Ngāti Whātua o Kaipara Claims Settlement Bill

  • enacted

Hon Christopher Finlayson

Ngāti Whātua o Kaipara Claims Settlement Bill

Government Bill

43—3

As reported from the committee of the whole House

Contents

Key

1 Title

2 Commencement

Part 1
Preliminary matters, interpretation, settlement of historical claims, and miscellaneous matters

Subpart 1Preliminary matters

3 Purpose

4 Provisions to take effect on settlement date

5 Act binds the Crown

6 Outline

Acknowledgements and apology of the Crown

7 Acknowledgements and apology

8 Acknowledgements

9 Apology

Subpart 2Interpretation

10 Interpretation of Act generally

11 Interpretation

12 Meaning of Ngāti Whātua o Kaipara

13 Meaning of historical claims

Subpart 3Settlement of historical claims

Historical claims settled and jurisdiction of courts, etc, removed

14 Settlement of historical claims final

Amendment to Treaty of Waitangi Act 1975

15 Amendment to Treaty of Waitangi Act 1975

Resumptive memorials no longer to apply

16 Certain enactments cease to apply

17 When resumptive memorials to be cancelled

Subpart 4Miscellaneous matters

18 Rule against perpetuities does not apply

19 Access to deed of settlement

Part 2
Cultural redress

Subpart 1Vesting of cultural redress properties

20 Interpretation

Property vesting in fee simple

21 Makarau

Properties vesting in fee simple to be administered as reserves

22 Atuanui Scenic Reserve

23 Makarau Bridge Reserve

24 Parakai

25 Ten Acre Block Recreation Reserve

Properties vesting in fee simple subject to conservation covenant

26 Mairetahi Landing

27 Mauiniu Island

28 Moturemu Island

29 Tīpare

General provisions applying to vesting of cultural redress properties (other than Parakai Recreation Reserve)

