PREAMBLE
A Ancillary Claims are the private claims of individual Ngai Tahu beneficiaries or groups of beneficiaries. These claims arose out of Crown actions when dealing with the individual property rights of members of Ngai Tahu Whanui in the years following the execution of the original purchase agreements between Ngai Tahu and the Crown.
B The majority of the Ancillary Claims were heard by the Waitangi Tribunal contemporaneously with the Tribunal claim and formed the basis of the Ngai Tahu Ancillary Claims Report 1995. The Waitangi Tribunal found that "In failing to protect even the miserable resources which were reserved to the tribe from the purchase of their land, the Crown has acted in serious breach of the Treaty."
C Under this Deed of Settlement redress has been provided for all of the ancillary claims upheld by the Tribunal which relate to private property rights.
D In addition, the Crown has agreed to provide redress for Waitangi Tribunal claim number Wai 348 which relates to land taken at Purakaunui from the owners of land now administered by the Purakaunui Block Incorporation.
E The basis on which redress was sought by Ngai Tahu for these private claims was to restore to the current beneficial owners of those claims either the land which had been taken by the Crown, or if this was not possible, land of approximately the same area and/or value as the land that had been lost.
F Some other claims dealt with by the Waitangi Tribunal in the Ngai Tahu Ancillary Claims Report 1995 were the basis of claims for tribal redress by Te Runanga. The redress provided in respect of those claims is included in the tribal redress in Section 11 (Mahinga Kai: Transfer and Vesting of Properties).
14.1 DEFINITIONS
In this Section 14, unless the context requires otherwise:
Ancillary Claims means the claims for which redress is to be provided pursuant to this Section 14, and, for the purposes of clause 14.3, includes clause 15.11 (Claim 16: South Westland);
Ancillary Claims Trust means the Trust to be established pursuant to clause 14.3 to hold Claim Property which is to be vested in the Beneficiaries of Ancillary Claims on trust, pending the identification of those Beneficiaries;
Ancillary Claims Trustees means the trustees for the time being of the Ancillary Claims Trust;
Beneficiary means a person who suffered a loss giving rise to an Ancillary Claim or, in the event that any such person is deceased, the Successors of that person;
Claim Property means the land, interest in land, Fenton Entitlement or Customary Fishing Entitlement to be provided by the Crown as redress for an Ancillary Claim for which the Ancillary Claims Trustees are to find the Beneficiaries to and which will vest in the Ancillary Claims Trust on the date to be provided in the Settlement Legislation;
Customary Fishing Entitlement means an entitlement granted pursuant to clause 14.7.1 to temporarily and exclusively occupy an area of the bed of a waterway for lawful fishing and gathering of natural resources, all in accordance with the requirements of clause 14.7;
Fenton Entitlement means an entitlement granted pursuant to clause 14.6.2(c) to temporarily occupy land close to waterways so as to allow access to those waterways for lawful fishing and gathering of other natural resources, all in accordance with the requirements of clause 14.6;
Mawhera Incorporation means the Proprietors of Mawhera constituted as a Maori incorporation under and subject to Part IV of the Maori Affairs Amendment Act 1967 by clause 3(1) of the Mawhera Incorporation Order 1976 and continued under section 357 of the Te Ture Whenua Maori Act 1993;
Successors means all persons entitled to succeed to the interest of any deceased Beneficiary, determined as if section 109 of the Te Ture Whenua Maori Act 1993 applied to the deceased Beneficiary, and to every Successor to the Beneficiary, upon his or her death (notwithstanding that he or she may not have died intestate and that the land to which the Ancillary Claim relates is not Maori freehold land), or where no person is primarily entitled to succeed to a Beneficiary, the persons determined as if section 114 of the Te Ture Whenua Maori Act 1993 applied to that Beneficiary, up until the determination of the Beneficiaries of the Ancillary Claim; and
Trust Deed means the Ancillary Claims Trust Deed set out in Attachment 14.1.
14.2 PROVISIONS FOR VESTING OF PROPERTIES
14.2.1 Property to be Vested Without Charge
The Crown agrees that, where a clause in this Section 14 provides for a property or property interest to be vested or transferred, the vesting or transfer of the property or property interest will be made, or provided for, by the Crown without charge to Te Runanga or any Ngai Tahu Recipient.
14.2.2 Removal and Revocation of Status
Te Runanga and the Crown agree that, except where specific provision is made to the contrary in this Section 14, any conservation, reserve, legal road or other form of status to be removed from any property or property interest that is to be vested in or transferred to the Ancillary Claims Trustees, or to be placed upon any such property or property interest, pursuant to this Section 14 will be removed or become effective 30 Business Days after the Settlement Date.
