Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Bill
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Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Bill
Government Bill
303—1
Explanatory note
General policy statement
Overview
This Bill—
gives effect to a deed of agreement between ngā hapū o Ngāti Porou and the Crown in relation to ngā rohe moana o ngā hapū o Ngāti Porou; and
contributes to the legal expression, protection, and recognition of the continued exercise of mana by ngā hapū o Ngāti Porou in relation to ngā rohe moana o ngā hapū o Ngāti Porou.
Background
At a series of hui-a-iwi commencing in August 2003, and at further hui with various of the Ngāti Porou marae, hapū, and tāura here, support was given for Te Rūnanga o Ngāti Porou to enter into discussions with the Crown to ensure that the foreshore and seabed rights of ngā hapū o Ngāti Porou would continue to be recognised and protected.
Te Rūnanga o Ngāti Porou, on behalf of ngā hapū o Ngāti Porou, commenced discussions with the Crown. On 1 November 2004 the parties entered into terms of negotiation that set out the scope, objectives, and procedures for future negotiations in order for an agreement on the foreshore and seabed rights of ngā hapū o Ngāti Porou to be reached.
Following this, the Foreshore and Seabed Act 2004 was enacted. The object of that Act is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders in a way that enables the protection by the Crown of the public foreshore and seabed on behalf of the people of New Zealand, including the protection of the association of whānau, hapū, and iwi with areas of the public foreshore and seabed.
In December 2005 and January 2006, Te Rūnanga o Ngāti Porou conducted a series of mandating hui to determine which hapū of Ngāti Porou still supported the negotiations with the Crown and which no longer supported the negotiations. The result of this process was that a large majority of hapū expressed clear and continued support for the negotiations. However, a number of hapū did not support the negotiations, were unclear in their position, or deferred from making a decision. As a consequence of the further mandating process, the negotiations continued, but only for the territorial customary rights claims of those hapū that had expressed clear support for the negotiations.
On 5 February 2008, the Crown and Te Rūnanga o Ngāti Porou (on behalf of certain hapū of Ngāti Porou) signed a heads of agreement. The heads of agreement comprised 2 parts—
a letter of understanding, signed by the Attorney-General and the chairman of Te Rūnanga o Ngāti Porou that noted the agreements reached to date and recorded the next steps to be taken before the deed of agreement is signed; and
the draft deed of agreement outlining the nature, scope, and extent of the instruments to be provided to those hapū of Ngāti Porou that choose to ratify the final deed of agreement.
On 7 August 2008, a deed of agreement was initialled by the principal negotiator for Te Rūnanga o Ngāti Porou (on behalf of certain hapū of Ngāti Porou) and the Attorney-General (on behalf of himself and the Minister exercising the functions of the Minister of Māori Affairs). Te Rūnanga o Ngāti Porou then commenced the process of seeking ratification of the deed of agreement by ngā hapū o Ngāti Porou.
The ratification results have now been assessed. The deed of agreement is to be signed by the parties.
Purpose of Bill
The purpose of the Bill is to give effect to the deed of agreement between ngā hapū o Ngāti Porou and the Crown in relation to ngā rohe moana o ngā hapū o Ngāti Porou. This Bill will contribute to the legal expression, protection, and recognition of the continued exercise of mana by ngā hapū o Ngāti Porou in relation to ngā rohe moana o ngā hapū o Ngāti Porou in a manner consistent with section 3 of the Foreshore and Seabed Act 2004.
The deed of agreement contains various recognition instruments. Some of those instruments require legislation to be given full effect, particularly those that impact on other legislation such as the Conservation Act 1987, the Resource Management Act 1991, and the Fisheries Act 1996.
The Bill seeks to achieve the following outcomes:
to recognise the unbroken, inalienable, and enduring mana of the hapū of Ngāti Porou in relation to ngā rohe moana o ngā hapū o Ngāti Porou, which is held and exercised as a collective right; and
to provide legal mechanisms that support the expression and protection of the mana of the hapū of Ngāti Porou generally and in those specific areas where territorial customary rights are recognised; and
to recognise that the Crown has a responsibility for public access in, on, and over the public foreshore and seabed, and a role in regulating the public foreshore and seabed; and
to provide certainty about the use and administration of ngā rohe moana o ngā hapū o Ngāti Porou.
Scope of the deed of agreement
The public foreshore and seabed (as defined in section 5 of the Foreshore and Seabed Act 2004) means the marine area that is bounded, on the landward side, by the line of mean high water springs, and on the seaward side, by the 12 nautical mile limit and excludes any land that is, for the time being, subject to a specified freehold interest (as defined in the same section).
The seaward boundary of ngā rohe moana o ngā hapū o Ngāti Porou is the 12 nautical mile limit.
Ngā rohe moana o ngā hapū o Ngāti Porou includes the public foreshore and seabed in the rohe of the hapū that ratified the deed of agreement.
In this Bill, ngā hapū o Ngāti Porou is defined in clause 7 as the hapū of Ngāti Porou who have ratified the deed of agreement. The deed of agreement will bind the Crown and those hapū of Ngāti Porou who have chosen to ratify it.
Within ngā rohe moana o ngā hapū o Ngāti Porou are territorial customary rights areas that have been agreed between Te Rūnanga o Ngāti Porou (on behalf of certain hapū of Ngāti Porou) and the Crown under section 96 of the Foreshore and Seabed Act 2004. These areas are subject to confirmation by the High Court. If confirmed by the High Court, particular recognition instruments will apply in these areas. The seaward boundary of the territorial customary rights areas is 3 nautical miles.
Main elements of the Bill
This Bill provides for the instruments and mechanisms that have been negotiated and agreed between ngā hapū o Ngāti Porou and the Crown that require legislation to have effect. The instruments and mechanisms relate to 2 types of coverage areas. The following 7 instruments and mechanisms relate to ngā rohe moana o ngā hapū o Ngāti Porou:
statutory overlay (subpart 1 of Part 2 of the Bill): this instrument ensures that a map of ngā rohe moana o ngā hapū o Ngāti Porou is attached to key public documents. It is also designed to provide for the effective participation of ngā hapū o Ngāti Porou in the processes relating to resource consent applications and applications under the Historic Places Act 1993:
environmental covenant instrument (subpart 2 of Part 2 of the Bill): this instrument provides for ngā hapū o Ngāti Porou to set out the issues, objectives, policies, and rules and other methods relating to the promotion of their world view, including in relation to the promotion of sustainable management of ngā rohe o ngā hapū o Ngāti Porou, and the protection of the cultural and spiritual identity of ngā hapū o Ngāti Porou. To the extent that the environmental covenant relates to resource management issues, Gisborne District Council will be required to review key public documents (such as its regional coastal plan) the next time those documents are reviewed under the Resource Management Act 1991 to ensure that those documents take the environmental covenant into account:
protected customary activities (subpart 3 of Part 2 of the Bill): this instrument will provide a process by which ngā hapū o Ngāti Porou may obtain legal protection to ensure they are able to continue their ongoing customary activities, uses, or practices within ngā rohe moana o ngā hapū o Ngāti Porou without the need for resource consent:
wāhi tapu (subpart 4 of Part 2 of the Bill): this instrument will enable ngā hapū o Ngāti Porou to identify within ngā rohe moana o ngā hapū o Ngāti Porou wāhi tapu and wāhi tapu areas and also provide for prohibitions or restrictions on persons accessing the identified wāhi tapu and wāhi tapu areas:
fisheries mechanism (subpart 5 of Part 2 of the Bill): this mechanism recognises the special relationship that ngā hapū o Ngāti Porou have with the fishing grounds within ngā rohe moana o ngā hapū o Ngāti Porou. This mechanism will allow for the making of new customary fishing regulations to cover ngā rohe moana o ngā hapū o Ngāti Porou. These regulations will enable ngā hapū o Ngāti Porou to manage customary fishing within ngā rohe moana o ngā hapū o Ngāti Porou:
conservation mechanism (subpart 6 of Part 2 of the Bill): this mechanism will facilitate the effective participation of ngā hapū o Ngāti Porou in the processes related to establishing or extending marine reserves, establishing or extending conservation protected areas, and granting concessions. This mechanism also facilitates the effective participation of ngā hapū o Ngāti Porou in the processes related to establishing or extending marine mammal sanctuaries, granting authorisations in relation to wildlife matter and permits in relation to marine mammal matter, and making decisions on the management of stranded marine mammals and applications for marine mammal watching permits:
place names (subpart 7 of Part 2 of the Bill): this instrument will provide for the alteration of some existing place names within ngā rohe moana o ngā hapū o Ngāti Porou to names chosen by ngā hapū o Ngāti Porou:
The following instruments and mechanisms relate to the territorial customary right areas only:
permission rights (subpart 9 of Part 2 of the Bill): this instrument provides territorial customary rights hapū with the right to give, or refuse to give, their permission to applications for resource consent and requests made by persons, in response to a regional council invitation under the Resource Management Act 1991, to change a regional coastal plan to establish an aquaculture management area:
extended fisheries mechanism (subpart 5 of Part 2 of the Bill): this mechanism will extend the fisheries mechanism by allowing ngā hapū o Ngāti Porou to propose bylaws restricting or prohibiting fishing for sustainable utilisation or cultural reasons:
extended environmental covenant mechanism (subpart 2 of Part 2 of the Bill): this mechanism extends the environmental covenant by requiring Gisborne District Council to review its key public documents (that cover or directly affect a territorial customary rights area) to ensure that it recognises and provides for the issues, objectives, policies, and rules or methods set out in the environmental covenant to the extent that the environmental covenant relates to resource management issues:
extended conservation mechanism (subpart 6 of Part 2 of the Bill): this mechanism extends the conservation mechanism by allowing the territorial rights hapū to have the right to give, or refuse to give, their consent to certain proposals or applications where they relate to the territorial customary rights area, including applications to establish or extend marine reserves under the Marine Reserves Act 1971, proposals to establish or extend conservation protected areas, applications for concessions, proposals to establish or extend marine mammal sanctuaries, and applications for marine mammal watching permits.
Clause by clause analysis
Clause 1 is the Title clause.
Clause 2 provides that the Bill comes into force by Order in Council.
Part 1Preliminary provisions, interpretation, and application
Clause 3 sets out the purpose of the Bill.
Clause 4 provides that the Bill binds the Crown.
Clause 5 requires the provisions of the Bill to be interpreted in a manner that best furthers the agreements expressed in the deed of agreement.
Clause 6 is the general interpretation clause.
Clause 7 defines ngā hapū o Ngāti Porou for the purposes of the Bill.
Clause 8 defines ngā rohe moana o ngā hapū o Ngāti Porou for the purposes of the Bill.
Clause 9 defines accommodated matter. These are rights, activities, structures, and works listed in Schedule 1 that under clause 11 are not affected by the Bill.
Clause 10 provides that the provisions of the Bill in relation to TCR areas apply only if an Order in Council under clause 107 has been made for the area. The area must only be an area of the public foreshore and seabed within ngā rohe moana o ngā hapū o Ngāti Porou in relation to which the the High Court has confirmed that the requirements of sections 32 to 34 of the Foreshore and Seabed Act 2004 are satisfied in respect of a particular hāpu of Ngāti Porou (defined in clause 6 as the TCR hapū).
Clause 11 sets out the application of the Bill in respect of accommodated matters.
Part 2Implementation of deed of agreement
Subpart 1—Special status of ngā hapū o Ngāti Porou to be provided for in certain statutory documents and processes
Clause 12 requires a map of ngā rohe moana o ngā hapū o Ngāti Porou to be attached to certain planning documents (defined in this clause and clause 6 as key public documents) for the purposes of public notice.
Clause 13 empowers the relevant hapū to be a party to any proceedings before the Environment Court for an application for a resource consent for an activity within, adjacent to, or impacting directly on the rohe of the hapū. The clause does this by treating the hapū as a person who has an interest in the proceedings concerned that is greater than the public generally for the purposes of section 274(1) of the Resource Management Act 1991.
Clause 14 requires the Gisborne District Council (GDC), the district and regional council with jurisdiction over ngā rohe moana o ngā hapū o Ngāti Porou, to provide a copy of resource consent applications to relevant hapū in certain circumstances.
Clause 15 provides certain rights to ngā hapū o Ngāti Porou if the Minister for the Environment and the Minister of Conservation make a direction under section 141B(1)(a) of the Resource Management Act 1991 to refer a matter that is part of a proposal of national significance within ngā rohe moana o ngā hapū o Ngāti Porou to a board of inquiry under that Act.
Clause 16 requires that for the purposes of sections 14(6)(a) and 20(1) and (6)(d) of the Historic Places Act 1993, ngā hapū o Ngāti Porou must be treated as persons directly affected by a decision of, or the exercise of a power by, the New Zealand Historic Places Trust if the decision, or the exercise of the power, relates to ngā rohe moana o ngā hapū o Ngāti Porou.
Subpart 2—Ngā rohe moana o ngā hapū o Ngāti Porou environmental covenant
Clause 17 empowers ngā hapū o Ngāti Porou to develop and sign an environmental covenant setting out the issues, objectives, policies, and rules or other methods of ngā hapū o Ngāti Porou in relation to promoting the sustainable management of the natural and physical resources of ngā rohe moana o ngā hapū o Ngāti Porou and protecting the integrity of ngā hapū o Ngāti Porou, including their cultural and spiritual identity with the rohe.
Clause 18 requires GDC to ensure that each of its key public documents (as defined in clause 6) that cover or directly affect ngā rohe moana o ngā hapū o Ngāti Porou takes into account the matters in the environmental covenant that relate to resource management issues and, if the document covers or directly affects a TCR area, recognises and provides for the matters in the covenant that relate to resource management issues.
Clause 19 requires ngā hapū o Ngāti Porou to provide GDC with a copy of the covenant once signed and each time it is amended.
Clause 20 requires GDC to review each of its key public documents that cover or directly affect ngā rohe moana o ngā hapū o Ngāti Porou for compliance with the requirements of clause 18. The clause sets out the procedure for the review and the transitional arrangements that are required until the review of each document is completed.
Clause 21 sets out the actions GDC must take after a review.
Clause 22 authorises ngā hapū o Ngāti Porou to require GDC to reconsider its decision on a review if the decision is not to make any changes to a key public document (to account for the environmental covenant in the manner required under clause 18).
Clauses 23 to 25 deal with the reconsideration process.
Clause 26 requires ngā hapū o Ngāti Porou to periodically review the environmental covenant to ensure it accurately provids for the matters in clause 18.
Clause 27 authorises ngā hapū o Ngāti Porou to amend the environmental covenant after carrying out a review by signing an amended version.
Clauses 28, 29, and 30 set out the effect that the environmental covenant is to have on other resource management documents, decisions under the Historic Places Act 1993, and on GDC decision-making processes generally.
Subpart 3—Protected customary activities within ngā rohe moana o ngā hapū o Ngāti Porou
Clauses 31 and 32 provides a process (agreement between ngā hapū o Ngāti Porou, the Attorney-General, and the Minister of Māori Affairs) by which an activity within ngā rohe moana o ngā hapū o Ngāti Porou may be recognised as a protected customary activity.
Clause 33 authorises a hapū that may carry on, exercise, or follow a protected customary activity to determine which member of the hapū is able to undertake the activity and at which locations.
Clause 34 authorises the carrying out, exercise, or following of a protected customary activity despite certain matters in the Resource Management Act 1991 or a district plan.
Clauses 35, 36, and 37 empower, and set out the process for, the Minister of Conservation to make determinations on whether a protected customary activity has, or may have, a significant adverse effect on the environment.
Clause 38 requires the Minister of Conservation and the hapū concerned to agree on controls for a protected customary activity that the Minister has determined has, or may have, a significant adverse effect on the environment.
Clause 39 requires a copy of an agreement on controls to be provided to certain persons.
Clauses 40, 41, and 42 prohibit a consent authority from granting an application for a resource consent for an activity that GDC has determined under clause 41 will, or is likely to, have a significant adverse effect on a protected customary activity unless the activity is an accommodated matter or the relevant hapū approves in writing to the activity under clause 42.Clause 41 sets out the process by which GDC determines whether a proposed activity will, or is likely to, have a significant adverse effect on a protected customary activity.
Subpart 4—Protection for wāhi tapu and wāhi tapu areas within ngā rohe moana o ngā hapū o Ngāti Porou
Clauses 44 to 53 provide for the protection of wāhi tapu and wāhi tapu areas within ngā rohe moana o ngā hapū o Ngāti Porou. Under clause 52 a person who intentionally fails to comply with a wāhi tapu or wāhi tapu area prohibition or restriction commits an offence punishable on summary conviction by a fine not exceeding $5,000. Clause 53 provides for the appointment of wardens in accordance with regulations made under clause 120 to promote compliance with wāhi tapu or wāhi tapu area prohibitions and restrictions.
Subpart 5—Customary fishing practices within ngā rohe moana o ngā hapū o Ngāti Porou
Clause 54 requires the Minister of Fisheries to recommend to the Governor-General that regulations be made for the purposes of recognising and providing for customary food gathering by ngā hapū o Ngāti Porou within ngā rohe moana o ngā hapū o Ngāti Porou and recognising and providing for the special relationship between TCR hapū and places of customary food gathering in their TCR areas.
