Ngai Tahu Settlement

SECTION 14 : ANCILLARY CLAIMS

...Continued

14.10 CLAIM 11 (WAINONO LAGOON)

Preamble

A. The substance of the claim to the Waitangi Tribunal was that:

(i) the Crown had failed to protect and safeguard the significant Ngai Tahu
mahinga kai interest in the Wainono Lagoon; and

(ii) drainage, pollution and the issuing of commercial fishing permits
without adequate safeguards had led to the over-fishing of eels.

B. The Waitangi Tribunal acknowledged that Wainono is a mahinga kai area of
significant importance to Ngai Tahu and commented on the need for there to be a
greater involvement of Ngai Tahu in the management of the area.

C. The Tribunal also stated that Wainono should be developed in partnership
with Ngai Tahu of South Canterbury as a traditional fishing resource to
compensate for the loss of other mahinga kai.

14.10.1 Property Description

In this clause 14.10, Wainono Site means the land described as
Canterbury Land District, Waimate District Council, 1.6187 hectares more or less
being Reserve 2688 (SO 4399). Part NewZealand Gazette 1886 page 209 as shown on
Allocation Plan A 199 (SO 19864).

14.10.2 Vesting of Property

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

14.11 CLAIM 14 (HAWEA/WANAKA)

Preamble

A. The substance of the claim to the Waitangi Tribunal was that:

(i) there were three reserves which should have been set aside at Lake Hawea
including a 100 acre fishing reserve and a 540 acre reserve at Bushy Point;

(ii) the Bushy Point reserve was never set aside;

(iii) when the Crown took part of the 100 acre fishing reserve under the
Public Works Act, it failed to consult with Ngai Tahu, or to have regard, when
setting the level of compensation, to the loss of the fishing reserve; and

(iv) the Crown alienated the balance of the fishing reserve without
consultation with Ngai Tahu.

B. In the Tribunal's report:

(i) both elements of the claim in respect of the fishing reserve were upheld;
but

(ii) the claim in respect of the non-allocation of land at Bushy Point was
not upheld.

C. The Tribunal supported a proposal that 'compensation in land' should be
given to Ngai Tahu for the loss of its fishery reserve.

14.11.1 Property Descriptions

In this clause 14.11:

Bushy Point Site means the land described as Otago Land District,
Queenstown Lakes District Council, an undefined area (subject to survey) being
part recreation reserve, BlockI, mid Hawea Survey District, (SO Plan 2289).
Subject to survey as shown on Allocation Plan A238 (SO 24696). Part New
Zealand Gazette 1891 page 1049 subject to a proposed Nga Whenua Rahui kawenata,
and an undefined area being Part Recreation Reserve, Block I, Mid Hawea Survey
District (SO Plan 12464) subject to survey as shown on Allocation Plan A238
(SO 24696) Part Gazette Notice 267479 (New Zealand Gazette 1964, page 14)
subject to a proposed Nga Whenua Rahui kawenata;

Lake Side Site (No. 1) means the land described as Otago Land
District, Queenstown Lakes District Council, an undefined parcel being Part
Run798, Block I, Mid Wanaka Survey District (SO Plan 19256). Subject to survey
as shown (D) on Allocation Plan A239 (SO 24708);

Lake Side Site (No. 2) means the land described as Otago Land
District, Queenstown Lakes District Council, an undefined parcel being Part
Run798, Block I, Mid Wanaka Survey District (SO Plan 19256). Subject to survey
as shown (I) on Allocation Plan A 239 (SO 24708);

Lake Side Site (No. 3) means the land described as Otago Land
District, Queenstown Lakes District Council, an undefined (subject to survey)
being Parts Run 798, Block I, Mid Wanaka Survey District (SO Plan 19256).
Subject to survey as shown (J) on Allocation Plan A 239 (SO 24708); and

