SECTION 15: SOUTH ISLAND LANDLESS NATIVES ACT
A. In 1886-87, a Royal Commission presided over by Judge Alexander Mackay was appointed to review the outcomes for Ngai Tahu of the Kemp, Murihiku and Ötakou purchases. Commissioner Mackay found that as a result of these purchases and the other factors which were associated with the settlement of Te Waipounamu (the South Island) by Europeans, Ngai Tahu as a tribe and as individuals had been left without a sufficient land base to sustain themselves.
B. In 1891, Mackay was again appointed as a Commissioner to investigate the extent and effects of landlessness amongst Ngai Tahu. At that time he reported that only 10% of the tribe had sufficient land to provide a living. In 1892, following the reports of these Royal Commissions, and as a result of findings of those reports the Crown agreed to make certain lands available to Maori in the South Island. Judge Mackay and the Surveyor General, Percy Smith, assisted by Tame Parata, were then appointed by the Crown to compile a list of landless Maori from throughout the South Island and to assign sections of land to them.
C. By 1905, the Commissioners had allocated 142,463 acres to 4,064 Maori. Among the allocations listed in the Appendices to the Journals of the House of Representatives of New Zealand 1905 G-2 were 1,553 acres at Wanaka-Hawea to 57 persons, 1,600 acres at Whakapoai to 38 persons, 7,392 acres at Toitoi River on Rakiura (Stewart Island) to 181 persons and 9,340 acres at Port Adventure, Rakiura (Stewart Island) to 308 persons. Of these blocks, only Whakapoai was surveyed at that time.
D. The South Island Landless Natives Act 1906 provided for land to be granted in accordance with Mackay and Smith’s recommendations. However, that Act was then repealed by the Native Lands Act 1909 before all of the grants were fully implemented, and thereafter further implementation was barred.
E. The Crown has accepted that there was an obligation on the Crown to complete these transactions and that the failure by the Crown to complete the transfer of those lands to the beneficial owners after 1906 was a breach of the principles of the Treaty of Waitangi. As a consequence the Crown has agreed to provide redress in respect of each of the following claims.
15.1 DEFINITIONS
In this Section 15:
Adjoining Land in relation to:
(a) the Port Adventure Land, means Sections 8, 9 and 10, Block I Lords River Survey District, State Forest Block II, Lords River Survey District, Sections 3 and 4 Block IX, Paterson Survey District, Section 1 Block X Paterson Survey District and Section 23 Block XI Paterson Survey District; and
(b) the Toitoi Land, means the land described as Crown Land Block III Lords River Survey District, Sections 1 in Blocks IV to VI, Lords River Survey District, State Forest Block X Pegasus Survey District and Section 18, Block IX, Lords River Survey District;
Market Value means the current market value of the relevant land at the time the question arises, determined by an independent registered valuer appointed by the Crown and approved by the Representatives of the Successors to a SILNA Land, or if they cannot agree on such appointment, the current market value determined by an independent registered valuer appointed by the President of the New Zealand Institute of Valuers (or his or her nominee), or the value otherwise determined in a manner agreed by the Representatives of the Successors to a SILNA Land and the Crown;
Minister means the Minister in Charge of Treaty of Waitangi Negotiations;
Original Beneficiaries means the persons listed in the Native Land Register compiled by Mackay and Smith and referred to in the Appendix to the Journals of the House of Representatives of New Zealand 1905, Volume III, G-2 in relation to the SILNA Lands, and, where the context requires, means the Original Beneficiaries of one of the SILNA Lands;
Recording Officer has the meaning given to it in regulation 2 of the Regulations;
Regulations means the Maori Assembled Owners Regulations 1995;
Representatives means those persons appointed as representatives by the Successors to the SILNA Lands in accordance with clause 15.7.3, and where the context requires, mean the Representatives of the Successors to one of the SILNA Lands;
SILNA Lands means:
(a) the Hawea/Wanaka Land as defined in clause 15.2.1;
(b) the Whakapoai Land as defined in clause 15.3.1;
(c) the Port Adventure Land as defined in clause 15.4.1; and
(d) the Toitoi Land as defined in clause 15.5.1,
and, where the context requires, SILNA Land means one of those blocks of land;
Successor means any person entitled to succeed, pursuant to clause 15.6.2, to the beneficial interest of an Original Beneficiary in a SILNA Land, and where the context requires, means the Successors to one of the SILNA Lands; and
Unallocated Land in relation to:
(a) the Port Adventure Land, means the unallocated portion of that land, being 555 acres, more or less, which was set aside as a permanent reserve for landless Maori in the South Island, but never allocated; and
(b) the Toitoi Land, means the unallocated portion of that land, being 365 acres, more or less, which was set aside as a permanent reserve for landless Maori in the South Island, but never allocated.
