Ngai Tahu Settlement

SECTION 12: MAHINGA KAI - GENERAL

12.1 - DEFINITIONS AND INTERPRETATION

12.1.1

Latin References for Species to Prevail

Where a species of plant, animal, bird or fish has been defined in this
section by reference to its Maori, English and Latin names, for the avoidance of
doubt, the Latin reference shall prevail (including any published revisions to
such Latin references from time to time).

12.1.2

Unconditional Obligations

Clause 17.1 (which provides that this Deed is conditional on the
Settlement Legislation coming into force) does not apply to clauses 12.14.20,
12.14.21 and 12.14.23 to 12.14.26, which require performance
or action to be taken before the Settlement Date.

12.2 - STATUTORY ACKNOWLEDGEMENTS

12.2.1

Definitions

In this clause 12.2 and in clause 12.3, and in
Attachments 12.1 to 12.128 inclusive:

(a)

the following terms have the meanings set out below:

consent authority has the meaning given to it in section 2 of the
Resource Management Act 1991;

Deed of Recognition means a deed of recognition as described in this
clause 12.2 to be entered into by the Crown pursuant to
clause 12.3 of this Deed;

Effective Date means the date falling 6 months after the Settlement
Date;

resource consent has the meaning given to it in section 87 of the
Resource Management Act 1991;

Statutory Acknowledgement means an acknowledgement made by the Crown
in the Settlement Legislation in respect of a Statutory Area, comprising the
descriptions referred to in clause 12.2.2(a) and (b), and the
acknowledgement made by the Crown pursuant to clause 12.2.2(c), on the
terms set out in this clause 12.2;

Statutory Areas means the areas, Rivers, Lakes and Wetlands defined in
Attachments 12.1 to 12.64 inclusive, the general locations of which are
indicated on the Allocation Plans (and SO Plans) indicated in those
Attachments;

(b)

the following term has the meaning set out below:

Lake means a body of fresh water which is entirely or nearly
surrounded by land including a lake controlled by artificial means, but does not
include:

(i)

any part of the lakebed which is not in Crown ownership or control from time
to time;

(ii)

with respect to a lake not controlled by artificial means, any land which
the waters of the lake do not cover at its highest level without exceeding its
margin;

(iii)

with respect to any lake controlled by artificial means, any land which the
waters of the lake do not cover at its maximum operating level as prescribed
from time to time by any resource consent or rule of a regional plan or proposed
plan within the meaning of the Resource Management Act 1991; or

(iv)

any river or watercourse, artificial or otherwise, draining into or out of a
lake;

(c)

the following term has the meaning set out below:

River means a continually or intermittently flowing body of fresh
water, including a stream and modified watercourse, but does not include:

(i)

any artificial watercourse (including an irrigation canal, water supply
race, canal for the supply of water for electricity power generation and farm
drainage canal);

(ii)

any part of the riverbed which is not in Crown ownership or control from
time to time;

(iii)

any land which the waters of the river do not cover at its fullest flow
without overtopping its banks; or

(iv)

any tributary flowing into a river, unless expressly provided to the
contrary in the definition of a particular river;

(d)

the following term has the meaning set out below:

Wetland means a permanently or intermittently wet area, shallow water
and land water margin that supports a natural ecosystem of plants and animals
that are adapted to wet conditions, but does not include:

(i)

any part of the wetland bed which is not in Crown ownership or control from
time to time;

(ii)

any land bordering the wetland;

(iii)

any river or watercourse, artificial or otherwise, draining into or out of a
wetland; or

(iv)

any lake;

(e)

Allocation Plans (and SO Plans) are included for the purposes of indicating
the general location of the Statutory Areas, and are not intended to establish
the precise boundaries of the Statutory Areas.

