Ngāti Whātua Ōrākei Claims Settlement Act 2012
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Version as at 12 April 2022
Ngāti Whātua Ōrākei Claims Settlement Act 2012
Public Act |
2012 No 91 |
|
Date of assent |
19 November 2012 |
|
Commencement |
see section 2 |
Note
The Parliamentary Counsel Office has made editorial and format changes to this version using the powers under subpart 2 of Part 3 of the Legislation Act 2019.
Note 4 at the end of this version provides a list of the amendments included in it.
This Act is administered by the Ministry of Justice.
Contents
The Parliament of New Zealand enacts as follows:
1 Title
This Act is the Ngāti Whātua Ōrākei Claims Settlement Act 2012.
2 Commencement
(1)
This Act, except sections 54 and 55, comes into force on the first day of the third month after the month in which the Act receives the Royal assent.
(2)
Sections 54 and 55 come into force on a date appointed by the Governor-General by Order in Council.
(3)
A date may be appointed pursuant to subsection (2) only if the Governor-General is satisfied, at the time of the making of the Order, that the Crown has not received a notice from the trustee under clause 6.6 of the deed of settlement specifying that the trustee no longer wishes to purchase the Narrow Neck property.
(4)
An order under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114, Sch 1 cl 32(1)(a) | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
Part 1 Preliminary provisions and settlement of historical claims
3 Purpose
The purpose of this Act is to give effect to certain provisions of the deed of settlement, which is a deed that settles the historical claims of Ngāti Whātua Ōrākei.
4 Act binds the Crown
This Act binds the Crown.
5 Outline
(1)
This section is a guide to the overall scheme and effect of this Act. It does not affect the interpretation or application of the other provisions of this Act or the deed of settlement.
(2)
This Part—
(a)
sets out the purpose of this Act and specifies that it binds the Crown; and
(b)
records the acknowledgements and the apology given by the Crown in the deed of settlement; and
(c)
sets out the timing of actions or matters occurring or taking effect under this Act; and
(d)
defines terms used in this Act, including key terms such as Ngāti Whātua Ōrākei and historical claims; and
(e)
provides that the settlement of the historical claims is final; and
(f)
provides for the effect of the settlement on the jurisdiction of a court, tribunal, or other judicial body in respect of the historical claims; and
(g)
provides for a consequential amendment to the Treaty of Waitangi Act 1975 and removes the application of certain other statutory provisions; and
(h)
provides for the effect of the settlement on certain memorials recorded on land registers; and
(i)
provides to the trustee of the Ngāti Whātua Ōrākei Trust a mandate for negotiating outstanding claims; and
(j)
preserves the right of Ngāti Whātua Ōrākei to participate in certain proceedings before the Waitangi Tribunal; and
(k)
preserves the right of the Crown to provide redress to other persons; and
(l)
provides for the exclusion of the limit on the duration of a trust; and
(m)
provides for access to the deed of settlement.
(3)
Part 2 provides for the following cultural redress:
(a)
the issuing of protocols to the trustee of the Ngāti Whātua Ōrākei Trust by the Minister of Conservation, the Minister of Energy and Resources, and the Minister for Arts, Culture and Heritage; and
(b)
a statutory acknowledgement by the Crown of the statement made by Ngāti Whātua Ōrākei of their cultural, spiritual, historical, and traditional associations with certain land (the statutory area, as defined in section 28(2)); and
(c)
the vesting of the Pourewa Creek site in the trustee of the Ngāti Whātua Ōrākei Trust; and
(d)
the assignment of an official geographic name to Pourewa Creek.
(4)
Part 3 provides for commercial redress and authorises the Crown to transfer commercial properties to give effect to the deed of settlement, including the Narrow Neck property.
(5)
Part 4 relates to the Ōrākei Block (as described in Schedule 3). Parliament has previously partly addressed Ngāti Whātua Ōrākei grievances in relation to this block through the enactment of the Orakei Block (Vesting and Use) Act 1978 and the Orakei Act 1991. Those Acts—
(a)
provided for the recognition of rights secured to Ngāti Whātua Ōrākei in relation to the Ōrākei Block by the Treaty of Waitangi; and
(b)
gave effect to parts of an agreement reached between the Crown and Ngāti Whātua Ōrākei to implement, with modifications, certain of the recommendations made by the Waitangi Tribunal in November 1987 in the Report of the Waitangi Tribunal on the Orakei Claim (Wai 9); and
(c)
established the Ngati Whatua of Orakei Maori Trust Board and continued it under the name of the Ngati Whatua o Orakei Maori Trust Board (the Board); and
(d)
provided for the revesting of further portions of the Ōrākei Block in the Board, and for the extension of the Board’s functions and powers; and
(e)
provided for the setting aside of certain other land as reserves, and their administration jointly by the Auckland City Council and the Board; and
(f)
protected land vested in the Board by imposing certain restrictions on the disposal of the land; and
(g)
granted exemptions to the Board in relation to the payment of rates, reserves contributions, land tax, and other charges.
(6)
Part 4 builds on the settlements reached in those earlier Acts by carrying over those matters of continuing relevance (either with or without amendment) and specifying the powers to be exercised and the functions to be performed by Ngāti Whātua Ōrākei in relation to the Ōrākei Block.
(7)
Part 5 provides for transitional provisions, consequential amendments, and other similar matters, including the dissolution of certain Ngāti Whātua Ōrākei governance entities, the transfer of their assets and liabilities to the trustee of the Ngāti Whātua Ōrākei Trust, and the repeal of the Orakei Act 1991.
(8)
There are 5 schedules, as follows:
(a)
Schedule 1 describes the Pourewa Creek site:
(b)
Schedule 2 describes the Narrow Neck property:
(c)
Schedule 3 describes the hapū land within the Ōrākei Block:
(d)
Schedule 4 sets out matters relating to the procedures of the Ngāti Whātua Ōrākei Reserves Board and its members:
(e)
Schedule 5 sets out consequential amendments to enactments.
Section 5(2)(l): amended, on 30 January 2021, by section 161 of the Trusts Act 2019 (2019 No 38).
6 Text of acknowledgements
The text of the Crown’s acknowledgements set out in the deed of settlement is set out in the following subsections:
Ngā Whakaaetanga
(1)
E whakaae ana te Karauna, mai anō i te tau 1840 i whai a Ngāti Whātua Ōrākei ki te whakatū hononga me te Karauna me tā rātou huri ki te whakakaha i tēnei hononga mā te whakawhiti whenua mō ngā nohanga te take. I whai wāhi ēnei whenua ki te whanaketanga o Aotearoa, tae noa ki te whanaketanga o Tāmaki Makaurau. Ka whakaae anō hoki te Karauna, i rapu a Ngāti Whātua ki te whakakaha i te hononga nei mā te whakaputa i tōna ngākau pono ki te Karauna.
(2)
E whakaae ana te Karauna, kāore i puta ngā hua me te whakamarumarutanga i ngā wā katoa, e ai ki tērā i mana nei e Ngāti Whātua Ōrākei ka riro ki a rātou, nā runga i te hononga.
(3)
E whakaae ana te Karauna, mai i te tau 1840, nui tonu ngā whenua ō Ngāti Whātua Ōrākei i wehea, i whakawhiti whenua hoki mā te whakatahanga a te Karauna i tōna mana hoko whenua, tae noa ki ngā tangohanga “whenua tuwhene”
a te Karauna. He takahitanga o te Tiriti o Waitangi me ōna mātāpono te kore eke a te Karauna ki te tiaki i ngā whenua, me te hoatu he rawa matua, kia rawaka tonu, hei whakamahi, hei huanga hoki mā Ngāti Whātua Ōrākei mō ngā rā kei te tū.
(4)
E whakaae ana te Karauna, kua kāwetoweto te āheitanga o Ngāti Whātua Ōrākei ki te whakahaere i tōna mana motuhake, nā runga i ngā mahi whakawehe i ngā hapū ō Ngāti Whātua i ōna whenua.
(5)
E whakaae ana te Karauna, kāore i tika te whakahāngai a te Karauna i ētahi ture i te wā o te whakatahanga whakawāteatanga, hei tiaki i ngā pānga Māori.
(6)
E whakaae ana te Karauna, takarepa ana ngā mahi ki te tiaki tika i ngā pā, i ngā urupā hoki, tae noa ki a Maungakiekie, tētahi wāhi tāpua o nehe ā-wairua hoki, i te wā o te whakatahanga whakawāteatanga ā, he takahitanga o te Tiriti o Waitangi me ōna mātāpono tēnei hapa ki te tiaki kia tika.
(7)
E whakaae ana te Karauna, he takahitanga o te Tiriti o Waitangi me ōna mātāpono tōna kore nganā ki te tāpui (ki te hoatu ki tētahi poari, komiti rānei hei tautiaki) i te hautekau o ngā whenua i whakawhitia i te wā o te whakatahanga whakawāteatanga, hei whakamahi i ngā rā kei te tū, hei hua motuhake rānei mā ngā hunga taketake o taua whenua me ō rātou uri whakatupu ā Ngāti Whātua Ōrākei.
(8)
E whakaae ana te Karauna, he takahitanga o te Tiriti o Waitangi me ōna mātāpono tōna kaupapahere tango “Whenua Tuwhene”
mai i ngā hokona whakatahanga whakawateatanga i whakakorea, nā tōna hē ki te kore whakarite i tētahi rautaki ki te aromatawai kia rawaka te pupuri a Ngāti Whātua i ētahi whenua mā rātou ake. Ka whakaae anō hoki te Karauna, i kaha ake te hē nā runga i ngā tōrōkiri i roto i te āhua whakatinana a te Karauna i te kaupapahere, he takahitanga anō o te Tiriti o Waitangi me ōna mātāpono.
(9)
E whakaae ana te Karauna, i puta he momo whakamau ki a Ngāti Whātua Ōrākei, ā, whakamau tonu nei i ēnei rangi, i ngā mahi whakawhenua anō, me ētahi atu momo mahi whanaketanga ki ngā whanga o Waitematā me Manuka i pā ai te kino ki runga i ngā taunga ika me ētahi atu rawa o ngā whanga nei.
Acknowledgements
(10)
The Crown acknowledges that Ngāti Whātua Ōrākei endeavoured to establish a relationship with the Crown from 1840 and sought to strengthen this relationship, in part, by transferring lands for settlement purposes. These lands have contributed to the development of New Zealand and Auckland in particular. The Crown also acknowledges that Ngāti Whātua sought to strengthen the relationship by expressing loyalty to the Crown.
(11)
The Crown acknowledges that the benefits and protection that Ngāti Whātua Ōrākei expected to flow from its relationship with the Crown were not always realised.
(12)
The Crown acknowledges that a large amount of Ngāti Whātua Ōrākei land was alienated from 1840 by way of Crown purchase and pre-emption waiver transactions, including the acquisition of “surplus lands”
by the Crown. The Crown’s failure to protect lands and provide adequate endowments for the future use or benefit of Ngāti Whātua Ōrākei was a breach of the Treaty of Waitangi and its principles.
(13)
The Crown acknowledges that land alienation has diminished the ability of Ngāti Whātua Ōrākei to exercise mana whenua.
(14)
The Crown acknowledges that certain regulations to protect Māori interests in the pre-emption waiver period were not applied correctly by the Crown.
(15)
The Crown acknowledges that inadequate protections were applied to pā and urupā in the pre-emption waiver period, including Maungakiekie, a site of historical and spiritual significance to Ngāti Whātua Ōrākei, and that this failure of active protection was a breach of the Treaty of Waitangi and its principles.
