Taranaki Whanui ki Te Upoko o Te Ika

"Taranaki Whanui ki Te Upoko o Te Ika" is the collective group composed, in general terms, of individuals who are the descendants of one or more of the "recognised ancestors" of the following iwi: Te Atiawa; Ngati Tama; Taranaki; Ngati Ruanui; and " ... other iwi from the Taranaki area (for example, Ngati Mutunga)" (Part 1, Clause 8 of the Bill).

Governance entity

"A ratification process for the governance arrangements was carried out concurrently with that for the deed of settlement. Of the 7 120 adult members of Taranaki Whanui ki Te Upoko o Te Ika who were eligible to vote, 30.7% of voters validly voted on the post-settlement governance entity. Of these, 96.2% voted in favour of the proposed post-settlement arrangements. On 11 August 2008 the Port Nicholson Block Settlement Trust was established by trust deed. The trust is a private trust with 11 trustees, which will receive and administer the settlement redress.

"The Crown is satisfied that the Port Nicholson Block Settlement Trust provides the appropriate governance arrangements for the transfer of redress under the deed of settlement. The governance arrangement provides for the representation of Taranaki Whanui ki Te Upoko o Te Ika, transparent decision-making and dispute resolution processes, and full accountability to members of Taranaki Whanui ki Te Upoko o Te Ika" [1]   .

History of the claim

The Crown and Taranaki Whanui ki Te Upoko o Te Ika entered into the deed of settlement (the deed) on 19 August 2008. The deed of settlement was conditional on the establishment of a governance entity and the passage of a Bill implementing the matters set out in the deed.

Elements of the settlement package only in the deed of settlement

The deed of settlement includes the following redress for which legislative authority is not required:

• the payment of $23.138 million (being the financial and commercial redress amount of $25.025 million less 2 previous on account amounts totalling $1.887 million);
• the option for the trustees to purchase, at market value and on the terms specified in Part 4 of the provisions schedule of the Deed, four Shelly Bay properties, once their market value at the date of the deed of settlement is determined, any or all of 14 other properties, if notice of interest is given during the period of 2 years from the settlement date, the land (but not improvements) of any of 15 other properties, up to a total value of $110 million (as the value is specified in Part 4 of the provisions schedule of the deed of settlement), if notice of interest is given during the period of 10 years from the settlement date, and subject to leaseback arrangements;
• letters from the Minister in Charge of Treaty of Waitangi Negotiations to Centreport Limited, and Wellington International Airport Limited, introducing the trustees and requesting that the recipient agree to enter into a formal relationship with them;
• acknowledgement and support by the Crown of the desire of the trustees to provide for the enhanced wellbeing, revitalisation, and protection of its members by—

• facilitating access by Taranaki Whanui ki Te Upoko o Te Ika to government programmes and services that relate to social, economic, and cultural development. The Crown will assist the trustees in working through the necessary administrative procedures so that Taranaki Whanui ki Te Upoko o Te Ika shall have ready access to such programmes and services,
• an appropriate Minister of the Crown chairing an annual hui between relevant Ministers of the Crown and the trustees. The purpose of the hui will be to review progress of the implementation of the social, economic, and cultural aspirations of Taranaki Whanui ki Te Upoko o Te Ika to identify, and progress, meaningful opportunities for Taranaki Whanui ki Te Upoko o Te Ika to play a more direct role in the provision of social, economic, and cultural outcomes for its members,
• relevant government agencies working with the trustees to identify and explore areas of mutual interest. Those agencies will report progress to the annual hui referred to above [2]   .

interpretation

The Bill provides that the provisions of the Bill are to be interpreted in a manner that best furthers the agreements expressed in the deed and defines various terms used in the Bill (Part 1, Subpart 1, Clauses 6 – 9).

Settlement of claims

The Bill provides for the finality of the settlement of the historical claims. As is usual in claims settlement legislation, the Bill provides that no Court, Tribunal, or other judicial body may inquire into any of those claims, the validity of the deed, the adequacy of the redress provided under the deed or the Bill, or the Bill itself. The Bill also amends the Treaty of Waitangi Act 1975 to exclude the jurisdiction of the Waitangi Tribunal to consider claims covered by the Deed or the Bill. However, Courts, Tribunals (including the Waitangi Tribunal), and other judicial bodies retain jurisdiction in respect of the interpretation or implementation of the deed or the Bill (Part 1, Subpart 3, Clause 10 and Clause 11 (which amends the Treaty of Waitangi Act 1975)).

Memorials removed

Under certain enactments memorials are registered against titles to land recording that where the Waitangi Tribunal recommends the land be returned to Maori ownership, the Crown may resume the land and return it. The Bill provides that such resumptive memorials be removed from certain certificates of title but not from "deferred selection property" unless the trustees elect to purchase the property under paragraph 4.7 of the "provisions schedule" of the deed of settlement and the purchase is settled under clause 4.66 of that schedule. A "deferred selection property" is a property described in subpart H of Part 4 of the provisions schedule of the deed of settlement. Particular issues related to "deferred selection property" (or those properties subject to the right of first refusal (RFR land)) are discussed on page 4 and 5 of this Bills Digest (Part 1, Subpart 3, Clauses 12 and 13).

Perpetuities

The rule against perpetuity is that a disposition of property under which the vesting is postponed for a period longer than the law allows is an attempt to create a perpetuity and is void for remoteness. At common law, the rule is that no interest is good unless it must vest not later than 21 years after some life in being at the creation of the interest. This means that the vesting of an interest may be postponed during the lives of the persons in being at the time of the creation of the interest plus a further period of 21 years after the end of the last life. The Perpetuities Act 1964 moderated the effect of this rule by providing an alternative perpetuity period up to 80 years and it introduces the “wait and see” rule. This means that where a disposition would be invalid as infringing the rule against perpetuities, the disposition must be treated, until it becomes certain that the vesting must occur, as if the disposition were not invalid as infringing the rule (Section 8 of the Perpetuities Act 1964).

