Ngai Tahu Settlement
Doug Graham Treaty of Waitangi NegotiationsSECTION 14 : ANCILLARY CLAIMS
...Continued
14.15 CLAIM 18 (BRUCE BAY MR 6)
Preamble
A. The substance of the claim to the Waitangi Tribunal was that:
(i) the original reserve was reduced on three separate occasions when the
Crown took land from the reserve under the Public Works Act;
(ii) an area of accretion was not taken into account when assessing the
compensation due to the owners;
(iii) the Crown should have offered the owners alternative lands;
(iv) in only one of the three cases did the Crown make any attempt to notify
the owners; and
(v) areas of land no longer required for the purposes for which they were
taken have not been returned.
B. The Tribunal found that:
(i) the failure of the Crown to consult or notify Ngai Tahu when seeking
compulsory acquisition of Ngai Tahu land under the Public Works Act was a breach
of the principles of the Treaty; and
(ii) this was another example where the small area reserved to Ngai Tahu has
been substantially reduced by the actions of the Crown.
14.15.1 Property Descriptions
In this clause 14.15:
Bruce Bay Site (No. 1) means the land described as Westland Land
District, Westland District Council, 1.0 hectare, approximately, being Legal
Road adjoining Reserve 2113 and Section 1 SO Plan 12347. Subject to survey as
shown on Allocation Plan A480, 481 & 482 (SO 12507);
Bruce Bay Site (No. 2) means the land described as Westland Land
District, Westland District Council, 0.1500 hectares, more or less, being Part
Reserve 2113 (SO 5201). Part New Zealand Gazette 1986 page 4859. Subject to
survey as shown on Allocation Plan A480, 481 & 482 (SO 12507), that
is not used for hall purposes;
Bruce Bay Site (No. 3) means the land described as Westland Land
District, Westland District Council, 0.4100 hectares, more or less, being
Section 1 SO Plan 12347. Subject to the Land Act 1948. Subject to survey as
shown on Allocation Plan A480, 481 & 482 (SO 12507);
Bruce Bay Site (No. 4) means the land described as Westland Land
District, Westland District Council, 21.50 hectares, approximately, being Legal
Road adjoining State Highway No. 6 and Makatata Stream. Subject to survey as
shown on Allocation Plan A483 & 485 (SO 12508) and bounded on one
side by the track marked RP 670/10.2;
Bruce Bay Site (No. 5) means the land described as Westland Land
District, Westland District Council, 3.0 hectares, approximately, being Legal
Road adjoining State Highway 6 and Rural Section 5736, Section 1, SO 12348 and
Makatata Stream. Subject to survey as shown on Allocation Plan A484 (SO
12501); and
Bruce Bay Site (No. 6) means the land described as Westland Land
District, Westland District Council, 35.5086 hectares, approximately, being
Reserve 1219 (SO 3364), subject to Section 62, Conservation Act 1987. Subject to
survey as shown on Allocation Plan A483 & 485 (SO 12508).
14.15.2 Vesting of Properties
The Crown agrees that the Settlement Legislation will provide for:
(a) the stopping of the legal but unformed road on the Bruce Bay Site (No. 1)
the Bruce Bay Site (No.3), and the Bruce Bay Site (No.4), notwithstanding
sections 116(2)(d), 117 and 118 of the Public Works Act 1981 and section 342 of
the Local Government Act 1974, and the vesting of the fee simple estate in the
Bruce Bay Site (No. 1) the Bruce Bay Site (No.3), and the Bruce Bay Site (No.4)
in the Ancillary Claims Trustees, subject to:
(i) the Ancillary Claims Trustees granting an easement over the Bruce Bay
Site (No. 1) providing access from the state highway to the river and to Bruce
Bay Site (No. 2) and Bruce Bay Site (No. 3) in favour of the occupiers of those
sites and Transit New Zealand in the form set out in Attachment 14.8
before the fee simple estate in the Bruce Bay Site (No. 1) is vested in the
appropriate Beneficiaries;
(ii) an existing encroachment agreement dated 5October 1993 between Transit
New Zealand and Brian David Ronald Titheridge allowing the encroaching party to
construct and maintain a residence, shed and workshop on the Bruce Bay Site (No.