(16)
The Crown acknowledges that its failure to set aside (entrusted to a board or committee) one-tenth of the lands transferred during the pre-emption waiver period for the future use or special benefit of the original owners of that land and their descendants (including Ngāti Whātua Ōrākei) was a breach of the Treaty of Waitangi and its principles.
(17)
The Crown acknowledges that its policy of taking “surplus lands”
from disallowed pre-emption waiver purchases breached the Treaty of Waitangi and its principles when it failed to ensure any assessment of whether Ngāti Whātua Ōrākei retained adequate lands for their needs. The Crown also acknowledges that this failure was compounded by flaws in the way the Crown implemented the policy in further breach of the Treaty of Waitangi and its principles.
(18)
The Crown acknowledges that reclamations and other forms of development of the Waitematā and Manukau Harbours, which had a damaging effect upon fisheries and other harbour resources, caused a sense of grievance for Ngāti Whātua Ōrākei that is still held today.
7 Text of apology
The text of the Crown’s apology set out in the deed of settlement is set out in the following subsections:
Whakapāha
(1)
Ka tuku whakapāha te Karauna ki a Ngāti Whātua Ōrākei, ki ō rātou tūpuna, me ō rātou uri whakatupu.
(2)
E aro ana te Karauna, mai i te tau 1840 i whai a Ngāti Whātua Ōrākei i tētahi hononga tata, pai hoki, ki te taha o te Karauna, ā, mā te mahi whakawhiti whenua me ētahi atu huarahi, i tuku whenua rātou hei nohanga kāinga Pākehā.
(3)
E tino āwhiti ana, e kaha pouri ana hoki te Karauna mō āna mahi tango whenua, i tata whenua kore ai a Ngāti Whātua Ōrākei i te tau 1855. Ka kino kē ngā putanga o te noho whenua kore kua puta ake mō te oranga pāpori, oranga ōhanga me te oranga wairua ō Ngāti Whātua Ōrākei, ā, e rangona tonutia ana te pānga o aua pehitanga i ēnei rangi.
(4)
E tino whakapāha ana te Karauna mō tana kore whakahōnore i ōna here ki a Ngāti Whātua Ōrākei i raro i te Tiriti o Waitangi. Mā tēnei whakataunga, e hiahia ana te Karauna ki te whakahāngai ēnei hara ōna, inā rā te taea i nāianei, me tana tīmata i te hohau te rongo. E rika ana te Karauna ki te whakapai i tōna hononga me Ngāti Whātua Ōrākei i runga i te ngākau whakawhirinaki, mahi ngātahi, me te aro tuturu mō te Tiriti o Waitangi me ōna mātāpono.
Apology
(5)
The Crown makes this apology to Ngāti Whātua Ōrākei and to their ancestors and descendants.
(6)
The Crown recognises that from 1840, Ngāti Whātua Ōrākei sought a close and positive relationship with the Crown and, through land transactions and other means, provided lands for European settlement.
(7)
The Crown profoundly regrets and is deeply sorry for its actions which left Ngāti Whātua Ōrākei virtually landless by 1855. This state of landlessness has had devastating consequences for the social, economic and spiritual well-being of Ngāti Whātua Ōrākei that continue to be felt today.
(8)
The Crown unreservedly apologises for not having honoured its obligations to Ngāti Whātua Ōrākei under the Treaty of Waitangi. By this settlement the Crown seeks to atone for its wrongs, so far as that is now possible, and begin the process of healing. The Crown looks forward to repairing its relationship with Ngāti Whātua Ōrākei based on mutual trust, co-operation and respect for the Treaty of Waitangi and its principles.
8 Timing of actions or matters
(1)
Actions or matters occurring or taking effect under this Act occur or take effect on the settlement date.
(2)
However, if a provision of this Act requires an action or matter to occur or take effect on a date other than the settlement date, the action or matter occurs or takes effect on and from that other date.
Interpretation
9 Interpretation of Act generally
It is the intention of Parliament that the provisions of this Act are interpreted in a manner that best furthers the agreements expressed in the deed of settlement.
10 Interpretation
In this Act, unless the context requires another meaning,—
affected person has the meaning given by section 2AA(2) of the Resource Management Act 1991
Auckland Council means the local authority established by section 6(1) of the Local Government (Auckland Council) Act 2009
business day means a day of the week other than—
(a)
a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign’s birthday, Te Rā Aro ki a Matariki/Matariki Observance Day, and Labour Day; and
(b)
a day in the period starting on 25 December in a year and ending on 15 January in the following year; and
(ba)
if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; and
(c)
the day observed as the anniversary of the province of Auckland or the province of Wellington
commercial property—
(a)
means a property listed in part 3 of the property schedule of the deed of settlement, including the Narrow Neck property; but
(b)
does not include a property referred to in paragraph (a) unless and until the property is transferable in accordance with the deed of settlement
conservation documents means—
(a)
any conservation management strategy (within the meaning of section 2(1) of the Conservation Act 1987) affecting the conservation protocol area:
(b)
any conservation management plan (within the meaning of section 2(1) of the Conservation Act 1987) affecting the conservation protocol area:
(c)
any freshwater fisheries management plan (within the meaning of section 2(1) of the Conservation Act 1987) affecting the conservation protocol area:
(d)
any management plan (within the meaning of section 2 of the National Parks Act 1980) affecting the conservation protocol area
conservation protocol—
(a)
means the protocol issued by the Minister of Conservation under section 22(1)(a); and
(b)
includes any amendments made to the protocol under section 22(1)(b)
conservation protocol area means the area shown on the map attached to the conservation protocol
Crown has the meaning given by section 2(1) of the Public Finance Act 1989
Crown minerals protocol—
(a)
means the protocol issued by the Minister of Energy and Resources under section 22(1)(a); and
(b)
includes any amendments made to the protocol under section 22(1)(b)
deed of settlement—
(a)
means the deed of settlement for Ngāti Whātua Ōrākei dated 5 November 2011, entered into by the Crown, the Statutory Trust Board (on behalf of Ngāti Whātua Ōrākei), and Ngati Whatua Orakei Trustee Limited; and
(b)
includes any schedules of or attachments to the deed; and
(c)
includes any amendments to the deed
effective date means the date that is 6 months after the settlement date
encumbrance means a lease, tenancy, licence, licence to occupy, easement, covenant, or other right or obligation affecting a property
Heritage New Zealand Pouhere Taonga means the Crown entity established by section 9 of the Heritage New Zealand Pouhere Taonga Act 2014
historical claims has the meaning given by section 12
land holding agency,—
(a)
for the commercial property at 99 Owens Road, means LINZ:
(b)
for any other commercial property, means the New Zealand Defence Force
LINZ means Land Information New Zealand
Narrow Neck property means the land described in Schedule 2
Ngāti Whātua Ōrākei has the meaning given in section 11
Ngāti Whātua Ōrākei Reserves Board or Reserves Board means the Ngati Whatua o Orakei Reserves Board established by section 20 of the Orakei Act 1991 and continued (but renamed) by section 66 of this Act
Ngāti Whātua Ōrākei Trust means the Ngāti Whātua Ōrākei Trust established by a deed of trust dated 3 November 2011
Pourewa Creek Recreation Reserve means the reserve—
(a)
created by section 42(3); and
(b)
named by section 42(4)
Pourewa Creek site means the land described in Schedule 1
primary area of interest of Ngāti Whātua Ōrākei means the primary area of interest shown in attachment 1 to the deed of settlement
protocol—
(a)
means a protocol issued under section 22(1)(a); and
(b)
includes any amendments made to the protocol under section 22(1)(b)
Registrar-General means the Registrar-General of Land appointed under section 4 of the Land Transfer Act 1952
representative entity means—
(a)
the trustee; and
(b)
a person (including the trustee) acting for, or on behalf of,—
(i)
the collective group referred to in section 11(1)(a); or
(ii)
1 or more members of Ngāti Whātua Ōrākei; or
(iii)
1 or more of the whānau, hapū, or groups referred to in section 11(1)(c)
resource consent has the meaning given by section 2(1) of the Resource Management Act 1991
responsible Minister means,—
(a)
for the conservation protocol, the Minister of Conservation:
(b)
for the Crown minerals protocol, the Minister of Energy and Resources:
(c)
for the taonga tūturu protocol, the Minister for Arts, Culture and Heritage:
(d)
any other Minister of the Crown authorised by the Prime Minister to exercise powers, and perform functions and duties, in relation to a protocol
settlement date means the date of commencement of this Act
statutory acknowledgement has the meaning given by section 28(1)
Statutory Trust Board has the meaning given by section 77(1)
taonga tūturu—
(a)
has the meaning given by section 2(1) of the Protected Objects Act 1975; and
(b)
includes ngā taonga tūturu (as defined by section 2(1) of that Act)
taonga tūturu protocol—
(a)
means the protocol issued by the Minister for Arts, Culture and Heritage under section 22(1)(a); and
(b)
includes any amendments made to the protocol under section 22(1)(b)
trustee means the trustee or trustees of the Ngāti Whātua Ōrākei Trust in its or their capacity as trustee or trustees of the Ngāti Whātua Ōrākei Trust.
Section 10 business day paragraph (a): replaced, on 12 April 2022, by wehenga 7 o Te Ture mō te Hararei Tūmatanui o te Kāhui o Matariki 2022/section 7 of the Te Kāhui o Matariki Public Holiday Act 2022 (2022 No 14).
Section 10 business day paragraph (ba): inserted, on 1 January 2014, by section 8 of the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19).
Section 10 Heritage New Zealand Pouhere Taonga: inserted, on 20 May 2014, by section 107 of the Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26).
Section 10 Historic Places Trust: repealed, on 20 May 2014, by section 107 of the Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26).
11 Meaning of Ngāti Whātua Ōrākei
(1)
In this Act, Ngāti Whātua Ōrākei—
(a)
means the collective group composed of individuals—
(i)
who are descended from the ancestor Tuperiri; and
(ii)
who are members of 1 or more hapū of Ngā Oho, Te Uringutu, and Te Tāōū that exercised customary rights predominantly in relation to the primary area of interest of Ngāti Whātua Ōrākei at any time after 6 February 1840; and
(b)
includes those individuals; and
(c)
includes every whānau, hapū, or group to the extent that it is composed of those individuals.
(2)
In this section, customary rights means rights according to tikanga Māori, including—
(a)
rights to occupy land; and
(b)
rights in relation to the use of land or other natural or physical resources.
12 Meaning of historical claims
(1)
In this Act, historical claims—
(a)
means the claims described in subsection (2); and
(b)
includes the claims described in subsection (3); but
(c)
does not include the claims described in subsection (4).
(2)
The historical claims are every claim that Ngāti Whātua Ōrākei or a representative entity had on or before the settlement date, or may have after the settlement date, and that—
(a)
is, or is founded on, a right arising—
(i)
from the Treaty of Waitangi or its principles; or
(ii)
under legislation; or
(iii)
at common law (including aboriginal title or customary law); or
(iv)
from a fiduciary duty; or
(v)
otherwise; and
(b)
arises from, or relates to, acts or omissions before 21 September 1992—
(i)
by, or on behalf of, the Crown; or
(ii)
by or under legislation.
