and THE SOVEREIGN in right of New Zealand

Transcription

1 NGĀTI APA KI TE WAIPOUNAMU TRUST; and NGĀTI KOATA TRUST; and TE RŪNANGA O NGĀTI KUIA CHARITABLE TRUST; and NGĀTI RARUA IWI TRUST; and TE RŪNANGA A RANGITANE O WAIRAU; and NGĀTI TAMA MANAWHENUA KI TE TAU IHU TRUST; and TE RŪNANGA O TOA RANGATIRA INCORPORATED; and TE ATIAWA MANAWHENUA KI TE TAU IHU TRUST; and TE RŪNANGA O NGĀI TAHU; and HAURAKI MĀORI TRUST BOARD (as trustee of the Pare Hauraki Fishing Trust) and THE SOVEREIGN in right of New Zealand DEED SATISFYING THE CROWN'S PRE-COMMENCEMENT SPACE OBLIGATIONS UNDER THE MAORI COMMERCIAL AQUACULTURE CLAIMS SETTLEMENT ACT 2004 FOR TE WAI POUNAMU AND [COROMANDEL/HAURAKI] [ ] Consultation Draft:

2 This deed is subject to Cabinet and iwi and approval and is premised on all iwi parties having achieved TABLE OF CONTENTS 1: BACKGROUND...2 THE MAORI COMMERCIAL AQUACULTURE CLAIMS SETTLEMENT ACT NEGOTIATIONS TO DATE...3 ENTRY INTO THIS DEED...5 2: SATISFACTION OF CROWN S PRE-COMMENCEMENT SPACE OBLIGATIONS...6 THE OBLIGATIONS ARE SATISFIED...6 REGIONAL SETTLEMENTS...6 ACKNOWLEDGEMENTS...7 3: IMMEDIATE PAYMENTS...9 PAYMENT OF EQUIVALENT AMOUNTS...9 INTEREST...9 ON ACCOUNT PAYMENTS...9 4: FUTURE PAYMENTS...11 APPLICATION OF THIS PART...11 FURTHER PAYMENTS...11 INTEREST : TAXATION...13 STATEMENT OF AGREED TAX PRINCIPLES...13 ACKNOWLEDGEMENTS...14 ACT CONSISTENT WITH TAX PRINCIPLES...14 MATTERS NOT TO BE IMPLIED FROM TAX PRINCIPLES...14 INDEMNITY FOR GST IN RESPECT OF SETTLEMENT AMOUNTS AND INDEMNITY PAYMENTS...15 INDEMNIFICATION...15 INDEMNITY FOR INCOME TAX IN RESPECT OF SETTLEMENT AMOUNTS AND INDEMNITY PAYMENTS...16

3 This deed is subject to Cabinet and iwi and approval and is premised on all iwi parties having achieved INDEMNITY FOR GIFT DUTY IN RESPECT OF SETTLEMENT AMOUNTS...16 DEMANDS FOR INDEMNIFICATION...16 HOW DEMANDS ARE MADE...16 WHEN DEMANDS ARE TO BE MADE...17 EVIDENCE TO ACCOMPANY DEMAND...17 REPAYMENT OF AMOUNT ON ACCOUNT OF TAX...17 PAYMENT OF AMOUNT ON ACCOUNT OF TAX...18 PAYMENT OF COSTS...18 DIRECT PAYMENT OF TAX: CONTROL OF DISPUTES...18 RULINGS, APPLICATIONS...19 DEFINITIONS AND INTERPRETATION...19 TRUSTEE RESPONSIBILITY...19 IWI PARTY RESPONSIBILITY : INTRODUCTION OF LEGISLATION...21 AMENDING LEGISLATION TO BE INTRODUCED...21 AMENDING LEGISLATION TO BE SUPPORTED : CONDITIONS...22 THIS DEED IS CONDITIONAL...22 THIS DEED WITHOUT PREJUDICE UNTIL UNCONDTIONAL...22 SOME PROVISIONS NOT CONDITIONAL : MISCELLANEOUS...23 NOTICES...23 AMENDMENT...25 ENTIRE AGREEMENT...25 NO WAIVER OR ASSIGNMENT : DEFINITIONS AND INTERPRETATION...26 DEFINITIONS...26

4 This deed is subject to Cabinet and iwi and approval and is premised on all iwi parties having achieved INTERPRETATION...29 EXECUTION...32 SCHEDULE 1 SETTLEMENT AMOUNTS...35 SCHEDULE 2 PRE DEED FURTHER PRE-COMMENCEMENT SPACE...36 SCHEDULE 3 VALUATION PROCESS FOR FURTHER PRE-COMMENCEMENT SPACE37 SCHEDULE 4 CONTENT OF AMENDING LEGISLATION...38 SCHEDULE 5 NOTICES...39

5 DEED THIS DEED is made BETWEEN NGĀTI APA KI TE WAIPOUNAMU TRUST; and NGĀTI KOATA TRUST; and TE RŪNANGA O NGĀTI KUIA CHARITABLE TRUST; and NGĀTI RARUA IWI TRUST; and TE RŪNANGA A RANGITANE O WAIRAU; and NGĀTI TAMA MANAWHENUA KI TE TAU IHU TRUST; and TE RŪNANGA O TOA RANGATIRA INCORPORATED; and TE ATIAWA MANAWHENUA KI TE TAU IHU TRUST; and TE RŪNANGA O NGĀI TAHU; and HAURAKI MĀORI TRUST BOARD (as trustee of the Pare Hauraki Fishing Trust) AND THE SOVEREIGN in right of New Zealand, acting by the Minister of Fisheries 1

