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Tauranga Moana Iwi Collective Redress Bill (Consistent) (Sections 19, 27(3)) [2015] NZBORARp 55 (7 October 2015)

Last Updated: 3 March 2019

Tauranga Moana Iwi Collective Redress Bill

7 October 2015 Attorney-General

Tauranga Moana Iwi Collective Redress Bill (PCO 16704/2.5) — Consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/237

1. We have considered the above Bill for consistency with the New Zealand Bill of Rights Act

1990 (“the Bill of Rights Act”). The Bill appears consistent.

2. The Bill gives effect to the Tauranga Moana Iwi Collective deed dated 21 January 2015, signed for and on behalf of the Crown, trustees of Ngā Hapū o Ngāti Ranginui Settlement Trust, Ngāi Te Rangi Settlement Trust, and Te Tāwharau o Ngāti Pūkenga Trust, and on behalf of the Tauranga Moana Iwi Collective Limited Partnership.
   
3. It provides cultural redress in the form of:
   

3.1 a statutory acknowledgement by the Crown of statements made by Tauranga Moana Iwi of their cultural, historical, spiritual, and traditional association with certain areas, and the effect of that acknowledgement;

3.2 the establishment of a joint board to administer the Mauao Historic Reserve; and

3.3 the establishment of Te Kūpenga Framework for the conservation of Te Kūpenga area.

4. It also provides commercial redress in the form of empowering the Crown to transfer licensed land, and giving the Tauranga Moana Iwi Collective Limited Partnership a right of first refusal over certain land.
   
5. It is proposed to introduce the Tauranga Moana Iwi Collective Redress Bill in an omnibus Bill, together with the Ngā Hapū o Ngāti Ranginui Claims Settlement Bill. On 22 June 2015 you accepted our advice that the latter Bill is also consistent with the Bill of Rights Act.
   

Whether s 19 at issue

6. By conferring assets and rights on Tauranga Moana Iwi that are not conferred on others, the Bill does not prima facie limit the right to freedom from discrimination affirmed by s 19 of the Bill of Rights Act. 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 claims brought by Tauranga Moana Iwi, no other persons or groups who are not party to those claims are in

comparable circumstances. Excluding others from those entitlements does not give rise to any differential treatment for the purpose of s 19.

Whether s 27(3) at issue

7. Clause 15(3) of Schedule 2 to the Bill excludes damages and other forms of monetary compensation as a remedy for any failure by the Crown to comply with the conservation relationship agreement in relation to Te Kūpenga.
   
8. This clause may be seen to limit s 27(3) of the Bill of Rights Act, namely the right to bring civil proceedings against the Crown and have those heard according to law in the same way as civil proceedings between individuals. However, cl 15(3) affects the substantive law and does not fall within the ambit of s 27(3), which protects procedural rights. [1]
   

Daniel Perkins

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 Tauranga Moana Iwi 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.

Footnotes

[1] Westco Lagan Ltd v Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40 (HC) at [63]: “Section 27(3) ... cannot restrict the power of the legislature to determine what substantive rights 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.”