Ngati Tama Claim Settlement Bill

4 April 2003 

Attorney-General

Ngati Tama Claim Settlement Bill - PCO 4553/5 
Our Ref: ATT114/1197(6)

1. We have considered the above Bill for consistency with the New Zealand Bill of Rights Act 1990 ("the Bill of Rights"). We advise that the Bill appears to be consistent with the Bill of Rights.

2. The Bill sets out in detail the settlement between the Ngati Tama people and the Crown, with a view to this being a final settlement under the Deed of Settlement and this legislation.

3. The Bill provides that the settlement of Ngati Tama claims (as defined in clause 11), to be effected by the deed of settlement and this legislation, is final (clause 12). The Bill excludes courts, judicial bodies and tribunals from considering the final settlement, including the validity of the deed of settlement and the adequacy of the benefits provided to the Ngati Tama people under the Deed or the Bill (clause 12(3)). The jurisdiction of the Waitangi Tribunal is specifically excluded (clause 13).

Section 27(2) BORA issue

4. The clauses in the Bill ousting the jurisdiction of the Courts and the Tribunal (clauses 12 and 13) raise questions about compliance with s 27(2) of the Bill of Rights (the right to seek judicial review).

5. While clause 12 does limit the ability to bring judicial review, our view is that, looked at in context, there is probably no breach of s 27(2) and in any event, would be a justified limit in terms of s 5. Our conclusion that there is probably no breach of s 27(2) is based on the fact that this Bill reflects a reciprocal agreement between two parties who have agreed on the effect that settlement would have on their ability to take future claims. We note that it is relevant that the deed of settlement was only signed after the Crown was satisfied there was the appropriate mandate to enter into such an agreement.

6. We note that this is the same approach as we took in respect of the Ngai Tahu settlement (see our advice dated 24 March 1998), the Pouakani settlement (see our advice dated 12 September 2000) and the Te Uri o Hau Settlement (see our advice dated 22 November 2001). Those in turn reflected the approach taken in respect of other Treaty settlements-the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and the Waikato Raupatu Claims Settlement Act 1995. The approach appears still to be sound.

7. We accept that it could be argued that the clause represents a prima facie breach of the rights of those persons (if any) within the iwi who dispute the mandate or the settlement process. Such an approach rejects the idea that the existence of a mandate, and the consequent reciprocal agreement, means there is no prima facie breach. However, even taking that approach it is our view that the ouster provisions would clearly be a justified limitation under s 5 of the Bill of Rights. The limitation is justified for the reasons discussed above, namely that the legislation reflects a reciprocal agreement between two parties who have agreed on the effects settlement would have on their future claims. Further we note the Bill specifically does not exclude the jurisdiction of Courts, judicial bodies or Tribunals (including the Waitangi Tribunal) in respect of the interpretation or the implementation of the deed or the Bill (clauses 12(4) and 13).

Section 27(3) BORA issue

8. Clause 22(3) of the Bill raises the issue of compliance with s 27(3) of the Bill of Rights, 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.

9. Clause 22(3) of the Bill excludes damages as a remedy in respect of a public law action against the relevant Minister who issued a protocol alleging failure to comply with his or her obligations under the protocol. This clause affects the substantive law and does not in our view fall within the ambit of s 27(3) which protects procedural rights. Accordingly, clause 22(3) of the Bill is not inconsistent with s 27(3) of the Bill of Rights.

Section 14 BORA issue

10. Clause 20 of the Bill raises the issue of compliance with s 14 of the Bill of Rights. Section 14 protects the right to "freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind in any form".

11. Clause 20 provides for protocols to be issued in the form set out in the Cultural Redress Schedule in the Deed of Settlement. One of those protocols, the DOC Protocol set out at pp134-150 of the Deed, raises freedom of expression issues. Clause 7.5.5 of the DOC Protocol provides that "the Department will work with Ngati Tama at the area office level to "when issuing concessions to carry out activities on the land administered by the Department, request that the concessionaire consult with the Governance Entity before using cultural information of Ngati Tama".

12. A requirement for consultation prior to use of information potentially limits the right to impart information protected by s 14. However, after consideration we do not consider clause 7.5.5 of the DOC Protocol and clause 20 of the Bill represent a prima facie breach of s 14. First, there is no mandatory requirement for a concessionaire to consult, only a request. Secondly, clause 2 of the Bill expressly provides that the protocols do not restrict the ability of the Crown to perform its functions in accordance with the law, which necessarily includes the Bill of Rights. Accordingly, any protocol issued under clause 20 must comply with the Bill of Rights.

13. We note, however, that for the avoidance of doubt it may be prudent to include in clause 21(a) a specific reference to the Bill of Rights. Whilst BORA is plainly included in the earlier expression of "in accordance with the law", the inclusion in the Act of an express reference might emphasise the need to ensure Protocols are BORA consistent. We stress, however, that the absence in the Bill of such an express provision does not raise a s 7 consistency concern.

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 Ngati Tama Claim 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.