3);
(iii) the Ancillary Claims Trustee granting an easement over the Bruce Bay
Site (No. 3) providing access from the structures on that site to the Bruce Bay
Site (No. 1) in favour of the occupiers of the Bruce Bay Site (No. 3) in the
form set out in Attachment 14.9 before the fee simple in that site is
vested in the appropriate Beneficiaries;
(b) the revocation of the reservation of the Bruce Bay Site (No. 2) as a
local purpose (site for a public hall) reserve on the Settlement Date and the
vesting of the fee simple estate in the Bruce Bay Site (No. 2) in the Ancillary
Claims Trustees, subject to the Ancillary Claims Trustees offering formal
licences or leases for a period of not less than 5 years to the present
occupiers of the Bruce Bay Site (No. 2) within one year of the vesting of that
site, but before the fee simple estate in that site is vested in the appropriate
Beneficiaries;
(c) the stopping of the legal but unformed road on all of the Bruce Bay Site
(No.5) except the 20 metre wide strip through this site as shown on
Allocation PlanA484 (SO 12501), notwithstanding sections 116(2)(d), 117
and 118 of the Public Works Act 1981 and section 342 of the Local Government Act
1974, and the vesting of the fee simple estate in the Bruce Bay Site (No. 5) in
the Ancillary Claims Trustees; and
(d) the removal of the status of conservation (stewardship) area managed for
conservation purposes from the Bruce Bay Site (No. 6), notwithstanding Part V of
the Conservation Act 1987, and the vesting of the fee simple estate in the Bruce
Bay Site (No.6) in the Ancillary Claims Trustees, subject to an existing grazing
licence, dated 4 April 1994 between the Minister of Conservation and Bannock
Brae Farms Limited.
14.15.3 Status Quo Retained Until Leases Issued
Te Runanga and the Crown agree that as a condition of clause
14.15.2(b), the Crown may require the Ancillary Claims Trustees, as a Ngai
Tahu Recipient, to duly execute a deed of covenant in the form set out in
Attachment 20.3 in accordance with clause20.10 (Ngai Tahu
Recipients Bound by Deed) whereby the Ancillary Claims Trustees will agree that
until leases are offered to the present occupiers of the Bruce Bay Site (No. 2)
in accordance with clause 14.15.2(b), their occupation of the land will
not be interfered with or altered by the Ancillary Claims Trustees.
14.16 CLAIM 27 (WATARaKAU MR 45); CLAIM 41 (MaWHERANUI);
CLAIM 42 (WHAKAPOAI); CLAIM 43 (WESTPORT SECTIONS 721 AND 732); CLAIM 44
(KOTUKUWHAKAOHO MR 34) and CLAIM 46 (ARAHURA MR 30)
Preamble
A. The Mawhera Claims as numbered above contained a variety of alleged
breaches of the Treaty of Waitangi. In general terms the substance of the claims
to the Waitangi Tribunal was that:
(i) the Crown failed to set aside all of the lands it contracted to reserve
under the Arahura Purchase Deed;
(ii) the Crown took land from a number of reserves under the Public Works
Act;
(iii) the application of a statutory scheme (Maori Reserved Lands Act)
administered by the Maori Trustee to Maori lands removed these lands from the
control and management of the Maori owners; and
(iv) in dealing with these reserves the Maori Trustee was under no statutory
obligation to consult with the Maori owners.
B. The Tribunal found that:
(i) the Crown failed to set aside some of the lands it had undertaken to
reserve under the purchase agreement;
(ii) the provisions of the Public Works Act which allowed for the taking of
Maori land without notifying or consulting the owners was a breach of the
principles of the Treaty of Waitangi;
(iii) by placing Maori land under statutory schemes, Maori were unable to
exercise rangatiratanga over their lands, which was in direct contravention of
the guarantees of Article 2 of the Treaty; and
(iv) the lack of a provision for consultation with the owners on decisions
affecting lands administered by the Maori Trustee was a further breach of the
principles of the Treaty of Waitangi.
14.16.1 Property Descriptions
In this clause 14.16:
Greymouth Railway Land means the land described as Westland Land
District, Grey District Council, (A) 0.3433 hectares approximately, being
Sections 312 and 132, Part Sections 133 and 134, Block IX and Part Section 311,
Block X, Maori Reserve 31 (SOs 4869 and 7830). Balance Certificate of Title
3A/490. (B) 0.1659 hectares approximately, being Part Mount Street (SO 5280).