6 1: BACKGROUND THE MAORI COMMERCIAL AQUACULTURE CLAIMS SETTLEMENT ACT During the late 1990s the Crown sought to amend existing legislation and introduce new legislation relating to aquaculture management in the coastal marine area. The possibility of conflict between the principles of Te Tiriti o Waitangi / the Treaty of Waitangi and the proposed aquaculture reforms was raised in claims before the Waitangi Tribunal. 1.2 The Waitangi Tribunal considered that the proposed reforms would breach the principles of Te Tiriti o Waitangi / the Treaty of Waitangi, as it found Māori have an interest in marine farming that forms part of a bundle of rights in the coastal marine area that represent a taonga protected by Te Tiriti o Waitangi / the Treaty of Waitangi (Ahu Moana: The Aquaculture and Marine Farming Report, WAI 953, Waitangi Tribunal Report 2002). 1.3 The Settlement Act was a legislated response to give effect to the findings and recommendations of the Waitangi Tribunal. The Settlement Act provides a full and final settlement of Māori claims to commercial aquaculture arising on or after 21 September 1992; and provides for the allocation and management of settlement assets relating to aquaculture. 1.4 The Settlement Act requires that iwi are provided with 20% of all new aquaculture space created through the establishment of aquaculture management areas from 1 January The Settlement Act also establishes the Crown s obligation to provide coastal iwi with the equivalent of 20% of the aquaculture space created between 21 September 1992 and 31 December 2004, including any space that was approved under the Marine Farming Act 1971 or Fisheries Act 1983 but issued after 1 January This is called pre-commencement space and is defined in section 20 of the Settlement Act. This deed applies only to pre-commencement space in Te Wai Pounamu and [Coromandel/Hauraki]. 1.5 The Settlement Act further provides that all settlement assets are to be transferred to Te Ohu Kai Moana Trustee Limited as trustee of the Māori Commercial Aquaculture Settlement Trust. The trustee then allocates the settlement assets to iwi aquaculture organisations within a particular region, or harbour, once all the iwi within a region have attained iwi aquaculture organisation status and the settlement asset entitlements and allocations have been determined. 2

7 1.6 The Settlement Act provides the Crown with three methods of complying with its pre-commencement space obligations. They are: New space method. The Minister of Fisheries may gazette Orders in Council requiring regional councils and unitary authorities to identify and transfer authorisations to the trustee for up to 20% of any new aquaculture space created from 1 January Purchase marine farm method. The Crown can purchase marine farms from 1 January 2008 and transfer the coastal permits associated with these farms to the trustee Financial equivalent method. Where the necessary space has not been provided to the trustee under the other methods, the Crown can pay the financial equivalent from 1 January The Settlement Act does not require the Crown at any particular time to comply with these methods in any particular way or combinations of ways. The Crown must use its best endeavours to comply with its pre-commencement space obligations by 31 December Settlement assets will be allocated on a region-by-region basis, based around the regions of regional councils and unitary authorities. The exceptions are those harbours identified in Schedule 2 of the Settlement Act. 1.9 Each iwi party is a mandated iwi organisation under the Māori Fisheries Act 2004 and an iwi aquaculture organisation under the Settlement Act A settlement register of the marine farming permits that are pre-commencement space has been developed by the Crown. This settlement register is adjusted for any pre-commencement space decisions approved under the Marine Farming Act 1971 or Fisheries Act 1983 after 1 January In July 2008 the Minister issued a plan for consultation (required under section 23 of the Settlement Act) that outlines options for the Crown to deliver its pre-commencement space obligations by 31 December That plan acknowledged that the financial equivalent method is most likely to be adopted in many regions as there is unlikely to be sufficient new space created in those regions to satisfy the Crown's obligations and the purchase marine farm method is very complex. NEGOTIATIONS TO DATE 1.12 During 2007, iwi of Te Tau Ihu (the northern South Island) approached the Minister and requested that the Crown consider an early settlement of the 3

8 Crown's aquaculture pre-commencement space obligations in Marlborough and Tasman regions. In June 2008, the Minister invited all mandated iwi with interests in Marlborough and Tasman to submit a proposal for the early settlement of the Crown's pre-commencement space obligations in the region, subject to the following parameters: all initial discussions on possible options for early completion of the pre-commencement space obligations are on a without prejudice basis; all options must be consistent with the underlying aquaculture settlement, being 20% equivalent of the pre-commencement space, and the underlying settlement is not re-negotiated; any options need to be consistent with the regional council and harbour boundaries in the Settlement Act, or an aggregation of those boundaries; proposals will be assessed against the financial methodology that will be outlined in the consultation document on how the Crown will progress the settlement; a process needs to be agreed to value any space resulting from future aquaculture permitting decisions under the Marine Farming Act 1971 and the Fisheries Act 1983; and the role of Te Ohu Kai Moana Trustee Limited in receiving and distributing settlement assets remains unchanged All mandated iwi (including Ngāi Tahu) with interests in Marlborough and Tasman agreed to prepare a proposal for the consideration of the Minister that could achieve an early settlement of the Crown's pre-commencement space obligations for the whole of Te Wai Pounamu Additionally the Hauraki Māori Trust Board, who represents the iwi of Hauraki with an interest in [Coromandel/Hauraki] (the east coast sub-region of the Waikato region as referred to in section 45 of the Settlement Act), approached the Minister requesting to be a party to the potential early settlement process. On the basis that [Coromandel/Hauraki] is a separate specified area in the Settlement Act with significant pre-commencement space and that the Hauraki Māori Trust Board wished to work with the iwi of Te Wai Pounamu, the Minister agreed that the Hauraki Māori Trust Board should participate in the process of presenting an early settlement proposal to him. 4