Clause 55 requires fisheries management plans (as defined in clause 6) to be recognised and provided for in certain circumstances when a person is acting under the Fisheries Act 1996.
Clause 56 sets out the relationship between regulations made for the purposes of clause 56 and the Fisheries (Amateur Fishing) Regulations 1986 and the Fisheries (Kaimoana Customary Fishing) Regulations 1998.
Subpart 6—Conservation mechanisms within ngā rohe moana o ngā hapū o Ngāti Porou
This subpart sets out requirements for certain departments and other bodies of the Crown or persons acting for the Crown in respect of ngā hapū o Ngāti Porou in relation to the following matters:
marine reserve applications for areas within, adjacent to, or directly impacting on ngā rohe moana o ngā hapū o Ngāti Porou:
establishment or extension of marine reserves within, adjacent to, or directly impacting on ngā rohe moana o ngā hapū o Ngāti Porou:
proposals to establish or extend conservation protected areas (as defined in clause 6) within, adjacent to, or directly impacting onngā rohe moana o ngā hapū o Ngāti Porou:
applications for a concession (as defined in clause 6) to undertake activities within conservation protected areas within ngā rohe moana o ngā hapū o Ngāti Porou:
proposals for marine mammal sanctuaries within ngā rohe moana o ngā hapū o Ngāti Porou:
wildlife matter applications and marine mammal matter applications (as those terms are defined in clause 6):
decisions concerning stranded marine mammals:
decisions on applications for marine mammal watching permits:
possession of wildlife matter or marine mammal matter:
certain applications and proposals in relation to TCR areas.
Subpart 7—Alteration and assignment of place names within ngā rohe moana o ngā hapū o Ngāti Porou
This subpart provides for matters relating to the alteration in clause 78 of the names of 2 places within ngā rohe moana o ngā hapū o Ngāti Porou.
Subpart 8—Relationship instruments for ngā rohe moana o ngā hapū o Ngāti Porou
This subpart deals with the relationship instruments that ngā hapū o Ngāti Porou have entered into with certain Ministers. These are binding agreements that set out how the relationship between ngā hapū o Ngāti Porou and the Ministers (and their departments) will be conducted.
Subpart 9—TCR hapū permission rights
This subpart sets out how resource consent applications and aquaculture management area requests that relate to a proposed activity in a TCR area are to be dealt with by GDC and what rights a TCR hapū has in relation to those applications and requests.
Part 3Jurisdictional matters
Subpart 1—Establishment of TCR areas
Clauses 104 to 107 set out the process by which an area within ngā rohe moana o ngā hapū o Ngāti Porou may be established as a TCR area. Certain areas to which these clauses apply are set out in Schedule 2 (including indicative maps).
Subpart 2—Removal of jurisdiction of High Court, Māori Land Court, and other judicial bodies
Clauses 108 and 109 remove the jurisdiction of the High Court, the Māori Land, and other judicial bodies in respect of matters covered by this Bill.
Part 4Miscellaneous provisions
Clauses 110 to 112 relate to the management arrangements established by ngā hapū o Ngāti Porou to exercise their rights and responsibilities and perform their obligations under this Bill and the deed of agreement.
Clause 113 sets out limitations on the effect of the Bill.
Clause 114 prohibits GDC from imposing a coastal occupation charge under section 64A of the Resource Management Act 1991 on certain activities authorised by the Bill.
Clause 115 deals with the rule against perpetuities.
Clauses 116, 117, and 119 sets out requirements in relation to availability of access to the deed of agreement and certain other agreements and documents.
Clause 118 requires the public foreshore and seabed register referred to in section 92 of the Foreshore and Seabed Act 2004 to keep records of the documents described in clause 117(a) to (c).
Clause 120 authorises the making of regulations in relation to wardens appointed under clause 53.
Clause 121 and Schedule 3 relate to consequential amendments to other enactments.
Regulatory impact statement
Executive summary
This regulatory impact statement relates to the recognition instruments that have been negotiated with Te Rūnanga o Ngāti Porou (on behalf of certain hapū of Ngāti Porou). The recognition instruments seek to provide for effective participation and decision making in relation to the public foreshore and seabed in the agreement area of the hapū.
Adequacy statement
The Ministry of Justice confirms that the principles of the Code of Regulatory Practice and the regulatory impact analysis requirements, including consultation requirements, have been complied with in developing the preferred option. The Ministry considers that the statement provides an accurate summary of the regulatory impacts associated with giving effect to the deed of agreement with the hapū of Ngāti Porou.
Status quo and problem
The Foreshore and Seabed Act was enacted in 2004. Under that Act, the full legal and beneficial ownership of the public foreshore and seabed was vested in the Crown. Under the Act, the Attorney-General and the Minister of Māori Affairs may enter into an agreement with a group to recognise that, but for the vesting of the full legal and beneficial ownership of the public foreshore and seabed in the Crown, the group (or members of that group) would have had a claim for territorial customary rights over a specific area of the public foreshore and seabed.
Discussions with Te Rūnanga o Ngāti Porou (on behalf of hapū of Ngāti Porou) commenced in late 2003 concerning the foreshore and seabed rights of the hapū of Ngāti Porou. On 5 February 2008 the Crown and Te Rūnanga o Ngāti Porou (on behalf of certain hapū of Ngāti Porou) signed a heads of agreement.
The heads of agreement recorded the agreements reached to date and the next steps to reach a final deed of agreement. The heads of agreement incorporated a draft deed of agreement that outlined the nature, scope, and extent of the instruments to be provided to those hapū of Ngāti Porou.
The deed of agreement includes a number of innovative foreshore and seabed instruments designed to contribute to the legal expression, protection, and recognition of the continued exercise of mana by the hapū of Ngāti Porou in relation to their foreshore and seabed rohe in a manner that is consistent with the object of the Foreshore and Seabed Act 2004. The object of that Act is to preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders in a way that enables the protection by the Crown of the public foreshore and seabed on behalf of all the people of New Zealand, including the protection of the association of whānau, hapū, and iwi with areas of the public foreshore and seabed.
Only those hapū that choose to ratify the deed of agreement will have their claims affected by the deed and will benefit from its instruments.
Once the deed of agreement is ratified by the groups concerned and signed by the Crown and hapū negotiators, appointed representatives of the groups will file an application in the High Court to confirm that the requirements for territorial customary rights in specific areas have been satisfied.
This Bill gives legislative effect to the contents of the deed of agreement.
Objectives
The public policy objectives associated with the recognition instruments set out in the deed of agreement are to—
(a)
recognise the unbroken, inalienable, and enduring mana of the hapū of Ngāti Porou in relation to the public foreshore and seabed in their respective rohe, which is held and exercised as a collective right; and
(b)
provide legal mechanisms that support the expression and protection of the mana of the hapū of Ngāti Porou both generally and in those specific areas where territorial customary rights are recognised; and
(c)
recognise that the Crown has a responsibility for public access in, on, and over the public foreshore and seabed, and a role in regulating the public foreshore and seabed; and
(d)
provide certainty about the use and administration of the public foreshore and seabed.
Alternative options
Status quo
To do nothing would fail to meet the Crown’s obligations under the deed of agreement.
Voluntary approach
This option would involve parties affected by the recognition package (for example, Gisborne District Council, the Department of Conservation, and the Ministry of Fisheries) implementing the instruments voluntarily. This option would not work because the recognition instruments provided for in the deed of agreement will provide the group with new statutory rights and powers and will affect the statutory rights and powers of others, including the Crown, local authorities, and members of the general public.
There is no alternative to legislation that could give effect to the Crown’s obligations under the deed of agreement.
Preferred option
The preferred option involves the Crown agreeing to the deed of agreement, and giving effect to it through legislation. The deed of agreement contains 9 instruments and mechanisms. These instruments and mechanisms, and the regulatory impacts and compliance costs associated with them, are—
a statutory overlay that recognises the special status of the public foreshore and seabed to the hapū of Ngāti Porou. It requires Gisborne District Council to record its status in key public documents such as district and regional plans. It will be taken into account in consent processes under the Resource Management Act 1991. Gisborne District Council will need to provide copies of applications for resource consents to hapū representatives through the hapū management arrangements. This latter requirement relating to applications is not new, as it reflects existing practice under the Resource Management Act 1991:
an environmental covenant will be prepared by the hapū of Ngāti Porou. It will identify issues, objectives, policies, and rules or other methods relevant to the promotion of their world view, including the promotion of sustainable management of their seaward rohe and the protection of the cultural and spiritual identity of the hapū. To the extent that the environmental covenant relates to resource management issues, Gisborne District Council will be required to review key public documents (such as regional coastal plans) the next time those documents are reviewed under the Resource Management Act 1991 to ensure that those documents take the environmental covenant into account. This is consistent with current provisions in the Resource Management Act 1991 relating to iwi planning documents and foreshore and seabed reserve management plans, and does not introduce new compliance costs:
a protected customary activities mechanism will allow the supporting hapū the right to continue carrying out specified customary activities without resource consent in or on the public foreshore and seabed in their agreement area. This is consistent with provisions in the Foreshore and Seabed Act 2004 relating to recognised customary activities and does not introduce new compliance costs:
a wāhi tapu protection mechanism will give the relevant hapū the right to restrict or prohibit access to wāhi tapu and wāhi tapu areas within the public foreshore and seabed in their agreement area. This is analogous to provisions relating to wāhi tapu in the Foreshore and Seabed Act 2004 and does not introduce new compliance costs:
relationship instruments between relevant Ministers of the Crown and the hapū of Ngāti Porou that set out how the hapū and the Ministers and their departments and ministries will interact. The relationship instruments will be developed and implemented by the Minister of Fisheries, the Minister of Conservation, the Minister for the Environment, the Minister for Arts, Culture and Heritage, and the Minister of Energy with ngā hapū of Ngāti Porou. Gisborne District Council and the New Zealand Transport Agency will also be encouraged to enter into memoranda of understanding with the hapū. Parties are free to enter into such arrangements now, as they are consistent with existing legislation. Costs are associated with the preparation, approval, and implementation of these instruments:
a fisheries mechanism will allow the hapū to develop customary fisheries regulations (made by the Minister of Fisheries). The regulations will enable the hapū to manage customary fisheries within their seaward rohe. The fisheries mechanism is consistent with section 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and the Fisheries Act 1996. There will be costs associated with the development and implementation of the regulations and there will be offences and penalties for breaching the bylaws:
a conservation mechanism will recognise the mana of the hapū by facilitating effective participation of the hapū in the following processes:
establishing or extending marine reserves:
establishing or extending conservation protected areas:
granting concessions:
establishing or extending marine mammal sanctuaries:
granting authorisations and permits in relation to wildlife matter and marine mammal matter:
decisions on the management of stranded marine mammals:
decisions on applications for marine mammal watching permits:
possession by hapū of wildlife matter and marine mammal matter.
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These new processes will introduce new compliance costs related to notification and consideration of views for the Department of Conservation:
a place names instrument will be used to recognise traditional names or alter names of culturally significant areas. This is consistent with instruments available under Treaty of Waitangi settlements and does not introduce new regulatory impacts or compliance costs:
a pouwhenua instrument that will give the hapū of Ngāti Porou the right to erect pouwhenua at culturally significant sites. The costs associated with erecting pouwhenua will lie where they fall.
Where specific territorial customary rights areas are recognised as part of the agreements, the hapū signing the agreement will also have the following additional protections within those territorial customary rights areas:
a permission right instrument that will provide hapū with the right to approve or withhold approval for applications for resource consent for an activity that would or may have a significant adverse effect on the relationship of the hapū with the environment in the territorial customary rights area. This will impact on consent authorities, hapū, and third parties that make applications for resource consent in the territorial customary rights area. The permission right represents a new way for hapū to be closely involved in resource management decisions and ensures that their intrinsic cultural association within territorial customary rights areas is recognised:
an extended fisheries mechanism that will provide the hapū with the ability to make bylaws under customary fishing regulations. The bylaws may restrict or prohibit fishing within territorial customary rights areas, either to preserve sustainability or for cultural reasons such as following a death by drowning in the area. This is consistent with the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and the Fisheries Act 1996. The Ministry of Fisheries would assist with setting up these bylaws and there could be penalties for breaching the bylaws, via the regulations:
an extended environmental covenant instrument will require the environmental covenant to be recognised and provided for in key public documents (such as the regional coastal plan) that cover or directly affect a territorial customary rights area.
Implementation and review
The recognition instruments and mechanisms noted above will be given effect through this Bill, which in turn gives effect to the deed of agreement.
Consultation
Affected local authorities were consulted throughout the development of the recognition package set out in the deed of agreement and in the Bill. The negotiating representatives of the groups have been consulting with their respective hapū members on the instruments and mechanisms contained in the deed of agreement and in the Bill.
The following agencies were consulted on the Bill: Te Puni Kōkiri, the Ministry of Fisheries, the Ministry for the Environment, the Department of Conservation, the Ministry of Agriculture and Forestry, the Ministry for Culture and Heritage, the New Zealand Historic Places Trust, the Ministry of Economic Development, the Treasury, the Crown Law Office, and the Department of the Prime Minister and Cabinet.
Hon Dr Michael Cullen
Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Bill
Government Bill
303—1
Contents
Preamble
(1)
Prior to 1840, ngā hapū o Ngāti Porou were the iwi kaenga and, therefore, the owners of all of the coastal lands within their rohe (territory):
(2)
Since 1840, ngā hapū o Ngāti Porou have retained ownership of a significant proportion of these coastal lands which are contiguous to the foreshore and seabed:
(3)
In 2003, the Court of Appeal in Ngāti Apa v Attorney-General decided certain jurisdictional matters in relation to customary territorial rights to the foreshore and seabed. As a result of this decision, Te Rūnanga o Ngāti Porou, as well as particular whānau and hapū of Ngāti Porou, made applications to the Māori Land Court for orders declaring the foreshore and seabed in the Ngāti Porou rohe to be Māori customary land:
(4)
In addition, at a series of hui-a-iwi (tribal meetings) and hui (meetings) with various of the Ngāti Porou marae, hapū, and taura here support was given for Te Rūnanga o Ngāti Porou to enter into discussions with the Crown to ensure that the foreshore and seabed territorial customary rights of ngā hapū o Ngāti Porou would continue to be recognised and protected were any legislation enacted in response to the Ngāti Apa decision:
(5)
On 1 November 2004, Te Rūnanga o Ngāti Porou, on behalf of ngā hapū o Ngāti Porou from Pōtikirua to Te Toka a Taiau, and the Crown entered into terms of negotiation. This agreement set out the scope, objectives, and procedures for negotiations between Te Rūnanga o Ngāti Porou and the Crown in order to reach an agreement on the foreshore and seabed rights of ngā hapū o Ngāti Porou:
(6)
On 24 November 2004, the Foreshore and Seabed Act 2004 was passed into law. This Act vested the full legal and beneficial ownership of the public foreshore and seabed in the Crown as its absolute property for the stated objective of preserving the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders. Despite Te Rūnanga o Ngāti Porou publicly expressing opposition to the Act, the negotiations between Te Rūnanga o Ngāti Porou and the Crown continued:
(7)
On 30 September 2005, a statement of position and intent was signed by Te Rūnanga o Ngāti Porou and the Crown. This document recorded the progress that had been made in the negotiations up to that date, the proposed content of a final deed of agreement between the parties, and the further steps required before a deed of agreement could be concluded:
(8)
In December 2005 and January 2006, Te Rūnanga o Ngāti Porou, through a series of 17 hui, conducted a further mandating process to ascertain which hapū continued to support the negotiations with the Crown and which hapū did not. A large majority of hapū expressed clear and continued support for the negotiations, however, a number of hapū did not support the negotiations, were unclear in their position, or deferred making a decision. As a consequence, the negotiations continued, but only in respect of those hapū that had expressed clear support for the negotiations:
(9)
On 5 February 2008, Te Rūnanga o Ngāti Porou and the Crown, on behalf of those hapū of Ngāti Porou who continued to support the negotiations, signed a heads of agreement. The heads of agreement further documented the progress that had been made between Te Rūnanga o Ngāti Porou and the Crown in reaching agreement on how to express, protect, and recognise the special relationship of ngā hapū o Ngāti Porou with the foreshore and seabed:
(10)
On 7 August 2008, Te Rūnanga o Ngāti Porou and the Crown initialled a draft deed of agreement which is given effect to in this Act:
The Parliament of New Zealand therefore enacts as follows:
1 Title
This Act is the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2008.
2 Commencement
This Act comes into force on a day to be appointed by the Governor-General by Order in Council.
Part 1 Preliminary provisions, interpretation, and application
3 Purpose
(1)
The purpose of this Act is to contribute to the legal expression, protection, and recognition of—
(a)
the continued exercise of mana by ngā hapū o Ngāti Porou in relation to ngā rohe moana o ngā hapū o Ngāti Porou; and
(b)
the association of Ngāti Porou with ngā rohe moana o ngā hapū o Ngāti Porou in a manner consistent with section 3 of the Foreshore and Seabed Act 2004.