Remaining Lake Side Sites means the land described as Otago Land
District, Queenstown Lakes District Council, an undefined area of Proposed
Surplus Land being Part Run 579, (SO 965). Subject to survey as shown (A) on
Allocation Plan A 508 (SO 24677). Part proclamation 230822, (New Zealand
Gazette 1960 page 750) (SO 12464). An undefined area of Proposed Surplus Land
being Part Section 1, Block I Mid Wanaka Survey District (SO 8322). Subject to
survey as shown (B) on Allocation Plan A 508 (SO 24677). Part Gazette
Notice 267479, (New Zealand Gazette 1964 page 14) (SO 12464). An undefined area
of Proposed Surplus Land being Parts Run 430B, (SO 261). Subject to survey as
shown (C & F) on Allocation Plan A 508 (SO 24677). Parts Proclamation
230822, (New Zealand Gazette 1960 page 750) (SO 12464). An undefined area of
Proposed Surplus Land being Part Closed Road, Block I, Mid Wanaka Survey
District (SO 12464). Subject to survey as shown (E) on Allocation Plan A 508
(SO 24677). Part Proclamation 245462, New Zealand Gazette 1962 page 463 (SO
12464). An undefined area of Proposed Surplus Land being Part Run 338a (SO 261).
Subject to survey as shown (H) on Allocation Plan A 508 (SO 24677). Part
Proclamation 230822, (New Zealand Gazette 1960 page 750). (SO 12464).

14.11.2 Vesting of Properties

The Crown agrees that the Settlement Legislation will provide:

(a) for the revocation of the reservation of the Bushy Point Site as a
recreation reserve and the vesting of the fee simple estate in the Bushy Point
Site in the Ancillary Claims Trustees, subject to:

(i) the reservation of a marginal strip of 20 metres wide extending along and
abutting the landward margin of the bed of the river adjoining the Bushy Point
Site as if it had been reserved pursuant to section 24(1)(c) of the Conservation
Act 1987;

(ii) an operating easement to be granted by the Crown in favour of Contact
Energy Limited over part of the Bushy Point Site in the form set out in
Attachment 14.5, or in such other form agreed to by both the Crown and
Contact Energy Limited, before the fee simple estate in the Bushy Point Site is
vested in the Ancillary Claims Trustees;

(iii) an existing grazing licence dated 2 July 1996 between the Hunter Valley
Station Limited and an officer designated as Commissioner by the
Director-General of Conservation for the purposes of the Reserves Act 1977; and

(iv) the Ancillary Claims Trustees entering into and registering a Nga Whenua
Rahui kawenata relating to the protection of the Bushy Point Site and access
through the Bushy Point Site in the form set out in Attachment 14.6
before the fee simple estate in the Bushy Point Site is vested in the
appropriate Beneficiaries;

(b) for the Nga Whenua Rahui kawenata referred to in
clause14.11.2(a)(iv) to be deemed to have been entered into pursuant to
section 77A of the Reserves Act 1977, notwithstanding the fact that the Bushy
Point Site is not Maori land;

(c) for the Nga Whenua Rahui kawenata referred to in clause
14.11.2(a)(iv) to be in perpetuity subject to a condition that at agreed
intervals of not less than 25 years the parties to the Nga Whenua Rahui kawenata
shall review the objectives, conditions, and continuance of the Nga Whenua Rahui
kawenata, and on such reviews the parties may mutually agree that the Nga Whenua
Rahui kawenata shall be terminated and that the Crown shall have regard to the
manawhenua of the owner of the Bushy Point Site, as provided for in section
77A(1)(b) of the Reserves Act 1977, but the owner of the Bushy Point Site may
only terminate the Nga Whenua Rahui kawenata by agreement with the Minister of
Conservation;

(d) that the appropriate District Land Registrar shall register the Nga
Whenua Rahui kawenata referred to in clause 14.11.2(a)(iv) as soon as it
is duly executed and presented for registration by the Ancillary Claims
Trustees; and

(e) for the vesting of the fee simple estate in:

(i) the Lake Side Site (No. 1);

(ii) the Lake Side Site (No. 2); and

(iii) the Lake Side Site (No. 3),

in the Ancillary Claims Trustees.

14.11.3 Future Transfer of the Remaining Lake Side Sites

The Crown agrees that the Settlement Legislation will provide that, if the
process set out in section 40 of the Public Works Act 1981 is invoked in
relation to the Remaining Lake Side Sites and it is found that there are no
persons from whom those sites were acquired, or successors of such persons, as
those terms are used in section 40 of the Public Works Act 1981, then:

(a) the Beneficiaries of claim 14 will be deemed to be the persons from whom
the Remaining Lake Side Sites were acquired for the purposes of section 40 of
the Public Works Act 1981; and

(b) sections 40(2)(c) and 40(2)(d) shall not apply to the process set out in
section 40 of the Public Works Act 1981 in its application to those
Beneficiaries and the Remaining Lake Side Sites.

