October 1997 Contents

Mäori Land Court & Appellate Court

Invalid lease, application for payment for occupation and use

New Auckland office for Mäori Land Court

Waitangi Tribunal

Nothing this month

Other Courts and Tribunals

Fisheries—challenge to annual quota lease round—whether socio-economic factors taken into account

Environment—location of television tower on sacred hill

Fisheries allocation—procedure for mandating of groups

Criminal law—protection of mana and self defence

Tax—charitable status under Mäori Trust Boards Act 1955

Parliament

Ngäi Tahu (Pounamu Vesting) Act 1997 & Crown Minerals Amendment Act 1997

Crown Settlement Offer to Ngäi Tahu

 

Mäori Land Court & Appellate Court

Trustees of Motiti North E9 v Aukaha

59 Tauranga MB 2. 8 September 1997. Carter J

Trustees of a block of land on Motiti island purported to lease it to the respondents for a period of 7 years, the first 3 years being rent free because of improvements the lessee was to make. However, the trustees failed to gain the necessary consent for the lease from the Land Valuation Tribunal, meaning that under s26(4) Land Settlement Promotion and Land Acquisition Act 1952 the lease transaction was deemed to be “unlawful and of no effect”. The respondent lessees were in possession of the land for some 11 years, but did not pay rent and no rent was demanded until 10 years had passed. The trustees now sought rent under the lease, or rent for the use and occupation of the land or both, but limited their claim to the last 6 years of the respondents occupation of the land—taking into account the effect of the Limitations Act 1950.

Held: as to jurisdiction; s18(1)(a) Te Ture Whenua Mäori Act 1993 (land court has jurisdiction to determine any claim ‘at law’ to the proceeds of an alienation of an interest in Mäori freehold land) does not allow s7 Illegal Contracts Act 1970 to be applied to this situation. The 1970 Act provides for a form of relief from the law and jurisdiction which is specifically limited to courts other than the land court. In any event, this matter did not concern the proceeds of an alienation—since the lease was of no effect. If anything, s18(1)(d) would be more appropriate. Even if the land court did have jurisdiction under the 1970 Act, on the facts it was unlikely relief would be granted following the expiry of the lease.

The court declined to exercise any form of jurisdiction to validate the lease.

As to the appropriate payment for the use and occupation of the land for the last 6 years the respondents were on the land; in Joe v Young [1964] NZLR 24 the Court of Appeal considered a similar factual situation of an unlawful lease under s26(4) Land Settlement Promotion and Land Acquisition Act 1952, and there found that the lease document, while of no effect, could be used as some evidence of the parties joint estimate of an appropriate rental, although it should not be the only evidence relied on. Relevant factors in determining a fair payment were:

•  The respondents were aware early in their occupation of the land that the lease was unlawful without the consent under the 1952 Act, and did not pay any rental for that reason, and were happy to see the Limitations Act 1950 limit the total rent they might have to pay, leaving an impression that they wished to get away with paying as little as possible;

•  Despite the invalidity of the lease document, the respondents were in a powerful position legally had the trustees attempted to terminate their occupation during the term of the purported lease;

•  Nevertheless, the respondents had not been given one of the essential ingredients of a lease, certainty of tenure. They were essentially tenants at will and the trustees might have applied at any time to recover possession of the lease, and given them at best one month’s notice to quit.

The payment should therefore be what was agreed as a rental in the lease document, discounted to take into effect these factors ($50 acre discounted by 33 1/3% for the period 1990-1993 and for the period not covered by the lease document, 1993-1996, the value provided by a local valuer minus 1/3 given that the respondents were essentially tenants at will).

A claim for interest on the judgment amount from the appropriate date under the Judicature Act 1908 should be largely rejected, since the trustees had failed to make demands for rent, and to grant interest now would confer an undeserved benefit on the trustees. Modest costs to be awarded to the trustees.

 

New Mäori Land Court office

Department for Courts media release 23 October 1997

A Mäori Land Court Information Office for Auckland will be officially opened on 14 November 1997 and be open for business from the 17 November. It will be located at 141 Kolmar Road, Papatoetoe.

