An Act to provide for the observance, and confirmation, of the principles of the Treaty of Waitangi by establishing a Tribunal to make recommendations on claims relating to the practical application of the Treaty and to determine whether certain matters are inconsistent with the principles of the Treaty
Preamble
Whereas on 6 February 1840 a Treaty was entered into at Waitangi between Her late Majesty Queen Victoria and the Maori people of New Zealand:
And whereas the text of the Treaty in the English language differs from the text of the Treaty in the Maori language:
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And whereas it is desirable that a Tribunal be established to make recommendations on claims relating to the practical application of the principles of the Treaty and, for that purpose, to determine its meaning and effect and whether certain matters are inconsistent with those principles.
1. Short Title
This Act may be cited as the Treaty of Waitangi Act 1975.
2. Interpretation
In this Act, unless the context otherwise requires,—
historical Treaty claim means a claim made under section 6(1) that arises from or relates to an enactment referred to in section 6(1)(a) or (b) enacted, or to a policy or practice adopted or an act done or omitted by or on behalf of the Crown, before 21 September 1992 Maori means a person of the Maori race of New Zealand; and includes any descendant of such a person
private land means any land, or interest in land, held by a person other than—
the Crown; or
a Crown entity within the meaning of the Public Finance Act 1989
submit, in relation to a historical Treaty claim, means submitted in accordance with a practice note made by the Tribunal under clause 5(10) of Schedule 2
Treaty means the Treaty of Waitangi as set out in English and in Maori in Schedule 1
Tribunal means the Waitangi Tribunal established under this Act.
3. Act to bind Crown
This Act shall bind the Crown.
4. Waitangi Tribunal
There is hereby established a tribunal to be known as the Waitangi Tribunal.
The Tribunal shall consist of—
a Judge or retired Judge of the High Court or the Chief Judge of the Maori Land Court; and the Judge is both a member of the Tribunal and its Chairperson, and is appointed by the Governor-General on the recommendation of the Minister of Maori Affairs made after consultation with the Minister of Justice:
not less than 2 other members and not more than 20 other members to be appointed by the Governor-General on the recommendation of the Minister of Maori Affairs made after consultation with the Minister of Justice.
In considering the suitability of persons for appointment to the Tribunal, the Minister of Maori Affairs—
shall have regard to the partnership between the 2 parties to the Treaty; and
shall have regard not only to a person’s personal attributes but also to a person’s knowledge of and experience in the different aspects of matters likely to come before the Tribunal.
The Chairperson of the Tribunal appointed under subsection (2)(a) holds office for such term not exceeding 5 years as the Governor-General specifies in the instrument appointing that Chairperson, and the Chairperson may from time to time be reappointed.
Where the Chairperson of the Tribunal is the Chief Judge of the Maori Land Court and he or she ceases to hold office as Chief Judge during the term of his or her appointment as Chairperson, that person’s appointment as Chairperson also ceases at that time.
Every member of the Tribunal appointed under subsection (2)(b) shall hold office for such term as the Governor-General shall specify in his or her appointment, being a term not exceeding 3 years, but may from time to time be reappointed.
No person shall be deemed to be employed in the service of Her Majesty for the purposes of the State Sector Act 1988 or the Government Superannuation Fund Act 1956 by reason of his being a member of the Tribunal.
The Ministry of Justice shall furnish such secretarial, recording, and other services as may be necessary to enable the Tribunal to exercise its functions and powers.
The provisions of Schedule 2 shall have effect in relation to the Tribunal and its proceedings.
4A. Deputy Chairperson
The Chairperson of the Tribunal may from time to time appoint a Judge (including the Chief Judge) of the Maori Land Court as the deputy of the Chairperson of the Tribunal.
In any case in which the Chairperson of the Tribunal becomes incapable of acting by reason of illness, absence, or other sufficient cause or during any vacancy in the office of Chairperson, the deputy of the Chairperson of the Tribunal shall have and may exercise all the powers, functions, and duties of the Chairperson.
No acts done by a person holding office as the deputy of the Chairperson of the Tribunal in that person’s capacity as such deputy, and no act done by the Tribunal while a deputy of the Chairperson of the Tribunal is acting as such deputy, shall in any proceedings be questioned on the ground that the occasion for the deputy’s so acting had not arisen or had ceased.
4B. Appointment of Judge not to affect tenure, etc
The appointment of a Judge as Chairperson, the deputy of the Chairperson, or as a member of the Tribunal, or service by that Judge as Chairperson, the deputy of the Chairperson, or a member of the Tribunal, does not affect the Judge’s tenure of the judicial office or the Judge’s rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as a Judge (including those in relation to superannuation) and, for all purposes, the Judge’s service as a member is service as a Judge.
