Ngai Tahu Settlement

SECTION 14 : ANCILLARY CLAIMS

...Continued

14.6.6 Early Use of Fenton Entitlement

Once the Ancillary Claims Trustees have identified any of the Beneficiaries
entitled to a Fenton Entitlement, they shall allow those Beneficiaries to use
that Fenton Entitlement in accordance with clause 14.6.2(b) until the
Fenton Entitlement is granted to all of the identified Beneficiaries in
accordance with clause 14.6.4.

14.6.7 Type of Land

The land over which the initial Fenton Entitlements are to be created has
been determined by the Crown in agreement with Te Runanga and the Crown agrees
that the Settlement Legislation will provide that, if necessary in the future,
the land over which replacement Fenton Entitlements will be created will be
determined by the Land Holding Agency and the Minister of Maori Affairs in
agreement with the Holders, and will be land:

(a) already in Crown ownership;

(b) of approximately 1 hectare in area, unless otherwise agreed, and suitable
for temporary occupation;

(c) situated sufficiently close to a Waterway to permit convenient access to
the Waterway (normally land adjacent to the Marginal Strip or esplanade reserve
or similar strip bordering the Waterway itself);

(d) to which lawful access exists;

(e) where the existing practices and patterns of public use at the time the
Fenton Entitlement is to be created would not be unreasonably impaired by the
creation of a Fenton Entitlement; and

(f) the location of which shall not unreasonably exclude public access to any
Waterway.

14.6.8 Rights Attaching to Fenton Entitlements

The Crown agrees that the Settlement Legislation will provide that:

(a) the Holder will have the right to occupy temporarily the Entitlement Land
to the exclusion of any other person (other than agents of the Crown or other
persons empowered by statute undertaking their normal functions in relation to
the land) for up to 210 days in any calendar year (such days to exclude any day
from 1 May to 15 August inclusive);

(b) the Holder will have the right to erect camping shelters or similar
temporary dwellings during the period or periods that the right to occupy
temporarily the Entitlement Land is being exercised, provided that the Holder
shall be obliged to remove such camping shelters or temporary dwellings at any
time that the right to occupy temporarily the Entitlement Land is not being
exercised and to leave the Entitlement Land in substantially the same condition
as it was prior to the period that the right to temporarily occupy was
exercised, except for temporary effects normally associated with this type of
occupation;

(c) notwithstanding clause 14.6.8(b), but subject to clauses
14.6.8(d) to 14.6.8(g) and 14.6.9(c), the Holder may, with the
consent of the Land Holding Agency undertake such activities on the Entitlement
Land which may be reasonably necessary to enable the Entitlement Land to be used
for the purposes set out in clause 14.6.2(b);

(d) the giving of consent by the Land Holding Agency pursuant to clause
14.6.8(c) shall be completely at his or her discretion and subject to such
conditions as he or she thinks fit;

(e) where the Entitlement Land is land held under the Conservation Act 1987
or any Act in the First Schedule to that Act the Land Holding Agency may, in
considering whether to give consent pursuant to clause 14.6.8(c), require
an environmental impact report in relation to the proposed activities, and an
audit of that report at the Holders' expense, and impose reasonable conditions
to avoid, remedy or mitigate any adverse effects of the activity on the
Entitlement Land and the surrounding land or on any wildlife;

(f) when applying for any consent under clause 14.6.8(c) the Holder
shall provide to the Land Holding Agency details of the proposed activity
including but not limited to:

(i) the effect of the activity on the Entitlement Land and, where the
Entitlement Land is land held under the Conservation Act 1987 or any Act in the
First Schedule to that Act, on the surrounding land and upon any wildlife; and

(ii) any proposed measures by the Holder to avoid, remedy or mitigate any
adverse effects; and

(g) provided that the Crown has complied with its obligations under the
Fenton Entitlement, it shall not be obliged to compensate the Holder for any
activities undertaken by the Holder pursuant to clause 14.6.8(c), whether
on suspension of the Fenton Entitlement or at any other time.