Waitangi Tribunal

Nothing this month

 

Other courts & tribunals

Te Runanga O Raukawa Inc v The Treaty Of Waitangi Fisheries Commission

CA 178/97. Court of Appeal. 14 October 1997. Thomas J, Keith J, Tipping J

This was an appeal against a High Court judgment dismissing an application for judicial review of decisions of the fisheries commission on the annual quota lease rounds (see Mäori LR August 1997 p3). The background was that in 1983 New Zealand’s exclusive economic zone was divided into 10 Fisheries Management Areas (FMAs).  Each fishstock was defined by a Quota Management Area (QMA), which could be the same as an FMA or involve more than one FMA.  The commission’s approach has been to make quota available for annual lease to iwi on an FMA by FMA basis. It had not allocated any defined part of each FMA quota to the individual iwi within an FMA, but had specified the total available for lease to all the iwi in each FMA and has left it to the individual iwi to determine among themselves how the quota allocated to that FMA was to be divided.

The appellants, whose iwi fell within FMA 8, claimed that this approach of the commission failed to accord with s8(a) Mäori Fisheries Act 1989, which required the commission when considering whether to grant assistance to any Mäori or group of Mäori, to have regard to Mäori custom, economic considerations, and social considerations. The appellants also claimed that, when there was a dispute among iwi in FMA 8, which the appellants brought before a disputes committee of the commission, the commission failed to bring its own independent judgment to bear in terms of the matters in s8(a) and instead simply endorsed an earlier majority vote among the iwi in FMA 8 which went against the appellants position.

Held: the appeal should be dismissed. This case essentially challenged the reliance on FMAs, and reliance on iwi reaching agreement.

Raukawa had not made its concerns clear enough at an early stage in the dispute, but since this case concerned matters a decisionmaker must take into account, that was not relevant, except perhaps as to relief which might be given.

The commission argument that socio-economic factors applied only to its initial decision to grant assistance must be rejected. Those factors must also apply to the form and amount of assistance granted.

In s8(a) the words “have regard to” mean simply that the commission must consider the statutory criteria in making its decisions under that section.  What, if any, weight the commission gives to a particular criterion in the particular case is for the commission to decide.  All that is necessary is for the commission to turn its mind to each criterion in considering whether to grant assistance.  The court cannot review how the commission weights the three criteria inter se.  Nor can it review a decision by the commission to prefer one criterion over one or both of the others unless the commission’s ultimate decision is unreasonable or irrational in administrative law terms—which was not alleged here.

The appellants argued that the commission should have been considering assistance on an iwi by iwi basis, either nationally or at least within the relevant FMA area, and that by failing to do so it had had no genuine regard to economic and social considerations. This must be rejected. There is nothing unlawful in a regime which takes as its starting point the FMA structure, and an individual iwi by iwi approach either nationwide or within FMA is not required by the legislation.  It may be one way of having regard to economic and social considerations, but it is not the only way. The commission was entitled to have a general policy using coastline and population to reflect the statutory criteria, even if there was room for argument whether they do so adequately. The commission had therefore had genuine regard to economic and social considerations. The Moriori case (CA 238/96, 14 October 1996. Mäori LR October 1996 p4) could be distinguished on the facts, as here the appellants had in their early complaints to the commission in effect adopted the population approach, albeit arguing that population should receive greater weighting.

While there was no claim of unreasonableness here, such a contention would be extremely hard to establish, given that the commission had had regard to the statutory criteria and is a specialist body set up by Parliament to make the difficult and sensitive decisions inherent in deciding how to give Mäori assistance in the fishing arena.

As to whether the commission failed to have regard to statutory criteria when it made a decision on the dispute brought before it, and whether it simply rubber stamped the majority decision. In allowing Raukawa to put its individual case to the disputes committee the commission effectively allowed Raukawa to present its case on an individual iwi basis.  The contrast between Raukawa’s position and that of other iwi, at least within the FMA8 area, was inherent in Raukawa’s submissions. Also, the evidence demonstrated that the disputes committee had had regard to population, and coastline and population where involved in the dispute, so that the committee had indirectly considered economic and social considerations, as well as Mäori custom.

The commissioners who sat on the disputes committee were aware of the commission’s view that a compromise was appropriate between “rights based” and “needs based” allocation models discussed at commission meetings. That compromise was inherent in the majority decision which Raukawa was complaining of, and represented a fusion of Mäori custom and economic and social considerations. The commission and disputes committee had genuine regard to economic and social considerations via population, although “implicitly acknowledging that in the end a more sophisticated approach than population might need to be evolved.”

