Ngai Tahu Settlement

Doug Graham Treaty of Waitangi Negotiations

15.5 CLAIM 92 (TOITOI)

Preamble

A. The substance of the claim to the Waitangi Tribunal was that
around 7,000 acres of land, now known as the Toitoi block, which was set aside
on Rakiura (Stewart Island) as a permanent reserve for named individuals from
Kaikoura under the South Island Landless Natives Act 1906, was never in fact
transferred to those owners.

B. The Waitangi Tribunal found that:

(i) although the land was set aside and gazetted in compliance
with the South Island Landless Natives Act 1906, the land was never surveyed and
the title was never transferred to the persons entitled to benefit from this
allocation; and

(ii) the Crown's failure to reserve and grant title to the
allocated land was a breach of the principles of the Treaty of
Waitangi.

15.5.1 Property Description

In this Section 15, Toitoi Land means the land
described as Southland Land District, Southland District Council, 2994.6738
hectares more or less, being parts Blocks IV, V, VI, VII and VIII, Lords River
Survey District (Gaz Map 49A). Comprised in part New Zealand Gazette 1908 page
1514. Subject to unregistered allocations of beneficial entitlements made by
Judges Smith and MacKay (South Island Landless Natives Act 1906). Subject to
survey as shown on Allocation Plan AS 225 (SO 12244).

15.5.2 Forms of Redress Available

Te Runanga and the Crown agree that the Minister shall provide
the proposed form of redress set out in clause 15.5.2(a) unless
the Recording Officer of the meeting of the Successors to the Toitoi Land
held in accordance with clause 15.7.1, informs the Minister that those
Successors have decided to adopt one of the alternative forms of redress set out
in clause 15.5.2(b)(i) and clause 15.5.2(b)(ii), in which case the
Minister shall provide the agreed alternate redress:

(a) the proposed form of redress is the vesting of the fee
simple estate in the Toitoi Land in the Successors in the manner and with the
status decided upon by the Successors in accordance with clause 15.7.5;
or

(b) the alternative forms of redress are either:

(i) the negotiation of alternative boundaries to the Toitoi
Land by the Representatives and the Crown so that:

" those boundaries fall along natural geographic lines so as to
facilitate the raising of title to the land with as little impact on the
environment as possible;

" the new boundaries make allowance for areas of high
conservation value; and

" the alteration of the boundaries is not detrimental to the
overall interests of either party,

and that, if the negotiated boundaries to the Toitoi Land are
accepted by a meeting of the Successors reconvened in accordance with clause
15.7.4
, the Crown will:

" survey the redefined Toitoi Land; and

" vest the fee simple estate in the redefined and surveyed
Toitoi Land in the Successors in the manner and with the status decided upon by
the Successors in accordance with clause 15.7.5; or

(ii) the provision of an alternative form of redress to those
set out above in clauses 15.5.2(a) and 15.5.2(b)(i), negotiated
and agreed to by the Representatives and the Crown, having particular regard to
the Market Value of the Toitoi Land as if it were surveyed.

15.6 IDENTIFICATION OF SUCCESSORS AND
SUCCESSORS" INTERESTS IN THE SILNA LANDS

15.6.1 Maori Land Court to Identify
Successors

Te Runanga and the Crown agree that, within 10 Business Days of
the Settlement Date the Crown, through the Minister of Maori Affairs, in order
to identify all Successors, will refer the matter to the Maori Land Court for
inquiry and report pursuant to section 29 of the Te Ture Whenua Maori Act
1993.

15.6.2 Manner of Identifying Successors and Their
Interest in the SILNA Lands

Te Runanga and the Crown agree that the Crown, through the
Minister of Maori Affairs, will request the Maori Land Court, pursuant to
section 29 of the Te Ture Whenua Maori Act 1993, to identify all of the
Successors and their relative beneficial interest in the SILNA Lands by
identifying all persons entitled to succeed to the interest of an Original
Beneficiary in the SILNA Lands as if section 109 of the Te Ture Whenua Maori Act
1993 applied to the Original Beneficiary, and to every Successor to the Original
Beneficiary, upon his or her death (notwithstanding that he or she may not have
died intestate and that the SILNA Lands are not Maori freehold land) up until
the date of the Maori Land Court's determination in accordance with this
clause 15.6.2.

15.6.3 Further Manner of Identifying
Successors

Te Runanga and the Crown agree that the Crown, through the
Minister of Maori Affairs, will request the Maori Land Court, pursuant to
section 29 of the Te Ture Whenua Maori Act 1993, to identify all of the
Successors to the SILNA Lands in accordance with section 114 of the Te Ture
Whenua Maori Act 1993 if, in respect of an Original Beneficiary, the Court is of
the opinion that no person is primarily entitled to succeed to that Original
Beneficiary's interest in a SILNA Land in accordance with clause
15.6.2.

15.6.4 Further Calculation of the Successors"
Interests in SILNA Lands

Te Runanga and the Crown agree that, in relation to the Port
Adventure Land and the Toitoi Land, each Successor to those lands will have a
beneficial interest in the relevant Unallocated Land in proportion to each
Successor's beneficial interest in the Port Adventure Land or the Toitoi Land as
determined in accordance with clause 15.6.2. The Crown, through the
Minister of Maori Affairs, will request the Maori Land Court, pursuant to
section 29 of the Te Ture Whenua Maori Act 1993, to calculate the beneficial
interest of each Successor to the Port Adventure Land and the Toitoi Land in the
relevant Unallocated Land.

15.6.5 Maori Land Court to Report to the Minister and
Te Runanga

Te Runanga and the Crown agree that the Crown, through the
Minister of Maori Affairs, will request the Maori Land Court to report its
findings on the matters set out in clauses 15.6.1 to 15.6.4 to
both the Minister of Maori Affairs and Te Runanga.

15.7SUCCESSORS TO DECIDE REDRESS
OPTIONS

15.7.1 Crown to Apply for a Meeting of
Successors

Te Runanga and the Crown agree that, within 25 Business Days of
the Maori Land Court reporting to Te Runanga and the Minister of Maori Affairs
that it is satisfied that it has identified all of the Successors to the
Original Beneficiaries of a SILNA Land, or that all appropriate steps
have been taken to identify all of the Successors in accordance with clause
15.6.1
, the Minister of Maori Affairs will make a formal application to the
Maori Land Court, as an interested person pursuant to section 173 of the Te Ture
Whenua Maori Act 1993, for the Maori Land Court to call a meeting of the
Successors to that SILNA Land. The meeting is to be convened in accordance with
Part IX of the Te Ture Whenua Maori Act 1993 and is to be held as soon as
practicable after the Crown's application to the Maori Land Court.

15.7.2 Meeting of Successors to Consider Alternative
Redress Options

Te Runanga and the Crown agree that the Crown, through the
Minister, will put each of the forms of redress noted in clauses 15.3, 15.4
and 15.5 to the meeting of the Successors to the SILNA Land to which
the forms of redress relate, convened in accordance with clause 15.7.1,
for the Successors" consideration and decision as to which form of redress to
adopt, pursuant to the procedures set out in the Regulations.

15.7.3 Appointment of Representatives to Negotiate
Alternative Redress

Te Runanga and the Crown agree that, if, at a meeting of
Successors held pursuant to clause 15.7.1, the Successors decide to
investigate one of the alternative forms of redress available under clauses
15.3.2, 15.4.2
or 15.5.2, then those Successors shall appoint
Representatives (not exceeding 10 in number) in accordance with the procedures
set out in the Regulations to negotiate, on behalf of the Successors of the
relevant SILNA Land, the terms of that redress with representatives of the
Crown.

15.7.4 Reconvened Meeting to Decide Whether to Adopt
Alternative Redress

Te Runanga and the Crown agree that, as soon as practicable
after the Representatives and the Crown have agreed on the terms of an
alternative form of redress for a SILNA Land in accordance with clause
15.7.3
, a meeting of all of the Successors of that SILNA Land will be
reconvened in accordance with Part IX of the Te Ture Whenua Maori Act 1993 in
order for those Successors to determine, in accordance with the procedures set
out in the Regulations, whether to adopt the negotiated alternative form of
redress or one of the other forms of redress listed for that SILNA Land in this
Section 15.

15.7.5 Status of Land and Manner of Vesting of Land
to be Determined

Te Runanga and the Crown agree that, provided that the
Successors to a SILNA Land decide, at their meeting convened in accordance with
clause 15.7.1 or reconvened in accordance with clause 15.7.4,
to adopt a form of redress which involves the vesting or transfer of the fee
simple estate in land, those Successors at that meeting will consider and
decide, pursuant to the procedures set out in the Regulations:

(a) the status of the land to be vested in them (or the entity
to hold the land on their behalf) by deciding whether the land is to be vested
as:

(i) Maori freehold land; or

(ii) General land,

as those terms are defined in section 129 of the Te Ture Whenua
Maori Act 1993; and

(b) the manner in which their land will be held by them by
deciding whether the land is to be vested in:

(i) the Successors as tenants in common with an undivided share
in proportion to each Successor's share of his or her Original Beneficiaries
interest determined in accordance with clauses 15.6.2, 15.6.3 and
15.6.4;

(ii) a Maori Incorporation established under Part XIII of the
Te Ture Whenua Maori Act 1993;

(iii) an ahu whenua trust constituted under section 215 of the
Te Ture Whenua Maori Act 1993; or

(iv) any other manner the Successors of the land in question
decide upon.

15.8LEGISLATION TO GIVE EFFECT TO SILNA
REDRESS

ori11The Crown agrees that the Settlement Legislation will
provide:

15.8.1 for the Minister to be empowered to provide any of the
forms of redress set out in clauses 15.2.2, 15.3.2, 15.4.2 and 15.5.2
and to take any further steps required to give effect to this Section
15
;

15.8.2 for the Minister of Maori Affairs and the Maori Land
Court to be empowered to undertake any actions prescribed for them in this
Section 15, notwithstanding the fact that the SILNA Lands, or land being
dealt with in substitution for a SILNA Land, are not Maori freehold
land;

15.8.3 for the Maori Land Court to be empowered to give notice
in the Panui of every Maori Land Court District, and in such other way as the
Maori Land Court deems appropriate, in order to identify the Successors to the
SILNA Lands pursuant to clauses 15.6.2 and 15.6.3;

15.8.4 for the Successors to be deemed to be "owners", as that
term is defined in section 170 of the Te Ture Whenua Maori Act 1993 and
regulation 2 of the Regulations;

15.8.5 that, if the Successors to a SILNA Land do not make a
decision in accordance with the procedures set out in the Regulations to adopt
any one of the options listed above in clause 15.7.5, they will be deemed
to have chosen the option which received the most votes in accordance with those
procedures;

15.8.6 for the Recording Officer of each meeting of the
Successors to a SILNA Land to report, pursuant to the procedure set out in
regulation 48 of the Regulations, the decisions of the Successors made pursuant
to clause 15.7.2, or clause 15.7.4, and clause 15.7.5 to
the Minister;

15.8.7 for any land to be vested pursuant to this Section
15
, to be vested by the Minister by notice in The New Zealand Gazette in the
Successors to the relevant SILNA Land determined by the Maori Land Court
pursuant to clauses 15.6.2 or 15.6.3, in the form, manner and
status determined by the Successors pursuant to clause 15.7 as soon as
practicable after the Recording Officer of the meeting of the Successors to the
relevant piece of land has formally notified the Crown of the Successors"
decisions made pursuant to clause 15.7.2, or clause 15.7.4, and
clause 15.7.5, and in the case of clause 15.3.2(a), such vesting
shall be subject to the lease in Attachment 15.1;