14.6.9 Obligations related to Fenton Entitlements

The Crown agrees that the Settlement Legislation will also provide that:

(a) the existence and exercise of the Fenton Entitlements will not:

(i) impede public access along any Waterway; or

(ii) restrict the Crown's right to alienate either the Entitlement Land or
land adjacent to the Entitlement Land or adjacent to the Waterway next to which
the Entitlement Land is situated;

(b) if the Crown alienates or amends the classification or status of land
adjacent to the Entitlement Land with the result that lawful access to the
Entitlement Land no longer exists, the Crown will, subject to its obligations to
comply with any statutory or regulatory requirements, ensure that the Holders
continue to have the same type of access to the Entitlement Land as existed
prior to such alienation or change of classification or status, unless and until
the Fenton Entitlement over that Entitlement Land is suspended pursuant to
clause 14.6.15.

(c) the Holder, and the activities carried on by the Holder on the
Entitlement Land (including any work undertaken on the Entitlement Land pursuant
to clauses 14.6.8(c) to 14.6.8(g)) will be subject to existing
laws, bylaws and regulations and land and water management practices from time
to time relating to the Entitlement Land;

(d) in carrying out land and water management and practices relating to the
Entitlement Land, the Land Holding Agency will have regard to the existence of
the Fenton Entitlement and accordingly will notify the Holders of any activity
which may affect the Holders and will avoid unreasonable disruption to the
Holders;

(e) subject to clause 14.6.9(d), the Fenton Entitlement may be
suspended at any time at the discretion of the Land Holding Agency, after
consulting with the Holders and having particular regard to their views, if
thought necessary for reasons of management in accordance with the purposes for
which the land is held. If a Fenton Entitlement is suspended, the Holders may
use the Entitlement Land outside the entitlement period described in clause
14.6.8(a) for a time equal to the period of suspension;

(f) the Holders shall have rights of enforceability of the Fenton Entitlement
against third parties (but not against the Crown) as if they were the owners of
the Entitlement Land; and

(g) Fenton Entitlements shall be subject to:

(i) such other special terms and conditions as the Crown may reasonably
require to give effect to this clause 14.6; and

(ii) such variations as may be agreed by the Land Holding Agency and the
Holders to the provisions of clause 14.6.8.

14.6.10 Boundaries of Entitlement Land

The Crown agrees that, for the purposes of clause 14.6.2(c), the
Settlement Legislation will provide for the definition of the boundaries of
Entitlement Land by one or more of the following methods:

(a) by references to any plan lodged in the Office of the Chief Surveyor and
approved by the Chief Surveyor;

(b) by reference to any existing survey plan; and/or

(c) in accordance with standards agreed from time to time by the Land Holding
Agency and the Chief Surveyor or Surveyor-General as the case may be.

14.6.11 Crown not Obliged to Enforce

Te Runanga and the Crown agree that the Crown shall not be obliged to enforce
the rights of Holders under a Fenton Entitlement against third parties, on
behalf of Holders.

14.6.12 Section44 Reserves Act 1977 Not to Apply

The Crown agrees that the Settlement Legislation will provide that section 44
of the Reserves Act 1977 shall not apply to Fenton Entitlements which are
created over land held under that Act.

14.6.13 Rates

The Crown agrees that the Settlement Legislation will provide confirmation
that the creation of the Fenton Entitlements shall not make the Entitlement Land
fall within the meaning of section 4(1)(a) or (b) of the Rating Powers Act 1988.

14.6.14 Service Charges

Notwithstanding clause 14.6.13, TeRunanga and the Crown agree that the
Settlement Legislation will provide that the Holders will be responsible for and
pay any specified charges pursuant to the Rating Powers Act 1988 for services to
the Entitlement Land provided by local authorities.