The fact that the committee was also concerned about upsetting the majority decision arrived at by the iwi did not invalidate the decision. This was a consideration of Mäori custom. But socio-economic matters had undoubtedly also been considered.

Noted that since at least one of the declarations sought by the appellants would have had implications for iwi beyond FMA 8, consideration should have been given to broader notice or directions on joinder and notice at an early stage in the proceedings.

[Ed: the court also commented on how the commission would apply the s8 criteria if all iwi agreed to a distribution of lease quota within an FMA. In practical terms, an issue is not likely to arise if all iwi have agreed on the allocation.  In such a case however, there would be a tension between Mäori custom which focuses on consultation, discussion and endeavouring to reach agreement; and economic and social considerations “which may have a different focus.”]

TV3 Network Services Ltd v Waikato District Council & The Tainui Hapu & Others

AP55/97. High Court Hamilton. 12 September 1997. Hammond J

This was an appeal by TV3 against an environment court decision (Mäori LR September 1996 p5) that a television translator tower not be installed on a hill known as ‘Horea’ at Raglan Harbour.

Under the transitional district plan the structure was a non-complying activity requiring discretionary consent, under the proposed district plan as notified it was a discretionary activity, but it would be a controlled activity (consent must be granted but subject to conditions) according to amendments intended for the plan following various submissions received on it. The proposed plan referred to preservation of waahi tapu.

The Environment Court had reversed a decision of the consent authority, holding that the structure would offend Mäori heritage and ‘waahi tapu”—which is not defined in the Resource Management Act 1991, but is defined in the Historic Places Act 1993 s2 as “a place sacred to Mäori in the traditional, spiritual, religious, ritual and mythological sense”. It was admitted there were no actual archaeological remains on the proposed site.

Held: Part II and in particular ss 5(2), 6(e), 7 & 8 of the RMA 1991 are very important provisions which should not be under-estimated or read down, since they contain the spirit of the new legislation. The legislation also changes the approach to planning theory so that “goal formation” is the most important part of the planning process. This is a considerable change from former town and country planning legislation where national objectives could be treated as relevant but not conclusive of matters.

As to the planning instruments which applied; while, following the case of Osmond v Waipa District Council [1996] NZRMA 498, the RMA 1991 was amended in 1996 to provide that the courts should have regard to proposed plans and amendments to them as soon as councils had made decisions on those amendments, the 1996 amendment did not have retrospective effect, and this case must be decided on the basis that the transitional plan was operative and the consent authority had a discretion whether to grant the consent or not.

TV3 claimed that, even though not bound by the proposed plan, more weight should have been given to it by the Environment Court, and the Tainui approach, in claiming the whole of Horea property as waahi tapu, was tantamount to an exclusionary veto, something ruled to be impermissible in the recent case of Minhinnick v Watercare Services Ltd (HC86/97 unreported 3 September 1997, see Mäori LRSeptember 1997 p5). That case also held that not every activity involving waahi tapu will be offensive and objectionable.

It is correct that per se objections by Mäori should not be allowed, and that a reasoned approach must be taken as to whether, objectively, a particular activity is intrinsically offensive to an established waahi tapu, or other cultural considerations. But here the Environment Court had found that the overall cultural uniqueness of Horea was significant and should outweigh the technological activity for which consent was sought.

“The developer derives her justification from the belief that she stands on “the common good”; in this case, better television signals. Strip the land of dignity, and doubtless the justification is powerful. But for others—as for Tainui here - what occurs is then culturally debilitating: what is lost is something to do with the integrity, and the spirit of a place, that no element of economic advancement can ever justify.”

The Environment Court exercised its discretion consistently with the purposes of the RMA 1991 in assessing what was essentially a clash between technology and culture, and preferred the latter on the basis of the available evidence. This is precisely the sort of choice the RMA 1991 contemplates.

The fact that no sites or waahi tapu had been specifically identified in the proposed district plan was not fatal to the Environment Court decision. That court still exercised its discretion within the parameters allowed by the legislation and relevant plans.