(2)
To this end, this Act—
(a)
gives effect to the deed of agreement between ngā hapū o Ngāti Porou and the Crown; and
(b)
provides a comprehensive and final resolution of the territorial customary rights claims and the customary rights order claims of ngā hapū o Ngāti Porou.
(3)
Despite subsection (2), no inference may be drawn that ngā hapū o Ngāti Porou endorses the Foreshore and Seabed Act 2004 or any other statutory regime the operation of which underpins the implementation of this Act.
4 Act binds the Crown
This Act binds the Crown.
Interpretation
5 Interpretation of Act generally
The provisions of this Act are to be interpreted in a manner that best furthers the agreements expressed in the deed of agreement.
6 Interpretation
In this Act, unless the context requires another meaning,—
aquaculture activities has the same meaning as in section 2(1) of the Resource Management Act 1991
aquaculture management area has the same meaning as in section 2(1) of the Resource Management Act 1991
aquaculture management area request means a request by a person under the Resource Management Act 1991, in response to an invitation by Gisborne District Council under section 165Z of that Act, to change its regional coastal plan to establish an aquaculture management area
combined document means a document prepared by Gisborne District Council under section 78A of the Resource Management Act 1991, being a document that meets the requirements of 2 or more of the following documents under that Act:
(a)
a regional policy statement:
(b)
a regional plan:
(c)
a district plan
concession means a lease, permit, licence, or easement granted under any of the following enactments:
(a)
Part 3B of the Conservation Act 1987:
(b)
section 49 of the National Parks Act 1980:
(c)
section 59A of the Reserves Act 1977:
(d)
section 14AA of the Wildlife Act 1953
consent authority has the same meaning as in section 2(1) of the Resource Management Act 1991
conservation management plan has the same meaning as in section 2(1) of the Conservation Act 1987
conservation management strategy has the same meaning as in section 2(1) of the Conservation Act 1987
conservation protected area means a terrestrial, fresh water, or marine area that is protected, primarily for the purposes of conserving natural resources or the historical and cultural heritage of the area, by or under 1 or more of the following enactments:
(a)
the Wildlife Act 1953:
(b)
the Reserves Act 1977:
(c)
the National Parks Act 1980:
(d)
the Conservation Act 1987
Crown has the same meaning as in section 2(1) of the Public Finance Act 1989
customary fishing practices regulations means regulations made in accordance with section 54
customary rights order has the same meaning as in section 5 of the Foreshore and Seabed Act 2004
customary rights order claim has the meaning given to it in section 109(4)
deed date means the date the deed of agreement is signed
deed of agreement—
(a)
means the deed of agreement between—
(i)
ngā hapū o Ngāti Porou; and
(ii)
the Crown; and
(b)
includes—
(i)
the schedules of and appendices to the deed of agreement; and
(ii)
any valid amendments to the deed of agreement, its schedules, or its appendices
Director-General means the Director-General of Conservation
district plan—
(a)
has the same meaning as in section 2(1) of the Resource Management Act 1991; but
(b)
also includes a proposed district plan that is a proposed plan (within the meaning of that section)
environmental covenant or covenant—
(a)
means the environmental covenant developed and signed under section 17; and
(b)
includes any amendments to the environmental covenant made in accordance with section 27
fisheries management plan means a fisheries management plan made under the customary fishing practices regulations
fisheries plan means a plan approved under section 11A of the Fisheries Act 1996
fisheries resources has the same meaning as in section 2(1) of the Fisheries Act 1996
foreshore and seabed has the same meaning as in section 5 of the Foreshore and Seabed Act 2004
hapū means a hapū of ngā hapū o Ngāti Porou
key public document means each of the following Gisborne District Council documents:
(a)
a regional policy statement:
(b)
a regional plan:
(c)
a regional coastal plan:
(d)
a district plan:
(e)
a combined document
management arrangements means the entity or entities—
(a)
established by ngā hapū o Ngāti Porou to exercise their rights and responsibilities under this Act and the deed of agreement; and
(b)
specified in the most recent Order in Council made under section 110
marine mammal has the same meaning as in section 2(1) of the Marine Mammals Protection Act 1978
marine mammal matter means the bones, teeth, and baleen of a dead marine mammal
marine mammal matter application means an application under section 5 of the Marine Mammals Protection Act 1978 for a permit to take and possess marine mammal matter found within ngā rohe moana o ngā hapū o Ngāti Porou
marine reserve means a marine reserve constituted under section 4 of the Marine Reserves Act 1971
marine reserve application means an application under section 5(1)(a) of the Marine Reserves Act 1971 for an Order in Council declaring an area to be a marine reserve
national park management plan means a management plan for a national park (as those terms are defined in section 2 of the National Parks Act 1980)
national policy statement—
(a)
has the same meaning as in section 2(1) of the Resource Management Act 1991; but
(b)
also includes a New Zealand coastal policy statement
New Zealand coastal policy statement has the same meaning as in section 2(1) of the Resource Management Act 1991
New Zealand Geographic Board means the board established under section 3 of the New Zealand Geographic Board Act 1946
proposed plan has the same meaning as in section 2(1) of the Resource Management Act 1991
protected customary activity means an activity identified as a protected customary activity in a protected customary activity agreement in relation to which a Gazette notice has been published under section 32(2)
protected customary activity agreement means an agreement between ngā hapū o Ngāti Porou, the Attorney-General, and the Minister of Māori Affairs made under section 31(1)
public foreshore and seabed has the same meaning as in section 5 of the Foreshore and Seabed Act 2004
regional coastal plan—
(a)
has the same meaning as in section 2(1) of the Resource Management Act 1991; but
(b)
also includes a proposed regional coastal plan that is a proposed plan
regional plan—
(a)
has the same meaning as in section 2(1) of the Resource Management Act 1991; but
(b)
also includes a proposed regional plan that is a proposed plan
regional policy statement—
(a)
has the same meaning as in section 2(1) of the Resource Management Act 1991; but
(b)
also includes a proposed regional policy statement to which Schedule 1 of that Act applies
relevant hapū, in relation to any thing or matter under this Act, means the hapū that are affected by the thing or matter
resource consent has the same meaning as in section 2(1) of the Resource Management Act 1991
resource consent application means an application under section 88 of the Resource Management Act 1991 for a resource consent
TCR area means an area of the public foreshore and seabed within ngā rohe moana o ngā hapū o Ngāti Porou in relation to which the Governor-General has made an Order in Council under section 107
TCR hapū, in relation to a TCR area, means the hapū named in the Order in Council that relates to the TCR area
territorial customary rights has the same meaning as in section 32 of the Foreshore and Seabed Act 2004
territorial customary rights claim has the meaning given to it in section 109(3)
wāhi tapu means a place identified as wāhi tapu for the purposes of subpart 4 of Part 2 in a wāhi tapu agreement in relation to which a Gazette notice has been published under section 46(1)
wāhi tapu agreement means a written agreement between ngā hapū o Ngāti Porou, the Attorney-General, and the Minister of Māori Affairs under section 44(1)
wāhi tapu area means an area identified as a wāhi tapu area for the purposes of subpart 4 of Part 2 in a wāhi tapu agreement in relation to which a Gazette notice has been published under section 46(1)
warden means an individual appointed under section 53 as a warden
wildlife—
(a)
has the same meaning as in section 2(1) of the Wildlife Act 1953; but
(b)
does not include the wildlife specified in Schedules 1 and 5 of that Act
wildlife matter means the body or a part of the body of dead wildlife
wildlife matter application means an application under section 53 of the Wildlife Act 1953 for a permit to take and possess wildlife found within ngā rohe moana o ngā hapū o Ngāti Porou
working day has the same meaning as in section 2(1) of the Resource Management Act 1991.
7 Meaning of ngā hapū o Ngāti Porou
(1)
In this Act, ngā hapū o Ngāti Porou—
(a)
means the hapū of Ngāti Porou that have ratified the deed of agreement; and
(b)
includes any group that forms part of or evolves from a hapū referred to in paragraph (a); and
(c)
includes an authorised representative.
(2)
In subsection (1)(c), authorised representative means—
(a)
1 or more individuals authorised by a court to represent ngā hapū o Ngāti Porou; or
(b)
the management arrangements specified in the most recent Order in Council made under section 110.
8 Meaning of ngā rohe moana o ngā hapū o Ngāti Porou
In this Act, ngā rohe moana o ngā hapū o Ngāti Porou—
(a)
means the foreshore and seabed within the rohe of the hapū that have ratified the deed of agreement; and
(b)
includes any particular area or areas of the foreshore and seabed within those rohe; but
(c)
does not include any foreshore and seabed that is subject to a specified freehold interest (as defined in section 5 of the Foreshore and Seabed Act 2004).
9 Meaning of accommodated matter
(1)
In this Act, accommodated matter means the following:
(a)
the rights within ngā rohe moana o ngā hapū o Ngāti Porou conferred or described in sections 7, 8, 9, 15, 16, and 17 of the Foreshore and Seabed Act 2004; and
(b)
an activity within ngā rohe moana o ngā hapū o Ngāti Porou that can be lawfully undertaken without a resource consent; and
(c)
an activity within ngā rohe moana o ngā hapū o Ngāti Porou that, at the deed date, is lawfully undertaken in accordance with a current resource consent (until the consent period expires); and
(d)
the activities described in Part 1 of Schedule 1; and
(e)
an infrastructure work and its associated operations (as defined in subsection (2)); and
(f)
a seawall within ngā rohe moana o ngā hapū o Ngāti Porou existing at the deed date; and
(g)
a structure described in Part 2 of Schedule 1; and
(h)
an emergency activity (as defined in subsection (3)); and
(i)
scientific research within ngā rohe moana o ngā hapū o Ngāti Porou by—
(i)
the Department of Conservation or a Crown Research Institute (within the meaning of section 2 of the Crown Research Institutes Act 1992) or any government agency established in substitution for or set up to take over the scientific research functions of the department or the Crown Research Institute):
(ii)
a person who has the permission of ngā hapū o Ngāti Porou and the Crown; and
(j)
a marine reserve within ngā rohe moana o ngā hapū o Ngāti Porou existing at the deed date; and
(k)
a conservation protected area within ngā rohe moana o ngā hapū o Ngāti Porou existing at the deed date; and
(l)
a marine mammal sanctuary within ngā rohe moana o ngā hapū o Ngāti Porou existing at the deed date; and
(m)
a concession in a conservation protected area within ngā rohe moana o ngā hapū o Ngāti Porou existing at the deed date; and
(n)
a permit for marine mammal watching within ngā rohe moana o ngā hapū o Ngāti Porou granted under the Marine Mammals Protection Regulations 1992 and existing at the deed date; and
(o)
a permit to take or possess wildlife matter or marine mammal matter within ngā rohe moana o ngā hapū o Ngāti Porou granted under section 53 of the Wildlife Act 1953 or section 5 of the Marine Mammals Protection Act 1978 and existing at the deed date.
(2)
In subsection (1)(e), infrastructure work and its associated operations—
(a)
means an infrastructure work and its associated operations (within the meaning of 107B(2) of the Resource Management Act 1991) within ngā rohe moana o ngā hapū o Ngāti Porou that was lawfully established before the deed date; and
(b)
includes any maintenance work on the infrastructure work and its associated operations on or after the deed date, but only if any significant adverse effects of the maintenance work on the following will be, or are likely to be, temporary:
(i)
a protected customary activity affected by the work and operations; or
(ii)
the relationship of a TCR hapū with its TCR area; and
(c)
includes any change to the infrastructure work and its associated operations made on or after the deed date, but only if the change to the work and associated operations is such that any significant adverse effects of the work and associated operations in relation to the following will be, or are likely to be, the same or similar in character, intensity, and scale to the effects that existed before the change:
(i)
a protected customary activity affected by the work and operations; or
(ii)
the relationship of a TCR hapū with its TCR area.
(3)
In subsection (1)(h), emergency activity—
(a)
means an activity undertaken within ngā rohe moana o ngā hapū o Ngāti Porou to prevent—
(i)
an actual or imminent danger to human health or safety; or
(ii)
a danger to the environment or property so significant that immediate action is required to remove the danger; and
(b)
includes any activity within ngā rohe moana o ngā hapū o Ngāti Porou authorised by legislation for the purpose of preventing any of the matters referred to in paragraph (a), including an activity in relation to—
(i)
a state of emergency declared under the Civil Defence Emergency Management Act 2002; or
(ii)
a biosecurity emergency declared under section 144 of the Biosecurity Act 1993; or
(iii)
an emergency or special emergency declared under section 49B or 136 of the Hazardous Substances and New Organisms Act 1996; or
(iv)
a marine oil spill response under the Maritime Transport Act 1994; or
(v)
an emergency within the meaning of section 2 of the Fire Service Act 1975; or
(vi)
emergency works described in section 330 of the Resource Management Act 1991.
(4)
For the purposes of subsection (1)(i), neither ngā hapū o Ngāti Porou nor the Crown may unreasonably withhold their or its permission if—
(a)
the research concerned will have a public benefit; and
(b)
the results of the research, or a summary of the results, will be available publicly.
Application of Act in relation to TCR areas
10 Application of Act in relation to TCR areas
The provisions of this Act in relation to TCR areas apply only if an Order in Council under section 107 has been made for the TCR area.
Application of Act in relation to accommodated matters
11 Application of Act in relation to accommodated matters
(1)
Except as expressly provided in this Act, nothing in this Act affects the accommodated matters described in section 9(1)(a).
(2)
Except as expressly provided in this Act, or any other enactment, neither ngā hapū o Ngāti Porou (whether acting through the management arrangements or otherwise) nor the Crown may—
(a)
prevent, restrict, or otherwise affect any accommodated matter; or
(b)
impose, directly or indirectly, any charge in relation to any accommodated matter.
(3)
To avoid doubt, and without limiting subsection (2), nothing in relation to any of the following prevents, restricts, or otherwise affects an accommodated matter described in any of paragraphs (b) to (o) of section 9(1):
(a)
the carrying on, exercise, or following of a protected customary activity in accordance with subpart 3 of Part 2 within ngā rohe moana o ngā hapū o Ngāti Porou:
(b)
the exercise of any right or power by ngā hapū o Ngāti Porou under subpart 6 of Part 2:
(c)
the exercise of any right or power by a TCR hapū under subpart 9 of Part 2.
Part 2 Implementation of deed of agreement
Subpart 1—Special status of ngā hapū o Ngāti Porou to be provided for in certain statutory documents and processes
12 Map of ngā rohe moana o ngā hapū o Ngāti Porou to be attached to key public documents
(1)
As soon as practicable after the commencement of this Act, the person responsible for a key public document that wholly or partially covers ngā rohe moana o ngā hapū o Ngāti Porou must attach a map to the document that—
(a)
identifies the area to which the document relates; and
(b)
identifies the area within that area that is ngā rohe moana o ngā hapū o Ngāti Porou; and
(c)
notes that the area identified as ngā rohe moana o ngā hapū o Ngāti Porou—
(i)
is identified in accordance with this section; and
(ii)
is subject to this subpart.
(2)
The attachment of a map to a key public document under subsection (1)—
(a)
is for the purposes of public notice only; and
(b)
to avoid doubt,—
(i)
is not an amendment to the document for the purposes of the Resource Management Act 1991, the Conservation Act 1987, the Fisheries Act 1996, or any other enactment; and
(ii)
may be done by the person responsible without any authority other than this section.
(3)
In this section,—
key public document has the same meaning as in section 6, but also includes—
(a)
a conservation management strategy; and
(b)
a fisheries plan
person responsible, in relation to a key public document, means—
(a)
for a regional policy statement, Gisborne District Council:
(b)
for a regional plan, Gisborne District Council:
(c)
for a regional coastal plan, Gisborne District Council:
(d)
for a district plan, Gisborne District Council:
(e)
for a combined document, Gisborne District Council:
(f)
for a conservation management strategy, the Director-General:
(g)
for a fisheries plan, the Minister of Fisheries.
13 Right of relevant hapū to appear before Environment Court for certain resource consent applications
For the purposes of section 274(1) of the Resource Management Act 1991, the relevant hapū is a person who has an interest that is greater than the public generally in proceedings before the Environment Court for any application for a resource consent for an activity within, adjacent to, or impacting directly on ngā rohe moana o ngā hapū o Ngāti Porou.
14 Provision of resource consent applications to relevant hapū
(1)
Gisborne District Council must provide the relevant hapū with a copy of a resource consent application if the application is—
(a)
for an activity within, adjacent to, or impacting directly on ngā rohe moana o ngā hapū o Ngāti Porou; and
(b)
notified under section 93 of the Resource Management Act 1991.
(2)
However, if the relevant hapū is a TCR hapū and the Council has already provided the resource consent application to the hapū under section 93 of this Act, the Council is only required to give notice to ngā hapū o Ngāti Porou that it has received the resource consent application.
(3)
A copy of a resource consent application provided under subsection (1) or notice of a resource consent application provided under subsection (2) must be provided when notice of the application is served under section 93 of the Resource Management Act 1991.
(4)
Gisborne District Council must—
(a)
treat a relevant hapū as a person who may be adversely affected by an activity to which a resource consent application relates for the purposes of section 94(1) of the Resource Management Act 1991, if the application is—
(i)
for an activity within, adjacent to, or impacting directly on ngā rohe moana o ngā hapū o Ngāti Porou; and
(ii)
not notified under section 93 of the Resource Management Act 1991; and
(b)
provide the relevant hapū with a copy of the resource consent application.