5. Functions of Tribunal
The functions of the Tribunal shall be—
to inquire into and make recommendations upon, in accordance with this Act, any claim submitted to the Tribunal under section 6:
to make recommendations, in accordance with section 8D, that land or interests in land be no longer subject to resumption under section 27B of the State-Owned Enterprises Act 1986 or section 212 of the Education Act 1989:
to make any recommendation or determination that the Tribunal is required or empowered to make under Schedule 1 of the Crown Forest Assets Act 1989:
to make recommendations in accordance with section 8HE that land, or any part of any land, that is subject to a Crown forestry licence under the Crown Forest Assets Act 1989, be no longer liable to be returned to Maori ownership under section 36 of that Act:
to make recommendations in accordance with section 8D (as applied by section 8HJ) that land or any interest in land that, immediately before being vested in a Crown transferee company pursuant to section 6 of the New Zealand Railways Corporation Restructuring Act 1990, was land owned by the Crown or an interest owned by the Crown in land, be no longer subject to resumption under section 39 of that Act:
to examine and report on, in accordance with section 8, any proposed legislation referred to the Tribunal under that section.
In exercising any of its functions under this section the Tribunal shall have regard to the 2 texts of the Treaty set out in Schedule 1 and, for the purposes of this Act, shall have exclusive authority to determine the meaning and effect of the Treaty as embodied in the 2 texts and to decide issues raised by the differences between them.
6. Jurisdiction of Tribunal to consider claims
Where any Maori claims that he or she, or any group of Maoris of which he or she is a member, is or is likely to be prejudicially affected—
by any ordinance of the General Legislative Council of New Zealand, or any ordinance of the Provincial Legislative Council of New Munster, or any provincial ordinance, or any Act (whether or not still in force), passed at any time on or after 6 February 1840; or
by any regulations, order, proclamation, notice, or other statutory instrument made, issued, or given at any time on or after 6 February 1840 under any ordinance or Act referred to in paragraph (a); or
by any policy or practice (whether or not still in force) adopted by or on behalf of the Crown, or by any policy or practice proposed to be adopted by or on behalf of the Crown; or
by any act done or omitted at any time on or after 6 February 1840, or proposed to be done or omitted, by or on behalf of the Crown,—
and that the ordinance or Act, or the regulations, order, proclamation, notice, or other statutory instrument, or the policy or practice, or the act or omission, was or is inconsistent with the principles of the Treaty, he or she may submit that claim to the Tribunal under this section.
The Tribunal must inquire into every claim submitted to it under subsection (1), unless—
the claim is submitted contrary to section 6AA(1); or
section 7 applies.
If the Tribunal finds that any claim submitted to it under this section is well-founded it may, if it thinks fit having regard to all the circumstances of the case, recommend to the Crown that action be taken to compensate for or remove the prejudice or to prevent other persons from being similarly affected in the future.
A recommendation under subsection (3) may be in general terms or may indicate in specific terms the action which, in the opinion of the Tribunal, the Crown should take.
Subject to sections 8A to 8I, the Tribunal shall not recommend under subsection (3),—
the return to Maori ownership of any private land; or
the acquisition by the Crown of any private land.
The Tribunal shall cause a sealed copy of its findings and recommendation (if any) with regard to any claim to be served on—
the claimant:
the Minister of Maori Affairs and such other Ministers of the Crown as in the opinion of the Tribunal have an interest in the claim:
such other persons as the Tribunal thinks fit.
Nothing in this section shall confer any jurisdiction on the Tribunal in respect of any Bill that has been introduced into the House of Representatives unless the Bill has been referred to the Tribunal pursuant to section 8.
Notwithstanding anything in this Act or any other Act or rule of law, on and from the commencement of this subsection the Tribunal shall not have jurisdiction to inquire or further inquire into, or to make any finding or recommendation in respect of,—
commercial fishing or commercial fisheries (within the meaning of the Fisheries Act 1983); or
the Deed of Settlement between the Crown and Maori dated 23 September 1992; or
any enactment, to the extent that it relates to such commercial fishing or commercial fisheries.
Despite anything in this Act or in any other Act or rule of law,—
the jurisdiction of the Tribunal is subject to the enactments listed in Schedule 3; and
without limiting paragraph (a), the Tribunal does not have jurisdiction, in relation to licensed land (within the meaning of the Crown Forest Assets Act 1989) in the takiwā of Ngāi Tahu Whānui, to make a recommendation for compensation or for the return of the land to Māori ownership.
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6AA. Limitation of Tribunal’s jurisdiction in relation to historical Treaty claims
Despite section 6(1), after 1 September 2008 no Maori may—
submit a claim to the Tribunal that is, or includes, a historical Treaty claim; or
amend a claim already submitted to the Tribunal that is not, or does not include, a historical Treaty claim by including a historical Treaty claim.
However, subsection (1) does not prevent a historical Treaty claim submitted to the Tribunal on or before 1 September 2008 from being amended in any way after 1 September 2008.
The Tribunal does not have jurisdiction (including, but not limited to, the jurisdiction to inquire or further inquire into, or to make any finding or recommendation) in respect of a historical Treaty claim that is—
submitted contrary to subsection (1)(a); or
included in a claim contrary to subsection (1)(b).