The fact that it was admitted that the proposal raised no significant environmental effects, including effects on amenity values, and would have less impact than existing farming activities, was not conclusive. The effects of such a structure extend to more than disturbance of the ground, but include also the cultural effects of its physical presence on the site.

Nor had the Environment Court been wrong in deciding that, since the proposed structure would offend against matters of national significance under s6, it was relevant to look at whether suitable alternative sites existed. While the provisions of the RMA 1991 did not specifically mention the evaluation of alternative sites in this case, as a matter of commonsense, the consideration of suitable alternatives to a proposal are a fundamental planning concern, and there was nothing in the RMA 1991 to prevent the Environment Court taking that approach. Tainui submissions pointed out that consideration of alternative sites might come under s5(2)(c) (avoidance etc of adverse effects on the environment), s6(e), and s17. Also referred to were Aquaking (Anakoha Bay) v Malborough District Council (W71/97; 30 June 1997, see Mäori LR July 1997 p4), Haddon v Auckland Regional Council [1994] NZRMA 49, and Te Runanga o Taumarere v Northland Regional Council [1996] NZRMA 77. Nor was the fact that there were recorded archaeological sites in the locality of two of the alternative sites proposed by the Environment Court relevant, since the finding that the Horea site was not suitable for cultural reasons was determinative.

While the appeal would be dismissed, due to the 1996 amendment to the RMA 1991, TV3 could now apply for a resource consent for the translator as a controlled activity. Mediation between the parties would be an appropriate course to avoid extended litigation.

Te Runanga o Wharekauri Rekohu Inc v Treaty of Waitangi Fisheries Commission & Others (No 1)

CP 297/95. High Court Wellington. 11 September 1997. McGechan J

These proceedings concern who should have the mandate to represent Mäori and Moriori people in the Chatham Islands for the purpose of receiving assets from the fisheries settlement. This judgment determined some preliminary questions between two groups claiming to represent Ngäti Mutunga interests (Te Runanga o Wharekauri Rekohu Inc and Ngäti Mutunga o Wharekauri Inc). Both groups had, at the request of the fisheries commission, held hui to confirm their mandate to act for Ngäti Mutunga. The commission had laid out criteria for the holding of such mandating hui. The preliminary issue for decision was (1) whether either group had complied with the requirements the commission had set down; (2) whether either group accordingly qualified for recognition by the commission, and finally, (3) depending on the preceding answer and any other relevant factors, which group most closely satisfied the requirements of the commission to hold a mandate.

Held: the commission had set out certain requirements for a mandate:

The body must be incorporated;

•  Its representative character must be established by voting at or through a hui process. The commission was not interested in historical mandates;

•  There must be widespread, detailed, and advance public notification of the mandating hui;

•  Notice must be impartial—although there was no prohibition on other campaigning;

•  The meeting must be open to all members of the iwi concerned (if a faction convened it, they could not exclude others);

•  No particular proportion of the iwi members would be required to vote for the result to count;

•  Proxy voting was possible and proxy forms must be made widely available;

•  Non members of the iwi could attend but must not vote;

•  There must be checks to ensure non-members did not vote. The use of scrutineers was expected;

•  A simple majority of votes cast would carry the mandating decision;

•  There must be a list of attendees, and minutes (to be forwarded to the commission);

The broader picture was also looked at by the commission. “It is not a matter of exact compliance with details than the ability on the part of the Commission in the end to stand back and be satisfied that after widespread, informed, and fair opportunity to vote, a majority of those who actually troubled to vote did favour the body concerned, and it fairly can be said to be truly representative.” There may be situations, particularly where voting margins are small, where “ultimate judgmental elements” may be involved.

The commission also expected the body concerned to have a constitutional organisation suitable for the assets it would be called on to hold and manage. The body must be open to all members, demonstrate a “robust and democratic character safeguarding member’s ultimate control” and exhibit transparency and accountability in its operations.

Looking to the first question, at the level of both formal requirements, and the overall fairness in meeting the requirements, while both hui satisfied formal requirements re openess to all members of iwi, minutes taken, lists of attendees taken, basic requirements as to notice and timeliness of notice, at the level of fairness, both had problems. For Te Runanga o Wharekauri Rekohu Inc:

•  The considerable weight placed on proxy voting—which tended to undermine the idea of holding a hui in the first place;

•  Voting which was allowed to take place prior to discussion at the hui of the mandating issue;

•  The presence of one of the fisheries commissioners at one of the meetings, who expressed partisan views, rather than remaining neutral, raising an appearance of unfairness.