(3)
The historical claims include—
(a)
every claim to the Waitangi Tribunal that relates exclusively to Ngāti Whātua Ōrākei or a representative entity, including each of the following claims, to the extent that subsection (2) applies to the claim:
(i)
Wai 186—Hurstmere Road, Takapuna claim:
(ii)
Wai 253—Pukapuka claim:
(iii)
Wai 261—4 Domett Avenue claim:
(iv)
Wai 276—Sylvia Park claim:
(v)
Wai 388—Tāmaki Makaurau claim:
(vi)
Wai 1063—Uruamo Orakei Block Alienation claim:
(vii)
Wai 1128—Te Tāōū Alienation claim; and
(b)
every other claim to the Waitangi Tribunal, including each of the following claims, to the extent that the claim relates to Ngāti Whātua Ōrākei or a representative entity and subsection (2) applies to the claim:
(i)
Wai 187—Awataha claim:
(ii)
Wai 279—Te Tāōū Reweti Charitable Trust claim:
(iii)
Wai 756—Southern Kaipara Lands and Resources claim:
(iv)
Wai 887—Ngawaka Tautari Lands (Auckland/Kaipara) claim:
(v)
Wai 1045—Ngati Mauri Land and Resources claim:
(vi)
Wai 1114—Te Runanga o Te Tāōū Lands and Resources claim; and
(c)
every claim, to the extent that the claim relates to Ngāti Whātua Ōrākei or a representative entity and subsection (2) applies to the claim, that—
(i)
relates to the Ōrākei Block; and
(ii)
arises from, or relates to, acts or omissions by, or on behalf of, the Crown on or after 9 December 1991 and before 21 September 1992; and
(d)
every claim to the following, to the extent that the claim relates to Ngāti Whātua Ōrākei or a representative entity and subsection (2) applies to the claim:
(i)
the maunga as defined in section 10 of the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014; and
(ii)
the motu as defined in section 11(1) of that Act; and
(iii)
the Rangitoto Island properties as defined in section 8(1) of that Act; and
(iv)
Māngere Mountain as defined in section 8(1) of that Act; and
(v)
the Maungakiekie / One Tree Hill northern land as defined in section 8(1) of that Act.
(4)
However, the historical claims do not include—
(a)
a claim that a member of Ngāti Whātua Ōrākei, or a whānau, hapū, or group referred to in section 11(1)(c), had or may have that is founded on—
(i)
being descended from an ancestor other than Tuperiri; or
(ii)
a customary right exercised by members of 1 or more hapū of Ngā Oho, Te Uringutu, and Te Tāōū predominantly outside the primary area of interest of Ngāti Whātua Ōrākei at any time after 6 February 1840; or
(b)
a claim in relation to the Ōrākei Block to the extent that the claim relates to Ngāti Whātua Ōrākei or a representative entity and was settled by section 19(2) of the Orakei Act 1991; or
(c)
a claim that a representative entity had or may have that is, or is founded on, a claim described in paragraph (a).
(5)
A claim may be a historical claim whether or not the claim has arisen or been considered, researched, registered, notified, or made on or before the settlement date.
Section 12(3)(c)(ii): amended, on 1 August 2014, by section 167(2) of the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (2014 No 52).
Section 12(3)(d): inserted, on 1 August 2014, by section 167(3) of the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (2014 No 52).
Settlement of historical claims
13 Settlement of section 12(2) and (3)(a) to (c) historical claims final
(1AA)
In this section, historical claims means the claims described in section 12(2) and (3)(a) to (c).
(1)
The historical claims are settled.
(2)
The settlement of the historical claims is final and, on and from the settlement date, the Crown is released and discharged from all obligations and liabilities in respect of those claims.
(3)
Subsections (1) and (2) do not limit the acknowledgements expressed in, or the provisions of, the deed of settlement.
(4)
Despite any other enactment or rule of law, on and from the settlement date, no court, tribunal, or other judicial body has jurisdiction (including the jurisdiction to inquire or further inquire or to make a finding or recommendation) in respect of—
(a)
the historical claims; or
(b)
the deed of settlement; or
(c)
this Act; or
(d)
the redress provided under the deed of settlement or this Act.
(5)
Subsection (4) does not exclude the jurisdiction of a court, tribunal, or other judicial body in respect of the interpretation or implementation of the deed of settlement or this Act.
Section 13 heading: amended, on 1 August 2014, by section 167(4) of the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (2014 No 52).
Section 13(1AA): inserted, on 1 August 2014, by section 167(5) of the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (2014 No 52).
13A Settlement of section 12(3)(d) historical claims
(1)
In this section,—
collective deed has the same meaning as in section 8(1) of the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014
effective date has the same meaning as in section 8(1) of the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014
historical claims means the claims described in section 12(3)(d) of this Act.
(2)
The historical claims are settled.
(3)
The settlement of the historical claims is final and, on and from the effective date, the Crown is released and discharged from all obligations and liabilities in respect of those claims.
(4)
Subsections (1) and (2) do not limit the acknowledgements expressed in, or the provisions of, the collective deed.
(5)
Despite any other enactment or rule of law, on and from the effective date, no court, tribunal, or other judicial body has jurisdiction (including the jurisdiction to inquire or further inquire or to make a finding or recommendation) in respect of—
(a)
the historical claims; or
(b)
the collective deed; or
(d)
the redress provided under the collective deed or that Act.
(6)
Subsection (4) does not exclude the jurisdiction of a court, tribunal, or other judicial body in respect of the interpretation or implementation of the collective deed of settlement or the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014.
Section 13A: inserted, on 1 August 2014, by section 167(6) of the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (2014 No 52).
14 Amendment to Treaty of Waitangi Act 1975
(1)
This section amends the Treaty of Waitangi Act 1975.
(2)
In Schedule 3, insert in its appropriate alphabetical order “Ngāti Whātua Ōrākei Claims Settlement Act 2012, section 13(4) and (5)”
.
Protections no longer apply
15 Certain enactments do not apply
(1)
The enactments listed in subsection (2) do not apply—
(a)
to the Pourewa Creek site; or
(b)
to a commercial property, but only on and from the date that the property is transferred in accordance with the deed of settlement; or
(c)
for the benefit of Ngāti Whātua Ōrākei or a representative entity.
(2)
The enactments are—
(a)
sections 8A to 8HJ of the Treaty of Waitangi Act 1975:
(b)
sections 27A to 27C of the State-Owned Enterprises Act 1986:
(c)
sections 568 to 570 of the Education and Training Act 2020:
(d)
Part 3 of the Crown Forest Assets Act 1989:
(e)
Part 3 of the New Zealand Railways Corporation Restructuring Act 1990.
Section 15(2)(c): replaced, on 1 August 2020, by section 668 of the Education and Training Act 2020 (2020 No 38).
16 Removal of memorials
(1)
The chief executive of LINZ must issue to the Registrar-General 1 or more certificates that specify the legal description of, and identify the computer register that contains, each allotment—
(a)
that is all or part of the Pourewa Creek site or all or part of a commercial property; and
(b)
that is contained in a computer register that has a memorial recorded under any enactment listed in section 15(2).
(2)
The chief executive of LINZ must issue a certificate under subsection (1)—
(a)
for the Pourewa Creek site as soon as is reasonably practicable after the settlement date; and
(b)
for a commercial property as soon as is reasonably practicable after the date on which the property is transferred in accordance with the deed of settlement.
(3)
A certificate must state that it is issued under this section.
(4)
The Registrar-General must, as soon as is reasonably practicable after receiving a certificate,—
(a)
register the certificate against each computer register identified in the certificate; and
(b)
remove each memorial recorded under an enactment listed in section 15(2) from each computer register identified in the certificate, but only in respect of each allotment described in the certificate.
Other matters
17 Trustee to negotiate outstanding claims of Ngāti Whātua Ōrākei
(1)
The trustee may negotiate with the Crown, or any other body or authority concerned, for the settlement of any outstanding claims relating to the customary rights and usages of Ngāti Whātua Ōrākei, including those matters that derive from the mana whenua of Ngāti Whātua Ōrākei in the Tāmaki isthmus.
(2)
The trustee has the sole authority to conduct negotiations on any claim referred to in subsection (1) in respect of Ngāti Whātua Ōrākei, or of any particular whānau, hapū, or group within Ngāti Whātua Ōrākei.
(3)
This section is subject to section 13.
18 Participation in certain Waitangi Tribunal matters unaffected
(1)
Nothing in this Act limits or affects the rights of Ngāti Whātua Ōrākei to participate in any proceedings before the Waitangi Tribunal in order to—
(a)
inform the Tribunal of the Ngāti Whātua Ōrākei position in respect of matters before the Tribunal; or
(b)
protect the rights and interests of Ngāti Whātua Ōrākei against other parties before the Tribunal.
(2)
This section is for the avoidance of doubt.
19 The Crown not prevented from providing other similar redress
(1)
The provision of the specified cultural redress does not prevent the Crown from doing anything that is consistent with that cultural redress, including—
(a)
providing, or agreeing to introduce legislation providing or enabling, the same or similar redress to any person other than Ngāti Whātua Ōrākei or the trustee; or
(b)
disposing of land.
(2)
However, subsection (1) is not an acknowledgement by the Crown or Ngāti Whātua Ōrākei that any other iwi or group has interests in relation to land or an area to which any of the specified cultural redress relates.
(3)
In this section, specified cultural redress means both of the following:
(a)
the protocols:
(b)
the statutory acknowledgement.
20 Limit on duration of trusts does not apply
(1)
No rule of law or provisions of an Act limiting the duration of a trust, including section 16 of the Trusts Act 2019,—
(a)
prescribe or restrict the period during which—
(i)
the Ngāti Whātua Ōrākei Trust may exist in law; or
(ii)
the trustee may hold or deal with property (including income derived from property); or
(b)
apply to a document entered into to give effect to the deed of settlement if the application of that rule or the provisions of that Act would otherwise make the document, or a right conferred by the document, invalid or ineffective.
(2)
However, if the Ngāti Whātua Ōrākei Trust is, or becomes, a charitable trust, the trust may continue indefinitely under section 16(6)(a) of the Trusts Act 2019.
Section 20 heading: replaced, on 30 January 2021, by section 161 of the Trusts Act 2019 (2019 No 38).
Section 20(1): amended, on 30 January 2021, by section 161 of the Trusts Act 2019 (2019 No 38).
Section 20(2): amended, on 30 January 2021, by section 161 of the Trusts Act 2019 (2019 No 38).
21 Access to deed of settlement
The chief executive of the Ministry of Justice must make copies of the deed of settlement available—
(a)
for inspection free of charge, and for purchase at a reasonable price, at the head office of the Ministry of Justice in Wellington during working hours on any business day; and
(b)
free of charge on an Internet site maintained by or on behalf of the Ministry of Justice.
Part 2 Cultural redress
Subpart 1—Protocols
22 Authority to issue, amend, or cancel protocols
(1)
Each responsible Minister may—
(a)
issue a protocol to the trustee in the form set out in part 2 of the documents schedule of the deed of settlement at the settlement date; and
(b)
amend or cancel that protocol.
(2)
A protocol may be amended or cancelled under subsection (1) at the initiative of either—
(a)
the trustee; or
(b)
the responsible Minister.
(3)
The responsible Minister may amend or cancel a protocol only after consulting, and having particular regard to the views of, the trustee.
23 Protocols subject to rights, functions, and obligations
Protocols do not restrict—
(a)
the ability of the Crown to exercise its powers and perform its functions and duties in accordance with the law and Government policy, which includes the ability to—
(i)
introduce legislation and change Government policy; and
(ii)
interact with or consult a person the Crown considers appropriate, including any iwi, hapū, marae, whānau, or other representative of tangata whenua; or
(b)
the responsibilities of a responsible Minister or a department of State; or
(c)
the legal rights of Ngāti Whātua Ōrākei or a representative entity.
24 Enforceability of protocols
(1)
The Crown must comply with a protocol while it is in force.
(2)
If the Crown fails, without good cause, to comply with a protocol, the trustee may, subject to the Crown Proceedings Act 1950, enforce the protocol.
(3)
Despite subsection (2), damages or any form of monetary compensation are not available as a remedy for a failure by the Crown to comply with a protocol.