All New Zealand Gazette Notice 1973 page 1127 (Document GN 43976). (C) 1.2000
hectares approximately, being Part Reserve 804 (SO 7830). Part Certificate of
Title 2D/1212. (D) 0.2188 hectares approximately, being Part Sections 284B,
284C, 284D, 284E, 284F, and Sections 284I, 284J, 284K, Block 8, Maori Reserve 31
and Part of Mount Street (SO 2318). Part New Zealand Gazette 1924 page 113
(Proclamation 184). (E) 0.0020 hectares approximately, being Part Section 284G,
Block 8, Maori Reserve 31 (SO 5280). Part New Zealand Gazette 1970 page 886
(Document GN 38774). (F) 0.0300 hectares approximately, being Part Block 8,
Maori Reserve 31 (SO 5036). Part Certificate of Title 3A/489. Subject to survey
as shown on Allocation Plan A 436 (SO 12500);
Lake Kaniere Site means the land described as Westland Land District,
Westland District Council, 1775 square metres, more or less, being Section 1, SO
12072. All CT 8A/1279. As shown on Allocation Plan A 501 (SO 12503); and
Mawhera Chambers means the land described as Westland Land District,
Grey District Council, 0.1661 hectares, more or less, being Lot 1, DP 2696, and
Section 1, SO Plan 11689. All Certificate of Title 8B/300 as shown on
Allocation Plan A 212 (SO 12498);
Rapahoe Site means the land described as Westland Land
District, Grey District Council, 3.5190 hectares, more or less, being Sections 1
and 2 SO Plan 12138. Subject to the Land Act 1948 as shown on Allocation Plan
A 211 (SO 12497).
14.16.2 Application of Section 40 of the Public Works Act 1981
The Crown acknowledges that the Mawhera Incorporation is interested in
certain Maori Land Court proceedings (more fully described in clause
14.16.3(c) relating to the application of the offer back procedure for the
Mawhera Chambers, and that similar considerations would apply to the Greymouth
Railway Land. In view of the fact that the likely outcome of those proceedings
would have been that the Court would have vested the Mawhera Chambers in the
Mawhera Incorporation, the Crown agrees that it is appropriate not to require
the completion of the offer back procedure in section 40 of the Public Works Act
1981 for the Mawhera Chambers or the Greymouth Railway Land.
14.16.3 Settlement Legislation : Greymouth Properties
The Crown agrees that the Settlement Legislation will provide:
(a) for the fee simple estate in the Mawhera Chambers to be vested in the
Mawhera Incorporation, subject to an existing lease dated 14September 1994
between GPS Properties Limited and Challenge Developments Limited, such lease
having been assigned to Grey District Youth and Community Centre Incorporated by
Deed of Assignment of Lease dated 4June 1997;
(b) for the fee simple estate in the Greymouth Railway Land to be vested in
the Mawhera Incorporation, subject to:
(i) an easement to be granted in favour of Her Majesty the Queen for railway
purposes, for the purposes of using and maintaining the pedestrian over-bridge
on the Greymouth Railway Land, in a form reasonably satisfactory to both Te
Runanga and Her Majesty the Queen; and
(ii) two easements to drain stormwater and sewerage to be granted in favour
of the Grey District Council in a form reasonably satisfactory to both Te
Runanga and the Grey District Council; and
(c) that Part III of the Public Works Act 1981 will not apply in respect of a
Greymouth Property.
14.16.4 Settlement Legislation : Other Properties
The Crown agrees that the Settlement Legislation will provide:
(a) for the fee simple estate in the Lake Kaniere Site to be vested in the
Mawhera Incorporation, subject to an existing Residential Tenancy Agreement
dated 5October 1995 between Knight Frank NZ Limited as agent for the Department
of Survey and Land Information and Michael Kevin Milne and Ngaire Rae Clark;
(b) for the fee simple estate in the Rapahoe Site to be vested in the Mawhera
Incorporation, subject to an existing coal mining licence dated 2 December 1993
between Greymouth Coal Limited and the Minister of Energy pursuant to section 41
of the Coal Mines Act 1979; and
(c) for the Maori Land Court proceedings in relation to the Mawhera
Incorporation, being Case 16359 (Lot 1 DP 2696 and Section 1, SO Plan 11689
Block XII Greymouth SD) reported in 77 South Island Minute Book 341 to be
discontinued.
