december 2018 newsletter your legal update · this year, meri kirihimete me ngā mihi o te tau hou...

Where law meets life

December 2018Newsletter

Your Legal Update

December 2018 Newsletter | Your Legal UpdateWhere law meets life

To our clients, colleagues and community,

As we near the end of 2018 we want to thank you for your continuing support of the firm.

This year we have laid the foundation for innovation and change in 2019. From relocation plans, to introducing new and relevant service offerings, to upgrading our website and adopting useful technology to support the legal experience we want to offer.

It has been a year of economic and social influences which have no doubt pushed and pulled on us all and the firm has endeavoured to remain a trusted and reliable advisor, just as we have been over the past 139 years.

Alongside our efforts to innovate the legal service, support and experience that we provide to our community remain at the heart of our focus. We are proud of the relationships that we have in the region and look forward to building on these in 2019.

From all of our team of professional people who have assisted with your legal requirements this year, Meri Kirihimete me ngā mihi o te tau hou hoki ki a koutou katoa! Merry Christmas and a happy new year to you all!

Enjoy the December edition of our newsletter.

Sophie Braggins, CEO

CEO Introduction

In this issuePage 1.CEO Introduction

.Rural Leases

Page 3.Overlapping Historical Treaty Claims

Page 4.The Domestic Violence – Victims’ Protection Act 2018

Page 5.Mana Whakahono ā Rohe: Iwi Participation Arrangements

Page 7.Unpaid Rates Lead to Sale of PropertyWhen You May Have to Pay Tax Selling a Property

Page 8.GQ in the Community

GQ are a Key Partner of the Taranaki Chamber of Commerce supporting business excellence in the region. Members of our team at the TSB Business Excellence Awards on Saturday, 27 October (from left: Sophie Braggins, Laurie Shearer, Rebecca Eaton, Nic Croft, Paige Hellier, Kirsty Miller, Beatrice Chamberlain, Catherine Grogan and Will Downey).

Rural Leases

A rural lease (“lease”) is a legally binding document which governs the relationship between the landlord and the tenant for the use of rural land.

Often rural leases are entered into as a gentleman’s agreement with a handshake to seal the deal. This works fine until something goes wrong and/or there is a disagreement between the landlord and the tenant. It is always best to discuss and put in place a written lease when both parties are on good terms rather than in the middle of a dispute.

Leases can be beneficial to both the landlord and the tenant. The landlord benefits by receiving regular payments for the use of their land; maintains the capital gains during the length of the lease; and if the farmer was considering selling because of retirement, possibly leasing is an alternative which creates income and the farmer continues to own the land. With the cost of land becoming prohibitive, for many young farmers, leasing provides the opportunity to build an asset base without the initial cost of land purchase.

The terms of the lease, the area which is to be leased, and the rent amount are minimum requirements required to be stated in a lease. Other terms can be drafted

in to reflect the unique situation between the parties.

Some terms which are worth thinking about are:

Permitted useDoes the landowner want only certain farming activities to take place and not others? Different activities could affect the soil quality for future use. Are animals allowed on the land? If so, which ones? Etc.

Landlord pays for? Tenant pays for?It is good to specify in the lease who is paying for what, such as the electricity, rates, water charges, insurances etc. With farmland, it is worth thinking about discussing, and possibly drafting into the lease; who is in charge of the weed control, fence repair, gate repair, fertilizer etc.?

Rent ReviewThis can be an area where disagreements occur quite frequently between the landlord and the tenant. The lease can include when and how the rent reviews will be handled and the right to renewal. Having this set out in the lease from the beginning will allow the landlord and the tenant to avoid disagreements and maintain a good relationship.

SublettingIt is common to require the tenant to obtain the landlord's consent prior to subletting the property. Or the landlord may not want the tenant to sublet the property at any time. This will need to be discussed and agreed upon while parties are drafting the lease and on good terms.

CroppingAre there any restrictions as to what type of crop the land is used for? At the expiry of the lease, in what state does the tenant have to return the land to the landlord? Does the grass have to be a certain length, etc.?

Leases should not be entered into lightly as landlords are likely to be dealing with their biggest asset, land. There should be careful consideration and thought to make sure that the asset is protected during the duration of the lease and will be returned in an acceptable state after the lease expires.