For Ngäti Mutunga o Wharekauri Inc:

•  Notice was highly marginal—all except one notice failed to refer to the fact that mandate issues would be considered at the hui;

•  Notice was not given to those outside the Chatham Islands;

•  Voting had been by standing up at the meeting, rather than by secret ballot;

•  There were inaccuracies between the numbers recorded at the meeting and numbers voting.

Consequently, neither group complied with the commission’s wider requirements for a “transparently fair process leading to a fairly demonstrated mandate”.

As to how both groups measured up to the commission standards of constitutional suitability, including requirements for regular elections of office holders, audited accounts, 75% voting for constitutional changes etc; Te Runanga o Wharekauri Rekohu Inc came closer with its openness to members, and the normal accountability procedures for an incorporated society (although there was no requirement for a 75% vote for constitutional changes). By contrast, Ngäti Mutunga o Wharekauri Inc had conflicting membership requirements and no membership for non-residents of the islands, and lacked some normal accountability requirements for an incorporated body eg ability for members to requisition meetings, poor provision for voting to replace the executive, no regular elections.

Both groups had demonstrated considerable failings in their approach to mandating hui. Given the situation of two groups claiming an exclusive mandate, where neither had sufficient numbers to carry the day, a strict comparison of the relative mistakes in each mandating hui was not worthwhile, and a broader approach was required. On that broader approach, both groups fell below commission requirements and the commission had been correct in refusing to recognise the mandate of either group.

Accordingly, the answer to the third question must be that there was no significant degree to which one body satisfied the commission requirements more than the other, except that Te Runanga o Wharekauri Rekohu Inc better satisfied the commission requirements as to constitutional suitability.

[Ed: the court noted that there had been no objections in terms of tikanga to the way in which the mandating hui had been run. Useful methods which the court noted were in use at the meetings included: videotaping of the meeting (although with an inadequate sound recording), checking off and listing of attendees as they entered the meeting, use of impartial observers and vote scrutineers, use of kaumätua to check whakapapa where voting rights were contested.]

Awarau v Police

AP3/97. High Court Whangarei. 6 August 1997. Morris J

The appellant appealed against his conviction for an assault, partly on the ground that he had been called a scavenger when visiting a local refuse tip, and that this had so affected his mana and integrity, that he had acted in self defence of his mana and that of his whänau, hapü and iwi.

Held: the evidence from the lower court did not show that the appellant had complained of being called a scavenger, and there was therefore no evidence before that court to support an appeal on that ground. In any event, the evidence that was available to the district court did not justify at all the criminal actions of the appellant. An appeal against the length and severity of the sentence would however be granted, on the ground that the lower court judge had commented that the appellant had ‘characteristically’ been expressing anger in a physical form for 25 years, when in fact his last conviction for assault had been 14 years earlier, and also on the basis of excellent testimonials from Sir Graham Latimer, among others, attesting to the high-standing of the appellant and his work in the community.

Declaration of trust for charitable purposes made under section 24B of the Mäori Trust Boards Act 1955—income tax consequences

Public ruling BR Pub 97/8. 1 August 1997. Commissioner of Inland Revenue

Sections CB4(1)(c)&(e) Income Tax Act 1994 provide exemptions from income tax for income derived from charitable trusts. Section 24B Mäori Trust Boards Act 1955 provides that boards may execute declarations for trust declaring that they stand possessed of assets upon trust for charitable purposes. Any income derived from the trust assets may be applied to purposes set out in ss24 and 24A of the 1955 Act. Such income is deemed to be for charitable purposes. There has been uncertainty whether the exemptions of the Income Tax Act apply to this income. This is because the income of trusts created under s24B are inevitably applied for the benefit of Mäori people related by whakapapa or bloodlines. The common law courts have consistently held that the phrase “charitable purposes” only covers purposes which are for the benefit of the community or an important class in the community (known as the ‘public benefit’ test). In Arawa Mäori Trust Board v Commissioner of Inland Revenue (1961) 10 MCD 391 it was decided that many of the purposes set out in s24/1955 are not charitable, and trusts for the benefit of persons related by blood fail the public benefit test. This potentially means that any trust created under s24B will fail to be for charitable purposes.