To avoid doubt, if a claim is submitted to the Tribunal contrary to subsection (1), it must be treated for all purposes (including, for example, for the purposes of sections 8A(2), 8C(1), 8HB(1), 8HD(1), and 8HJ) as not having been submitted.
6A. Power of Tribunal to state case for Maori Appellate Court or Maori Land Court
Where a question of fact,—
concerning Maori custom or usage; and
relating to the rights of ownership by Maori of any particular land or fisheries according to customary law principles of “take” and occupation or use; and
calling for the determination, to the extent practicable, of Maori tribal boundaries, whether of land or fisheries,—
arises in proceedings before the Tribunal, the Tribunal may refer that question to the Maori Appellate Court for decision.
Where a question relating to the Maori or group of Maori to whom any land or any part of any land or any interest in land is to be returned pursuant to a recommendation under section 8A(2)(a) arises in proceedings before the Tribunal, the Tribunal may refer that question to the Maori Land Court for decision.
Any question referred to the Maori Appellate Court under subsection (1) or to the Maori Land Court under subsection (2) shall be in the form of a special case to be drawn up by the parties (if any) to the proceedings and, if the parties do not agree, or if there are no parties, to be settled by the Tribunal.
The Maori Appellate Court shall have jurisdiction—
to decide any question referred to it under subsection (1); and
to hear and determine any appeal against any decision of the Maori Land Court on any question referred to that court under subsection (2).
The Maori Land Court shall have jurisdiction to decide any question referred to it under subsection (2).
The decision of the Maori Appellate Court on any question referred to it under subsection (1) and on any appeal determined by it pursuant to subsection (4)(b) shall be binding on the Tribunal.
Subject to subsection (8), the decision of the Maori Land Court on any question referred to it under subsection (2) shall be binding on the Tribunal.
An appeal may be brought under section 58 of Te Ture Whenua Maori Act 1993 against any decision of the Maori Land Court on a question referred to it under subsection (2); and section 58 of Te Ture Whenua Maori Act 1993 shall apply in relation to any such appeal as if that decision were a final order of the Maori Land Court.
The Maori Appellate Court shall inform the Waitangi Tribunal of the decision of the Maori Appellate Court on—
any question referred to it under subsection (1); and
any appeal brought against any decision made by the Maori Land Court on any question referred to it under subsection (2).
The Maori Land Court shall inform the Waitangi Tribunal of—
the decision of the Maori Land Court on any question referred to it under subsection (2); and
the bringing of any appeal under subsection (8).
7. Tribunal may refuse to inquire into claim
The Tribunal may in its discretion decide not to inquire into, or, as the case may require, not to inquire further into, any claim made under section 6 if in the opinion of the Tribunal—
the subject matter of the claim is trivial; or
the claim is frivolous or vexatious or is not made in good faith; or
there is in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives or to make a complaint to the Ombudsman, which it would be reasonable for the person alleged to be aggrieved to exercise.
The Tribunal may, from time to time, for sufficient reason, defer, for such period or periods as it thinks fit, its inquiry into any claim made under section 6.
In any case where the Tribunal decides not to inquire into or further inquire into a claim or to defer its inquiry into any claim, it shall cause the claimant to be informed of that decision, and shall state its reasons therefor.
8. Jurisdiction of Tribunal to consider proposed legislation
The Tribunal shall examine any proposed legislation referred to it under subsection (2) and shall report whether, in its opinion, the provisions of the proposed legislation or any of them are contrary to the principles of the Treaty.
Proposed legislation may be referred to the Tribunal—
in the case of a Bill before the House of Representatives, by resolution of the House:
in the case of any proposed regulations or Order in Council, by any Minister of the Crown.
The Tribunal’s report shall be given—
in the case of a Bill, to the Speaker of the House:
in every other case, to the person or body who referred the proposed regulations or Order in Council to the Tribunal.
A copy of every report made by the Tribunal under this section shall be given by the Tribunal to the Minister of Maori Affairs and shall be laid before the House of Representatives as soon as practicable.
8A. Recommendations in respect of land transferred to or vested in State enterprise
This section applies in relation to—
any land or interest in land transferred to a State enterprise under section 23 of the State-Owned Enterprises Act 1986 or vested in a State enterprise by a notice in the Gazette under section 24 of that Act or by an Order in Council made under section 28 of that Act, whether or not the land or interest in land is still vested in a State enterprise:
any land or interest in land transferred to an institution within the meaning of section 159 of the Education Act 1989 under section 207 of that Act or vested in such an institution by an Order in Council made under section 215 of that Act, whether or not the land or interest in land is still vested in that institution.