14.17 CLAIM 50 (KARITANE)
Preamble
A. The substance of the claim before the Waitangi Tribunal was that an area
of land adjacent to an urupa site on the foreshore had been removed from the
ownership, control and management of the Maori owners and the trustees appointed
to look after the reserve. The claim also concerned the maintenance and
ownership of the area of land on the foreshore claimed as accretion by the
owners and trustees of the adjacent reserve.
B. The Tribunal found that the Crown representatives dealing with the
Waikouaiti Maori Foreshore Trust Board fell short of the duty of the Crown to
act in good faith and to protect Ngai Tahu rangatiratanga as guaranteed by the
Treaty; and
C. The Tribunal recommended that the entire question of whether the land in
question is accretion or reclamation be re-examined.
14.17.1 Property Description
In this clause 14.17, Karitane Site means the land described as
Otago Land District, Dunedin City, 3465 square metres, more or less, being
Section 26, Block XXV, Town of Waikouaiti, (SO Plan 16569) subject to survey as
shown on Allocation Plan A 187 (SO 24697). Part Gazette Notice 334219
(New Zealand Gazette 1968 page 2038).
14.17.2 Crown to Write to the Dunedin City Council
The Crown will write to the Dunedin City Council in the form set out in
Attachment 14.10, to encourage it to reach a mutually satisfactory
agreement with the Waikouaiti Maori Foreshore Trust Board as to the status and
ownership of the disputed part of the Karitane Site.
14.17.3 Ngai Tahu May Seek Order From Maori Land Court
The Crown acknowledges that if the Dunedin City Council and the Waikouaiti
Maori Foreshore Trust Board fail to reach a mutually satisfactory agreement as
to the status and ownership of the disputed part of the Karitane Site, the
Waikouaiti Maori Foreshore Trust Board, or members of Ngai Tahu Whanui, may
apply to the Maori Land Court under section 131 of the Te Ture Whenua Maori Act
1993 for the exercise of the Maori Land Court's jurisdiction to determine and
declare, by a status order, the particular status, and the boundaries dividing
any land of different status, of the Karitane Site.
14.18 CLAIM 52 (HARINGTON POINT)
Preamble
A. The substance of the claim before the Waitangi Tribunal was that:
(i) land was taken at Harington Point for defence purposes in 1890;
(ii) the land had not been returned to the owners even though it was many
years since the Crown indicated that it was no longer required for this purpose;
and
(iii) no compensation was paid for the Crown's acquisition of the land.
B. The Tribunal found that the Crown had breached the principles of the
Treaty by failing to consult the descendants of the original owners regarding
the fact that since 1958 the land has not been required for defence purposes.
C. The Tribunal commended the fact that prior to the time of the hearing the
Crown had taken steps to vest the land in the descendants of Wiremu Potiki.
D. The Tribunal did not uphold the claim that the owners were not compensated
for the original acquisition.
14.18.1 Property Description
In this clause 14.18, Harington Point Site means the land
described as Otago Land District, Dunedin City, 2.063 hectare, more or less,
being Part Section 75, Block II, Portobello Survey District, (SO 21449) as shown
on Allocation Plan A 189 (SO 24703). Exclusive of such mines and minerals
as are held in CT 3C/219: All Gazette Notice 677975 (New Zealand Gazette 1987
page 1695) and Gazette Notice 241301 (New Zealand Gazette 1961 page 1700).
14.18.2 Previous Vesting of Property
Te Runanga and the Crown note that the fee simple estate in the Harington
Point Site was vested in Wiremu Potiki by a Maori Land Court order of 26
February 1997 and that Wiremu Potiki's successors were appointed as trustees of
the Harington Point Site. The Crown agrees that in order to fulfil the terms of
the vesting made by the Maori Land Court, and to provide redress for the
Harington Point Site, it will pay the offer back price of $4,500 for the
Harington Point Site as set by the Maori Land Court to the appropriate Crown
Body on the Settlement Date.
