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Digest No. 1851
Ngāti Pāhauwera Treaty Claims Settlement Bill 2011
|Date of Introduction:||01 March 2011|
|Portfolio:||Treaty of Waitangi Negotiations|
|Select Committee:||As at 04 April, 1st reading not held|
|Published: 05 April 2011byJohn McSoriley BA LL.B, Barrister,Legislative AnalystP: (04) 817-9626 (Ext. 9626)F: (04) 817-1250Public enquiries:Parliamentary Information Service: (04 817-9647)||Caution: This Digest was prepared to assist consideration of the Bill by members of Parliament. It has no official status.Although every effort has been made to ensure accuracy, it should not be taken as a complete or authoritative guide to the Bill. Other sources should be consulted to determine the subsequent official status of the Bill.|
The aim of the Bill is to give effect to the deed of settlement (the deed) entered into by the Crown and Ngāti Pāhauwera on 17 December 2010 and in which the Crown and Ngāti Pāhauwera agree to a final settlement of the Ngāti Pāhauwera historical claims  . “The deed of settlement is conditional on the passage of this Bill which implements certain matters set out in the deed”  .
“The Bill defines Ngāti Pāhauwera as the collective group composed of—
- individuals who descend from 1 or more Ngāti Pāhauwera ancestors and who are members 1 or more Ngāti Pāhauwera hapū; and
- every whānau, hapū, or group to the extent that it is composed of the individuals referred to above.
“Ngāti Pāhauwera is a confederation of hapū with historical interests in northern Hawke’s Bay. Their core area of interest extends from the Pukekaraka Stream (south of Wairoa) along the coastline to the Waikari River and inland from these areas towards the Maungaharuru Range and north towards the Waiau River. Ngāti Pāhauwera currently has over 6,000 registered members. The claims of Ngāti Pāhauwera relate primarily to the failure of the Crown to ensure that Ngāti Pāhauwera retained sufficient lands for its future needs in the face of a process of land alienation that began in the 1850s, including Crown purchasing and the operation of the Native Land Court. Their claims also relate to the failure of the Crown to provide adequate support when Ngāti Pāhauwera suffered severe loss of life and property after the Crown ignored warnings of a possible attack on Ngāti Pāhauwera communities at Mohaka during the New Zealand wars and the failure of the Crown to monitor the impact of further land purchase activity, including its own. By the mid-20th century Ngāti Pāhauwera were virtually landless and this contributed significantly to their economic, social, and cultural impoverishment”  .
The Bill sets out an historical account (summarising the account in the deed) of the wrongs of the Crown which are addressed by the deed and by this Bill (Preamble).
Acknowledgements and apology
The Bill sets out the specific acknowledgements of wrongs done to Ngāti Pāhauwera, the apology of the Crown and its acceptance by Ngāti Pāhauwera (Part 1, Subpart 1, Clauses 6-9).
Settlement of historical claims
The Bill provides that the historical claims are settled and releases and discharges the Crown from all obligations and liabilities in respect of those claims and no Court, Tribunal, or other judicial body has jurisdiction in respect of the historical claims, the deed of settlement, the Bill or the redress provided under the deed of settlement or the Bill. However Courts, Tribunals or other judicial bodies do have jurisdiction in respect of the interpretation or implementation of the deed of settlement or this Bill. The Bill removes the application of certain Acts dealing with Crown or former Crown land and which provide for the Waitangi Tribunal to make resumption orders such as the State-Owned Enterprises Act 1975 (Sections 8A to 8HJ), the Education Act (Sections 211-213), the Crown Forest Assets Act 1989 (Part 3), the New Zealand Railways Corporation Restructuring Act 1990 (Part 3) and for the removal of the relevant memorials by the Registrar-General of Land from the titles to the land concerned. The rule against perpetuities  does not apply to restrict the Ngāti Pāhauwera Development Trust in its existence or in relation to its property (Part 1, Subpart 3, Clauses 14-17; Subpart 4, Clauses 18-20).
The Bill sets out in detail the details of the settlement including the vesting in Ngāti Pāhauwera of the Te Heru o Tūreia Gift Area and its revesting in the Crown as a gift from Ngāti Pāhauwera along with conservation arrangements over certain relevant areas for the Crown. Certain other cultural redress properties are vested in Ngāti Pāhauwera. Particular provision is made in respect of the coastal marine area in relation to hangi stones and in relation to the Mohaka and Wairoa Hard. The Hawke’s Bay Regional Resource Management Plan is amended, and certain statutory acknowledgements are given (Part 2, Subparts 1-7, Clauses 21-79).
The Bill provides that the Crown may transfer the fee simple of certain properties as provided for in the deed. Certain reserves are revoked. Where the land transferred is Crown forest land, the transferred land ceases to be Crown forest land. Certain access rights are given in respect of wahi tapu (Part 3, Subparts 1-3, Clauses 80-93).
Right of First refusal
The Bill also sets out the provision relating to Right of First refusal Land. The transfer of such land (owned by the Crown (or an emanation of the Crown) or a local authority) must be to the Ngāti Trust Pāhauwera Development Trust unless a 40 day period has elapsed from the date of notice of offer of the land to Ngāti Pāhauwera and Ngāti Pāhauwera has not accepted the offer and the terms are the same as, or more favourable to the trustees of the Ngāti Pāhauwera Development Trust than, the terms of the disposal to the person. Certain types of transfer are exempted from the RFR rules such as disposal to another Crown body or for a charitable purpose. RFR land is the land within the RFR area shown on SO433356 that on the settlement date is vested in the Crown is held in fee simple by the Crown or is a reserve vested in an administering body that derived title from the Crown or is land obtained in exchange for a disposal of RFR land (Part 3, Subpart 4, Clauses 94-123; Schedule 4).
|Copyright: © NZ Parliamentary Library, 2011|
|This work is licensed under the Creative Commons Attribution 3.0 New Zealand licence. In essence, you are free to copy, distribute and adapt the work, as long as you attribute the work to the Parliamentary Library and abide by the other licence terms. To view a copy of this licence, visit : http://creativecommons.org/licenses/by/3.0/nz/.|
- Ngāti Pāhauwera Treaty Claims Settlement Bill, 2011 No 273-1, Explanatory note, General policy statement, p. 1. [back]
- Ibid, p. 3. [back]
- Ibid., p. 1 and 2. [back]
- 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. This Act provides 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). [back]