4th February 2009 SUBMISSION

Transcription

1 Page 1 of 12 4th February 2009 SUBMISSION On The Whakarewarewa and Roto a Tamaheke Vesting Bill To the Clerk; Maori Affairs Select Committee Select Committee Office Parliament Buildings TLED BA WELLINGTON 4 ggg 2999 & RELEASEDN R V/4 1. Introduction MAORI AFFAIRS COMMITTEE (a) This submission is from: Te Maru o Ngati Wahiao the representative body of the Mana Whenua of the Whakarewarewa Valley Lands. The various Ngati Wahiao whanau Taupopoki, Haira, Makiha, Heretaunga, and Mansell wish to address the select committee. (b) We wish to appear before the committee to speak to our submission and request that this submission be heard at Wahiao Tupuna Whare, Te Pakira Marae, Whakarewarewa, ROTORUA. (c) We can be contacted at: 2 Gordon Road Western Heights ROTORUA 3014 Phone (07) MAORI AFFAIRS Mobile: i SERECT COMMU TEE cherry.nikora@gmail.commailto:arace.hoet@.qmail.com ~ ". 2. Overview (a) We do not support this Bill in its current draft because of the reasons listed below. We wish to make the following comments and recommendations. (b) There are major issues for Ngati Wahiao in relation to the Bill: No consent given: the eligible voters did not endorse the Deed to Introduce vesting Legislation at the critical hui meeting on 27 July 2008 at Te Pakira Marae, Whakarewarewa Village. This hui was facilitated by Te Puni Kokiri with TPK chair Tom Moke [Please note Clause 30 in the William Jefferies Legal Opinion] ll. Clause of the Deed to Introduce vesting Legislation required a positive endorsement of "the Joint Trust" proposal in both the postal vote and the hui vote at Te Pakira Marae on the 27 July This condition has not been met. The Crown cannot therefore advance the proposal because an essential condition of consent on the part of affected persons has not been satisfied [Please note clause 3 l & 32 in the William Jefferies Legal Opinion] III. The wrongful coupling together of Tuhourangi and Ngati Wahiao in this Bill,

2 Page 2 of 12 a. The eligibility criteria listed in this Bill does not allow for Ngati Wahaio the mana whenua of Whakarewarewa Valley Lands a separate eligibility process. IV. Standards of Eligibility are unfair and different for the various hapu involved: Ngati Wahiao does not have a inclusive test of eligibility like Ngati Whakaue. Ngati Wahaio is capable of the same eligibility test as Ngati Whakaue as per Schedule 4 definitions and interpretations clause [a] (b], V There is No provision for owners of Whakarewarewa Valley Lands that are not registered Te Pumautanga o Te Arawa beneficiaries to vote as of right in this Bill. An "Eligible Member of 2

3 Page 3 of 12 Tuhourangi Ngati Wahiao means an individual who is a member of Tuhourangi Ngati Wahiao aged 18 years or over on 18 )uly 2008 and registered on the Te Pumautanga Trustees beneficiaries register. " a. Ngati Wahiao as the Customary Land owners of Whakarewarewa Valley have maintained an unbroken occupation since b. At no time did Ngati Wahiao relent Mana Whenua and Rangatiratanga status. Recommendations: e It is recommended that the Bill be returned to the Waitangi Tribunal process in order to determine Mana Whenua status and for amendments to be made appropriately. We further recommend that the William Jefferies legal opinion be taken into consideration. Evidence provided 1. Appendix I: William Jefferies Legal Opinion 2. Appendix ll: Te Puni Kokiri results of Endorsement hui Heoi ano Cherry Tipia Mei Nikora Chairperson Te Maru o Ngati Wahiao 3