9 1.15 The Crown contracted an independent consultancy to prepare an estimate of the value of the Crown's pre-commencement space obligations in Te Wai Pounamu and [Coromandel/Hauraki]. This estimate was released to the iwi parties on 5 September In preparing the estimate there was engagement with the iwi parties and their advisors, though the estimate prepared by the Crown's consultants was not agreed to by the iwi parties On 9 September 2008 the iwi parties issued a proposal to the Minister to settle the Crown's pre-commencement space obligations in respect of Te Wai Pounamu and [Coromandel/Hauraki]. That proposal included the iwi parties' estimate of the value of the Crown's pre-commencement space obligations in Te Wai Pounamu and [Coromandel/Hauraki] On 22 September 2008 the Minister, the Minister in Charge of Treaty of Waitangi Negotiations, the Minister of Maori Affairs and the Associate Minister of Finance and the iwi parties met and negotiated the terms of an agreement to settle the Crown's pre-commencement space obligations to the iwi parties. That agreement was recorded in a non-binding agreement in principle dated 13 October 2008 which was to be given effect to through a formal deed and related legislation The parties have since then negotiated this deed to give effect to the Crown s pre-commencement space obligations in respect of Te Wai Pounamu and [Coromandel/Hauraki]. ENTRY INTO THIS DEED 1.19 Accordingly, the parties wish, in a spirit of co-operation and compromise, to enter, in good faith, into this deed setting out the basis on which the Crown s pre-commencement space obligations are satisfied. 5

10 2: SATISFACTION OF CROWN S PRE-COMMENCEMENT SPACE OBLIGATIONS THE OBLIGATIONS ARE SATISFIED 2.1 The iwi parties agree that, on and from the unconditional date: the Crown s pre-commencement space obligations are satisfied; and the Crown is released and discharged from all obligations and liabilities in respect of the Crown s pre-commencement space obligations; and the settlement of the Crown s pre-commencement space obligations is full and final; and as a result, the iwi parties, the iwi they represent, and any other entities representing those iwi, or members of those iwi, are prevented from pursuing claims against the Crown in respect of pre-commencement space, whether the claims are founded on rights arising by or in common law (including customary law and aboriginal title), Te Tiriti o Waitangi / the Treaty of Waitangi, statute, fiduciary duty or otherwise. 2.2 The Crown s pre-commencement space obligations are replaced by the payment obligations set out in part 3 and part 4. REGIONAL SETTLEMENTS 2.3 The parties agree that the Crown s pre-commencement space obligations are satisfied on a region by region basis. 2.4 The parties intend that the trustee makes its determinations under sections 44 to 51 of the Settlement Act in respect of: the regions of Te Wai Pounamu, on the basis of the [allocation agreement] between the Te Wai Pounamu iwi parties dated [ ]; and [Coromandel/Hauraki], on the basis of any allocation agreement reached or determination made after the date of this deed in accordance with the Settlement Act. 6

11 2.5 Except as provided in this deed, nothing in this deed: affects a right that an iwi, and members of an iwi, represented by an iwi party may have, including a right arising: (a) (b) (c) (d) (e) from Te Tiriti o Waitangi / the Treaty of Waitangi or its principles; under statute; at common law (including in relation to aboriginal title or customary law); from any fiduciary duty; or otherwise; or is intended to affect any action or decision under: (a) (b) the deed of settlement between Maori and the Crown dated 23 September 1992 in relation to Maori fisheries claims; or the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992; (c) the Maori Fisheries Act 2004; (d) the Fisheries Act 1983; (e) the Fisheries Act 1996; (f) the Marine Farming Act 1971; (g) the Maori Commercial Aquaculture Claims Settlement Act 2004; (h) the Foreshore and Seabed Act 2004; (i) the Resource Management Act 1991; or (j) the Marine Reserves Act Clause 2.5 does not limit clause 2.1. ACKNOWLEDGEMENTS 2.7 The parties acknowledge that the satisfaction of the Crown s pre-commencement space obligations with the iwi parties are intended to 7

12 enhance the ongoing relationship between the parties, both in terms of Te Tiriti o Waitangi / the Treaty of Waitangi and otherwise. 2.8 The parties acknowledge and agree that: the parties have acted honourably and reasonably in respect of the negotiations leading to the satisfaction of the Crown s pre-commencement space obligations; this deed is for the benefit of the iwi parties on behalf of the iwi they represent; and this deed is binding on the Crown and the iwi parties, and the iwi, and members of the iwi, represented by the iwi parties. 8