(4)
To avoid doubt,—
(a)
subsections (1) and (2) do not apply to guidelines developed for the implementation of a protocol; and
(b)
subsection (3) does not affect the ability of a court to award costs incurred by the trustee in enforcing the protocol under subsection (2).
25 Limitation of rights
(1)
The conservation protocol does not have the effect of granting, creating, or providing evidence of—
(a)
rights relating to the common marine and coastal area (as defined by section 9(1) of the Marine and Coastal Area (Takutai Moana) Act 2011); or
(b)
an estate or interest in land held, managed, or administered under the Conservation Act 1987 or any enactment listed in Schedule 1 of that Act; or
(c)
an interest in, or rights relating to, flora or fauna managed or administered under the Conservation Act 1987 or any enactment listed in Schedule 1 of that Act.
(2)
The Crown minerals protocol does not have the effect of granting, creating, or providing evidence of an estate or interest in, or rights relating to, Crown-owned minerals.
(3)
The taonga tūturu protocol does not have the effect of granting, creating, or providing evidence of an estate or interest in, or rights relating to, taonga tūturu.
(4)
In subsection (2), Crown-owned mineral means a mineral (as defined by section 2(1) of the Crown Minerals Act 1991)—
(a)
that is the property of the Crown under section 10 or 11 of that Act; or
(b)
over which the Crown has jurisdiction under the Continental Shelf Act 1964.
26 Noting of conservation protocol
(1)
A summary of the terms of the conservation protocol must be noted in the conservation documents.
(2)
The noting of the conservation protocol is—
(a)
for the purpose of public notice only; and
(b)
not an amendment to the conservation documents for the purposes of section 17I of the Conservation Act 1987 or section 46 of the National Parks Act 1980.
27 Noting of Crown minerals protocol
(1)
A summary of the terms of the Crown minerals protocol must be noted in—
(a)
a register of protocols maintained by the chief executive of the Ministry of Business, Innovation, and Employment; and
(b)
the minerals programmes affecting the Crown minerals protocol area when those programmes are replaced.
(2)
The noting of the Crown minerals protocol is—
(a)
for the purpose of public notice only; and
(b)
not an amendment to the minerals programmes for the purposes of the Crown Minerals Act 1991.
(3)
In this section,—
Crown minerals protocol area means the area shown on the map attached to the Crown minerals protocol, together with the adjacent waters
minerals programme has the meaning given by section 2(1) of the Crown Minerals Act 1991.
Subpart 2—Statutory acknowledgement
28 Interpretation
(1)
In this Act, statutory acknowledgement means the acknowledgement made by the Crown in section 29 in respect of the statutory area, on the terms set out in this subpart.
(2)
In this subpart,—
statement of association means the statement—
(a)
made by Ngāti Whātua Ōrākei of their particular cultural, spiritual, historical, and traditional association with the statutory area; and
(b)
that is in the form set out in part 1 of the documents schedule of the deed of settlement at the settlement date
statutory area means—
(a)
the land owned by the Crown, and vested for control and management in the Auckland Council, at Kauri Point (as shown marked “A”
on deed of settlement plan OTS–121–02); and
(b)
the land owned by the Crown and held for defence purposes at Kauri Point (as shown marked “B”
on deed of settlement plan OTS–121–02).
29 Statutory acknowledgement by the Crown
The Crown acknowledges the statement of association.
30 Purposes of statutory acknowledgement
(1)
The only purposes of the statutory acknowledgement are—
(a)
to require the Auckland Council, the Environment Court, and Heritage New Zealand Pouhere Taonga to have regard to the statutory acknowledgement, as provided for in sections 31 to 33; and
(b)
to require the Auckland Council to provide summaries of resource consent applications, or copies of notices of resource consent applications, to the trustee, as provided for in section 35; and
(c)
to enable the trustee and members of Ngāti Whātua Ōrākei to cite the statutory acknowledgement as evidence of the association of Ngāti Whātua Ōrākei with the statutory area, as provided for in section 36.
(2)
This section does not limit sections 38 to 40.
Section 30(1)(a): amended, on 20 May 2014, by section 107 of the Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26).
31 Auckland Council to have regard to statutory acknowledgement
(1)
On and from the effective date, the Auckland Council must have regard to the statutory acknowledgement relating to the statutory area in deciding, under section 95E of the Resource Management Act 1991, whether the trustee is an affected person in relation to an activity within, adjacent to, or directly affecting the statutory area and for which an application for a resource consent has been made.
(2)
Subsection (1) does not limit the obligations of the Auckland Council under the Resource Management Act 1991.
32 Environment Court to have regard to statutory acknowledgement
(1)
On and from the effective date, the Environment Court must have regard to the statutory acknowledgement relating to the statutory area in deciding, under section 274 of the Resource Management Act 1991, whether the trustee is a person who has an interest in proceedings that is greater than the interest that the general public has in respect of an application for a resource consent for activities within, adjacent to, or directly affecting the statutory area.
(2)
Subsection (1) does not limit the obligations of the Environment Court under the Resource Management Act 1991.
33 Heritage New Zealand Pouhere Taonga and Environment Court to have regard to statutory acknowledgement
(1)
If, on or after the effective date, an application is made under section 44, 56, or 61 of the Heritage New Zealand Pouhere Taonga Act 2014 for an authority to undertake an activity that will or may modify or destroy an archaeological site within a statutory area,—
(a)
Heritage New Zealand Pouhere Taonga, in exercising its powers under section 48, 56, or 62 of that Act in relation to the application, must have regard to the statutory acknowledgement relating to the statutory area; and
(b)
the Environment Court, in determining under section 59(1) or 64(1) of that Act any appeal against a decision of Heritage New Zealand Pouhere Taonga in relation to the application, must have regard to the statutory acknowledgement relating to the statutory area, including in making a determination as to whether the trustees are persons directly affected by the decision.
(2)
In this section, archaeological site has the meaning given in section 6 of the Heritage New Zealand Pouhere Taonga Act 2014.
Section 33: replaced, on 20 May 2014, by section 107 of the Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26).
34 Recording statutory acknowledgement on statutory plans
(1)
On and from the effective date, the Auckland Council must attach information recording the statutory acknowledgement to all statutory plans that wholly or partly cover the statutory area.
(2)
The information attached to a statutory plan must include—
(a)
the provisions of sections 29 to 33 in full; and
(b)
the description of the statutory area; and
(c)
the statement of association for the statutory area.
(3)
The attachment of information to a statutory plan under this section is for the purpose of public information only and, unless adopted by the Auckland Council as part of the statutory plan, the information is not—
(a)
part of the statutory plan; or
(b)
subject to the provisions of Schedule 1 of the Resource Management Act 1991.
(4)
In this section, statutory plan—
(a)
means a district plan, regional plan, regional coastal plan, regional policy statement, or proposed policy statement (as defined by section 43AA of the Resource Management Act 1991); and
(b)
includes a proposed plan (as defined by section 43AAC of that Act).
35 Provision of resource consent applications to trustee
(1)
The Auckland Council must, for a period of 20 years starting on the effective date, provide the following to the trustee for each resource consent application for an activity within, adjacent to, or directly affecting the statutory area:
(a)
if the application is received by the Auckland Council, a summary of the application; or
(b)
if notice of the application is served on the Auckland Council under section 145(10) of the Resource Management Act 1991, a copy of the notice.
(2)
The information provided in a summary of an application must be the same as would be given to an affected person by limited notification under section 95B of the Resource Management Act 1991, or as may be agreed between the trustee and the Auckland Council.
(3)
A summary of an application must be provided under subsection (1)(a)—
(a)
as soon as is reasonably practicable after the Auckland Council receives the application; and
(b)
before the Auckland Council decides under section 95 of the Resource Management Act 1991 whether to notify the application.
(4)
A copy of a notice of an application must be provided under subsection (1)(b) no later than 10 business days after the day on which the Auckland Council receives the notice.
(5)
This section does not affect the Auckland Council’s obligation,—
(a)
under section 95 of the Resource Management Act 1991, to decide whether to notify an application, and to notify the application if it decides to do so; or
(b)
under section 95E of that Act, to decide whether the trustee is an affected person in relation to an activity.
36 Use of statutory acknowledgement
(1)
The trustee and any member of Ngāti Whātua Ōrākei may, as evidence of the association of Ngāti Whātua Ōrākei with the statutory area, cite the statutory acknowledgement that relates to the area in submissions to, and in proceedings before, the Auckland Council, the Environmental Protection Authority (EPA) or a board of inquiry under Part 6AA of the Resource Management Act 1991, the Environment Court, or Heritage New Zealand Pouhere Taonga concerning activities within, adjacent to, or directly affecting the area.
(2)
The content of the statement of association is not, by virtue of the statutory acknowledgement, binding as fact on—
(a)
the Auckland Council:
(b)
the EPA or a board of inquiry under Part 6AA of the Resource Management Act 1991:
(c)
the Environment Court:
(d)
Heritage New Zealand Pouhere Taonga:
(e)
parties to proceedings before the bodies specified in paragraphs (a) to (d):
(f)
any other person who is entitled to participate in the proceedings specified in paragraph (e).
(3)
However, the bodies and persons specified in subsection (2) may take the statutory acknowledgement into account.
(4)
To avoid doubt,—
(a)
neither the trustee nor members of Ngāti Whātua Ōrākei are precluded from stating that Ngāti Whātua Ōrākei has an association with the statutory area that is not described in the statutory acknowledgement; and
(b)
the content and existence of the statutory acknowledgement do not limit any statement made.
Section 36(1): amended, on 20 May 2014, by section 107 of the Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26).
Section 36(2)(d): replaced, on 20 May 2014, by section 107 of the Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26).
37 Trustee may waive rights
(1)
The trustee may waive the right to be provided with summaries, and copies of notices, of resource consent applications under section 35 in relation to the statutory area.
(2)
Rights must be waived by written notice to the Auckland Council stating—
(a)
the scope of the waiver; and
(b)
the period for which it applies.
(3)
An obligation under this subpart does not apply to the extent that the corresponding right has been waived under this section.
38 Exercise of powers and performance of duties and functions
(1)
The statutory acknowledgement does not affect, and may not be taken into account by, a person exercising a power or performing a function or duty under legislation or a bylaw.
(2)
No person, in considering a matter or making a decision or recommendation under legislation or a bylaw, may give greater or lesser weight to the association of Ngāti Whātua Ōrākei with the statutory area than that person would give if there were no statutory acknowledgement for the area.
(3)
Subsection (2) does not limit subsection (1).
(4)
This section is subject to the other provisions of this subpart.
39 Rights not affected
(1)
The statutory acknowledgement does not affect the lawful rights or interests of a person who is not a party to the deed of settlement.
(2)
This section is subject to the other provisions of this subpart.
40 Limitation of rights
(1)
The statutory acknowledgement does not have the effect of granting, creating, or providing evidence of an estate or interest in, or rights relating to, the statutory area.
(2)
This section is subject to the other provisions of this subpart.
41 Amendment to Resource Management Act 1991
(1)
This section amends the Resource Management Act 1991.
(2)
In Schedule 11, insert in its appropriate alphabetical order “Ngāti Whātua Ōrākei Claims Settlement Act 2012”
.
Subpart 3—Vesting of Pourewa Creek site
42 Vesting of Pourewa Creek site
(1)
The Pourewa Creek site ceases to be a conservation area under the Conservation Act 1987.
(2)
The fee simple estate in the Pourewa Creek site then vests in the trustee.
(3)
The Pourewa Creek site is then declared a reserve and classified as a recreation reserve subject to section 17 of the Reserves Act 1977.
(4)
The reserve created by subsection (3) is named Pourewa Creek Recreation Reserve.
