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Part 6
Transitional and miscellaneous provisions, repeal, and amendments

188 Outline of this Part

This Part sets out transitional provisions relating to—

(a) the transfer of the existing undertaking of the Treaty of Waitangi Fisheries Commission to Te Ohu Kai Moana Trustee Limited; and

(b) the saving of various existing agreements and exemptions; and

(c) the payment of any taxation refunded in respect of the Treaty of Waitangi Fisheries Commission or any of its companies; and

(d) the position of the employees and agents of the Treaty of Waitangi Fisheries Commission in the transfer; and

(e) the application of the Inland Revenue Acts and other enactments and the protection of specified names; and

(f) the repeal of the Māori Fisheries Act 1989, and consequential amendments.

189 Interpretation

(1) In this Part, unless the context otherwise requires,—

existing undertaking includes all assets, whether in the form of quota shares, interests, rights, or liabilities, that, immediately before the appointed day, are owned, controlled, or held by—

(a) the Treaty of Waitangi Fisheries Commission; or

(b) any company or other commercial entity, to the extent that it is owned or controlled by the Treaty of Waitangi Fisheries Commission

liabilities includes liabilities, debts, charges, duties, and obligations of the Treaty of Waitangi Fisheries Commission (whether present or future, actual or contingent, or payable or to be observed or performed in New Zealand or elsewhere).

Subpart 1—Transitional provisions Powers, savings, and validations

190 Powers of Treaty of Waitangi Fisheries Commission

In the period between the commencement of this Act and the appointed day, the Treaty of Waitangi Fisheries Commission has the powers, functions, duties, rights, responsibilities, liabilities, and exemptions of Te Ohu Kai Moana Trustee Limited.

191 Agreements for sale of annual catch entitlements

(1) If the Treaty of Waitangi Fisheries Commission has, before the commencement of this Act, entered into agreements with iwi for the sale of annual catch entitlements, those sales may be completed in accordance with the agreements, even if they do not comply with section 152(1), (2), (3), or (5).

(2) However, the Treaty of Waitangi Fisheries Commission must comply with section 152(4).

192 Certain exemptions saved

A consent to an exemption granted to the Treaty of Waitangi Fisheries Commission under section 28W of the Fisheries Act 1983 or under section 60 of the Fisheries Act 1996 must be treated as if the consent had been granted to Aotearoa Fisheries Limited.

193 Validation of certain decisions, etc

(1) A decision, action, recommendation, appointment, undertaking, or transaction made, taken, or entered into in good faith and with reasonable care by a person or body, and during the periods referred to in subsection (2), is as valid as if it had been made, taken, or entered into under this Act.

(2) Subsection (1) applies to a decision, action, recommendation, appointment, undertaking, or transaction made, taken, or entered into—

(a) by—

(i) the Minister of Māori Affairs in appointing directors under section 45:

(ii) the Treaty of Waitangi Fisheries Commission or a member of that Commission:

(iii) an employee or agent of that Commission:

(b) between either—

(i) 1 January 2003 and the commencement of this Act; or

(ii) the commencement of this Act and the appointed day.

Transfer from Treaty of Waitangi Fisheries Commission

194 Treaty of Waitangi Fisheries Commission dissolved and existing undertaking vested

(1) On and from the appointed day,—

(a) the Treaty of Waitangi Fisheries Commission is dissolved; and

(b) the term of office of every member of that Commission expires; and

(c) the existing undertaking of that Commission vests in Te Ohu Kai Moana Trustee Limited, except to the extent that it is already vested in Aotearoa Fisheries Limited or its subcompanies, as contemplated by section 75(2).

(2) A member of the Treaty of Waitangi Fisheries Commission is not entitled to compensation as a result of the expiry under this section of his or her term of office.

195 Payment of taxation refunds (if any)

(1) This section applies if, after the appointed day, the Commissioner of Inland Revenue grants a refund in respect of taxation paid at any time before the appointed day by the Treaty of Waitangi Fisheries Commission or any company or subsidiary of a company owned by that Commission.