12.2.2

Provision of Statutory Acknowledgements by Crown

The Crown agrees that the Settlement legislation will make a Statutory
Acknowledgement in respect of each of the Statutory Areas, which will comprise:

(a)

a description of each of the Statutory Areas as provided in
Attachments 12.1 to 12.64, including, where applicable, the definitions
of Lakes, Rivers and Wetlands set out in clause 12.2.1;

(b)

the text of the statement by Te Runanga of the particular cultural,
spiritual, historic and/or traditional association of Ngai Tahu with the
Statutory Areas set out in Attachments 12.1 to 12.64; and

(c)

an acknowledgement by the Crown of Te Runanga's statement of that
association.

12.2.3

Distribution of applications to Te Runanga

The Crown agrees that:

(a)

the Settlement Legislation will provide for the power to make regulations to
implement the matters described in clause 12.2.3(b);

(b)

by no later than the Effective Date, the Crown will make regulations to
provide as follows:

(i)

subject to clause 12.2.3(b)(ii), for a period of 20 years from and
after the Effective Date, a consent authority that receives an application for a
resource consent for activities within, adjacent to, or impacting directly on a
Statutory Area shall, as soon as reasonably practicable after receiving the
application, and prior to making any determination pursuant to sections 93 or 94
of the Resource Management Act 1991, forward a summary of the application to Te
Runanga;

(ii)

the summary of the application which is to be forwarded to Te Runanga
pursuant to clause 12.2.3(b)(i) shall contain the same information which
would be contained in a notice to persons who may be affected under section 93
of the Resource Management Act 1991, or such other information as may be agreed
between Te Runanga and individual consent authorities from time to time;

(iii)

Te Runanga may from time to time waive its rights under
clause 12.2.3(b)(i) by notice in writing to a relevant consent authority,
either generally or in respect of particular types of applications, individual
consent authorities, or for specified periods of time, so that the consent
authority is no longer required to discharge its obligations in terms of
clause 12.2.3(b)(i) in respect of the matter waived; and

(iv)

for the avoidance of doubt, the obligation to forward a summary of certain
applications to Te Runanga pursuant to clause 12.2.3(b)(i) shall not in
any way affect the discretion of the relevant consent authority as to whether or
not to notify any application under sections 93 and 94 of the Resource
Management Act 1991, and whether or not Te Runanga may be an affected person
under those sections.

12.2.4

Local Authorities to Have Regard to Statutory Acknowledgements

The Crown agrees that the Settlement Legislation will provide that with
effect from the Effective Date and without derogating from their obligations
under Part II of the Resource Management Act 1991:

(a)

in forming an opinion under section 93(1)(e) of the Resource Management Act
1991 as to whether Te Runanga is a person who is "likely to be directly
affected" by an application for activities within, adjacent to or impacting
directly on a Statutory Area, the relevant consent authority shall have regard
to the Statutory Acknowledgement provided pursuant to clause 12.2.2 in
relation to the relevant Statutory Area;

(b)

in forming an opinion under section 94(1)(c)(ii) of the Resource Management
Act 1991 as to whether Te Runanga is a person who "may be adversely affected" by
the granting of a resource consent for activities within, adjacent to or
impacting directly on a Statutory Area, the relevant consent authority shall
have regard to the Statutory Acknowledgement provided pursuant to
clause 12.2.2 in relation to the relevant Statutory Area;

(c)

in satisfying itself under section 94(2)(b) of the Resource Management Act
1991 as to whether Te Runanga is a person who "may be adversely affected" by the
granting of a resource consent for activities within, adjacent to or impacting
directly on a Statutory Area, the relevant consent authority shall have regard
to the Statutory Acknowledgement provided pursuant to clause 12.2.2 in
relation to the relevant Statutory Area;

(d)

in forming an opinion under section 94(3)(c) of the Resource Management Act
1991 as to whether Te Runanga is a person who "may be adversely affected" by the
granting of a resource consent for activities within, adjacent to or impacting
directly on a Statutory Area, the relevant consent authority shall have regard
to the Statutory Acknowledgement provided pursuant to clause 12.2.2 in
relation to the relevant Statutory Area;

