Te Awa Tupua (Whanganui River Claims Settlement) Bill

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Te Awa Tupua (Whanganui River Claims Settlement) Bill

Government Bill

129—1

Explanatory note

General policy statement

The Te Awa Tupua (Whanganui River Claims Settlement) Bill gives effect to the Whanganui River Deed of Settlement (Ruruku Whakatupua) signed on 5 August 2014, which settles the historical claims of Whanganui Iwi as they relate to the Whanganui River (the River). Ruruku Whakatupua sets out in full the redress provided to Whanganui Iwi in settlement of those historical claims. This Bill includes elements for which legislation is necessary and some provisions that Whanganui Iwi have specifically requested be included in the legislation as well as in Ruruku Whakatupua. Other aspects of the settlement are provided for only in Ruruku Whakatupua. In settling these claims, the Crown acknowledges past wrongs, intends to put in place the foundation for a constructive future relationship with Whanganui Iwi, and establishes Te Pā Auroa nā Te Awa Tupua (Te Pā Auroa) as a legal framework for the Whanganui River that is centred on the legal recognition of the Whanganui River as Te Awa Tupua.

Scope of settlement

The Whanganui River is New Zealand’s longest navigable river, stretching from the slopes of Mount Tongariro to the Tasman Sea. The Whanganui River is central to the existence of Whanganui Iwi and their health and well-being. The River has provided both physical and spiritual sustenance to Whanganui Iwi and the hapū of Whanganui Iwi from time immemorial. Other iwi and hapū also have interests in parts of the River and its tributaries.

The historical Treaty of Waitangi claims of Whanganui Iwi, as they relate to the River, primarily concern Crown actions and omissions in gaining control of the River. These include the enactment of legislation in the nineteenth and twentieth centuries, the removal of traditional structures and minerals from the River, and the diversion of the headwaters of the River for hydroelectric purposes.

Through this settlement, the Crown acknowledges that Te Awa Tupua is an indivisible and living whole comprising the Whanganui River from the mountains to the sea, incorporating its tributaries and all its physical and metaphysical elements.

History of claim

Ruruku Whakatupua is the culmination of over a century of effort by Whanganui Iwi to protect and provide for the special relationship of Whanganui Iwi with the River. Ruruku Whakatupua settles the historical Treaty of Waitangi claims of Whanganui Iwi in relation to the River. Since 1873, Whanganui Iwi have long sought recognition of their authority over the River, including by pursuing one of New Zealand’s longest-running court cases. The Whanganui River claim (Wai 167) was pursued separately from the lands claim by Whanganui Iwi and was the subject of a separate Waitangi Tribunal report in 1999.

For this settlement, Whanganui Iwi have been represented in negotiations by the Whanganui River Maori Trust Board, which was empowered by statute to negotiate the settlement of the claims of Whanganui Iwi relating to the Whanganui River. On 13 October 2011, Whanganui Iwi and the Crown signed a record of understanding that provided a framework for the settlement negotiations in relation to the Whanganui River claims of Whanganui Iwi. On 30 August 2012, Whanganui Iwi and the Crown signed an agreement, Tūtohu Whakatupua, that recorded the key elements of the agreed Te Awa Tupua framework for the Whanganui River. Ruruku Whakatupua was initialled on 26 March 2014. It was then ratified by Whanganui Iwi members and signed on 5 August 2014. It will be implemented following the passage of the settlement legislation.

Summary of settlement

Ruruku Whakatupua provides for the full and final settlement of all historical Treaty of Waitangi claims of Whanganui Iwi in relation to the River that arise from Crown acts or omissions before 21 September 1992.

Ruruku Whakatupua has the following 2 parts:

  • Ruruku Whakatupua—Te Mana o Te Awa Tupua; and

  • Ruruku Whakatupua—Te Mana o Te Iwi o Whanganui.

Te Mana o Te Awa Tupua

Ruruku Whakatupua—Te Mana o Te Awa Tupua is primarily directed towards the establishment of Te Pā Auroa, a new legal framework, which is centred on the legal recognition of Te Awa Tupua, comprising the River from the mountains to the sea, its tributaries, and all its physical and metaphysical elements, as an indivisible and living whole.

Te Pā Auroa comprises the following 7 principal elements:

  • legal recognition of the Whanganui River as Te Awa Tupua and of Te Awa Tupua as a legal person (together, the Status); and

  • Tupua te Kawa (Te Awa Tupua Values); and

  • Te Pou Tupua, consisting of 2 persons, one appointed by the Crown and the other by iwi with interests in the Whanganui River, to a guardianship role to act on behalf of Te Awa Tupua; and

  • Te Heke Ngahuru ki Te Awa Tupua, the River strategy; and

  • Te Kōpuka nā Te Awa Tupua, the River Strategy Group responsible for developing the River strategy; and

  • vesting of the Crown-owned parts of the bed of the Whanganui River in Te Awa Tupua; and

  • Te Korotete o Te Awa Tupua, the Te Awa Tupua Fund. a $30 million contestable fund, the Te Awa Tupua fund.

The settlement provides that Te Pā Auroa is a relevant consideration for any person making statutory decisions relating to the Whanganui River or activities in the catchment affecting the River. Te Pā Auroa also contains legal weighting provisions that specify how decision makers will be required to “recognise and provide for” the Status and Values and “have particular regard to” the River Strategy when exercising and performing functions, powers, and duties under legislation listed in the Bill.

Other Te Awa Tupua arrangements

In addition to the key elements of Te Pā Auroa outlined above, it also provides for—

  • the protection of the name Te Awa Tupua against unauthorised commercial exploitation; and

  • establishment of the Te Awa Tupua register, maintained by Te Pou Tupua, of hearing commissioners who may be nominated for the register by Whanganui Iwi. Local authorities must consult the register when considering appointments to hear certain resource consent applications relating to the Whanganui River; and

  • a collaborative process to identify how to improve the regulation of activities on the surface of the River, involving iwi with interests in the Whanganui River, Maritime New Zealand, and central and local government; and

  • establishment of a fisheries co-ordination group (involving iwi with interests in the Whanganui River, the New Zealand Fish and Game Council, and central and local government) to advance the protection, management, and sustainable use of freshwater fisheries in the catchment; and

  • a collaborative process to explore the development of a regulatory mechanism to provide for customary food gathering, involving iwi with interests in the Whanganui River and the Ministry for Primary Industries; and

  • interim custodian arrangements instead of those that apply under section 11 of the Protected Objects Act 1975, giving Te Awa Tupua interim custody of taonga tūturu found in the Whanganui River.

To support Te Pā Auroa, the Crown will pay—

  • $30 million to Te Awa Tupua for the establishment of Te Korotete o Te Awa Tupua, the Te Awa Tupua Fund; and

  • $200,000 per year for 20 years as a contribution to the costs associated with the exercise of its functions by Te Pou Tupua; and

  • $430,000 to the Manawatu-Wanganui Regional Council for the development of the River Strategy.

Te Mana o Te Iwi o Whanganui

Ruruku Whakatupua—Te Mana o Te Iwi o Whanganui is primarily directed towards Whanganui Iwi and the recognition and further development of the relationship between Whanganui Iwi and the Whanganui River through both cultural and financial redress. Cultural redress includes—

  • the Crown’s acknowledgements and apology; and

  • Te Pākurukuru: Whanganui Iwi—Crown relationship Agreement; and

  • statutory recognition to recognise and provide for the mana and relationship of Whanganui Iwi in respect of Te Awa Tupua; and

  • authority for Whanganui Iwi to carry out certain authorised customary activities; and

  • Crown recognition of the significance of ripo (rapids) to the relationship of each hapū of Whanganui Iwi with the River and to the relationship of Whanganui Iwi collectively with the River; and

  • the assignment of official geographic names to certain places; and

  • agreement to progress a social services project with relevant agencies.

This settlement includes the payment of financial redress to Whanganui Iwi in recognition of the settlement of their claims and to help them advance the future health and well-being of both the Whanganui River and its people. Whanganui Iwi will receive financial redress comprising—

  • a financial redress payment of $80 million; and

  • an additional payment of $1 million for transitional and implementation matters relating to the establishment of Te Pā Auroa.

Departmental disclosure statement

The Ministry of Justice is required to prepare a disclosure statement to assist with the scrutiny of this Bill. It provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact statement

The Ministry of Justice produced a regulatory impact statement on 6 April 2016 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause. The legislation will come into force on the day after the date on which it receives the Royal assent.

Part 1Ngā Pānui Whakamāramara—Preliminary provisions

Clauses 3, 4, and 5 respectively set out the purpose of this Bill, state that provisions take effect on the settlement date unless otherwise specified, and provide for the Bill to bind the Crown.

Interpretation provisions

Clause 6 states the general interpretation provision, that the intention of Parliament is that the provisions of the Bill are to be interpreted in the manner that best furthers the agreements set out in the deed of settlement.

Clause 7 defines key terms used in the Bill, including the terms deed of settlement, Te Awa Tupua, Te Awa Tupua status, Te Pou Tupua, trustees, and River (other than in relation to the provisions relating to the vesting of the Crown-owned parts of the bed of the River).

Clause 8 defines Whanganui Iwi, the group whose historical claims under the Treaty of Waitangi relating to the Whanganui River are settled by the deed of settlement and this Bill. The Iwi comprises—

  • every individual who—

    • descended from 1 or more of the named ancestors; and

    • exercised customary rights in relation to the River at any time after 6 February 1940; and

  • the iwi, hapū, and tūpuna rohe groups whose members descended from 1 or more of the names ancestors and collectively exercise, or have exercised, customary rights in respect of the River; and

  • the hapū and tūpuna rohe groups listed in clauses 1 and 2 of Schedule 1.

Clause 9 defines the historical claims settled by the deed of settlement and this Bill.

Part 2Te Pā Auroa nā Te Awa Tupua—Te Awa Tupua framework

Subpart 1—Scope and effect of Te Pā Auroa nā Te Awa Tupua

Clause 10 sets out the component elements of the framework, including the legal recognition of Te Awa Tupua, the establishment of Te Pou Tupua, the vesting of certain parts of the bed of the River in Te Awa Tupua, and related matters.

Clause 11 states the relevance of Te Pā Auroa nā Te Awa Tupua (the framework) in the existing legal context, and requires interpretation of the framework in a way that best furthers the relevant agreements in the deed of settlement. It also requires statutory functions to be carried out consistently with the purpose of the legislation under which the functions are carried out.

Subpart 2—Te Awa Tupua

Te Awa Tupua and Tupua te Kawa

Clause 12 states how Te Awa Tupua, declared by clause 14 to be a legal person, is accorded recognition, and clause 13 sets out the intrinsic values representing the essence of Te Awa Tupua.

Legal status of Te Awa Tupua

Clause 14 declares Te Awa Tupua to be a legal person with the full capacity of a legal person, while also providing that all the rights, powers, and duties of Te Awa Tupua must be exercised or performed by Te Pou Tupua, and all its liabilities and responsibilities must be taken by Te Pou Tupua on behalf of, and in the name of, Te Awa Tupua.

Clause 15 provides for the legal effect of Te Awa Tupua status, defined in clause 7 as the recognition recorded in clause 12 and the declaration of legal personality by clause 14(1). Subclauses (2) and (3) respectively require all persons with functions, powers, or duties under the Acts listed in—

  • clause 1 of Schedule 2 to recognise and provide for the Te Awa Tupua status and Tupua te Kawa; and

  • clause 2 of Schedule 2 to have particular regard to those matters.

Subclause (4) provides that the obligations under subclauses (2) and (3) apply in addition to the relevance accorded the framework by clause 11(1). Subclause (5) ensures that decision makers, in carrying out or exercising those functions, powers, and duties under the specified Acts, undertake a balancing exercise. Thus paragraph (a) clarifies that subclauses (2) and (3) do not remove the statutory discretion of persons carrying out or exercising functions, powers, or duties under the specified Acts. Paragraph (b) acknowledges that those persons may consider the Te Awa Tupua status and Tupua te Kawa as determining factors when exercising their statutory discretion.

Subclause (6) stipulates that any documentation required in relation to carrying out obligations under the statutes referred to in subclauses (2) and (3) must state how the requirements for legal weighting under those subclauses have been complied with.

Clause 16 sets out the limits to the effect of the Bill, namely that nothing in the Bill—

  • limits existing private property rights in the Whanganui River:

  • impinges in any way on rights to, or interests in, water:

  • creates or impinges in any way on rights to, or interests in, wildlife, fish, aquatic life, seaweeds, or plants:

  • affects the application of any enactment.

Clause 17 sets out the application to Te Awa Tupua of particular matters under the following statutory contexts:

  • the Charities Act 2005:

  • clauses 30 and 30A of Schedule 7 of the Local Government Act 2002:

  • section 33X of the Maritime Transport Act 1994:

  • section 14 of the Protected Objects Act 1975:

  • the Resource Management Act 1991:

  • sections 4 and 35 of the Walking Access Act 2008.

Subpart 3—Te Pou Tupua

Establishment, purpose, functions, and powers

Clause 18 establishes Te Pou Tupua. Its purpose is to be the human face of Te Awa Tupua and to act in the name of Te Awa Tupua. Te Pou Tupua has full capacity to carry out its purpose and perform and exercise its functions, powers, and duties under the Bill.

Clause 19 provides for the functions of Te Pou Tupua, including—

  • speaking and acting for Te Awa Tupua:

  • upholding the Te Awa Tupua status:

  • promoting the health and well-being of Te Awa Tupua:

  • performing landowner functions on behalf of Te Awa Tupua:

  • entering into relationship agreements, administering a fund, maintaining the Te Awa Tupua register, and taking other actions necessary to achieving its purpose and performing its functions.

In performing its functions, Te Pou Tupua—

  • must act in the interests of Te Awa Tupua:

  • must develop mechanisms for its interaction with, and accountability to, the iwi and hapū with interests in the River:

  • may report publicly on matters relating to Te Awa Tupua:

  • may engage with any relevant agency, other body, or decision maker, seeking input from them and inviting their participation, as a means to assist in understanding, applying, and implementing Te Awa Tupua status and Tupua te Kawa, including by developing guidelines or policies:

  • may, if entitled under the relevant legislation, participate in any statutory processes affecting Te Awa Tupua.

Appointments

Clause 20 provides for the office of Te Pou Tupua to consist of 2 persons nominated as follows:

  • 1 person by the iwi with interests in the Whanganui River; and

  • 1 person by the Minister for Treaty of Waitangi Negotiations and the Minister of Justice, after consultation with any other Minister considered relevant in light of the purpose of the framework.

The appointments are to be the joint appointments of the nominators.

Administrative matters

Clauses 21 to 25 and Part 1 of Schedule 3 provide for administrative matters relating to Te Pou Tupua, including provision for the tax treatment of Te Awa Tupua and Te Pou Tupua and the application of certain enactments to Te Pou Tupua.

Clause 26 amends the Income Tax Act 2007. These amendments provide a tax exemption for Te Pou Tupua, but only in respect of income that is expended in an income year for the purposes of Te Awa Tupua and Te Pou Tupua.

Te Karewao

Clauses 27 and 28 and Part 2 of Schedule 3 establish Te Karewao as an advisory group for Te Pou Tupua. It is to have 3 members, 1 of whom is to be appointed by the relevant local authorities (see defined term in clause 7). If a function of Te Pou Tupua relates to a discrete part of the River, Te Karewao must, for that function only, have a member appointed by the iwi and hapū with an interest in that part of the River.

Subpart 4—Te Kōpuka nā Te Awa Tupua and Te Heke Ngahuru ki Te Awa Tupua

Te Kōpuka nā Te Awa Tupua

Clauses 29 to 31 and Part 1 of Schedule 4 provide for the establishment of Te Kōpuka as a strategy group for Te Awa Tupua, its functions, and its powers. This body must develop and approve, review, and monitor the implementation of a strategy document, Te Heke Ngahuru, for Te Awa Tupua. The Te Awa Tupua status and Tupua te Kawa are relevant mandatory considerations for Te Kōpuka.

Membership of Te Kōpuka

Clause 32 provides for a membership of up to 17 members for Te Kōpuka, comprising—

  • 1 member appointed by the trustees:

  • up to 5 members appointed by the iwi with interests in the Whanganui River (see defined term in clause 7):

  • up to 4 members appointed by the relevant local authorities (see defined term in clause 7):

  • 1 member appointed by the Director-General of Conservation:

  • 6 members appointed by various groups representative of community and commercial interests in or in the vicinity of the Whanganui River.

Legal status of Te Kōpuka

Clause 33 provides for the legal status of Te Kōpuka as a permanent joint committee in relation to each of the 4 named local authorities and consequently disapplies certain local government legislation.

Collaboration in freshwater planning

Clause 34 provides that Te Kōpuka is to be the participatory group in any future statutory process for collaborative planning for freshwater management in the Whanganui River catchment.

Te Heke Ngahuru ki Te Awa Tupua

Clauses 35 to 38 provide for the purpose and contents of Te Heke Ngahuru (the strategy). Its purpose is to provide for the ways in which agencies, organisations, and persons with interests in the Whanganui River may address the issues relevant to the health and well-being of Te Awa Tupua, by collaborating to consider actions to promote and improve the health and well-being of Te Awa Tupua. The provisions also set out the legal effect of the strategy as a document to which particular regard must be had by persons exercising or performing functions, powers, or duties under the Acts listed in clause 1 of Schedule 2, the Heritage New Zealand Pouhere Taonga Act 2014, and the rest of the provisions of the Resource Management Act 1991. The relevant local authorities must review their planning documents in light of the strategy and any amendments that are made to that strategy.

Subpart 5—Kia Matara Rawa—Vesting of parts of bed of Whanganui River in Te Awa Tupua

Clause 39 sets out definitions for technical and other terms used in this subpart and Schedule 5, including the definition of Whanganui River applying in this subpart.

Vesting

Clauses 40 to 42 provide—

  • in clause 40, for the removal of the status of the Crown-owned parts of the bed of the Whanganui River, namely conservation, Crown, national park, and reserve land held under the specified Acts; and

  • in clause 41(1), for the vesting of the fee simple estate in those parts of the River in Te Awa Tupua (other than any legal roads, railway infrastructure, structures, land held under the Public Works Act 1981, or land located in the marine and coastal area). The vesting includes pakohe, gravel, sand, and shingle in the parts of the bed vested under clause 41(1). Simultaneously with the vesting by clause 41(1), the status that the part of the bed of the River had immediately before the vesting is restored by clause 42, and the statutory functions, powers, and duties applying in respect of those parts continue to apply, despite the change in ownership of the land to Te Awa Tupua.

Land not to be alienated

Clause 43 prohibits the alienation of land vested under specified provisions of the Bill, including alienation by sale, gift, mortgage, charge, or other means. That does not, however, exclude—

  • the acquisition or taking, under Part 2 of the Public Works Act 1981, of an interest in parts of the bed vested in Te Awa Tupua, provided the interest is less than a fee simple estate in the land; or

  • the grant of a lease, licence, easement, or other such interest that is less than a fee simple estate for a term of less than 35 years.

Any minerals vested in Te Awa Tupua by clause 41(3) may be alienated.

Under clause 43(4) and (5), if a matter arises that may lead an agent of the Crown or a local authority to make a proposal to acquire or take an interest in land that is less than a fee simple estate under Part 2 of the Public Works Act 1981, that action would not be an alienation within the meaning of clause 43(2). However, the agency or local authority concerned must, as soon as is reasonably possible after the matter has arisen, fully inform Te Pou Tupua of the matter and invite it to participate in developing the proposal.

Application of certain legislation of and rules of law

Clause 44 disapplies certain legislation unless it is specifically applied by the Bill. It also maintains the effect of sections 10 and 11 of the Crown Minerals Act 1991 and disapplies section 11 and Part 10 of the Resource Management Act 1991 to the vestings under subpart 5.

Clause 45 provides that the common law rules of accretion, erosion, and avulsion apply to any water boundaries (as defined in clause 39(1)), if the adjoining land (as defined in clause 39(1)) is subject to those rules.

If a part of the bed of the River not owned by the Crown is added to Te Awa Tupua, clause 45(3) declares the boundary between that land and any adjoining land to be a water boundary.

Status of certain rights and interests

Clauses 46 and 47 set out the rights and interests that are not affected by the vesting or transfer of parts of the bed of the River to Te Awa Tupua. This exclusion includes ownership of water or wildlife, fish, aquatic life, seaweeds, and plants. Clause 46 also preserves—

  • existing public use of and access to the River:

  • existing private property rights:

  • existing rights of State-owned enterprises and mixed ownership model companies:

  • existing resource consents and other statutory authorisations:

  • existing rights recognised under the Conservation Act 1987, Fisheries Act 1996, and Waitangi (Fisheries Claims) Settlement Act 1992:

  • the existing ownership of, and consents for, lawful structures and the rights to use them.

In addition, the statutory functions of local authorities and the application of other enactments are preserved, unless expressly provided otherwise in the Bill.

The clause also specifies that the consent of Te Pou Tupua is not required for the use of water, though a consent authority, in granting consents for the use of water, may recognise that Te Pou Tupua is an affected person and its consent may be required as a condition for the use of the bed of the River.

Clause 47 provides for the continuing application of lawful interests existing on a part of the bed of the River that is vested by or under the Bill. However, Te Pou Tupua is to be treated as having granted the interest unless the functions, powers, and duties relating to the land are preserved by clause 42(2).

Future acquisitions and interests

Clauses 48 to 55 deal with circumstances in which parts of the bed of the River may be transferred to or vested in Te Awa Tupua subsequent to the initial vesting under clause 41(1). These circumstances are as follows:

  • if a part of the bed of the River is not owned or held by the Crown, it may be transferred to or vested in Te Awa Tupua by agreement of Te Pou Tupua and the owner (clause 48):

  • if a part of the bed of the River is on Māori freehold land, the Māori Land Court may, on application of the legal owners or Te Pou Tupua, make a vesting order in favour of Te Awa Tupua, subject to certain restrictions set out in the Bill (clause 49).

Clause 50 provides for registration of land transferred or vested under clause 48(2) or 49(1).

Clause 51 provides for land transferred or vested under clause 48(2) or 49(1) to be amalgamated with the appurtenant land (as defined in clause 51) if, because of a change in the course of the River, the land no longer forms part of the bed of the River. Land amalgamated under this clause becomes adjoining land (as defined in clause 39), including former Māori freehold land.

Clause 52 sets out how certain other enactments apply when there is a transfer or vesting under clause 48(2), 49(1), or 51(2).

Clause 53 provides that land added to the bed of the River by virtue of a change in the course of the River vests in Te Awa Tupua until, at any time, the land ceases to be part of the bed of the River, the situation covered by clause 54.

Clause 54 provides that if any former Crown-owned part of the bed of the River ceases to be part of the bed by virtue of a change in the course of the River arising from a natural event, and the title is not determined by statute law or the common law, the land revests in the Crown and resumes its former statutory status. Any existing interests continue to apply under the legislation that applied before the vesting in Te Awa Tupua.

In the case of land that is part of the bed of the River and is held under the Public Works Act 1981 but no longer required for a public work, clause 55 provides that Land Information New Zealand must notify Te Pou Tupua and comply with the requirements of sections 40 and 41 of the Public Works Act 1981. If the land remains in Crown ownership after that process is completed, the land vests in Te Awa Tupua, Te Pou Tupua must be notified, and the land must be described in the cadastre as part of the bed of the River. If any land vested in Te Awa Tupua under clause 55 ceases to be part of the bed of the River and neither statute nor common law determines the title, the land vests in the Crown as Crown land and is subject to the Land Act 1948.

Liabilities and responsibilities

Clause 56 excludes the liabilities that Te Awa Tupua would otherwise incur as a landowner (see also clause 1 of Schedule 5), and the Crown continues to have the liabilities applying under clause 2 of Schedule 5.

Subpart 6—Te Korotete o Te Awa Tupua, Te Awa Tupua Fund

Clauses 57 to 59 establish Te Korotete o Te Awa Tupua, the Te Awa Tupuna Fund, a contestable fund that includes a contribution by the Crown of $30 million, to be used by Te Pou Tupua, with the support of the trustees of Ngā Tāngata Tiaki o Whanganui, to promote the health and well-being of Te Awa Tupua. This fund (other than the Crown contribution) may be expended by Te Pou Tupua in meeting the cost of carrying out its functions under the Bill.

Subpart 7—Ngā Ritenga Whakaū—Other arrangements relating to Te Awa Tupua

Protection of name Te Awa Tupua

Clause 60 protects the name Te Awa Tupua from being used, without first obtaining authorisation from Te Pou Tupua,—

  • as, or in the name of, an incorporated or unincorporated body:

  • in trade activities:

  • in relation to commercial goods and services, in business, trade, or an occupation.

Where a request is made for an authorisation by an iwi with interests in the Whanganui River or by any person for an educational or other charitable use, Te Pou Tupua must not unreasonably withhold the authorisation if—

  • that use is consistent with Tupua te Kawa; and

  • the proposed use will promote the health and well-being of Te Awa Tupua.

Te Pou Tupua must consult the trustees before deciding to grant an authorisation if it considers that giving an authorisation may adversely affect the mana of Te Awa Tupua. Te Pou Tupua is able to use the general law to enforce the restrictions under this clause.

Te Awa Tupua register

Clauses 61 and 62 set out the requirements for a register of hearing commissioners qualified to hear and determine applications under the Resource Management Act 1991 (the RMA) for consents relating to the River or activities that affect the catchment. Te Pou Tupua is responsible, together with the Secretary for the Environment, the Director-General, and relevant local authorities, in consultation with the iwi with an interest in the River, for developing and maintaining the register. Those iwi may nominate persons to be included on the register.

Consequence if Te Pou Tupua is affected person

Clause 63, in prohibiting a consent authority from disregarding any effect of a proposal on the River, overrides the provisions of the RMA that otherwise apply when affected persons give their consent to a proposal.

Activities on surface of Whanganui River

Clause 64 requires the iwi with interests in the River, together with the relevant local authorities, the Department of Conservation, and Maritime New Zealand, to collaborate in establishing a process by which to review the activities carried out on the surface of the water of the River and to consider how to improve the management of the activities. The matters relevant for the group to consider include the existing regulatory regime applying to activities on the surface of the River. The group must consult Te Pou Tupua and report to a group of relevant Ministers. The Ministers are empowered by clause 65 to recommend that the Governor-General make regulations for the purposes of public health and safety, the health and well-being of the River, or other matters relevant to the management of activities on the surface of the water of the River.

Fisheries

Clause 66 makes provision for the iwi with interests in the River, together with the regional council, certain departments of State, and the New Zealand Fish and Game Council, to collaborate in co-ordinating the planning and management of fisheries and fish habitat in the Whanganui River catchment and to provide a forum for iwi input into the overall management of the fisheries and fish habitat of the River.

Customary food gathering

Clause 67 requires iwi with interests in the River, and the Ministry for Primary Industries, to collaborate in developing regulations under the Fisheries Act 1996 for managing customary food gathering by iwi with interests in the River. The Minister for Primary Industries is obliged to recommend the making of such regulations if notice is given to that effect jointly by the iwi and Ministry.

Taonga tūturu

Clause 68 modifies the custodial arrangements under section 11 of the Protected Objects Act 1975 by providing for interim arrangements under which Te Awa Tupua must be given interim custody of taonga tūturu found in the River on or after the settlement date, unless the chief executive of the Ministry for Culture and Heritage considers that an alternative to the interim custody of Te Awa Tupua would be appropriate, such as if conservation treatment is required. This provision confirms that Te Pou Tupua has standing as a party with an interest in taonga tūturu found to which it applies, and applies in addition to the National Parks Act 1980 and the Protected Objects Act 1975, other than as modified by the Bill.

Part 3Te Mana o Te Iwi o Whanganui—Whanganui Iwi redress

Subpart 1—Hei pounga wai hoe mai nā hō mātua—Crown acknowledgements and apology

Clauses 69 and 70 set out the acknowledgements and apology of the Crown to Whanganui Iwi.

Subpart 2—Ko au te Awa, ko te Awa ko au—Whanganui Iwi standing

Relationship of Whanganui Iwi and Te Awa Tupua

Clause 71 sets out a statement of the Crown acknowledging the connection of Whanganui Iwi with Te Awa Tupua, and a further statement as to the basis in tikanga and matauranga for the recognition of that connection, together with acknowledgement of the responsibilities of Whanganui Iwi, as tāngata tiaki o Whanganui, in relation to the mana and mouri of Te Awa Tupua and the underpinning mātauranga.

Status of trustees under other Acts

Clauses 72 and 73 confirm the standing of Whanganui Iwi, through the trustees, who,—

  • for the purposes of the RMA, are to be treated as an iwi authority and a public authority, are entitled to lodge submissions and to be heard on matters under the RMA, and are recognised as having an interest in Te Awa Tupua greater than, and separate from, the interests of the public generally; and

  • in relation to other enactments, are entitled to participate in public processes, are recognised as having an interest in Te Awa Tupua greater than, and separate from, the interests of the public generally, and are to be treated as a public body for the purposes of clause 30 of Schedule 7 of the Local Government Act 2002 and the Walking Access Act 2008.

However, clause 74 clarifies that there is no right to be consulted or notified if the trustees would not, apart from this Bill, have that right. The discretion of decision makers in regard to the matters referred to in clause 73 is not affected by clauses 72 and 73, other than that decision makers must have regard to the declaration that the trustees have an interest in Te Awa Tupua greater than that of the public generally. This clause also preserves the applicable statutory procedural requirements and the interests that other persons, including other iwi and hapū, may have in the River. It also expressly excludes clauses 72 and 73 from being interpreted as—

  • recognising mana whenua in relation to the whole or any part of the River or its catchment; or

  • binding, compromising, advantaging, or disadvantaging any other person; or

  • providing a precedent for any other matter.

Subpart 3—Rangahau e Tāne, miroi e Tāne—Authorised customary activities

Clause 75 sets out terms defined for the purposes of this subpart and Schedule 7.

Acknowledgement and right to carry out authorised customary activities

Clause 76 sets out the Crown’s acknowledgement that carrying out customary activities is integral to the relationship of Whanganui Iwi with the River. Accordingly, the clause requires all decision makers under the RMA to recognise and provide for the Crown’s acknowledgement.

Clause 77 authorises members of Whanganui Iwi to carry out customary activities authorised by this Bill. This authorisation applies despite the following regulatory limitations:

  • sections 9 to 17 of the RMA:

  • rules in regional and district plans:

  • the requirement for permits or other authorisations under certain conservation legislation and other legislation, subject to clause 81.

Authorised customary activities, however, are (under clause 78) subject to customary protocols and processes developed by the trustees in consultation with the iwi with interests in the River in relation to where activities may be carried out and by whom, and any conditions that apply. Authorised customary activities must be carried out in compliance with these protocols and processes and must comply with the criteria of clause 79.

Criteria

Clause 79 sets out the criteria applying to activities relating to river stones and customary fishing. The trustees, the Director-General, and other relevant Crown officials must, in consultation with the relevant local authorities, develop and agree the criteria to be met before those customary activities may be carried out.

Savings, application, and exemption provisions

Under clause 80, the right to carry out authorised customary activities does not prevent or constrain Whanganui Iwi, or other iwi with interests in the River, from carrying out customary activities that, immediately before the commencement of the Bill, they had been entitled to carry out.

Clause 81 clarifies that customary fishing activities are subject to the fisher holding a relevant authorisation under the Fisheries (Kaimoana Customary Fishing) Regulations 1998, other mechanisms developed under the Fisheries Act 1996, or under conservation legislation, as relevant.

Authorised customary activities may only be carried out in the common marine and coastal area with the appropriate authorisation under the Marine and Coastal Area (Takutai Moana) Act 2011.

Subpart 4—Te Riu Māeneene—Other cultural redress

Ngā ripo o Te Awa o Whanganui—Significance of rapids

Clause 82 is an acknowledgement of the statement of Whanganui Iwi as to the significance of the rapids on the River. The statement set out in Schedule 8 is quoted from Ruruku Whakatupua—Ngā Mana o Te Iwi o Whanganui.

Official geographic names

Clauses 83 to 86 make provision for the assignment of official geographic names to certain streams within the catchment and for any subsequent alteration of those official geographic names.

Part 4Te Tatā Whakairoiro—Settlement of historical claims and other matters

Historical claims settled and jurisdiction of courts, etc, removed

Clause 87 settles the historical claims as defined in clause 9 and provides that the settlement is final. It removes the jurisdiction of courts, tribunals, and other judicial bodies in respect of the historical claims, the deed of settlement, this Bill, and the settlement redress, other than as to the interpretation or implementation of the deed of settlement and this Bill.

Amendment to Treaty of Waitangi Act 1975

Clause 88 consequentially amends the Treaty of Waitangi Act 1975 to remove the jurisdiction of the Waitangi Tribunal.

Certain enactments no longer apply

Clause 89 removes certain land from the jurisdiction of the listed Acts, which all relate to the powers of the Waitangi Tribunal to make binding orders against the Crown.

Miscellaneous matters

Clause 90 provides for an exception to the rule against perpetuities, and clause 91 obliges the chief executive of the Ministry of Justice to ensure that the deed of settlement is publicly available.

Part 5Te Hoeroa—Governance reorganisation and transitional taxation matters

Subpart 1—Governance reorganisation

This Part is primarily concerned with the matters relevant to the reorganisation of various governance arrangements of Whanganui Iwi.

Clause 92 defines terms used in this Part.

Dissolution of Maori Trust Board

Clause 93 dissolves the Whanganui River Maori Trust Board (the Trust Board) on the commencement of the Bill.

Clause 94 vests the assets and liabilities of the Trust Board in the trustees of Ngā Tāngata Tiaki o Whanganui, freed of any charitable trusts under which they were owned or held, but subject to the trusts expressed in the deed of trust for Ngā Tāngata Tiaki o Whanganui.

Clause 95 requires the trustees of Ngā Tāngata Tiaki o Whanganui to prepare a final report as if it were an annual report under section 31 of the Maori Trust Boards Act 1955 for the Trust Board and provide it to the Minister for Māori Development for presentation to the House of Representatives.

Dissolution of Te Whiringa Muka Trust

Clause 96 dissolves Te Whiringa Muka Trust on the commencement of the Bill.

Clause 97 vests the assets and liabilities of Te Whiringa Muka Trust in the trustees of Ngā Tāngata Tiaki o Whanganui, freed of any charitable trusts under which they were owned or held, but subject to the trusts expressed in the deed of trust for Ngā Tāngata Tiaki o Whanganui. Any assets and liabilities of the subsidiary of Te Whiringa Muka Trust, Whanganui Iwi Fisheries Limited, remain the assets and liabilities of that company.

