Foreshore and Seabed

NEGOTIATIONS BETWEEN THE CROWN AND NGATI PAHAUWERA

Ngāti Pahauwera are a confederation of hapū centred around the Mōhaka River in the northern Hawke's Bay. Discussions between the Crown and the negotiating representatives of Ngati Pahauwera (on behalf of the hapū of Ngati Pahauwera) for the settlement of their historical Treaty and foreshore and seabed claims commenced in 2008.

Terms of Negotiation

Ngati Pahauwera and the Crown signed the first combined Treaty settlement and foreshore and Terms of Negotiation (PDF Adobe Acrobat v5 2058KB on 8 May 2008.

The Terms of Negotiation set out how the parties agree the negotiations will work, and is the first major milestone that occurs during negotiations. It specifies who the parties are, the scope and objectives of the negotiations and describes the various stages involved.

Ngāti Pahauwera Agreement in Principle

Summary of the Agreement in Principle between the Crown and the Trustees of the Ngāti Pahauwera Development Trust for the settlement of Ngāti Pahauwera historical Treaty claims and the recognition of foreshore and seabed customary interests

The Crown, Ngāti Pahauwera signed an Agreement in Principle on 30 September 2008.

"Ngati Pahauwera Agreement in Principle"

Background to the Agreement in Principle

Ngāti Pahauwera is a confederation of hapū centred on the Mōhaka River in the northern Hawke's Bay. According to the 2006 census data, the Ngāti Pahauwera confederation has a population of 1,764. However, to date, the beneficiary register records over 3,000 people.

In April 2008, Ministers met with representatives of Ngāti Pahauwera to discuss resolving and recognising their historical Treaty of Waitangi claims and foreshore and seabed interests in a holistic way. For further detail about Ngāti Pahauwera historical Treaty claims, please see the Waitangi Tribunal's Mōhaka ki Ahuriri (2004) and Mōhaka River (1992) reports.

Terms of Negotiation were signed between the Crown and Ngāti Pahauwera, on Thursday 8 May 2008.

Since the Terms of Negotiation were signed, Ngāti Pahauwera has established a governance entity structure to take over responsibility from the section 30 representatives for negotiation of a final settlement of Ngāti Pahauwera claims, and to hold the benefits of a settlement for these claims. The governance entity structure comprises two Trusts, the Ngāti Pahauwera Development Trust (which is the commercial and operational arm) and the Ngāti Pahauwera Tiaki Trust (which will hold Wāhi Tapu). The same seven trustees sit on both trusts.

Summary of the Redress

Historical Account and Crown Apology

An historical account, which will describe the historical interaction between the Crown and Ngāti Pahauwera that led to breaches of Te Tiriti o Waitangi/ the Treaty of Waitangi and its principles will be completed before the signing of the Deed of Settlement.

On the basis of this historical account, the Crown will acknowledge that certain of its actions or omissions were a breach of Te Tiriti o Waitangi/the Treaty of Waitangi and its principles. The Crown will then offer an apology to Ngāti Pahauwera in the Deed of Settlement for the acknowledged Crown breaches of Te Tiriti o Waitangi/the Treaty of Waitangi and its principles.

Cultural Redress

The cultural redress package, which recognises the traditional, historical, cultural and spiritual associations Ngāti Pahauwera has with places and sites within their rohe or Area of Interest, includes:

Rivers redress

Historical Treaty claims redress over the Mōhaka, Waihua and Waikari Rivers (within the core Area of Interest) comprising the development of a co-management regime in consultation with the Hawke's Bay Regional Council, other affected local authorities and other management agencies as required, that relates to the management of the natural resources of the rivers including natural resource policy and planning. The details of the co-management regime have yet to be agreed but will include the establishment of a statutory body and the development of a Ngāti Pahauwera Rivers Management Plan, as well as:

Te Heru o Tureia and Limestone Ridge

The Deed of Settlement and Settlement Legislation will provide for the Minister of Conservation, within 2 years of the settlement date, to transfer the whole of Te Heru o Tureia and Limestone Ridge Conservation Areas (1566ha) to the Trustees on the condition that the Trustees gift those lands (except the 203ha to be transferred in fee simple in the Trustees) back to the Crown after 7 business days.