(2) The Commissioner of Inland Revenue must pay the full amount of the assessed refund (if any), together with any interest payable under Part VII of the Tax Administration Act 1994, to Te Ohu Kai Moana Trustee Limited.

(3) The monies (if any) paid to Te Ohu Kai Moana Trustee Limited under subsection (2)—

(a) must not be reported in the audited financial statements of Aotearoa Fisheries Limited, or of any company or subsidiary referred to in subsection (1); and

(b) to avoid doubt, do not form part of the consolidated group net profit after tax of the consolidated group for the purpose of section 76(2); but

(c) must be reported in the audited financial statements of Te Ohu Kai Moana Trustee Limited.

196 Classification of quota shares allocated to Treaty of Waitangi Fisheries Commission

Te Ohu Kai Moana Trustee Limited must, not later than 6 months after the appointed day,—

(a) determine the appropriate classification, in accordance with sections 8 and 9, for quota shares allocated to the Treaty of Waitangi Fisheries Commission under section 44 of the Fisheries Act 1996—

(i) at any time before the commencement of this Act, and not included in Schedule 1:

(ii) between the commencement of this Act and the appointed day; and

(b) publish in the Gazette—

(i) the classification of the stock; and

(ii) whether harbour quota applies to that stock; and

(iii) the quantity, if any, of each harbour quota for the stock.

Final report

197 Final report of Treaty of Waitangi Fisheries Commission

(1) Not later than 6 months after the appointed day, Te Ohu Kai Moana Trustee Limited must prepare a statement of the financial position and other statements of accounts necessary to show fully the financial position of the Treaty of Waitangi Fisheries Commission and the financial results of its operations for the period beginning on 1 October 2003 and ending with the close of the day immediately before the appointed day.

(2) As soon as is reasonably practicable after the completion of the obligation referred to in subsection (1), Te Ohu Kai Moana Trustee Limited must provide the final report to the Minister of Māori Affairs.

(3) The Minister of Māori Affairs must present the final report to the House of Representatives as soon as is reasonably practicable after receiving it from Te Ohu Kai Moana Trustee Limited.

(4) In this section, final report means—

(a) the statement of financial position of the Treaty of Waitangi Fisheries Commission and other information referred to in subsection (1); and

(b) an audit report prepared by the Auditor-General on the statement referred to in paragraph (a).

198 References in instruments

(1) A reference (express or implied) to the Treaty of Waitangi Fisheries Commission in an enactment (other than in this Act), or in an instrument, register, record, notice, security, document, or communication made, given, passed, or executed before or on the appointed day, must be read as a reference to Te Ohu Kai Moana Trustee Limited.

(2) A reference (express or implied) to an officer of the Treaty of Waitangi Fisheries Commission in an enactment, or in an instrument, register, record, notice, security, document, or communication made, given, passed, or executed before or on the appointed day, must be read as a reference to—

(a) the corresponding employee of Te Ohu Kai Moana Trustee Limited or Aotearoa Fisheries Limited; or

(b) if there is no corresponding employee, an employee of Te Ohu Kai Moana Trustee Limited or Aotearoa Fisheries Limited designated by Te Ohu Kai Moana Trustee Limited.

(3) This section is subject to section 214.

199 Status of contracts and other instruments

(1) In subsection (2), contracts and other instruments means contracts, agreements, conveyances, deeds, leases, licences, other instruments, undertakings, notices, and any binding rulings made under Part VA of the Tax Administration Act 1994 (whether in writing or not), entered into by, made with, given to or by, or addressed to the Treaty of Waitangi Fisheries Commission (whether alone or with another person) before the appointed day and having effect immediately before the appointed day.

(2) Contracts and other instruments are binding on, and enforceable by, against, or in favour of, Te Ohu Kai Moana Trustee Limited and have effect for the purposes of the Inland Revenue Acts as if Te Ohu Kai Moana Trustee Limited and not the Treaty of Waitangi Fisheries Commission had been the person by whom they were entered into, with whom they were made, or to or by whom they were given or addressed.

