CCPR/C/70/D/547/1993
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5.10 Following the signing of the Deed of Settlement, the authors and others initiated legal
proceedings in the High Court of New Zealand, seeking an interim order to prevent the
Government from implementing the Deed by legislation. They argued inter alia that the
Government's actions amounted to a breach of the New Zealand Bill of Rights Act 1990 8 . The
application was denied on 12 October 1992 and the authors appealed by way of interlocutory
application to the Court of Appeal. On 3 November 1992, the Court of Appeal held that it was
unable to grant the relief sought on the grounds that the Courts could not interfere in
Parliamentary proceedings and that no issue under the Bill of Rights had arisen at that time.
5.11 Claims were then brought to the Waitangi Tribunal, which issued its report on 6 November
1992. The report concluded that the settlement was not contrary to the Treaty except for some
aspects which could be rectified in the anticipated legislation. In this respect, the Waitangi
Tribunal considered that the proposed extinguishment and/or abrogation of Treaty interests in
commercial and non-commercial fisheries was not consistent with the Treaty of Waitangi or with
the Government’s fiduciary responsibilities. The Tribunal recommended to the Government that
the legislation make no provision for the extinguishment of interests in commercial fisheries and
that the legislation in fact affirm those interests and acknowledge that they have been satisfied,
that fishery regulations and policies be reviewable in the courts against the Treaty's principles,
and that the courts be empowered to have regard to the settlement in the event of future claims
affecting commercial fish management laws.
5.12 On 3 December 1992, the Treaty of Waitangi (Fisheries Claims) Settlement Bill 1992
was introduced. Because of the time constraints involved in securing the Sealords bid, the Bill
was not referred to the competent Select Committee for hearing, but immediately presented and
discussed in Parliament. The Bill became law on 14 December 1992. It is recorded in the
preamble to the Act that:
“The implementation of the Deed through legislation and the continuing relationship
between the Crown and Maori would constitute a full and final settlement of all Maori
claims to commercial fishing rights and would change the status of non-commercial
fishing rights so that they no longer give rise to rights in Maori or obligations on the
Crown having legal effect but would continue to be subject to the principles of the Treaty
of Waitangi and give rise to Treaty obligations on the Crown.”
The Act provides inter alia for the payment of NZ$ 150,000,000 to Maori. The Act also states in
section 9, that “all claims (current and future) by Maori in respect of commercial fishing .... are
hereby finally settled” and accordingly
“The obligations of the Crown to Maori in respect of commercial fishing are hereby
fulfilled, satisfied, and discharged; and no court or tribunal shall have jurisdiction to
inquire into the validity of such claims, the existence of rights and interests of Maori in
commercial fishing, or the quantification thereof, ....”
8
Breaches were claimed of sections 13 (freedom of thought, conscience and religion), 14 (freedom of
expression), 20 (rights of minorities) and 27 (right to justice).