15 Boards of inquiry into matters of national significance within ngā rohe moana o ngā hapū o Ngāti Porou
(1)
In this section, matter has the same meaning as in section 140(c) of the Resource Management Act 1991.
(2)
Subsection (3) applies if—
(a)
the Minister for the Environment and the Minister of Conservation make a direction under section 141B(1)(a) of the Resource Management Act 1991 to refer a matter that they consider is or is part of a proposal of national significance to a board of inquiry under sections 146 to 149 of that Act; and
(b)
the matter is within ngā rohe moana o ngā hapū o Ngāti Porou.
(3)
The Ministers must—
(a)
as soon as practicable after making the direction, give ngā hapū o Ngāti Porou a copy of the direction; and
(b)
consult ngā hapū o Ngāti Porou on the terms of reference for the board of inquiry; and
(c)
request ngā hapū o Ngāti Porou to nominate, within a specified time (being not less than 10 working days after ngā hapū o Ngāti Porou receives the request), an individual (who need not be a member of ngā hapū o Ngāti Porou) to be a member of the board of inquiry; and
(d)
if ngā hapū o Ngāti Porou nominate an individual within the time specified in the request, appoint the individual to be a member of the board of inquiry.
16 Decisions of New Zealand Historic Places Trust (Pouhere Taonga)
For the purposes of sections 14(6)(a) and 20(1) and (6)(d) of the Historic Places Act 1993, ngā hapū o Ngāti Porou must be treated as persons directly affected by a decision of, or the exercise of a power by, the New Zealand Historic Places Trust if the decision, or the exercise of the power, relates to ngā rohe moana o ngā hapū o Ngāti Porou.
Subpart 2—Ngā rohe moana o ngā hapū o Ngāti Porou environmental covenant
Environmental covenant
17 Development and signing of covenant
(1)
Ngā hapū o Ngāti Porou may develop and sign an environmental covenant setting out the issues, objectives, policies, and rules or other methods of ngā hapū o Ngāti Porou in relation to—
(a)
promoting the sustainable management of the natural and physical resources of ngā rohe moana o ngā hapū o Ngāti Porou; and
(b)
protecting the integrity of ngā hapū o Ngāti Porou, including their cultural and spiritual identity with ngā rohe moana o ngā hapū o Ngāti Porou.
(2)
The Attorney-General and the Minister of Māori Affairs must sign the environmental covenant.
18 Recognition of covenant in Gisborne District Council key public documents
Gisborne District Council must ensure that each of its key public documents that cover or directly affect ngā rohe moana o ngā hapū o Ngāti Porou—
(a)
takes into account the matters in the environmental covenant that relate to resource management issues; and
(b)
if the document covers or directly affects a TCR area, recognises and provides for the matters in the covenant that relate to resource management issues.
19 Ngā hapū o Ngāti Porou to provide covenant to Gisborne District Council
Ngā hapū o Ngāti Porou must provide to Gisborne District Council a copy of—
(a)
the environmental covenant, as soon as practicable after ngā hapū o Ngāti Porou, the Attorney-General, and the Minister of Māori Affairs have signed it under section 17; and
(b)
the amended covenant, each time it is amended under section 27(2), as soon as practicable after ngā hapū o Ngāti Porou have signed it.
Review of key public documents
20 Gisborne District Council must review key public documents
(1)
For the purposes of section 18, Gisborne District Council must review each of its key public documents that cover or directly affect ngā rohe moana o ngā hapū o Ngāti Porou—
(a)
after it receives a copy of the environmental covenant under section 19(a); and
(b)
each time it receives a copy of the amended covenant under section 19(b).
(2)
A review must commence on the earlier of the following:
(a)
the date that is the next date by which the Council must commence a review of the key public document under section 79 of the Resource Management Act 1991:
(b)
the commencement of any change or variation to the key public document under that Act.
(3)
Until Gisborne District Council completes (and, if applicable, implements under section 21(a)) its review of each key public document (including any reconsiderations or appeals in relation to the review), it must—
(a)
attach a copy of the environmental covenant to the key public document; and
(b)
when considering an application for a resource consent for an activity wholly or partly within, or directly affecting, ngā rohe moana o ngā hapū o Ngāti Porou, have regard to the matters in the covenant that relate to resource management issues; and
(c)
when considering an application for a resource consent for an activity within or directly affecting a TCR area, recognise and provide for the matters in the covenant that relate to resource management issues.
(4)
Until Gisborne District Council completes (and, if applicable, implements under section 21(a)) its review of each key public document (including any reconsiderations or appeals in relation to the review), the Minister of Conservation, when considering an application for a resource consent for a restricted coastal activity—
(a)
wholly or partly within, or directly affecting, ngā rohe moana o ngā hapū o Ngāti Porou, must have regard to the matters in the environmental covenant that relate to resource management issues; and
(b)
within or directly affecting a TCR area, must recognise and provide for the matters in the covenant that relate to resource management issues.
(5)
Despite subsection (3)(a), Gisborne District Council is not required to provide a copy of the environmental covenant to any person holding a copy of the key public document.
(6)
To avoid doubt, the attachment of a copy of the environmental covenant to a key public document under subsection (3)(a)—
(a)
is not an amendment to the document for the purposes of the Resource Management Act 1991, the Conservation Act 1987, the Fisheries Act 1996, or any other enactment; and
(b)
may be done by the person responsible without any authority other than this section.
21 Outcome of review
As soon as practicable after Gisborne District Council reviews a key public document under section 20, it must—
(a)
initiate any necessary changes or variations to the document in the manner provided in Schedule 1 of the Resource Management Act 1991; or
(b)
give public notice of its decision that no changes or variations are required to the document and the reasons for that decision.
22 Ngā hapū o Ngāti Porou may require Gisborne District Council to reconsider decision
(1)
Ngā hapū o Ngāti Porou may, by written notice, require Gisborne District Council to reconsider a decision referred to in a public notice under section 21(b), that no changes or variations are to be made to the key public document concerned.
(2)
For the purposes of subsection (1), ngā hapū o Ngāti Porou must give notice to the Council not later than 30 working days after the Council gives the public notice of the decision.
23 Reconsideration by Gisborne District Council
(1)
If Gisborne District Council receives a notice from ngā hapū o Ngāti Porou under section 22(1), it must reconsider the decision concerned as soon as practicable.
(2)
After reconsidering the decision, the Council may either—
(a)
confirm the decision, and give notice to ngā hapū o Ngāti Porou of the confirmation and the reasons for it; or
(b)
change its decision, and initiate the changes or variations to the document in accordance with section 21(a).
24 Appeal to Environment Court from reconsideration
(1)
Ngā hapū o Ngāti Porou may appeal to the Environment Court from a decision of Gisborne District Council under section 23(2)(a).
(2)
Ngā hapū o Ngāti Porou must give notice of their appeal to the Environment Court not later than—
(a)
30 working days after receiving the notice of the Council’s decision; or
(b)
any longer period that the Environment Court may permit.
25 Environment Court’s decision
On an appeal under section 24(1), the Environment Court may,—
(a)
order Gisborne District Council to initiate specified changes or variations to the key public document concerned in the manner provided for in Schedule 1 of the Resource Management Act 1991, if it considers that the document should be changed or varied to take into account, or recognise and provide for (as the case may be) the matters in the environmental covenant that relate to resource management issues; or
(b)
dismiss the appeal.
Review and amendment of environmental covenant
26 Periodic review
Ngā hapū o Ngāti Porou must review the environmental covenant to ensure it accurately provides for the matters in section 18—
(a)
not later than 10 years after the covenant is signed by the Attorney-General and the Minister of Māori Affairs; and
(b)
then at intervals of not more than 10 years after the last review.
27 Amendment after review
(1)
Ngā hapū o Ngāti Porou may amend the environmental covenant after carrying out a review.
(2)
The covenant is amended by ngā hapū o Ngāti Porou signing the amended version.
Effect of environmental covenant on other documents and decisions
28 Effect on other resource management documents
(1)
The Minister for the Environment must consider the environmental covenant when considering the scope of a proposed national environmental standard (as defined in section 2(1) of the Resource Management Act 1991) that impacts directly on ngā rohe moana o ngā hapū o Ngāti Porou.
(2)
A board of inquiry appointed under section 47 of the Resource Management Act 1991 to inquire into a proposed national policy statement that impacts directly on ngā rohe moana o ngā hapū o Ngāti Porou must treat the environmental covenant as a relevant matter for the purposes of section 51(1)(e) of that Act.
(3)
Any other process established under section 46A of the Resource Management Act 1991 and used for the purposes of reporting and making recommendations on a proposed national policy statement that impacts directly on ngā rohe moana o ngā hapū o Ngāti Porou must treat the environmental covenant as a relevant matter for the purposes of section 51(1)(e) of that Act.
29 Effect on decisions under Historic Places Act 1993
(1)
Subsections (2) and (3) apply if an application is made under section 11 or 12 of the Historic Places Act 1993 for an authority to destroy, damage, or modify an archaeological site within ngā rohe moana o ngā hapū o Ngāti Porou.
(2)
The New Zealand Historic Places Trust must have regard to the environmental covenant in exercising its powers under section 14(1) to (3) of that Act in relation to the application.
(3)
The Environment Court must have regard to the environmental covenant in determining an appeal under section 20 of that Act from a decision of the New Zealand Historic Places Trust in relation to the application.
30 Effect on Gisborne District Council decision-making processes
(1)
If, in complying with section 76 of the Local Government Act 2002, Gisborne District Council identifies an option under section 77 of that Act that involves a decision that relates to ngā rohe moana o ngā hapū o Ngāti Porou,—
(a)
the Council must, in addition to doing the things required by section 77(1) of that Act, consider the environmental covenant in the course of the decision-making process; but
(b)
paragraph (a) must be read subject to section 79 of that Act.
(2)
Without limiting subsection (1), for any decision that relates to ngā rohe moana o ngā hapū o Ngāti Porou, Gisborne District Council may, where applicable, treat the environmental covenant—
(a)
as representative of the views and preferences of ngā hapū o Ngāti Porou for the purposes of section 78(1) of the Local Government Act 2004; and
(b)
as a matter relevant to the Council’s judgments for the purposes of section 81(2)(b) of that Act; and
(c)
as representative of the views of, and in the manner and format that is appropriate for, ngā hapū o Ngāti Porou for the purposes of section 82(1)(d) of that Act.
Subpart 3—Protected customary activities within ngā rohe moana o ngā hapū o Ngāti Porou
Protected customary activity agreement
31 Protected customary activity agreement
(1)
Ngā hapū o Ngāti Porou, the Attorney-General, and the Minister of Māori Affairs may agree in writing that an activity within ngā rohe moana o ngā hapū o Ngāti Porou is to be a protected customary activity for the purposes of this Act.
(2)
A protected customary activity agreement must provide for the following matters in relation to the activity concerned:
(a)
a description of the activity; and
(b)
the scale, extent, and frequency of the activity; and
(c)
the hapū that may carry on, exercise, or follow the activity; and
(d)
the location or locations within ngā rohe moana o ngā hapū o Ngāti Porou where the activity may be carried on, exercised, or followed.
32 Notice
(1)
As soon as practicable after entering into a protected customary activity agreement, the Attorney-General and the Minister of Māori Affairs must give—
(a)
a copy of the agreement to the chief executive of the Ministry of Justice; and
(b)
notice of the agreement to ngā hapū o Ngāti Porou, Gisborne District Council, and the Minister of Conservation.
(2)
As soon as practicable after receiving notice under subsection (1)(b), the Minister of Conservation must,—
(a)
publish notice of the agreement in the Gazette; and
(b)
provide a copy of that notice to—
(i)
the relevant hapū; and
(ii)
the chief executive of the Ministry of Justice; and
(iii)
the Director-General; and
(iv)
Gisborne District Council.
(3)
A notice under subsection (1)(b) or (2) must—
(a)
state that ngā hapū o Ngāti Porou, the Attorney-General, and the Minister of Māori Affairs have entered into a protected customary activity agreement under section 31(1); and
(b)
state the activity identified in the agreement as a protected customary activity; and
(c)
specify the matters provided for under section 31(2) in relation to the protected customary activity.
Carrying out of protected customary activities
33 Determinations by hapū on who may carry on, exercise, or follow customary activity, and where
(1)
This section applies to a hapū that a protected customary activity agreement states is the hapū that may carry on, exercise, or follow the activity to which the agreement relates.
(2)
The hapū may determine—
(a)
the member of the hapū who is able to carry on, exercise, or follow the protected customary activity concerned; and
(b)
the locations within ngā rohe moana o ngā hapū o Ngāti Porou at which the activity may be carried out (being 1 or more of the locations specified in the protected customary activity agreement).
(3)
The hapū may limit a determination for any reason.
(4)
The hapū may suspend a determination for any reason.
(5)
The hapū may derive a commercial benefit from the carrying on, exercise, or following of the protected customary activity.
(6)
A hapū must exercise their powers under subsections (2) to (4) in accordance with the tikanga of the hapū.
34 Carrying out of protected customary activities
(1)
A protected customary activity may be carried on, exercised, or followed despite—
(a)
sections 9 to 17 of the Resource Management Act 1991; or
(b)
a rule in a plan or a proposed plan.
(2)
Subsection (1) applies to a protected customary activity only if the activity is carried on, exercised, or followed—
(a)
at the location within ngā rohe moana o ngā hapū o Ngāti Porou, and in accordance with any limitations, specified for the activity in the protected customary activity agreement; and
(b)
by a person who has been determined as able to carry out the activity under section 33(2)(a) and the determination has not been suspended under section 33(4); and
(c)
in accordance with—
(i)
any limits imposed under section 33(3) on the determination; and
(ii)
any controls on the activity agreed between the relevant hapū and the Minister of Conservation under section 38.
Determination on whether protected customary activity has significant adverse effects
35 Minister of Conservation may make determination on whether protected customary activity has significant adverse effects
(1)
The Minister of Conservation may at any time determine whether a protected customary activity has, or may have, a significant adverse effect on the environment.
(2)
For the purposes of subsection (1), the Minister—
(a)
must seek the views of the relevant hapū; and
(b)
may obtain any information he or she thinks relevant, but must seek the views of the relevant hapū on any information obtained; and
(c)
must have particular regard to—
(i)
the views of the relevant hapū about the effects of the protected customary activity on the environment within ngā rohe moana o ngā hapū o Ngāti Porou; and
(ii)
the issues, objectives, policies, and rules or other methods in the environmental covenant that relate to the sustainable management of natural and physical resources; and
(iii)
the rights of the relevant hapū and ngā hapū o Ngāti Porou under this Act and the potential impact of controls on those rights; and
(d)
must have regard to—
(i)
the effects on the environment of the activity; and
(ii)
the views expressed by any person the Minister has consulted; and
(iii)
any other relevant information the Minister has received; and
(e)
may have regard to—
(i)
any relevant national policy statement; and
(ii)
the New Zealand coastal policy statement; and
(iii)
Gisborne District Council’s regional policy statement; and
(iv)
Gisborne District Council’s district plan and regional plan; and
(v)
any other planning document lodged with Gisborne District Council (in its capacity as a regional council) and recognised by an iwi authority, to the extent that the content of the document has a bearing on resource management issues within ngā rohe moana o ngā hapū o Ngāti Porou; and
(f)
must make his or her determination in consultation with the Minister of Māori Affairs; and
(g)
must prepare a report under section 36.
36 Minister of Conservation must prepare significant adverse effects report
(1)
The Minister of Conservation must prepare a significant adverse effects report after making a determination under section 35.
(2)
A significant adverse effects report must be in writing and include—
(a)
the details of the protected customary activity concerned; and
(b)
an outline of the views of the relevant hapū and the information received by the Minister under section 35(2)(b); and
(c)
the Minister’s determination and the reasons for it.
37 Report to be publicly available
The Minister of Conservation must, as soon as practicable after completing a significant adverse effects report under section 36,—
(a)
provide a copy of the report to the relevant hapū; and
(b)
make the report publicly available for at least 1 year after its completion.
Controls on protected customary activities
38 Agreement on controls
(1)
If the Minister of Conservation has determined in accordance with section 35 that a protected customary activity has, or may have, a significant adverse effect on the environment, the Minister and the relevant hapū must as soon as practicable, by working together in good faith, agree in writing any controls for the activity (including terms, standards, and restrictions).
(2)
Controls for a protected customary activity must—
(a)
be the controls necessary to avoid, remedy, or mitigate the significant adverse effects of the activity on the environment; but
(b)
be reasonable and not unduly restrictive; and
(c)
not prevent the activity.
(3)
Neither the Minister of Conservation nor the relevant hapū, in reaching agreement on any controls for a protected customary activity, may unreasonably withhold agreement to any proposed controls.
39 Copy of agreement to be provided to interested persons
The Minister of Conservation must, as soon as practicable after an agreement on controls for a protected customary activity is reached under section 38, provide the following persons with a copy of the agreement:
(a)
ngā hapū o Ngāti Porou; and
(b)
the Attorney-General; and
(c)
the Minister of Māori Affairs; and
(d)
the chief executive of the Ministry of Justice; and
(e)
Gisborne District Council.
