Native Title and Freshwater Rights

Te Whānau a Kai Trust v Gisborne District Council [2021] NZEnvC 115

This appeal raised significant questions of law concerning the jurisdiction of the Environment Court and whether native title extends to freshwater.

Te Whānau a Kai appealed the Gisborne District Council’s decision in respect of submissions on the proposed Gisborne Regional Freshwater Plan (Freshwater Plan). The appeal sought amendments to the Freshwater Plan to recognise the customary (including proprietary) interests of Te Whānau a Kai in freshwater within its rohe, and by so doing, that its interests in those waters be taken into account in all decision making. The key issues and the Court’s findings are summarised below.

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Welcome Guidance from the High Court on Development Contribution Policies

As Councils throughout New Zealand are acutely aware, it is a constant struggle to find sufficient funding to support development, particularly in greenfields areas where there is either no, or insufficient, existing infrastructure. Generally, Councils must construct a patchwork quilt of funding sources in order to provide important services, including requiring payments from developers. One such way that this is achieved is via development contributions. Development contributions are an important but complex funding tool available to Councils via the Local Government Act 2002 (LGA). They can only be required to be paid in accordance with a development contributions policy (DCP), which must be set and amended in accordance with the (often not entirely clear) requirements of the LGA. Until recently, there has been little guidance from the Courts regarding the implementation of DCPs since the 2008 decision in Neil Construction Ltd v North Shore City Council [2008] NZRMA 275.

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Two-month extensions for Annual Reporting and Audit Time Frames

The Annual Reporting and Audit Time Frames Extensions Legislation Bill (the Bill) has been passed by the House and will come into force when it receives royal assent. The Bill amends the Crown Entities Act 2004 (CEA) and the Local Government Act 2002 (LGA02) by extending, for the 2020/21 and 2021/22 financial years, the time frames provided in relation to audits of Crown entities, with end-of-year balance dates of 30 June, and the annual reporting requirements of local authorities and council-controlled organisations.

 Crown entities

Crown entities, under the CEA, must provide their audit reports to the Auditor-General within 3 months after the end of the financial year. This deadline is extended by the Bill for Crown entities (and organisations subject to provisions of the CEA), with end-of-year balance dates of 30 June. For the 2020/21 and 2021/22 financial years their audit reports must be provided to the Auditor-General by the close of 31 December.

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First exposure draft of the replacement to the Resource Management Act released

The Government has released its long awaited first exposure draft of the Natural and Built Environments Act (NBA), the proposed replacement to the Resource Management Act 1991 (RMA) as part of its wider reforms touted as a ‘once-in-a-generation’ opportunity.

This release follows the Government’s February 2021 announcement to reform New Zealand’s resource management system by repealing the RMA and replacing it, in addition to the NBA, with:

• Strategic Planning Act (SPA) to integrate with other legislation relevant to development, and require long-term regional spatial strategies; and

• Climate Change Adaptation Act (CAA) to address complex legal and technical issues associated with managed retreat and funding and financing adaptation.

This article outlines the exposure draft of the NBA and the process to follow.

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Who do you have to provide for when you die?

Family Protection Act

For the most part, while you are alive, you can choose what you do with your property. However, people often do not realise that when you die, the law recognises a ‘moral duty’ to certain family members. It also offers remedies for those family members if you do not sufficiently provide for them on your death.

Potential Claimants

The Family Protection Act 1955 specifies who can make a claim for provision from a deceased’s estate. These people are:

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Tax, Trustees and Trusts - Things to Consider

Just when you thought you had complied with your mandatory trustee duties under the Trusts Act 2019 – there is more!

Tax reporting obligations

New tax reporting obligations have been introduced for trusts that earn income, with effect from 1 April 2021. The new requirements are included in the Taxation (Income Tax Rate and Other Amendments) Act 2020, which amends the Tax Administration Act 1994. There is also a power for retrospective information gathering, so trustees may need to provide similar information going back as far as the 2014 tax year.

While these obligations only apply to trusts that earn income, a range of different documentation must be provided, which will require timely, complete, and accurate record-keeping. The information that must be provided to the IRD includes:

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