13 3: IMMEDIATE PAYMENTS PAYMENT OF EQUIVALENT AMOUNTS 3.1 The Crown must pay the trustee on the settlement date: $95,000,000 (being the sum of the settlement amounts less the on account payments made under clause 3.4); and interest from 13 October 2008 in respect of each settlement amount in accordance with clauses 3.2 and 3.3. INTEREST 3.2 The Crown will pay interest under clause 3.1.2: on $97,000,000 (being the sum of the settlement amounts) from 13 October 2008 until (but not including) the date on which the Crown makes payment under clause 3.4; on $95,000,000 from the date on which the Crown makes payment under clause 3.4 until (but not including) the date on which the Crown makes payment under clause 3.1.1; at the interest rate that is set from time to time by the Reserve Bank as the official cash rate, expressed as a percentage per annum; and calculated on a daily basis but not compounding. 3.3 Interest under clause 3.2 will be: subject to any tax payable; and paid to the trustee: (a) (b) on the settlement date; and after withholding any tax that is required by legislation to be withheld. ON ACCOUNT PAYMENTS 3.4 The Crown must pay to each of the iwi parties the amount of $200,000 within 20 business days of the date of this deed. 9

14 3.5 Each iwi party acknowledges that the payment made by the Crown under clause 3.4 is on account as to the amount of $200,000 for the iwi party s settlement assets allocation entitlement. 3.6 Each iwi party further acknowledges that clause 3.5 applies in respect of: an allocation arising out of this deed becoming unconditional; or if this deed is terminated, a subsequent allocation of settlement assets under the Settlement Act. 10

15 4: FUTURE PAYMENTS APPLICATION OF THIS PART 4.1 This part applies to space in Te Wai Pounamu and [Coromandel/Hauraki] that: became pre-commencement space after 28 September 2008 including, without limitation, the space listed in schedule 2; and becomes pre-commencement space under subsections (b) and (c) of section 20 of the Settlement Act after the date of this deed. FURTHER PAYMENTS 4.2 The Crown must pay to the trustee 20% of the value of the space to which this part applies as agreed or determined under schedule In respect of each area of further pre-commencement space, the Crown must make the payment under clause 4.2 by the later of: business days after the date on which the value of the space is agreed or determined under schedule 3; and the settlement date. INTEREST 4.4 Where the value of the further pre-commencement space is agreed or determined under schedule 3 more than 12 months after the date on which it becomes pre-commencement space, the Crown must also pay interest on 20% of the value from the day after the expiry of that 12 month period to (but not including) the date payment is made. 4.5 Interest under clause 4.4 will be: at the interest rate that is set from time to time by the Reserve Bank as the official cash rate, expressed as a percentage per annum; calculated on a daily basis but not compounding; subject to any tax payable; and 11

16 4.5.4 paid to the trustee on the date the payment under clause 4.2 is due. 12

17 5: TAXATION STATEMENT OF AGREED TAX PRINCIPLES 5.1 The parties agree that: the payment, credit, or transfer of settlement amounts and further amounts by the Crown to the trustee is made under the Settlement Act and as part of the arrangements in this deed and is not intended to be, or to give rise to: (a) (b) (c) a taxable supply for GST purposes; or assessable income for income tax purposes; or a dutiable gift for gift duty purposes; and the payment, credit or transfer by the trustee of settlement amounts and further amounts to the iwi parties is also made under the Settlement Act and the terms of the trust and is not intended to be, or to give rise to: (a) (b) (c) a taxable supply for GST purposes; or assessable income for income tax purposes; or a dutiable gift for gift duty purposes; and none of the trustee and the iwi parties (the recipients), nor any person associated with any of them, will claim an input credit (for GST purposes) or a deduction (for income tax purposes) with reference to the payment, credit, or transfer by the Crown or the trustee of a settlement amount or of a further amount; and interest paid by the Crown under this deed is income for income tax purposes and the tax treatment of such income will depend on the recipient's status for income tax purposes and the receipt or payment of that interest is not subject to indemnification for tax by the Crown under this deed; and income earned by the trustee from investment, pending allocation, of the settlement amounts and the further amounts, and of interest paid by the Crown under this deed, is income for income tax purposes and the tax treatment of such income will depend on the 13

18 recipient s status for income tax purposes and the receipt or payment of that income is not subject to indemnification for tax by the Crown under this deed; and any indemnity payment under this part by the Crown to a recipient is not intended to be, or to give rise to: (a) (b) a taxable supply for GST purposes; or assessable income for income tax purposes. ACKNOWLEDGEMENTS 5.2 To avoid doubt, the parties acknowledge: that the tax indemnities given by the Crown in this part, and the principles and acknowledgements in clause 5.1: (a) (b) apply only to the receipt by the recipients of settlement amounts and further amounts and indemnity payments; and do not apply to a subsequent use or application by an iwi party, or any other person, of a settlement amount or further amount or subsequent use or application by a recipient, or any other person, of an indemnity payment; and each obligation to be performed by the Crown in favour of the recipients under this deed is performed without charge to, or consideration to be provided by, the recipients or any other person. ACT CONSISTENT WITH TAX PRINCIPLES 5.3 None of the recipients, the Crown or any person associated with any of them will act in a matter that is inconsistent with the principles and acknowledgements set out in clause 5.1. MATTERS NOT TO BE IMPLIED FROM TAX PRINCIPLES 5.4 Nothing in part 5 is intended to suggest or imply that: the payment, credit, or transfer of a settlement amount or of a further amount or an indemnity payment by the Crown to a recipient, or of a settlement amount or of a further amount by the trustee to an iwi party, is chargeable with GST; or if a recipient is a charitable trust or other charitable entity: 14