4 Page 4 of 12 The Hon WP JEFFRIES Barrister 20 August 2008 Willie Te Aho ROTORUA Ms.Donna Hall Solicitor Woodward Law Offices PO Box LOWER HUTT Fax: (04) Kia Ora Willie and Donna <? Opinion Re: Ngati Wahiao 1. In your urgent instructions to Counsel of 13 August 2008, you sought Counsel's Opinion on two questions: 1.1. First, does the Deed of Agreement [in fact, the Deed to introduce vesting legislation in relation to Whakarewarewa Valley Land and Roto a Tamaheke Resrve, signed by the Crown with the Trustees of Te Pumautanga o Te Arawa Trust] and Deed of [Joint) Trust allow Ngati Wahiao (including Ngati Tukiterangl, Ngati Hinganoa and Ngati Huarere) to separatelylindependently claim and secure beneficial interests in the Whaka rewarewa lands and Roto a Tamaheke as Ngati Wahiao? 1.2. Second, does the Deed [to introduce vesting legislation], the Dead of [Joint) Trust or the structure of the Deed of [Joint] Trust (ie; 50% Ngati Whakaue and 50% Tuhourangl Ngati Wahiao) somehow predetermine the allocation of beneficial interests in the Whakarewarewa lands and Roto a Tamaheke? First Question Existing legal position 2. Counsel discerns from the documentation provided to him the following relevant historical background, 7* Floor, Molesworth House, 101 Molcsworth Street, Wellington, New Zealand Telephone: Fax: P OBox 12538, Wellington 800/700~ ugpaa8 ~o uab a~insuoo ~9~L B6~ ~ ~9 XVJ L~:gL 800~ BO/O~ ~9~T 6G~ ~ ~9 0~:~I 800~,~0/0~ 4

5 Page 5 of Ngati Wahiao was the original hapu in occupation of the entire Whakarewarewa Thermal Springs Valley prior to European settlement in the mid nineteenth century. 4. Following the eruption of Tarawera in 1876, Tuhourangi were invited by Ngati Wahiao to occupy parts of the Valley. Through the instrumenta.lity of Native Land Court decisions in 1883, 1888 and 1893, the entire subject area became vested in the Crown. 5. Ngati Wahiao maintained their fee simple title to the two marked adjoining lands through to the present time. 6. There are three components to the subject area, being the southern Arikikapa kapa Resente, the Whakarewarewa Thermal Springs Reserve and the Roto a Tamaheke Reserve, but Counsel has not been advised of the precise delineation of these respective interests and such information is not essential for the purposes of this Opinion. Counsel attaches a sketch map of the Valley demonstrating the area the subject of this Opinion of which, at present, the Crown holds the fee simple estate. 7. In the 1960's Parliament legislated for the establishment of the Maori Arts and Crafts Institute on part of the land adjoining the subject area with rights of entry to the subject area, 8. In summary, the existing status quo involves Ngati Wahiao as the full owner of the two parcels of adjoining land which include the famous bridge and living village of the original entrance to the thermal valley. Two other twi, Ngati Whakaue and Tuhourangi, claim customary rights to parcels of land in the subject area, as does Ngati Wahiao. The New Zealand Maori Arts and Crafts institute leases part of the subject area. The Crown presently owns the subject area and is willing, subject to terms, to vest the fee simple estate in the subject area in the Trustees of the Te Pumautanga o Te Arawa Trust (TPT) on behalf of the Affiliate Te Arawa lwi/hapu. In tum, this Trust will vest in the Joint Trust (comprised of representative trustees of Ngati Whakaue and Tuhourangi Ngati Wahiao) part of the subject land. The Joint Trust will then allocate part of the subject land to defined beneficiaries/claimants by way of a "Beneficial Entitlement Determination Process". The balance of the subject land (described specifically in the Deed to introduce vesting legislation and draft Bill) Will be leased by the TPT to the New Zealand Maorl Arts and Craft Institute on terms set out in Part 7 of Schedule 2 of the Deed to introduce vesting legislation, see also Cl.108 of the draft Bill. 6o0/6000 uapa~ ~o uag e~etnsuoo ~gpt 88~ ~ ~9 XV3 LZ:gL eo0~ 80/0~ ~9~T 66~ ~ ~9 O~:~T 800~rB0/0~ 5