30 Properties vest subject to, or together with, interests

31 Registration of ownership

32 Application of Part 4A of Conservation Act 1987

33 Matters to be recorded on computer freehold register

34 Application of other enactments

Reserve properties

35 Application of other enactments to reserve properties

36 Subsequent transfer of reserve land

37 Transfer to new administering body

38 Transfer of reserve land if trustees change

39 Reserve land not to be mortgaged

40 Saving of bylaws, etc, in relation to reserve sites

41 Names of Crown protected areas discontinued

Parakai Recreation Reserve

42 Vesting of Parakai Recreation Reserve in Council cancelled

43 Vesting in trustees and Council

44 Registration of ownership

45 Application of Reserves Act 1977 and other enactments

Administration of Parakai Recreation Reserve

46 Board to be administering body

47 Powers of Minister of Conservation

48 Transfer to other trustees

49 Marginal strips

50 Third-party rights unaffected

51 Bylaws

Revocation and cancellation

52 Revocation of reservation

53 Alteration of computer freehold registers if reservation revoked

54 Obligation of Registrar-General of Land

Subpart 2Te Kawenata Taiao o Ngāti Whātua o Kaipara

55 Interpretation

56 Authority to enter into Te Kawenata

57 Noting of Te Kawenata on conservation documents

58 Te Kawenata subject to powers, functions, duties, and rights

Subpart 3Statutory acknowledgement

59 Interpretation

60 Statutory acknowledgement by the Crown

61 Purposes of statutory acknowledgement

62 Relevant consent authorities to have regard to statutory acknowledgement

63 Environment Court to have regard to statutory acknowledgement

64 Historic Places Trust and Environment Court to have regard to statutory acknowledgement

65 Recording statutory acknowledgement on statutory plans

66 Provision of summaries or notices of certain applications

67 Use of statutory acknowledgement

68 Application of statutory acknowledgement to river, stream, and harbour

General provisions relating to statutory acknowledgement

69 Exercise of powers and performance of functions and duties

70 Rights not affected

Consequential amendment

71 Amendment to Resource Management Act 1991

Subpart 4Culture and heritage protocol

72 Interpretation

73 Issuing, amending, or cancelling protocol

74 Protocol subject to rights, functions, and duties

75 Limitation of rights under protocol

76 Enforcement of protocol

Subpart 5Geographic names

77 Interpretation

78 New official geographic names of features

79 Publication of new official geographic name

80 Alteration of new official geographic names

81 Name change for Crown protected area

Part 3
Commercial redress

82 Interpretation

Subpart 1Transfer properties

83 The Crown may transfer properties

84 Minister of Conservation may grant easements

85 Registrar-General to create computer freehold register

86 Application of other enactments

Subpart 2Licensed land

87 Licensed land ceases to be Crown forest land

88 Trustees to be confirmed beneficiaries and licensors

89 Notice under Crown Forest Assets Act 1989

90 Effect of transfer of licensed land

Subpart 3Access to protected sites

91 Interpretation

92 Right of access to protected sites

93 Right of access subject to Crown forestry licence

94 Notation on computer freehold register

Subpart 4Right of first refusal over RFR land

Interpretation

95 Interpretation

96 Meaning of RFR land

97 Meaning of exclusive RFR land and non-exclusive RFR land

Application of this subpart

98 When this subpart comes into effect

Restrictions on disposal

99 Restrictions on disposal of RFR land

Rights of first refusal of governance entities

100 Requirements for offer

101 Expiry date of offer

102 Withdrawal of offer

103 Acceptance of offer

104 Formation of contract

Certain disposals permitted but land remains RFR land

105 Disposal to the Crown or Crown bodies

106 Disposal of existing public works to local authority

107 Disposal of reserves to administering bodies

Certain disposals permitted but land ceases to be RFR land

108 Disposal in accordance with enactment or rule of law

109 Disposal in accordance with legal or equitable obligation

110 Disposal by the Crown under certain legislation

111 Disposal of land held for public works

112 Disposal for reserve or conservation purposes

113 Disposal for charitable purposes

114 Disposal to tenants

115 Disposal by Housing New Zealand Corporation

RFR landowner obligations

116 RFR landowner’s obligations under this subpart

Notices about RFR land

117 Notice to LINZ of creation of computer register after settlement date

118 Notice to governance entities of disposals of RFR land to others

119 Notice to governance entities if disposal of certain RFR land being considered

120 Notice to LINZ of land ceasing to be RFR land

121 Notice requirements

Notations identifying RFR land

122 Notations to be recorded on computer registers for RFR land

123 Removal of notations when land to be transferred or vested

124 Removal of notations when RFR period ends

General provisions

125 Waiver and variation

126 Assignment of rights and obligations under this subpart

127 Disposal of Crown bodies not affected

Part 4
Other redress

128 Helensville land vested

129 23 Commercial Road/1 Rata Street and 3 Rata Street vested

Schedule 1
Cultural redress properties and Parakai Recreation Reserve

Schedule 2
Parakai Recreation Reserve: Procedural matters

Schedule 3
Statutory areas

Schedule 4
RFR notice requirements

Legislative history


  • Preamble

    Background

    (1) The Treaty of Waitangi (Te Tiriti o Waitangi) was signed in 1840. The terms of the Treaty of Waitangi (Te Tiriti o Waitangi) in English and Māori are set out in Schedule 1 of the Treaty of Waitangi Act 1975:

    (2) This Preamble presents, in summary form, the historical account set out in the deed of settlement entered into by Ngāti Whātua o Kaipara and the Crown:

    Ngāti Whātua o Kaipara

    (3) At 1840, the hapū of what is now termed Ngāti Whātua o Kaipara, namely Te Tao Ū, Ngāti Whātua Tūturu, Ngāti Rango, the people of Puatahi who are Ngāti Hine, and other related groups, occupied settlements and used resources throughout Kaipara, Mahurangi, and Tāmaki. With the exception of Ngāti Hine, whose presence developed as a result of a tuku (gift) of land following the battle of Te Ika a Ranganui (1825), these groups had gained rights in land through conquest and strategic intermarriage in the early decades of the eighteenth century:

    The Treaty of Waitangi and Ngāti Whātua o Kaipara

    (4) The relationship between Ngāti Whātua and the Crown was founded on the partnership created in 1840 through the signing of the Treaty of Waitangi, and the provision of land at Waitematā as the site for the new nation’s capital:

    (5) Both parties intended the Treaty to create a partnership—the union of 2 peoples under the protection of the Queen from which both would mutually benefit. Through the Treaty, Ngāti Whātua o Kaipara agreed to the establishment of a British system of law and government (kāwanatanga), and to give their loyalty, support, and assistance to the Crown. Ngāti Whātua o Kaipara also agreed to make land available for settlement by allowing their land to be subject to “pre-emption”, a Crown monopoly on the purchase of land. The Crown, in return, promised it would protect the interests of Māori in the acquisition of land and the development of the colony generally. Ngāti Whātua o Kaipara would receive all the rights and privileges of British subjects and, in the Māori text, protection of chiefs’ tino rangatiratanga over their lands, villages and treasures:

    Pre-1865 transactions

    (6) Before 1865, the Crown actively fostered its Treaty partnership with Ngāti Whātua o Kaipara and worked closely with leading chiefs whose support was required for the Crown to secure the land needed both for settlement and to help fund colonisation. For Ngāti Whātua, European settlement presented significant opportunities for trade and development, and the introduction of English law was welcomed. Assurances given by Crown officials, together with policies instituted to promote the interests of Ngāti Whātua and Māori generally, secured for the Crown the support and co-operation it needed. Ngāti Whātua provided resources and protection for the colony, including a substantial amount of land for the new settlement of Auckland. Early governors personally affirmed Ngāti Whātua’s status as a loyal and friendly tribe:

    (7) Between 1844 and 1845, the Crown waived pre-emption and allowed Māori to sell land directly to settlers. The Crown promised to protect Māori interests in those transactions and to reserve a tenth of all land purchased for schools, hospitals, and other benefits. However, those reserves were never established:

    (8) The Crown subsequently established a Commission to ascertain whether purchasers had complied with the terms of the waiver proclamation. The Commission did not inquire into the nature of transactions from a Māori perspective. If Māori told the Commission they had transferred land to a settler, customary title was deemed to have been extinguished regardless of the transaction’s merits. The land then became Crown land and, under its “surplus lands” policy, the Crown could choose to issue a land grant to the settler or retain land for itself as a “surplus”. In total, approximately 6 000 acres of land were granted to settlers in the upper Waitematā Harbour area and the Crown retained a surplus of around 24 000 acres:

    (9) Ngāti Whātua o Kaipara sold land to the Crown to encourage European settlement. Crown policy was to purchase at a low price and on-sell at high prices. Crown promises to provide settlement and benefits such as health services and schools were integral to securing Ngāti Whātua o Kaipara consent. Between 1848 and 1853, the Crown purchased further land around the upper Waitematā Harbour. These purchases and the pre-emption waiver sales totalled around 56 000 acres. No reserves for Māori were established within this area and Ngāti Whātua o Kaipara were left with no land in the upper Waitematā area:

    (10) From the mid-1850s to 1868, the Crown purchased around 225 000 acres between Riverhead and Oruawharo. Some small reserves were created, but the Crown established no effective mechanism to ensure they remained in Māori control. The Crown itself purchased many of the reserves:

    (11) In 1864, Ngāti Whātua o Kaipara gifted 10 acres for public purposes. Helensville later grew around this gift. One acre was set aside for Māori purposes, but was subsequently transferred to the Helensville Town Board, despite Ngāti Whātua o Kaipara protest. Over time, the Crown breached the terms of the gift by alienating parts of the block to private parties, rather than returning them to Ngāti Whātua o Kaipara when they were no longer required for public purposes:

    Marginalisation and protest

    (12) In 1852, the British Government granted New Zealand a new constitution to establish a representative settler Parliament. However, the right to vote was based on holding property under Crown titles and most Māori, including Ngāti Whātua o Kaipara, did not qualify to vote and had no direct representation in national or provincial government:

    (13) In 1860, Ngāti Whātua protested at the Kohimaramara Conference against a number of government measures they linked to their lack of representation in government. They asked the Crown for equality with the settlers by allowing for representation in provincial authorities and the General Assembly. They based this request on the Treaty of Waitangi and the loyalty they had shown the Crown since 1840:

    (14) In 1867, 4 Māori seats were established in the General Assembly. Ngāti Whātua leaders argued that the 4 Māori would be swamped by the 41 Pākehā representatives and that Māori and Pākehā should be equally represented in government:

    (15) By the late 1860s, Ngāti Whātua o Kaipara had sold or been divested of around two-thirds of their land in South Kaipara. They had received, in return, few of the benefits promised by the Crown. Ngāti Whātua o Kaipara were also outnumbered by Pākehā settlers and, with other Māori, denied a significant role in government. They began a slide towards ill-health that was to continue unimpeded in the years ahead:

    Native Land Court

    (16) The Native Land Court, established in 1862, was intended to speed up the alienation of Māori land and to open up lands for settlement. Through individualisation, the Crown also sought to detribalise Māori and promote their eventual assimilation into European culture. This was not explained to Ngāti Whātua o Kaipara when they welcomed the court in 1864 as a means of controlling and managing their lands:

    (17) The Crown selected Kaipara as the first region for the Native Land Court to operate. Initially, Ngāti Whātua o Kaipara rangatira were active participants in the court process and between 1864 and 1871 title to around 109 000 acres was determined in South Kaipara. However, survey costs, court costs, and other costs placed a significant burden on Ngāti Whātua o Kaipara. The individualisation of title also had a profound effect. Ngāti Whātua o Kaipara held their land collectively but under the Native Lands Act 1865 the court was required to award tribal lands to 10 individuals or less. Those listed were expected to act as trustees for their hapū but they had no legal responsibility to other owners. This meant that if individual title holders got into debt, land in which members of the iwi or hapū collectively held an interest could be lost:

    (18) Nor did the law provide a way for the owners to collectively manage their land. This meant it was difficult for owners to accumulate capital and make improvements. Frequently, owners had little option but to use sale proceeds to meet their immediate needs. From the 1870s, private parties increasingly negotiated for the purchase of Ngāti Whātua land with individual owners, rather than the collective body of owners in a block:

    (19) These issues were further exacerbated by the rules of succession provided by the court, which required the land to be divided equally amongst the owners' successors. With each succeeding generation, individual shares became smaller and less economic until management of the land was impossible and the land was effectively unusable:

    (20) The immediate costs imposed by the court process, and the individualisation and fragmentation of title that resulted, encouraged the alienation of land. When Ngāti Whātua o Kaipara first entered the court process they sought to use strategic sales of small blocks of land to encourage settlement. As the 1870s continued, Ngāti Whātua o Kaipara struggled to contain alienations as individual debt rose. By 1880, the Ngāti Whātua situation was such that they were no longer selling land as a strategic move to promote the development of the area, but to repay debts and raise much-needed income:

    (21) The Crown also purchased 9 400 acres in the 1870s despite warnings from officials that Ngāti Whātua o Kaipara could not afford to lose any more land. The sales were achieved by renewed promises from Crown agents that European settlement and schools would be established, and Ngāti Whātua o Kaipara would derive some lasting collateral benefit:

    (22) In 1871, Ngāti Whātua o Kaipara gifted much of the land for the railway between Te Awaroa and Pitoitoi and were promised 1 acre would be reserved for them at each end of the line. Accommodation was to be provided on these reserves. The railway was completed in 1876, and in 1879, a 1-acre reserve at Helensville was provided from the 10-acre block Ngāti Whātua had earlier gifted for public purposes. None of the other commitments were met. Elsewhere in South Kaipara, numerous other pieces of Ngāti Whātua o Kaipara land were taken for railways, roading, and public services, sometimes against the wishes of the owners or without compensation or consultation:

    (23) The railway encouraged settlement, and Te Awaroa (Helensville) became the township that Ngāti Whātua o Kaipara had anticipated. However, Ngāti Whātua o Kaipara were unable to capitalise on rising land values because of the extensive tracts of land sold to the Crown in the 1850s and 1860s. Much of their remaining land was of minimal economic and agricultural value:

    (24) Throughout the late 1870s and 1880s, Ngāti Whātua continued to voice concerns over their level of representation in government. They spoke or wrote to the governor, Imperial authorities, visiting dignitaries, provincial leaders, and their local resident magistrate. From 1877, a series of well-attended pan-tribal conferences, or Parliaments, were hosted by Ngāti Whātua at Kohimarama, Otamatea, Reweti, Aotea, and Ōrākei. Ngāti Whātua leaders led protests about the effects of land alienation and problems with the Native Land Court. None of these protests had any lasting effect on land laws or the Government’s stance:

