12. RIGHT OF REFUSAL ON CROWN LANDS

I RIRO WHENUA ATU, ME HOKI WHENUA MAI

12.1 Introduction

12.1.1 Those preparing plans or activities on land owned by a Crown Body being the Crown, a Crown Entity, State Owned Enterprise or company wholly owned by these bodies, and including local authority land derived from the Crown, must consider this Chapter.

12.1.2 On the 22nd of May 1995, Waikato-Tainui signed a Deed of Settlement (‘DoS’) for the settlement of the Crown’s historical breaches of Te Tiriti o Waitangi/the Treaty of Waitangi within the Raupatu or confiscation area of the Waikato-Tainui rohe. The Crown recognised the contribution of the Raupatu land to the development of New Zealand. Waikato-Tainui estimated the value of that contribution as a minimum of $12 billion at the time of settlement. In the apology to Waikato-Tainui, the Crown acknowledged its actions were unjust, wrongful and had a crippling effect on Waikato-Tainui.

12.1.3 In part 4 of the Apology by Crown, the Crown acknowledged that its actions, and the resulting sense of grievance, gave rise to the two Waikato-Tainui principles ‘i riro whenua atu, me hoki whenua mai’ (as land was taken, land should be returned) and ‘ko too moni hei utu moo te hara’ (the money is the acknowledgement by the Crown of their crime). In order to provide redress the Crown agreed to return as much land as is possible that the Crown has in its possession to Waikato-Tainui. Accordingly, in part 6 of its apology, the Crown then sought to begin the process of healing and to enter a new age of co-operation with the Kiingitanga and Waikato-Tainui.

12.1.4 The Crown settlement redress included the return of some lands, payment of monies and a Right of First Refusal (‘RFR’) over the Residual Crown Lands. The RFR applies ‘to any proposed sale of any Residual Crown Land by the Crown or any Crown Body to anyone other than the Crown or a Crown Body’.

12.1.5 The intent of the RFR mechanism is to provide Waikato-Tainui with the real opportunity to reclaim the 1.2 million acres lost as a result of Raupatu and it is upon the principle of ‘i riro whenua atu me hoki whenua mai’ that the RFR mechanism is to be exercised. Section 2 of the Waikato Raupatu Claims Settlement Act confirms that ‘it is the intention of Parliament that the provisions of this Act shall be interpreted in a manner that best furthers the agreements expressed in the deed of settlement.’

12.1.6 The Waikato-Tainui settlement is a cornerstone and first of its kind which leaves the settlement broad and open rather than confined and prescriptive. Since the settlement there has been debate about the intent and meaning behind parts of the DoS and the settlement act. For example, the attempts to interpret a ‘sale’ of Residual Crown Land as solely an exchange for money. However, a ‘sale’ does include an exchange of land for other land.

12.1.7 The settlement also embedded an underlying treaty settlement principle where the resolution of a grievance does not create a further grievance. Consequently rights existing at the time of settlement are to be respected. And conversely, any proposal to subsequently lease or grant new user rights over Residual Crown Land to another entity or for a different use has the potential to create a fresh grievance that must be resolved.

12.1.8 Nevertheless, Waikato-Tainui is obligated to act in the best interests of the country while ensuring that Waikato-Tainui is able to benefit, where possible, from the RFR process.

12.2 Issues

Protecting the integrity of the ‘RFR’

12.2.1 Since 1995 there have been some agencies, local authorities, accredited suppliers and administrating bodies that have knowingly or unknowingly acted in a manner to undermine and circumvent those good faith agreements within the DoS, the RFR process in particular.

A ‘sale’ by another name.

12.2.2 Waikato-Tainui is of the view that land use cannot be divorced from the underlying land ownership. A long-term lease to another entity is a ‘sale’ by any other name. Unfortunately Waikato-Tainui may not be informed of these situations until a resource consent is submitted to a local authority for the land under lease or other arrangement. The argument is often made that, as the underlying ownership is not changing, the RFR requirements are not triggered. However, Waikato-Tainui views this as a breach of the principles of both the DoS and of ‘i riro whenua atu, me hoki whenua mai.’
It also makes a farce of the Crown’s apology.

Crown land administered by or transferred to local authorities

12.2.3 Section 50 of the Public Works Act authorises the transfer of existing public works between the Crown and local authorities. There has been an interpretation that the term ‘notwithstanding anything to the contrary in this Act or any other Act’, in section 50 negates the Crown’s obligations to section 11 of the Waikato Raupatu Claims Settlement Act 1995. Waikato-Tainui do not agree with that interpretation when exercising the provisions of section 50. Where the intention to hold land for a public work has lapsed, section 50 should not be used as a means of transferring land between the Crown and local authorities. The words ‘notwithstanding anything to the contrary’ do not create an overriding entitlement to do so.

