DRAFT AQUACULTURE DEED OF SETTLEMENT
On 13 October 2008, the iwi of Te Wai Pounamu (along with the Hauraki Maori Trust Board), signed an Agreement in Principle with the Crown to satisfy the Crown’s “pre-commencement” space obligations under the Maori Commercial Aquaculture Claims Settlement Act 2004 (MCACSA). The MCACSA obliges the Crown to provide iwi with the equivalent of 20% of all aquaculture space created between 21 September 1992 and 31 December 2004 (“pre-commencement space”).

The Crown must use its best endeavours to comply with those obligations by 1 January 2014 and has three options for doing so:
• New space method. The Crown may require local authorities to transfer up to 20% of any new aquaculture space created from 1 January 2005;
• Purchase marine farm method. The Crown can purchase marine farms from 1 January 2008 and transfer the coastal permits associated with these farms to iwi;
• Financial equivalent method. If all else fails, the Crown can pay iwi the financial equivalent from 1 January 2013.
By the middle of 2008, iwi and the Crown had both acknowledged that there was unlikely to be enough new space in most regions for that method to be useful, that Crown purchase of coastal permits was complex and that it was therefore likely that by 2013 the Crown would have to pay the financial equivalent in a number of regions. As a result, the Minister of Fisheries invited Te Wai Pounamu iwi to make a proposal for the early settlement of their entitlements in respect of “pre-commencement space”. The iwi of Hauraki joined forces with Te Wai Pounamu iwi to make a joint proposal also covering their region, with substantial assistance from Te Ohu Kaimoana (as Trustee of the Maori Commercial Aquaculture Settlement Trust/the Takutai Trust).
After extensive work with valuers and aquaculture industry experts, the iwi made a proposal to the Minister in respect of pre-commencement space in Te Wai Pounamu and Hauraki. That proposal resulted, after some negotiation, in an agreement being reached and recorded in the Agreement in Principle for the Settlement of the Crown’s Pre-Commencement Space Obligations under the Māori Commercial Aquaculture Claims Settlement Act 2004 for Te Wai Pounamu and Coromandel (“the Agreement in Principle”), signed by the Crown and iwi parties on 13 October 2008.
The key features of the settlement provided for in the Agreement in Principle documents (as they relate to Te Wai Pounamu) are:
• A total of $76.7M to be paid by the Crown as the financial equivalent of all of the pre-commencement space that currently exists in all regions of Te Wai Pounamu. Of this sum, $70.87M relates to Te Tau Ihu (the Marlborough, Nelson and Tasman regions) and $5.83M relates to the rest of the regions of Te Wai Pounamu;
• An ‘ex gratia’ sum of $200,000 to be paid to each of the Iwi Aquaculture Organisations representing the iwi parties to the agreement immediately on signing of the Deed of Settlement. It is estimated that this should occur in March or April 2009;
• The remainder of the quantum (plus interest) to be paid by the Crown to Te Ohu Kaimoana, as Trustee of the Maori Commercial Aquaculture Settlement Trust (the Takutai Trust) once amendments to the MCACSA necessary to give effect to the Deed of Settlement have been passed by Parliament. Te Ohu will immediately transfer this sum to the Iwi Aquaculture Organisations on the basis of an ‘allocation agreement’ setting out how the sum is to be divided between the iwi. Agreement has been reached on this point and will be formalised by the iwi signing an allocation agreement prior to the signing of the Deed of Settlement.
• The Crown introducing into Parliament the amendments to the MCACSA to give full effect to the settlement as soon as reasonably practicable after the signing of the Deed. Those amendments will be included in the Deed itself and the iwi signatories to the Deed will commit themselves to supporting passage of the amendments.
• The draft Deed of Settlement will also set out an agreed process for valuing and compensating iwi for pre-2005 applications which are yet to be approved. These applications, if granted, will create further pre-commencement space and therefore further entitlements for iwi.
• Acceptance that the Crown’s obligations to the iwi in respect of pre-commencement space have been satisfied, that it will be released from those obligations and that the settlement is full and final;
• Only rights in respect of pre-commencement space are settled by the settlement. Neither rights under the MCACSA in respect of new aquaculture space nor customary or aboriginal title rights or claims are affected in any way;
The agreement presents three key advantages for iwi over the process set out in the MCACSA:
• Compensation for the pre-commencement space should be paid to iwi before the end of 2009, rather than 2013/14. Iwi will be able to invest those funds in aquaculture or other sectors and significantly grow them over the five years that they would otherwise have remained with the Crown;
• The quantum is a fair valuation of the pre-commencement space, negotiated and agreed between iwi and the Crown. If the MCACSA process was left to run, the iwi would have no input to the sum assessed by the Crown as fair compensation in 2013/14 and no way of challenging an unfair assessment except through litigation;
• Resolving the pre-commencement space issue will remove one of the impediments that has detrimentally affected aquaculture development in general, from which a number of iwi will benefit as investors and participants in the industry.

This information and a presentation are available in our 'download' section