The 203ha that the Crown will transfer in fee simple to the Trustees will include the summits of Te Heru o Tureia and Patuwahine, the ridgeline connecting Te Heru o Tureia and Patuwahine, and land adjacent to the Mōhaka River. Encumbrances over this land include: a conservation covenant for public access; a telecommunications concession; and retention of scenic reserve status.

Co-Management Regime over Te Heru o Tureia and Limestone Ridge

The Crown and Ngāti Pahauwera have agreed to develop a co-management regime for inclusion in the Deed of Settlement and Settlement Legislation in relation to the gifted back Te Heru o Tureia and Limestone Ridge lands, the transferred Ngāti Pahauwera-owned portions of Te Heru o Tureia and Limestone Ridge, and the remaining public conservation land within the Area of Interest.

Statutory Overlay Classification for Te Heru o Tureia and Limestone Ridge

This is an additional classification for Te Heru o Tureia and Limestone Ridge that acknowledges the traditional, cultural, spiritual and historic values and associations of Ngāti Pahauwera with these sites. A statutory overlay requires the Minister of Conservation and Ngāti Pahauwera to develop and publicise a set of principles, which will assist the Minister to ensure Ngati Pahauwera's values in relation to the sites, are not harmed or diminished.

The NZ Conservation Authority and the East Coast/Hawkes Bay Conservation Board will also be required to have regard to the principles and consult with Ngāti Pahauwera. It is the same concept as a Topuni in the Ngai Tahu settlement and a Kirihipi overlay in the Te Uri o Hau settlement.

Fee simple transfer of Conservation Land

The return of Crown-owned sites of special cultural significance to Ngāti Pahauwera including:

The Agreement in Principle also includes an undertaking to further discuss transfer of a 1 hectare portion of Pūtere Scenic Reserve.

The transfer of these sites is subject to specific conditions and encumbrances.

Statutory Acknowledgement

A Statutory Acknowledgement registers the association between Ngāti Pahauwera and a site or area, and enhances Ngāti Pahauwera ability to participate in specified Resource Management Act processes. The one Statutory Acknowledgement in the Agreement in Principle relates to Cashes Bush Conservation Area. Audit of Public Conservation Land The Department of Conservation, after the signing of the Agreement in Principle, will undertake an audit of remaining public conservation land within the core Area of Interest to explore if any additional sites subject to grazing concessions may be appropriate to transfer to Ngāti Pahauwera.

Cultural Harvest Plan

To address Ngāti Pahauwera interests in rongoā, the Crown offers the ability for Ngāti Pahauwera to develop and approve, in consultation with the Department of Conservation, a Cultural Harvest Plan in relation to Rāwhiti Scenic Reserve. The Plan will identify sites, methods and quantities of harvest of indigenous flora. Take will only be approved in line with Plan.

Protocols

The Deed of Settlement and Settlement Legislation will provide for the Minister of Conservation, Minister for Arts, Culture and Heritage, and Minister of Energy (Crown Minerals) to issue protocols with Ngāti Pahauwera.

The Minister of Fisheries will write to the Trustees outlining how the Ministry of Fisheries will work with hapū and iwi in the region to develop fisheries management processes and enable hapū and iwi to participate in certain activities and the Deed of Settlement and the Settlement Legislation will include any further redress to be agreed.

Promotion of Relationships with Local Authorities

Prior to the Deed of Settlement, the Minister in Charge of Treaty of Waitangi Negotiations will write to the Hawke's Bay Regional Council, the Wairoa District Council and the Hastings District Council, encouraging them to enter into a Memorandum of Understanding (or similar document) with the Trustees in relation to the interaction between the Council and Ngāti Pahauwera.

Letters of Introduction to Government Agencies

The Minister in Charge of Treaty of Waitangi Negotiations will write letters of introduction to Ministers responsible for relevant government agencies within Ngāti Pahauwera Area of Interest.