As is standard in claims settlement legislation, the Bill provides an exemption from the rule against perpetuities and any relevant provisions of the Perpetuities Act 1964. The exemption applies to the trustees and their ability to hold or deal with Trust property, and in respect of documents entered into by the trustees to give effect to certain provisions of the deed. It also clarifies that if the trust is or becomes a charitable trust, any application of the rule against perpetuities and the provisions of the Perpetuities Act 1964 must be determined in accordance with the general law (Part 1, Subpart 4, Clause 14).

Protocols

The Bill makes provision for the issue of protocols by the Minister for Arts, Culture and Heritage, the Minister of Conservation, the Minister of Fisheries and other Ministers authorised by the Prime Minister to exercise certain powers. These protocols would set out how the relevant government department will interact with Taranaki Whanui ki Te Upoko O Te Ika on certain matters. The trustees may, subject to the Crown Proceedings Act 1950, enforce such a protocol against the Crown (Part 2, Subpart 1 Clauses 17– 22; Clause 7, definition of “responsible Minister”).

Statutory acknowledgements and deeds of recognition

The Bill provides for statutory acknowledgements by the Crown of statements of association made by Taranaki Whanui ki Te Upoko O te Ika of the cultural, spiritual, historic, and traditional association of Taranaki Whanui ki Te Upoko O te Ika with the statutory areas (areas listed in Schedule 1 to the Bill). Consent authorities, the Environment Court and other bodies are required to have regard to the statutory acknowledgement. Consent authorities must forward summaries of resource consent applications to the governance entity. The areas subject to deeds of acknowledgement are: Kaiwharawhara Stream; a coastal marine area; Hutt River; Waiwhetu Stream; Wellington Harbour; Riverside Drive marginal strip; Seaview marginal strip; Government Buildings Historic Reserve; Turnbull House Historic Reserve; Rimutaka Forest Park; Wainuiomata Scenic Reserve; Turakirae Head Scientific Reserve and Kelburn Local Purposes (Community and Administrative Buildings) Reserve:

The Minister of Conservation may enter into a deed of recognition with the trustees in respect of the Rimutaka Forest Park, the Wainouiomata Scenic Reserve, and the Turakirae Head Scientific Reserve (Part 2, Subpart 2, Clauses 23-36).

Cultural redress properties

The Bill provides for the vesting in the trustees of a number of cultural redress properties that are of significance to Taranaki Whanui ki Te Upoko o Te Ika. These are: 1 Thorndon Quay; 81–87 Thorndon Quay; the Waiwhetu Road site; the former Wainuiomata College site; the former Wainuiomata Intermediate School site; the former Waiwhetu School site; the Pipitea Marae site; a dendroglyph site (comprising 2 dendroglyph areas near the Parangarahu lakes); an urupa site at Makara: the bed of Lake Kohangatera and the Lake Kohangatera esplanade land; the bed of Lake Kohangapiripiri and the Lake Kohangapiripiri esplanade land (the 2 lakes together comprising the Parangarahu lakes); Wi Tako Scenic Reserve; Point Dorset Recreation Reserve; the Korokoro Gateway site (a site adjacent to the harbour at Petone); Makaro Scientific Reserve; Mokopuna Scientific Reserve; and Matiu Scientific Reserve (Part 2, Subparts 4 and 5, Clauses 38– 81).

Name changes

The Bill provides for the official amendment of various place names including Lowry Bay (which becomes Whiorau/Lowry Bay), Ngauranga Stream (which becomes Waitohi Stream), Red Rocks (which becomes Pariwhero/Red Rocks) (Part 2, Subpart 6, Clauses 82-86; clause 5.13 of the Deed).

Commercial redress

The Bill provides the trustees with a right of first refusal in relation to certain properties (RFR land). The owner (the Crown, a Crown body or ,in certain circumstances, a local authority) of RFR land must not dispose (transferring or granting the fee simple or granting a lease) of the land to a person other than the trustees (without offering it to the trustees on the same or better terms) unless a specified exception applies. These specified exceptions are where:

• within two years after the expiry date of an offer by the RFR landowner to dispose of the land to the trustees under the Bill, the offer was not withdrawn and not accepted;
• the land is disposed of to the Crown or a Crown body (but not a local authority);
• the land is disposed of under any enactment or rule of law;
• the land is disposed of under a legal or equitable obligation (for example, the requirements existing before the settlement date, or it is subject to a gift, an endowment, or trust relates to the land;
• the land is disposed of in accordance with Section 54(1)(d) of the Land Act 1948 [3]   , Section 206 of Education Act 1989 [4]   , and Sections 355(3), 355AA or 355AB of the Resource Management Act 1991 [5]   ;
• the land which is disposed was acquired under the Public Works Act 1981 and is disposed of under that Act or under the New Zealand Railways Corporation Restructuring Act 1990;
• the land is disposed of in accordance with the Reserves Act 1977 or the Conservation Act 1987 for reserve or conservation purposes;
• the land is disposed of as a gift or for a charitable purpose;
• the land is held on the settlement date for educational purposes and is disposed to a person who is a tenant of the land or all or part of a building on the land;
• the land disposed of and the Minister of Housing has given notice to the trustees that, in the minister's opinion, the disposal is to achieve, or assist in achieving, the Crown's social objectives in relation to housing or services relating to housing;
• similar provision is made in respect of Capital and Coast District Health Board " ... to achieve, or assist in achieving, the district health board's objectives (Part 3, Subpart 2, Clauses 90-118).