We strongly advise that legal advice should be sought, prior to signing the lease, whether you are the landlord or the tenant. This is to make sure that the lease is a reflection of what both parties require to make this venture beneficial, what is expected of both parties, and when, and what the land can be used for.

2

December 2018 Newsletter Govett Quilliam | Where Law meets Life

Overlapping Historical Treaty Claims – Ngāti Whātua Ōrakei Trust v Attorney General [2018] NZSC 84

The Supreme Court has recently addressed the issue of overlapping historical Treaty claims in the landmark case of Ngāti Whātua Ōrakei Trust v Attorney General [2018] NZSC 84.

Overlapping historical Treaty claims or cross claims occur when two or more claimant groups make claims over the same area of land (which is the subject of historical Treaty claims).

Ngāti Whātua Ōrakei sought to challenge the Crown’s proposed transfer of Crown owned commercial properties in central Auckland to Ngāti Paoa and Marutūāhu as part of their settlement packages on the basis the proposed transfers intrude on their mana whenua rights, is contrary to tikanga and a breach of their Treaty settlement already entered into with the Crown in 2011. Ngāti Whātua Ōrakei also claimed that the Crown’s existing overlapping claims policy was wrong in law.

The Crown’s proposed transfers to Ngāti Paoa and Marutūāhu were originally going to be transferred by way of administration thereby leaving it open for Ngāti Whātua Ōrakei to challenge. However, after Ngāti Whātua Ōrakei filed its initial claim in the High Court, the Minister for Treaty Negotiations advised that all transfers would be made by way of legislation.

The High Court and Court of Appeal proceedings Ngāti Whātua Ōrakei brought judicial review proceedings challenging decisions by the Minister relating to the proposed transfer of properties to Ngāti Paoa and Marutūāhu. The Attorney-General sought to strike out the claim on the basis that Ngāti Whātua Ōrakei were attempting to directly

challenge a decision to legislate thereby triggering the principle of non-interference with parliamentary proceedings. Ngāti Whātua Ōrakei’s claim was struck out in the High Court on the basis that the relief they were seeking was related to the development of legislation proposals and granting their declarations would breach the constitutional principle of non-interference by courts in parliamentary proceedings. The decision to strike out Ngāti Whātua Ōrakei’s claim was upheld by the Court of Appeal. The principle issue on appeal to the Supreme Court was whether Ngāti Whātua Ōrakei’s claim should be permitted to proceed on the basis that it is properly characterised as a claim for the recognition of various rights as opposed to a challenge to the decision to legislate.

The Supreme Court proceeding A full-bench decision of the Supreme Court has given Ngāti Whātua Ōrakei the green light to argue their case, allowing the appeal in part, and remitting the case to the High Court for a hearing. The majority found that most of Ngāti Whātua Ōrakei’s claims involved public law decisions about what rights Ngāti Whātua Ōrakei had in relation to the land in question rather than a challenge to the legislation proposals and that such decisions can be challenged without interference with parliamentary proceedings.

The Chief Justice Sian Elias would have allowed the appeal in its entirety noting that a proposal to implement a decision through legislation did not prevent the Court making declarations as to rights as long as it did not prevent or inhibit consideration of legislation by Parliament. The Chief Justice noted that the Crown’s position could set a concerning precedent

for the transfer of further land in central Auckland to other iwi in future Treaty claims, without reference or approval of Ngāti Whātua Ōrakei. Finally, the Chief Justice considered that the case had broader application to the Crown’s post-settlement obligations to iwi.

Overall, the Supreme Court decision makes it clear that Crown decisions regarding the transfer of land subject to overlapping claims as part of proposed historical Treaty claims can be judicially reviewed. Ngāti Whātua Ōrakei will need to make a decision about whether they will take the case back to the High Court.

The Crown’s overlapping claims policy has a broader application than Auckland as can be seen with the Tauranga Moana and Hauraki collective dispute in respect of overlapping claims. This judgment potentially raises some interesting issues around how far our Courts are willing to go in terms of assessing whether key Māori principles such as mana whenua, tapu and noa should guide Crown engagement with Māori and how the recognition of tikanga in the law will continue to develop.

The information in this article is for informative purposes only and should not be relied on as legal advice. Please contact one of our Te Tira Hau Ture lawyers for advice tailored to your situation.