Subject to section 8B, where a claim submitted to the Tribunal under section 6 relates in whole or in part to land or an interest in land to which this section applies, the Tribunal may—
if it finds—
that the claim is well-founded; and
that the action to be taken under section 6(3) to compensate for or remove the prejudice caused by the ordinance or Act, or the regulations, order, proclamation, notice, or other statutory instrument, or the policy or practice, or the act or omission that was inconsistent with the principles of the Treaty, should include the return to Maori ownership of the whole or part of that land or of that interest in land,—
include in its recommendation under section 6(3), a recommendation that that land or that part of that land or that interest in land be returned to Maori ownership (which recommendation shall be on such terms and conditions as the Tribunal considers appropriate and shall identify the Maori or group of Maori to whom that land or that part of that land or that interest in land is to be returned); or
if it finds—
that the claim is well-founded; but
that a recommendation for return to Maori ownership is not required, in respect of that land or any part of that land or that interest in land, by paragraph (a)(ii),—
recommend to the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 that that land or that part of that land or that interest in land be no longer subject to resumption under section 27B of the State-Owned Enterprises Act 1986 or section 212 of the Education Act 1989; or
if it finds that the claim is not well-founded, recommend to the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 that that land or that part of that land or that interest in land be no longer subject to resumption under section 27B of the State-Owned Enterprises Act 1986 or section 212 of the Education Act 1989.
In deciding whether to recommend the return to Maori ownership of any land or interest in land to which this section applies, the Tribunal shall not have regard to any changes that, since immediately before the date of the transfer of the land or interest in land from the Crown to a State enterprise, or an institution within the meaning of section 159 of the Education Act 1989, have taken place in—
the condition of the land or of the land in which the interest exists and any improvements to it; or
its ownership or possession or any other interests in it.
Nothing in subsection (2) prevents the Tribunal making in respect of any claim that relates in whole or in part to any land or interest in land to which this section applies any other recommendation under subsection (3) or subsection (4) of section 6.
Notwithstanding section 24(4) of the State-Owned Enterprises Act 1986, on the making of a recommendation for the return of any land or interest in land to Maori ownership under subsection (2), sections 40 and 41 of the Public Works Act 1981 shall cease to apply in relation to that land or that interest in land.
Where any interest in land exists in respect of any land to which this section applies being—
an interest in land which was in existence immediately before the land was transferred to the State enterprise under section 23 of the State-Owned Enterprises Act 1986 or vested in the State enterprise by a notice in the Gazette under section 24 of that Act or by an Order in Council made under section 28 of that Act but which was not so transferred to or vested in the State enterprise; or
an interest in land which was in existence immediately before the land was transferred to an institution within the meaning of section 159 of the Education Act 1989 under section 207 of that Act or vested in such an institution by an Order in Council made under section 215 of that Act but which was not so transferred to or vested in the institution,—
as the case may be, no recommendation under this section shall relate to that interest in land.
8B. Interim recommendations in respect of land transferred to or vested in State enterprise
Where the recommendations made by the Tribunal include a recommendation made under section 8A(2)(a) or section 8A(2)(b), all of those recommendations shall be in the first instance interim recommendations.
The Tribunal shall cause copies of its interim findings and interim recommendations to be served on the parties to the inquiry.
Subject to subsection (5), the Tribunal shall not, without the written consent of the parties, confirm any interim recommendations that include a recommendation made under section 8A(2)(a) or section 8A(2)(b), until at least 90 days after the date of the making of the interim recommendations.
Where any party to the inquiry is served with a copy of any interim recommendations that include a recommendation made under section 8A(2)(a) or section 8A(2)(b), that party—
may, within 90 days after the date of the making of the interim recommendations, offer to enter into negotiations with the other party for the settlement of the claim; and
shall, within 90 days after the date of the making of the interim recommendations, inform the Tribunal—
whether the party accepts or has implemented the interim recommendations; and
if the party has made an offer under paragraph (a), the result of that offer.
If, before the confirmation of any interim recommendations that include a recommendation made under section 8A(2)(a) or section 8A(2)(b), the claimant and the Minister of Maori Affairs settle the claim, the Tribunal shall, as the case may require, cancel or modify the interim recommendations and may make, if necessary, a final recommendation under section 8A(2)(a) or section 8A(2)(b).
If subsection (5) does not apply in relation to any interim recommendations that include a recommendation made under section 8A(2)(a) or section 8A(2)(b), upon the expiration of the 90th day after the date of the making of the interim recommendations, the interim recommendations shall take effect as final recommendations.
Notwithstanding anything in subsections (1) to (6), if any interim recommendations contain a clerical mistake or an error arising from any accidental slip or omission, whether the mistake, error, slip, or omission was made by an officer of the Tribunal or not, or if any interim recommendations are so drawn up as not to express what was actually decided and intended, the interim recommendations may be corrected by the Tribunal, either of its own motion or on the application of any party.
Where the interim recommendations are corrected under subsection (7),—
the Tribunal shall cause copies of the corrected interim recommendations to be served on the parties to the inquiry as soon as practicable; and
the period that applies for the purposes of subsections (3), (4), and (6) shall expire on the 90th day after the date of the making of the corrected interim recommendations.
8C. Right to be heard on question in relation to land transferred to or vested in State enterprise
Where, in the course of any inquiry into a claim submitted to the Tribunal under section 6, any question arises in relation to any land or interest in land to which section 8A applies, the only persons entitled to appear and be heard on that question shall be—
the claimant:
the Minister of Maori Affairs:
any other Minister of the Crown who notifies the Tribunal in writing that he or she wishes to appear and be heard:
any Maori who satisfies the Tribunal that he or she, or any group of Maori of which he or she is a member, has an interest in the inquiry apart from any interest in common with the public.
