether these provisions limit the right to bring civil proceedings against the Crown affirmed by s 27(3) of the Bill of Rights Act. However, s 27(3) protects only procedural rights while these clauses 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.
    

Helen Carrad

Crown Counsel

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 Te Hiku 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.

Footnotes

1. Clause 13 defines Ngāti Kuri, clause 14 defines the historical claims of Ngāti Kuri, clause 193 defines Te Aupouri, clause 194 defines the historical claims of Te Aupouri, clause 397 defines Ngāi Takoto, clause 398 defines the historical claims of Ngāi Takoto, clause 578 defines Te Rarawa and clause 579 defines the historical claims of Te Rarawa.
   
2. Part 14 would become the Ngāti Kahu Accumulated Rentals Trust Bill. It preserves the Crown’s ability to provide a portion of the accumulated rentals payable for the Aupouri Forest for Ngāti Kahu in the event that the Crown and Ngāti Kahu enter into a deed of

settlement or a binding order is made in favour of Ngāti Kahu under s 8HC of the Treaty of Waitangi Act 1975.

3. Clause 65.
   

4. See clauses 15, 195, 399 and 580.

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