Restrictions on activities that limit permitted customary activities
40 Restrictions on grants of resource consents
Despite sections 77B(2)(aa) and 104A of the Resource Management Act 1991, a consent authority must not grant an application for a resource consent for an activity that Gisborne District Council has determined under section 41 will, or is likely to, have a significant adverse effect on a protected customary activity unless—
(a)
the activity is an accommodated matter; or
(b)
if the activity is an activity to which section 42 applies,—
(i)
written approval for the proposed activity is given by the relevant hapū in accordance with that section; and
(ii)
the consent granted does not exceed the scope of the approval; and
(iii)
the approval is included as part of the resource consent application.
41 Determination by Gisborne District Council of effect of proposed activity
(1)
Gisborne District Council must comply with subsection (2) to determine whether a proposed activity will, or is likely to, have a significant adverse effect on a protected customary activity.
(2)
Gisborne District Council must—
(a)
by written notice seek the views of the relevant hapū about the effects of the protected customary activity on the environment within ngā rohe moana o ngā hapū o Ngāti Porou; and
(b)
have particular regard to—
(i)
their views if those views are provided in response to, and within the time frame specified by, the notice (being a reasonable time frame); and
(ii)
the issues, objectives, policies, and rules or other methods in the environmental covenant that relate to the sustainable management of natural and physical resources; and
(c)
consider the following:
(i)
the effects of the proposed activity on the protected customary activity:
(ii)
the area that the proposed activity would have in common with the protected customary activity:
(iii)
the degree to which the proposed activity, and the protected customary activity, must be carried out to the exclusion of other activities:
(iv)
whether the protected customary activity may be exercised only in a particular area:
(v)
whether an alternative location or method for the proposed activity would avoid, remedy, or mitigate any significant adverse effects of it on the protected customary activity:
(vi)
whether any conditions could be included in a resource consent for the proposed activity that would avoid, remedy, or mitigate any significant adverse effects of the proposed activity on the protected customary activity.
42 Certain proposed activities must be approved by relevant hapū
(1)
This section applies in relation to a resource consent application for an activity that would have the significant adverse effect of restricting or preventing a protected customary activity.
(2)
The applicant must obtain the written approval of the relevant hapū for the proposed activity that includes an acknowledgement by the relevant hapū that the carrying out of the proposed activity will have the effect of restricting or preventing the protected customary activity concerned.
Effect of protected customary activity under other legislation
43 Effect of protected customary activity under other legislation
A protected customary activity is to be treated as—
(a)
a recognised customary activity within the meaning of section 2(1) of the Resource Management Act 1991 for the purposes of sections 6(g), 35(2)(e), 85A, and 85B of that Act; and
(b)
an activity undertaken under a customary rights order for the purposes of—
(i)
sections 89B and 186ZB of the Fisheries Act 1996; and
(ii)
section 35(5)(jb) of the Resource Management Act 1991.
Subpart 4—Protection for wāhi tapu and wāhi tapu areas within ngā rohe moana o ngā hapū o Ngāti Porou
44 Wāhi tapu agreement
(1)
Ngā hapū o Ngāti Porou, the Attorney-General, and the Minister of Māori Affairs may agree in writing that a place or area sacred to ngā hapū o Ngāti Porou in a traditional, spiritual, religious, ritualistic, or mythological sense is to be a wāhi tapu or a wāhi tapu area for the purposes of this subpart.
(2)
A wāhi tapu agreement must provide for the following matters in relation to each wāhi tapu or wāhi tapu area concerned:
(a)
the specific location of the wāhi tapu or, as the case may be, a description, at least in general terms, of the location of the wāhi tapu area:
(b)
the prohibition or restrictions in relation to access to the wāhi tapu or wāhi tapu area:
(c)
the reasons for the prohibition or restrictions:
(d)
any exemption from the prohibition or restrictions to enable a person or class of persons to carry out a protected customary activity:
(e)
any conditions in relation to an exemption.
45 Copies of agreement
The Attorney-General and the Minister of Māori Affairs must, as soon as practicable after entering into a wāhi tapu agreement, give a copy of the agreement to—
(a)
the Minister of Conservation; and
(b)
the chief executive of the Ministry of Justice.
46 Gazette notice of wāhi tapu agreements
(1)
The Minister of Conservation and the Minister of Māori Affairs must publish a notice in the Gazette in relation to a wāhi tapu agreement as soon as practicable after the Minister of Conservation receives a copy of the agreement under section 45(a).
(2)
The notice must—
(a)
state the specific location of the wāhi tapu or, as the case may be, a description, at least in general terms, of the location of the wāhi tapu area; and
(b)
impose the prohibitions or restrictions in relation to access to the wāhi tapu or the wāhi tapu area (as specified in the wahi tapū agreement); and
(c)
state the reasons for the prohibitions or restrictions (as stated in the wahi tapū agreement); and
(d)
state any exemptions from the prohibitions (as stated the wahi tapū agreement) and any conditions in relation to the exemptions (as stated in the wahi tapū agreement) and, for this purpose, state—
(i)
the protected customary activity to which the exemption applies; and
(ii)
the person or class of person in relation to whom the exemption applies.
47 Changes to prohibitions, restrictions, and exemptions
(1)
The Minister of Conservation and the Minister of Māori Affairs may, by notice in the Gazette,—
(a)
impose any prohibition or restriction in relation to access to a wāhi tapu or a wāhi tapu area that is not included in a Gazette notice published under section 46(1); or
(b)
revoke or vary any prohibition or restriction in relation to access to a wāhi tapu or wāhi tapu area that is included in a Gazette notice published under section 46(1); or
(c)
provide an exemption to a person, or class of persons, from any prohibition or restriction in relation to access to a wāhi tapu or wāhi tapu area that is included in a Gazette notice published under section 46(1) to enable the carrying out of a related protected customary activity; or
(d)
revoke or vary an exemption in relation to access to a wāhi tapu or wāhi tapu area or any of the conditions in relation to the exemption that is included in a Gazette notice published under section 46(1).
(2)
However, notice may be given under subsection (1) only if the relevant hapū have consented in writing to it.
(3)
A notice under subsection (1)(a) must state the reasons for each of the wāhi tapu or wāhi tapu area prohibitions or restrictions under it.
(4)
A notice given under subsection (1)(b) that varies any wāhi tapu or wāhi tapu area prohibition or restriction must state the reasons for the variation.
48 Notice to public and interested persons
The Minister of Conservation must, as soon as practicable after notice in the Gazette is given under section 46(1) or 47(1),—
(a)
give public notice of the notice in the Gazette; and
(b)
provide a copy of the notice to—
(i)
the relevant hapū; and
(ii)
Gisborne District Council; and
(iii)
the chief executive of the Ministry of Justice; and
(iv)
the Director-General.
49 Notice to be regulations for certain purposes
Every notice under section 46(1) or 47(1) is—
(a)
not a regulation for the purposes of the Acts and Regulations Publication Act 1989; but
(b)
a regulation for the purposes of the Regulations (Disallowance) Act 1989.
50 Effective date of prohibitions, restrictions, and exemptions
Wāhi tapu or wāhi tapu area prohibitions and restrictions, and wāhi tapu or wāhi tapu area exemptions—
(a)
are effective from the date of publication under section 46(1) or 47(1), as the case may be, of the notice in the Gazette in relation to them; and
(b)
cease to be effective if the Gazette notice in relation to them is revoked (whether under the Regulations (Disallowance) Act 1989 or otherwise).
51 Duties of Gisborne District Council
Gisborne District Council must take the reasonable actions (including, without limitation, erecting signs and fences) that ngā hapū o Ngāti Porou consider necessary to implement a wāhi tapu or wāhi tapu area restriction or prohibition.
52 Offences
(1)
A person who intentionally fails to comply with a wāhi tapu or wāhi tapu area prohibition or restriction commits an offence punishable on summary conviction by a fine not exceeding $5,000.
(2)
A person is not liable under subsection (1) for any action taken in accordance with a wāhi tapu or wāhi tapu area exemption if the conditions of the exemption are complied with.
53 Appointment of wardens
(1)
Individuals may, in accordance with regulations made under section 120, be appointed as wardens to promote compliance with 1 or more of the wāhi tapu or wāhi tapu area prohibitions or restrictions.
(2)
A warden has the following functions:
(a)
to assist in implementing 1 or more of the wāhi tapu or wāhi tapu area prohibitions or restrictions:
(b)
to advise the public of the prohibitions or restrictions in relation to a wāhi tapu or wāhi tapu area:
(c)
to warn a person to leave an area within ngā rohe moana o ngā hapū o Ngāti Porou if the warden has reason to believe the person’s presence contravenes a wāhi tapu or wāhi tapu area prohibition or restriction:
(d)
to record and, if he or she considers it appropriate, provide a report to the police of a failure by any person to comply with a wāhi tapu or wāhi tapu area prohibition or restriction if the warden has reason to believe the failure is intentional.
(3)
For the purpose of performing his or her functions, a warden may enter any part of ngā rohe moana o ngā hapū o Ngāti Porou that is subject to a wāhi tapu or wāhi tapu area prohibition or restriction.
Subpart 5—Customary fishing practices within ngā rohe moana o ngā hapū o Ngāti Porou
54 Customary fishing practices regulations
(1)
For the purposes of giving effect to the Crown’s obligations to ngā hapū o Ngāti Porou under section 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, the Minister of Fisheries must, not later than 60 working days after the commencement of this Act, recommend to the Governor-General that regulations be made for the purposes of recognising and providing for—
(a)
customary food gathering by ngā hapū o Ngāti Porou within ngā rohe moana o ngā hapū o Ngāti Porou; and
(b)
the special relationship between TCR hapū and places of customary food gathering in their TCR areas.
(2)
Without limiting subsection (1), the Minister of Fisheries may recommend that regulations be made to—
(a)
establish 1 or more fisheries management committees within ngā rohe moana o ngā hapū o Ngāti Porou and appoint members to the committees:
(b)
recognise members of fisheries management committees as kaitiaki:
(c)
provide for persons to perform, on behalf of the members of a fisheries management committee, the members’ functions under paragraph (i), and to revoke appointments of those persons:
(d)
require the Minister of Fisheries to publish in the Gazette the names of the persons referred to in paragraphs (b) and (c):
(e)
prescribe the functions and duties of fisheries management committees:
(f)
provide for fisheries management committees to make fisheries management plans for ngā rohe moana o ngā hapū o Ngāti Porou:
(g)
prescribe the matters to be included in fisheries management plans to which paragraph (f) applies:
(h)
require that persons acting under the regulations act consistently with the relevant fisheries management plan:
(i)
provide for fisheries management committee members to issue oral and written authorisations to take, hold, and distribute fisheries resources for customary non-commercial fishing purposes:
(j)
provide for fisheries management committees to propose bylaws for a TCR area:
(k)
provide for the Minister of Fisheries to consider and approve bylaws for a TCR area proposed by a fisheries management committee after—
(i)
consulting the local community; and
(ii)
being satisfied that the proposed bylaws will not prevent commercial, recreational, or customary fishers from being able to take their lawful entitlement in a quota management area or fisheries management area (as those terms are defined in the Fisheries Act 1996):
(l)
provide for record keeping, document management, and reporting requirements for written and oral authorisations and bylaws to which this subsection applies:
(m)
provide for offences, defences, and penalties:
(n)
provide for any other matters contemplated by this subpart or necessary for giving it full effect.
(3)
Before making a recommendation under subsection (1), the Minister of Fisheries must consult ngā hapū o Ngāti Porou.
(4)
Regulations made under this section must be treated for all purposes as being made under section 186(1) of the Fisheries Act 1986, and that Act applies accordingly.
(5)
Without limiting subsection (4), the maximum penalties for the purposes of subsection (2)(m) are those set out in section 252 of that Act.
55 Performance of functions and exercise of powers under Fisheries Act 1996
A person, when performing a function or exercising a power under the Fisheries Act 1996, must recognise and provide for a fisheries management plan, if the function to be performed or power to be exercised affects the area within ngā rohe moana o ngā hapū o Ngāti Porou to which the plan applies.
56 Relationship between customary fishing practices regulations and other regulations
(1)
Regulations made in accordance with section 54 prevail over the Fisheries (Amateur Fishing) Regulations 1986—
(a)
in relation to any area within ngā rohe moana o ngā hapū o Ngāti Porou to which the arrangements set out in the regulations have been implemented; but
(b)
only to the extent of any inconsistency.
(2)
Regulations made in accordance with section 54 prevail over the Fisheries (Kaimoana Customary Fishing) Regulations 1998—
(a)
in relation to any fisheries resources within ngā rohe moana o ngā hapū o Ngāti Porou; but
(b)
only to the extent—
(i)
that existing rights in the area have not been recognised and provided for under the Fisheries (Kaimoana Customary Fishing) Regulations 1998; or
(ii)
of any inconsistency.
Subpart 6—Conservation mechanisms within ngā rohe moana o ngā hapū o Ngāti Porou
Marine reserves, conservation protected areas, and concessions
57 Notice of marine reserve applications
(1)
The Director-General must give the relevant hapū notice of any marine reserve application for an Order in Council declaring—
(a)
all or part of ngā rohe moana o ngā hapū o Ngāti Porou to be a marine reserve; or
(b)
an area that is adjacent to, or impacts directly on, all or a part of ngā rohe moana o ngā hapū o Ngāti Porou to be a marine reserve.
(2)
Notice by the Director-General must—
(a)
be given as soon as reasonably practicable after receiving the application; and
(b)
include—
(i)
a copy of the notice published by the applicant under section 5(1)(b) of the Marine Reserves Act 1971 in relation to the application; and
(ii)
the plan prepared by the Director-General under section 5(2) of that Act in relation to the area sought to be declared a marine reserve.
58 Establishment or extension of marine reserves
(1)
Before the Minister of Conservation recommends to the Governor-General (under section 5(9) of the Marine Reserves Act 1971) the making of an Order in Council to establish or extend a marine reserve—
(a)
within ngā rohe moana o ngā hapū o Ngāti Porou, the Director-General must seek the views of the relevant hapū by—
(i)
giving them notice that the Minister of Conservation is considering making the recommendation; and
(ii)
having particular regard to their views, if those views are provided in response to, and within the time frame specified by, the notice (being a reasonable time frame); or
(b)
adjacent to, or impacting directly on, all or part of ngā rohe moana o ngā hapū o Ngāti Porou, the Director-General must give the relevant hapū notice that the Minister of Conservation is considering making the recommendation.
(2)
Notice under subsection (1)(a)(i) must include sufficient information to enable the relevant hapū to provide their views on the establishment or extension of the marine reserve concerned.
59 Proposals to establish or extend conservation protected areas
(1)
Before the Minister of Conservation approves under the Wildlife Act 1953, the Reserves Act 1977, the National Parks Act 1980, or the Conservation Act 1987 a proposal to establish or extend a conservation protected area that is—
(a)
within ngā rohe moana o ngā hapū o Ngāti Porou, the Minister must seek the views of the relevant hapū by—
(i)
giving them written notice that he or she is considering the proposal; and
(ii)
having particular regard to their views, if those views are provided in response to, and within the time frame specified by, the notice (being a reasonable time frame); or
(b)
adjacent to, or impacting directly on, all or part of ngā rohe moana o ngā hapū Ngāti Porou, the Minister must give the relevant hapū notice that he or she is considering that proposal.
(2)
Notice under subsection (1)(a) must include sufficient information to enable the relevant hapū to provide their views on the establishment or extension of the conservation protected area.
60 Applications for concessions
(1)
Before the Minister of Conservation or the Director-General may grant a concession to undertake activities within a conservation protected area that is within ngā rohe moana o ngā hapū o Ngāti Porou, the Minister of Conservation or the Director-General, as the case may be, must seek the views of the relevant hapū by—
(a)
giving them written notice that he or she is considering the concession application; and
(b)
having particular regard to their views, if those views are provided in response to, and within the time frame specified by, the notice (being a reasonable time frame).
(2)
Notice under subsection (1)(a) must include sufficient information to enable the relevant hapū to provide their views on the concession application.
Marine mammal sanctuaries
61 Proposals for marine mammal sanctuaries
(1)
Before the Minister of Conservation, under section 22 of the Marine Mammals Protection Act 1978, defines and declares a place to be a marine mammal sanctuary that is—
(a)
within ngā rohe moana o ngā hapū o Ngāti Porou, the Minister must seek the views of the relevant hapū by—
(i)
giving them written notice that he or she is considering defining and declaring the place to be a marine mammal sanctuary; and
(ii)
having particular regard to their views, if those views are provided in response to, and within the time frame specified by, the notice (being a reasonable time frame):
(b)
adjacent to, or impacting directly on, ngā rohe moana o ngā hapū o Ngāti Porou, the Minister must give the relevant hapū notice that he or she is considering defining and declaring the place to be a marine mammal sanctuary.
(2)
Notice under subsection (1)(a) must include sufficient information to enable the relevant hapū to provide their views on the definition and declaration of the place to be a marine mammal sanctuary.
