Hon Christopher Finlayson

Part 2 Provisions relating to transfers of assets, allocation principles, Crown agreed proportion, and DSP properties

CHRISTOPHER FINLAYSON (National) : I would really be grateful to receive the comments of the Minister in the chair, the Hon Mita Ririnui, on an issue. In my earlier contribution I dealt in detail with schedule 2 and particularly with the adjudication part, which is to be completed by 25 June 2011. I focused on clause 6(15) in schedule 2, which provides that a “decision of the adjudication panel will be final and binding on all the parties.” I said the authorities have suggested that the effect of that clause would not be to oust the jurisdiction of the court in judicial review. My personal view is that maybe it should do so.

But I come to clause 7 in Part 2 of the bill, which may provide us with some guidance. Clause 7(1) is the standard privative clause, and it is not dissimilar to section 6 of the Treaty of Waitangi Act 1975, as amended by section 40 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. In fact, it is very similar, because section 40 provides: “… the Tribunal will not have jurisdiction to inquire or further inquire into, or make any finding or recommendation in respect of,— … Commercial fishing … The Deed of Settlement … or … Any enactment …”. In a 1996 case the Court of Appeal stated that the effect of that clause—the so-called privative clause—in section 6(7) of the Treaty of Waitangi Act was to oust the jurisdiction of the tribunal.

Then we come to clause 7(2) of this bill, which is an interesting clause. It states that “Subsection (1) does not exclude the jurisdiction of a court, tribunal, or other judicial body in respect of the interpretation or implementation of the deed of settlement or this Act.” So any question of the interpretation of the legislation, which would include the schedules, obviously, would be available in jurisdictional terms for a court or a tribunal to consider, as would any question of implementation.

It would seem on the face of it that the jurisdiction of the court is not ousted and that clause 6(15) of schedule 2 may not be the end of the road. I really think that we ought to be crystal clear about this, because I believe, based on my experience of the fisheries allocation saga, that there could well be litigation, although I agree with what my colleagues have said—that given the parties involved and the desire to reach a settlement, one would certainly hope that there would be a conclusion of the allocation debate, if there is to be a debate, by 25 June 2011. But the Minister’s contribution on the allocation model and on whether it is intended to be final and oust the jurisdiction of the courts is very important, because on the face of it I do not think it does that.