Ngai Tahu Settlement

SECTION 14 : ANCILLARY CLAIMS

...Continued

14.21 CLAIM 57 (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 a
further 5 acres of land from the reserve under the Public Works Act without
adequately consulting with the owners of the land.

B. The Tribunal found that the lack of consultation or negotiation with the
Ngai Tahu owners of the block constituted a breach of the principles of the
Treaty.

C. At the time of the hearing, the Tribunal noted the Crown's recent efforts
to negotiate with the descendants of the former owners for the return of the
land and commended this course of action.

14.21.1 Property Description

In this clause 14.21, Maranuku Site means the land described as
Otago Land District, Clutha District Council, 9500 square metres, more or less,
being Section 4, SO Plan 22413. Subject to survey as shown on Allocation Plan
A 191 (SO 24694). Part Gazette 423175 (New Zealand Gazette 1974 page 869),
and 1.0 hectares, more or less, being Section 1, SO Plan 22413. As shown on
Allocation Plan A 191 (SO 24694). Part Gazette 423175 (New Zealand
Gazette 1974 page 869).

14.21.2 Public Works Act

Te Runanga and the Crown agree that the procedure for identification of
Beneficiaries set out in Attachment 14.2 will be modified in respect of
the Maranuku Site to reflect the fact that Part III of the Public Works Act 1981
applies to any disposal of that property by the Crown. Accordingly, in order to
preserve the rights of any persons entitled to have the Maranuku Site offered
back to them, the following process shall be followed:

(a) as soon as practicable after the date on which the Ancillary Claims Trust
is established, the Ancillary Claims Trustees shall make such inquiries as are
necessary to establish the persons from whom the Maranuku Site was taken, and
shall report on the outcome of those inquiries to the Commissioner of Crown
Lands;

(b) on receipt of the report of the Ancillary Claims Trustees, the
Commissioner of Crown Lands shall determine whether he or she agrees with the
findings of the Ancillary Claims Trustees. If:

(i) the Commissioner of Crown Lands agrees with those findings, then the
Ancillary Claims Trustees shall undertake the procedure outlined in
Attachment 14.2, except that they shall identify the persons who would be
entitled to have the Maranuku Site offered back to them if Part III of the
Public Works Act 1981 were invoked in relation to that property, and such
persons shall be deemed to be the Beneficiaries for the purposes of that
Attachment;

(ii) the Commissioner of Crown Lands does not agree with those findings, then
the Commissioner shall invoke the offer back procedure under Part III of the
Public Works Act 1981;

(c) if clause 14.21.2(b)(ii) applies, and the offer back made by the
Commissioner of Crown Lands under PartIII of the Public Works Act 1981 is
accepted, the Commissioner of Crown Lands shall give notice to that effect to
the Ancillary Claims Trustees, and the Ancillary Claims Trustees shall transfer
the Maranuku Site to the persons who accepted the offer in accordance with Part
III of the Public Works Act 1981 without charge and otherwise in such manner as
is specified in the Commissioner's notice;

(d) if clause 14.21.2(b)(ii) applies, and the offer back made by the
Commissioner of Crown Lands under Part III of the Public Works Act 1981 is not
accepted, then the Ancillary Claims Trustees shall undertake the procedure
outlined in Attachment 14.2.

14.21.3 Settlement Legislation

The Crown agrees that the Settlement Legislation will:

(a) provide for the fee simple estate in the Maranuku Site to be vested in
the Ancillary Claims Trustees, notwithstanding Part III of the Public Works Act
1981; and

(b) include such provisions as are required to empower and require the
Ancillary Claims Trustees and the Commissioner of Crown Lands to undertake the
processes outlined in this clause 14.21.

14.22 CLAIM 61 (WAIMUMU)

Preamble

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

(i) the Crown acquisition of this land in 1964 under the Public Works Act was
done without adequate consultation with the owners;

(ii) the area of land taken was well in excess of the Crown's requirements;

(iii) Ngai Tahu had requested the return of the "surplus" lands but the Crown
had failed to return that area; and

(iv) there was no evidence that the owners had received any compensation from
the Crown.

