SECTION 11 - MAHINGA KAI
Transfer and Vesting of Properties
11.1.1 In this Section 11, the following terms shall have the meanings set out below:
Maimai means any hide or shelter for the purpose of game-bird hunting, and any wheeled mobile hide or shelter that is parked temporarily for the same purpose (but does not include portable hides or shelters that are built and removed on the same day);
Transfer Value means, in respect of each Tribal Property, the purchase price to be paid by Te Rünanga to the Crown, as determined by the methodology and process set out in Attachment 11.15;
Tribal Properties means the properties specified in Attachments 11.8, 11.9, 11.10, 11.12 and 11.16 which are being vested in fee simple, the properties specified in Attachments 11.23, 11.31, 11.31A and 11.31B, which are being vested as reserves, and the properties specified in Attachments 11.7 and 11.13 which are being vested in fee simple subject to section 38 of the Reserves Act 1977, and, where the context requires, means one of those properties.
11.1.2 Unconditional Obligations
Clause 17.1 (which provides that this Deed is conditional on the Settlement Legislation coming into force) does not apply to clauses 11.2.18, 11.2.25 to 11.2.29, 11.4.11A, 11.6.11, 11.7.11 and 11.8.10, or to those parts of the Valuation Methodology (as set out in Attachment 11.15) which require performance or action to be taken before the Settlement Date.
11.2.1 Vesting of Tuku Tuku Iwi
The Crown agrees that the Settlement Legislation will provide for the revocation of the historic reserve status of Tuku Tuku Iwi as described in Attachment 11.1 and the vesting of the fee simple estate in Tuku Tuku Iwi in Te Rünanga without charge.
11.2.2 Vesting of Te Parinui o Whiti
The Crown agrees that the Settlement Legislation will provide for the revocation of the conservation status of Te Parinui o Whiti as described in Attachment 11.2 and the vesting of the fee simple estate in Te Parinui o Whiti in Te Rünanga, without charge and free from the requirement under Part IVA of the Conservation Act 1987 to reserve a marginal strip.
11.2.3 Te Parinui o Whiti Landlocked
Te Rünanga acknowledges that Te Parinui o Whiti (as described in Attachment 11.2) is completely bordered by the sea and private land and therefore there is no legal access to Te Parinui o Whiti. The Crown agrees that the Settlement Legislation will provide that section 129B of the Property Law Act 1952 will not apply, and neither the Crown nor any third party will be obliged to provide or facilitate access for Te Rünanga to Te Parinui o Whiti.
11.2.4 Sinclair Wetlands, Otago
The Crown agrees that, subject to clause 11.2.4A, the Settlement Legislation will provide for the vesting in Te Rünanga without charge of Sinclair Wetlands, as described in Attachment 11.3, andif necessary and applicable, free from the requirement under Part IVA of the Conservation Act 1957 to reserve a marginal strip.
11.2.4A Te Rünanga to Assume Liability Under Sinclair Agreement
Te Rünanga agrees that the agreement of the Crown pursuant to clause 11.2.4 to vest Sinclair Wetlands in Te Rünanga is subject to the entry by Te Rünanga on the Settlement Date into a Deed of Assignment pursuant to which Te Rünanga will:
(a)
- assume all of the Crown's liabilities and obligations pursuant to, and become the principal obligor under, the unregistered agreement described in Attachment 11.3; and
(b)
- indemnify the Crown for any breach by Te Rünanga of those obligations;
provided that that unregistered agreement is still in existence in any form on the Settlement Date.
11.2.4B Other Matters in Respect of Sinclair Wetlands
Te Rünanga and the Crown note that is is one of the objectives of the vesting of Sinclair Wetlands in Te Rünanga that it be vested with the ability for Te Rünanga to use it for purposes which would be consistent with the purposes of a Ngä Whenua Rähui kawenata under Section 77A of the Reserves Act 1977. Accordingly, if the Covenant described in Attachment 11.3 continues to bind Sinclair Wetlands, then between the date of this Deed and the Settlement Date, the Crown and Te Rünanga, after consultation with Mr H.A. Sinclair, will approach the Queen Elizabeth The Second National Trust with a view to obtaining the agreement of that Trust to replacing the Covenant described in Attachment 11.3 with a Ngä Whenua Rähui kawenata which achieves similar purposes to the said Covenant, prior to the vesting of Sinclair Wetlands in Te Rünanga pursuant to clause 11.2.4.