(e)

in determining under section 274 of the Resource Management Act 1991 whether
Te Runanga is a person having an interest in the proceedings "greater than the
public generally" in respect of applications for resource consents for
activities within, adjacent to or impacting directly on a Statutory Area, the
Environment Court shall have regard to the Statutory Acknowledgement provided
pursuant to clause 12.2.2 in relation to the relevant Statutory Area; and

(f)

in forming an opinion under section 14, and for the purpose of section 20(1)
of the Historic Places Act 1993, as to whether Te Runanga is a person "directly
affected" in relation to an archaeological site (as defined in the Historic
Places Act 1993) within a Statutory Area, the Historic Places Trust or the
Environment Court (as the case may be) shall have regard to the Statutory
Acknowledgement provided pursuant to clause 12.2.2 in relation to the
relevant Statutory Area.

12.2.5

Use of Statutory Acknowledgement with Submissions

The Crown agrees that the Settlement Legislation will provide that:

(a)

Te Runanga and any member of Ngai Tahu Whanui may cite the relevant
Statutory Acknowledgement in submissions to, and in proceedings before, a
consent authority, the Environment Court or the Historic Places Trust concerning
activities within, adjacent to or impacting directly on a Statutory Area as
evidence of Ngai Tahu's association to the Statutory Area;

(b)

for the avoidance of doubt, the content of the association, as recorded in a
Statutory Acknowledgement, shall not by virtue of the Statutory Acknowledgement
be binding as deemed fact upon consent authorities, the Environment Court, the
Historic Places Trust and parties to proceedings before those bodies, or any
other person able to participate, but the Statutory Acknowledgement may be taken
into account by them; and

(c)

Te Runanga and any member of Ngai Tahu Whanui shall not be precluded from
stating that Ngai Tahu has any other association with the Statutory Area not
described in the relevant Statutory Acknowledgement nor shall the content or
existence of the Statutory Acknowledgement derogate from any such other
statement.

12.2.6

Authorisation to Enter into Deeds of Recognition

The Crown agrees that the Settlement Legislation will provide that, by reason
of the Statutory Acknowledgement provided pursuant to clause 12.2.2, the
Minister of the Crown responsible for the management or administration of the
land within a Statutory Area, or the Commissioner of Crown Lands, as the case
may be, will have power to enter into a Deed of Recognition in respect of the
land within the Statutory Area.

12.2.7

Form and Terms of Deeds of Recognition

The Crown agrees that the Settlement Legislation will provide that with
respect to the Statutory Area to which it relates, a Deed of Recognition will
provide that, by reason of the Statutory Acknowledgement provided pursuant to
clause 12.2.2, Te Runanga shall be consulted, and particular regard shall
be had to its views relating to the association described in the Statutory
Acknowledgement concerning the management or administration of the Statutory
Area by the responsible Minister, or the Commissioner of Crown Lands, as the
case may be, on the matters specified in each particular Deed of Recognition.

12.2.8

Alienation of Land

The Crown agrees that the Settlement Legislation will provide that in the
event that land over which a Deed of Recognition applies is alienated by the
Crown, the relevant Deed of Recognition will automatically be terminated (and
the right of first refusal set out in Section 9 will apply).

12.2.9

Change in Management

If there is a change in the Crown entity managing land over which a Deed of
Recognition applies or the applicable statutory management regime over such
land, the Crown agrees that it will take reasonable steps to ensure that Te
Runanga continues to have input into the management of that land through the
negotiation, by the Minister responsible for the new management or management
regime, or the Commissioner of Crown Lands, as the case may be, of a new or
amended Deed of Recognition.