B. In upholding this claim the Tribunal found that:

(i) although the Crown had attempted to notify owners of the proposed taking,
too little time was allowed Maori owners to respond to the proposal;

(ii) the claimants were "justified in claiming that the 'national interest'
has simply trampled over the rights of Maori owners"; and furthermore

(iii) there would be an ongoing breach of the principles of the Treaty of
Waitangi until such time as the 'surplus' land was returned and the issue of
compensation determined.

14.22.1 Property Descriptions and Other Definitions

In this clause 14.22:

BCL means Broadcast Communications Limited;

Waimumu Site (No. 1) means the land described as Southland Land
District, Southland District Council, 226.8996 hectares, more or less, being
Lots 1, 3 and 4 DP 8310, being all the land in Certificate of Title 5A/563,
Southland Registry. Appurtenant is a Right of Way and Right to Convey Telephone
and Electric Power created by Transfer 270531. Subject to a restrictive covenant
created by Transfer 000369.1 as shown on Allocation Plan A 192 (SO
12237);

Waimumu Site (No. 2) means the land described as Southland Land
District, Southland District Council, 13.8040 hectares, more or less, being Lot
2 DP 8310, being all the land in Certificate of Title 5A/398. Appurtenant hereto
is a Right of Way and Right to Convey Telephone and Electric Power created by
Transfer 270531. Subject to a restrictive covenant created by Transfer 000369.1.
Subject to Section 27B of the State Owned Enterprises Act 1986. Subject to Part
IVA Conservation Act 1987. Minerals existing in their natural condition in the
within land are owned by the Crown pursuant to Section 86 of the Crown Minerals
Act 1991 as shown as "Site2" on Allocation Plan A 215 (SO 12241);

Waimumu Site (No. 3) means the part of the Waimumu Site (No. 2) shown as
"Site3" on Allocation Plan A 215 (SO 12241);

Waimumu Sites in relation to clauses 14.22.2 means Waimumu Site
(No. 1), Waimumu Site (No. 2) and, if required, Waimumu Site (No. 3).

14.22.2 Public Works Act

Te Runanga and the Crown agree that the procedure for the identification of
Beneficiaries set out in Attachment 14.2 will be modified in respect of
the Waimumu Sites to reflect the fact that Part III of the Public Works Act 1981
applies to any disposal of these properties by the Crown. Accordingly, in order
to preserve the rights of any persons entitled to have any of the Waimumu Sites
offered back to them, the Ancillary Claims Trustees and the Commissioner of
Crown Lands shall undertake the processes outlined in clause 14.21.2, and
that clause will apply to each of the Waimumu Sites as if that Waimumu Site were
referred to in that clause instead of the Maranuku Site.

14.22.3 Settlement Legislation

The Crown agrees that the Settlement Legislation will:

(a) provide for the fee simple estate in the Waimumu Site (No. 1) to be
vested in the Ancillary Claims Trustees, notwithstanding Part III of the Public
Works Act 1981, subject to:

(i) a right of way and right to convey telephone and electric power over Part
Section 16, Block II Waimumu Hundred CTA2/578 created by Transfer 270531; and

(ii) a restrictive covenant appurtenant to Lot 2, DP 8310 CT5A/398 created by
Transfer 000369.1;

(b) provide for the fee simple estate in the Waimumu Site (No. 2) to be
vested in the Ancillary Claims Trustees, notwithstanding Part III of the Public
Works Act 1981, subject to:

(i) the land having no frontage to a legal road;

(ii) a right of way and right to convey telephone and electric power over
Part Section 16, Block II Waimumu Hundred, CTA2/578 created by Transfer 270531;

(iii) a restrictive covenant created by Transfer 00369.1;

(iv) an existing grazing lease over part of Waimumu Site (No. 2) dated 30June
1989 between Broadcast Communications, a division of Television NewZealand
Limited and Christopher Robin Aynsley;

(c) provide for the fee simple estate in the Waimumu Site (No. 3) to be
vested in the Ancillary Claims Trustees, notwithstanding Part III of the Public
Works Act 1981, subject to:

(i) a lease of the Waimumu Site (No. 3) to be granted by the Crown in favour
of BCL in the form set out in Attachment 14.12 before the fee simple
estate in that site is vested in the Ancillary Claims Trustees with a
commencement date which will be the day upon which the fee simple estate in that
site is vested in the Ancillary Claims Trustees;

(ii) the land having no frontage to a legal road;

(iii) a right of way and right to convey telephone and electric power over
Part Section 16, Block II Waimumu Hundred, CTA2/578 created by Transfer 270531;

(iv) a restrictive covenant created by Transfer 00369.1;

(v) an existing grazing lease over part of Waimumu Site (No. 3) dated 30June
1989 between Broadcast Communications, a division of Television NewZealand
Limited and Christopher Robin Aynsley;

(vi) the grant of a Transmission Line easement in favour of PowerNet Limited
to convey electricity through overhead lines and underground cables, in a form
reasonably satisfactory to both Te Runanga and PowerNet Limited;

(vii) the grant of a Substation easement in favour of PowerNet Limited to
convey electricity through a transformer and radio repeater in a form reasonably
satisfactory to both Te Runanga and PowerNet Limited;

(d) include such provisions as are required to empower and require the
Ancillary Claims Trustees and the Commissioner of Crown Lands to undertake the
processes outlined in clause 14.22.2.

14.23 CLAIM 66 (INVERCARGILL)

Preamble

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

(i) the Crown had not only failed to protect Maori land from alienation, but
that section 34 of the Maori Affairs Act 1950 gave the Crown the power to sell
Maori land considered to be unproductive;

(ii) that there was no equivalent legislative provision in respect of general
land that would allow the Crown to alienate 'unproductive' land; and

(iii) as a result of an application to the Maori Land Court, Section 73,
Block II, Invercargill Hundred was sold by the Maori Trustee in 1964 without
notification being given to the owners.

B. The Tribunal found that:

(i) the failure to consult with and notify the owners was a breach of Article
II of the Treaty; and

(ii) the fact that there was no legislative provision comparable to section
34 of the Maori Affairs Act in respect of land held in general title was a
breach of Article III of the Treaty.

14.23.1 Property Description

In this clause 14.23, Invercargill Site means the land
described as Southland Land District, Invercargill City Council, 2.5000
hectares, more or less, being part Section 1, SO 11705. Being part of the land
held in Certificate of Title 10A/53. Subject to survey as shown on Allocation
Plan A 216 (SO 12242).

14.23.2 Vesting of Property

The Crown agrees that the Settlement Legislation will provide for the fee
simple estate in the Invercargill Site to be vested in the Ancillary Claims
Trustees, subject to:

(a) an existing grazing licence dated 2October 1992 between Landcorp
Management Services Limited and Patrick William Peter Langford and Lynley Gay
Langford; and

(b) the grant of a Transmission Line easement in favour of PowerNet Limited
to convey electricity through aerial power lines in a form reasonably
satisfactory to both Te Runanga and PowerNet Limited.

14.24 CLAIM 67 (APARIMA)

Preamble

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

(i) in 1913 the Crown took some 27 acres of land from the reserve under the
Public Works Act for the purposes of a rifle range without adequate notice or
consultation; and

(ii) when the land was no longer required for that purpose the Crown failed
to return it to the beneficial owners.

B. The Tribunal found that:

(i) the Crown's original action in taking land under the Public Works Act
without consulting the owners was a breach of the principles of the Treaty; and

(ii) the subsequent failure of the Crown to notify and consult with the
owners when the land was no longer required, and instead to sell the land to the
Riverton Borough Council when it was no longer required, was a further breach of
Article II of the Treaty.

14.24.1 Property Description

In this clause 14.24, Aparima Site (No. 1) means the land
described as Southland Land District, Southland District Council, 10.90
hectares, approximately, being Part Section 44, Block I Jacobs River Hundred (SO
374). Comprised in part Certificate of Title 135/46 (Limited as to Parcels)
subject to a grant of drainage rights and rights incidental thereto (in gross)
marked 'B' on DP 9001 by Transfer 006921.1 (Southland Registry). Subject to
survey as shown on Allocation Plan A 217 (SO 12243).