14.6.15 Suspension of Fenton Entitlements

Te Runanga and the Crown agree that the Settlement Legislation will provide
that:

(a) the Crown may suspend the Fenton Entitlement and terminate its
application to an area of Entitlement Land if:

(i) the Crown alienates the Entitlement Land;

(ii) the Entitlement Land is destroyed or permanently detrimentally affected
by any natural cause;

(iii) it is a condition of the Fenton Entitlement pursuant to which the
Entitlement is granted that the Entitlement Land is on reserve land which may be
required for the specific purpose for which it was originally set apart as a
reserve and it becomes so required;

(iv) subject to clause 14.6.9(b), if lawful access to the Entitlement
Land no longer exists; or

(v) the Customary Fishing Entitlement held by the Holders of the same Fenton
Entitlement is suspended, or the application of the Customary Fishing
Entitlement to the area of the bed of the Waterway over which the Customary
Fishing Entitlement is created is terminated.

(b) on suspension of a Fenton Entitlement pursuant to clause 14.6.15(a)
and upon application by the Holders to the Minister of Maori Affairs, the
Crown shall take reasonable steps to reinstate that Fenton Entitlement (varied,
if necessary, by agreement) or grant a replacement area of Entitlement Land over
another site meeting the criteria set out in clauses 14.6.2(a), 14.6.7
and 14.6.9(a) and identified pursuant to similar processes used by
the parties for identification of Entitlement Land prior to entry into this
Deed;

(c) if the Holders of a Fenton Entitlement default in performing any of their
obligations under the Fenton Entitlement, and such default is capable of remedy,
the Crown may give written notice to the Holders specifying the default and the
remedy which the Crown requires (which remedy shall be reasonable in the
relevant circumstances);

(d) unless within two calendar months after the giving of notice pursuant to
clause14.6.15(c) the default specified in the notice has been remedied or
appropriate action has been taken to remedy the default as required in the
notice given pursuant to clause 14.6.15(c) the Crown may immediately
suspend the Fenton Entitlement by notice in writing to the Holders;

(e) if the default is not one which is capable of remedy the Crown may
immediately suspend the Fenton Entitlement by notice in writing to the Holders;
and

(f) on suspension of the Fenton Entitlement pursuant to clause14.16.15(d)
or clause 14.16.15(e) the Holders shall be entitled to apply to the
Minister of Maori Affairs for reinstatement of the Fenton Entitlement after the
expiry of two years from the date of suspension of the Fenton Entitlement.

14.6.16 Purposes of Creation of Fenton Entitlements

The Crown agrees that the Settlement Legislation will provide that, without
limiting clauses 14.6.17 or 14.6.18, the creation of the Fenton
Entitlements pursuant to this clause 14.6 will be for the sole purpose of
permitting Holders to occupy temporarily land close to the Waterways, as
provided in clause 14.6.2(b).

14.6.17 Rights of Third Parties

The Crown agrees that the Settlement Legislation will provide that, unless
expressly provided in this clause 14.6, the existence of the Fenton
Entitlements will not affect the lawful rights or interests of any third party
from time to time.

14.6.18 Limitation of Rights

The Crown agrees that the Settlement Legislation will provide that, unless
expressly provided in this clause 14.6, the existence of the Fenton
Entitlements will not of themselves 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 Entitlement Land.

14.6.19 Grant of Customary Fishing Entitlements

The Holders who are granted a Fenton Entitlement pursuant to clause
143.6.4, will also be granted a Customary Fishing Entitlement in the form
set out in Attachment 14.4, pursuant to clause 14.7.

14.6.20 Succession to Fenton Entitlements

The Crown agrees that the Settlement Legislation will provide that a Holder
of any Fenton Entitlement may not assign or grant a subentitlement to his or her
rights under that entitlement, but, notwithstanding clause 14.6.18, his
or her rights under the Fenton Entitlement shall be disposed of in accordance
with section 108 and 109 of the Te Ture Whenua Maori Act 1993.