19 (a) (b) the payments the recipient receives or derives from the Crown under this deed and the Settlement Act or, in the case of a settlement amount or of a further amount, an iwi party receives from the trustee under the Settlement Act are received or derived other than exclusively for charitable purposes; or the recipient derives or receives amounts other than as exempt income for income tax purposes; or gift duty is imposed on any payment to, or transaction with, the recipients under this deed or the Settlement Act. INDEMNITY FOR GST IN RESPECT OF SETTLEMENT AMOUNTS AND INDEMNITY PAYMENTS 5.5 If and to the extent that: the payment, credit, or transfer of a settlement amount, a further amount or an indemnity payment by the Crown to a recipient; or the payment, credit, or transfer of a settlement amount or of a further amount by the trustee to an iwi party, is chargeable with GST, the Crown must, in addition to the payment, credit, or transfer of the amount or the indemnity payment, pay the recipient the amount of GST payable in respect of the amount or the indemnity payment. INDEMNIFICATION 5.6 If and to the extent that: the payment, credit, or transfer of a settlement amount or of a further amount or an indemnity payment by the Crown to a recipient; or the payment, credit, or transfer of a settlement amount or of a further amount by the trustee to an iwi party, is chargeable with GST, and the Crown does not pay the recipient an additional amount equal to that GST at the time the amount or payment is paid, the Crown will, on demand in writing, indemnify the recipient for that GST within 10 business days of that demand. 15

20 INDEMNITY FOR INCOME TAX IN RESPECT OF SETTLEMENT AMOUNTS AND INDEMNITY PAYMENTS 5.7 The Crown agrees to indemnify the recipients against any income tax that the recipients are liable to pay if and to the extent that receipt of: the payment, credit, or transfer of a settlement amount or of a further amount or an indemnity payment by the Crown to a recipient; or the payment, credit, or transfer of a settlement amount or of a further amount by the trustee to an iwi party, is treated as, or as giving rise to, assessable income of the recipient for income tax purposes and the Crown will, on demand in writing, make the indemnity payment within 10 business days of that demand. INDEMNITY FOR GIFT DUTY IN RESPECT OF SETTLEMENT AMOUNTS 5.8 The Crown agrees to pay, and to indemnify the recipients against any liability that the recipients have in respect of, any gift duty assessed as payable by the Commissioner of Inland Revenue in respect of the payment, credit, or transfer by the Crown to the recipient of a settlement amount or of a further amount or by the trustee to an iwi party of a settlement amount or of a further amount. DEMANDS FOR INDEMNIFICATION 5.9 Each of: the indemnified parties; and the Crown, shall give notice to the other as soon as reasonably possible after becoming aware of an event or occurrence in respect of which an indemnified party is or may be entitled to be indemnified by the Crown for or in respect of tax under this part. HOW DEMANDS ARE MADE 5.10 Demands for indemnification for tax by an indemnified party in accordance with this part shall be made by the indemnified party in accordance with the provisions of clause 5.11 and may be made at any time, and from time to time, after the settlement date. 16

21 WHEN DEMANDS ARE TO BE MADE 5.11 Except: with the written agreement of the Crown; or if this deed provides otherwise, no demand for payment by way of indemnification for tax under this part may be made by an indemnified party more than 20 business days before the due date for payment by the indemnified party of the applicable tax (whether such date is specified in an assessment, is a date for the payment of provisional tax, or otherwise). EVIDENCE TO ACCOMPANY DEMAND 5.12 Without limiting clause 5.10, a demand for indemnification by an indemnified party under this part must be accompanied by: appropriate evidence (which may be notice of proposed adjustment, assessment, or any other evidence which is reasonably satisfactory to the Crown) setting out with reasonable detail the amount of the loss, cost, expense, liability or tax that the indemnified party claims to have suffered or incurred or be liable to pay, and in respect of which indemnification is sought from the Crown under this deed; and where the demand is for indemnification for GST, if the Crown requires, an appropriate GST tax invoice. REPAYMENT OF AMOUNT ON ACCOUNT OF TAX 5.13 If payment is made by the Crown on account of tax to an indemnified party or the Commissioner of Inland Revenue (for the account of an indemnified party) and it is determined or held that no such tax (or an amount of tax that is less than the payment which the Crown made on account of tax) is or was payable or properly assessed, to the extent that an indemnified party: has retained the payment (which, to avoid doubt, includes a situation where the indemnified party has not transferred the payment to the Inland Revenue Department but has instead paid, applied, or transferred the whole or any part of the payment to any other person or persons); or has been refunded the amount of the payment by the Inland Revenue Department; or 17

22 has had the amount of the payment credited or applied to its account with the Inland Revenue Department, the indemnified party shall repay the applicable amount to the Crown free of any set-off or counterclaim by the indemnified party. PAYMENT OF AMOUNT ON ACCOUNT OF TAX 5.14 The indemnified parties shall pay to the Inland Revenue Department any payment made by the Crown to the indemnified parties on account of tax, on the later of: the "due date" for payment of that amount to the Inland Revenue Department under the applicable tax legislation; or the next business day following receipt by the indemnified parties of that payment from the Crown. PAYMENT OF COSTS 5.15 The Crown will indemnify the indemnified parties against any reasonable costs incurred by the indemnified parties or for actions undertaken by the recipients at the Crown's direction, in connection with: any demand for indemnification of the indemnified parties under or for the purposes of this part; and any steps or actions taken by the indemnified parties in accordance with the Crown's requirements under clause DIRECT PAYMENT OF TAX: CONTROL OF DISPUTES 5.16 Where any liability arises to the Crown under this part, the following provisions also apply: if the Crown so requires and gives an indemnified party notice of that requirement, the Crown may, instead of payment of the requisite amount on account of tax, pay that amount to the Commissioner of Inland Revenue (such payment to be effected on behalf, and for the account, of the indemnified party); and subject to an indemnified party being indemnified to its reasonable satisfaction against any reasonable cost, loss, expense, or liability, or any tax which it may suffer, incur, or be liable to pay, the Crown may, by notice to the indemnified party, require the indemnified party to: 18