11.2.5 Vesting of Te Waiomäkua
The Crown agrees that the Settlement Legislation will provide for the revocation of the reserve status of Te Waiomäkua as described in Attachment 11.4 and the vesting of the fee simple estate in Te Waiomäkua in Te Rünanga without charge.
11.2.6 Vesting of Greenpark Huts
The Crown agrees that the Settlement Legislation will provide for the revocation of the conservation status of Greenpark Huts as described in Attachment 11.5 and the vesting of the fee simple estate in Greenpark Huts in Te Rünanga without charge.
11.2.7 Vesting of Motutapu
The Crown agrees that the Settlement Legislation will provide for the vesting of the fee simple estate in Motutapu (as described in Attachment 11.6) in Te Rünanga without charge and free from the requirement under Part IVA of the Conservation Act 1987 to reserve a marginal strip.
11.2.8 Vesting of Ökeina (Okains Bay)
The Crown agrees that the Settlement Legislation will provide for the cancellation of the appointment of the Banks Peninsula District Council to control and manage Ökeina (Okains Bay) as a recreation reserve under the Reserves Act 1977, the revocation of the reserve status of Ökeina (Okains Bay) and the vesting of the fee simple estate in the land which comprises Ökeina (Okains Bay) as described in Attachment 11.7, and the building known as "Tini Ara Pata" on that land, in Te Rünanga without charge. For the avoidance of doubt, references in this clause 11.2.8 and clauses 11.2.8A, 11.2.9, 11.2.9A and 11.2.9B to the Banks Peninsula District Council include its successors.
11.2.8A Title Extends to Land Only
The Crown agrees that the Settlement Legislation will provide that:
(a)
- ownership of the structures and improvements attached to or on the land which comprises Ökeina (Okains Bay), except for the building known as "Tini Ara Pata", shall not be vested in Te Rünanga but shall be vested in the Banks Peninsula District Council to be held in trust and maintained and administered (and replaced as considered necessary by the Banks Peninsula District Council) by the Banks Peninsula District Council for the benefit of the Ökeina (Okains Bay) community, whether or not the land which comprises Ökeina/Okains Bay continues to be controlled and managed as if it were a recreation reserve under the Reserves Act 1977;
(b)
- Banks Peninsula District Council shall not be obliged to remove the structures and improvements which it owns from their current location on the land, but may do so if it wishes;
(c)
- Banks Peninsula District Council shall have rights of unrestricted access over the land which comprises Ökeina (Okains Bay) for the purposes of use and maintenance of structures and improvements, whether or not that land continues to be controlled and managed as if it were a recreation reserve under the Reserves Act 1977;
(d)
- all existing lawful rights of public access to the foreshore and adjoining beach and the stream adjacent to Okëina (Okains Bay) and of public access to and recreational use and enjoyment of the Banks Peninsula District Council's structures and improvements on the land comprising Ökeina (Okains Bay) shall remain unaffected by the vesting of title to the land in Te Rünanga, for as long as, and to the extent that, such rights otherwise remain lawful, and subject to any regulation of such access and use by the Banks Peninsula District Council pursuant to the terms of its appointment to control and manage Ökeina (Okains Bay) under clause 11.2.9.