6 Page 6 of 12 The Comprehensive Settlement 9. Since April 2004 the Crown has been engaged in negotiation and settlement of Treaty claims in the central North Island involving some 500,000 hectares of land with an indigenous population of 24,000. A Deed of Settlement was initialed on 8 August 2006 providing a ratification process for the Deed of Settlement which included the establishment of a governance entity, the Te Pumautanga o Te Arawa Trust. This Trust, established in December 2006, is a private trust of 16 trustees mandated to receive and administer the settlement redress. 10, The overall settlement provides an apology and a form of compensation for the losses suffered by the tangata whenua of the region as a result of negative colonising endeavours of the British partner through successive governments. ii. The draft Bill incorporating the basic elements of the comprehensive settlement includes provision for the vesting in the TPT trustees of 24 cultural redress properties of significance to the Affiliate. Included in the list are: Roto a Tamaheke Reserve Whakarewarewa Thermal Springs Reserve. Important Consideration 12. As is made explicit in the Deed to introduce vesting legislation~ Cabinet itself recognised that ownership issues reiating to the Whakarewarewa Thermal Valley lie outside the Treaty settlement process: 1.5 and 1.7, Deed. 13. The essence of the settlement process loss caused by the negative colonising endeavours Treaty. As far as the Whakarawarewa is the Crown compensating claimants for of the Crown partner to the Thermal Valley is concerned, the Crown has yielded to submissions made by Te Arawa claimants to include in the overall settlement process to be sealed with its own Act of Parliament "Affiliate Te Arawa Iwi and Hapu Claims Settlement Act" [draft Bill] ownership issues relating Wakarewarewa. 14. The general Wkakarewarewa Thermal Valley matter does not involve claimants lodging claims against the Crown in the general Treaty legal/political jurisdiction as developed since the 1987 land mark decision of the Court of Appeal in the Meori Council case, 15, Rather, the Deed to introduce vesting legislation signed by representatives of Ngati Whakaue and Tuhourangi Ngati Wahiao with the TPT on behalf of the Affiliate Te Arawa Iwl/Hapu and the Crown (through the Minister of Maori Affairs) is a discrete and separate matter added on to the comprehensive settlement. The to s00/~00~ uapo~s #o uag a~etnsuo3 PSYL 88~ ~ 98 XVJ L~:gL eo0~ 80/0~ ~T GG~ P ~9 TP:~T 800~J80/~

7 Page 7 of 12 Crown, on conditions, will facilitate resolution of ownership claims among the named potential beneficiaries, 16.This fact is significant. Whilst the ratification process for the comprehensive settlement provides for registration of adult members of the Affiliate empowered to ratify the comprehensive settlement, the ratification process for the relatively narrow group of persons entitled to participate in endorsing the discrete and separate Whakarewarewa matter added on to the comprehensive settlement is not so straight forward, 17.The Deed to introduce vesting legislation for Whakarewarewa does provide for a form of ratification or "ad referendum" of the various potential beneficiaries/ciaimants using the Beneficial Entitlement Determination Process. 18. The problem is the ratification process or in the words of the Deed to introduce vesting legislation, satisfying the Crown as to: ".the endorsement of this Deed [to introduce vesting /egislation] by Ngati Whakaue and Tuhourangi Ngati Wahiao." 19. Part of the Deed to introduce vesting legislation governs "Endorsement of the Deed and Joint Trust and Appointment of Agent." 20. The critical question is what are the standards of eligibility to express consent by affected persons related to the Whakerewarewa area in the endorsement process set out in the Deed to introduce vesting legislation and provided for in the proposed Act of Parliament? 21. This particular ratification process, or "ad referendum", is discrete and separate from the large part of the comprehensive settlement process. In short, it is a question of evidence of relevant consent of Ngati Whakaue, Tuhourangi and Ngati Wahiao. 22. The Deed to introduce vesting legislation Qualifies those eligible to participate in the endorsement process., 23.In Schedule 4: Definitions and interpretations, an "Eligible Member of Ngati Whakaue means an individual who is: (a) Aged 18 years or over on the date that this Deed and the Trust Deed are put to Ngati Whakaue for endorsement under clause 4. 1; and (b) Descended from one or more of the listed owners by nam,e and grouped under one of the three hapu of Ngati Hurungaterangi, Ngati Taeotu me Ngati Te Kahu o Ngati Whakaue collectively as set out in the decision of the Native Land Court dated 24 October 1693 at 28 ROT in respect of Whekarewarewa No.3 block which originally comprised the Roto a Tamaheke Reserve and the Whakarewarewa Thermal Springs Reserve; or 800/900 uapa~s #o ua eseinsuo3 ~8#l B8# # ~9 XVJ 8~:gl 800~ BO/OS t~9#t 66~ # ~9 T#:~T 80e~/80/1~ 7