    Twentieth century

    (25) By 1900, Ngāti Whātua o Kaipara were an overshadowed minority in South Kaipara. They had lost around 90% of their lands held at 1840 and retained around only 38 000 acres. Much of this was sandhills or marginal country isolated from areas of settlement. It was scarcely sufficient to permit Ngāti Whātua o Kaipara to maintain a subsistence lifestyle, let alone provide for future development:

    (26) A considerable proportion of the remaining land became tied up in long-term leases administered by the Tokerau District Māori Land Board, rather than being farmed by Ngāti Whātua o Kaipara themselves. The board’s management of these leases was sometimes inadequate, and leases could lead to piecemeal partitions and sales by owners who were facing the financial stresses of poverty:

    (27) In 1906, the Crown compulsorily vested the Otakanini block (7 638 acres) in the Tokerau District Māori Land Board without consulting the owners. The board leased most of the block for 25 years, with a right of renewal for a total of 50 years. During this time, the owners had no meaningful role in the administration of their own land. The board did not regularly monitor the leases and at their end in 1958 Otakanini was in very poor condition. The owners took legal action against the lessees, but did not recover all the money owed. The poor condition of the land meant that the owners have had a long and expensive struggle to retain and develop Otakanini since 1958 and that few dividends or other assistance could be provided to Ngāti Whātua o Kaipara:

    (28) The Kakaraea block was also compulsorily vested by the board without consultation with the owners and then in 1915 leased out for 45 years. In 1957, near the end of the lease, the owners had little option but to sell the land to the Crown because they could not raise the finance to pay the lessee compensation for improvements. The board had not retained any portion of the rentals to ensure the owners could pay for those improvements:

    (29) For much of the twentieth century, the Crown preferred to purchase or compulsorily acquire land it needed for public purposes through public works legislation. The Crown acquired over 9 000 acres of Ngāti Whātua o Kaipara’s remaining land for Woodhill Forest during sand dune reclamation work along South Head. These takings included 4 significant and well-identified wāhi tapu and urupā of great significance to Ngāti Whātua o Kaipara that would otherwise have remained in customary ownership. The takings also failed to provide for legal access to the west coast to gather kaimoana, which was a staple part of the diet for many whānau, the loss of which caused further deprivation:

    (30) From the 1930s, Ngāti Whātua o Kaipara benefited from employment as forestry workers in Woodhill and Riverhead. However, many Ngāti Whātua o Kaipara were made redundant in the 1980s when the Crown reformed the forestry sector without consulting Ngāti Whātua. By the late 1990s, 75% of the land Ngāti Whātua o Kaipara had held in 1900 had been alienated by sale or taken for public works. Ngāti Whātua o Kaipara were virtually landless and had been so since the end of the nineteenth century:

    Socio-economic impacts

    (31) Throughout the twentieth century, the breakdown in the Treaty partnership and the cumulative effects of landlessness and neglect resulted in the dislocation and impoverishment of Ngāti Whātua o Kaipara. Ngāti Whātua o Kaipara have been alienated from their lands, culture, and language, with the rich fabric of hapū and iwi life having been irreparably damaged. Poor economic circumstances forced many Ngāti Whātua o Kaipara to move to Auckland and other urban centres in search of work. Living conditions for those who remained in South Kaipara resembled rural slums:

    (32) Despite the endemic nature of the health problems affecting Ngāti Whātua o Kaipara communities in the latter part of the nineteenth century, which were increasingly aggravated by poverty, only limited health services were provided by the Crown. In the twentieth century, the ability of Ngāti Whātua o Kaipara to take advantage of educational opportunities continued to be affected by poverty and poor health, and by difficulties created by distance and poor roads:

    (33) While the Crown tried to deal with some of the social consequences of poverty and unemployment, it did not solve the fundamental problem of the marginal economic position of Ngāti Whātua o Kaipara in South Kaipara. However, despite the failure of successive Crown administrations to honour the Treaty partnership and its reciprocal obligations, Ngāti Whātua o Kaipara have steadfastly continued to hold to the principles that underpin this relationship:

The Parliament of New Zealand therefore enacts as follows: