Central North Island Forests Land Collective Settlement Act 2008

Schedule 2 Tikanga based resolution process for CNI forests land

s 14

1 Interpretation

(1)

In this schedule, CNI Iwi Collective, company, Crown agreed proportion, Crown initial period, deed of settlement, and deed of trust have the meanings given to them in section 4.

(2)

In this schedule,—

adjudication means the adjudication process set out in clauses 6(10) to (15) of this schedule

adjudication panel means the adjudication panel comprising at least 3 members appointed in accordance with clause 6(10) of this schedule to determine the dispute

board of the company means the board of directors of the company

iwi means an iwi of the CNI Iwi Collective

final allocation agreement means the document prepared by the company that records the outcome of the resolution process in this schedule

resolution process means the tikanga based resolution process for CNI forests land set out in this schedule.

(3)

Terms used, but not defined, in this schedule have the same meaning as in the deed of settlement.

2 Principles of resolution process

(1)

The CNI forests land will be allocated to iwi on the basis of mana whenua and the agreements reached between iwi in a kanohi ki te kanohi process or otherwise determined by the resolution process provided for in this schedule.

(2)

The CNI Iwi Collective is committed to the iwi deciding upon the allocation of CNI forests land for themselves, on their own terms, answerable to one another.

(3)

The iwi acknowledge their commitment to a resolution process that—

(a)

enhances and promotes the mana and integrity of all iwi; and

(b)

is open and transparent; and

(c)

promotes whanaungatanga, manaakitanga, and kotahitanga amongst the iwi; and

(d)

recognises the desirability of post-settlement collaboration between them in the collective management of assets.

(4)

Allocation of CNI forests land will be to iwi only, or their nominees (acknowledging that it is up to iwi whether they make their own internal arrangements with hapū or other entities).

(5)

The CNI Iwi Collective acknowledges its intention to respect any existing arrangements between iwi and district or regional councils, Heritage New Zealand Pouhere Taonga, or Crown forestry licensees.

Schedule 2 clause 2(5): amended, on 20 May 2014, by section 107 of the Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26).

3 Governance of process

(1)

Each iwi will be represented by their governance entity in the resolution process.

(2)

The resolution process will be governed by the company and the governance entities, in their capacity as shareholders in the company.

(3)

The governance entities may amend the resolution process from time to time by unanimous resolution, passed in accordance with the procedures set out in the deed of trust.

(4)

The company may appoint individuals or committees to undertake particular roles in relation to the resolution process.

(5)

The Crown appointed observer to the company is not entitled to attend meetings concerning the resolution process unless they are relevant to the Crown agreed proportion.

(6)

The resolution process will be run with set time frames for each stage and be completed by 1 July 2011.

4 Stage 1: Identification of mana whenua interests: 1 July 2009 to 1 October 2009

(1)

By 31 August 2009, each iwi will provide maps to the company indicating the extent of their mana whenua interests over the CNI forests land. The area of interest claimed is not constrained by the current legal boundaries of the CNI Crown forestry licence blocks.

(2)

The test of mana whenua is the mana that iwi traditionally held and exercised over the land, determined according to tikanga including, but not limited to, such factors as—

(a)

take whenua; and

(b)

demonstration of ahi kā roa, ahi tahutahu, or ahi mātaotao.

(3)

Evidence of mana whenua may be derived from whatever sources of knowledge that each iwi considers relevant, including—

(a)

oral korero, including whakapapa, waiata, and tribal history; and

(b)

written sources, including Native Land Court evidence and decisions, research reports, and other records.

(4)

The company will provide all iwi with a full set of the maps provided under subclause (1). The maps will be confidential to the company and the iwi, and may not be disclosed to third parties or used for any other purpose.

(5)

By 30 September 2009, the board of the company will identify, based on the maps provided by the iwi under subclause (1) and advice from the Crown,—

(a)

the areas of CNI forests land in which a particular iwi has exclusive mana whenua interests; and

(b)

the extent to which there is agreement on allocation of particular areas of CNI forests land to particular iwi. Agreements must be in writing and signed by authorised representatives of the governance entities of each of the iwi that had claimed mana whenua interests; and

(c)

areas of land for which agreement has not been reached, and the iwi that are claiming that land; and

(d)

areas of land that the Crown has advised are or may be subject to claims by other CNI claimants to the Crown agreed proportion.

(6)

Areas of CNI forests land that may be subject to the Crown agreed proportion cannot proceed through the resolution process or be included in the Collective’s final allocation agreement unless and until the Crown has confirmed that the area of land is not part of the Crown agreed proportion. If the Crown does so confirm, the CNI forests land will be subject to the resolution process provided for in this schedule, with any appropriate modifications to the time lines and process determined by the board of the company.

(7)

Subject to subclause (6), the company will record in its draft final allocation agreement the agreed allocations under subclause (5)(a) and (b).

(8)

Subject to subclause (6), all CNI forests land for which allocation is not agreed will be the subject of the Stage 2 process of negotiation between iwi kanohi ki te kanohi.

5 Stage 2: Kanohi ki te kanohi negotiation: 1 October 2009 to 30 June 2010

(1)

Following Stage 1, iwi must embark on kanohi ki te kanohi negotiations with iwi with whom they have overlapping claims, to reach agreement on allocation of the CNI forests land in question.

(2)

The process will be kanohi ki te kanohi between iwi and—

(a)

the iwi involved will determine the tikanga that applies to the process; and

(b)

the governance entity of each iwi will appoint their representatives to engage in the Stage 2 process; and

(c)

the expectation is of kōrero rangatira (open principled trustworthy dialogue by rangatira with authority to commit their iwi); and

(d)

no expert advisors, including lawyers and historians, are permitted to participate directly in the kanohi ki te kanohi negotiations.

(3)

The iwi concerned in each process will endeavour to reach consensus on the allocation of the CNI forests land in question, having regard to the strength of the mana whenua interests. Innovative solutions that reflect tikanga, whanaungatanga, manaakitanga and kotahitanga, and the complexity of mana whenua interests could include, but are not limited to—

(a)

joint or multiple ownership of land as tenants in common, either divided in equal shares or proportionally according to the respective interests of the iwi; and

(b)

subdividing land and allocating the subdivided portions to each iwi; and

(c)

agreeing to “exchange” interests in more than 1 block, so that exclusive interests can be granted to each of the blocks; and

(d)

one iwi becoming the owner, but acknowledging the relationship of other iwi with the land in an agreed manner; and

(e)

agreeing not to transfer title of the land from the company, but acknowledging mana whenua interests in a manner agreed by the iwi.

(4)

Minutes of each hui will be taken and confirmed by the iwi participating.

(5)

Agreements reached during Stage 2 must be signed in writing by the governance entities of each iwi.

(6)

Throughout Stage 2, the board of the company will obtain regular reports from iwi on the progress of negotiations, and consider whether it can facilitate the resolution of any disputes with the agreement of the iwi concerned.

(7)

The iwi involved in each kanohi ki te kanohi process may request the appointment of mediators to assist in the Stage 2 process, as set out in clause 6(7) to (9).

6 Stage 3: Finalising allocation agreement: 1 July 2010 to 30 June 2011

(1)

On completion of Stage 2, the board of the company will prepare a further draft of the final allocation agreement, in which it records—

(a)

the agreements reached on allocation of CNI forests land during Stage 2; and

(b)

any remaining areas of CNI forests land for which agreement has not been reached amongst the iwi who claimed mana whenua interests in that area in the maps provided under clause 4(1) (disputed land).

(2)

The board of the company may only alter the agreements reached between iwi regarding the allocation of CNI forests land with the consent of the iwi concerned.

(3)

The iwi interested in the disputed land will decide whether to refer the dispute to—

(a)

mediation, to endeavour to reach agreement; or

(b)

adjudication, in order to determine the dispute (whether or not mediation has been attempted first).

(4)

If the iwi involved in the dispute cannot reach agreement on which process to follow under subclause (3) by 1 August 2010, the board of the company will decide.

(5)

If agreement is not reached through mediation by 30 November 2010, then the dispute will be determined by adjudication.

(6)

Following determination of the dispute over any disputed lands, the decision reached will be recorded in the final allocation agreement.

Mediation: to be completed by 30 November 2010

(7)

The board of the company may, on the following terms, appoint 1 or more mediators to mediate between the iwi and to endeavour to reach agreement over the disputed land:

(a)

the mediators should be fluent in te reo Māori, and have knowledge of, and be skilled in, tikanga based dispute resolution; and

(b)

the mediators must be independent of the dispute; and

(c)

the iwi concerned may nominate mediators, and must consent to the mediators to be appointed.

(8)

The mediators will decide, in conjunction with the iwi interested in the disputed land, the process to be followed in the mediation.

(9)

The mediators will not have power to determine the dispute, but may offer advice of a non-binding nature.

Adjudication: to be completed by 25 June 2011

(10)

If a dispute over disputed land is referred to adjudication, the board of the company will appoint an adjudication panel that comprises at least 3 members to determine the dispute. The board will have complete discretion to decide who the members of the panel should be, subject to the following requirements:

(a)

the panel members must be fluent in te reo Māori, and be knowledgeable on matters of tikanga, including in particular how mana whenua is held and exercised by iwi; and

(b)

panel members must be independent of the dispute, and not be members of any of the iwi involved in the dispute.

(11)

The adjudication panel may seek legal advice on process, or legal or other expert advice on any other matter.

(12)

The adjudication panel will hear the claims of the iwi interested in the disputed land.

(13)

The adjudication panel will have complete discretion to determine the process and timetable for the hearing, subject to the following requirements:

(a)

the iwi will provide an agreed joint statement to the adjudication panel outlining the nature of the dispute; and

(b)

each iwi will have the opportunity to provide a written submission to the adjudication panel stating their mana whenua interests in the disputed lands and their position concerning the dispute; and

(c)

the iwi involved will file written evidence; and

(d)

each iwi claimant is entitled to a right of reply; and

(e)

there is a right to question witnesses; and

(f)

parties are entitled to have lawyers attend to present submissions on behalf of iwi to the adjudication panel, but lawyers will not be permitted to cross-examine witnesses.

(14)

The adjudication panel will reach a decision on allocation of the disputed lands by 25 June 2011, in accordance with the mana whenua test set out at clause 4(2). The adjudication panel will have the power to—

(a)

allocate the land to 1 iwi; or

(b)

allocate the land to more than 1 iwi in joint or multiple ownership as tenants in common in a block, either divided in equal shares or proportionally according to the respective interests of the iwi; or

(c)

subdivide the block and allocate the subdivided portions to individual iwi; or

(d)

allocate the land to 1 iwi, but acknowledge the relationship of the other iwi with the land in a specified manner; or

(e)

implement any other solutions proposed by 1 or more of the parties, subject to any modifications determined by the adjudication panel.

(15)

A decision with reasons will be given. The decision of the adjudication panel will be final and binding on all the parties.

7 Final allocation agreement

(1)

The board of the company will complete the final allocation agreement by 1 July 2011.

(2)

The final allocation agreement will be final and binding.

(3)

After 1 July 2011, on receiving a written request from a governance entity, the company will transfer the CNI forests land to that governance entity or nominee in accordance with the final allocation agreement and the deed of trust, provided that—

(a)

the Crown’s consent is obtained as required by the deed of trust, if the transfer is prior to the expiry of the Crown initial period; and

(b)

the ongoing rentals and other income derived from the land will continue to be paid to the company and distributed according to the Collective’s agreed proportions until the Collective’s final allocation date (as defined in the deed of trust). After the Collective’s final allocation date, income will run with the land.

(4)

If iwi have acquired satellite CNI forests land (that is, land outside Kaingaroa Forest) and wish to transfer the CNI forests land and the right to the ongoing rentals and other income from the company to the iwi prior to the Collective’s final allocation date, then in order to maintain the principles of fairness and equity—

(a)

economic analysis on the impact of taking that action on the Collective and the iwi must be undertaken; and

(b)

the conditions of transfer shall be agreed; and

(c)

the transfer is subject to unanimous approval of the shareholders of the company.

(5)

If for any reason aspects of the final allocation agreement are not finalised, or are subject to litigation, that will not prevent the transfer to iwi after 1 July 2011 of areas of CNI forests land for which final agreement has been reached.

(6)

If agreement is reached not to transfer areas of the CNI forests land, or iwi do not request a transfer in writing, then the company will retain title, subject to the vested beneficial entitlement of iwi in accordance with the final allocation agreement and the deed of trust.

(7)

On completion of the Crown initial period, any remaining CNI forests land that is vested in the company in accordance with the deed of trust will be subject to the resolution process in this schedule, with any appropriate modifications to the time lines and process determined by the board of the company.