Treaty of Waitangi Settlements - 5 ways to avoid negotiating what turns out to be an unsatisfactory deal!

AUTUMN 2014

    Treaty of Waitangi Settlements – 5 ways to avoid negotiating what turns out to be
                                an unsatisfactory deal!

   Reforms to appoint external managers over Maori land … make sure you have your
                                        say!

       Health & Safety shakeup for Primary Sector…fines significantly increased…

                        Maori Trust Board loses employment case...

Treaty of Waitangi Settlements – 5 ways to avoid
negotiating what turns out to be an unsatisfactory deal!

Some groups who have completed settlements of their Treaty of Waitangi claims with the
Crown are now questioning the value of their settlement, and in particular whether the deal
negotiated was in fact a good deal.

In our experience some groups who have completed settlements are now questioning matters
such as:

    Sufficiency of the commercial quantum to meet the group’s ongoing aspirations;

    Value of the lands paid for out of commercial redress and the ability of these lands to
     generate income;

    Ongoing costs associated with maintaining cultural redress received;

    Ongoing costs associated with co-management of resources; and

    Ongoing costs of future engagement with the Crown.

Ongoing costs can be substantial and provide a significant strain on the resources and viability
of Post-Settlement Governance Entities into the future…and may as a result cause members
of groups to wonder about the overall adequacy of the settlement deal entered into in the first
place.

The following are 5 tips to help ensure your group negotiates a deal that is fair and reasonable
and that will allow for achievement of the group’s reasonable aspirations for the future.

 1. Due diligence is critical. Doing your homework on what assets are to be included, and
    the benefits and costs associated with each asset into the future.

 2. Identify the ongoing costs of managing cultural redress lands, and co-management, and
    factor these in to your commercial negotiation deliberations. There should be sufficient
    income from your commercial assets to meet all future commitments, including the costs
    associated with cultural redress/co-management.

 3. Where costs for managing cultural redress and co-management are not covered by any
    commercial redress, consider whether these should be included in the settlement at all. If
    so how will such costs be met.

 4. Consider how ongoing costs of future engagement with the Crown are going to be met.
    Will the Crown agree to make a contribution or will these have to be met solely by your
    group.

 5. Get expert advice from advisers who are experienced in the area and aware of these
    types of issues.

Complying with these 5 tips is crucial and will help ensure that you negotiate a fair and
reasonable deal that the group need not question in the future!

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                                   0800 729 529

Reforms to appoint external managers over Maori land …
make sure you have your say!

The recently released Te Ture Whenua Maori Act 1993 Review Panel Report contains a
number of recommendations for reform of the laws relating to Maori land that, if implemented,
may dramatically impact the ways in which Maori land can be managed or utilised.

One of the key recommendations includes the ability to appoint external managers to
administer under-utilised Maori land blocks when there is no engagement by the owners.

It is unclear how this mechanism will be triggered and by whom? In particular there is no
guidance about whether it will be able to be triggered by:

    Local councils for unpaid rates;

    Potential lessees who have been unable to obtain a quorum of owners to lease the land;

    The owners themselves; and/or

    Neighbouring Maori Land Trusts or Incorporations.

Practical implications for Maori land owners

The appointment of an external manager has the potential of moving the governance of lands
over to a third party to utilise on the owners behalf and without their consent.

Once appointed, it is unclear what powers the external administrator will have and whether or
not they will be required to seek the views of owners who can be located before making
decisions about how to utilise the land. It is likely that an external manager will be able to
make key decisions concerning the utilisation of the land for a farm or lease out to a third party.

It is proposed that the amending legislation will be introduced following this year’s general
election and following further consultation with Maori. Given the significance of the proposed
reforms it is important for you to have your say.

                               CALL US TOLL FREE ON
                                    0800 729 529

Health & Safety shakeup for Primary Sector…fines
significantly increased…

Under the current law fines of over $100,000 are common and reparation orders of up to
$250,000 made. These are likely to increase dramatically under a new Health & Safety at
Work Act proposed in legislation introduced by the Government.

The Act follows the inquiry into the Pike River disaster but will also apply to the primary sector
including forestry, farming and fishing workplaces.

The proposed Act significantly increases fines and terms of imprisonment for offences. It also
strengthens the roles of inspectors and Health & Safety worker representatives.
Risks must be identified. The responsible person must then eliminate the risks so far as
reasonably practicable. If the risk cannot be eliminated then it must be minimised as far as
reasonably practicable.

Primary Sector Employers

There is a duty on employers to ensure the health & safety of workers and others affected by
the work.

Primary Sector Self Employed

The self-employed must ensure their own health & safety.

Company Officers

Officers of companies and other entities including Maori land trusts and incorporations must
ensure that they keep up to date with Health & Safety matters and ensure that they implement
processes to comply with the Act.

Workers & Visitors

Workers and visitors must take reasonable care of their own Health & Safety, not harm others
and comply with instructions & policies.

The duties are not transferable and a person can have more than one duty. More than one
person can have the same duty. If so they must consult, cooperate and coordinate with each
other.

Penalties

The sanctions under the Act have been significantly increased. Individuals exposing a person
to the risk of death or serious injury/illness can be sentenced to a five-year prison term, or a
fine of $600,000, and the maximum fine for a company (including a Maori Land Trust or
Incorporation) is going to be $3million.

Everyone will need to be aware of their obligations under the Act and take steps to ensure they
comply.

Contracting out of the Act is prohibited and it is not lawful to insure against fines.

                               CALL US TOLL FREE ON
                                    0800 729 529

Maori Trust Board loses employment case...

The Employment Relations Authority has ordered a Maori Charitable organisation to pay lost
wages of tens of thousands and $12,000 compensation after it sacked its CEO only 88 days
into her employment.

The Board raised 13 allegations of serious misconduct plus other allegations of misconduct but
the ERA held that the process of investigation was so deficient the employer had not fairly
investigated the allegations and that it was an unjustified dismissal. None of the allegations
could be viewed by any fair and reasonable employer as amounting to serious misconduct.

The Board’s disciplinary process was flawed, its investigation was not done properly, it
predetermined the outcome and did not take the CEO’s explanations into account.

All organisations carrying out employment disciplinary or performance processes need to do
so in a fair way and being a charitable social service provider will not save the organisation
from severe financial consequences if they get the process wrong.

                               CALL US TOLL FREE ON
                                    0800 729 529

                                 Tel (04) 473 6850       Level 16
                                 Fax (04) 473 9304       163 - 171 Featherston Street
                                      DX SP20010         PO Box 689
                          www.raineycollins.co.nz        Wellington 6140

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