Notwithstanding anything in clause 7 of Schedule 2 or in section 4A of the Commissions of Inquiry Act 1908 (as applied by clause 8 of Schedule 2), no person other than a person designated in paragraph (a) or paragraph (b) or paragraph (c) or paragraph (d) of subsection (1) shall be entitled to appear and be heard on a question to which subsection (1) applies.
Nothing in subsection (2) affects the right of any person designated in paragraph (a) or paragraph (b) or paragraph (c) or paragraph (d) of subsection (1) to appear, with the leave of the Tribunal, by—
a barrister or solicitor of the High Court; or
any other agent or representative authorised in writing.
8D. Special power of Tribunal to recommend that land be no longer liable to resumption
The Tribunal may, in its discretion, on the application of a State enterprise or other owner of any land or interest in land to which section 8A applies, recommend to the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 that the whole or part of that land or that that interest in land be no longer subject to resumption under section 27B of the State-Owned Enterprises Act 1986 or section 212 of the Education Act 1989 if—
public notice has been given, in accordance with section 8G, of the making of an application under this section in respect of that land or interest in land; and
either—
no claim in relation to that land or interest in land has been submitted to the Tribunal under section 6 before the date specified in the notice; or
all the parties to any claim submitted to the Tribunal under section 6 in relation to that land or interest in land have informed the Tribunal in writing that they consent to the making of the recommendation.
The Tribunal may make a recommendation pursuant to subsection (1)(b)(ii) without being obliged to determine first whether or not the claim is well-founded.
The Tribunal may, where it considers it appropriate, consult with a Judge of the Maori Land Court about—
the directions to be given under section 8F; or
the public notice to be given under section 8G,—
in relation to any application under this section.
8E. Issue of certificate on recommendation of Tribunal
The Minister within the meaning of section 4 of the Cadastral Survey Act 2002 shall, on receiving in respect of any land or interest in land a recommendation under—
section 8A(2)(a) or section 8A(2)(b) or section 8A(2)(c); or
section 8D(1),—
issue a certificate to the effect that the land or interest in land is no longer subject to resumption under section 27B of the State-Owned Enterprises Act 1986 or section 212 of the Education Act 1989.
Where the land or the land in which the interest in land exists is subject to the Land Transfer Act 1952, the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 shall cause a copy of the certificate to be lodged with the District Land Registrar of the land registration district within which the land is situated.
The District Land Registrar shall, without fee,—
register the certificate against the certificate of title to the land or interest in land; and
take all steps necessary to discharge or cancel any memorials or entries showing that the land or interest in land is subject to resumption under section 27B of the State-Owned Enterprises Act 1986 or section 212 of the Education Act 1989.
Where—
the land or the land in which the interest in land exists is not subject to the Land Transfer Act 1952; and
instruments relating to the land or the interest in land are not registerable under the Deeds Registration Act 1908,—
the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 shall cause a copy of the certificate to be lodged in the office of the Surveyor-General, and the Surveyor-General shall note the certificate upon the proper plans and records of the district affected.
8F. Directions as to service
Where an application is made under section 8D, the applicant shall apply to the Tribunal ex parte for directions as to service.
The applicant shall furnish with the application under this section a description of the land or interest in land to which the application under section 8D relates, which description—
shall include a full legal description of the land or interest in land; and
shall be sufficient to enable the Tribunal to decide which persons may be adversely affected by the making, under section 8D, of the recommendation sought.
The application under this section—
shall specify the directions considered appropriate; and
shall be accompanied by a memorandum—
by the applicant’s solicitor or counsel; or
by any other agent or representative authorised in writing by the applicant,—
giving the reasons for the directions considered appropriate.
On an application under this section the Tribunal shall give such directions for service as it deems proper.
8G. Public notice
Where an application is made under section 8D, the applicant shall, in addition to complying with the directions given under section 8F(4), give, in accordance with the directions of the Tribunal, public notice of the application.
The public notice shall be published both—
in the Gazette; and
in such newspapers circulating in the district in which the land or interest in land is situated as the Tribunal directs.
The public notice shall—
describe the land or interest in land and its location; and
state that an application has been made under section 8D in respect of the land or interest in land; and
indicate that—
the land or interest in land has been or was transferred to a State enterprise under section 23 of the State-Owned Enterprises Act 1986 or vested in a State enterprise by a notice in the Gazette under section 24 of that Act or by an Order in Council made under section 28 of that Act; or
the land or interest in land has been or was transferred to an institution within the meaning of section 159 of the Education Act 1989 under section 207 of that Act or vested in such an institution by an Order in Council made under section 215 of that Act— as the case may be.
invite any Maori who considers that he or she, or any group of Maori of which he or she is a member, has grounds for a claim under section 6 in relation to the land or interest in land, to submit that claim to the Tribunal before a date specified in the notice (which date shall be not less than 90 days after the first or only publication of the notice in the Gazette ); and
describe briefly any claims already submitted under section 6 in respect of the land or interest in land; and
where no claim has been submitted under section 6 in respect of the land or interest in land, state that if no claim in relation to the land or interest in land is submitted to the Tribunal under section 6 before the date specified in the notice, the Tribunal may recommend that the land or interest in land be no longer liable to resumption under section 27B of the State-Owned Enterprises Act 1986 or section 212 of the Education Act 1989; and
contain such other information as the Tribunal directs.