Clause 98 frees the assets and liabilities of the subsidiary of any charitable purposes under which they were held and deems the constitution of the subsidiary to have been amended to give effect to that change. If the subsidiary is a tax charity under the Inland Revenue Acts, it ceases to have that status. However, nothing in clause 98 has the effect of causing the subsidiary to be a different person for the purposes of those Acts.

Dissolution of Pakaitore Trust

Clause 99 dissolves the Pakaitore Trust on the commencement of the Bill.

Clause 100 vests the assets and liabilities of the Pakaitore Trust in the trustees of Ngā Tāngata Tiaki o Whanganui, freed of any charitable trusts under which they were owned or held, but subject to the trusts expressed in the deed of trust for Ngā Tāngata Tiaki o Whanganui.

Ngā Tāngata Tiaki o Whanganui becomes mandated iwi organisation

The effect of clause 101 is that Ngā Tāngata Tiaki o Whanganui replaces Te Whiringa Muka Trust as the mandated iwi organisation for Whanganui Iwi under the Maori Fisheries Act 2004, and the subsidiary, Whanganui Iwi Fisheries Limited, is confirmed as the asset-holding company of Ngā Tāngata Tiaki o Whanganui. Amongst other things, the provision requires the new mandated iwi organisation to comply with sections 12(1)(d) and 14 of the Maori Fisheries Act 2004.

Clause 102 applies only if the constitutional documents of Ngā Tāngata Tiaki o Whanganui or the subsidiary do not comply with the Maori Fisheries Act 2004 immediately before the commencement of the Bill. It requires the constitutional documents to be treated as if they comply with the Maori Fisheries Act 2004 for up to 2 years after the commencement of the Bill. Any approval or ratification of those documents given before the commencement of the Bill or during the 2-year period after its commencement is to be treated as if, when given, the constitutional documents complied with that Act.

Clause 103 sets out the effects of the recognition of Ngā Tāngata Tiaki o Whanganui as the mandated iwi organisation, namely, that—

  • any registered coastline entitlement held by Te Whiringa Muka Trust immediately before the commencement of the Bill is to be treated as the entitlement of Ngā Tāngata Tiaki o Whanganui; and

  • a coastline claim, agreement, or written statement of Te Whiringa Muka Trust made under the Maori Fisheries Act 2004 before the commencement of the Bill is to be treated as having been made by Ngā Tāngata Tiaki o Whanganui.

Clause 104 requires Te Ohu Kai Moana Trustee Limited to take the necessary administrative actions to provide for the matters set out in clauses 101(1) and 103.

General matters relating to dissolution of Whanganui Iwi trusts

Clause 105 provides immunities for persons acting under this subpart and protects existing obligations and securities, including in relation to matters such as contracts or the disclosure of information. However, the provisions of the subpart do not release a trustee of a Whanganui Iwi trust (as defined in clause 92) from personal liability for which the trustee would not be entitled to be indemnified from the assets of the trust or those of Ngā Tāngata Tiaki o Whanganui.

Clauses 106 to 110 provide the transitional rules that apply to certain administrative matters.

Employees of Whanganui Iwi trusts

Clauses 111 to 114 set out transitional arrangements for the employees of the Whanganui Iwi trusts.

Subpart 2—Transitional taxation provisions for governance reorganisation

Subpart 2 (clauses 115 to 119) sets out transitional taxation provisions arising from the reorganisation of the governance arrangements of Whanganui Iwi. These provisions ensure that the transfer of assets and liabilities from the Whanganui Iwi trusts to the trustees of Ngā Tāngata Tiaki o Whanganui is tax-neutral. They also provide for the taxation situation if those trustees or the subsidiary elect to be a Māori authority.

Subpart 3—Consequential repeal, revocations, and amendments

Clauses 120 to 126 provide for the following:

  • the repeal of the Whanganui River Trust Board Act 1988:

  • the revocation of 2 Whanganui River Maori Trust Board orders:

  • consequential amendments to the Conservation Act 1987, the National Parks Act 1980, the Public Audit Act 2001, the Electoral (Iwi Organisation and Other Māori Organisation) Regulations 2012, and the Maori Trust Boards Regulations 1985.

Schedules

There are 8 schedules, as follows:

  • Schedule 1 lists the hapū and tūpuna rohe groups of Whanganui Iwi, and those that are not included in the definition of Whanganui Iwi:

  • Schedule 2 lists the Acts under which persons exercising or performing a function, power, or duty have particular obligations (see clause 15):

  • Schedule 3 sets out administrative matters relating to—

    • Te Pou Tupua (including accountability requirements relating to Te Awa Tupua and Te Pou Tupua (including Te Korotete)); and

    • Te Karewao:

  • Schedule 4 provides for the establishment of Te Kōpuka as a strategy group for Te Awa Tupua and the development, approval, notification, and review of Te Heke Ngahuru:

  • Schedule 5 sets out further matters relating to the vesting of the Crown-owned parts of the bed of the Whanganui River:

  • Schedule 6 sets out the requirements for a Te Awa Tupua register of hearing commissioners:

  • Schedule 7 sets out notification and other requirements relating to authorised customary activities:

  • Schedule 8 sets out the statement of significance of Ngā Ripo o Te Awa o Whanganui.