More Information

For more information about this article feel free to contact:Miaana Walden(06) 768 3760 [email protected]

3


The Domestic Violence – Victims’ Protection Act 2018

The Domestic Violence – Victims’ Protection Act is due to come into effect from 1 April 2019. The Act aims to enhance protection in the workplace for victims affected by domestic violence.

From 1 April 2019, employees who have been affected by domestic violence will be entitled to up to 10 days of paid domestic violence leave per year, in order to deal with the effects of domestic violence. Employees will need to have undertaken six months’ continuous employment to be entitled to domestic violence leave. Domestic violence leave will be treated similar to sick leave and bereavement leave, with employees able to take the leave as and when needed.

It is important to note that there is no time limit under the Act in respect to when the violence had to have occurred for an employee to be entitled to domestic violence leave. Anyone impacted by domestic violence or any employee caring for children who have been impacted by domestic violence will be entitled to this leave regardless of when the domestic violence occurred.

Employees affected by domestic violence will also be entitled to request a short-term variation of no longer than two months, to their current work arrangements. A request for a variation in work arrangements can include a change to an employee’s hours

of work, location of their workplace and their duties. The Act requires an employer to respond urgently, within 10 working days, to any short term variation request. If an employee feels that their request for a variation under the Act has been unreasonably refused, then they will be entitled to raise a dispute within six months of the refusal being made.

Although the Act does not require employees to provide proof that they have been affected by domestic violence, an employer may request proof prior to agreeing to any request for leave or a variation to the employees work arrangements. In the event that an employee fails to provide proof of the need to take domestic violence leave, without reasonable excuse, then an employer can refuse to grant the employee leave.

Employer’s will need to tread lightly in dealing with requests for domestic violence leave. It is important that employers are aware that domestic violence is not limited to physical, sexual, and psychological abuse - it also includes verbal abuse such as threats, intimidation and harassment, as well as financial abuse (i.e. refusing to allow access to bank funds).

Due to the sensitive nature of domestic violence, employers will need to be mindful of their confidentially requirements,

particularly when discussing and announcing reasons for an employee’s leave and/or short-term variation in work arrangements with third parties.

Employers will not be required to introduce any new policies in respect to domestic violence leave, however we would recommend for clarity that the new legislative requirements be incorporated into employment agreements from 1 April 2019. Indeed, you might want to consider incorporating relevant provisions into any new employment agreements you may be soon entering into. Employer’s will also need to consider how they intend to deal with requests for domestic violence leave and for variations of employment under the Act.

If you have any questions about the introduction of domestic violence leave and how this may impact on you or your business, please contact our employment team.

More Information

For more information about this article feel free to contact:Paige Hellier(06) 768 [email protected]

4


Mana Whakahono ā Rohe: Iwi Participation Arrangements

Mana Whakahono ā Rohe: Iwi Participation Arrangements are a relatively new tool under the Resource Management Act 1991 (RMA) designed to assist tangata whenua and local authorities to discuss, agree and record how they will work together. Agreements made using this tool are referred to as a Mana Whakahono.

The purpose of Mana Whakahono is (section 58M RMA):• to provide a mechanism for iwi

authorities and local authorities to discuss, agree and record ways in which tangata whenua may, through their iwi authorities, participate in resource management and decision-making processes under the RMA; and

• to assist local authorities to comply with their statutory duties under the RMA, including through the implementation of sections 6(e), 7(a) and 8.

Why were Mana Whakahono ā Rohe introduced?The RMA specifically recognises Te Tiriti o Waitangi and kaitiakitanga. It also identifies, as matters of national importance, the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu and other taonga, and the protection of customary rights. However, the way in which these matters have been responded to has not always been consistent across the country and there has not been certainty about what is expected and required of iwi, local authorities, applicants and the public generally. Sometimes this has led to challenges in the courts. The 2011 Waitangi Tribunal Report - Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity (WAI 262),

identified that the RMA had not delivered its intention for Māori to take more positive and proactive roles in environmental decision-making processes.

The introduction of the Mana Whakahono ā Rohe provisions in the 2017 amendments to the RMA was intended to help address this situation, by providing tangata whenua with more opportunity for meaningful participation in RMA processes and decisions. The Ministry for the Environment stated in its Mana Whakahono ā Rohe Guidance (April 2018) document that setting clear performance expectations, through a Mana Whakahono for both tangata whenua and local authorities, will help resolve common complaints (such as local authorities failing to consult tangata whenua adequately, and a lack of responsiveness from tangata whenua).