15.8.8 for any land referred to in this Section 15 that
is to be vested in the Successors as Maori freehold land to be deemed to have
the status of Maori freehold land as if it had acquired that status pursuant to
section 130 of the Te Ture Whenua Maori Act 1993 from the date on which it is
vested;

15.8.9 for the Minister of Conservation to be empowered, in his
or her discretion, to change the classification or purpose of the whole or part
of the Adjoining Land, or revoke the reservation of the whole or part of that
land as a Nature Reserve or Scenic Reserve, or remove the status of conservation
(stewardship) area managed for conservation purposes from the whole or part of
that land, by notice in the New Zealand Gazette, in order to allow for the
creation of alternative boundaries to the Port Adventure Land and/or the Toitoi
Land in accordance with clauses 15.4.2(b)(i) and 15.5.2(b)(i),
notwithstanding section 24 of the Reserves Act 1977 or Part V of the
Conservation Act 1987;

15.8.10 that the Crown may lease back the Whakapoai Land on the
basis outlined in clause 15.3.2(a) notwithstanding anything to the
contrary in the Land Act 1948 or any other statutory provisions governing the
transfer of Crown land and the entry by the Crown into a lease of
land;

15.8.11 that section 11 and Part X of the Resource Management
Act 1991 will not apply to the lease back of the Whakapoai Land;

15.8.12 that, if the Successors to the Whakapoai Land decide to
adopt the redress set out in clauses 15.3.2(b)(i) or
15.3.2(b)(ii), the Whakapoai Land will be deemed to be part of the
Kahurangi National Park as if it were constituted a National Park under the
National Parks Act 1980, notwithstanding section 8 of the National Parks Act
1980;

15.8.13 that, if the Successors to the Whakapoai Land decide to
adopt the redress set out in clause 15.3.2(a), the Governor-General will
be empowered to declare the Whakapoai Land to be a National Park subject to the
National Parks Act 1980 in accordance with section 7 of that Act as if it were
constituted a National Park under the National Parks Act 1980, notwithstanding
anything to the contrary in the National Parks Act 1980;

15.8.14 that, if the Successors to the Whakapoai Land decide to
adopt the redress set out in clause 15.3.2(a), the Whakapoai Land will be
managed by the Crown as part of the Kahurangi National Park as if it were
constituted a National Park under the National Parks Act 1980;

15.8.15 for the appropriate District Land Registrars to be
empowered and required, upon instruction from the Minister, to take such steps
as are necessary to give effect to this Section 15; and

15.8.16 that, if the Successors to the Whakapoai Land decide to
adopt the redress set out in clause 15.3.2(a), section 147(2) and section
151(1)(f) of the Te Ture Whenua Maori Act 1993 and regulation 43 of the
Regulations will not apply to the alienation of that land in accordance with
that clause 15.3.2(a).

15.9MINISTER TO REPORT TO TE
RUNANGA

Te Runanga and the Crown agree that the Minister will report
any action he or she takes under clauses 15.8.1 or 15.8.7 to Te
Runanga.

15.10GENERAL MATTERS CONCERNING THE VESTING
OF LAND

15.10.1 Crown to Pay All Costs of Survey

The Crown agrees to pay the costs of all and any surveys of
land required in order to give effect to the redress proposed in this Section
15
.

15.10.2 Valuation of Properties Being
Vested

The Crown agrees that, to the extent that the Crown's interest
in land being vested pursuant to clauses 15.8.7 and 15.11.3 has
any value, the vesting of that interest in the Ancillary Claims Trustees and/or
the transfer of that interest to the Successors will be without charge to Te
Runanga and will be without cost to the Successors (provided that any costs of
establishing any entity in which the land is to be vested will be to the account
of the Successors, not the Crown).