12.2.4 Section 50 allows for a change of ownership of the land. Waikato-Tainui are concerned that section 50 transfers to local authorities are considered by the Crown to be outside the scope of the RFR process. Transfers to a local authority under the Public Works Act may be subsequently sold without addressing the Waikato Settlement Legislation RFR principles. Section 50 is to be read with section 11 of the Waikato Raupatu Claims Settlement Act 1995, without undermining the intention of that Act and the underlying principles of the Deed of Settlement’.

12.2.5 Waikato-Tainui are concerned that land that the Crown transfers to a local authority may be considered to be outside the RFR process and that land may be subsequently sold without recourse to the RFR process. Issues arise for Waikato-Tainui where local authorities reap the benefit of receiving Crown land without the same responsibilities under the RFR
regime.

12.2.6 Similarly sections of Acts, such as the Reserves Act s.26(a), which allows the Crown vesting of recreation and local purpose reserves in the name of a local authority, should not be used to circumvent the RFR process.

12.3 Objectives, Polices & Methods

Objective – Protecting the integrity of the RFR

12.3.1 When dealing with RFR matters, Crown agencies, administrating bodies, accredited suppliers and local authorities act in a manner that protects the integrity of the agreements in the 1995 Settlement and the good faith relationship entered into between Waikato-Tainui and the Crown.

Policy – Protecting the integrity of the RFR

12.3.1.1 To ensure the protection of the integrity of the agreements in the 1995 Settlement and the good faith relationship entered into between Waikato-Tainui and the Crown.

Methods

(a) Any decision making or actions being undertaken that may affect the RFR, shall be undertaken in a manner that best furthers the following principles:

i. Land for Land – In order to provide redress, the Crown agreed to return as much land as is possible that the Crown has in its possession to Waikato-Tainui;

ii. Relationship – The Crown undertakes to begin the process of healing and to enter a new age of co-operation with the Kiingitanga and Waikato;

iii. Contribution – That by agreeing to the 1995 Settlement, Waikato-Tainui has foregone a substantial part of redress which is recognised by the Crown as a contribution to the development of New Zealand. Therefore, there is to be no further expense to Waikato-Tainui, or to its settlements and redress.

iv. Compensation – Waikato-Tainui should be compensated for any loss of RFR opportunity.

v. Prior Agreements – The 1995 Settlement honours prior agreements that were in place. However, any proposed new agreements need to be negotiated with Waikato-Tainui.

vi. Free Gift – Waikato-Tainui, as a free gift, gave up its claim to conservation lands. When those conservation lands are no longer required for conservation purposes they are to be returned to Waikato-Tainui.

vii. Protection – All Crown lands held on title in the Waikato Claim area are to be notated as soon as possible as subject to the RFR.

viii. Information Sharing – Full information pertaining to RFR offers and transactions such as valuation reports and methodologies are to be shared with Waikato-Tainui.

Objective – a ‘sale’ by another name

12.3.2 Arrangements for private use of Crown land are tested to see if the Right of First Refusal process is affected.

Policy – a ‘sale’ by another name

12.3.2.1 To ensure that arrangements for private use of Crown land are tested to see if the Right of First Refusal process is affected.

Methods

(a) In the spirit of the 1995 Deed of Settlement, the Crown contacts Waikato-Tainui to discuss any arrangements for the private use of Residual Crown Land to test if the RFR process is affected.

(b) The above method is particularly important prior to entering into any agreement with private person(s) or entity/ies.

(c) Private person(s), entity/ies and/or local authorities undertaking or wanting to undertake resource management, use or activities on Crown owned land contact Waikato-Tainui to test if the RFR process is affected.

(d) Waikato-Tainui will not support applications for resource management, use or activities on Crown owned land until satisified that matters relating to the principles of RFR are settled.

Objective – Crown land administered by or transferred to local authorities

12.3.3 Arrangements for Crown land administered by or transferred to local authorities are tested to see if the Right of First Refusal process is affected.

Policy – Crown land administered by or transferred to local authorities

12.3.4 To ensure that arrangements for Crown land administered by or transferred to local authorities are tested to see if the Right of First Refusal process is affected.

Methods

(a) In the spirit of the 1995 Deed of Settlement, the Crown contacts Waikato-Tainui to discuss any arrangements for the transfer of administration or title of Residual Crown Land to local authorities to test if the RFR process is affected.

(b) The above method is particularly important prior to entering into any agreement with local authorities.

(c) If the RFR process is triggered the Crown first makes the land available to Waikato-Tainui under the RFR process.

(d) Waikato-Tainui may choose to re-acquire the land and then pass the land on to the local authority wanting to acquire the land.

(e) Local authorities undertaking or wanting to undertake resource management, use or activities on Crown owned land must contact Waikato-Tainui to test if the RFR process is triggered.

(f) Waikato-Tainui will not support applications for resource management, use or activities on Crown owned land until satisfied that matters relating to the principles of RFR are settled.

(g) Mention of the RFR mechanism is made in Reserve Management Plans and on land that has an underlying Crown interest.

(h) Those preparing plans or activities on Crown land, including land that Local Authorities have acquired from the Crown, must consider this Chapter.