The Mana Whakahono ā Rohe provisions are intended to be broad enough to ensure enough flexibility for parties to frame Mana Whakahono to best suit the parties’ respective objectives; while enabling regular review and amendments to accurately reflect the parties’ evolving positions.

Section 58N of the RMA sets out the Guiding Principles for Mana Whakahono. In initiating, developing, and implementing Mana Whakahono, the participating authorities must use their best endeavours:• to achieve the purpose of the Mana

Whakahono in an enduring manner;• to enhance the opportunities for

collaboration amongst participating authorities;

• to work together in good faith and in a spirit of co-operation;

• to communicate with each other in an

open, transparent, and honest manner; • to recognise and acknowledge the

benefit of working together by sharing their respective vision and expertise;

• to commit to meeting statutory time frames and minimise delays and costs of the process; and

• to recognise that Mana Whakahono does not limit the requirements of any relevant iwi participation legislation or the agreements associated with that legislation.

What do Mana Whakahono cover?The RMA prescribes what must be included in a Mana Whakahono (section 58R RMA). The parties must record their agreement about:

• how an iwi authority will participate in the policy statement or plan making processes;

• how consultation will be undertaken;• how the parties will work together

to develop and agree on monitoring methodologies;

• how any relevant iwi participation legislation, or agreements made pursuant to that legislation, for instance, Treaty Settlements, will be given effect to;

• a process for managing conflicts of interest; and

• a process for resolving disputes.

Mana Whakahono may also identify: • how a local authority is to consult or

notify an iwi authority on resource consent matters;

• the circumstances in which an iwi authority may be given limited notification as an affected party;

• where two or more iwi authorities are parties to a Mana Whakahono, how those authorities will work

5


More Information

For more information about this article feel free to contact:Lauren Wallace(06) 768 [email protected]

collectively to participate with the relevant council;

• any delegation from iwi to a person or group of persons (including hapū) to participate in particular RMA processes; and

• any other arrangements relating to RMA processes.

How do Mana Whakahono get initiated?The RMA sets out the process by which a Mana Whakahono may be initiated (section 58O RMA). An iwi authority (or authorities jointly) have the option to invite a council (or councils jointly) to enter into a Mana Whakahono. The council(s) must then convene a hui with the iwi authority within 60 days of receiving an invitation in writing to discuss how they will work together to develop a Mana Whakahono. If the parties are able to agree at the hui how they will develop a Mana Whakahono, the parties must then proceed to negotiate the terms of the arrangement.

The parties must conclude a Mana Whakahono within 18 months after the date the invitation is received, unless otherwise agreed. If the parties are unable to conclude negotiations, they may collectively agree to not enter into a Mana Whakahono, or some parties may choose to enter into alternative Mana Whakahono.

Local authorities are also able to initiate a Mana Whakahono with an iwi authority or hapū. If an iwi authority or hapū chooses to accept the local authority initiation, it is up to the parties to determine the negotiation process.

What effect do they have?A local authority that enters into a Mana Whakahono must review its policies and processes to ensure that they are consistent

with the Mana Whakahono within 6 months after the date the arrangement is entered into. This review requirement does not apply to policies in RMA planning documents (such as regional and district plans), unless agreed by the parties. However, when preparing section 32 reports and proposed policy statements and plans, councils are required to consult with potentially affected tangata whenua through iwi authorities. The amount of time that iwi authorities need to consider and prepare advice on reports, draft policy statements or plans could be established within a Mana Whakahono.

The intent of Mana Whakahono is to facilitate improved working relationships between iwi and councils, and enhance Māori participation in resource management processes. It is not possible to know whether or not this outcome has been achieved at this time as to date, the Ministry for the Environment is only aware of two Mana Whakahono a Rohe arrangements that have been formally initiated. The first was initiated by Tapuika who invited the Bay of Plenty Regional Council to enter a Mana Whakahono in June 2017. In March 2018, Tapuika indicated that two other iwi authorities would join the process and its initial invitation has since been superseded by an invitation by Ngā Puna Wai o Te Tokotoru (collective) in April 2018. Bay of Plenty Regional Council’s Maori policy team leader Anaru Vercoe described some of the learnings to date as follows1:

Our observations of the process this far have been positive. There is a willingness shown by iwi to be practical and open, but at the same time ready to debate and contest matters with council. For council this has represented a paradigm shift where decision-making is on

equal footing, and that the usual discretionary powers it exercises have been tempered by the provisions of the MWR.