Place Names

The Crown and Ngāti Pahauwera will discuss the possibility of assigning Maori place names to places of particular significance to Ngāti Pahauwera, and assigning dual Maori and English names where appropriate, in consultation with the New Zealand Geographic Board Ngā Pou Taunaha o Aotearoa.

Promotion of Relationships with Museums

The Minister in Charge of Treaty of Waitangi Negotiations will write to an agreed list of museums encouraging them to enhance their relationship with the Trustees, particularly in relation to Ngāti Pahauwera taonga.

Monitoring the provisions of the Resource Management Act 1991

Ngāti Pahauwera will be given the opportunity to express to the Ministry for the Environment their views on how the Treaty of Waitangi provisions, and other relevant provisions of the Resource Management Act 1991, are being implemented in the Area of Interest. The Crown, through the Ministry of Environment, will also monitor the performance of the relevant local authorities in implementing these provisions.

Pouwhenua and Tuahu

The parties agree to explore the possibility of the Trustees erecting pouwhenua and tuahu in their Area of Interest.

Financial and Commercial Redress

Financial Redress

The parties have agreed to a quantum of $20 million.

Commercial Properties Transferred for Nil Consideration

The following commercial properties will be transferred for nil consideration:

Mōhaka Crown Forest Licensed Land

The Deed of Settlement and the Settlement Legislation will provide Ngāti Pahauwera with the opportunity to purchase, at market value, licensed Crown forest land (the Mōhaka Forest). The forest land would be selected from within a total land area of approximately 15,500 hectares. Ngāti Pahauwera will also receive the accumulated Crown Forest Licence rentals associated with any licensed Crown forest land purchased. Applicable New Zealand Units under the Climate Change (Emissions Trading and Renewable Preference) Act 2008 will be allocated to Ngāti Pahauwera for nil consideration for forest land purchased.

Transfer of the Mōhaka Forest blocks is subject to specific conditions and encumbrances.

Unallocated Crown Land

The parties have reserved the ability to negotiate in regard to any unallocated Crown lands identified prior to the Deed of Settlement.

Right of First Refusal

The Deed of Settlement will provide the Trustees with a right of first refusal over property within the Area of Interest that has been declared surplus by the relevant government department, and has been cleared of existing statutory processes.

Foreshore and Seabed Recognition

Protected Customary Activities instrument

The parties have agreed to develop a Protected Customary Activities instrument for inclusion in the Deed of Settlement.

The purpose of a Protected Customary Activities instrument is to recognise the ongoing and enduring mana of Ngāti Pahauwera by ensuring that Ngāti Pahauwera members are able to continue their ongoing customary activities in the exclusive coastal marine area.

The instrument provides Ngāti Pahauwera with legal protection so as to carry out customary activities without the need for resource consent and with the ability to restrict others use of the resources. Ngāti Pahauwera will also have the ability to derive a commercial benefit from the exercise of the protected customary activities.

The Protected Customary Activities instrument is made up of two parts, a framework and a schedule. The framework provides for the legal expression, protection and recognition of Ngāti Pahauwera mana over their customary activities. The framework will be the same as that provided in previous Foreshore and Seabed Agreements.

The Protected Customary Activities schedule sets out the activities, uses and practices that will be protected, and the degree to which scale, extent and frequency will be provided for in the instrument. Following the signing of this Agreement in Principle, the schedule will be drafted and agreed between the Crown and the Trustees, for inclusion in the Deed of Settlement.

Wāhi Tapu instrument

The parties have agreed to explore whether there are Wāhi Tapu within the Ngāti Pahauwera public foreshore and seabed area requiring protection through a Wāhi Tapu instrument. If Wāhi Tapu are identified, the parties will develop a framework for the instrument that will be the same as provided in previous Foreshore and Seabed Agreements.

Territorial Customary Rights

The parties agree to explore whether Territorial Customary Rights areas may be agreed under section 96 of the Foreshore and Seabed Act 2004.

Next Steps

The Agreement in Principle is subject to the Crown confirming that those groups who also claim overlapping interests have been addressed to the satisfaction of the Crown.

