18 April 2012

To:

Secretariat Mori Affairs Select Committee Parliament House Wellington

Submission of the Auckland Council on the Ngti Whtua rkei Claims Settlement Bill Introduction 1. The Ngti Whtua rkei Deed of Settlement (Deed) seeks to address the very real and well-documented grievances of Ngti Whtua o rkei. The Auckland Council is very supportive of this settlement in principle, as these grievances must be resolved in order for us to move forward together. 2. The Deed settles the historical claims of Ngti Whtua o rkei and specifies an apology, the statutory declaration, the cultural redress, and the financial and commercial redress, to be provided in the settlement. 3. The purpose of the Ngati Whatua Orakei Claims Settlement Bill (Bill), once enacted is to give effect to certain provisions of the Deed. 4. The Deed of Settlement Schedule: Property identifies property that will vest in Ngati Whatua o Orakei, consisting of the Pourewa Creek Site, commercial properties including the New Zealand Defence Force property at Narrow Neck, a significant number of New Zealand Defence Force (NZDF) housing units and other property in housing blocks and two other properties. 5. The treaty settlement process is conducted in confidence between the Crown and the claimants. Council has not been involved in this process. In this case, the Deed was presented as a completed agreement. 6. The Auckland Council is an affected party. The Deed of Settlement Schedule: Property gives details of the Councils interests in properties in different NZDF housing blocks, Wakakura and the Plymouth Crescent site. The Council has advised NZDF that it will not require the Plymouth Crescent Site. This parcel becomes available for Ngati Whatua o Orakei. 7. The Council, with input from the Devonport-Takapuna Local Board, hopes to work with the new owners to pursue some of its aspirations regarding improved public access to and through some of the land involved in the settlement.

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8. The Council wishes to formalise and legalise the Mary Barrett Glade Walkway along the riparian border of Wakakura between Lake Road and Wesley Street, Devonport. The Deed of Settlement Schedule: Property appears to identify these as the subject of an unregistered licence to occupy for the walking track and an unregistered licence to maintain the native glade. The assistance of the Select Committee is sought to facilitate this process. 9. The Auckland Council supports and commends the settlement in principle. However, we are concerned about a process which pits one Auckland Community against another. Such an approach will work against the very principles that the Treaty Settlement process is intended to achieve. 10. Serious concerns have been raised by the Auckland Council and the local community regarding the lack of information and consultation with the community and the local board on behalf of the community, during the settlement process. Auckland Council is of the view that it is the Crowns responsibility to ensure that affected communities are appropriately informed and engaged with during the settlement process and believes that the Crown has not fulfilled these responsibilities in respect of this settlement. In so doing, the Crown has created unprecedented tension between Auckland communities. 11. The focus of this tension is the inclusion of the Narrow Neck property in the settlement. It has an area of 3.2 hectares described in the Deed property schedule1. 12. In the Bill the property is included and described at Schedule 22. In Part 3 of the Bill, the property is included as part of the commercial redress. 13. It is identified as land protected as reserve for defence purposes in Schedule 4 Part 2 of the Hauraki Gulf Marine Park Act 2000 (HGMPA) and further identified for inclusion in the Hauraki Gulf Marine Park [HGMPA, s.33(6)]. 14. It is understood that the Narrow Neck property and the land of which it forms part are significant to Ngati Whatua o Orakei, other iwi and to the people of Devonport and Auckland. The property is a treasured part of the community and forms part of a natural grandstand to the Hauraki Gulf. As an indication of the considerable public interest and desire to maintain this land for community use, it was the subject of successful 1998 High Court proceedings initiated by the community in 19973. These were initiated by a trust set up by a large body of residents, most of whom still remain and are concerned about the future of the property. 15. Subsequent to the Court proceedings, the HGMPA was enacted providing that if the property held as a reserve is no longer required for defence purposes, it must be held as a recreation reserve and treated as included in the Hauraki Gulf Marine Park established under that act. However, the Crown has advised that section 14 of the HGMPA provides for the Crown to use land in the Marine Park to settle treaty settlements and that is what the Crown is doing. 16. Without this ability, it was the clear understanding of the local board and community that the Act would provide protection in the long-term; that the property would be part of a reserve that would be available to the people of Auckland, should the property no longer be needed for defence purposes.