11.2.9 Management of Ökeina (Okains Bay) by Banks Peninsula District Council
Te Rünanga agrees to Ökeina (Okains Bay) being managed and controlled by the Banks Peninsula District Council in accordance with section 38(2) of the Reserves Act 1977 with effect from the Settlement Date, as if it were a Recreation Reserve and subject to the restrictions, terms and conditions set out in Attachment 11.7. The Crown agrees that the Settlement Legislation will provide that:
(a)
- for the purposes of sections 38(1) and 38(2) of the Reserves Act 1977, the agreement of Te Rünanga as owner of the land pursuant to this clause 11.2.9 shall be deemed to be sufficient, and the approval of the Minister of Conservation shall be deemed to have been given to, Banks Peninsula District Council managing and controlling Ökeina (Okains Bay) as if it were a recreation reserve and subject to the restrictions, terms and conditions set out in Attachment 11.7;
(b)
- the District Land Registrar shall be directed to record on the Certificate of Title for the land comprising Ökeina (Okains Bay):
(i)
- the vesting of the structures and improvements on the land in Banks Peninsula District Council;
(ii)
- the vesting of Tini Ara Pata in Te Rünanga;
(ii)
- the rights of Banks Peninsula District Council to use and maintain structures and improvements and to have unrestricted access to them for these purposes;
(iii)
- the management and control of the land by Banks Peninsula District Council pursuant to clause 11.2.8A and this clause 11.2.9; and
(iv)
- the existing lawful rights of public access and of recreational use and enjoyment affecting part of the land preserved under clause 11.2.8A(f); and
those matters shall be deemed to amount to interests within the meaning of section 62 of the Land Transfer Act 1952, and be capable of registration under the Land Transfer Act 1952 (to the extent that they do not already amount to such interests).
11.2.9A Continuing Management and Control
Te Rünanga and the Crown acknowledge and confirm that the management and control by Banks Peninsula District Council of Ökeina (Okains Bay) as if it were a recreation reserve pursuant to clause 11.2.9 is intended to continue in perpetuity.
11.2.9B Lease of Garage
Te Rünanga and the Crown note the existence of the agreement entitled "Deed of Lease" dated 1 April 1997 to John Edward Hartley and agree that that agreement and any rights which may exist under it shall not be affected by the vesting of the land comprising Ökeina (Okains Bay) in Te Rünanga or the vesting of the buildings in Banks Peninsula District Council pursuant to this Deed.
11.2.10 Vesting of South Bay - Kaikoura
The Crown agrees that the Settlement Legislation will provide, subject to clauses 11.2.24 and 11.2.25, for the revocation of the reserve status of South Bay - Kaikoura as described in Attachment 11.8 and the vesting of the fee simple estate in South Bay - Kaikoura in Te Rünanga.
11.2.11 Vesting of The Point - Kaikoura
The Crown agrees that the Settlement Legislation will provide, subject to clauses 11.2.24 and 11.2.25, for the revocation of the reserve status of The Point - Kaikoura as described in Attachment 11.9 and the vesting of the fee simple estate in The Point - Kaikoura in Te Rünanga.
11.2.12 Whakamätakiuru (Ellesmere Landing) Preamble
The area known as Whakamätakiuru (Ellesmere Landing), as described in Attachment 11.10, is currently administered as a landing reserve by the Selwyn District Council. The Selwyn District Council considered Whakamätakiuru (Ellesmere Landing) and its future management at a meeting on 14 August 1996 and passed the following resolution at that meeting:
"That Council advise the Crown Negotiator that they are not opposed to the land being considered for transfer to the Ngäi Tahu as a part of the settlement subject to:
(a)
- The occupants be consulted by the Crown and their interests catered for
(b)
- The road to the landing reserve being surveyed and designated as a legal road to protect public access to the landing
(c)
- An agreement reached to close the paper roads adjacent on MR 806 and the costs of disposal be used to cover the expenses of road legalisation on R 806
(d)
- Satisfactory negotiations in regard to the transfer of ownership of the water supply that services the dwellings situated on R 806."
11.2.13 Vesting of Whakamätakiuru (Ellesmere Landing)
The Crown agrees that the Settlement Legislation will provide, subject to clauses 11.2.24 and 11.2.25, for the revocation of the reserve status of Whakamätakiuru (Ellesmere Landing) as described in Attachment 11.10 and the vesting of the fee simple estate in Whakamätakiuru (Ellesmere Landing) in Te Rünanga, free from the requirement under Part IVA of the Conservation Act 1987 to reserve a marginal strip.
11.2.14 Leases to be Offered to the Present Occupiers of Whakamätakiuru (Ellesmere Landing)
Te Rünanga agrees to offer formal leases for a term of 5 years with one right of renewal for a further term of 5 years to the present occupiers of Whakamätakiuru (Ellesmere Landing) upon the vesting of Whakamätakiuru (Ellesmere Landing), such leases to be on the terms set out in Attachment 11.11, or on such better terms or conditions for the lessee as Te Rünanga agrees. It is noted that the occupants of Whakamätakiuru (Ellesmere Landing) met with representatives of Te Rünanga to discuss the matter.