15.2 CLAIM 14 (HAWEA/WANAKA)
Preamble
A. The substance of the claim to the Waitangi Tribunal was that around 1,658 acres of land, now known as the Hawea/Wanaka block, which was set aside at Manuhaea, or “the Neck”, between Lakes Wanaka and Hawea as a permanent reserve for 57 named individuals 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 in compliance with the South Island Landless Natives Act 1906, the land was not gazetted, never surveyed and the title was never transferred to the persons entitled to benefit from this allocation; and
(ii) this failure to allocate these lands served to exacerbate the earlier Crown failure to set aside sufficient lands within the purchase areas to give Ngai Tahu an economic base and was therefore a further breach of the principles of the Treaty of Waitangi.
C. As the Hawea/Wanaka Land is no longer available for allocation to the Successors, the Hawea/Wanaka Substitute Land is to be vested in those Successors by way of substitution.
15.2.1 Property Descriptions
In this Section 15:
Hawea/Wanaka Land means the area of land described in the Native Land Register compiled by Mackay and Smith referred to in the Appendix to the Journals of the House of Representatives of New Zealand 1905, Volume III, G-2 as 3"All that area containing by estimation 1658a, 2r, 22p situated in the Mid-Wanaka Survey District, being part of run 338a bounded on the south by run 338G, on the west by the brow of Lake Wanaka foreshore and on the north east and east by other parts of Run 338a”; and
Hawea/Wanaka Substitute Land means the land described as Otago Land District, Queenstown Lakes District Council, being Section 2 of 5, Block XIV, Lower Wanaka Survey District. Part CT 367/52 as shown hatched on Allocation Plan AS 237 (SO 24734).
15.2.2 Transfer of Property
Te Runanga and the Crown agree that the form of redress for the Successors to the Hawea/Wanaka Land will be the vesting of the fee simple estate in the Hawea/Wanaka Substitute Land in those Successors pursuant to clause 15.8.7.
15.2.3 Revocation of Hawea/Wanaka Substitute Land’s Current Reserve Status
The Crown agrees that the Settlement Legislation will provide for:
(a) the vesting of the Hawea/Wanaka Substitute Land in the Queenstown Lakes District Council as a plantation reserve to be cancelled, notwithstanding section 27 of the Reserves Act 1977; and
(b) the revocation of the reservation and the classification of the Hawea/Wanaka Substitute Land as a reserve for plantation purposes, notwithstanding section 24 of the Reserves Act 1977,
on the Settlement Date.
15.3 CLAIM 33 (WHAKAPOAI)
Preamble
A. The substance of the claim to the Waitangi Tribunal was that around 1,600 acres of land, now known as the Whakapoai block, which was set aside at the southern end of the Heaphy Valley and the Gunner River Valley, east of the Iwituaroa Range as a permanent reserve for 38 named individuals 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 allocated and surveyed off into individual sections, it was not gazetted in compliance with the South Island Landless Natives Act 1906 and 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.
15.3.1 Property Descriptions
In this Section 15:
Whakapoai Land means the land described as Nelson Land District, Buller District Council, 647.4974 hectares, more or less, being Sections 1-7, 9-17, 19-28 and 31-33, Block I and Sections 1-4, 8 and 10-13, Block V, Whakapoai Survey District (SO 6543). All New Zealand Gazette 1974 page 610 as shown on Allocation Plan AS 214 (SO 15493); and
Whakapoai Substitute Land means the area, or areas, of land identified by the Crown and the Representatives of the Whakapoai Land in accordance with clause 15.3.2(b)(i) in order to provide redress for Claim 33 (Whakapoai).