23 (a) (b) take into account any right permitted by any relevant law to defer the payment of any tax; and/or take all steps the Crown may specify to respond to and/or contest any notice, notice of proposed adjustment, or assessment for tax, where expert legal tax advice indicates that it is reasonable to do so; and the Crown reserves the right to: (a) (b) nominate and instruct counsel on behalf of the indemnified parties whenever it exercises its rights under clause ; and recover from the Commissioner of Inland Revenue the amount of any tax paid and subsequently held to be refundable. RULINGS, APPLICATIONS 5.17 If the Crown requires, the indemnified parties will consult, and/or collaborate, with the Crown in the Crown's preparation (for the Crown, the indemnified parties and/or any other person) of an application for a non-binding or binding ruling from the Commissioner of Inland Revenue with respect to any part of the arrangements relating to the payment, credit, or transfer of indemnity amounts or other amounts. DEFINITIONS AND INTERPRETATION 5.18 In the interpretation of this part 5, a reference to the payment, credit, transfer, or receipt of an amount (or any equivalent wording) includes a reference to the payment, credit, transfer, or receipt of any part (or the applicable part) of the amount. TRUSTEE RESPONSIBILITY [Note: as agreed, this will be supported by a separate covenant by which the trustee agrees to be bound by this deed.] 5.19 The trustee must: take all reasonable and practical steps available to it to ensure that the trust is treated as a charitable trust for income tax purposes, including registering the trust with the Charities Commission before the settlement date; and 19

24 keep the Crown fully informed in relation to the progress in taking those steps. IWI PARTY RESPONSIBILITY 5.20 If this part 5 imposes an obligation on an iwi party or an associated entity, the relevant iwi party shall take all reasonable and practicable steps available to the iwi party to procure the performance by the organisation or person of that obligation. 20

25 6: INTRODUCTION OF LEGISLATION AMENDING LEGISLATION TO BE INTRODUCED 6.1 The Crown must propose amending legislation for introduction to the House of Representatives within 3 months of the date of this deed. 6.2 The legislation proposed: must be in the form set out in schedule 4; but may include other amendments to the Settlement Act that do not affect this deed. [note: drafting of this clause may be refined once drafting of the amendments to the Settlement Act is finalised for inclusion in schedule 4] AMENDING LEGISLATION TO BE SUPPORTED 6.3 The iwi parties and the trustee must support the passage through Parliament of the amending legislation. 21

26 7: CONDITIONS THIS DEED IS CONDITIONAL 7.1 This deed is conditional on: the trustee confirming that all the iwi parties are all the iwi aquaculture organisations for Te Wai Pounamu and [Coromandel/Hauraki]; and the amending legislation coming into force. THIS DEED WITHOUT PREJUDICE UNTIL UNCONDTIONAL 7.2 This deed, until it becomes unconditional: is entered into on a without prejudice basis; and in particular, may not be used as evidence in any proceedings before, or presented to, a court, tribunal (including the Waitangi Tribunal), or other judicial body. 7.3 Clause 7.2 does not exclude any jurisdiction of a court, tribunal, or other judicial body in respect of the interpretation or enforcement of this deed. SOME PROVISIONS NOT CONDITIONAL 7.4 Despite clause 7.1, clauses 3.3 to 3.6, part 6 and schedule 3 are binding from the date of this deed. 7.5 The Crown or an iwi party may terminate this deed, by notice to the other, if both the conditions in clause 7.1 have not been satisfied within 18 months after the date of this deed. [Shorter timeframe for to be considered] 7.6 If this deed is terminated: it will be at an end; and no person will have any rights or obligations under it, except that the rights and obligations under clauses 3.3 to 3.6 and clause 7.2 continue. 22

27 8: MISCELLANEOUS NOTICES 8.1 Unless otherwise provided in this deed, the provisions of clause 8.2 apply to notices under this deed to or by an iwi party, the Crown or the trustee. 8.2 The following provisions apply to notices referred to in clause 8.1: Notices to be signed the person giving the notice must sign it [(but, where the trustees for the time being of a trust are an iwi party, a minimum of [two] of those trustees must sign it)]; Notices to be in writing the notice must be in writing addressed to the recipient at its address or facsimile number; Addresses and facsimile numbers of the iwi parties and the Crown the address and facsimile number of iwi parties, the Crown and the trustee are provided for in schedule 5; Change of address or facsimile number the address or facsimile of an iwi party may be changed by notice to the Crown and the other iwi parties; the address or facsimile number of the Crown may be changed by notice by the Crown to the iwi parties; Delivery delivery of a notice may be made: (a) (b) (c) by hand to the recipient s address; or by posting an envelope with pre-paid postage addressed to the recipient s address; or by facsimile to the facsimile number of the recipient; 23