14.24.2 Vesting of Property

The Crown agrees that the Settlement Legislation will provide for the fee
simple estate in the Aparima Site (No. 1) to be vested in the Ancillary Claims
Trustees, subject to an existing grazing right between Her Majesty the Queen and
Graeme Thomas Guise and Margaret Fay Guise to graze the 8 hectares that are deer
fenced until 31 March 1998 created by an Agreement for Sale of Purchase between
the abovementioned parties dated 1July 1997.

14.25 CLAIM 73 (APARIMA)

Preamble

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

(i) the original reserves set aside for Ngai Tahu were inadequate;

(ii) this reserve and other Ngai Tahu reserves were decimated as an
inevitable consequence of the Crown policy to individualise titles; and

(iii) some of the sections from this reserve were compulsorily acquired and
in some cases without compensation.

B. The Tribunal did not make specific findings in respect of this claim but
reiterated the point that:

(i) following the execution of the purchase agreements the Crown failed
miserably in respect of its duty to provide Ngai Tahu with sufficient tribal
land; and

(ii) it also failed to ensure that the small areas of tribal land that were
set aside were maintained in Ngai Tahu ownership.

14.25.1 Property Description

In this clause 14.25, Aparima Site (No. 2) means the land
described as Southland Land District, Southland District Council, 1.20 hectares,
approximately, being Part Section 45, Block I Jacobs River Hundred. Comprised in
Certificate of Title 135/29 (Limited as to Parcels) subject to grant of drainage
rights and rights incidental thereto (in gross) marked "A" on DP 9001 by
Transfer 006921.1 and subject to lease 006921.2 (Southland Registry) over Lot 1
DP 9001 to Southland District Council. Subject to survey as shown on
Allocation Plan A 217 (SO 12243).

14.25.2 Vesting of Property

The Crown agrees that the Settlement Legislation will provide for the fee
simple estate in the Aparima Site (No. 2) to be vested in the Ancillary Claims
Trustees.

14.26 WAI 348 (PuRaKAUNUI)

Preamble

A This claim was lodged by R J McLachlan on behalf of the Purakaunui Block
Incorporation on or about 17February 1993. The essence of the statement of claim
is that the taking of the 85 acres from the reserve for railway purposes between
1864 and 1874 was an action by the Crown which prejudicially affected the owners
of the Block.

B Further to that statement of claim, the Proprietors of the Purakaunui Block
Incorporation have sought via the Maori Land Court, the return of an area of
land set off from the reserve prior to 1891 as a road. The claim to the Court
was that the land for the road was taken by the Crown without notice to the
owners or the payment of compensation.

C On 9 June 1993 Judge Smith found that although the land was Crown land for
the purposes of the application before the Court, the land was originally Maori
land which had been acquired for a specific public purpose, and that as the
Crown no longer required the land for that purpose the Crown should either
return the land, or pay compensation to the Maori owners for the loss of the
land, the loss of the use of the land, and the loss of the right to apply for
accretion of that land between the road and the sea.

D After consultation with the Purakaunui Block Incorporation the Crown has
agreed to provide the following redress as settlement of these two claims.

14.26.1 Property Description

In this clause 14.26:

Purakaunui Block Incorporation means the Proprietors of Purakanui
Block, being an incorporation of owners of land incorporated under section 29 of
the Maori Affairs Amendment Act 1967;

Purakaunui Site means the land described as Otago Land District, Dunedin
City, 12.0 hectares, more or less, being Part Section 81, Block IV, North
Harbour and Blueskin Survey District (SO Plan 18224). Subject to survey as shown
on Allocation Plan A 224 (SO 24702). Part Gazette Notice 526541 (New
Zealand Gazette 1979 page 3079), and 24.0 hectares, more or less, being Section
80, Block IV, North Harbour and Blueskin Survey District (SO Plan 18224) subject
to survey as shown on Allocation Plan A 224 (SO 24702). Part Gazette
Notice 52641 (New Zealand Gazette 1979 page 3079).