14.12 CLAIM 53 (LAKE TATAWAI)

Preamble

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

(i) despite the lake being reserved to Ngai Tahu in 1902 as a fishing
reserve, the Crown had failed to protect and safeguard the mahinga kai interest
in Lake Tatawai;

(ii) the Crown passed the Taieri River Improvement Act 1920, which allowed
for the lake to be drained without consulting with Ngai Tahu; and

(iii) although this Act did allow for some compensation to be provided to
Ngai Tahu this never occurred.

B. The Tribunal upheld all aspects of this claim. In particular the Tribunal
found that:

(i) there was a duty on the Crown to protect those reserves that were
specially set aside for Maori fishing purposes; and

(ii) as a consequence there was a duty on the Crown to consult and provide
alternative access to mahinga kai.

14.12.1 Property Description

In this clause 14.12, Tatawai Replacement Site means the land
described as Otago Land District, Clutha District 56.5548 hectares, more or
less, being Section 5, Block XXIII, Waihola Survey District (SO Plan 1742). Part
Certificate of Title 428/22 subject to Covenant under Section 22 Queen Elizabeth
The Second National Trust Act 1977 registered as 651066 as shown marked "A" on
Allocation Plan A 500 (SO 24691).

14.12.2 Vesting of Property

Subject to clauses 11.2.4 to 11.2.4B, the Crown agrees that the
Settlement Legislation will provide for the vesting of the fee simple estate in
the Tatawai Replacement Site in the Ancillary Claims Trustees, subject to a
covenant numbered 651066 entered into under section 22 of the Queen Elizabeth
The Second National Trust Act 1977 on 4 December 1985 between Ducks Unlimited
(N.Z.) Incorporated and the Queen Elizabeth the Second National Trust, and an
unregistered agreement dated 13July 1985 between Horace Alexander Sinclair and
Ducks Unlimited (N.Z.) Incorporated (as described in Attachment 11.3).

14.13 CLAIM 55 (WAIKOUAITI LAGOON)

Preamble

A. The substance of the claim to the Waitangi Tribunal was that:

(i) a fishery easement on the Matainaka (Hawksbury) Lagoon that was granted
to Ngai Tahu by Judge Fenton in 1868 is now designated as a wildlife reserve;
and

(ii) the classification of the lagoon as a Government Purposes (Wildlife
Management) Reserve means that Ngai Tahu are no longer able to exercise the
right to fish or hunt waterfowl within the lagoon without the written permission
of the Minister of Conservation.

B. The Tribunal considered this loss of access to mahinga kai to be a breach
of both:

(i) the terms of the Kemp Purchase; and

(ii) the principles of the Treaty of Waitangi.

14.13.1 Property Description

In this clause 14.13, Waikouaiti Lagoon means the land also
known as Hawksbury or Matainaka Lagoon and described as Otago Land District,
Dunedin City, 6280 square metres, more or less, being Lot 14, DP Plan 22723.
Subject to rights to drain stormwater created by T828881/16. All Gazette Notice
828881/15 (New Zealand Gazette 1993 page 1025). 61.4 hectares, more or less,
being Section 32, Block VI, Hawksbury Survey District (SO Plan 18322). All
Gazette Notice 595465 (New Zealand Gazette 1983 page 1494). 1.2 hectares, more
or less, being Section 36, Block VI Hawkesbury Survey District (SO Plan 21933).
All Gazette Notice 749232/2 (New Zealand Gazette 1990 page 523). As shown on
Allocation Plan A 201 (SO 24695).

14.13.2 Beneficial Owners of Reserve Authorised to Catch Fish

The Crown agrees that the Settlement Legislation will confirm that,
notwithstanding anything to the contrary in the Reserves Act 1977, the
beneficial owners of the Matainaka 1N reserve continue to be entitled to catch
fish from the Waikouaiti Lagoon and therefore the Settlement Legislation will
deem them to be authorised pursuant to section 50 of the Reserves Act 1977 to
harvest fish, including indigenous fish, from the Waikouaiti Lagoon.

14.14 CLAIM 17 (ARAWHATA MR 1)

Preamble

A. The substance of the claim to the Waitangi Tribunal was that:

(i) the Crown had taken land from the reserve under the Public Works Act; or
alternatively

(ii) the Crown had failed to give title to the full area reserved for the
owners under the Arahura Purchase.