200 Status of existing securities

(1) A security held by the Treaty of Waitangi Fisheries Commission as security for a debt or other liability to that Commission incurred before the appointed day—

(a) is available to Te Ohu Kai Moana Trustee Limited as security for the discharge of that debt or liability; and

(b) if the security extends to future or prospective debts or liabilities, is available as security for the discharge of debts or liabilities to Te Ohu Kai Moana Trustee Limited incurred on or after the appointed day.

(2) Te Ohu Kai Moana Trustee Limited is entitled to the same rights and priorities, and is subject to the same liabilities, in relation to the security as the Treaty of Waitangi Fisheries Commission would be if this Act had not been passed.

201 Continuation of proceedings

(1) An action, arbitration, proceeding, or cause of action that was pending or existing by, against, or in favour of the Treaty of Waitangi Fisheries Commission, or to which that Commission was a party, before the appointed day may be continued and enforced by against, or in favour of Te Ohu Kai Moana Trustee Limited.

(2) It is not necessary to amend a pleading, writ, or other document to continue the action, arbitration, proceeding, or other cause of action.

202 Matters not affected by transfer to Te Ohu Kai Moana Trustee Limited

Nothing effected or authorised by this Act—

(a) places the Treaty of Waitangi Fisheries Commission, Te Ohu Kai Moana Trustee Limited, or any other person in breach of a contract or confidence, or breach of trust, or makes any of them guilty of a civil wrong; or

(b) entitles a person to terminate, cancel, or amend a contract or arrangement, or to accelerate the performance of an obligation, or to impose a penalty or increased charge; or

(c) places the Treaty of Waitangi Fisheries Commission, Te Ohu Kai Moana Trustee Limited, or any other person in breach of an enactment, a rule of law, or a provision of a contract that prohibits, restricts, or regulates the assignment or transfer of an asset, right, or liability or the disclosure of information; or

(d) releases a surety in whole or in part from an obligation; or

(e) invalidates or discharges a contract.

203 Books and documents to remain evidence

(1) A document, matter, or thing that would have been admissible in evidence for or against the Treaty of Waitangi Fisheries Commission is, on and after the appointed day, admissible in evidence for or against Te Ohu Kai Moana Trustee Limited.

(2) For the purpose of this section, document has the meaning given to it in section 48G of the Evidence Act 1908.

204 Registers

(1) The Registrar General of Land, Commercial Fisheries Services Limited, or any other person charged with keeping books or registers is not required to change the name of the Treaty of Waitangi Fisheries Commission to Te Ohu Kai Moana Trustee Limited in the books or registers, or in a document, solely because of the provisions of this Act.

(2) If Te Ohu Kai Moana Trustee Limited presents an instrument referred to in subsection (3) to a registrar or other person, the presentation of that instrument is, in the absence of evidence to the contrary, sufficient proof that the property is vested in Te Ohu Kai Moana Trustee Limited on behalf of Te Ohu Kai Moana, as specified in the instrument.

(3) For the purposes of this section, the instrument need not be an instrument of transfer, but must—

(a) be executed or purport to be executed by Te Ohu Kai Moana Trustee Limited; and

(b) relate to an existing undertaking held, managed, or controlled by the Treaty of Waitangi Fisheries Commission immediately before the appointed day; and

(c) be accompanied by a certificate by Te Ohu Kai Moana Trustee Limited that the property was vested in Te Ohu Kai Moana Trustee Limited under this Act.

Subpart 2—Employees and agents

205 Interpretation

In this subpart,—

transferred employee means a person employed by the Treaty of Waitangi Fisheries Commission immediately before the appointed day who becomes an employee of Te Ohu Kai Moana Trustee Limited or Aotearoa Fisheries Limited on the appointed day

Treaty of Waitangi Fisheries Commission includes Aotearoa Fisheries Limited, the company referred to in section 12 of the Māori Fisheries Act 1989.

