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  Community » Your Community » Iwi » Legal Framework For Obligations To Māori And Under Te Tiriti O Waitangi/Treaty Of Waitangi » Māori Commercial Aquaculture Claims Settlement Act 2004

Māori Commercial Aquaculture Claims Settlement Act 2004

SECTION

OBLIGATION TO MĀORI

9

Crown’s obligations in respect of new space

(1)        The Crown must ensure that the trustee is provided with settlement assets that are representative of 20% of the new space by way of 1 or more of the following:

(a)        the provision of authorisations to apply to occupy space in the coastal marine area for the purpose of aquaculture activities and any payment required by section 13(4);

(b)       the payment of a financial equivalent of that space:

(c)        entering into 1 or more regional agreements under section 10.

(2)        The settlement assets provided under subsection (1)(a) must be representative of 20% of the anticipated new space.

10

Regional agreements relating to newspace

(1)        The Crown may enter into 1 or more agreements (including by deed) in respect of 1 or more regions if the Crown and the parties referred to in section 29A(2) all agree that the Crown’s obligations under section 9 will be satisfied in respect of the regions on the terms set out in the agreement or the agreements.

(2)        Sections 29A(3), (40, (6) and (7) apply to an agreement entered into under this section.

(3)        An agreement under this section may provide for settlement of the Crown’s obligations on any basis acceptable to the Crown and the other parties.

11

Settlement in negotiation period

(1)        The Crown must use its best endeavours to negotiate and enter into regional agreements under section 10 that provide for the Crown to meet its obligations under section 9.

(2)        The Crown must do so within the following periods:

(a)        within 2 years after the commencement of the Māori Commercial Aquaculture Claims Settlement Amendment Act 2011 for the following:

(i)         the Northland region:

(ii)        the east coast of the Waikato region, which is to be treated as a separate region:

(iii)       the Tasman region:

(iv)       the Marlborough region:

(b)       for all other regions, whichever is the later of the following:

(i)         within 3 years after the commencement of the Māori Commercial Aquaculture Claims Settlement Amendment Act 2011; or

(ii)      within 2 years after the receipt of the first resource consent application for the purpose of aquaculture activities after the commencement of the Māori Commercial Aquaculture Claims Settlement Amendment Act 2011 (not being an application to which section 165ZH of the Resource Management Act 1991 applies).

(3)        The Minister may, by notice in the Gazette, extend a period specified in subsection (2).

(4)        The Minister may not give a notice under subsection (3) unless the Minister—

(a)        has consulted the trustee and the iwi aquaculture organisations, mandated iwi organisations, or recognised iwi organisations with whom the regional agreement under section 10 is being negotiated; and

(b)       is satisfied that reasonable steps have been taken to negotiate an agreement and that the proposed extension is likely to enable a regional agreement under section 10 in respect of the initial settlement period to be entered into.

(5)        If, at the conclusion of the relevant period specified in subsection (2) (or any extension), there is no regional agreement under section 10 that relates to settlement in a region, the Crown must—

(a)        arrange, in accordance with section 14, for authorisations in any relevant aquaculture settlement areas in the region to be provided to the trustee in accordance with section 9(1)(a); but

(b)       if insufficient authorisations are available to be provided to the trustee to meet the Crown’s obligations as set out in section 9, pay the difference to the trustee in accordance with section 9(1)(b).

12

Gazetting space for settlement purposes

(1)        For the purposes of preserving space to be used for meeting the Crown’s obligations under section 9, the Minister may, by notice in the

Gazette, declare space in the coastal marine area to be an aquaculture settlement area that is required to meet the obligations.

(2)        The Minister—

(a)        may, by notice in the Gazette, add to or remove space from an aquaculture settlement area; and

(b)       must, if the Crown’s obligations are settled in respect of a region, remove, by notice in the Gazette, the space from an aquaculture settlement area that is not required to meet the obligations.

(3)        Section 165E of the Resource Management Act 1991 applies in respect of applications for coastal permits made in an aquaculture settlement area.

(4)        In determining whether an aquaculture settlement area will be representative for the purposes of meeting the Crown's obligations under section 9, the Minister must take into account—

(a)        the suitability of the space for aquaculture activities; and

(b)       the overall productive capacity of the anticipated new space available for aquaculture activities in each region.

(5)        To avoid doubt, the Minister may exercise his or her powers under this section before the preparation of a plan under section 14.

13

Allocation of authorisations in aquaculture settlement area

(1)        This section applies if the Crown is required, either under a regional agreement under section 10 or by section 11(5), to provide authorisations for space in an aquaculture settlement area to the trustee.

(2)        The Minister must direct the regional council in whose region the relevant aquaculture settlement area is located to provide authorisations for aquaculture activities in the space to the trustee (whether or not the regional coastal plan would otherwise require a different allocation).

(3)        A regional council must comply with a direction made under subsection (2).

(4)        As soon as practicable after giving a direction under subsection (2), the Minister must,—

(a)        if an assessment under section 14(4)(d)(iv) shows a difference in value under that provision, consult the trustee about whether a payment of the difference is required; and

(b)       if the Minister decides that such a payment should be made, make the payment to the trustee.

(5)        Clause 3(1)(b) of Schedule 1 does not apply to the provision of authorisations under this section.

(6)        To avoid doubt, section 165R of the Resource Management Act 1991 applies in relation to the provision of authorisations under this section.