14.2.3 Vesting or Transfer of Property or Property Interests
Te Runanga and the Crown agree that, except where specific provision is made to the contrary in this Section 14, all properties or property interests to be vested in, or transferred to, the Ancillary Claims Trustees pursuant to this Section 14 will be vested or transferred 30 Business Days after the Settlement Date.
14.2.4 Delayed Vesting of Certain Properties
The Crown agrees that the Settlement Legislation will provide that, notwithstanding clauses 14.2.2, 14.2.3, 20.4.9 and 20.4.11, each of:
(a) the Kaikoura Town Section (as defined in clause 14.4.1);
(b) the Kaikoura Suburban Site (as defined in clause 14.4.1);
(c) the Arawhata Site (as defined in clause 14.14.1);
(d) the Waimumu Site (No. 2) (as defined in clause 14.22.1);
(e) the Waimumu Site (No. 3) (as defined in clause 14.22.1); and
(f) the Invercargill Site (as defined in clause14.23.1),
will be vested in the Ancillary Claims Trustees on the earlier of:
(i) 30 Business Days after the Settlement Date (if the Crown has title to the site in question at that date);
(ii) the Business Day following the date upon which the Crown acquires title to the site in question, not being later than six months after the Settlement Date; or
(iii) if the Crown is unable to acquire title to the site in question in accordance with clauses 14.2.2(i) or 14.2.2(ii), the Business Day following the completion of any procedure set out in the Settlement Legislation pursuant to clause 17.3.3 which authorises the Crown to compulsorily acquire land from a Crown Agency in order to give effect to the Crown's obligations in respect of the Settlement Legislation pursuant to this Deed in relation to the site in question.
14.3 ANCILLARY CLAIMS TRUST
14.3.1 Ngai Tahu Ancillary Claims Trust to be Established
The Crown agrees that it will establish a trust to be known as the Ngai Tahu Ancillary Claims Trust on or before the date which is 25 Business Days after the Settlement Date. The terms of the Trust Deed pursuant to which the Ancillary Claims Trust is established will be those specified in Attachment 14.1.
14.3.2 Legislation Relating to the Ngai Tahu Ancillary Claims Trust
The Crown agrees that the Settlement Legislation will provide:
(a) for the establishment of the Ancillary Claims Trust by the Crown;
(b) for the Claim Property offered by the Crown as redress for Ancillary Claims in respect of which a Claim Property is to be provided to the Ancillary Claims Trustees by the Crown to be vested in the Ancillary Claims Trustees and held subject to the terms of the Trust Deed;
(c) for the funding of the Ancillary Claims Trust in accordance with the terms of the Trust Deed;
(d) that the Ancillary Claims Trustees shall undertake the process described in Attachment 14.2 (the process for the identification of Beneficiaries);
(e) for the vesting of Claim Properties in the Beneficiaries of the relevant Ancillary Claim or an entity to hold it on their behalf (or in Te Runanga, if no Beneficiaries are found) once the prerequisites set out in Attachment 14.2 for such vesting have been satisfied;
(f) that, subsequent to the Maori Land Court making a vesting order pursuant to paragraph 21 of Attachment 14.2, any Beneficiary or a person who considers that he or she should have been included in a vesting order made by the Maori Land Court pursuant to paragraph 21 of Attachment 14.2 may apply to the Maori Land Court pursuant to section 18 of the Te Ture Whenua Maori Act 1993 to be included in that vesting order, notwithstanding the fact that the Claim Property subject to the vesting order is not Maori freehold land belonging to an estate to which Part IV of the Te Ture Whenua Maori Act 1993 applies;
(g) for the Maori Land Court to be empowered to hear and determine an application made pursuant to clause 14.3.2(f) and, if it finds in favour of the applicant:
(i) to make the applicant a party to the vesting order made in relation to the relevant Claim Property;
(ii) to entitle that applicant to share in the holding of the Claim Property in whatever form that may take;
(iii) to entitle that applicant to the share of the Claim Property which he or she ought to have received; and
(iv) for the interests of other relevant Beneficiaries in that Claim Property to be adjusted accordingly,
if the Maori Land Court considers it just and equitable to do so in the circumstances;
(h) for the Maori Land Court and the Maori Appellate Court each to have jurisdiction to undertake its part in the processes described in Attachment 14.2, and for the modification of the existing jurisdiction of the Maori Land Court to ensure that such processes replace those which would otherwise apply under current legislation; and
(i) for the Ancillary Claims Trust to be added to the list of bodies and statutory officers named or described in the Fourth Schedule to the Public Finance Act 1989 so that it is a "Crown entity" for the purposes of that Act.