28 Timing of delivery a notice delivered: (a) (b) (c) by hand will be treated as having been received at the time of delivery; or by pre-paid post will be treated as having been received on the second day after posting; or by facsimile will be treated as having been received on the day of transmission; Deemed date of delivery if a notice is treated as having been received on a day that is not a business day, or after 5.00pm on a business day, that notice is (despite clause 8.2.7) to be treated as having been received the next business day; Serving copies a copy of each notice must be served on all other parties to the deed and to the trustee; Regional notices subject to clause , where a notice to or from an iwi party relates only to one settlement region, the notice need only be given: (a) (b) (c) by the Crown, to the iwi party in the settlement region and copied to all the other iwi parties in the settlement region and the trustee; by the trustee, to the iwi party in the settlement region and copied to all the other iwi parties in the settlement region; by an iwi party, to the other iwi party, the Crown or trustee, and copied to the trustee or the Crown and to all other iwi parties in the settlement region; and the iwi parties in a settlement region may together by written notice nominate one of them, or another person, to be the sole recipient and donor of notices in respect of matters that relate to 24

29 the settlement region, in which case copies do not need to be served on the other iwi parties in the region. AMENDMENT 8.3 This deed may be amended only by a written amendment signed by the parties. 8.4 Where an amendment relates only to one settlement region and does not affect any other settlement region, the amendment may be signed only by the iwi parties with interests in that settlement region. ENTIRE AGREEMENT 8.5 This deed: constitutes the entire agreement in relation to the matters in it; and supersedes all earlier negotiations, representations, warranties, understandings and agreements in relation to the matters in it including the agreement in principle. NO WAIVER OR ASSIGNMENT 8.6 Except as provided in this deed: a failure, delay, or indulgence in exercising a right or power under this deed, does not operate as a waiver of that right or power; a single, or partial, exercise of a right or power under this deed does not preclude: (a) (b) a further exercise of that right or power; or the exercise of another right or power; and a person may not transfer or assign a right or obligation under this deed or a settlement document. 25

30 9: DEFINITIONS AND INTERPRETATION DEFINITIONS 9.1 In this deed and its schedules, unless the context otherwise requires: amending legislation means the Bill referred to in clauses 6.1 and 6.2 and, when that bill is passed, means the Act resulting from the passing of that Bill; aquaculture activities has the same meaning as in section 2(1) of the Resource Management Act 1991; business day means the period of 9.00am to 5.00pm on any day of the week other than: (a) (b) (c) Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, the Sovereign s Birthday, Labour Day, and Waitangi Day; and a day in the period commencing on 25 December in any year and ending with the close of 15 January in the following year; and the days observed as anniversaries of Wellington or any of the regions of Te Wai Pounamu or [Coromandel/Hauraki]; coastal marine area has the same meaning as in section 2(1) of the Resource Management Act 1991; [Coromandel/Hauraki] means the east coast sub-region of the Waikato region referred to in section 45 of the Settlement Act; Crown has the same meaning as in section 2(1) of the Public Finance Act 1989; Crown s pre-commencement space obligations means the obligations on the Crown under section 22 of the Settlement Act in relation to: (a) the regional coastlines of Te Wai Pounamu and [Coromandel/Hauraki]; and (b) harbours forming part of those coastlines; date of this deed means the date this deed is signed by the parties; further amount means an amount payable under clause 4.2; 26

31 further pre-commencement space means space to which part 4 applies; harbour is a harbour listed in Schedule 2 of the Settlement Act; indemnified party means a party entitled to be indemnified under part 5; iwi aquaculture organisation has the same meaning as in section 4 of the Settlement Act; iwi party means each of: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) Ngāti Apa Ki Te Waipounamu Trust representing Ngāti Apa ki te Ra To; and Ngāti Koata Trust representing Ngati Koata; and Te Rūnanga o Ngati Kuia Charitable Trust representing Ngati Kuia; and Ngāti Rarua Iwi Trust representing Ngati Rarua; and Te Rūnanga a Rangitane o Wairau representing Rangitane (Te Tau Ihu); and Ngāti Tama Manawhenua ki Te Tau Ihu Trust representing Ngati Tama (Te Tau Ihu); and Te Rūnanga o Toa Rangatira Incorporated representing Ngāti Toa Rangatira; and Te Atiawa Manawhenua ki Te Tau Ihu Trust representing Te Atiawa (Te Tau Ihu); and Te Rūnanga o Ngāi Tahu representing Ngāi Tahu; and Hauraki Māori Trust Board (as Trustee of the Pare Hauraki Fishing Trust) representing the iwi of Hauraki referred to in Schedule 3 of the Maori Fisheries Act 2004; mandated iwi organisation has the same meaning as in section 5 of the Māori Fisheries Act 2004; Minister means the Minister of Fisheries; party means: (a) an iwi party; and 27

32 (b) the Crown; pre-commencement space has the same meaning as in section 20 of the Settlement Act; recipient is defined in clause 5.1.3; recognised iwi organisation has the same meaning as in section 5 of the Māori Fisheries Act 2004; region means the region of a regional council or unitary authority referred to in schedule 2 but, in the case of the Waikato Regional Council, means [Coromandel/Hauraki]; regional coastline has the same meaning as in clause 2 of Schedule 1 of the Settlement Act; regional council means a regional council named in Part 1 of Schedule 2 to the Local Government Act 2002; Settlement Act means the Maori Commercial Aquaculture Claims Settlement Act 2004; settlement amount means, in relation to a regional coastline of the region and the harbours forming part of that coastline, the amount set out in schedule 1 next to the region of that regional coastline; settlement assets has the same meaning as in section 5 of the Settlement Act; settlement date means the date that is 10 business days after the unconditional date; settlement region means each of the following regions or grouping of regions: (a) (b) (c) Coromandel/Hauraki; the planning areas of the Marlborough District Council, and the Tasman District Council; and the planning areas of the Canterbury Regional Council, West Coast Regional Council and Southland Regional Council; settlement register means the register of pre-commencement space established and maintained by the Ministry of Fisheries in accordance with 28