The Crown and Ngāti Pahauwera will now draft a detailed Deed of Settlement, which will be subject to ratification by the Ngāti Pahauwera claimant community. All eligible registered members of Ngāti Pahauwera will have the opportunity to vote on whether to accept the Crown's offer as set out in the Deed of Settlement.

If the Ngāti Pahauwera claimant community ratifies the Deed of Settlement, the Deed will be signed by the Crown and the Trustees of the Ngāti Pahauwera Development Trust, and the settlement will be implemented through legislation. The settlement will be for the benefit of all members of Ngāti Pahauwera.

Questions and Answers

1. What is the difference between historical Treaty settlement negotiations and foreshore and seabed negotiations?
   
   Historical Treaty claims relate to Crown acts or omissions prior to September 1992 that breached the Treaty of Waitangi. The Crown has previously acknowledged that it has breached the Treaty in a number of ways, including purchases of land before 1865, warfare and confiscation of land (known as raupatu), and the operation and impact of the native land laws after 1865.
   
   Therefore Treaty settlement negotiations aim to redress the breaches by the Crown of its Treaty commitments, while recognising that the Crown must meet the needs of all New Zealanders. The Office of Treaty Settlements is responsible for negotiating historical Treaty settlements on behalf of the Crown.
   
   Foreshore and seabed negotiations aim to recognise the long standing customary interests of groups consistent with the Foreshore and Seabed Act 2004. The Foreshore and Seabed Unit in the Ministry of Justice is responsible for representing the Crown in foreshore and seabed negotiations.
   
   
2. Does the settlement create any special rights for Ngāti Pahauwera?
   
   No. The purpose of Treaty settlements is to redress past grievances and build a positive relationship for the future, not to create special rights.
   
   
3. When will the settlement take effect?
   
   A Deed of Settlement based on this agreement will be drafted in the course of the next year. If ratified, and settlement legislation is passed to implement it, the Deed of Settlement will become unconditional and the terms of the settlement will take effect, through the settlement Legislation. This could occur in 2009.
   
   
4. Is there any private land involved?
   
   No. No private properties are included in the settlement, including those with section 27B memorials under the State-Owned Enterprise Act. Once this and any other settlements in the region are completed, the memorials will be lifted from all titles.
   
   
5. Are the public's rights affected?
   
   No. Existing public access will remain over all cultural redress sites and the Mōhaka Crown licensed forest transferred to Ngāti Pahauwera through the settlement.
   
   
6. Are any place names changed?
   
   The Crown and Ngāti Pahauwera will discuss the possibility of assigning Maori names to places of particular significance, and assigning dual Maori and English names where appropriate, for inclusion in the Deed of Settlement. Any name changes will be made in consultation with the New Zealand Geographic Board Nga Pou Taunaha o Aotearoa.
   
   
7. Are any National Parks affected by the Settlement?
   
   No. There are no national parks within the Ngāti Pahauwera Area of Interest.
   
   
8. Does Ngāti Pahauwera have the right to come back and make further claims about Crown actions?
   
   No. If a Deed of Settlement is ratified and passed into law, both parties agree it will be a final and comprehensive settlement of all the historical (events before 21 September 1992) Treaty of Waitangi claims of Ngāti Pahauwera. The settlement legislation, once passed, will prevent Ngāti Pahauwera from re-litigating the claim before the Tribunal or the courts.
   
   The settlement package will still allow Ngāti Pahauwera to pursue claims against the Crown for acts or omissions breaching the Treaty of Waitangi after 21 September 1992. The settlement will also allow Ngāti Pahauwera to continue to identify any customary activities, uses and practices within the foreshore and seabed to be incorporated into their Protected Customary Activities schedule and does not effect any other existing customary rights. The Crown also retains the right to dispute such claims or the existence of such title rights.
   
   
9. Who benefits from the settlement?
   
   All members of Ngāti Pahauwera, wherever they may now live.
   