Deed of Settlement Schedule: Property, Descriptions of Commercial Properties, p. 4. Described as 3.2085 hectares, more or less, being Section 1 SO 448861. Part computer interest register 330050. 3 The Tamaki Reserve Protection Trust Inc v Minister of Conservation (HC AKL CP 600/97 M 1915/97 12 March 1997.
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17. The questions of the future southern access point and future use and enjoyment of the land by the public remain outstanding, as far as the local community is concerned. The underlying zoning of Residential 6c Intensive Residential applies to most of the subject land, but the intention for public access is supported by the operative District Plan, which applies an underlying zoning of Recreation 1 to a substantial strip along the southeastern boundary. 18. The settlement as it stands will amend the HGMPA. This apparent change of position has generated high levels of public concern and interest as details of the settlement are being understood. This change was effectively agreed without any formal explanation to, or consultation with the local board and / or community and the Auckland Council. 19. Removal of this land could have occurred through the more transparent process provided in section 38 of the Act, which would have drawn out the community concerns. 20. The Devonport-Takapuna Local Board met on 6 March 2012 and passed a number of resolutions including that it did not support the property being part of the settlement. See decision attached. 21. It is noted that, while the Council has formally expressed its desire that alternative land of equivalent cultural and commercial value for Ngti Whtua o rkei should be considered for inclusion in the settlement instead, this must be seen as the response on behalf of a community which has not been informed until the agreement was completed. Submission 22. Auckland Council supports and commends the settlement in principle and recognises the importance of this milestone for Ngti Whtua o rkei, the Crown and the people of Auckland. 23. The settlement between the Crown and the iwi is a settlement between two sovereign parties. The Council has not been involved and is making this submission to clarify its position. 24. That is, that regardless of the sovereignty of settlement agreements, there are benefits to all if affected parties are appropriately informed and consulted, in a timely manner, as an adjunct to that process. 25. The Council wants to make clear that it understands the Crown relies upon section 14 of the HGMPA for there being no legislative grounds for opposing the inclusion of this land in the settlement. However, for the sake of the community which otherwise could have reasonably expected this land, currently land protected as reserve for defence purposes, to eventually become recreational reserve, it wishes to record: (a) The property is identified as having reserve values suitable for inclusion in the Hauraki Gulf Marine Park. Except for section 14, this land would otherwise have contributed to the future reserve needs of Aucklanders, as anticipated by section 33(6) of the HGMPA. The property contains a large gymnasium, and other buildings which still have the potential to provide valuable recreational, cultural and educational use. The property forms part of one of the few accessible historic headlands which overlook the Hauraki Gulf, making it part of Aucklands historic fort network.

(b)

(c)

(d)

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(e)

The property is of a flat and immediately useable terrain, adjacent to existing reserve

26. The Minister for Treaty Settlements has publicly ruled out the Crown using the sports field and recreation reserve in other treaty settlements. The Select Committee is asked to focus its attention on how the Ministers intentions might be facilitated, in the light of the existing legislation and in particular section 14 of the HGMPA. 27. Part 3 of the Bill Commercial Redress Auckland Council notes Part 3, which authorises the Crown to transfer the property to Ngti Whtua o rkei to give effect to the Deed, but opposes the way the Crown has conducted itself in relation to the aspect of the settlement which applies to the Narrow Neck property. 28. Clause 54 of the Bill Narrow Neck property reserve status revoked Auckland Council notes Clause 54 because it revokes the current reserve status of the property, as a reserve for defence purposes subject to the Reserves Act 1977. 29. Clause 55 of the Bill Hauraki Gulf Marine Park Act 2000 amended (to remove Narrow Neck property from its jurisdiction). Auckland Council notes Clause 55 because it removes the property from the HGMPA. Oral submissions 30. Auckland Council wishes to appear before the Mori Affairs Select Committee. 31. If the Select Committee would like clarification in respect of any of the points raised in this submission, or any additional information, please contact Councillor Ann Hartley, (Auckland Council Councillor), Telephone (09) 307 7629. 32. The Council looks forward to presenting its submission to the Select Committee. Attachments: 1. Devonport-Takapuna Local Board resolutions 2. Auckland Plan Committee resolution