B. The Tribunal found that:

(i) Ngai Tahu did not receive land explicitly reserved to them under the
terms of the Arahura Purchase Deed; and

(ii) this was a breach of both the terms of the deed and of the principle of
the Treaty requiring the Crown to act towards its Treaty partner in good faith.

C. The claim that the Crown had taken land from the reserve under the Public
Works Act was not upheld.

14.14.1 Property Description

In this clause 14.14:

Arawhata Site means the land described as Westland Land District,
Westland District Council, 20.4400 hectares, more or less, being Section 1, SO
Plan 11836. Part CT 8A/496. Subject to a right to convey water in gross created
by Transfer 091679 as shown on Allocation Plan A 206 (SO 12495); and

Site B means the land described as Westland Land District, Westland
District Council, 20.4400 hectares approximately, being Parts Reserve 1692,
Reserve 169 and Rural Section 561, subject to Section 62 Conservation Act 1987,
Subject to Survey as shown marked "1" and "3" on Allocation Plan A 496 (SO
12509).

14.14.2 Public Works Procedures apply to Arawhata Site

The Crown agrees that it will, as soon as practicable after the date of this
Deed, request the Commissioner of Crown Lands to invoke the offer back procedure
under Part III of the Public Works Act 1981 in relation to the Arawhata Site.

14.14.3 Process if Offer Back Accepted

If the offer back made under the procedure invoked pursuant to clause
14.14.2 is accepted, the Commissioner of Crown Lands shall transfer the
Arawhata Site to the persons who accepted the offer in accordance with Part III
of the Public Works Act 1981 at the price determined by the Commissioner, and
report these matters to the Minister in Charge of Treaty of Waitangi
Negotiations. In that event, the Minister shall vest the fee simple estate in
Site B in the Ancillary Claims Trustees by notice in the NewZealand Gazette.

14.14.4 Process if Offer Back Rejected

If the offer back made under the procedure invoked pursuant to clause
14.14.2 is rejected, then the Commissioner of Crown Lands shall report this
matter to the Minister in Charge of Treaty of Waitangi Negotiations, and the
Minister shall then vest the fee simple estate in the Arawhata Site in the
Ancillary Claims Trustees by notice in the New Zealand Gazette, subject to an
existing easement in gross conferring the right to convey water over part of the
Arawhata Site in favour of Okuru Enterprises Limited.

14.14.5 Removal of Conservation Status

The Crown agrees that the Settlement Legislation will provide:

(a) that, if the Minister in Charge of Treaty of Waitangi Negotiations gives
notice in the New Zealand Gazette that the fee simple estate in Site B is to be
vested in the Ancillary Claims Trustees, then the status of conservation
(stewardship) area managed for conservation purposes will be deemed to be
removed from that site at the time such notice is given, notwithstanding Part V
of the Conservation Act 1987;

(b) such provisions as are required to empower and require the Minister in
Charge of Treaty of Waitangi Negotiations and the Commissioner of Crown Lands to
undertake the processes outlined in clauses 14.14.2 to 14.14.4
(inclusive) in relation to the Arawhata Site and Site B;

(c) that if Site B is vested, such vesting in the Ancillary Claims Trustees
pursuant to clause 14.14.3 is to be subject to the Ancillary Claims
Trustees entering into and registering a Nga Whenua Rahui kawenata relating to
the protection of Site B in the form set out in Attachment 14.7 before
the fee simple estate in that site is vested in the appropriate Beneficiaries;

(d) for the Nga Whenua Rahui kawenata referred to in clause 14.14.5(c)
to be deemed to have been entered into pursuant to section 77A of the
Reserves Act 1977, notwithstanding the fact that Site B is not Maori land;

(e) for the Nga Whenua Rahui kawenata referred to in clause 14.14.5(c)
to be in perpetuity subject to a condition that at agreed intervals of not
less than 25 years the parties to the Nga Whenua Rahui kawenata shall review the
objectives, conditions, and continuance of the Nga Whenua Rahui kawenata, and on
such reviews the parties may mutually agree that the Nga Whenua Rahui kawenata
shall be terminated and that the Crown shall have regard to the manawhenua of
the owner of Site B, as provided for in section 77A(1)(b) of the Reserves Act
1977, but the owner of Site B may only terminate the Nga Whenua Rahui kawenata
by agreement with the Minister of Conservation; and

(f) that the appropriate District Land Registrar shall register the Nga
Whenua Rahui kawenata referred to in clause 14.14.5(c) as soon as it is
duly executed and presented for registration by the Ancillary Claims Trustees.