Wildlife matter applications and marine mammal matter applications
62 Wildlife and marine mammal matter applications
(1)
The Director-General may consider a wildlife matter application only if—
(a)
the taking or possessing of matter of that kind has been determined by the Director-General under section 64 to be essential to achieve conservation management of the species or subspecies to which the wildlife belongs; or
(b)
the relevant hapū has consented in writing to the application.
(2)
The Minister of Conservation may consider a marine mammal matter application only if—
(a)
the taking or possessing of matter of that kind has been determined by the Director-General under section 64 to be essential to achieve conservation management of the species or subspecies to which the marine mammal belongs; or
(b)
the relevant hapū has consented in writing to the application.
63 Referral of applications to relevant hapū
(1)
This section applies if—
(a)
the Director-General receives a wildlife matter application or a marine mammal matter application; and
(b)
the taking or possessing of the matter has not been determined by the Director-General under section 64 to be essential to achieve conservation management of the species or subspecies to which the wildlife or marine mammal belongs; and
(c)
the relevant hapū has neither consented to nor declined the application.
(2)
As soon as practicable after receiving the application, the Director-General must refer it to the relevant hapū to determine whether they wish to consent to the application. Referral must be—
(a)
orally, if the application is urgent (but with written confirmation of it provided as soon as practicable); or
(b)
by notice, if the application is not urgent, together with a copy of—
(i)
the application; and
(ii)
the details provided by the applicant.
(3)
On receiving an application,, the relevant hapū must either consent to the application or decline to consent to it.
(4)
If the Director-General has referred the application—
(a)
orally, the relevant hapū must give their response under subsection (3) as soon as practicable and, in any event, not later than 24 hours after receiving the application:
(b)
by notice, the relevant hapū must give their response under subsection (3) not later than 40 working days after receiving the application.
(5)
If the relevant hapū does not respond in the time specified in subsection (4), the hapū must be treated as having given its consent under subsection (3).
(6)
To avoid doubt, the relevant hapū, in determining whether to consent to an application to which this section applies is not required to have regard to any of the provisions of the Wildlife Act 1953 or the Marine Mammals Protection Act 1978.
64 Determination by Director-General on whether taking of matter essential to conservation management
The Director-General must make a determination for the purposes of section 62(1)(a) or 63(1)(b) by—
(a)
seeking the views of ngā hapū o Ngāti Porou and taking them into account, if provided; and
(b)
taking into account the following in relation to the species or sub-species of the wildlife or marine mammal:
(i)
its taxonomic status:
(ii)
its threatened status or rarity:
(iii)
the current state of knowledge about it and whether any information gained as a result of granting the application would be an important addition to knowledge about it:
(iv)
whether it is being actively managed:
(v)
whether it is included in a species recovery plan:
(vi)
any other matter similar in nature to the matters set out in subparagraphs (i) to (v).
65 Notice of determination
The Director-General must provide ngā hapū o Ngāti Porou with a notice of—
(a)
a determination under section 64; and
(b)
the reasons for the determination.
66 Scope of authorisations or permits
If the Director-General has referred a wildlife matter application, or a marine mammal matter application, to ngā hapū o Ngāti Porou under section 63, the Director-General or the Minister of Conservation, as the case may be, must not grant the permit or authorisation for that application on terms different to those in the application unless ngā hapū o Ngāti Porou have consented in writing to those terms.
67 Costs
Ngā hapū o Ngāti Porou may not charge for the exercise of their rights under this subpart.
Other conservation matters
68 Decisions concerning stranded marine mammals
(1)
When making decisions about managing a marine mammal stranded within ngā rohe moana o ngā hapū o Ngāti Porou, a marine mammals officer must—
(a)
ensure that the marine mammal’s welfare is the primary consideration; and
(b)
consider public safety; and
(c)
have particular regard to any views of the relevant hapū (in accordance with the conservation relationship instrument referred to in section 84, if applicable).
(2)
In subsection (1), marine mammals officer—
(a)
means a person declared or appointed as a marine mammals officer under section 11 of the Marine Mammals Protection Act 1978; and
(b)
includes any other person authorised under section 18(1)(c) of the Marine Mammals Protection Act 1978 to manage stranded marine mammals.
69 Decisions on applications for marine mammal watching permits
(1)
Before the Director-General grants a permit to watch marine mammals within ngā rohe moana o ngā hapū o Ngāti Porou under the Marine Mammals Protection Regulations 1992, he or she must seek the views of the relevant hapū by—
(a)
giving the hapū written notice that he or she is considering granting a permit to watch marine mammals in the rohe; and
(b)
having particular regard to the views of the hapū, if those views are provided in response to, and within the time frame specified by, the notice (being a reasonable time frame).
(2)
Notice under subsection (1) must include a copy of the application and sufficient information to enable the relevant hapū to provide their views on the application.
70 Possession of wildlife matter or marine mammal matter
(1)
On and from the commencement of this Act, ngā hapū o Ngāti Porou may possess wildlife matter and marine mammal matter that has been lawfully obtained within ngā rohe moana o ngā hapū o Ngāti Porou without an authorisation or permit under—
(a)
the Wildlife Act 1953; or
(b)
the Marine Mammals Protection Act 1978.
(2)
Ngā hapū o Ngāti Porou must keep a written register containing a current and accurate record for each item of wildlife matter or marine mammal matter held under subsection (1) that includes—
(a)
the name of the person who holds the matter; and
(b)
a description of the wildlife or marine mammal from which the matter was obtained; and
(c)
where and when the wildlife or marine mammal from which the matter was obtained was found.
(3)
If requested by the Director-General, ngā hapū o Ngāti Porou must enable him or her to—
(a)
access the register held under subsection (2); and
(b)
access the wildlife matter or the marine mammal matter possessed by ngā hapū o Ngāti Porou under subsection (1); and
(c)
collect data of and samples from the wildlife matter or marine mammal matter if the Director-General considers that to do so is essential to achieve conservation management of the species to which the animal belongs.
71 Wildlife matter or marine mammal matter in Director-General’s possession
(1)
If the Director-General comes into possession of wildlife matter or marine mammal matter that has been obtained within ngā rohe moana o hapū o Ngāti Porou, the Director-General must give ngā hapū o Ngāti Porou—
(a)
notice of the possession of that matter, including details of it; and
(b)
a first right of refusal to possess it.
(2)
To avoid doubt, section 70(2) and (3) applies to any wildlife or marine mammal that ngā hapū o Ngāti Porou exercises their right to possess under subsection (1)(b) of this section.
Applications and proposals in relation to TCR area require consent of TCR hapū
72 Applications and proposals not to be considered in certain circumstances
(1)
The Minister of Conservation and the Director-General must not consider, process, or act on an application or proposal referred to in subsection (2) if that application or proposal has not been consented to in writing by the TCR hapū for the TCR area to which the proposal or application relates.
(2)
Subsection (1) applies to the following applications and proposals:
(a)
a marine reserve application for a proposed marine reserve within a TCR area:
(b)
a proposal to establish or extend a conservation protected area that is within a TCR area:
(c)
an application for a concession to carry on an activity in a conservation protected area that is within a TCR area.
(3)
Subsection (1) also applies to the following species-related applications and proposals:
(a)
an application under the Marine Mammals Protection Regulations 1992 for a permit to watch or swim with marine mammals within a TCR area:
(b)
a proposal to define or declare under section 22 of the Marine Mammals Protection Act 1978 a place that is within a TCR area as a marine mammal sanctuary.
73 Referral of applications to TCR hapū
(1)
If the Minister of Conservation or the Director-General receives an application or proposal under section 72(2) that has not been consented to in writing by the TCR hapū for the TCR area to which the application or proposal relates, he or she must refer it to the TCR hapū to determine whether they wish to consent to it.
(2)
Subsection (1) does not apply if the TCR hapū have already declined to consent to the application or proposal.
(3)
The Minister of Conservation or the Director-General, as the case may be, must refer the application or proposal to the TCR hapū as soon as practicable after receiving it and,—
(a)
in the case of a marine reserve application, also refer details of the signs, boundary markers, and management activities that may be placed or undertaken in the proposed marine reserve; or
(b)
in the case of a proposal for a marine mammal sanctuary, also refer details of the management activities that may be undertaken in the proposed marine mammal sanctuary; or
(c)
in the case of a proposal to establish or extend a conservation protected area, an application for a concession, or an application for a marine mammal watching permit, also refer all the relevant details that are available to him or her.
74 Consequences of referral
(1)
This section applies to a TCR hapū if the Minister of Conservation or the Director-General has referred an application or proposal to the TCR hapū under section 73(1).
(2)
The TCR hapū must, by written notice to the Minister of Conservation or the Director-General, as the case may be,—
(a)
consent to the application or proposal; or
(b)
decline to consent to the application or proposal.
(3)
In making their determination, the TCR hapū is not required to have regard to the provisions of any enactment.
(4)
The TCR hapū must give their response under subsection (2) not later than 40 working days of receiving the application or proposal.
(5)
If the TCR hapū does not respond by notice within the time frame specified in subsection (4), they are to be treated as having given their consent under subsection (2) to the application or proposal.
75 Scope of approvals
(1)
The Minister of Conservation and the Director-General must not grant an application, or approve a proposal, referred to in section 72(2) on different terms to the application or proposal that the TCR hapū has consented to.
(2)
However, subsection (1) does not apply in relation to a marine reserve application if—
(a)
the only change is to reduce the TCR area that is to be marine reserve; and
(b)
the Director-General has notified the relevant TCR hapū of the change.
76 Costs
A TCR hapū may not charge for the exercise of their rights under this subpart.
77 TCR hapū rights not limited
(1)
This Act does not limit the rights of a TCR hapū under any enactment including any right under an enactment to make submissions on or object to an application or proposal referred to in section 72(2).
(2)
This section is for the avoidance of doubt.
Subpart 7—Alteration of place names within ngā rohe moana o ngā hapū o Ngāti Porou
78 Alteration of place names
Each of the place names stated in the first column of the following table is altered to the place name stated in the second column of the table:
| East Island/Whangaokeno | Whangaokeno/East Island |
| Hicks Bay | Wharekahika/Hicks Bay |
79 Alterations treated as if New Zealand Geographic Board approval given
The alteration of place names under section 78 must be treated as having been made—
(a)
with the approval of the New Zealand Geographic Board; and
(b)
in accordance with any enactment that applies to the alteration of place names in New Zealand.
80 New Zealand Geographic Board to notify alterations
(1)
As soon as practicable after the commencement of this Act, the New Zealand Geographic Board must publish a notice in the Gazette—
(a)
specifying each place name altered under section 78, its former place name, and its location; and
(b)
stating that any alteration of an altered place name must be made by the New Zealand Geographic Board in accordance with section 82.
(2)
The alteration of a place name under section 78 takes effect on the publication under subsection (1) of the relevant Gazette notice.
(3)
As soon as practicable after the Gazette notice is published under subsection (1), the New Zealand Geographic Board must publish a copy of the notice in accordance with any requirements under any other enactment that applies to the alteration of place names in New Zealand.
(4)
A copy of the Gazette notice published under subsection (1) is conclusive evidence that the place names were altered on the date of the Gazette notice.
81 Notice to interested persons
The New Zealand Geographic Board must, as soon as practicable after the Gazette notice referred to in section 80(1) is published, provide a copy of the notice to—
(a)
ngā hapū o Ngāti Porou; and
(b)
the Attorney-General; and
(c)
the Minister of Māori Affairs; and
(d)
the chief executive of the Ministry of Justice; and
(e)
Gisborne District Council.
82 Alteration of altered place names
(1)
Despite the provisions of any other enactment, the New Zealand Geographic Board may alter a place name to which section 78 applies only with the consent of ngā hapū o Ngāti Porou.
(2)
If consent is given by ngā hapū o Ngāti Porou, the alteration must be made in accordance with the New Zealand Geographic Board Act 1946.
Subpart 8—Relationship instruments for ngā rohe moana o ngā hapū o Ngāti Porou
83 Interpretation
In this subpart,—
artefact relationship instrument means the instrument entered into by ngā hapū o Ngāti Porou and the Minister for Arts, Culture and Heritage under paragraph 18 of schedule 2 of the deed of agreement, including any valid amendments to the instrument
conservation relationship instrument means the instrument entered into by ngā hapū o Ngāti Porou and the Minister for Conservation under paragraph 18 of schedule 2 of the deed of agreement, including any valid amendments to the instrument
environment relationship instrument means the instrument entered into by ngā hapū o Ngāti Porou and the Minister for the Environment under paragraph 18 of schedule 2 of the deed of agreement, including any valid amendments to the instrument
fisheries relationship instrument means the instrument entered into by ngā hapū o Ngāti Porou and the Minister of Fisheries under paragraph 18 of schedule 2 of the deed of agreement, including any valid amendments to the instrument
minerals relationship instrument means the instrument entered into by ngā hapū o Ngāti Porou and the Minister of Energy under paragraph 18 of schedule 2 of the deed of agreement, including any valid amendments to the instrument
relationship instruments means the artefact relationship instrument, the conservation relationship instrument, the environment relationship instrument, the fisheries relationship instrument, and the minerals relationship instrument
whakamana accord means the instrument entered into by ngā hapū o Ngāti Porou and the Crown under paragraph 17 of schedule 2 of the deed of agreement, including any valid amendments to the instrument.
84 Noting of conservation relationship instrument
(1)
As soon as practicable after the commencement of this Act, the Director-General must note a summary of the conservation relationship instrument on any national park management plan, conservation management strategy, or conservation management plan that affects ngā rohe moana o ngā hapū o Ngāti Porou.
(2)
The noting of the conservation relationship instrument—
(a)
may be done without any authority other than this section; and
(b)
is for the purposes of public notice only; and
(c)
is not an amendment to the national park management plan, the conservation management strategy, or the conservation management plan for the purposes of section 17I of the Conservation Act 1987 or section 46 of the National Parks Act 1980.
85 Noting of fisheries relationship instrument
(1)
As soon as practicable after the commencement of this Act, the Minister of Fisheries must note a summary of the fisheries relationship instrument in a fisheries plan affecting ngā rohe moana o ngā hapū o Ngāti Porou.
(2)
The noting of the fisheries relationship instrument—
(a)
may be done without any authority other than this section; and
(b)
is for the purposes of public notice only; and
(c)
is not an amendment to the fisheries plan for the purposes of section 11A of the Fisheries Act 1996.
86 Noting of minerals relationship instrument
(1)
A summary of the terms of the minerals relationship instrument must be noted—
(a)
by the Minister of Energy in a minerals programme affecting ngā rohe o ngā hapū o Ngāti Porou when the minerals programme is issued or amended; and
(b)
by the chief executive of the Ministry of Economic Development in any register of protocols and relationship instruments maintained by him or her, as soon as practicable after the commencement of this Act.
(2)
The noting of the Crown minerals relationship instrument in a minerals programme—
(a)
may be done without any authority other than this section; and
(b)
is for the purposes of public notice only; and
(c)
is not an amendment to the minerals programme for the purposes of the Crown Minerals Act 1991.
(3)
In this section, minerals programme has the same meaning as in section 2(1) of the Crown Minerals Act 1991.
87 Limitations of relationship instruments
(1)
The fisheries relationship instrument does not have the effect of granting or creating an estate or interest in, or rights relating to, any asset or other property right held, managed, or administered under any enactment relating to the implementation of—
(a)
the deed of settlement between Māori and the Crown dated 23 September 1992:
(b)
the settlement of Māori claims to commercial aquaculture.
(2)
The conservation relationship instrument does not have the effect of granting or creating an estate or interest in, or rights relating to, land (including foreshore and seabed), flora, or fauna managed or administered under the Conservation Act 1987 or an enactment listed in Schedule 1 of that Act.
(3)
The environment relationship instrument does not have the effect of granting or creating an estate or interest in, or rights relating to, resources managed or administered under the Resource Management Act 1991.
(4)
The artefact relationship instrument does not have the effect of granting or creating an estate or interest in, or rights relating to, taonga tūturu (as defined in section 2 of the Protected Objects Act 1975).
(5)
The minerals relationship instrument does not have the effect of granting or creating an estate or interest in, or rights relating to, minerals.
(6)
In subsection (1), an enactment relating to the implementation of the matters referred to in paragraphs (a) and (b) of that subsection includes the following:
(a)
Treaty of Waitangi (Fisheries Claims) Settlement Act 1992:
(b)
Fisheries Act 1996:
(c)
Maori Fisheries Act 2004:
(d)
Maori Commercial Aquaculture Claims Settlement Act 2004:
(e)
regulations made under the enactments referred to in paragraphs (a) to (d).
(7)
This section is for the avoidance of doubt.
88 Relationship instruments not restrictive of certain matters
(1)
The whakamana accord and the relationship instruments do not—
(a)
restrict—
(i)
the exercise of any legal rights of ngā hapū o Ngāti Porou; or
(ii)
the legal responsibilities of ngā hapū o Ngāti Porou or the Crown; or
(b)
prevent the Crown from—
(i)
performing any of its functions and duties, or exercising any of its powers; or
(ii)
dealing with or consulting any person.
(2)
This section is for the avoidance of doubt.