In this ruling, the commissioner determined that because s24B deems income derived from trusts created under that section to be charitable, the common law test of public benefit is not relevant. Accordingly, the exemptions under the Income Tax Act apply, provided the trust meets the other requirements of charitable status (that no person will derive a personal monetary profit from the trust, no conflicts of interest for trustees etc).

The ruling applies to all income derived by a Mäori Trust Board under the section during the income years 1 April 1997 to 31 March 2001.

The commissioner is considering as a separate matter whether to issue an interpretation statement on the question of whether, in general, trusts for the benefit of iwi pass the public benefit test.

The commissioner also commented in this ruling that s30(1)(c) Te Runanga o Ngäi Tahu Act 1996 successfully provides that Te Runanga, which replaces the Ngäitahu Mäori Trust Board, continues to enjoy the tax exemption under s24B which the former board enjoyed.

[Ed: this public ruling, under s91D Tax Administration Act 1994, is important for the growing number of situations where trust boards under the 1955 Act are being used as the vehicles for large Treaty settlements.]

Parliament

Ngäi Tahu (Pounamu Vesting) Act 1997

Crown Minerals Amendment Act 1997

No.s 81 & 82. Assent: 1 October 1997

The Ngäi Tahu (Pounamu Vesting) Act 1997 vests the property of all pounamu existing in its natural condition in the takiwä or tribal area of Ngäi Tahu in Te Runanga o Ngäi Tahu. Existing privileges are not affected, except that any royalties presently payable to the Crown will be passed over to Ngäi Tahu. Outstanding applications to exploit pounamu in the area affected by the Act will not be granted.

The Crown Minerals Amendment Act 1997 provides that persons wanting to prospect or mine minerals in any Crown land where the mineral is not the property of the Crown must enter into an access arrangement. In deciding whether to agree to such an arrangement the appropriate Minister is to consider, among other matters, the interests of the owner of the mineral.

The vesting act records that Ngäi Tahu intends to execute a deed vesting in the Mawhera Incorporation the pounamu in the catchment area of the Arahura River.

[Ed: this bill was noted at Mäori LR August 1996 p8. The Crown Proposals for the Settlement of Treaty of Waitangi Claims (December 1994), state that Mäori interests in natural resources (aside from land) are use and value interests only and it does not intend to negotiate claims based on ownership interests. This settlement appears to be an exception to that approach.

Royalties presently collected on pounamu mining, to be paid over to Ngäi Tahu from the passage of this legislation, are small. In the last 5 years they have amounted to just $2300. Independent 26 Sept 1997 p6.]

Crown Settlement Offer to Ngäi Tahu

23 September 1997

This settlement is lengthy (1800 pages) and complex (the full text of the settlement is available from www.executive.govt.nz). The general outline of the settlement has been noted in Mäori LR November 1996. Its detailed content will be reviewed in a series of items in this and the next two issues of the Mäori Law Review.

The redress

The full list of redress to be provided is as follows:

•  Payment of a $160 million plus interest to Te Runanga o Ngäi Tahu (Te Runanga).

•  Vesting in Te Runanga of title to Aoraki/Mount Cook followed by a gifting back to the Crown.

•  Outright transfer to Te Runanga of certain commercial properties.

•  Grant to Te Runanga of a right to purchase certain commercial properties, and farm and state forestry assets, including provision for the payment to Te Runanga of licence fees collected from the state forestry assets concerned.

•  Outright transfer to Te Runanga of the Crown’s interest in several high country stations,  subject to certain areas being gifted or leased back to the Crown and certain areas being subject to covenants relating to public access and conservation.

•  Rights of first refusal in favour of Te Runanga over certain Crown land and other assets (including Highbank hydroelectric power station, and Crown interests in the Milford, Christchurch, Dunedin and Invercargill airports).

•  Vesting in Te Runanga of:

    – certain taonga sites, some of which will be subject to management by the Minister of Conservation under protected private land agreements

    – the administration of certain reserves

    – title to the beds of Te Waihora, Muriwai (Coopers Lagoon) and Lake Mahinapua.