33 section 57 of the Settlement Act and the Maori Commercial Aquaculture Claims Settlement (Aquaculture Settlement Register) Regulations 2006; space has the same meaning as in section 2(1) of the Resource Management Act 1991; Te Wai Pounamu means the South Island, being the planning areas of the following regional councils and unitary authorities: (a) (b) (c) (d) (e) (f) Canterbury Regional Council; Otago Regional Council; Southland Regional Council; West Coast Regional Council; Marlborough District Council; and Tasman District Council; trust means the trust established under section 34 of the Settlement Act; trustee has the same meaning as in section 4 of the Settlement Act; unconditional date means the date on which this deed becomes unconditional under clause 7.1; and unitary authority has the same meaning as in section 5 of the Local Government Act INTERPRETATION 9.2 In the interpretation of this deed and its schedules, unless the context otherwise requires: headings appear as a matter of convenience and do not affect the interpretation of this deed; defined terms have the meanings given to them by this deed; where a word or expression is defined in this deed, any other part of speech or grammatical form of that word or expression has a corresponding meaning; the singular includes the plural and vice versa; a word importing one gender includes the other genders; 29

34 9.2.6 a reference to a clause, part or schedule is to a clause, part or schedule of or to this deed; a reference in a schedule to a paragraph means a paragraph in that schedule; a reference to legislation includes a reference to that legislation as amended, consolidated, or substituted; a reference to a party in this deed, or in any other document or agreement under this deed, includes that party s permitted successors; an agreement on the part of two or more persons binds each of them jointly and severally; a reference to a document or agreement, including this deed, includes a reference to that document or agreement as amended, novated, or replaced from time to time; a reference to a monetary amount is to New Zealand currency; a reference to written or in writing includes all modes of presenting or reproducing words, figures, and symbols in a tangible and permanently visible form; a reference to a person includes a corporation sole and a body of persons, whether corporate or unincorporate; a reference to the Crown, or a Crown agency, endeavouring to do something or to achieve some result means reasonable endeavours to do that thing or achieve that result but, in particular, does not oblige the Crown or the Government of New Zealand to propose for introduction to the House of Representatives any legislation, except if this deed requires the Crown to introduce legislation; if a clause includes a preamble, that preamble is intended to set out the background to, and intention of, the clause, but is not to affect its interpretation; in the event of a conflict between a provision in the main body of this deed (namely, any part of this deed except the schedule or an attachment) and the schedule or an attachment, then the provision in the main body of this deed prevails; 30

35 a reference to a document as set out in, or on the terms and conditions contained in, the schedule or any attachment includes that document with such amendments as may be agreed in writing between the parties; a reference to a date on or by which something must be done includes any other date that may be agreed in writing between the parties; where something is required to be done by or on a day which is not a business day, that thing must be done on the next business day after that day; a reference to time is to New Zealand time; and reference to a particular Minister includes any Minister who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of the relevant legislation or matter. 31

36 EXECUTION Signed for and on behalf of the Sovereign in right of New Zealand by the Minister of Fisheries in the presence of... Hon Phil Heatley... Witness signature... Full name (please print) Signed for and on behalf of the Sovereign in right of New Zealand by the Minister in Charge of Treaty of Waitangi Negotiations in the presence of... Hon Christopher Finlayson... Witness signature... Full name (please print) Signed for and on behalf of the Sovereign in right of New Zealand by the Minister of Maori Affairs in the presence of... Hon Dr Pita Sharples... Witness signature... Full name (please print) 32

37 Signed for and on behalf of the Sovereign in right of New Zealand by the Minister of Finance in the presence of... Hon Bill English... Witness signature... Full name (please print) [Note: Iwi representatives to confirm required method of execution by each of the iwi parties in accordance with their individual constitutions/trust deeds] 33

38 34

39 SCHEDULE 1 SETTLEMENT AMOUNTS [Note: Iwi representatives consider that this schedule should be amended to refer to 3 settlement regions and to list interested iwi in respect of each settlement region. To be discussed further with Crown officials.] REGION SETTLEMENT AMOUNT Marlborough District Council $38,627,604 Tasman District Council $32,242,547 Canterbury Regional Council $3,303,488 West Coast Regional Council $490,543 Southland Regional Council $2,043,387 Waikato Regional Council* $20,292,431 Total $97,000,000 *Amount relates only to [Coromandel/Hauraki]. 35

40 SCHEDULE 2 PRE DEED FURTHER PRE-COMMENCEMENT SPACE [Here describe space that became pre-commencement space after 22 September 2008 but before the deed was signed] 36

41 SCHEDULE 3 VALUATION PROCESS FOR FURTHER PRE-COMMENCEMENT SPACE [Note: Detailed provisions to give effect to Attachment C of the Agreement in Principle will be inserted once agreed between the parties.] 37

42 SCHEDULE 4 CONTENT OF AMENDING LEGISLATION [Note: draft Bill will be inserted here once finalised and agreed between the parties] 38

43 SCHEDULE 5 NOTICES [In accordance with clause of this deed, the addresses and facsimile numbers of all iwi parties, the Crown and the trustee will be inserted] 39