14

Preparationof plan

(1)        The Minister must, by 31 December 2012, have started preparing a plan that—

(a)        provides an assessment of the progress made by the Crown in complying with section 9; and

(b)       to the extent that the Crown has not complied with section 9, provides how the Crown is going to comply with that provision; and

(c)        establishes processes and methods for determining the value of the settlement assets to be delivered under section 9.

(2)        In preparing the plan, the Minister must consult—

(a)        the trustee; and

(b)       all iwi aquaculture organisations, mandated iwi organisations, and recognised iwi organisations—

(i)         whose area of interest includes a part of the coastal marine area; and

(ii)        in relation to which the Crown has not, by 31 December 2012, satisfied its obligations under this Act.

(3)        As soon as practicable after completing the plan, the Minister must provide copies to the relevant regional council, the trustee, and the relevant iwi aquaculture organisations, mandated iwi organisations, and recognised iwi organisations.

(4)        Without limiting subsection (1)(c), the processes and methods must—

(a)        avoid increasing the demand for coastal permits, which would increase the value of space; and

(b)       reduce the risk of collusion; and

(c)        be cost effective for the Crown; and

(d)       enable an assessment to be made of the following:

(i)         the amount of anticipated new space in the region; and

(ii)        the value that would be representative of each of the types of aquaculture expected to be developed in the anticipated new space in the region; and

(iii)       the overall productive capacity of the anticipated new space available for aquaculture activities in each region; and

(iv)       the difference in value between—

(A)       the costs of obtaining, pursuant to an authorisation granted under this Act, a resource consent under the Resource Management Act 1991 that could commence under section 116A of that Act; and

(B)       the costs of obtaining the resource consent pursuant to an authorisation had the authorisation been granted in relation to an aquaculture management area as at 1 January 2005.

16A

When authorisations allocated to trustee lapse

(1)        Section 165T of the Resource Management Act 1991 does not apply to settlement assets.

(2)        However, a settlement asset that is an authorisation does lapse if—

(a)        a resource consent application for aquaculture activities has been declined in respect of the space that is subject to the authorisation; or

(b)       a resource consent has been cancelled under section 116A(3) or (7) of the Resource Management Act 1991.

(3)        If an authorisation that is a settlement asset is transferred and (as a result of the transfer) it ceases to be a settlement asset, the authorisation lapses 2 years after the date on which the holder gives a notice of transfer of the authorisation to the regional council under section 165S of the Resource Management Act 1991.

29A

Regional agreements

(1)        The Crown may enter into an agreement (including by deed) in respect of 1 or more regions of regional councils, or of 1 or more harbours listed in Schedule 2, with the parties specified in subsection (2) if the Crown and those parties all agree that the Crown's obligation under section 22(1) will be satisfied in respect of those regions and harbours on the terms set out in the agreement.

(2)        The parties referred to in subsection (1) are—

(a)        the iwi aquaculture organisations of all iwi whose area of interest includes a region or harbour covered by the agreement; or

(b)     for any iwi referred to in paragraph (a) that do not have iwi aquaculture organisations, the recognised iwi organisations of those iwi.

(3)        A regional agreement must include—

(a)        the trustee as a party to the agreement in order to confirm that the agreement has been entered into by the parties specified in subsection (2); or

(b)       a provision that the agreement is conditional on the trustee confirming that the agreement has been entered into by those parties.

(4)        To avoid doubt, a regional agreement is enforceable as a contract in accordance with its terms.

(5)        Section 22(3)(c) does not prevent the Crown from making a payment to the trustee under a regional agreement before 1 January 2013.

(6)        No court or tribunal has jurisdiction to inquire into the quantification or the adequacy of the benefits to be provided by or under a regional agreement.

(7)        However, subsection (6) does not exclude the jurisdiction of a court or tribunal in respect of the interpretation or enforcement of a regional agreement.

30

Entry on iwi aquaculture register

(1)        When the trustee receives settlement assets under this Act, it must record the settlement assets in the iwi aquaculture register.

(2)        Any settlement assets in an aquaculture management area in a harbour listed in Schedule 2 must be recorded as harbour settlement assets.

(3)        All other settlement assets must be recorded as coastal settlement assets.

(4)        Information recorded in the register under this section must include the type of asset, the size of the asset, the location of the asset, and the region of the regional council in which the asset is located.

44

Determinations and allocations generally

(1)        The trustee must make its determinations as to settlement assets allocation entitlements and its allocation of settlement assets separately on the basis of the region of each regional council and each harbour listed in Schedule 2.

(2)        However, if a written agreement referred to in section 45(4) covers more than 1 region or harbour, the trustee may make its determinations as to settlement assets allocation entitlements and its allocation of settlement assets collectively on the basis of the regions and harbours covered by the agreement.

(3)        For a region or harbour, the trustee must make either—

(a)        a single determination for all of the settlement assets of the region or harbour; or

(b)       1 or more determinations for the settlement assets of the region or harbour covered by a regional agreement and a single determination for all the other settlement assets of the region or harbour.

(4)      The trustee may amend a determination to give effect to a written agreement referred to in section 45(4) to the extent that the agreement relates to settlement assets under a regional agreement that was entered into after the written agreement and, if it does so, the amendment becomes a determination of settlement assets allocation entitlements.

 

 

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