15.3.2 Forms of Redress Available
Te Runanga and the Crown agree that the Minister shall provide the proposed form of redress set out in clause 15.3.2(a) unless the Recording Officer of the meeting of the Successors to the Whakapoai 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 15.3.2(b)(i) and clause 15.3.2(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 Whakapoai Land in the Successors in the manner and with the status decided upon by the Successors in accordance with clause 15.7.5, with a lease-back to the Minister of Conservation on the terms set out in Attachment 15.1, and with compensation to be paid to the Successors by the Crown. The amount of such compensation will be the amount derived by deducting the Market Value of the lessor’s interest in the Whakapoai Land with the lease upon it, from the Market Value of the Whakapoai Land without the lease; or
(b) the alternative forms of redress are either:
(i) the vesting of the fee simple estate in the Whakapoai Substitute Land, being:
• a suitable area, or areas, of land identified by the Representatives and the Crown; and
• accepted by a meeting of the Successors reconvened in accordance with clause 15.7.4,
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 15.3.2(a) and 15.3.2(b)(i), negotiated and agreed to by the Representatives and the Crown, having particular regard to the Market Value of the Whakapoai Land.
15.3.3 Determining the Suitability of the Whakapoai Substitute Land
Te Runanga and the Crown agree that in determining the suitability of an area, or areas, of land to be used as the Whakapoai Substitute Land in accordance with clause 15.3.2(b)(i), the following matters will be taken into consideration:
(a) the iwi of the Successors and their traditional rohe;
(b) the location of the area, or areas, of land;
(c) the nature of the access to the area, or areas, of land;
(d) the available or potential uses to which the area, or areas, of land may be put;
(e) any other matters which the Crown and the Representatives agree are relevant; and
(f) the Market Value of the area, or areas, of land proposed for use as the Whakapoai Alternative Land should be approximately equal to the Market Value of the Whakapoai Land without the lease.
15.4 CLAIM 92 (PORT ADVENTURE)
Preamble
A. The substance of the claim to the Waitangi Tribunal was that around 10,000 acres of land, now known as the Port Adventure block, which was set aside on Rakiura (Stewart Island) as a permanent reserve for named individuals from Marlborough 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.
15.4.1 Property Description
In this Section 15, Port Adventure Land means the land described as Southland Land District, Southland District Council, 4046.8564 hectares, more or less, being parts Blocks I and II Lords River and parts Blocks IX, X and XI Paterson Survey Districts (Gaz Map 49A). Comprised in part New Zealand Gazette 1908 page 151. 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 195 (SO 12240).
15.4.2 Forms of Redress Available
Te Runanga and the Crown agree that the Minister shall provide the proposed form of redress set out in clause 15.4.2(a) unless the Recording Officer of the meeting of the Successors to the Port Adventure 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 15.4.2(b)(i) and clause 15.4.2(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 Port Adventure 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 Port Adventure 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 Port Adventure Land are accepted by a meeting of the Successors reconvened in accordance with clause 15.7.4, the Crown will:
• survey the redefined Port Adventure Land; and
• vest the fee simple estate in the redefined and surveyed Port Adventure 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 15.4.2(a) and 15.4.2(b)(i), negotiated and agreed to by the Representatives and the Crown, having particular regard to the Market Value of the Port Adventure Land as if it were surveyed.
SECTION 15: SOUTH ISLAND LANDLESS NATIVES ACT
15.4 CLAIM 92 (PORT ADVENTURE)
15.6 IDENTIFICATION OF SUCCESSORS AND SUCCESSORS' INTERESTS IN THE SILNA LANDS
15.7 SUCCESSORS TO DECIDE REDRESS OPTIONS
15.8 LEGISLATION TO GIVE EFFECT TO SILNA REDRESS
15.9 MINISTER TO REPORT TO TE RUNANGA
15.10 GENERAL MATTERS CONCERNING THE VESTING OF LAND
15.11 CLAIM 16 (SOUTH WESTLAND)
ATTACHMENT
15.1 LEASE OF WHAKAPOAI LAND
(Clause 15.3.2(a))
ATTACHMENT 15.2 NGA
WHENUA RAHUI KAWENATA OVER THE PARINGA RIVER SITE
(Clause 15.11.3(c))
ATTACHMENT 15.3 NGA
WHENUA RAHUI KAWENATA OVER SITE A
(Clause 15.11.9(c))