206 Liability of employees and agents

(1) A person who, at any time before the appointed day, held office as a member of the Treaty of Waitangi Fisheries Commission or who was an officer, employee, agent, or representative of that Commission, is not personally liable in respect of an act or thing done or omitted to be done by him or her before the appointed day in the exercise or bona fide purported exercise of an authority conferred by or under the Māori Fisheries Act 1989, the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, or any other enactment.

(2) This section applies only—

(a) in the absence of actual fraud; and

(b) if the act or omission does not amount to an offence under any enactment or rule of law.

207 Transfer of existing employees

On the appointed day, each employee of the Treaty of Waitangi Fisheries Commission becomes an employee of Te Ohu Kai Moana Trustee Limited or Aotearoa Fisheries Limited, as determined by the Treaty of Waitangi Fisheries Commission.

208 Terms and conditions of employment of transferred employees

(1) The employment of a transferred employee must be on terms and conditions no less favourable to the transferred employee than those applying to the employee immediately before the appointed day.

(2) Subsection (1)—

(a) continues to apply to the terms and conditions of employment of a transferred employee until those terms and conditions are varied by agreement between the transferred employee and Te Ohu Kai Moana Trustee Limited or Aotearoa Fisheries Limited, as the case may be; and

(b) does not apply to a transferred employee who receives a subsequent appointment with Te Ohu Kai Moana Trustee Limited or Aotearoa Fisheries Limited.

209 Continuity of employment

For the purposes of every enactment, law, determination, contract, and agreement relating to the employment of a transferred employee, the transfer of the employee from the Treaty of Waitangi Fisheries Commission to Te Ohu Kai Moana Trustee Limited or Aotearoa Fisheries Limited, as the case may be, does not, of itself, break the employment of that person, or the period of his or her employment by the Treaty of Waitangi Fisheries Commission as having been a period of service with Te Ohu Kai Moana Trustee Limited or Aotearoa Fisheries Limited, as the case may be.

210 No compensation for technical redundancy

A transferred employee is not entitled to receive any payment or any other benefit solely on the ground that—

(a) the position held by the employee with the Treaty of Waitangi Fisheries Commission has ceased to exist; or

(b) the employee has ceased, as a result of his or her transfer to Te Ohu Kai Moana Trustee Limited or Aotearoa Fisheries Limited, to be an employee of the Treaty of Waitangi Fisheries Commission.

Subpart 3—Miscellaneous provisions

211 Application of Inland Revenue Acts and other enactments

(1) For the purposes of the Inland Revenue Acts, binding rulings under those Acts and any other enactment that imposes or provides for the collection of a tax, duty, levy or other charge, the Treaty of Waitangi Fisheries Commission and Te Ohu Kai Moana Trustee Limited are the same person.

(2) For the purposes of the Inland Revenue Acts, Te Ohu Kai Moana Trustee Limited must be treated as having held, at all times since the interests were acquired by the Treaty of Waitangi Fisheries Commission, the voting interests and market value interests that they receive from that Commission under this Act.

212 Protection of names

(1) No person may be incorporated or registered under any enactment or in any other manner using any of the following names:

(a) Te Ohu Kai Moana; or

(b) Te Kawai Taumata; or

(c) Te Putea Whakatupu Trust; or

(d) Te Wai Māori Trust.

(2) No person, other than the person to whom the name applies, either alone or with another person, may operate or carry on business or activities—

(a) under a name specified in subsection (1); or

(b) under any other name, knowing that the name so resembles a specified name as to be likely to mislead a person.

(3) A person who contravenes subsection (2) commits an offence and is liable on summary conviction to a fine not exceeding $1,000.

(4) It is a defence in any prosecution for an offence against subsection (3) if the defendant proves that, either alone or with any other person or persons, the defendant has carried on business continuously under the name to which the prosecution relates from any date before the commencement of this Act.

Subpart 4—Repeal and consequential amendments

213 Enactment repealed

The Māori Fisheries Act 1989 (1989 No 159) is repealed on and from the appointed day.

214 Amendments to other enactments

On and from the appointed day, the enactments specified in Schedule 9 are amended in the manner indicated in that schedule.