8H. Service of decision
The Tribunal shall cause a sealed copy of its decision and recommendation (if any) with regard to any application under section 8D to be served on—
the applicant; and
the Minister within the meaning of section 4 of the Cadastral Survey Act 2002; and
the Minister of Maori Affairs; and
such other persons as the Tribunal thinks fit.
Subpart 1. Recommendations in relation to Crown forest land
8HA. Interpretation of certain terms
For the purposes of sections 8HB to 8HI, the expressions Crown forestry assets, Crown forest land, Crown forestry licence, and licensed land shall have the same meanings as they have in section 2 of the Crown Forest Assets Act 1989.
8HB. Recommendations of Tribunal in respect of Crown forest land
Subject to section 8HC, where a claim submitted to the Tribunal under section 6 relates to licensed land the Tribunal may,—
if it finds—
that the claim is well-founded; and
that the action to be taken under section 6(3) to compensate for or remove the prejudice caused by the ordinance or Act, or the regulations, order, proclamation, notice, or other statutory instrument, or the policy or practice, or the act or omission that was inconsistent with the principles of the Treaty of Waitangi, should include the return to Maori ownership of the whole or part of that land,—
include in its recommendation under section 6(3) a recommendation that the land or that part of that land be returned to Maori ownership (which recommendation shall be on such terms and conditions as the Tribunal considers appropriate and shall identify the Maori or group of Maori to whom that land or that part of that land is to be returned); or
if it finds—
that the claim is well-founded; but
that a recommendation for return to Maori ownership is not required, in respect of that land or any part of that land by paragraph (a)(ii),—
recommend to the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 that that land or that part of that land not be liable to return to Maori ownership; or
if it finds that the claim is not well-founded, recommend to the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 that that land or that part of that land not be liable to return to Maori ownership.
In deciding whether to recommend the return to Maori ownership of any licensed land, the Tribunal shall not have regard to any changes that have taken place in—
the condition of the land and any improvements to it; or
its ownership or possession or any other interests in it— that have occurred after or by virtue of the granting of any Crown forestry licence in respect of that land.
Nothing in subsection (1) prevents the Tribunal making in respect of any claim that relates in whole or in part to licensed land any other recommendation under subsection (3) or subsection (4) of section 6; except that in making any other recommendation the Tribunal may take into account payments made, or to be made, by the Crown by way of compensation in relation to the land pursuant to section 36 and Schedule 1 of the Crown Forest Assets Act 1989.
On the making of a recommendation for the return of any land to Maori ownership under subsection (1), sections 40 to 42 of the Public Works Act 1981 shall cease to apply in relation to that land.
8HC. Interim recommendations in respect of Crown forest land
Where the recommendations made by the Tribunal include a recommendation made under section 8HB(1)(a) or section 8HB(1)(b), all of those recommendations shall be in the first instance interim recommendations.
The Tribunal shall cause copies of its interim findings and interim recommendations to be served on the parties to the inquiry.
Subject to subsection (5), the Tribunal shall not, without the written consent of the parties, confirm any interim recommendations that include a recommendation made under section 8HB(1)(a) or section 8HB(1)(b), until at least 90 days after the date of the making of the interim recommendations.
Where any party to the inquiry is served with a copy of any interim recommendations that include a recommendation made under section 8HB(1)(a) or section 8HB(1)(b), that party—
may, within 90 days after the date of the making of the interim recommendations, offer to enter into negotiations with the other party for the settlement of the claim; and
shall, within 90 days after the date of the making of the interim recommendations, inform the Tribunal—
whether the party accepts or has implemented the interim recommendations; and
if the party has made an offer under paragraph (a), the result of that offer.
If, before the confirmation of any interim recommendations that include a recommendation made under section 8HB(1)(a) or section 8HB(1)(b), the claimant and the Minister of Maori Affairs settle the claim, the Tribunal shall, as the case may require, cancel or modify the interim recommendations and may make, if necessary, a final recommendation under section 8HB(1)(a) or section 8HB(1)(b).
If subsection (5) does not apply in relation to any interim recommendations that include a recommendation made under section 8HB(1)(a) or section 8HB(1)(b), upon the expiration of the 90th day after the date of the making of the interim recommendations, the interim recommendations shall become final recommendations.
Notwithstanding anything in subsections (1) to (6), if any interim recommendations contain a clerical mistake or an error arising from any accidental slip or omission, whether the mistake, error, slip, or omission was made by an officer of the Tribunal or not, or if any interim recommendations are so drawn up as not to express what was actually decided and intended, the interim recommendations may be corrected by the Tribunal, either of its own motion or on the application of any party.