43 Pourewa Creek site must remain vested in trustee
(1)
This section applies to the Pourewa Creek site once it is—
(a)
vested in the trustee under section 42(2); and
(b)
declared a reserve under section 42(3).
(2)
The trustee must not—
(a)
transfer the fee simple estate in the site to any person; or
(b)
mortgage, or give a security interest in, the site.
(3)
To avoid doubt, subsection (2) applies even if the reservation under section 42(3) is revoked in relation to all or part of the site.
(4)
Despite subsection (2), the trustee may transfer the fee simple estate in the site if—
(a)
the transferor of the site is or was the trustee; and
(b)
the transferee is the trustee of the same trust, after any new trustee has been appointed to the trust or any transferor has ceased to be a trustee of the trust; and
(c)
the transfer instrument is accompanied by a certificate given by the transferee, or the transferee’s solicitor, verifying that paragraphs (a) and (b) apply.
44 Pourewa Creek site vests subject to or together with encumbrances
(1)
The Pourewa Creek site vests in the trustee under section 42(2) subject to, or together with, the encumbrances listed in Schedule 1 (whether as an existing encumbrance that continues to affect the property after the vesting or as a new encumbrance that first affects the property immediately after the vesting).
(2)
For the purposes of subsection (1), the concessions apply—
(a)
as if the trustee were the grantor of the concession; and
(b)
with any other necessary modifications; and
(c)
despite the change in status of the land in the site on the settlement date.
(3)
In subsection (2), the concessions means the encumbrances listed in Schedule 1 relating to Bellsouth New Zealand Limited (now Vodafone New Zealand Limited) and the St Heliers Bay Pony Club Incorporated.
45 Application of certain enactments to vesting
(1)
The vesting of the Pourewa Creek site in the trustee under section 42(2) (the vesting) is a disposition for the purposes of Part 4A of the Conservation Act 1987, but sections 24, 24A, and 24AA of that Act do not apply to the disposition.
(2)
If the reservation under section 42(3) of the Pourewa Creek site is revoked in relation to all or part of the site,—
(a)
then the vesting is no longer exempt from section 24 of the Conservation Act 1987 (other than subsection (2A)) in relation to all or that part of the site (as the case may be); and
(b)
section 25 of the Reserves Act 1977 (except subsection (2)) does not apply to the revocation.
(3)
Section 11 and Part 10 of the Resource Management Act 1991 do not apply to—
(a)
the vesting; or
(b)
any matter incidental to, or required for the purpose of, the vesting.
(4)
The vesting does not—
(a)
limit section 10 or 11 of the Crown Minerals Act 1991; or
(b)
affect other rights to subsurface minerals.
46 Administration of Pourewa Creek Recreation Reserve and application of Reserves Act 1977
(1)
The Ngāti Whātua Ōrākei Reserves Board is the administering body of the Pourewa Creek Recreation Reserve for the purposes of the Reserves Act 1977 as if—
(a)
the reserve were vested in the Reserves Board under section 26 of that Act; and
(b)
the Reserves Board were a local authority within the meaning of section 2(1) of that Act.
(2)
However, the Reserves Board must still submit its management plan for the reserve to the Minister for approval under section 41(13) of the Reserves Act 1977.
(3)
Section 10 of the Reserves Act 1977 applies to the Reserves Board as if it were a local authority in respect of the reserve.
(4)
The Reserves Board is not required to comply with section 88 of the Reserves Act 1977 in respect of the reserve. Instead, it must comply with clause 5(1) of Schedule 4.
(5)
To avoid doubt, sections 48A, 114, and 115 of the Reserves Act 1977 apply to the reserve.
(6)
The Minister must not change the name of the reserve under section 16(10) of the Reserves Act 1977 without the written consent of the Reserves Board, and section 16(10A) of that Act does not apply to any proposed change.
(7)
All costs and expenses incurred in and incidental to the administration of the reserve must be paid by the Auckland Council to the extent that any income arising from the reserve is insufficient to defray those costs and expenses.
(8)
Subsection (7) is subject to clause 6 of Schedule 4.
47 Pourewa Creek Recreation Reserve not Crown protected area
The Pourewa Creek Recreation Reserve is not a Crown protected area, despite section 4 of the New Zealand Geographic Board (Ngā Pou Taunaha o Aotearoa) Act 2008.
48 Registration of ownership and recording of application of enactments
(1)
The Registrar-General must, in accordance with a written application by the Director-General of Conservation,—
(a)
create 1 computer freehold register for the fee simple estate in the Pourewa Creek site in the name of the trustee; and
(b)
record on the register any encumbrances that are registered, notified, or notifiable and that are described in the application; and
(c)
record on the register that—
(i)
section 43 applies to the site; and
(ii)
the site is subject to Part 4A of the Conservation Act 1987, but that section 24 of that Act does not apply; and
(iii)
the site is subject to section 45(2).
(2)
Subsection (1) is subject to the completion of any survey necessary to create a computer freehold register.
(3)
A computer freehold register must be created under this section as soon as is reasonably practicable after the settlement date, but no later than—
(a)
24 months after the settlement date; or
(b)
any later date that may be agreed in writing by the Crown and the trustee.
(4)
A notification made under subsection (1)(c)(ii) that the land is subject to Part 4A of the Conservation Act 1987 is to be treated as having been made in compliance with section 24D(1) of that Act.
(5)
If the reservation of the Pourewa Creek site under section 42(3) is revoked in relation to—
(a)
all of the site, then the Director-General must apply in writing to the Registrar-General to remove from any computer freehold register for the site—
(i)
the notification that section 24 of the Conservation Act 1987 does not apply to the site; and
(ii)
the notification that the site is subject to section 45(2); or
(b)
part of the site, then the Registrar-General must ensure that the notifications referred to in paragraph (a) remain only on any computer freehold register for the part of the site that remains a reserve.
(6)
The Registrar-General must comply with an application received in accordance with subsection (5)(a).
Subpart 4—Assignment of official geographic name to Pourewa Creek
49 Interpretation
In this subpart,—
New Zealand Geographic Board means the board continued by section 7 of the NZGB Act
NZGB Act means the New Zealand Geographic Board (Ngā Pou Taunaha o Aotearoa) Act 2008
official geographic name has the meaning given by section 4 of the NZGB Act.
50 Official geographic name assigned to Pourewa Creek
(1)
The name specified in the first column of the table in clause 5.11 of the deed of settlement is assigned to the feature described in the other columns of that table.
(2)
The assignment is to be treated as if it were the assignment of an official geographic name by a determination of the New Zealand Geographic Board under section 19 of the NZGB Act that takes effect on the settlement date.
51 Publication of new name
The New Zealand Geographic Board must, as soon as practicable after the settlement date,—
(a)
give public notice of the assignment of the Pourewa Creek name under section 50 in accordance with section 21(2) and (3) of the NZGB Act; but
(b)
state in the notices that the assignment took effect on the settlement date.
52 Alteration of new name
(1)
The New Zealand Geographic Board need not comply with the requirements of sections 16, 17, 18, 19(1), and 20 of the NZGB Act in making a determination to alter the official geographic name of the feature named by this subpart.
(2)
Instead, the Board may make the determination as long as it has the written consent of the trustee.
(3)
To avoid doubt, the Board must give public notice of the determination in accordance with section 21(2) and (3) of the NZGB Act.
Part 3 Commercial redress
53 The Crown may transfer commercial properties
The Crown (acting by and through the chief executive of the land holding agency) is authorised to do the following to give effect to the deed of settlement:
(a)
transfer the fee simple estate in a commercial property:
(b)
sign a transfer instrument or other document, or do anything else, to effect the transfer.
54 Narrow Neck property reserve status revoked
(1)
The reservation of the Narrow Neck property as a reserve for defence purposes subject to the Reserves Act 1977 is revoked.
(2)
Sections 24 and 25 of that Act do not apply to the revocation of its reserve status.
55 Hauraki Gulf Marine Park Act 2000 amended (to remove Narrow Neck property from its jurisdiction)
(1)
This section amends the Hauraki Gulf Marine Park Act 2000.
(2)
In Schedule 4, Part 2, replace the item with:
All that land comprising 5.0024 hectares, more or less, being Section 2 SO 448861 and Sections 1, 2, and 3 SO 355498.
56 Registrar-General to create computer freehold register
(1)
To the extent that a commercial property is not all of the land contained in a computer freehold register, or there is no computer freehold register for all or part of the property, the Registrar-General must, in accordance with a written application by a person authorised by the chief executive of the land holding agency,—
(a)
create a computer freehold register for the fee simple estate in the property in the name of the Crown; and
(b)
record on the computer freehold register any encumbrances that are registered, notified, or notifiable and that are described in the application; and
(c)
omit any statement of purpose from the computer freehold register.
(2)
Subsection (1) is subject to the completion of any survey necessary to create a computer freehold register.
(3)
The authorised person may grant a covenant to arrange for the later creation of a computer freehold register for any land that is to be transferred to the trustee or any other person for the purposes of section 53(a).
(4)
Despite the Land Transfer Act 1952,—
(a)
the authorised person may request the Registrar-General to register the covenant under the Land Transfer Act 1952 by creating a computer interest register; and
(b)
the Registrar-General must register the covenant in accordance with paragraph (a).
57 Application of other enactments
(1)
Section 11 and Part 10 of the Resource Management Act 1991 do not apply to—
(a)
the transfer of a commercial property for the purposes of section 53(a); or
(b)
any matter incidental to, or required for the purpose of, the transfer.
(2)
The transfer of a commercial property for the purposes of section 53(a) does not—
(a)
limit section 10 or 11 of the Crown Minerals Act 1991; or
(b)
affect other rights to subsurface minerals.
(3)
The transfer of a commercial property for the purposes of section 53(a) is a disposition for the purposes of Part 4A of the Conservation Act 1987, but sections 24(2A), 24A, and 24AA of that Act do not apply to the disposition.
(4)
Subsection (5) applies if a commercial property—
(a)
is transferred for the purposes of section 53(a) to a person other than the trustee; and
(b)
immediately before the transfer, was held for a public work (within the meaning of section 2 of the Public Works Act 1981).
(5)
An application may be made under section 42A of the Public Works Act 1981 by a person referred to in that section in relation to the commercial property as if it were land returned to Māori ownership.
(6)
In exercising the powers conferred by section 53, the Crown is not required to comply with any other enactment that would otherwise regulate or apply to the transfer of a commercial property.
(7)
Subsection (6) is subject to subsections (2) to (5).
(8)
The permission of a council under section 348 of the Local Government Act 1974 is not required for laying out, forming, granting, or reserving a private road, private way, or right of way required to fulfil the terms of the deed of settlement in relation to the transfer of a commercial property.
58 Certificate to accompany certain instruments for registration
(1)
This section applies if—
(a)
a commercial property is transferred for the purposes of section 53(a) to a person other than the trustee; and
(b)
the person presents a transfer instrument for the transfer to the Registrar-General for registration.
(2)
The instrument must be accompanied by a certificate given by the person or the person’s solicitor verifying that the transfer is for the purposes of section 53(a).
(3)
The Registrar-General must, upon receiving the transfer instrument and the certificate, and any other document required for registration of the transfer instrument, register the person as the proprietor of the fee simple estate in the property.
Part 4 Ōrākei Block
59 Interpretation
In this Act, unless the context requires another meaning,—
development land means the land described in Part 1 of Schedule 3
hapū land means the papakāinga and the whenua rangatira and includes any relevant land to which section 70 applies
hapū reservation means the land described in Part 2 of Schedule 3
papakāinga—
(a)
means—
(i)
the development land; and
(ii)
the hapū reservation; and
(iii)
the land described in Part 3 of Schedule 3; and
(b)
includes any relevant land to which section 70 applies
pūtea means the assets vested in the trustee under section 79
whenua rangatira means the land described in Part 4 of Schedule 3 and includes any relevant land to which section 70 applies.