   

Foreshore and Seabed

10. What is a Protected Customary Activities instrument?
    
    The purpose of a Protected Customary Activities instrument is to recognise the ongoing and enduring mana of Ngāti Pahauwera by ensuring that Ngāti Pahauwera members are able to continue their ongoing customary activities in the exclusive coastal marine area.
    
    The instrument provides Ngāti Pahauwera with legal protection so as to carry out customary activities without the need for resource consent and with the ability to restrict others use of the resources. Ngāti Pahauwera will also have the ability to derive a commercial benefit from the exercise of the protected customary activities.
    
    The Protected Customary Activities instrument is made up of two parts, a framework and a schedule. The framework provides for the legal expression, protection and recognition of Ngāti Pahauwera mana over their customary activities. The framework will be the same as that provided in previous Foreshore and Seabed Agreements.
    
    The Protected Customary Activities schedule sets out the activities, uses and practices that will be protected, and the degree to which scale, extent and frequency will be provided for in the instrument. Following the signing of the Agreement in Principle, the schedule will be drafted and agreed between the Crown and the Trustees, for inclusion in the Deed of Settlement.
    
    
11. What is a Wāhi Tapu instrument?
    
    This instrument provides protections consistent with the wāhi tapu provisions in the Foreshore and Seabed Act. The following protections are provided by the instrument: access by the public to identified wāhi tapu areas will be restricted or prohibited; the local authority is required to take reasonable action necessary to implement the access restrictions or prohibitions; and notice of the wāhi tapu access restrictions or prohibitions will be made in the Gazette and provided to certain parties. Intentional breach of an access restriction is an offence.
    
    Unlike in the Foreshore and Seabed Act, wāhi tapu need not be associated with a customary activity, use or practice, to be protected. Wāhi tapu will be identified in the finalised Deed of Settlement and, in the future, by agreement with the Attorney-General and Minister of Maori Affairs.
    
    
12. What is foreshore and seabed?
    
    The foreshore and seabed area is between the line of mean high water springs and the outer limits of the territorial sea. In practical terms, it is the seabed and the "wet" part of the beach that is covered by the ebb and flow of the tide.
    
    
13. What is the objective of the Foreshore and Seabed Act 2004?
    
    To preserve the public foreshore and seabed in perpetuity as the common heritage of all New Zealand, and to protect the foreshore and seabed, including the association of whānau, hapū and iwi with the foreshore and seabed.
    
    
14. Wasn't the foreshore and seabed issue resolved in 2004?
    
    The Foreshore and Seabed Act was passed in 2004. The Act confirmed Crown ownership of the public foreshore and seabed and gave groups the opportunity to apply for customary rights orders and/or confirmation that they would have had territorial customary rights were it not for the passing of the Foreshore and Seabed Act 2004.
    
    
15. How has the Foreshore and Seabed Act created certainty?
    
    The full legal and beneficial ownership of the public foreshore and seabed was vested in the Crown. This has clarified the legal status of the foreshore and seabed as being held by the Crown as its absolute property.
    
    
16. What happened to the Queen's chain?
    
    The Foreshore and Seabed Act 2004 vests the full legal and beneficial ownership of the public foreshore and seabed in the Crown.
    
    The "Queens Chain" is not a legal device but rather a popular term for a variety of land status types, which provide public access and protect conservation values beside many, but not all, water bodies.
    
    
17. Will foreshore and seabed agreements be applied to fresh water/ rivers/lakes?
    
    The Foreshore and Seabed Act 2004 only deals with the public foreshore and seabed, not fresh water.
    
    
18. What foreshore and seabed agreements have been made so far?
    
    Thus far, two Heads of Agreement and one initialled Deed of Agreement regarding the foreshore and seabed have been made publicly available. The first Heads of Agreement was on Tuesday 5 February 2008 and was with Te Rūnanga o Ngāti Porou on behalf of certain hapū of Ngāti Porou. The second Heads of Agreement was on Thursday 28 February 2008 and was with Te Rūnanga o Te Whānau on behalf of the hapū of Te Whānau a Apanui. Following their Heads of Agreement, Ngāti Porou initialled a Deed of Agreement with the Crown on 7 August 2008.