•  Redress relating to mahinga kai including:

    – acknowledgements of Te Runanga’s statement of Ngäi Tahu’s special association with a number of sites, including areas of land, geographic features, lakes, rivers and wetlands, through instruments known as “Topuni”, “Statutory Acknowledgements” and “Deeds of Recognition” and provision for involvement by Te Runanga in the management of certain sites through topuni and deeds of recognition;

    – a “statutory adviser” role for Te Runanga in respect of certain Crown owned land managed by the Minister of Conservation;

    – provision for a pou whenua to be placed in Kahurangi National Park;

    – provision of 72 “nohoanga entitlements” to Te Runanga;

    – changes to certain place names and amendment of the New Zealand Geographic Board Act 1946 to encourage use of Maori names on official maps;

    – provisions for appointment of persons nominated by Te Runanga on the New Zealand Geographic Board, the New Zealand Conservation Authority, Conservation Boards within the Ngäi Tahu claim area, the Guardians of Lake Wanaka and Lakes Manapouri, Monowai and Te Anau;

    – a statutory adviser role to Fish and Game Councils in respect of certain game birds;

    – provision for the issue of “protocols” by the Minister of Conservation on certain matters;

    – acknowledgement of Ngäi Tahu’s association with, and management input for Te Runanga in relation to, specified plant, bird and animal designated as “taonga species”;

    – increased Ngäi Tahu involvement in the management of certain fisheries, promulgation of regulations for managing customary fisheries, the re-establishment of temporary closure provisions in fisheries legislation and acknowledgment of Ngäi Tahu’s special association with certain “taonga fish species”;

    – a right of first refusal for Te Runanga to acquire up to 40% of the Total Allowable Commercial Catch with respect to five shellfish species, should they become subject to a Quota Management System, and the implementation of certain specific recommendations contained in the South Island Eel Plan;

    – involvement by Te Runanga with the Ministry for the Environment on improving the implementation of the Resource Management Act 1991;

    – a right for Te Runanga to acquire 10% of any authorisations to occupy coastal space which is allocated under coastal tendering or any similar future authorities which may be issued by the Crown in respect of its land within the takiwa of Ngäi Tahu Whänui; and

    – agreement by the Crown to conduct a full review of legislation relating to the protection of land-based historical and cultural heritage and to provide for the participation of Te Runanga in that review.

•  Redress directly to Ngäi Tahu beneficiaries who brought numerous small “ancillary claims”. This redress to include:

    – the vesting of land in beneficiaries of certain of the claims and provision for the transfer of land for others

    – provision of “Fenton entitlements” and “customary fishing entitlements” to some beneficiaries

    – the creation of an ancillary claims trust to trace and identify the beneficiaries of some of the ancillary claims

•  Identification by the Crown of the successors of the persons to whom land should have been allocated under the South Island Landless Natives Act 1906 and vesting title to certain land in them.

•  Closure of certain legal but unformed roads in the Arahura Valley and vesting of title to the land in the Mawhera Incorporation (subject to provision for continuing access for affected parties) and the creation of a historic reserve (to be vested in the Mawhera Incorporation) in the catchment of the upper third of the Arahura river.

•  Vesting of Maori freehold title to Rarotoka in Te Runanga (subject to a lease of one area of the island to the Maritime Safety Authority) and provision for the introduction of measures to recognise and provide for the creation of a fisheries area to be managed by Te Runanga adjacent to the island.

•  A statutory acknowledgment and deed of recognition in relation to Whenua Hou, a change in the official name of the reserve covering the island from the Codfish Island Nature Reserve to the Whenua Hou Nature Reserve, and the establishment of a committee of the Southland Conservation Board including Rakiura Maori relating to Whenua Hou, with provision for access for Ngäi Tahu to Whenua Hou.

•  Vesting of freehold title to the Crown Tï tï  Islands in Te Runanga, with the islands to be managed by an administering body comprising nominees of the Rakiura Tï tï  Committee and Te Runanga as if they were a nature reserve, subject to the customary right of Rakiura Maori to take tï tï .

•  Provision to maintain the relativity of the settlement sum.

The Crown apology

The full text of the proposed apology is as follows:

“1. The Crown acknowledges that it acted unconscionably and in repeated breach of the principles of the Treaty of Waitangi in its dealings with Ngäi Tahu in the purchases of Ngäi Tahu land.  The Crown further acknowledges that in relation to the deeds of purchase it has failed in most material respects to honour its obligations to Ngäi Tahu as its Treaty partner, while it also failed to set aside adequate lands for Ngäi Tahu’s use, and to provide adequate economic and social resources for Ngäi Tahu.