Subpart 9—TCR hapū permission rights
89 Certain activities treated as having significant adverse effects
For the purposes of this subpart, a proposed activity in a TCR area must be treated as having significant adverse effects on the relationship of the TCR hapū concerned with the environment of the TCR area if the activity is or involves 1 or more of the following:
(a)
a new structure within the TCR area:
(b)
an aquaculture activity within the TCR area:
(c)
a reclamation within the TCR area:
(d)
a discharge of industrial waste or sewage within or into the TCR area:
(e)
extraction of shingle from the TCR area.
Resource consent applications and aquaculture management area requests in relation to TCR area
90 Applications and requests to be considered only in certain circumstances
(1)
If Gisborne District Council receives a resource consent application, or an aquaculture management area request, in relation to a proposed activity in a TCR area, it may consider, process, or act on the application or request under the Resource Management Act 1991 only if—
(a)
the TCR hapū for the TCR area have given permission in writing to the proposed activity; or
(b)
the proposed activity is an accommodated matter; or
(c)
the following applies in relation to the proposed activity:
(i)
it is not an activity referred to in section 89(a) to (e); and
(ii)
the Council has determined under section 96 that the activity will not have significant adverse effects on the relationship of the TCR hapū with the environment of the TCR area; and
(iii)
all rights of objection or approval under this subpart in relation to that determination have been exercised or expired.
(2)
Subsection (1) applies despite any other enactment, including, to avoid doubt, sections 77B(2)(aa) and 104A of the Resource Management Act 1991.
(3)
If the TCR hapū give permission under subsection (1)(a) to aquaculture activities in an aquaculture management area request, the permission extends to all aquaculture activities disclosed in writing to the TCR hapū before the permission was given.
91 Further restrictions on applications and requests
(1)
If section 90 prevents Gisborne District Council from considering, processing, or acting on a resource consent application or an aquaculture management area request under the Resource Management Act 1991, no other person may consider or act on the application or request under that Act.
(2)
Without limiting subsection (1), a Minister may not, under section 141B of the Resource Management Act 1991, take either of the following steps in relation to the resource consent application or the aquaculture management area request:
(a)
determine that it is or is part of a proposal of national significance:
(b)
call it in.
92 Gisborne District Council to make adverse effects determination for certain applications and requests
(1)
This section applies if Gisborne District Council receives a resource consent application, or an aquaculture area management request, in relation to a proposed activity in a TCR area, and—
(a)
the TCR hapū concerned has not given permission for the proposed activity; and
(b)
the proposed activity is not an accommodated matter; and
(c)
the proposed activity is not an activity that, in accordance with section 89, must be treated as having significant adverse effects on the relationship of the TCR hapū with the environment of the TCR area.
(2)
The Council must, as soon as practicable after receiving the application or the request, determine under sections 96 and 97 whether the activity has significant adverse effects on the relationship of the TCR hapū with the environment of the TCR area.
(3)
Before acting under subsection (2), the Council must give the TCR hapū written notice of its intention to make the determination.
93 Referral of certain applications and requests to TCR hapū
(1)
This section applies if Gisborne District Council receives a resource consent application, or an aquaculture management area request, in relation to a proposed activity in a TCR area, and the proposed activity—
(a)
is referred to in section 89; or
(b)
is an activity—
(i)
to which section 92 applies; and
(ii)
that the Council has determined, under section 96, will have a significant adverse effect on the relationship of the TCR hapū with the environment of the TCR area.
(2)
The Council must refer the application or request to the TCR hapū to determine whether they wish to give permission for the proposed activity for the purposes of section 90(1)(a).
(3)
The Council must refer the application or request to the TCR hapū,—
(a)
as soon as practicable after receiving the application or request, if it relates to an activity referred to in section 89(a) to (e); or
(b)
in any other case, as soon as practicable after making a determination under section 96 in any other case.
(4)
If the Council refers an aquaculture management area request to the TCR hapū, it must include details of the aquaculture activities that the person making the request proposes to undertake in the area.
94 TCR hapū to determine whether to give permission to activity referred under section 93
(1)
A TCR hapū may, by notice to Gisborne District Council not later than 40 working days after the referral of a resource consent application or an aquaculture management area request under section 93(3),—
(a)
give permission to the proposed activity concerned for the purposes of section 90(1)(a); or
(b)
decline to give permission to the proposed activity.
(2)
If the TCR hapū do not give notice to the Council within the specified time, the TCR hapū are to be treated for the purposes of section 90(1)(a) as having given their permission to the proposed activity.
95 Further information may be requested
(1)
This section applies if Gisborne District Council has referred, under section 93, a resource consent application, or an aquaculture management area request, in relation to a proposed activity in a TCR area to the TCR hapū for that area.
(2)
Before determining whether to give their permission, the TCR hapū may, by notice to the Council, seek further information of any type from the applicant to assist the TCR hapū in determining whether to give their permission.
(3)
On receipt of a request from the TCR hapū, the Council must promptly seek the further information from the applicant.
(4)
An applicant who receives a request from the Council seeking further information must, not later than 15 working days after receiving the request,—
(a)
provide the information to the Council; or
(b)
advise the Council by written notice that the applicant agrees to provide the information; or
(c)
advise the Council by written notice that the applicant refuses or is unable to provide the information.
(5)
If the Council receives a notice under subsection (4)(b), it must inform the applicant, by written notice, of the date by which the applicant is required to provide the information (being a date determined by the TCR hapū).
(6)
The Council must promptly provide the TCR hapū with information received from the applicant.
(7)
The time period between the following events will be excluded from the time limit calculation described in section 94(2):
(a)
the date on which the TCR hapū requests that the Council seek further information from the applicant; and
(b)
the date that, as the case may be,—
(i)
the TCR hapū receives the further information; or
(ii)
is 15 working days after the date of the request, where the applicant fails to respond to the Council; or
(iii)
the time limit expires under subsection (5), if the applicant fails to supply the further information by the date determined by the TCR hapū under that subsection; or
(iv)
the TCR hapū receives notification from the Council that the applicant refuses or is unable to provide the information.
Significant adverse effects determination
96 Significant adverse effects determination
Gisborne District Council, in carrying out a significant adverse effects determination for the purposes of section 92,—
(a)
must give the TCR hapū concerned written notice that it is carrying out the determination and seek the views of the TCR hapū; and
(b)
may seek any relevant information, but must seek the views of the TCR hapū in relation to any information so obtained; and
(c)
must have particular regard to—
(i)
the views of the TCR hapū about the effects of the proposed activity on their relationship with the environment of the TCR area; and
(ii)
the issues, objectives, policies, rules, or other methods of the environmental covenant that relate to the sustainable management of natural and physical resources; and
(iii)
the nature of the rights held by the TCR hapū under this Act and the potential impact of the proposed activity on those rights; and
(d)
may have regard to—
(i)
any relevant national policy statement; and
(ii)
the New Zealand Coastal Policy Statement; and
(iii)
the relevant regional policy statement or proposed regional policy statement; and
(iv)
any relevant plan or proposed plan; and
(v)
any relevant planning document lodged with Gisborne District Council (in its capacity as a regional council) and recognised by an iwi authority, to the extent that the content of the document has a bearing on the resource management issues of the region; and
(e)
prepare a report under section 97.
97 Significant adverse effects report
(1)
A report for the purposes of section 96(e) must include—
(a)
details of the proposed activity; and
(b)
an outline of the information received and the views of the TCR hapū; and
(c)
Gisborne District Council’s determination and its reasons for the determination.
(2)
The Council must complete the report not later than 40 working days after giving notice to the TCR hapū under section 96(a).
(3)
Once completed, the Council must, as soon as practicable, give a copy of the report to—
(a)
the TCR hapū; and
(b)
the person who has made the resource consent application or the aquaculture management area request.
98 Objections to determination
(1)
Either person to whom Gisborne District Council has sent a significant adverse effects report under section 97(3) may by written notice to the Council object to the determination in the report.
(2)
An objection must be provided—
(a)
not later than 30 working days after the report is sent by the Council; or
(b)
within any longer period that the Council may permit.
(3)
The notice of objection must state the reasons for the objection.
(4)
The person giving the notice of objection must provide a copy of the notice to the other person who has been given the Council’s significant adverse effects report under section 97(3).
(5)
If the Council receives a notice of objection under subsection (1), it must—
(a)
hear the objection as soon as practicable; and
(b)
give both persons referred to in subsection (4) 10 working days notice of the date, time, and place of the hearing; and
(c)
dismiss the objection or uphold it.
(6)
The Council must—
(a)
put its decision in writing, including its reasons; and
(b)
if it upholds the objection, change its determination, which becomes the determination for the purposes of section 96.
(7)
Within 15 working days of making its decision, the Council must give a copy of its decision on the objection to the following:
(a)
both persons referred to in subsection (4) and
(b)
any other person it considers appropriate.
99 Appeal to Environment Court
(1)
Either person to whom Gisborne District Council’s decision under section 98(7)(a) is given may appeal against that decision to the Environment Court.
(2)
A person must give notice of its appeal to the Environment Court—
(a)
not later than 30 working days after receiving notice of the decision from the Council; or
(b)
by any later date that the Environment Court may permit.
(3)
The notice of appeal must state the reasons for the appeal.
(4)
The person giving notice of an appeal must provide a copy of the notice to the Council and the other person who has been given the Council’s decision under section 98(7)(a).
(5)
The Environment Court may—
(a)
uphold the Council’s decision; or
(b)
require the Council to change its determination.
General provisions
100 Scope of approvals
A consent authority must not grant a resource consent application, or an aquaculture management area request, in relation to a proposed activity in a TCR area, with a different scope to that in the application or request unless the TCR hapū for the TCR area have consented in writing to the different scope.
101 TCR hapū decision-making under this subpart
To avoid doubt, in making decisions under this subpart, a TCR hapū is not limited by, or required to comply with, decision-making processes in the Resource Management Act 1991 that apply to a consent authority.
102 Costs
(1)
A TCR hapū may not charge for or impose conditions on the exercise of their rights under this subpart.
(2)
If Gisborne District Council refers a resource consent application, or an aquaculture management area request, to a TCR hapū under section 93(2), the Council may require from the applicant the Council’s reasonable costs in carrying out a significant adverse effects determination under this subpart in relation to the activity.
103 Suspension of time frames in Resource Management Act 1991
(1)
Subsection (2) applies to a resource consent application or an aquaculture management area request in relation to a proposed activity in a TCR area that is referred to a TCR hapū for any purpose under this subpart.
(2)
The statutory time frames in the Resource Management Act 1991 that apply to the resource consent application or the aquaculture management area request are suspended until the TCR hapū has exercised its rights under this subpart (including any rights of appeal or rehearing).
Part 3 Jurisdictional matters
Subpart 1—Establishment of TCR areas
104 TCR area established by either of 2 ways
(1)
A TCR area is established—
(a)
in the case of an area of the public foreshore and seabed within ngā rohe moana o ngā hapū o Ngāti Porou that comprises only an area described in the second column of the table in Schedule 2, by the making of an Order in Council under section 107 (after the requirements of section 105 are satisfied):
(b)
in the case of an area of the public foreshore and seabed within ngā rohe moana o ngā hapū o Ngāti Porou that comprises only an area not described in the second column of the table in Schedule 2, by the making of an Order in Council under section 107 (after the requirements of section 106 are satisfied):
(c)
in the case of an area of the public foreshore and seabed within ngā rohe moana o ngā hapū o Ngāti Porou that comprises both an area described in the second column of the table in Schedule 2 and an area that is not described in that schedule, by the making of an Order in Council under section 107 (after the requirements of section 106 are satisfied):
(2)
Subsection (1) is subject to subsection (3).
(3)
If an Order in Council is made under section 110 that relates to only a part or parts of an area described in the second column of the table in Schedule 2, for the purposes of this section the balance of the area must be treated as comprising an area not described in that schedule.
105 Establishment of TCR area described in Schedule 2
(1)
The Attorney-General and the Minister of Māori Affairs must make a recommendation to the Governor-General that he or she make an Order in Council under section 107 if—
(a)
the High Court confirms by order that the requirements of sections 32 to 34 of the Foreshore and Seabed Act 2004 are satisfied in respect of a hapū named in the first column of the table in Schedule 2 in relation to—
(i)
the corresponding area of the public foreshore and seabed within ngā rohe moana o ngā hapū o Ngāti Porou described in the second column of the table in that schedule; or
(ii)
part or parts of the area, if the court is satisfied in relation to only that part or those parts; and
(b)
an order to that effect is sealed with the seal of the court; and
(c)
any rights of appeal or to a rehearing in relation to the area—
(i)
have not been exercised within the time limits concerned; or
(ii)
have been exhausted.
(2)
To avoid doubt, if the order is sealed in relation to an area that does not match the description of the area in the application concerned, the recommendation by the Attorney-General and the Minister of Māori Affairs must relate to the area as described in the sealed order.
106 Establishment of TCR area not described in Schedule 2
(1)
Not later than 2 years after the first order is sealed by the High Court under section 105(1)(b)—
(a)
a hapū may apply to the High Court under section 33 of the Foreshore and Seabed Act 2004 for a finding from the court that, but for the vesting of the full legal and beneficial ownership of the public foreshore and seabed in the Crown by section 13(1) of that Act, the hapū would have held territorial customary rights to the area of public foreshore and seabed within ngā rohe moana o ngā hapū o Ngāti Porou specified in the application; or
(b)
a hapū may enter into an agreement under section 96(1) of the Foreshore and Seabed Act 2004 in relation to an area of the public foreshore and seabed within ngā rohe moana o ngā hapū o Ngāti Porou.
(2)
A hapū may not act under subsection (1) in relation to any area of the public foreshore and seabed within ngā rohe moana o ngā hapū o Ngāti Porou that is the subject of an Order in Council under section 107.
(3)
The Attorney-General and the Minister of Māori Affairs must make a recommendation to the Governor-General that he or she make an Order in Council under section 107 if,—
(a)
in the case of an application referred to in subsection (1)(a),—
(i)
the High Court makes a finding under section 33 of the Foreshore and Seabed Act 2004 that the hapū would, but for the vesting of the full legal and beneficial ownership of the public foreshore and seabed in the Crown by section 13(1) of that Act, have held territorial customary rights to—
(A)
the area; or
(B)
part or parts of that area, if the court is satisfied in relation to only that part or those parts; and
(ii)
an order to that effect is sealed with the seal of the court; and
(iii)
any rights of appeal or to a rehearing in relation to the area—
(A)
have not been exercised within the time limits concerned; or
(B)
have been exhausted; or
(b)
in the case of an agreement referred to in subsection (1)(b),—
(i)
the High Court confirms by order that the requirements of sections 32 to 34 of the Foreshore and Seabed Act 2004 are satisfied in relation to—
(A)
the area; or
(B)
part or parts of the area, if the court is satisfied in relation to only that part or those parts; and
(ii)
an order to that effect is sealed with the seal of the court; and
(iii)
any rights of appeal or rehearing in relation to the area—
(A)
have not been exercised within the time limits concerned; or
(B)
have been unsuccessfully exhausted.
(4)
To avoid doubt, if the High Court seals an order in relation to an area that does not match the description of the area in the application concerned, the recommendation by the Attorney-General and the Minister of Māori Affairs must relate to the area as described in the sealed order.
107 Order in Council recognising area and hapū as TCR area and TCR hapū
(1)
The Governor-General may, by Order in Council, made on the recommendation of the Attorney-General and the Minister of Māori Affairs,—
(a)
recognise an area of the public foreshore and seabed within ngā rohe moana o ngā hapū o Ngāti Porou as a TCR area for the purposes of this Act; and
(b)
in relation to that area, recognise a hapū as the TCR hapū for the area for the purposes of this Act.
(2)
The Attorney-General and the Minister of Māori Affairs must not recommend the making of an order unless they are satisfied that the requirements in section 105 or 106, as the case may be, have been met.
Subpart 2—Removal of jurisdiction of High Court, Māori Land Court, and other judicial bodies
108 Removal of jurisdiction of High Court and Māori Land Court
(1)
Ngā hapū o Ngāti Porou may not apply to—
(a)
the High Court under section 33 of the Foreshore and Seabed Act 2004 for a finding that ngā hapū o Ngāti Porou would, but for the vesting of the full legal and beneficial ownership of the public foreshore and seabed in the Crown by section 13(1) of that Act, have held territorial customary rights to any area of the public foreshore and seabed within ngā rohe moana o ngā hapū o Ngāti Porou at common law; or
(b)
the Māori Land Court under section 48 of the Foreshore and Seabed Act 2004 for a customary rights order in relation to any area of the public foreshore and seabed within ngā rohe moana o ngā hapū o Ngāti Porou; or
(c)
the High Court under section 68 of the Foreshore and Seabed Act 2004 for a customary rights order for any area of the public foreshore and seabed within ngā rohe moana o ngā hapū o Ngāti Porou.
(2)
The High Court may not make—
(a)
a finding under section 33 of the Foreshore and Seabed Act 2004 in relation to ngā hapū o Ngāti Porou in relation to any area of the public foreshore and seabed within ngā rohe moana o ngā hapū o Ngāti Porou; or
(b)
a customary rights order under section 74 of the Foreshore and Seabed Act 2004 in relation to ngā hapū o Ngāti Porou in relation to any area of the public foreshore and seabed within ngā rohe moana o ngā hapū o Ngāti Porou.