14.7 CLAIM 3 (TAERUTU); CLAIM 4 (WAIMAIAIA); CLAIM 5
(TOROTOROA); CLAIM 6 (TE AKA AKA); AND CLAIM 10 (PUKATAHI AND TE HOURIRI) -
CUSTOMARY FISHING ENTITLEMENTS

14.7.1 Grant of Customary Fishing Entitlements

The Crown agrees that, in addition to the grant of Fenton Entitlements to
Holders in accordance with clause 14.6.4, the Settlement Legislation will
also provide for the grant of one renewable Customary Fishing Entitlement in the
form set out in Attachment 14.4 to the Holders of each Fenton
Entitlement. The Customary Fishing Entitlement will grant the Holders, subject
to clause 14.7.3(c), an entitlement to temporarily and exclusively occupy
the bed of a Waterway as described in clause 14.7.2, or an area of the
bed of a Waterway to be identified but having the characteristics described in
clause 14.7.3(a), for lawful fishing and gathering of natural resources.

14.7.2 Location of Customary Fishing Entitlements

The areas of the beds of Waterways over which the initial Customary Fishing
Entitlements are to be created have been determined by the Crown in agreement
with Te Runanga as follows:

(a) for the Waimaiaia reserve, a 100 metre long length entitlement within the
area marked "Customary Fishing Entitlement 1 & 2" as shown on Allocation
Plan A 421, 422, 423 & 424 (SO 19874), on the bed of the Saltwater Creek
Waterway extending from the true right bank of that Waterway to the midstream of
that Waterway;

(b) for the Torotoroa reserve, a 100 metre long length entitlement within the
area marked "Customary Fishing Entitlement 1 & 2" as shown on Allocation
Plan A 421, 422, 423 & 424 (SO 19874), on the bed of the Saltwater Creek
Waterway extending from the true right bank of that Waterway to the midstream of
that Waterway;

(c) for the Te Aka Aka reserve, a 100 metre long length entitlement within
the area marked "Customary Fishing Entitlement 3 & 4" as shown on
Allocation Plan A 421, 422, 423 & 424 (SO 19874), on the bed of the
channel of the Ashley River Waterway extending from the true left bank of the
channel of that Waterway to the midstream of that Waterway;

(d) for the Taerutu reserve, a 100 metre long length entitlement within the
area marked "Customary Fishing Entitlement 3 & 4" as shown on Allocation
Plan A421, 424, 423 & 424 (SO 19874), on the bed of the channel of the
Ashley River Waterway extending from the true left bank of the channel of that
Waterway to the midstream of that Waterway;

(e) for the Pukatahi reserve, the area marked "Customary Fishing Entitlement"
as shown on Allocation Plan A495 (SO 19888), on the bed of the Waihao
River Waterway extending from the true left bank of that Waterway to the
midstream of that Waterway; and

(f) for the Te Houriri reserve, the area marked "Customary Entitlement
Fishing" as shown on Allocation Plan A425 (SO 19875), on the bed of the
Te Houriri Waterway.

14.7.3 Characteristics of Customary Fishing Entitlements

Customary Fishing Entitlements will have the following characteristics:

(a) the area of the Customary Fishing Entitlement will be an area in the bed
of a Waterway of up to 100 metres in length and having the width set out in
clause 14.7.2, or the width otherwise agreed between the Land Holding
Agency, the Minister of Maori Affairs and the Holders on a site by site basis,
over which:

(i) the Crown has ownership; and

(ii) if the area is not managed and/or controlled by the Crown, the consent
of the managing and/or controlling body has been obtained,

and adjacent to which is land owned or managed by the Crown, or is an
esplanade reserve, esplanade strip or road reserve, whether or not managed by
the Crown. The area is to be conveniently accessible from, but not necessarily
directly adjacent to, the area of the Fenton Entitlement granted to the same
Holders;