8 Page 8 of 12 (c) Descended from from one or more of the 295 listed owners by name and by hapu as set out in the decision of the Native Land Court in respect of the Pukeroa Oruawhata Block, of which the Arikikapakapa and dated 27 April 1882 at ROT [ 1". Block forms part, 24. Clause expressly provides for such eligible persons belonging to Ngati Whakaue to express endorsement "in a show of hands of the Eligible Members of Ngeti Whakaue at a huiheldfor this purpose on 27 July 2008.' 25. Provided the Crown is satisfied with documentary evidence demonstrating the creation of a roll of eligible persons in accordance with the definition of eligible member of Ngati Whakaue in Schedule 4 of the Deed to introduce vesting legislation and sights credible documentary evidence of a show of hands by persons demonstrating eligibility at the hui on 27 July 2008 supporting endorsement, Clause 4.1 can be met. 26. Tuming to Tuhourangi Ngati Wahiao, the eligibility standard is different, as la the method of expressing endorsement, from the procedure stipulated by the Deed to introduce vesting legislation for Ngati Whakaue. There is no provision for owners Whakarewarewa Block 2 or the famous living village to vote as of right. An "Eligible Member of Tuhourangi Ngati Wahīao means an individual who is a member of Tuhourangi Ngati Wahiao aged 18 years or over on 18 July 2006 and registered on the Te Pumautanga Trustees' beneficiaries register." 27. The TPT must have on the existing beneficiaries' register individuals who are demonstrably members of the Tuhourangi Ngati Wahiao, a class defined in the Affiliate Te Arawa Iwi/Hapu Deed of Settlement, a document CounseL not provided to 28. Clause expressly provides for such eligible persons belonging to.._.j Tuhourangi Ngati Wahlao [defined in the Deed of Settlement which Counsel has not sighted] to express endorsement. "4.2 Tuourangi Ngati Wahiao confirms thet: this Deed was endorsed by Tuhourangi Ngati Wahiao by virtue of a majority of [%] of the votes cast: (a) in a postal ballot of Eligible Members of Tuhourangi Ngati Wahiao; and (b) in a ballot of the Eligible members of Tuhourangi Ngat/ Wahiao who did not vote in the postal ballot in clause 4.2.1(a). at a hui held for thatpurpose on 27 July 2008; and 800/800 uapa~; #o ueg a~insuoo ~SPL 8BP ~ P8 XW 8~:~ 800~ 80/0~

9 Page 9 of Tuhourengi Ngat/ Wahiao has endorsed the Joint Trust (once established in accordance with clause 4. 5) to hold the Whaka rewarewa Valley Land and the Roto a Tamaheke Reserve until the Whakarewarewa Valley Land and the Roto a Tamaheke Reserve are vested in iwi or hapu in accordance with the Beneficial Entitlement Determinatīon Procedure set out in the trust Deed, by virtue of a majority of [%] of the votes cast: (a) in a postal ballot of Eligible Members of Tuhourangi Ngati Wahiao; and (b) in a postal ballot of Eligible Members of Tuhourangi Ngati Wahiao who did not vote in the postal barlot in clause 4.2.2(a). at a hui held for that purpose on 27 July 2008." 29,The concern is that owners in Whakarewarewa Block 2 and in the famous living village who are not enrolled members of TPT are excluded from the process of granting endorsement. This must be a cause of concern for the Crown, because there la a different and more inclusive test of eligibility for Ngati Whakaue. The Crown must satisfy itself that the three relevant parties, Ngati Whakaue, Tuhourangi and Ngati Wahiao, have truly given their consent. The Crown would want to see clear evidence of this, for example that distinct rolls of eligible members registered for each of Ngati Whakaue, Tuhourangi and Ngati Wahiao have been established and have had the opportunity to participate in the endorsement process. 30.Counsel has sighted the minutes of the hui meeting on 27 July 2008 at Te Pakira Marae, the letter of notice dated 16 July 2008 from TPT, presumably addressed to those defined persons eligible to participate by way of one vote only, the "Voting Form" and a letter from Te Puni Kokiri Hul Chair Tom Moke dated 4 August 2008 advising the results of this aspect of the endorsement process. The eligible voters did not endorse the Deed to introduce vesting legislation at the critical hui meeting on 27 July 2008 at Te Pakira Marae in the living village at Wkakarewarewa. 31. Clause (b) of the Deed to introduce vesting legislation required a positive endorsement of "the Joint Trust" proposal in both the postal vote and the hui at Te Pakira Mares on 27 July This condition has not been met. The Crown cannot therefore advance the proposal because an essential condition of consent on the part of affected persons has not been satisfied. 800/L00 uapaas #o uab ase~nsu00 ~9~i 88~ ~ 99 V3 8~:GL 800~ B0i0a