12.2.10

Purposes of Statutory Acknowledgements

The Crown agrees that the Settlement Legislation will provide that, without
limiting clauses 12.2.11 to 12.2.13, the only purposes of the
Statutory Acknowledgements will be:

(a)

to require that relevant consent authorities forward summaries of relevant
resource consent applications to Te Runanga as provided in clause 12.2.3;

(b)

to require that relevant consent authorities, the Historic Places Trust or
the Environment Court as the case may be, have regard to the Statutory
Acknowledgements in relation to the Statutory Areas as provided in
clause 12.2.4;

(c)

to empower Ministers responsible for management of the Statutory Areas, or
the Commissioner of Crown Lands, as the case may be, to enter into Deeds of
Recognition as provided in clause 12.2.6; and

(d)

to enable Te Runanga and any member of Ngai Tahu Whanui to cite Statutory
Acknowledgements as evidence of the association of Ngai Tahu to the Statutory
Areas, as provided in clause 12.2.5.

12.2.11

Exercise of Powers, Duties and Functions

The Crown agrees that the Settlement Legislation will provide that, except as
expressly provided in clauses 12.2.4, 12.2.5 and clause 12.2.10:

(a)

neither a Statutory Acknowledgement nor a Deed of Recognition will affect,
or be taken into account in, the exercise of any power, duty or function by any
person or entity under any statute, regulation, or bylaw; and

(b)

without limiting clause 12.2.11(a), no person or entity, in
considering any matter or making any decision or recommendation under statute,
regulation or bylaw shall give any greater or lesser weight to Ngai Tahu's
association to a Statutory Area (as described in the relevant Statutory
Acknowledgement) than that person or entity would give under the relevant
statute, regulation or bylaw, as if no Statutory Acknowledgement or Deed of
Recognition existed in respect of that Statutory Area.

12.2.12

Rights of Third Parties

The Crown agrees that the Settlement Legislation will provide that, unless
expressly provided in this clause 12.2, neither a Statutory
Acknowledgement nor a Deed of Recognition will affect the lawful rights or
interests of any third party from time to time.

12.2.13

Limitation of Rights

The Crown agrees that the Settlement Legislation will provide that, unless
expressly provided in this clause 12.2, neither a Statutory
Acknowledgement nor a Deed of Recognition will of itself have the effect of
granting, creating or providing evidence of any estate or interest in, or any
rights of any kind whatsoever relating to, the Statutory Area.

12.2.14

Recording of Statutory Acknowledgements on Statutory Plans

The Crown agrees that the Settlement Legislation will provide that:

(a)

local authorities within the Ngai Tahu Claim Area shall attach information
to all regional policy statements and district and regional plans from time to
time (including proposed plans) prepared under the Resource Management Act 1991
recording all Statutory Acknowledgements affecting Statutory Areas covered
wholly or partly by such plans, either by way of reference to the relevant part
of the Settlement Legislation or by setting out the Statutory Acknowledgements
in full; and

(b)

the attachment of information to any plan is for the purpose of public
information only and shall not be part of the plan (unless adopted by the
relevant regional or district council) or subject to the provisions of the First
Schedule to the Resource Management Act 1991.

12.2.15

Pikirakatahi (Mount Earnslaw)

The Crown agrees that the Settlement Legislation will provide that, if any
part of the area presently included in pastoral lease CL 338/105 (Otago Land
District is ever surrendered to the Crown, then such part of that area as is
held under the Conservation Act 1987 or the statutes listed in the First
Schedule to the Conservation Act 1987 and as may have been identified pursuant
to similar processes used by the parties for identification of Statutory Areas
which are mountains, prior to entry into this Deed and agreed by Te Runanga and
the Crown, shall become part of the Statutory Area known as Pikirakatahi (Mount
Earnslaw) for the purposes of this clause 12.2 and covered by the
relevant Deed of Recognition under clause 12.3. Te Runanga and the Crown
agree that the rights of the lessee under that pastoral lease, in particular
with respect to tenure review, shall not be affected in any way by this clause.

12.2.16

Tokata (The Nuggets)

The Crown agrees that the Settlement Legislation will provide that, if any
part of the area described as the "Islands" in Item 11 of
Attachment 12.129 is confirmed at any time to be in Crown ownership, that
area shall become part of the Statutory Area known as Tokata (the Nuggets) for
the purposes of this clause 12.2 and covered by the relevant Deed of
Recognition under clause 12.3.