Pipitea Marae
The Select Committee has recommended that the Bill be amended to vest the Pipitea Marae land in a new entity, the Pipitea Marae Charitable Trust (Part 2, Subpart 4, inserting New Clause 45A; Schedule 2 (the description of encumbrances in relation to the Pipitea Marae site)).
Comment
The Select Committee stated in its report:
"We recognise the historical and cultural significance of this area to Taranaki Whānui ki Te Upoko o Te Ika and we acknowledge the desire of the collective to have an urban marae in the Wellington area. It is also the practice of the Crown to protect existing third-party rights when transferring land in Treaty settlements.
"Pipitea Marae is currently leased from the Māori Trustee by the Ngāti Poneke Māori Association Incorporated. The thirty-year lease is perpetually renewable and a peppercorn rental is paid by the association to the Trustee.
"We recommend the insertion of a new clause 45A to give effect to a new lease arrangement. The Port Nicholson Block Settlement Trust and the Ngāti Poneke Māori Association have formed a new joint legal entity—the Pipitea Marae Charitable Trust. The Charitable Trust comprises equal representation of both parties (the Port Nicholson Block Settlement Trust and the Ngāti Poneke Māori Association). After the settlement date (and the registration of the Charitable Trust with the Charities Commission), the Pipitea Marae land and the improvements will vest in the new entity. The unregistered first renewal of the lease would be terminated at that point.
"We also recommend an amendment to Schedule 2 to maintain the provision in the current lease that the lessor may change the annual rent only with the consent of the Minister of Māori Affairs. This would ensure that the position of the lessee (currently the Ngāti Poneke Māori Association Incorporated) under the current lease arrangement would not be changed while the lease remains in place"
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Ngāti Tama opt-out clause
Clause 8.2.3 of the Deed of Settlement of Historical Claims (the Deed) provides as follows:
" ... all persons who descend from a Ngāti Tama tupuna fall within the definition of Taranaki Whānui ki Te Upoko o Te Ika unless they choose to have their historical claims settled by another group with a Crown recognised mandate. Should a settlement negotiated by that other group with a Crown recognised mandate become unconditional, those persons will, to the extent that they rely on descent from a Ngāti Tama tupuna, be excluded from the definition of Taranaki Whānui ki Te Upoko o Te Ika, in this Deed of Settlement, settlement legislation and governance entity".
The Select Committee has recommended that Clause 8.2.3 of the Deed be made "more explicit" in the Bill by providing that the definition of "Taranaki Whānui Te Upoko o Te Ika" , which is stated to be subject to clause 8.2.3 of the Deed, is subject to that clause "as at the date of the deed of settlement" and the listing of historical claims that relates exclusively to Taranaki Whānui Te Upoko o Te Ika is made "subject to clause 8.2.3 of the deed of settlement as at the date of the deed of settlement". The Select Committee has also recommended that the expression "date of the deed of settlement" is defined to mean "19 August 2008" (Part 1, Subpart 2, amending Clause 8(1) of the Bill ("meaning of Taranaki Whānui ki te Upoko o Te Ika") and Clause 9(1)(b) of the Bill ("Meaning of historical claims"); Clause 7, inserting a new definition, that of "date of the deed of settlement").
Comment
The need for the words "as at the date of the deed of settlement" is unclear.
These opt-out provisions are unusual in such treaty settlement legislation as this Bill. The Select Committee has stated:
"The bill would give effect to clause 8.2.3 of the Deed of Settlement to allow those members of Ngāti Tama who do not consider their claims to be settled by the Port Nicholson Block Settlement Trust to opt out of this settlement and begin a separate negotiation with the Crown.
"We recommend amending clause 9(1)(b) to make more explicit the provision in 8.2.3 of the Deed.
"We note that if some Ngāti Tama wish to negotiate a separate settlement they should form a single entity and achieve a mandate recognised by the Crown. This requirement explicitly reflects the Crown’s interest in maintaining political settlements at the highest level of iwi and hapū collectives. We are aware that there may be common whakapapa between Taranaki Whānui ki Te Upoko o Te Ika and any reconfigured Ngāti Tama group outside this settlement collective.
"The opt-out clause in the Deed is an unhappy exception to the Crown’s practice of dealing with large natural groupings. We understand that this provision is due both to intractable differences between some Ngāti Tama and the body mandated to represent Taranaki Whānui ki Te Upoko o Te Ika (the Port Nicholson Block Claims Team) and to the Crown’s wish to negotiate in good faith to achieve fair and durable settlements.
"We wish to note that the Crown should not be called upon to adjudicate differences within an iwi grouping. We consider the provision of an opt-out clause to be inappropriate as a model for any future settlements. We consider that these are matters for iwi to resolve.
"We do not recommend the use of opt-out clauses in future"
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