(b) subject to clause 14.7.3(c), the Holders of the Customary
Fishing Entitlement will be entitled, during any time that their rights as
Holders under the Fenton Entitlement are being exercised, to the exclusive right
to use the bed of the Waterway within the area of the Customary Fishing
Entitlements for the purpose of lawfully fishing and the gathering of natural
resources;

(c) the Customary Fishing Entitlement will not prevent any person from
lawfully passing through the area to which the Customary fishing Entitlement
relates, whether on foot, or by boat, or otherwise; and

(d) in other respects the terms of the Customary Fishing Entitlement will
reflect the terms of the Fenton Entitlement granted to the same Holders pursuant
to clause14.6.4 (as far as those terms are applicable and not varied by
this clause 14.7) including the term, the number of days that the
Holders' rights may be exercised and the obligation to comply with all existing
laws, bylaws and regulations and land and water management practices, and in
applying this clause 14.7.3(d), all references to a Fenton Entitlement in
clause14.6 will be read as a reference to a Customary Fishing
Entitlement.

14.7.4 No Guarantee as to Quality of Fisheries

Te Runanga and the Crown agree and acknowledge that, subject to clause
14.6.15(a) the Holders of a Customary Fishing Entitlement pursuant to this
clause 14.7 accept the entitlement area in the form they receive it and
that neither TeRunanga nor the Crown makes any guarantee or statement as to the
nature, quality or quantity of the customary fisheries or other natural
resources in the entitlement area.

14.8 CLAIM 7 (TE IHUTAI)

Preamble

A. The substance of the claim to the Waitangi Tribunal in respect of this
reserve was that:

(i) although this land was proclaimed to be inalienable by sale, mortgage or
lease for a period of over 21 years, in 1956 the Crown compulsorily acquired the
ten acre reserve under Public Works Act procedures without consulting the
owners; and

(ii) the compensation paid for this reserve was inadequate and that only the
replacement of the land with a similar piece of land would satisfy this claim.

B. The Tribunal made no specific finding in respect of this claim, but
included it in its general criticism of the Crown for failing to protect the few
mahinga kai areas which had been set aside.

14.8.1 Property Description

In this clause 14.8, Te Ihutai Site means the land described as
Canterbury Land District, Waimakariri District Council, 4.0 hectares,
approximately, being Sections 1, 2 and part Section 4, Reserve 91 (SO 3033).
Part New Zealand Gazette1886 page209. Subject to survey as shown on
Allocation Plan A 200 (SO 19865).

14.8.2 Vesting of Property

The Crown agrees that the Settlement Legislation will provide for the
revocation of the reservation of the Te Ihutai Site as a local purpose (river
protection) reserve and the vesting of the fee simple estate in that site in the
Ancillary Claims Trustees.

14.9 CLAIM 8 (AHURIRI)

Preamble

A. The substance of the claim to the Waitangi Tribunal in respect of this
fishing reserve was that the drainage of Te Waihora (Lake Ellesmere) has meant
that the reserve that was granted to Ngai Tahu at the Ahuriri Lagoon/Halswell
River site no longer has access to the fisheries and can no longer be used for
the purpose for which it was set aside.

B. The Tribunal found that the Crown was duty-bound to protect Ahuriri Lagoon
for the continued use and enjoyment of the tribe and that its failure to do so
was in breach of the principles of the Treaty.

14.9.1 Property Description

In this clause 14.9, Ahuriri - Te Waihora Site means the land
described as Canterbury Land District, Selwyn District Council, 2.0 hectares,
approximately, being Part Reserve 959 (SO 8677 and SO 8678). Subject to survey
as shown on Allocation Plan A 198 (SO 19863).

14.9.2 Vesting of Property

The Crown agrees that the Settlement Legislation will provide for the removal
of the status of conservation (stewardship) area managed for conservation
purposes from the Ahuriri - Te Waihora Site, notwithstanding Part V of the
Conservation Act 1987, and the vesting of the fee simple estate in that site in
the Ancillary Claims Trustees.