2. The Crown acknowledges that, in breach of Article Two of the Treaty, it failed to preserve and protect Ngäi Tahu’s use and ownership of such of their land and valued possessions as they wished to retain.

3. The Crown recognises that it has failed to act towards Ngäi Tahu reasonably and with the utmost good faith in a manner consistent with the honour of the Crown.  That failure is referred to in the Ngäi Tahu saying ‘Te Hapa o Niu Tireni!’ (‘The unfulfilled promise of New Zealand’)  The Crown further recognises that its failure always to act in good faith deprived Ngäi Tahu of the opportunity to develop and kept the tribe for several generations in a state of poverty, a state referred to in the proverb ‘Te mate o te iwi’ (‘The malaise of the tribe’).

4. The Crown recognises that Ngäi Tahu has been consistently loyal to the Crown, and that the tribe has honoured its obligations and responsibilities under the Treaty of Waitangi and duties as citizens of the nation, especially, but not exclusively, in their active service in all of the major conflicts up to the present time to which New Zealand has sent troops.  The Crown pays tribute to Ngäi Tahu’s loyalty and to the contribution made by the tribe to the nation.

5. The Crown expresses its profound regret and apologises unreservedly to all members of Ngäi Tahu Whanui for the suffering and hardship caused to Ngäi Tahu, and for the harmful effects which resulted to the welfare, economy and development of Ngäi Tahu as a tribe.  The Crown acknowledges that such suffering, hardship and harmful effects resulted from its failures to honour its obligations to Ngäi Tahu under the deeds of purchase whereby it acquired Ngäi Tahu lands, to set aside adequate lands for the tribe’s use, to allow reasonable access to traditional sources of food, to protect Ngäi Tahu’s rights to pounamu and such other valued possessions as the tribe wished to retain, or to remedy effectually Ngäi Tahu’s grievances.

6. The Crown apologises to Ngäi Tahu for its past failures to acknowledge Ngäi Tahu rangatiratanga and mana over the South Island lands within its boundaries, and, in fulfilment of its Treaty obligations, the Crown recognises Ngäi Tahu as the tangata whenua of, and as holding rangatiratanga within, the Takiwä of Ngäi Tahu Whanui.

Accordingly, the Crown seeks on behalf of all New Zealanders to atone for these acknowledged injustices, so far as that is now possible, and, with the historical grievances finally settled as to matters set out in the Deed of Settlement signed on [date], to begin the process of healing and to enter a new age of co-operation with Ngäi Tahu.”

The gifting of Aoraki/Mt Cook

On a day agreed between the Crown and Ngäi Tahu, the Crown will vest Aoraki/Mt Cook in Te Runanga by an order in Council. On the same day, by a deed of gift which the runanga will deliver to the government, Ngäi Tahu will gift Aoraki/Mt Cook to the Crown. The proposed wording of the gift will be: “In the spirit of co-operation, compromise and good faith which has brought about the settlement effected by the Deed of Settlement, Te Runanga hereby unconditionally gifts solely and exclusively to the Crown, on behalf of the people of New Zealand, an estate in fee simple in Aoraki/Mount Cook.” The deed of gift provides also that the Crown “accepts the gift by Te Runanga … on behalf of the people of New Zealand in the same spirit with which the gift was made and confirms that it holds and manages Aoraki/Mount Cook subject to the National Parks Act 1980 and the relevant provisions of the Deed of Settlement and the Ngäi Tahu Claims Settlement Act.”

To provide legal certainty to this process, the settlement legislation will provide that, as soon as the deed of gift is delivered by Ngäi Tahu, the legal estate of Aoraki/Mt Cook is thereby be vested in the Crown. The settlement legislation will also provide that throughout the process of the vesting in Ngäi Tahu and the gift back, “Aoraki/Mount Cook shall be and remain part of the National Park, and every regulation, lease, licence and other instrument previously subsisting in respect of the National Park under the National Parks Act 1980 or any other enactment shall have uninterrupted effect”.

[Ed: to be continued next issue.]