(3)
The Māori Land Court may not make a customary rights order under section 50 of the Foreshore and Seabed Act 2004 in relation to ngā hapū o Ngāti Porou in relation to any area of the public foreshore and seabed within ngā rohe moana o ngā hapū o Ngāti Porou.
(4)
This section—
(a)
applies despite any other enactment; but
(b)
is subject to sections 104 to 107.
(5)
In subsections (1) to (3), ngā hapū o Ngāti Porou includes individuals or groups of individuals of ngā hapū o Ngāti Porou.
109 Removal of jurisdiction generally
(1)
Despite any other enactment or rule of law,—
(a)
no court, tribunal, or other judicial body has jurisdiction (including, without limitation, the jurisdiction to inquire into, or further inquire into, or make a finding or recommendation) in relation to—
(i)
the deed of agreement; or
(ii)
this Act; or
(iii)
a territorial customary rights claim; or
(iv)
a customary rights order claim; and
(b)
the Crown is released and discharged from all obligations and liabilities in relation to any territorial customary rights claims or customary rights order claims.
(2)
However, nothing in subsection (1) excludes the jurisdiction of a court, tribunal, or other judicial body in relation to the interpretation, implementation, or enforcement of—
(a)
the deed of agreement; or
(b)
this Act.
(3)
In this section, territorial customary rights claim—
(a)
means every claim (whether or not the claim has arisen or been considered, researched, registered, notified, or made by or on the commencement of this Act) that, but for the vesting of full legal and beneficial ownership of the public foreshore and seabed in the Crown by section 13(1) of the Foreshore and Seabed Act 2004, ngā hapū o Ngāti Porou held territorial customary rights in relation to ngā rohe moana o ngā hapū o Ngāti Porou, made by any of the following persons:
(i)
ngā hapū o Ngāti Porou; or
(ii)
any individual (including a future or deceased individual) of ngā hapū o Ngāti Porou; or
(iii)
any group (whether past, current, or future) within ngā hapū o Ngāti Porou; or
(iv)
any individual (including a future or deceased individual) or group (whether past, current, or future) that is based on descent from an ancestor or ancestors of ngā hapū o Ngāti Porou who exercised customary interests within ngā rohe moana o ngā hapū o Ngāti Porou at any time during 1840; but
(b)
does not include a claim that any ngā hapū o Ngāti Porou individual or hapū may have that is, or is founded on, a right arising as a result of being an individual of a hapū, or being a hapū, that is not ngā hapū o Ngāti Porou.
(4)
In this section, customary rights order claim—
(a)
means every claim (whether or not the claim has arisen or been considered, researched, registered, notified, or made by or on the commencement of this Act) of ngā hapū o Ngāti Porou—
(i)
that an activity, use, or practice within ngā rohe moana o ngā hapū o Ngāti Porou—
(A)
is, and has been since 1840, integral to tikanga Māori; and
(B)
has been carried on, exercised, or followed in accordance with tikanga Māori in a substantially uninterrupted manner since 1840 in a specified area of ngā rohe moana o ngā hapū o Ngāti Porou; and
(C)
continues to be carried on, exercised, or followed in the same area of ngā rohe moana o ngā hapū o Ngāti Porou in accordance with tikanga Māori; and
(D)
is not prohibited by any enactment or rule of law; and
(ii)
the right to carry on, exercise, or follow the activity, use, or practice has not been extinguished as a matter of law; but
(b)
does not include a claim that any individual of ngā hapū o Ngāti Porou, or a hapū referred to in section 7(1)(a), may have that is, or is founded on, a right arising as a result of being an individual of a hapū, or being a hapū (as the case may be), that is not ngā hapū o Ngāti Porou.
(5)
In subsection (3)(a)(iv),—
(a)
customary interests means interests according to tikanga Māori, including—
(i)
rights to occupy land; and
(ii)
rights in relation to the use of land or other natural or physical resources; and
(b)
an individual is descended from another individual if he or she is descended by—
(i)
birth; or
(ii)
legal adoption; or
(iii)
Māori customary adoption in accordance with ngā hapū o Ngāti Porou tikanga.
Part 4 Miscellaneous provisions
Ngā hapū o Ngāti Porou management arrangements
110 Ngā hapū o Ngāti Porou management arrangements
(1)
The Governor-General may, by Order in Council made on the recommendation of the Attorney-General and the Minister of Māori Affairs,—
(a)
set out the management arrangements established by ngā hapū o Ngāti Porou to exercise their rights and responsibilities under this Act and the deed of agreement; and
(b)
amend the management arrangements referred to in paragraph (a) and, if necessary, set out transitional arrangements for that purpose.
(2)
The Attorney-General and the Minister of Māori Affairs must make a recommendation for the purposes of subsection (1)(a) if satisfied that the management arrangements—
(a)
have been ratified by ngā hapū o Ngāti Porou in accordance with a ratification process agreed in writing between ngā hapū o Ngāti Porou, the Attorney-General, and the Minister of Māori Affairs; and
(b)
are appropriate for the purposes of ngā hapū o Ngāti Porou exercising their rights and responsibilities under this Act and the deed of agreement; and
(c)
are of a nature that is capable of suing and being sued on behalf of ngā hapū o Ngāti Porou in relation to their rights and responsibilities under this Act and the deed of agreement; and
(d)
have a structure that—
(i)
provides for transparent decision-making; and
(ii)
represents, and is accountable to, all members of ngā hapū o Ngāti Porou; and
(iii)
where applicable, represents, and is accountable to the TCR hapū; and
(iv)
includes a dispute resolution process; and
(e)
provide for each hapū to be the effective decision-maker in relation to their respective interests within ngā rohe moana o ngā hapū o Ngāti Porou under this Act and the deed of agreement.
(3)
The Attorney-General and the Minister of Māori Affairs must make a recommendation for the purposes of subsection (2)(b) if satisfied—
(a)
of the matters set out in subsection (1)(b) to (e) in relation to the amended management arrangements; and
(b)
that the amended management arrangements will provide for any transitional management arrangements that may be necessary (for example, if a transfer of functions from one entity to another is contemplated or an entity is to be wound up or liquidated).
111 Performance of ngā hapū o Ngāti Porou rights and obligations
The rights and obligations of ngā hapū o Ngāti Porou under this Act may be exercised and must be performed by the management arrangements specified by the most recent Order in Council made under section 110.
112 Dealings with ngā hapū o Ngāti Porou to be conducted with management arrangements
(1)
Any person, including the Crown, that is required to deal with ngā hapū o Ngāti Porou under this Act or the deed of agreement satisfies that obligation if the person deals with the management arrangements for ngā hapū o Ngāti Porou specified in the most recent Order in Council made under section 110.
(2)
Without limiting subsection (1), a person, including the Crown, that is required to deal with a relevant hapū under this Act or the deed of agreement satisfies that obligation if the person deals with the management arrangements specified in the most recent Order in Council made under section 110.
(3)
In this section, deal means any requirement under this Act to consult, provide notice to, consider or take into account the views of, seek the consent or permission of, or otherwise deal with ngā hapū o Ngāti Porou.
Limitations on effect of this Act
113 Limitations on effect of this Act
(1)
This Act does not create or confer—
(a)
any legal or equitable estate or interest in the foreshore and seabed comprising ngā rohe moana o ngā hapū o Ngāti Porou:
(b)
any right, power, or privilege in connection with ngā rohe moana o ngā hapū o Ngāti Porou, other than the rights, powers, and privileges set out in this Act.
(2)
Except as expressly provided, this Act—
(a)
does not limit or affect section 10 or 11 of the Crown Minerals Act 1991 or any other enactment; and
(b)
does not affect the manner in which a person considers a matter, makes a decision or recommendation, or exercises a power or performs a function or duty under any enactment or bylaw; and
(c)
does not affect the rights of ngā hapū o Ngāti Porou or any person under any enactment.
(3)
Without limiting subsection (2), subpart 9 of Part 2 does not limit the rights of any person (including any member of a TCR hapū) to make submissions in relation to, or to object to, a resource consent application or an aquaculture management area request for a proposed activity in a TCR area.
Coastal occupation charges
114 Coastal occupation charges
Gisborne District Council must not impose a coastal occupation charge under section 64A of the Resource Management Act 1991—
(a)
on a TCR hapū (including any member of the hapū) for occupying their TCR area; or
(b)
on any person carrying on, exercising, or following a protected customary activity in accordance with section 34.
Rule against perpetuities
115 Rule against perpetuities does not apply
(1)
Neither the rule against perpetuities nor any provisions of the Perpetuities Act 1964—
(a)
prescribe or restrict the period during which—
(i)
the management arrangements may exist in law; or
(ii)
any trustees in relation to the management arrangements, in their capacity as trustees, may hold or deal with property (including income derived from property); or
(b)
apply to a document that gives effect to the deed of agreement if the application of that rule, or the provisions of that Act, would otherwise make the document, or a right conferred by it, invalid or ineffective.
(2)
However, if the management arrangements are, or become, a charitable trust, subsection (1)(a) does not apply.
Access to deed of agreement
116 Access to deed of agreement
(1)
The chief executive of the Ministry of Justice must—
(a)
make the deed available for inspection, and copies for purchase at a reasonable price, during working hours at the head office of the Ministry of Justice in Wellington; and
(b)
make the deed available on an Internet site maintained by or on behalf of the Ministry of Justice.
(2)
If the deed is amended or replaced, subsection (1) applies with all necessary modification with the amendments or replacement incorporated into the deed.
General provisions
117 Certain other agreements to be publicly available
The chief executive of the Ministry of Justice must make copies of the following publicly available:
(a)
any protected customary activity agreement in relation to which a Gazette notice has been published under section 32(2):
(b)
any agreement on controls made under section 38(1) for a protected customary activity:
(c)
any Gazette notice published under section 46(1) or 47(1) in relation to wāhi tapu or a wāhi tapu area.
118 Public foreshore and seabed register must include deed of agreement and certain other documents
The chief executive of the Ministry of Justice must ensure that the public foreshore and seabed register referred to in section 92 of the Foreshore and Seabed Act 2004 keeps permanent records of the following:
(a)
the deed of agreement:
(b)
the documents described in section 117(a) to (c).
119 Making documents publicly available
If a provision of this Act requires a chief executive of a ministry or department to make a document publicly available, the chief executive must make copies available—
(a)
for inspection free of charge, and for purchase at a reasonable price, at the head office of the ministry or department on any working day; and
(b)
free of charge on an Internet site maintained by or on behalf of the ministry or department.
Regulations
120 Regulations
(1)
The Governor-General may, by Order in Council, on the recommendation of the Minister of Conservation and the Minister of Māori Affairs, make regulations for 1 or more of the following purposes:
(a)
providing for the appointment of individuals as wardens under section 53 and for the termination of those appointments:
(b)
prescribing functions for wardens that are reasonably incidental to the functions specified in section 53:
(c)
prescribing any duties to be carried out, or powers to be exercised, by wardens for the purpose of performing their functions:
(d)
prescribing the means (including, without limitation, identity cards or badges, or both) by which wardens are to be identified.
(2)
The Minister of Conservation and the Minister of Māori Affairs must not recommend the making of regulations—
(a)
under subsection (1) without having particular regard to the views of ngā hapū o Ngāti Porou:
(b)
under subsection (1)(a) for the appointment of wardens unless ngā hapū o Ngāti Porou agree (and that agreement must not be unreasonably withheld).
Consequential amendment
121 Consequential amendment
The Act specified in Schedule 3 is amended in the manner indicated in that schedule.
Schedule 1 Accommodated matters within ngā rohe moana o ngā hapū o Ngāti Porou
s 9(1)(d), (g)
Part 1 Activities
| Resource consent number | Location | Applicant | Activity | Description | ||||
|---|---|---|---|---|---|---|---|---|
| CP199021 | Gisborne | Caltex New Zealand Limited | Discharge | Discharging stormwater from boat refuelling facility into inner harbour basin | ||||
| CP203021 | Gisborne | Eastland Network Limited | Cables | Upgrading electricity supply by installing new cables—subterranean crossing of Turanganui River and harbour basin | ||||
| CP203027 | Gisborne | Moana Pacific Fisheries Limited | Discharge | Lobster farming. Discharging seawater into harbour basin | ||||
| CP204005 | Gisborne | Eastland Marine Travel Lift Society Incorporated | Land disturbance | Installing a marine travel lift and digging out berthing area | ||||
| CP202008 | Kaiaua Bay | Tolaga Bay Beach Picnic Racing Club | Beach races | Beach races | ||||
| CP203023 | Pouawa | Transit New Zealand | Coastal protection works | Reinstating eroded edge of coastal road | ||||
| CP203025 | Te Araroa | Engineering and Works, Gisborne District | Erosion protection | Relocation of road 4 metres back from eroding cliff face | ||||
| RS204025 | Te Araroa | Private individual | Extraction | Extracting shingle from Awatere | ||||
| CP199010 | Tokomaru Bay | Engineering and Works, Gisborne District Council | Extension of structure | Extending the existing boat ramp | ||||
| CP20003 | Tolaga Bay | Engineering and Works, Gisborne District Council | Repairing wharf | Phase 1. Repairing wharf (first 30 piles) | ||||
| CP203007 and PD203010A | Tolaga Bay | Engineering and Works, Gisborne District Council | Repairing wharf | Phase 2 onwards. Repairing 2 piles, atrengthening of 4 adjoining piles along Tolaga Bay Wharf, and erecting temporary container for duration of repairs. |
Part 2 Existing structures
| Structure | Location | GPS location | ||
|---|---|---|---|---|
| Lighthouse | Tuaheni Point | 3842490, 17804156 | ||
| Boat ramp | Tatapouri | 3838681, 17808881 | ||
| Culvert | Turihaua Point | 3837840, 17809720 | ||
| Lighthouse | Gable End | 3831487, 17817706 | ||
| Jetty | Tolaga Bay | 3822699, 17819370 | ||
| Culvert | Kaiaua Bay | Not recorded | ||
| Boat ramp | Waipiro Bay | 3802263, 17820448 | ||
| Culvert | Te Araroa | 3737848, 17825018 | ||
| Wharf | Hicks Bay | Not recorded | ||
| Boat ramp | Hicks Bay | Not recorded | ||
| Launch markers | Hicks Bay | 37335226, 17818103 | ||
| Boat ramp | Lottin Point | 3733100, 17820448 |
Schedule 2 Territorial customary rights recognition
ss 104–107
| Hapū | Area | |
| Te Whānau a Tuwhakairiora and Te Whānau a Te Aotaki | Wharekahika (the takutai moana contiguous to Wharekahika A27 and Matakaoa C), as that area is identified (on an indicative basis) in map 1 in this schedule. | |
| Te Whānau a Hunaara | Horoera (the takutai moana contiguous to Marangairoa B3 to Marangairoa B13), as that area is identified (on an indicative basis) in map 2 in this schedule. | |
| Ngā Hapū o Te Riu o Waiapu (Te Whānau a Takimoana, Te Whānau a Ngai Tāne, Te Whānau a Hinepare, Te Whānau a Karuai, Te Whānau a Tapuhi, Te Whānau a Rerewa, Ngāti Hokopu, Ngāti Putaanga, Te Whānau a Hinerupe, Te Whānau a Rakaimataura, Te Whānau a Uruahi, Te Whānau a Tinatoka) | Waiapu (the takutai moana contiguous to Marangairoa C12 to Pt Hahau 2B (Hahau B3)), as that area is identified (on an indicative basis) in map 3 in this schedule. | |
| Ngā Hapū o Te Riu o Waiapu (Te Whānau a Pokai, Te Whānau a Hineauta, Ngāti Horowai, Te Whānau a Rakaihoea, Te Whānau a Mahaki, Te Whānau a Uruhonea, Te Whānau a Karuai, Te Whānau a Rakaimataura) | Waiapu (the takutai moana contiguous to Pohautea and Tikapa A1), as that area is identified (on an indicative basis) in map 4 in this schedule. | |
| Te Aitanga a Mate | Whareponga (the takutai moana contiguous to Kaimoho A2 to Akuaku East 1), as that area is identified (on an indicative basis) in map 5 in this Schedule. | |
| Te Whānau a Rangipureora and Ngāti Kuranui | Kaiaua (the takutai moana contiguous to Kaiaua 1), as that area is identified (on an indicative basis) in map 6 in this schedule. | |
| Te Whānau a Rangipureora and Ngāti Kuranui | Marau (the takutai moana contiguous to Pt Kopuni B1 and B2 to Kourateuwhi 2G4C), as that area is identified (on an indicative basis) in map 7 in this schedule. |
Map 1—Wharekahika territorial customary rights area
Map 2—Horoea territorial customary rights area
Map 3—Waiapu territorial customary rights area 1
Map 4—Waiapu territorial customary rights area 2
Map 5—Whareponga territorial customary rights area
Map 6—Kaiaua territorial customary rights area
Map 7—Marau territorial customary rights area
Schedule 3 Consequential amendment
s 121
Fisheries Act 1996 (1996 No 88)
Section 186:
(4)
Subsection (3) also applies to any bylaws made in accordance with section 54 of the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2008.
Versions
Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Bill
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