Vesting and status of hapū land
60 Vesting and status of hapū land
(1)
The fee simple estate in the hapū land is vested in the trustee.
(2)
To avoid doubt, the hapū land continues to be deemed to be Maori freehold land within the meaning of section 4 of Te Ture Whenua Maori Act 1993.
(3)
To avoid doubt, the whenua rangatira continues to be—
(a)
deemed to be set apart as a Maori reservation for the common use and benefit of Ngāti Whātua Ōrākei and the citizens of Auckland (but exempt from sections 338(3) and (5) to (14), 340, and 341 of Te Ture Whenua Maori Act 1993); and
(b)
treated as if it were a recreation reserve under the Reserves Act 1977.
61 Hapū reservation
The hapū reservation is held by the trustee—
(a)
for the common use and benefit of Ngāti Whātua Ōrākei; and
(b)
for the purposes of a marae, church, urupā, and related amenities.
Duties and powers of trustee in relation to hapū land and pūtea
62 Trustee duties and powers in respect of hapū land and pūtea
(1)
The trustee must—
(a)
hold, conserve, administer, and develop the hapū land as a perpetual estate and tūrangawaewae for Ngāti Whātua Ōrākei; and
(b)
hold, conserve, administer, and develop the pūtea for Ngāti Whātua Ōrākei; and
(c)
provide services and amenities in relation to the hapū land and the pūtea.
(2)
Subject to this Act and any other enactment, the trustee has and may exercise all the powers and authorities as may be necessary to enable it to perform its duties under subsection (1) in the interests of Ngāti Whātua Ōrākei.
63 Permissible dealings with hapū land and pūtea that is land
(1)
The trustee may grant 1 or more easements—
(a)
to any person over any part of the hapū land:
(b)
to the Auckland Council over any pūtea that is land.
(2)
An easement may be granted under subsection (1)—
(a)
for valuable consideration or otherwise; and
(b)
in gross or otherwise.
(3)
The trustee may—
(a)
use the development land for housing or other non-commercial purposes; or
(b)
subdivide the development land for housing purposes; or
(c)
lease the development land for commercial purposes—
(i)
as if the land were General land within the meaning of section 4 of Te Ture Whenua Maori Act 1993; and
(ii)
on the terms it thinks fit.
(4)
However, at any time, no more than one-fifth of the development land may be leased by the trustee under subsection (3)(c).
(5)
The trustee must transfer to the Auckland Council any road formed as part of a subdivision and development under subsection (3)(b).
(6)
To avoid doubt, land used or subdivided in accordance with subsection (3)(a) or (b) is not development land for the purposes of subsection (4) regardless of whether any improvements on the land are leased, tenanted, or otherwise occupied.
64 Prohibited dealings with hapū land
Except as provided in section 63, the trustee must not sell, lease, mortgage, charge, or otherwise dispose of any hapū land.
Naming of whenua rangatira
65 Naming of whenua rangatira
(1)
The trustee may give the whenua rangatira the name or names it considers appropriate and notify the Minister of Māori Affairs of its decision.
(2)
The Minister must, by notice in the Gazette, publish any name given to the whenua rangatira by the trustee that is notified to him or her.
Ngāti Whātua Ōrākei Reserves Board
66 Ngāti Whātua Ōrākei Reserves Board
(1)
The Ngati Whatua o Orakei Reserves Board established by section 20 of the Orakei Act 1991 is continued.
(2)
As from the settlement date, the Reserves Board is to be known as the Ngāti Whātua Ōrākei Reserves Board.
(3)
Schedule 4 applies to the Reserves Board and its members.
(4)
The Reserves Board may regulate its own procedure subject to—
(a)
this Act; and
(b)
any regulations made under section 76; and
(c)
any regulations made under Te Ture Whenua Maori Act 1993 relating to trustees of Maori reservations that do not conflict with the provisions of this Act.
Duties and powers of Reserves Board in relation to whenua rangatira
67 Duties and powers of Reserves Board in relation to whenua rangatira
(1)
The Reserves Board must control and manage the whenua rangatira.
(2)
For the purposes of subsection (1), the Reserves Board has, subject to this Act,—
(a)
the powers conferred on the trustees of a Maori reservation by any regulations made under section 338 of Te Ture Whenua Maori Act 1993; and
(b)
the powers conferred by the Reserves Act 1977 on the administering body of a recreation reserve to control and manage a reserve.
(3)
Section 10 of the Reserves Act 1977 applies to the Reserves Board as if it were a local authority in respect of the whenua rangatira.
(4)
To avoid doubt, the Reserves Board must prepare and maintain a management plan, in accordance with section 41 of the Reserves Act 1977, to provide for the uses to which the whenua rangatira may be put.
68 Power to grant leases and licences
(1)
The Reserves Board may, on behalf of the trustee or in its own name, grant, in writing, leases or licences over any part or parts of the whenua rangatira to enable 1 or more members of Ngāti Whātua Ōrākei to carry on farming activities or to conduct any tribal, community, or cultural activities.
(2)
Subsection (1)—
(a)
overrides any enactment to the contrary; but
(b)
is subject to the management plan prepared in accordance with section 67(4).
Costs of managing whenua rangatira
69 Costs of management of whenua rangatira
(1)
All costs and expenses incurred in and incidental to the control and management of the whenua rangatira must be paid by the Auckland Council to the extent that any income arising from the whenua rangatira is insufficient to defray those costs and expenses.
(2)
This section is subject to clause 6 of Schedule 4.
Miscellaneous matters
70 Stopped roads to vest in trustee
(1)
In this section, road means a road or access way, or any part of a road or access way, that is—
(a)
vested in the Auckland Council; and
(b)
adjoining any part of the hapū land.
(2)
Subsection (3) applies if the Auckland Council stops a road.
(3)
On and from the stopping of the road, the road—
(a)
vests in fee simple in the trustee; and
(b)
becomes part of the adjoining hapū land (as papakāinga or whenua rangatira, as the case may be).
71 Application of Resource Management Act 1991
(1)
Section 63(3)(a) applies despite anything in the relevant district plan or regional plan.
(2)
Any subdivision of the development land under section 63(3)(b) is subject to the Resource Management Act 1991.
72 Exemption from payment of rates and other charges
The whenua rangatira, the hapū reservation, and, to the extent that it remains undeveloped, the development land—
(a)
are not rateable under the Local Government (Rating) Act 2002; and
(b)
are exempt from all other taxes and charges from time to time imposed by the Auckland Council.
73 No reserves contribution to be required on subdivision
(1)
In respect of any subdivision of hapū land permitted by this Act, the trustee is not liable to—
(a)
make provision for reserves; or
(b)
pay any sum in lieu of making provision for reserves.
(2)
Subsection (1) applies despite anything to the contrary in the Resource Management Act 1991 or any regional plan or district plan.
74 Exemption from payment of land tax
The trustee is not liable to pay any land tax in respect of the hapū land or any pūtea that is land.
75 Registrars to give effect to provisions of this Part
(1)
The Registrar-General and the Registrar of the Maori Land Court must, without fee, make entries in any register or other record kept by him or her, and do all other things, that are necessary to give full effect to the provisions of this Part.
(2)
In the performance of any duty under subsection (1), the Registrar-General and the Registrar of the Maori Land Court must, on request and without fee, issue to the trustee a computer freehold register or other instrument of title in respect of any land vested in the trustee by this Part.
(3)
This section overrides any other enactment.
Regulations
76 Regulations
(1)
The Governor-General may, by Order in Council, make regulations for 1 or more of the following purposes:
(a)
facilitating the ability of the Reserves Board to grant leases or licences over the whenua rangatira pursuant to section 68:
(b)
prescribing any act or thing necessary to render more effectual the administration of the Reserves Board, or its management of the whenua rangatira:
(c)
providing for any other matters that are contemplated by or necessary for giving full effect to the provisions of this Part or necessary for the due administration of this Part.
(2)
Regulations under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114, Sch 1 cl 32(1)(a) | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
Section 76(2): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Part 5 Transitional provisions, consequential amendments, etc
Subpart 1—Governance entities
77 Interpretation
(1)
In this subpart and subpart 2,—
assets means assets of any kind, whether real or personal property, money, rights, or interests
Charitable Trust Board means the Ngati Whatua o Orakei Maori Trust Board incorporated as a Board under the Charitable Trusts Act 1957 on 20 November 1992 (registration number 570546)
exempt income has the meaning given by section YA 1 of the Income Tax Act 2007
Inland Revenue Acts has the meaning given by section 3(1) of the Tax Administration Act 1994
liabilities includes debts, charges, duties, and other obligations, whether present, future, actual, contingent, payable, or to be observed or performed in New Zealand or elsewhere
Statutory Trust Board means the Ngati Whatua o Orakei Maori Trust Board continued by section 9(1) of the Orakei Act 1991
subsidiaries means—
(a)
Ngati Whatua o Orakei Corporate Limited and its subsidiary Corporate Property Investments Limited; and
(b)
Orakei Retirement Care Limited; and
(c)
Orakei Management Services Limited; and
(d)
Tamaki Retirement Care Limited; and
(e)
Tamaki Management Services Limited; and
(f)
Ngati Whatua o Orakei Tourism Limited
taxable income has the meaning given by section YA 1 of the Income Tax Act 2007
transferred employee means a person to whom section 89 applies.
(2)
In this subpart and subpart 2, unless the context requires another meaning, terms used and not defined in this subpart, but defined in the Inland Revenue Acts, have the meanings given in those Acts.
Dissolution of Statutory Trust Board
78 Dissolution of Statutory Trust Board
(1)
On the commencement of this Act, the Statutory Trust Board is dissolved and—
(a)
the term of office of the members of the Statutory Trust Board expires; and
(b)
proceedings by or against the Statutory Trust Board may be continued, completed, or enforced by or against the trustee (without amendment to the proceedings); and
(c)
a reference to the Statutory Trust Board (express or implied) in any enactment (other than this Act), or in any instrument, register, agreement, deed, lease, application, notice, or other document in force or in effect immediately before the commencement of this Act must, unless the context requires another meaning, be read as a reference to the trustee.
(2)
A person holding office as a member of the Statutory Trust Board immediately before the commencement of this Act is not entitled to compensation as a result of the expiry under this section of his or her term of office.
79 Vesting of assets and liabilities of Statutory Trust Board
(1)
On the commencement of this Act, the assets and liabilities of the Statutory Trust Board vest in the trustee and become the assets and liabilities of the trustee.
(2)
In this section, assets and liabilities—
(a)
means the assets and liabilities owned, controlled, or held by the Statutory Trust Board immediately before the commencement of this Act; but
(b)
does not include the land vested in the trustee by Part 4.
80 Final report of Statutory Trust Board
(1)
As soon as practicable after the commencement of this Act, the trustee must prepare a final report (as if the report were an annual report required under section 31 of the Maori Trust Boards Act 1955) to show the financial results of the operations of the Statutory Trust Board for the period beginning on the day after the last day covered by the previous annual report and ending on the day before the commencement of this Act.
(2)
As soon as practicable after the completion of the final report, the trustee must provide it to the Minister of Māori Affairs, who must present it to the House of Representatives as soon as practicable after receiving it.