11.2.15 Status Quo Retained Until Leases Issued
Te Rünanga agrees that until leases are offered to the present occupiers of Whakamätakiuru (Ellesmere Landing) in accordance with clause 11.2.14, their occupation of the land will not be interfered with or altered by Te Rünanga.
11.2.16 Application of the Resource Management Act
The Crown agrees that the Settlement Legislation will provide that section 11 and Part X of the Resource Management Act 1991 will not apply to any lease granted pursuant to clause 11.2.14 if that lease is granted for a term of 20 years or longer (including any rights of renewal).
11.2.17 Survey and Formalisation of Road Through Whakamätakiuru (Ellesmere Landing)
Acting with the agreement of the Selwyn District Council as set out in the Preamble in clause 11.2.12, the Crown agrees that the Settlement Legislation will provide for the laying out of the existing formed road through Whakamätakiuru (Ellesmere Landing) as shown in Allocation Plan A 196 (SO Plan 19862) as a road pursuant to Part XXI of the Local Government Act 1974 to provide public access through Whakamätakiuru (Ellesmere Landing).
11.2.18 Crown to Pay All Costs of Surveying Road
The Crown agrees to pay the costs of laying out the road through Whakamätakiuru (Ellesmere Landing) pursuant to clause 11.2.17.
11.2.19 Closure of Paper Roads on Whakamätakiuru (Ellesmere Landing Reserve)
Te Rünanga and the Crown note that, upon investigation, it has been determined that there are no paper roads on Whakamätakiuru (Ellesmere Landing Reserve) to be closed.
11.2.20 Continuation of Water Supply
Te Rünanga and the Crown note that pursuant to a letter from the Selwyn District Council dated 19 September 1997, the Selwyn District Council agreed to retain the ownership of, and the responsibilities in relation to the maintenance and operation of, the water supply to Whakamätakiuru (Ellesmere Landing Reserve). It was also agreed that this does not preclude Te Rünanga and the Selwyn District Council agreeing to some other form of ownership, maintenance and operation of the water supply at any time in the future.
11.2.21 Vesting of Matariki
The Crown agrees that the Settlement Legislation will provide, subject to clauses 11.2.24 and 11.2.25, for the vesting of the fee simple estate in Matariki, as described in Attachment 11.12, in Te Rünanga, free from the requirement under Part IVA of the Conservation Act 1987 to reserve a marginal strip.
11.2.22 Vesting of Taramea (Howells Point)
The Crown agrees that the Settlement Legislation will provide, subject to clauses 11.2.24 and 11.2.25, for the revocation of the reserve status of Taramea (Howells Point) as described in Attachment 11.13 and the vesting of the fee simple estate in Taramea (Howells Point) in Te Rünanga.
11.2.23 Administration of Taramea (Howells Point) as a Reserve
Te Rünanga agrees, notwithstanding clause 11.2.22, that Taramea (Howells Point) will be managed and controlled by a body consisting of three persons nominated by Te Rünanga and three persons nominated by the Riverton Community Council as set out in Attachment 11.14, and in accordance with section 38(2) of the Reserves Act 1977, with effect from the Settlement Date, as if it were a Recreation Reserve and subject to the terms, restrictions and conditions set out in Attachment 11.14. The Crown agrees that the Settlement Legislation will provide that the agreement of Te Rünanga in this clause 11.2.23 shall be sufficient for the purposes of section 38(2) of the Reserves Act 1977.
TRIBAL PROPERTIES
11.2.24 Value to be Paid by Te Rünanga
Te Rünanga and the Crown agree that, subject to clauses 11.2.25 and 11.2.28, an amount equal to the Transfer Value of each of the Tribal Properties will be paid by Te Rünanga to the Crown on the date on which that Tribal Property is transferred to or vested in Te Rünanga pursuant to clause 11.2.30 and as a pre-condition to transfer or vesting.
11.2.25 Right Not to Accept the Tribal Properties
Te Rünanga agrees that it will notify the Crown in writing, within 25 Business days after the valuation process has been completed for each Tribal Property in accordance with Attachment 11.15, as to whether or not it intends to accept transfer or vesting of that Tribal Property.
