Home | Databases | WorldLII | Search | Feedback New Zealand Bill of Rights Act Reports

Iwi and Hapu of Te Rohe o Te Wairoa Claims Settlement Bill (Consistent) (Sections 19, 20, 27) [2016] NZBORARp 57 (2 December 2016)

Last Updated: 14 January 2019

This version is an uncorrected OCR version.

1. 2 December 2016
2. Attorney General
3. Iwi and Hapu of Te Rohe o Te Wairoa Claims Settlement Bill (PCO 18973/5.19) – Consistency with the New Zealand Bill of Rights Act 1990
4. Our Ref: ATT395/263
5. We have considered the Iwi and Hapu o Te Rohe o Te Wairoa Claims Settlement
   Bill ("the 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.
6. The Bill effects a final settlement of the iwi and hapu of Te Rohe o Te Wairoa

historical claims as defined in the The Bill provides for acknowledgements and

an apology as well as cultural and commercial redress. Measures for cultural redress include protocols for Crown minerals and taonga tuturu, a statutory acknowledgement by the Crown of the statements made by the iwi and hapu of Te Rohe o Te Wairoa of their association with certain statutory areas together with deeds of recognition for the specified areas and an overlay classification applying to certain areas of land.

7. The Bill also transfers to the iwi and hapu of Te Rohe o Te Wairoa various items of
   cultural and commercial redress.
8. The Bill does not prima 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 iwi and hapu of Te Rohe o Te Wairoa 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 the iwi and hapu of Te Rohe o Te Wairoa, no other persons or groups who are not party to those claims ate 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.

3786883_1.DOCX

2

significance to non-Maori. However, the reasoning in paragraph 4 above also applies to clause 95 and on that basis s 19 is not infringed. To the extent s 19 might be engaged, any infringement is justified by the objective of ensuring 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

6. Clause 15 of the Bill provides that the settlement of the historical claims is final It
   excludes the jurisdiction of the Courts, the Tribunal and other judicial bodies to inquire into the historical claims, the deed of settlement, the Iwi and Hapu of Te Rohe o Te Wairoa Claims Settlement Act ("the Settlement Act") or the redress provided. Jurisdiction remains in respect of the interpretation or implementation of the deed of settlement or the Settlement Act. The Waitangi Tribunal also retains limited jurisdiction in relation to the transfer of any portion of the Crown interest to any "other Patunamu claimant" as provided for in clause 85(3) and clauses 91-94.
7. Legislative determination of a claim ought not conventionally to fall within the scope
   of judicial review.2 However to the extent 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.
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 the exclusion was consistent with articles 14 and 27 of the International Covenant on Civil and Political Rights, which are comparable to ss 20 and 27(2) of the Bill of Rights Act.3

Exclusion of remedy of compensation

10. Clause 24(3) of the Bill excludes damages and other forms of monetary
    compensation as a remedy for any failure by the Crown to comply with a protocol under the Bill.
11. This clause may be seen to raise the issue of consistency with s 27(3) of the Bill of
    Rights Act, namely the right to bring civil proceedings against the Crown and have these heard according to law in the same way as civil proceedings between individuals. However, clause 24(3) affects the substantive law and does not fall within the ambit of s 27(3) of the Bill of Rights Act, which protects procedural rights.4 Accordingly, no inconsistency arises.
12. The same reasoning applies to clause 60(3) of the Bill which excludes damages and
    other forms of monetary compensation as a remedy for a failure by the Crown to comply with a partnership agreement made under the Bill.

2 Westco Logan Limited v Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40 (HC).

3 Apirana Mahuika v New Zealand Communication Number 547/1993 UN Doc CCPR/C/70/D/547/1993 (2000).

4 Westco Logan Limited v Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40 (HC) at 55: "[slection 27(3) ... cannot restrict the power of the legislature to determine what substantive rights the Crown is to have. Section 27(3) merely directs the Crown shall have no procedural advantage in any proceeding to enforce rights if such rights exist."

3

Review of this advice

13. This advice has been reviewed in accordance with Crown Law protocol by Debra

Harris, Crown Counsel.

Helen Carrad Crown CoHonel