Where the interim recommendations are corrected under subsection (7),—
the Tribunal shall cause copies of the corrected interim recommendations to be served on the parties to the inquiry as soon as practicable; and
the period that applies for the purposes of subsections (3), (4), and (6) shall expire on the 90th day after the date of the making of the corrected interim recommendations.
8HD. Right to be heard on question in relation to Crown forest land
Where, in the course of any inquiry into a claim submitted to the Tribunal under section 6 any question arises in relation to licensed land, the only persons entitled to appear and be heard on that question shall be—
the claimant:
the Minister of Maori Affairs:
any other Minister of the Crown who notifies the Tribunal in writing that he or she wishes to appear and be heard:
any Maori who satisfies the Tribunal that he or she, or any group of Maori of which he or she is a member, has an interest in the inquiry apart from any interest in common with the public.
Notwithstanding anything in clause 7 of Schedule 2 or in section 4A of the Commissions of Inquiry Act 1908 (as applied by clause 8 of Schedule 2), no person other than a person designated in any of paragraphs (a) to (d) of subsection (1) shall be entitled to appear and be heard on a question to which subsection (1) applies.
Nothing in subsection (2) affects the right of any person designated in any of paragraphs (a) to (d) of subsection (1) to appear, with the leave of the Tribunal, by—
a barrister or solicitor of the High Court; or
any other agent or representative authorised in writing.
8HE. Special power of Tribunal to recommend that land not be liable to be returned to Maori ownership
The Tribunal may, in its discretion, on the application of any Minister of the Crown or any licensee of Crown forest land, recommend to the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 that the whole or part of any licensed land not be liable to be returned to Maori ownership if—
public notice has been given, in accordance with section 8HH, of the making of an application under this section in respect of that land; and
either—
no claim in relation to that land has been submitted to the Tribunal under section 6 before the date specified in the notice; or
all the parties to any claim submitted to the Tribunal under section 6 in relation to that land have informed the Tribunal in writing that they consent to the making of the recommendation.
The Tribunal may make a recommendation pursuant to subsection (1)(b)(ii) without being obliged to determine first whether or not the claim is well-founded.
The Tribunal may, where it considers it appropriate, consult with a Judge of the Maori Land Court about—
the directions to be given under section 8HG; or
the public notice to be given under section 8HH,—
in relation to any application under this section.
8HF. Issue of certificate on recommendation of Tribunal
The Minister within the meaning of section 4 of the Cadastral Survey Act 2002 shall, on receiving in respect of any licensed land a recommendation under section 8HB or section 8HE, issue a certificate to the effect that the land is not liable to be returned to Maori ownership.
Where the licensed land is subject to the Land Transfer Act 1952 or where the Crown forestry licence is registered pursuant to section 30 of the Crown Forest Assets Act 1989, the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 shall cause a copy of the certificate to be lodged with the District Land Registrar of the land registration district within which the land is situated.
The District Land Registrar shall, without fee, register the certificate against the certificate of title to the land or endorse a memorial on the copy of the Crown forestry licence, as the case may be.
Where—
the land is not subject to the Land Transfer Act 1952; and
a copy of the Crown forestry licence has not been registered pursuant to section 30 of the Crown Forest Assets Act 1989; and
instruments relating to the land are not registrable under the Deeds Registration Act 1908,—
the Minister within the meaning of section 4 of the Cadastral Survey Act 2002 shall cause a copy of the certificate to be lodged in the office of the Surveyor-General for the district in which the land is situated, and the Surveyor-General shall note the certificate on the plans and records relating to the land.
8HG. Directions as to service
Where an application is made under section 8HE, the applicant shall apply to the Tribunal ex parte for directions as to service.
The applicant shall furnish with the application under this section a description of the land to which the application under section 8HE relates, which description—
shall include a full legal description of the land; and
shall be sufficient to enable the Tribunal to decide which persons may be adversely affected by the making, under section 8HE, of the recommendation sought.
The application under this section—
shall specify the directions considered appropriate; and
shall be accompanied by a memorandum by or on behalf of the applicant giving the reasons for the directions considered appropriate.
On an application being made under this section the Tribunal shall give such directions for service as it deems proper.
8HH. Public notice
Where an application is made under section 8HE, the applicant shall, in addition to complying with the directions given under section 8HG, give, in accordance with the directions of the Tribunal, public notice of the application.
The public notice shall be published both—
in the Gazette; and
in such newspapers circulating in the district in which the land is situated as the Tribunal directs.
The public notice shall—
describe the land and its location; and
state that an application has been made under section 8HE in respect of the land; and
indicate the land is Crown forest land that is subject to a Crown forestry licence; and
invite any Maori who considers that he or she, or any group of Maori of which he or she is a member, has grounds for a claim under section 6 in relation to the land, to submit that claim to the Tribunal before a date specified in the notice (which date shall be not less than 90 days after the first or only publication of the notice in the Gazette); and
describe briefly any claims already submitted under section 6 in respect of the land; and
where no claim has been submitted under section 6 in respect of the land, state that if no claim in relation to the land is submitted to the Tribunal under that section before the date specified in the notice, the Tribunal may recommend that the land not be liable to be returned to Maori ownership and the effect of any such recommendation; and
contain such other information as the Tribunal directs.