14.4 CLAIM 1 (waiharakeke j and omihi k); claim 2 (mangamaunua)
Preamble
A. The substance of the claims to the Waitangi Tribunal in respect of claims 1 and 2 was that:
(i) the Crown had failed to provide reserves of adequate size and quality to the people of Kaikoura in the first instance;
(ii) these already inadequate reserves were further reduced by Crown actions in taking land under both the Public Works Act and Scenery Preservation Act for the purposes of roads, railway and scenic reserves; and
(iii) the Crown failed to properly notify, consult with or to adequately compensate the Maori owners when taking the land, or to return any of the land when it was no longer required for the purpose for which it was taken.
B. The Tribunal found that:
(i) the failure of the Crown to provide adequate reserves in Kaikoura was a breach of the Crown's obligations under the Treaty of Waitangi and that the subsequent loss of land from those reserves by Crown actions only served to exacerbate the original Treaty breach;
(ii) in light of this the Crown's acquisition of land for roading was "excessive"; and
(iii) the lack of consultation in acquiring the land constituted a further breach of the principles of the Treaty, as was the subsequent failure of the Crown to offer the land back once the scenic reserve status had been revoked.
C. The Waitangi Tribunal reserved its judgment on whether taking of the land for scenic purposes was of itself a breach of the Treaty and noted that where Maori owners wished to retain land the Crown wanted to acquire for scenic purposes, it would be preferable for the Crown to lease such lands from the owners.
14.4.1 Property Descriptions
In this clause 14.4:
Kaikoura Town Section means the land described as Marlborough Land District, Kaikoura District Council, 9930 square metres more or less, being Section 1, SO 6917. All CT 4D/1316 as shown on Allocation Plan A104 (SO 7320); and
Kaikoura Suburban Site means the land described as Marlborough Land District, Kaikoura District Council, 3.9090 hectares, more or less, being Section 1, SO 6949. All CT 4D/1424 as shown on Allocation Plan A 105 (SO 7321).
14.4.2 Vesting of Properties
The Crown agrees that the Settlement Legislation will provide for the fee simple estate in the Kaikoura Town Section and the Kaikoura Suburban Site to be vested in the Ancillary Claims Trustees.
14.2 PROVISIONS FOR VESTING OF PROPERTIES
14.4 CLAIM 1 (WAIHARAKEKE J AND OMIHI K); CLAIM 2 (MANGAMAUNUA)
14.10 CLAIM 11 (WAINONO LAGOON)
14.13 CLAIM 55 (WAIKOUAITI LAGOON)
14.14 CLAIM 17 (ARAWHATA MR 1)
14.15 CLAIM 18 (BRUCE BAY MR 6)
14.18 CLAIM 52 (HARINGTON POINT)
14.27 WAI 324 AND WAI 27, CLAIM 51 (TAIAROA HEAD)
ATTACHMENT 14.1 ANCILLARY CLAIMS TRUST DEED
ATTACHMENT 14.2 PROCEDURE FOR IDENTIFICATION OF BENEFICIARIES
ATTACHMENT 14.3 FORM OF FENTON ENTITLEMENT
ATTACHMENT 14.4 FORM OF CUSTOMARY FISHING ENTITLEMENT
ATTACHMENT 14.5 OPERATING EASEMENT OVER THE BUSHY POINT SITE
ATTACHMENT 14.6 NGA WHENUA RAHUI KAWENATA OVER THE BUSHY POINT SITE
ATTACHMENT 14.7 NGA WHENUA RAHUI KAWENATA OVER SITE B
ATTACHMENT 14.8 EASEMENT OVER THE BRUCE BAY SITE (NO. 1)
ATTACHMENT 14.9 EASEMENT OVER THE BRUCE BAY SITE (NO. 3)
ATTACHMENT 14.10 CROWN LETTER TO THE DUNEDIN CITY COUNCIL CONCERNING THE KARITANE SITE
ATTACHMENT 14.11 EASEMENT FOR ACCESS TO THE TAUTUKU SITE
ATTACHMENT 14.12 LEASE TO BCL OF THE WAIMUMU SITE (NO. 3)
ATTACHMENT 14.13 PURAKAUNUI BLOCK INCORPORATION DEED OF COVENANT FOR EASEMENTS OVER THE ROAD SITE
ATTACHMENT 14.14 EASEMENT OVER THE ROAD SITE
ATTACHMENT 14.15 MANAGEMENT PROCEDURES AND AIMS FOR THE TAIAROA HEAD SITES