14.19 CLAIM 112 (TAUTUKU)
Preamble
A. There was no evidence presented to the Tribunal on this claim. However,
subsequent investigation showed that some areas of this reserve had been sold to
the Crown for the purposes of establishing scenic reserves. These areas were
sold on the understanding that the Crown would provide for legal access to the
land behind those scenic reserves.
B. Because there was no evidence presented, the Tribunal made no finding on
this claim.
14.19.1 Property Descriptions
In this clause 14.19:
Tautuku Land means the area of land described as being in the Tautuku
Survey District in The New Zealand Gazette 1908, page 2576 and described as the
Tautuku Block in The New Zealand Gazette 1916, page 3818 as shown on
Allocation Plan A223, sheet 1 of 2 (SO 24737); and
Tautuku Site means the 88.2063 hectares, more or less, being Section2,
Block XIII Tautuku District, as described in CT 168/263 (Otago Registry) and as
shown on Allocation Plan A223, sheet 2 of 2 (SO 24737).
14.19.2 Access to be Provided to Tautuku Site
The Crown agrees that in order to provide access to the Tautuku Site it will,
upon application by the owners or trustees, as appropriate, grant an easement in
accordance with section 59A of the Reserves Act 1977, notwithstanding
sections 17S to 17W, 17Y(1)(a), 17Y(1)(2) and 17Z(3) of the Conservation
Act 1987, in the form set out in Attachment 14.11, in favour of those
owners or trustees and their invitees over an undefined area being part Section
1, Block XIII Tautuku Survey District, [(ML Plan 239)]. Subject to survey as
shown on Allocation Plan A223, Sheet 2 of 2 (SO 24737). [Part Gazette
Notice 529733 (New Zealand Gazette 1979 page 3308)].
14.19.3 Crown's Obligation in Relation to Access
The Crown agrees that it will take reasonable steps, notwithstanding section
129B of the Property Law Act 1952 but otherwise in accordance with existing
legislation, to provide legal access to any section within the Tautuku Land if
the owners of the piece of land to which access is sought can establish that:
(a) the Crown's past purchase, acquisition or dealing with part of the
Tautuku Land resulted in access being unavailable to the land in question;
(b) at the time of the Crown's purchase, acquisition or dealing with that
part of the Tautuku Land the Crown made an undertaking to provide access to the
land in question; and
(c) the Crown still retains ownership and control of the Tautuku Land which
was subject to the Crown's purchase, acquisition or dealing and resulted in
access becoming unavailable to the land in question.
14.19.4 Limit of the Crown's Commitment
Te Runanga and the Crown agree that the Crown's commitment in clause
14.19.3 does not of itself extend to forming, or providing funding for the
forming of any physical access to the Tautuku Land.
14.20 CLAIM 56 (MARANUKU)
Preamble
A. The substance of the claim to the Waitangi Tribunal was that in 1909,
despite the fact that the land was said to be inalienable, the Crown took 122
acres of land from the reserve under the Public Works Act without notifying the
owners of the land.
B. The Tribunal found that the taking of Maori land under the Public Works
Act without notification given to the owners of Section 48 to be a breach of
Article II of the Treaty.
14.20.1 Property Description
In this clause 14.20, Substitute Maranuku Site means the land
described as Otago Land District, Clutha District Council, 78.9488 hectares,
approximately being: Section 2 of 8 Block II Glenomaru Survey District (SO Plan
521). All of Certificates of Title 27/130. Part Section 7 Block II Glenomaru
Survey District, (SO Plans 521, 16842 and Deposited Plan 2651). Balance of
Certificate of Title 205/280. Lot 1 DP 18286. All of Certificate of Title
9C/1209, appurtenant hereto is a right of way over Part Section 15 Block II
Glenomaru Survey District (CT 9C/1210) shown marked "ROW A" on DP 18286 created
by Transfer 615987/2. Subject to survey as shown on Allocation Plan A 510 (SO
24717).
14.20.2 Vesting of Property
The Crown agrees that the Settlement Legislation will provide for the vesting
of the fee simple estate in the Substitute Maranuku Site in the Ancillary Claims
Trustees.