10 Page 10 of In summary, the Crown will require unambiguous evidence of compliance with the negotiated processes designed to demonstrate the knowledge and consent of the eligible people who will become the ultimate beneficiaries of the trust to be created by legislation. W'ithout such documented evidence, the Crown will not advance this element of the overall comprehensive settlement process involving Te Arawa. Answer to the first Question 33. You ask whether the relevant documents allow Ngati Wahiao (including Ngat Tukiterang!, Ngati Hinganoa. and Ngati Huarere) to separately/independently claim and secure beneficial interests in the Whakarewarewa lands and Rot o a Tamaheke as Ngati Wahiao? The answer is yes. Clause 4.4 includes Ngati Tukiterangi, Ngati Huarere and Ngati Hingaroa with Ngati Wahiao. In addition, Clause 4.4 extends the class of potential beneficiaries/claimants to Ngati Hurungaterangi, Ngati Taeotu and Ngati Te Kahu o Ngati Whakaue and the Koromatua hapu of Ngati Whakaue, including the beneficial owners of the Pukeroa Oruawhata block. 34. In summary, yes, the identified groups are entitled to participate in the "Beneficial Entitlement Process" if the proposal is advanced by the Crown once the ratification/ad referendum/consent legislation have been met. processes of the Deed to introduce vesting Answer to the Second Question 35. There cannot be and there is not predetermination of beneficial interests by virtue of the appointment of the two named parties as trustees in the Joint Trust Deed, Such a proposition of pre determination is inconsistent with the trustees' fiduciary duties to the beneficiaries. Furthermore, any such predetermination would contradict the Beneficial Entitlement Determination Process set out in the Trust Deed. The future 36. Any reconsideration of the endorsement element of the overall settlement will not stop the Te Arawa affiliate comprehensive settlement process. The relevant sectīons of the Te Arawa affiliate Bill can be deleted and, once the compliance processes with Ngati Wahiao have been met, a supplementary order paper reflecting the realities of consent (if achieved) can be added to the Bill while in the Select Committee or other stage of the Bill. 800/B 00~ uepe~$ #o UeB a~tnsuo3 Y9~L BB~ ~ Y9 XV3 6~:9~ eo0~ 8010~ 10

11 Page 11 of A reconsideration should occur, on the basis of a separate registered roll for each of Ngati Whakaue, Tuhourangi and Ngati Wahiao of persons eligible to consent or otherwise in the ratification, or "ad referendum" aspects of the Deed to introduce vesting legislation. A new vote will then provide clear and conclusive evidence or otherwise. Alternatively, the Crown could obtain consent by agreement with those persons who voted against endorsement at the hui at Te Pakira Marae in the living village on 27 July Either option will provide the Crown with proof of consent, so it can confidently seek to legislate the Whakarewarewa proposal. Yours sincerely W P Jeffries Barrister 800/600~ uapa~s #o q~9 a~einsuo3 Pg~L 66P ~ P8 XV3 6~:~L 800~ 80/0~ 11

12 Page 12 of 12 Appendix II TE PUNI KOKIRI Votag RosutN: Te Pomautanga o Te Arawa (Tātiourangt Ngātt Wahtao affiliatsa) Postal vote Returred to sender Votes recai ved Agree Diangme Bunday 27/07i2008 Total Cowet 5 3~ e TGhourangiNgad Wahl4=o Vote at mi Aaree sunday 27/ Total Cormt t 12