11.2.26 Access to Properties
The Crown agrees to allow Te Rünanga's representatives access to the Tribal Properties on reasonable notice and at reasonable times of the day to assist Te Rünanga in its assessment of their Market Value (as that term is defined in Attachment 11.15).
11.2.27 Notification of Material Events
To assist Te Rünanga in its assessment of the Market Value (as that term is defined in attachment 11.15) of the Tribal Properties, the Crown shall notify Te Rünanga as soon as the Crown becomes aware of any event affecting the Tribal Properties occurring prior to the date of vesting of the Tribal Properties pursuant to clause 11.2.30, and which would be reasonably material to a prudent purchaser's decision to purchase a similar property.
11.2.28 Occurrence of Material Event
Te Rünanga and the Crown agree that, if the Crown notifies Te Rünanga of an event affecting a Tribal Property pursuant to clause 11.2.27 at any time after Te Rünanga has notified the Crown that it intends to accept transfer or vesting of that Tribal Property, but prior to the date of its vesting or transfer pursuant to clause 11.2.30, then Te Rünanga shall as soon as reasonably practicable thereafter (but in any event by no later than 10.00 am on the date on which that Tribal Property is to be vested or transferred to Te Rünanga pursuant to clause 11.2.30) notify the Crown in writing that it does not intend to accept the vesting or transfer of that Tribal Property, and that Tribal Property shall not be transferred to or vested in Te Rünanga. In the event that Te Rünanga receives notification of a material event within 3 Business Days before the date on which a Tribal Property is to be vested, then the date of vesting of that Tribal Property shall be deferred by 3 Business Days.
11.2.29 Diminution in Value
Te Rünanga and the Crown agree that, in the event that prior to the date of vesting or transfer of a Tribal Property pursuant to clause 11.2.30, that Tribal Property is destroyed or damaged and such destruction or damage has not been made good by the date on which that Tribal Property is to be vested or transferred pursuant to clause 11.2.30 then if the destruction or damage has been sufficient to render that Tribal Property incapable of being reasonably enjoyed by Te Rünanga for the purpose for which Te Rünanga is to acquire it on the date on which that Tribal Property is to be vested or transferred pursuant to clause 11.2.30, Te Rünanga may:
(a)
- complete the acquisition of the Tribal Property at a price equal to the Transfer Value less a sum equal to the amount of diminution in value of that Tribal Property as at the date of vesting or transfer of that Tribal Property pursuant to clause 11.2.30; or
(b)
- notify the Crown in writing that it does not intend to accept the vesting or transfer of that Tribal Property, and that Tribal Property shall not be transferred to or vested in Te Rünanga.
11.2.30 Vesting of the Tribal Properties
The Crown agrees that the Settlement Legislation will provide that, if Te Rünanga notifies the Crown in accordance with clause 11.2.25 that it intends to accept transfer or vesting of a Tribal Property, then subject to clauses 11.2.24, 11.2.28 and 11.2.29(b) and notwithstanding clauses 20.4.10 and 20.4.12, the reserve or conservation status of that Tribal Property will be revoked and that Tribal Property will be transferred to or vested in Te Rünanga, pursuant to this clause 11.2, on the later of:
(a)
- the Settlement Date; or
(b)
- the Business Day following the date of receipt by the Crown of such notification,
and:
(i)
- where a Tribal Property is being vested in fee simple, a certificate of title under the Land Transfer Act 1952, subject to all disclosed registrable encumbrances or other agreed matters required to be noted on the titles, will be issued as soon as reasonably practicable thereafter but in any event by no later than 12 months thereafter (or such later date as may be agreed by Te Rünanga and the Crown); or
(ii)
- where a valid certificate of title exists already in respect of a Tribal Property which is being transferred in fee simple, a transfer of such certificate into the name of Te Rünanga shall be submitted for registration on the date in which the relevant property is to be transferred pursuant to this clause 11.2.30.
11.2.31 Limit on Crown's Obligations
Te Rünanga and the Crown agree that if Te Rünanga chooses not to accept transfer or vesting of any of the Tribal Properties or does not notify the Crown of its intention pursuant to clause 11.2.25, the Crown shall have no further obligations to Te Rünanga in respect of those Tribal Properties.