Dissolution of Charitable Trust Board
81 Dissolution of Charitable Trust Board
(1)
On the commencement of this Act, the Charitable Trust Board is dissolved and—
(a)
the term of office of the members of the Charitable Trust Board expires; and
(b)
proceedings by or against the Charitable Trust Board may be continued, completed, or enforced by or against the trustee (without amendment to the proceedings); and
(c)
a reference to the Charitable Trust Board (express or implied) in any instrument, register, agreement, deed, lease, application, notice, or other document in force or in effect immediately before the commencement of this Act must, unless the context requires another meaning, be read as a reference to the trustee.
(2)
A person holding office as a member of the Charitable Trust Board immediately before the commencement of this Act is not entitled to compensation as a result of the expiry under this section of his or her term of office.
82 Vesting of assets and liabilities of Charitable Trust Board
(1)
On the commencement of this Act, the assets and liabilities of the Charitable Trust Board vest in the trustee and become the assets and liabilities of the trustee.
(2)
Subsection (1) is subject to subsection (3).
(3)
To the extent that any asset or liability of the Charitable Trust Board is owned or held subject to any charitable trusts, the asset or liability vests in the trustee—
(a)
freed of those charitable trusts; but
(b)
subject to the trusts expressed in the Ngāti Whātua Ōrākei Trust deed of trust.
(4)
In this section, assets and liabilities means the assets and liabilities owned, controlled, or held, wholly or in part, by the Charitable Trust Board immediately before the commencement of this Act.
(5)
To avoid doubt, the assets and liabilities of the subsidiaries continue to be the assets and liabilities of the subsidiaries.
83 Assets and liabilities of subsidiaries freed of charitable purposes
(1)
To the extent that immediately before the commencement of this Act any asset or liability of a subsidiary is held subject to any charitable purposes, on the commencement of this Act,—
(a)
the asset or liability is freed of those charitable purposes; and
(b)
the constitution of the subsidiary is deemed to have been amended to the extent necessary to give effect to paragraph (a).
(2)
If, on the commencement of this Act, a subsidiary is a tax charity for the purposes of the Inland Revenue Acts, the subsidiary ceases to be a tax charity at that time.
(3)
To avoid doubt, nothing in this section has the effect, of itself, of causing a subsidiary to be a different person for the purposes of the Inland Revenue Acts.
General matters relating to dissolution of Statutory Trust Board and Charitable Trust Board
84 Matters not affected by transfer
Nothing given effect to or authorised by this subpart—
(a)
places the Statutory Trust Board, the Charitable Trust Board, the trustee, the Crown, or any other person or body in breach of a contract or confidence, or makes them guilty of a civil wrong; or
(b)
gives rise to a right for any person to terminate or cancel any contract or arrangement, to accelerate the performance of an obligation, to impose a penalty, or to increase a charge; or
(c)
places the Statutory Trust Board, the Charitable Trust Board, the trustee, the Crown, or any other person or body in breach of an enactment, rule of law, or contract that prohibits, restricts, or regulates the assignment or transfer of an asset or a liability or the disclosure of information; or
(d)
releases a surety, wholly or in part, from an obligation; or
(e)
invalidates or discharges a contract.
85 Status of contracts and other instruments
(1)
In subsection (2), instruments means contracts, agreements, conveyances, deeds, leases, licences, undertakings, notices, and other instruments entered into by, made with, given to or by, or addressed to, the Statutory Trust Board or the Charitable Trust Board (whether alone or with another person) before the commencement of this Act and in effect immediately before that date.
(2)
Instruments are binding on, and enforceable by, against, or in favour of, the trustee as if the instruments had been entered into by, made with, given to or by, or addressed to or by, the trustee and not the Statutory Trust Board or the Charitable Trust Board.
86 Status of existing securities
(1)
A security held by the Statutory Trust Board or the Charitable Trust Board as security for a debt or other liability to the Statutory Trust Board or the Charitable Trust Board incurred before the commencement of this Act—
(a)
is available to the trustee as security for the discharge of that debt or liability; and
(b)
if the security extends to future or prospective debts or liabilities, is available as security for the discharge of debts or liabilities to the trustee incurred on or after the commencement of this Act.
(2)
The trustee is entitled to the same rights and priorities, and is subject to the same liabilities, in relation to the security as the Statutory Trust Board or the Charitable Trust Board would be if this Act had not been passed.
87 Books and documents to remain evidence
(1)
A document, matter, or thing that would have been admissible in evidence for or against the Statutory Trust Board or the Charitable Trust Board is, on and after the commencement of this Act, admissible in evidence for or against the trustee.
(2)
For the purposes of this section, document has the same meaning as in section 4(1) of the Evidence Act 2006.
88 Registers
(1)
The Registrar-General or any other person charged with keeping books or registers is not required to change the name of the Statutory Trust Board or the Charitable Trust Board to the name of the trustee in the books or registers or in a document solely because of the provisions of this subpart.
(2)
If the trustee presents an instrument to a registrar or other person, the presentation of that instrument is, in the absence of evidence to the contrary, sufficient proof that the property is vested in the trustee, as specified in the instrument.
(3)
For the purposes of subsection (2), the instrument need not be an instrument of transfer, but must—
(a)
be executed or purport to be executed by the trustee; and
(b)
relate to assets or liabilities held, managed, or controlled by the Statutory Trust Board or the Charitable Trust Board, or any entity wholly or partly owned or controlled by the Statutory Trust Board or the Charitable Trust Board, immediately before the commencement of this Act; and
(c)
be accompanied by a certificate given by the trustee or its solicitor stating that the property was vested in the trustee by or under this Act.
Employees of Statutory Trust Board and Charitable Trust Board
89 Transfer of employees
On the commencement of this Act, each employee of the Statutory Trust Board or the Charitable Trust Board ceases to be an employee of the board and becomes an employee of the trustee.
90 Protection of terms and conditions of employment
(1)
The employment of a transferred employee must be on terms and conditions no less favourable to the transferred employee than those applying to him or her immediately before the commencement of this Act.
(2)
Subsection (1)—
(a)
continues to apply to the terms and conditions of employment of a transferred employee until the terms and conditions are varied by agreement between the transferred employee and the trustee; and
(b)
does not apply to a transferred employee who accepts any subsequent appointment with the trustee.
91 Continuity of employment
For the purposes of any enactment, rule of law, determination, contract, or agreement relating to the employment of a transferred employee, the transfer of the person’s employment from the Statutory Trust Board or the Charitable Trust Board to the trustee does not, of itself, break the employment of that person, and the period of his or her employment by the Statutory Trust Board or the Charitable Trust Board is to be regarded as having been a period of service with the trustee.
92 No compensation for technical redundancy
A transferred employee is not entitled to receive any payment or any other benefit solely on the ground that—
(a)
the position held by the employee with the Statutory Trust Board or the Charitable Trust Board has ceased to exist; or
(b)
the employee has ceased, as a result of his or her transfer to the trustee, to be an employee of the Statutory Trust Board or the Charitable Trust Board.
Reserves Board
93 Reserves Board
(1)
Each member of the Reserves Board in office immediately before the commencement of this Act continues in office for the residue of the term for which he or she was appointed.
(2)
The members holding office as chairperson and deputy chairperson of the Reserves Board continue in office for the residue of the term for which they were appointed.
(3)
The first meeting of the Reserves Board under this Act must be held no later than 6 months after the last meeting held by the Reserves Board under the Orakei Act 1991.
Subpart 2—Transitional taxation provisions
94 Application of this subpart
Statutory Trust Board
95 Taxation in respect of transfer of assets and liabilities of Statutory Trust Board
(1)
On and from the date on which the assets and liabilities of the Statutory Trust Board vest in the trustee under Part 4 and section 79(1),—
(a)
the trustee is deemed to be the same person as the Statutory Trust Board; and
(b)
everything done by the Statutory Trust Board before the assets and liabilities vest in the trustee is deemed to have been done by the trustee on the date that it was done by the Statutory Trust Board.
(2)
Income derived or expenditure incurred by the Statutory Trust Board before the assets and liabilities vest in the trustee does not become income derived or expenditure incurred by the trustee just because the assets and liabilities vest in the trustee under Part 4 or section 79.
Charitable Trust Board
96 Taxation in respect of transfer of assets and liabilities of Charitable Trust Board
(1)
On and from the date on which the assets and liabilities of the Charitable Trust Board vest in the trustee under section 82(1),—
(a)
the trustee is deemed to be the same person as the Charitable Trust Board; and
(b)
everything done by the Charitable Trust Board before the assets and liabilities vested in the trustee is deemed to have been done by the trustee on the date that it was done by the Charitable Trust Board.
(2)
Income derived or expenditure incurred by the Charitable Trust Board before the assets and liabilities vest in the trustee does not become income derived or expenditure incurred by the trustee just because the assets and liabilities vest in the trustee under section 82(1).
(3)
If income of the Charitable Trust Board derived from a financial arrangement, trading stock, revenue account property, or depreciable property is exempt income of the Charitable Trust Board but is not exempt income of the trustee, the trustee is to be treated as having acquired the financial arrangement, trading stock, revenue account property, or depreciable property—
(a)
on the day that it becomes the trustee’s property; and
(b)
for a consideration that is its market value on that day.
(4)
The trustee must identify the undistributed charitable amount, using the following formula:
a – b
where—
- a
is the total of the amounts derived by the Charitable Trust Board that, but for the application of sections CW 41 and CW 42 of the Income Tax Act 2007, would have been taxable income derived by the Charitable Trust Board before the commencement of this Act
- b
is the total of the amounts described in variable a that have been distributed before the commencement of this Act.
(5)
The undistributed charitable amount described in subsection (4) is excluded from the corpus of the Ngāti Whātua Ōrākei Trust for the purposes of the Income Tax Act 2007, to the extent to which it is otherwise included but for this subsection.
(6)
If the trustee distributes any of the undistributed charitable amount to a person, that amount is treated as beneficiary income for the purposes of the Income Tax Act 2007, unless subsection (7) applies.
(7)
If the trustee distributes any of the undistributed charitable amount for a charitable purpose, the distribution is exempt income of the recipient.
Election by trustee to be Maori authority
97 Election by trustee to be Maori authority
(1)
If the trustee makes an election under section HF 11 of the Income Tax Act 2007 to become a Maori authority, to the extent that the amount referred to in section 96(4) is distributed in an income year, that distribution will be—
(a)
exempt income if the distribution is applied for a charitable purpose; or
(b)
a taxable Maori authority distribution.
(2)
If this section applies, the distribution must be disregarded for the purposes of section HF 8 of the Income Tax Act 2007.
Subsidiaries
98 Taxation in respect of assets and liabilities of subsidiaries
(1)
This section applies if income of a subsidiary derived from a financial arrangement, trading stock, revenue account property, or depreciable property is exempt income of the subsidiary before the commencement of this Act and ceases to be exempt income as a result of the application of section 83.
(2)
The subsidiary is to be treated as having acquired the financial arrangement, trading stock, revenue account, or depreciable property for a consideration that is its market value on the commencement of this Act.
99 Election by subsidiary to be Maori authority
(1)
If a subsidiary makes an election under section HF 11 of the Income Tax Act 2007 to become a Maori authority, income derived by the subsidiary before the commencement of this Act that was exempt income under sections CW 41 and CW 42 of that Act must be treated as a taxable Maori authority distribution if, after the commencement of this Act, it is distributed by the subsidiary in an income year.
(2)
If this section applies, the distribution must be disregarded for the purposes of section HF 8 of the Income Tax Act 2007.
Subpart 3—Repeal of Orakei Act 1991 and consequential amendments to other enactments
100 Orakei Act 1991 repealed
The Orakei Act 1991 (1991 No 122) is repealed.
101 Consequential amendments to other enactments
Amend the enactments specified in Schedule 5 as set out in that schedule.