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ATTACHMENT 1 MINUTE OF MEETING OF DEVONPORT-TAKAPUNA LOCAL BOARD, 6 MARCH 2012 Resolution number DT/2012/61 MOVED by Member Darby, seconded Member Cohen: That the report and tabled addendum be received: a) That the tabled correspondence from Mayor Len Brown to the Hon. Chris Finlayson, Minister of Treaty Settlements, be received. b) That the Devonport-Takapuna Local Board acknowledge the historical Treaty grievances and Treaty claims of Ngati Whatua o Orakei. c) That the Devonport-Takapuna Local Board support in principle the Deed of Settlement with Ngati Whatua o Orakei Trustee Ltd and the Crown, dated 5 November 2011. d) That the Devonport-Takapuna Local Board notes that settlement involving the parcels of land known as the Wakakura block is subject to an unregistered licence to occupy for the purposes of a walking track to the Auckland Council and is subject to an unregistered licence to maintain a native glade to Mrs M Pollock. e) The Devonport -Takapuna Local Board requests the Council legal team to seek urgent written clarity as to exactly what the Wakakura block settlement involves, including a clear map showing which parts are licenced and which are not. f) That the Devonport-Takapuna Local Board notes that the parcel of land known as the Plymouth Crescent site is subject to an unregistered licence to occupy to Auckland Council for the purpose of a children's playground.

g) The Devonport -Takapuna Local Board requests the Council legal team to seek urgent written clarity as to exactly what the Plymouth Crescent settlement involves, including a clear map showing which parts are licenced and which are not, ensuring that clear public access continues. h) The Devonport-Takapuna Local Board recommends to the Parks Department of Auckland Council that it examine the Deed of Settlement in full as it pertains to current and future walkway and cycleway requirements. i) That the Devonport Takapuna Local Board does not support the inclusion of 3.2086 hectares of Narrow Neck land, being Section 1 SO 448861 as part of the settlement because of the clear expectation, reinforced through action in the High Court, that this land would be returned to the local community as open public space in the event that it was no longer required by the Navy. That the Devonport-Takapuna Local Board requests the Council legal team to progress with urgency an examination of the Deed of Settlement, with a view to taking any necessary action to ensure the Community's access to the Narrow Neck land (Tamaki/Takapuna Head) in perpetuity, for recreational activity.

j)

k) That the Devonport-Takapuna Local Board call an extraordinary board business meeting at the earliest opportunity to allow members and the public to be informed about the Deed of Settlement and its implications.

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l)

That the Minister of Treaty Negotiations, the Minister of Defence, the Minister of Conservation, the Member of Parliament for North Shore, the Tamaki Reserve Protection Trust, and the Devonport Heritage Inc be invited to prepare presentations as Deputations in the public meeting when it is convened.

m) That the Devonport-Takapuna Local Board Chair, and the portfolio lead member for parks be delegated authority to represent the Local Board at meetings convened by Council's governing body, Parliament's Select Committee on the legislation necessary to enact the Treaty Settlement with Ngati Whatua o Orakei, the Hauraki Gulf Forum, and any other meeting convened to consider the Treaty Settlement with Ngati Whatua o Orakei. n) That the Devonport-Takapuna Local Board receives regular updates through officers reports and the Chairman's report on issues and progress relating to the settlement. o) The Devonport-Takapuna Local Board wishes to thank Council's General Counsel and her team for the outstanding assistance they have given the Board regarding the Deed of Settlement with Ngati Whatua o Orakei. p) That the Devonport-Takapuna Local Board thanks Michael Dreaver, Chief Crown Negotiator, Office of Treaty Settlements, for his attendance. CARRIED Secretarial Note: Pursuant to Standing Order 3.15.5. Member Bergin requested that his dissenting vote on resolution j) be recorded. Secretarial Note: Pursuant to Standing Order 3.15.5. Member OConnor requested that herdissenting vote on resolution l) be recorded.

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ATTACHMENT 2 MINUTE OF MEETING OF AUCKLAND PLAN COMMITTEE OF AUCKLAND COUNCIL, 2 APRIL 2012

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Ngti Whtua rkei Deed of Settlement Issues The Chair put the substantive motion: Resolution number APC/2012/23 a) That the report be received. b) c) That Auckland Council make a submission to the Mori Affairs Select Committee hearing submissions on the Ngti Whtua rkei Claims Settlement Bill. That the draft attached submission be finalised and made to the Mori Affairs Select Committee on the Ngti Whtua rkei Claims Settlement Bill amended to express deep concern about the lack of information and consultation with interested parties about the proposed provision for Ngati Whatua to purchase the Narrow Neck property in the future and advocating that alternative land of equivalent cultural and commercial value for Ngti Whtua rkei be included in the settlement instead." That the Chairs of Regional Development and Operations Committee and Auckland Plan Committee along with the Mayors office, finalise the submission and present it to the Mori Affairs Select Committee. That the documents tabled by the Devonport-Takapuna Local Board be received. CARRIED Secretarial Note: Pursuant to Standing Order 3.15.3, Members Tupuhi and Morehu wished their dissenting votes against the substantive motion be recorded.

d)

e)

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