An issue of concern to both the council and iwi is the ability for iwi to adequately resource their participation in preparing an Mana Whakahono ā Rohe (MWR). Some iwi negotiators do not live in the region and travel great distances. Financial constraints will also mean that most of the iwi representatives are volunteering their time and expertise. Many iwi, for example, are already heavily burdened with having to engage on consent matters, planning and policy proposals, and the new Water Management Areas (WMA) under the National Policy Statement on Freshwater Management 2014. This is before having time to divide their attention further to initiate an MWR and is set against other tribal matters such as economic and social development.

In Taranaki, while we are not aware of any formal initiation process having been commenced, it is understood that several iwi authorities are currently exploring the possibility of a joint invitation and that the four local authorities within the region are working collaboratively with respect to the process.

If you have any queries about Mana Whakahono ā Rohe, feel free to contact our Environment and Planning Team for more information.

6


https://localgovernmentmag.co.nz/lg-magazine/communities_lg/bay-of-plenty-regional-council/

When You May Have to Pay Tax Selling a Property

Unpaid Rates Lead to Sale of Property

Whether you are purchasing your first home, family home, rental property, commercial property, retirement home, or simply refinancing your property, you may not remember as time goes by, the consequences of not keeping your rates paid and up to date with your local Councils.

When signing that all important mortgage enabling your loan funds to be available on your settlement or refinance date, you have agreed to keep the rates on your property paid up to date at all times.

Consequences of falling behind in your payments may lead to the Council informing your Bank under Section 62 Rating Powers Act 2002. Council can accept payment of the rates and arrears directly from your Bank. This payment will then be treated as an addition to your mortgage until the unpaid rates have been paid. For serious arrears, the consequence can be a Rating or Mortgagee sale of your property.

When the bright-line test commenced, it affected residential land bought and sold from 1 October 2015. If you sold the property within a two-year period, then depending upon your circumstances residential land tax may have applied.

From 29 March 2018, the two-year period has increased to five years.

Tax may become payable if you have bought property with the intention to re-sell it and the tax paid would be based on any profit you make when it is sold.

Although the bright-line test may not apply when selling the property after the five year period has lapsed, tax may still be payable if the intention test is applied.

Residential land withholding tax will apply to the sale of your property if it is residential land, sold within five years from 29 March 2018, or you are an person buying from offshore. For more details refer to:

https://www.ird.govt.nz/property/brightline-qa.html

7




GQ in the Community

Go GQ! The team at the start of the infamous Inglewood Showdown

A few of the team enjoying a lunchtime Yoga session. The Firm has a focus on health and wellness.

GQ supporting the local SPCA

Paige Hellier did a great job as this year’s Around the Mountain Relay team leader

8


Recently GQ and the New Plymouth District Council received national recognition for the development and implementation of NPDC’s state of the art forward looking draft Digital District Plan. Lauren Wallace (front right) and Rebecca Eaton (back centre) have worked closely with the New Plymouth District Council’s District Planning Team, Juliet Johnson (front left), Sarah Edwards (back left) and Lauren O’Byrne (back right) and proudly show the Resource Management Law Association Technical Documentation Award 2018 they have won.

GQ was proud to support Gymnastics Waitara at their Women’s Gymnastics Competition in September

The GQ Tennis Team – winners on the night of the first round of the Business House competition

To keep up with the latest ongoings from GQ in the community like us on facebook facebook.com/GovettQuilliam

All information in this newsletter is to the best of the authors’ knowledge true and accurate.No liability is assumed by the authors, or publishers, for any losses suffered by any person relying directly or indirectly upon this newsletter. It is recommended that clients should consult a senior representative of the firm before acting upon this information.

9


Warm Wishes!

Warm Wishes!

New Plymouth 1 Dawson Street | (06) 768 3700Inglewood 92 Rata Street | (06) 756 8118Wellington 164 The Terrace | 027 447 7226thelawyers.nz

Prefer to receive the newsletter by email?contact [email protected] or phone (06) 768 3700

Where law meets life

december 2018 newsletter your legal update · this year, meri kirihimete me ngā mihi o te tau hou...

Documents