8HI. Service of decision
The Tribunal shall cause a sealed copy of its decision and recommendations (if any) with regard to any application under section 8HE to be served on—
the applicant; and
the Minister within the meaning of section 4 of the Cadastral Survey Act 2002; and
the Minister of Maori Affairs; and
the Minister for State Owned Enterprises and the Minister of Finance; and
such other persons as the Tribunal thinks fit.
Subpart 2. Recommendations in relation to land vested under New Zealand Railways Corporation Restructuring Act 1990
8HJ. Claims relating to land vested under New Zealand Railways Corporation Restructuring Act 1990
In respect of every claim submitted to the Tribunal under section 6 that relates in whole or in part to land or an interest in land that, immediately before being vested in a Crown transferee company pursuant to section 6 of the New Zealand Railways Corporation Restructuring Act 1990, was land owned by the Crown or an interest owned by the Crown in land, whether or not the land or interest in land is still vested in that company, the provisions of sections 8A to 8H shall apply with such modifications as may be necessary and, in particular, as if—
the reference in section 8A(1) to land or an interest in land to which that section applies was a reference to land or an interest in land that, immediately before being vested in a Crown transferee company pursuant to section 6 of the New Zealand Railways Corporation Restructuring Act 1990, was land owned by the Crown or an interest owned by the Crown in land, whether or not that land or interest in land is still vested in that company:
the reference in section 8A(6) to an interest in land was a reference to an interest in land that was vested in a Crown transferee company under section 6 of the New Zealand Railways Corporation Restructuring Act 1990 but where the land itself was not vested in that company:
the references in sections 8A(2)(b) and (c), 8D(1), 8E(1) and (3)(b), and 8G(3)(f) to section 27B of the State-Owned Enterprises Act 1986 were references to section 39 of the New Zealand Railways Corporation Restructuring Act 1990:
the reference in section 8G(3)(c) to land or an interest in land transferred to or vested in a State enterprise was a reference to land or an interest in land vested in a Crown transferee company pursuant to the New Zealand Railways Corporation Restructuring Act 1990.
8I. Annual report on implementation of recommendations
The Minister of Maori Affairs shall in each year prepare and lay before the House of Representatives a report on the progress being made in the implementation of recommendations made to the Crown by the Tribunal.
9. Right to petition House of Representatives unaffected
Nothing in this Act shall affect in any way the right of any person to petition the House of Representatives for the redress of any grievance, or the jurisdiction of any committee or other body set up by the House of Representatives to deal with a petition to the House of Representatives.
Schedule 1. Treaty of Waitangi
The Text in English
HER MAJESTY VICTORIA Queen of the United Kingdom of Great Britain and Ireland regarding with Her Royal Favour the Native Chiefs and Tribes of New Zealand and anxious to protect their just Rights and Property and to secure to them the enjoyment of Peace and Good Order has deemed it necessary in consequence of the great number of Her Majesty’s Subjects who have already settled in New Zealand and the rapid extension of Emigration both from Europe and Australia which is still in progress to constitute and appoint a functionary properly authorized to treat with the Aborigines of New Zealand for the recognition of Her Majesty’s Sovereign authority over the whole or any part of those islands — Her Majesty therefore being desirous to establish a settled form of Civil Government with a view to avert the evil consequences which must result from the absence of the necessary Laws and Institutions alike to the native population and to Her subjects has been graciously pleased to empower and to authorize me William Hobson a Captain in Her Majesty’s Royal Navy Consul and Lieutenant Governor of such parts of New Zealand as may be or hereafter shall be ceded to her Majesty to invite the confederated and independent Chiefs of New Zealand to concur in the following Articles and Conditions.
Article the First
The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole Sovereigns thereof.
Article the Second
Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.
Article the Third
In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects.
Signed
W HOBSON, Lieutenant Governor.
Now therefore We the Chiefs of the Confederation of the United Tribes of New Zealand being assembled in Congress at Victoria in Waitangi and We the Separate and Independent Chiefs of New Zealand claiming authority over the Tribes and Territories which are specified after our respective names, having been made fully to understand the Provisions of the foregoing Treaty, accept and enter into the same in the full spirit and meaning thereof: in witness of which we have attached our signatures or marks at the places and the dates respectively specified.
Done at Waitangi this Sixth day of February in the year of Our Lord One thousand eight hundred and forty.
[Here follow signatures, dates, etc.]
The Text in Maori
[Text in Maori omitted due to length – full text can be found online at http://www.legislation.govt.nz/act/public/1975/0114/latest/DLM435843.html]
Schedules 2-3
[Schedules omitted due to length – full text can be found online at http://www.legislation.govt.nz/act/public/1975/0114/latest/whole.html#DLM1347539]
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