Road Site means the land described as Otago Land District, Dunedin
City, an undefined area being road adjoining Purakaunui Sections 69, 79 and 80
situated in Block IV North Harbour and Blueskin Survey District. Subject to
survey as shown on Allocation Plan A224 (SO 24702).

14.26.2 Vesting of Property

The Crown agrees that the Settlement Legislation will provide:

(a) for the revocation of the reservation of the Purakaunui Site as a
recreation reserve and the vesting of the fee simple estate in the Purakaunui
Site in the Purakaunui Block Incorporation, subject to the reservation of a
marginal strip of 100 metres wide, or to the landward margin of the Purakaunui
Site, whichever is the lesser, extending along and abutting the landward margin
of the foreshore of the Purakaunui Site as if it had been reserved pursuant to
section 24AA of the Conservation Act 1987; and

(b) for the stopping of the legal but unformed road on the Road Site,
notwithstanding sections116(2)(d), 117 and 118 of the Public Works Act 1981 and
section342 of the Local Government Act 1974, and, subject to clause
14.26.3, the vesting of the fee simple estate in the Road Site in the
Purakaunui Block Incorporation.

14.26.3 Easement Over the Road Site

Te Runanga and the Crown agree that as a precondition to clause
14.26.2(b), the Purakaunui Block Incorporation, as a Ngai Tahu Recipient,
will be required to duly execute a deed of covenant in the form set out in
Attachment 14.13, or in such other form as agreed by the Purakaunui Block
Incorporation and the trustees of the land described as South Island Native Land
Court District called or known as Purakaunui Subdivision 69 of Section 50, Block
IV, North Harbour and Blueskin District, in accordance with clause 20.10
(Ngai Tahu Recipients Bound by Deed) prior to the Settlement Date whereby the
Purakaunui Block Incorporation will agree to duly execute the easement to allow
vehicular and other access along the Road Site in the form set out in
Attachment 14.14, or amended as noted above, and present that
registration at the Land Titles Office within 50 Business Days of the Settlement
Date.

14.26.4 Crown to Construct a Fence

The Crown agrees that it will, at its own cost, construct a fence to the
standard set out for a rural 7 or 8 wire fence in the Second Schedule to the
Fencing Act 1978 along the surveyed boundary of the Purakaunui Site bordering
the public access track to the foreshore at the western end of the Purakaunui
Site to discourage the public from passing over the Purakaunui Site when using
the public access track, and the Crown and Te Runanga agree that after the
initial construction of the fence, the provisions of the Fencing Act 1978 shall
apply to that fence.

14.27 WAI 324 AND WAI 27, CLAIM 51 (TAIAROA HEAD)

Preamble

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

(i) the land which was of great cultural and spiritual significance to the
descendants of Korako Karetai was taken for defence purposes in 1888;

(ii) this reserve was reduced in size by two Public Works Act acquisitions;
and

(iii) this land was not returned to the original owners or their descendants
when it was no longer required for the purpose for which it was taken.

B. The Tribunal found that:

(i) 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;

(ii) the fact that this legislation applied only to Maori land and not to
general land was a breach of Article III of the Treaty; and

(iii) "the Crown's action in changing the use of the old defence land without
consulting the descendants of the original owners is a breach of Treaty
principles".

C. The Tribunal recommended that "ownership in Crown land taken from Korako
Karetai be returned to his descendants, and that the land at Taiaroa Heads which
formed part of the Otakou purchase be returned to Ngai Tahu ki Otakou".

D. The Tribunal also supported the return by the Dunedin City Council of land
originally taken from Korako Karetai to his descendants, as well as the return
of the lighthouse reserve to Ngai Tahu ki Otakou.

E. The Tribunal considered that "the management of the Taiaroa Head Reserves
should be shared evenly in a tripartite arrangement between Ngai Tahu, the
Department of Conservation, and the Dunedin City Council", with the descendants
of Korako Karetai represented in any management structure.

F. Finally, the Tribunal emphasised that "the interests and activities of the
Otago Peninsula Trust at the headland must remain unaffected".