Schedule 1 Pourewa Creek site: Land description
| Land Description | Encumbrances | |
North Auckland Land District—Auckland City |
||
6.8250 hectares, more or less, being Section 1 SO 445650 |
Recreation reserve subject to section 17 of the Reserves Act 1977 |
|
26.8000 hectares, more or less, being Section 2 SO 445650. Part computer freehold registers NA646/33 and NA974/199 |
Subject to a right to convey and drain stormwater. Created by deed of easement 5486019.5 (affects Section 1 SO 445650 only) |
|
Easements created by deed of easement 5486019.5 are subject to section 243(a) of the Resource Management Act 1991 |
||
Subject to an unregistered deed of authority (to use the site for a station for the transmission, emission, or reception of any form of radio, electric, or electronic communication) to Bellsouth New Zealand Limited (now Vodafone New Zealand Limited), dated 20 June 1995 as renewed by deed of authority dated 11 February 2008 (affects Section 2 SO 445650 only) |
||
Subject to an unregistered concession for a lease and licence to St Heliers Bay Pony Club Incorporated, dated 10 May 2001 as renewed and varied by concession document numbered AK–0041–GRA and dated 10 August 2011 |
Schedule 2 Narrow Neck property: Land description
North Auckland Land District—Auckland City
3.2085 hectares, more or less, being Section 1 SO 448861
Schedule 3 Ōrākei Block: Hapū land description
Part 1 Development land (papakāinga)
1.7414 hectares, more or less, being Lots 1 to 8 and 10 to 19 DP 40823. Balance computer freehold register NA99C/181
809 square metres, more or less, being Lot 9 DP 40823. All computer freehold register 515541
5 309 square metres, more or less, being Lots 30 to 34 DP 37786. All computer freehold register NA99C/182
1.1429 hectares, more or less, being Section 810 Town of Orakei. All computer freehold register NA99C/183
8 410 square metres, more or less, being Section 1 SO 446761. Part computer freehold register NA99C/205
5.9007 hectares, more or less, being Sections 2 to 6 SO 446762. Part computer freehold registers 366906, NA99C/185, NA99C/186 and NA99C/189
288 square metres, more or less, being Lot 1 DP 391385 together with a 1/16 share in 955 square metres, more or less, being Lot 100 DP 391385. All computer freehold register 366897
233 square metres, more or less, being Lot 2 DP 391385 together with a 1/16 share in 955 square metres, more or less, being Lot 100 DP 391385. All computer freehold register 366898
233 square metres, more or less, being Lot 3 DP 391385 together with a 1/16 share in 955 square metres, more or less, being Lot 100 DP 391385. All computer freehold register 366899
262 square metres, more or less, being Lot 4 DP 391385 together with a 1/16 share in 955 square metres, more or less, being Lot 100 DP 391385. All computer freehold register 366900
284 square metres, more or less, being Lot 13 DP 391385 together with a 1/16 share in 955 square metres, more or less, being Lot 100 DP 391385. All computer freehold register 366901
222 square metres, more or less, being Lot 14 DP 391385 together with a 1/16 share in 955 square metres, more or less, being Lot 100 DP 391385. All computer freehold register 366902
221 square metres, more or less, being Lot 15 DP 391385 together with a 1/16 share in 955 square metres, more or less, being Lot 100 DP 391385. All computer freehold register 366903
321 square metres, more or less, being Lot 16 DP 391385 together with a 1/16 share in 955 square metres, more or less, being Lot 100 DP 391385. All computer freehold register 366904
2 477 square metres, more or less, being Lot 17 DP 391385 together with a 1/16 share in 955 square metres, more or less, being Lot 100 DP 391385. All computer freehold register 366905
1 103 square metres, more or less, being Lot 3 DP 50515. All computer freehold register NA99C/187
3 285 square metres, more or less, being Lots 2 to 4 DP 39988. All computer freehold register NA99C/188
573 square metres, more or less, being Section 2 SO 63269. All computer freehold register NA99C/190
5 895 square metres, more or less, being Section 3 SO 63269. All computer freehold register 557119
5 641 square metres, more or less, being Lot 1 DP 92924. All computer freehold register NA99C/193
7 473 square metres, more or less, being Lot 2 DP 92924. All computer freehold register NA99C/194
3 460 square metres, more or less, being Lot 3 DP 92925. All computer freehold register NA99C/195
Part 2 Hapū reservation (papakāinga)
4 535 square metres, more or less, being Section 722 Town of Orakei. All computer freehold register NA99C/196
1.2157 hectares, more or less, being Section 790 Town of Orakei. All computer freehold register NA99C/197
9 square metres, more or less, being Section 793 Town of Orakei. All computer freehold register NA99C/198
94 square metres, more or less, being Section 794 Town of Orakei. All computer freehold register NA99C/199
1 229 square metres, more or less, being Section 1 SO 63269. All computer freehold register NA99C/200
1 721 square metres, more or less, being Section 792 Town of Orakei. All computer freehold register NA99C/201
2 012 square metres, more or less, being Section 802 Town of Orakei. All computer freehold register NA99C/202
1 644 square metres, more or less, being Orakei No 1 Reserve C. All computer freehold register NA99C/203
Part 3 Stopped road (papakāinga)
232 square metres, more or less, being Stopped Road shown marked “F”
on SO 63269. All computer freehold register 557699
Part 4 Whenua rangatira
2.1047 hectares, more or less, being Section 1 SO 63319. All computer freehold register NA99C/204
37.8620 hectares, more or less, being Section 2 SO 446761. Balance computer freehold register NA99C/205
1.5200 hectares, more or less, being Section 1 SO 446762. Part computer freehold registers 366906, NA99C/185, NA99C/186 and NA99C/189
5.9994 hectares, more or less, being Section 1 SO 63318. All computer freehold register NA99C/206
5 817 square metres, more or less, being Section 24 Block VIII Rangitoto Survey District. All computer freehold register NA99C/207
234 square metres, more or less, being Section 815 Town of Orakei. All computer freehold register NA99C/208
1.3568 hectares, more or less, being Section 2 SO 65657. All computer freehold register NA99C/209
| Note: The computer freehold registers specified in this schedule are the registers that exist on the settlement date. |
Schedule 4 Ngāti Whātua Ōrākei Reserves Board
1 Membership of Reserves Board
(1)
The Reserves Board comprises—
(a)
6 individuals; or
(b)
any greater even number of individuals as may be fixed by written agreement between the Auckland Council and the trustee.
(2)
One-half of the members must be appointed in writing by the trustee.
(3)
One-half of the members must be appointed in writing by the Auckland Council.
(4)
Subject to clause 2, members are appointed for a term of 3 years and may be reappointed.
2 Removal, resignation, etc, of members and extraordinary vacancies
(1)
The body by which a member of the Reserves Board is appointed may, at any time in its discretion, by notice in writing to the member, remove the member from office.
(2)
A member of the Reserves Board may, at any time, resign his or her office by written notice addressed to the body by which the member was appointed.
(3)
If a member of the Reserves Board dies or resigns or is removed from office, his or her office becomes vacant and the vacancy is an extraordinary vacancy.
(4)
An extraordinary vacancy must be filled in the manner in which the appointment to the vacant office was originally made.
(5)
A person appointed to fill an extraordinary vacancy must be appointed for the residue of the term for which the vacating member was appointed.
(6)
The powers of the Reserves Board are not affected by any vacancy in its membership.
3 Appointment of chairperson and deputy chairperson
(1)
The trustee must appoint a member of the Reserves Board as chairperson of the Reserves Board.
(2)
The Auckland Council must appoint a member of the Reserves Board as deputy chairperson of the Reserves Board.
(3)
Appointments made under subclause (1) or (2) must be made triennially or following the vacation of either office.
4 Meetings
(1)
The Reserves Board must hold meetings at successive intervals of no more than 6 months.
(2)
Each meeting must be held at a time and place fixed by the Reserves Board.
(3)
At each meeting, a quorum consists of one-half of the members, but no meeting may be held or continue unless—
(a)
the chairperson or the deputy chairperson is present; and
(b)
at least 1 member appointed by the trustee and 1 member appointed by the Auckland Council are present.
(4)
The chairperson must chair all meetings at which he or she is present.
(5)
The deputy chairperson must chair any meeting from which the chairperson is absent.
(6)
All resolutions to be considered by the Reserves Board must be proposed by a member and must be seconded by another member.
(7)
A resolution is passed or rejected according to the voting, by a show of hands, of the members present at the meeting.
(8)
The person presiding over a meeting has a deliberative vote, and, in the case of an equality of votes, also a casting vote.
(9)
The proceedings and resolutions of every meeting of the Reserves Board must be recorded in a minute book to be kept for the purpose.
5 Accounting and auditing of Reserves Board
(1)
No later than 4 months before the end of each financial year of the Auckland Council, the Reserves Board must give the Council an estimate of the income and expenditure of the Reserves Board, in relation to the Pourewa Creek Recreation Reserve and the whenua rangatira, in the next financial year.
(2)
The Reserves Board must keep full and accurate accounts of all money received and paid by it.
(3)
At the close of each financial year, the Reserves Board must have its accounts audited by a chartered accountant.
(4)
The Reserves Board must give a copy of the accounts audited under subclause (3) to the trustee and the Auckland Council, together with a report of the financial position of the Reserves Board and its financial operations during the period to which the accounts relate.
6 Remuneration of members appointed by trustee
A member of the Reserves Board who is appointed by the trustee must be paid, in accordance with the Fees and Travelling Allowances Act 1951, out of money appropriated by Parliament for the purpose,—
(a)
remuneration by way of fees, salary, or allowances for the member’s services as a member of the Reserves Board; and
(b)
travelling allowances and expenses in respect of time spent travelling in the service of the Reserves Board.
Schedule 5 Consequential amendments to other enactments
Fees and Travelling Allowances Act 1951 (1951 No 79)
In Schedule 1, replace the item relating to Ngati Whatua o Orakei Reserves Board with:
Ngāti Whātua Ōrākei Reserves Board (previously known as Ngati Whatua o Orakei Reserves Board) |
Established by the Orakei Act 1991 and continued by the Ngāti Whātua Ōrākei Claims Settlement Act 2012. |
Maori Trust Boards Act 1955 (1955 No 37)
Repeal the cross-heading above section 6A.
Repeal section 6A.
Notes
1 General
This is a consolidation of the Ngāti Whātua Ōrākei Claims Settlement Act 2012 that incorporates the amendments made to the legislation so that it shows the law as at its stated date.
2 Legal status
A consolidation is taken to correctly state, as at its stated date, the law enacted or made by the legislation consolidated and by the amendments. This presumption applies unless the contrary is shown.
Section 78 of the Legislation Act 2019 provides that this consolidation, published as an electronic version, is an official version. A printed version of legislation that is produced directly from this official electronic version is also an official version.
3 Editorial and format changes
The Parliamentary Counsel Office makes editorial and format changes to consolidations using the powers under subpart 2 of Part 3 of the Legislation Act 2019. See also PCO editorial conventions for consolidations.
4 Amendments incorporated in this consolidation
Te Ture mō te Hararei Tūmatanui o te Kāhui o Matariki 2022/Te Kāhui o Matariki Public Holiday Act 2022 (2022 No 14): wehenga 7/section 7
Secondary Legislation Act 2021 (2021 No 7): section 3
Education and Training Act 2020 (2020 No 38): section 668
Trusts Act 2019 (2019 No 38): section 161
Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (2014 No 52): section 167
Heritage New Zealand Pouhere Taonga Act 2014 (2014 No 26): section 107
Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19): section 8
Ngāti Whātua Ōrākei Claims Settlement Act Commencement Order 2013 (SR 2013/3)
Versions
Ngāti Whātua Ōrākei Claims Settlement Act 2012
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