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Milroy, Stephanie --- "The Maori Fishing Settlement and the Loss of Rangatiratanga" [2000] WkoLawRw 4; (2000) 8 Waikato Law Review 63


THE M€ORI FISHING SETTLEMENT

AND THE LOSS OF RANGATIRATANGA

BY STEPHANIE MILROY[*]

I. INTRODUCTION

The fisheries settlement made in 1992[1] between MŠori and the Crown suffered a difficult birth, and conflict and compromise have been the dominant characteristics of its life since then. The settlement saw the extinction of MŠori fishing rights under the Treaty of Waitangi. With the selection of a new Treaty of Waitangi Fisheries Commission in August 2000 it seems opportune to reflect on what has occurred under the settlement to date in order to evaluate the success of the settlement and its benefits for MŠori.

The key question that this article will address is whether, with all that has happened at the time of the settlement and following, MŠori have any chance of achieving tino rangatiratanga in respect of the fisheries. Article 2 of the MŠori version of the Treaty of Waitangi provides that MŠori should have “te tino rangatiratanga o o rŠtou whenua o rŠtou kŠinga me o rŠtou taonga katoa”. Literally translated this means that MŠori were guaranteed governance in respect of their land, homes and all other precious things. In the English version of the Treaty MŠori were guaranteed “full exclusive and undisturbed possession of the Lands and Estates, Forests, Fisheries and other properties which they may collectively or individually possess”. Whether one accepts the English or MŠori version there is a clear recognition of and protection for MŠori rights in the fisheries.

This article begins with the background to the fisheries settlement that was made between MŠori and the Crown. The article goes on to look at the nature of the settlement and the issues that arose out of it, and then considers the implementation of the settlement and resulting issues. The article then analyses MŠori commercial fishing resulting from the settlement, focussing on an example of a MŠori fishing business. The article finally examines the MŠori customary fishing regulatory regime that is now in place, before concluding with a discussion on the opportunities, or lack of them, for allowing MŠori to exercise rangatiratanga in the context of the current fisheries arrangements.

II. BACKGROUND TO THE FISHERIES SETTLEMENT

1. New Zealand’s fishing industry

Aotearoa for its size has a very large fishing area. The Ministry of Fisheries claims that our exclusive economic zone (EEZ) is the fourth largest in the world at 1.3 million nautical square miles.[2] However, our fisheries resources are not as productive as might be expected for a number of reasons. We have a narrow continental shelf and there is a lack of nutrient upwellings which would encourage marine life.[3] The inshore fisheries suffered heavy depletion from the mid-1960s to the mid-1980s, requiring the rebuilding of those fishstocks to sustainable levels.[4] We are also only on the periphery of some highly migratory species, such as tuna, so that production from those sources is limited.[5] Nevertheless, the fishing resources we have are valuable both economically and environmentally, and they are of interest to many different groups, including the commercial industry, MŠori, and recreational fishers.[6]

The commercial industry is mainly an export industry - 91% by value of product (about $1.27 billion) is exported, making the fisheries industry the fourth biggest export earner for the country.[7] The industry has been subjected to far-reaching reforms imposed by the government, partly as a result of the need to ensure the sustainability of the fishing resource, and partly in response to global trading conditions and international obligations in relation to the fisheries.[8] These reforms, begun in 1983 and including the introduction of the Quota Management System, triggered the major claims made by MŠori under the Treaty of Waitangi.

2. MŠori Fishing

Fish were always an important part of the traditional MŠori diet because, apart from birds, fish were the only source of protein in Aotearoa until the arrival of the PŠkehŠ. Thus, MŠori were competent fishers, fishing for food and for trade.[9] After contact with Europeans, MŠori tribes supplied ships and whaling settlements and even exported fish to Sydney, Australia.[10] Until 1870, MŠori dominated the fisheries trade, although this gradually changed as settler numbers increased.[11]

From the late 1800s, the government moved to take greater control of the fisheries on conservation grounds.[12] The government then fostered the commercialisation of fishing[13] while showing no concern for the trading or commercial interests of MŠori.[14] MŠori involvement in the management of the industry declined and MŠori protests about the decline of the fishstocks were ignored. MŠori came to be prosecuted and convicted for taking fish without a licence,[15] despite the existence of our Treaty, common law and customary fishing rights, and the recognition of such rights in various pieces of fisheries legislation.[16] MŠori involvement in the commercial industry virtually disappeared and MŠori ceased unsuccessful legal battles with the colonial court system until the legal climate changed in the 1980s.[17]

3. Fisheries Reform and the Quota Management System

In the 1980s the government proposed to introduce the Quota Management System (QMS) in order to combat the depletion of the fisheries which had taken place under the old fisheries regime. Briefly, the QMS is an attempt to encourage fishers to farm the resource rather than to plunder it by giving fishers a transferable property right in the fisheries resource. This system was devised to enable the sustainable use of the fisheries by setting a total allowable catch (TAC) which would be established for each fish stock in each year, and by setting a total allowable commercial catch (TACC) as a portion of the TAC. The system then provided for individual transferable quotas (ITQs), which give a share of the TACC to the holder. The ITQ was to be allocated to holders of existing fishing licences as at the introduction of the system. The allocation was made on the basis of historical usage/catch by that licenceholder.

The ITQs are private property rights, and MŠori saw the imposition of the QMS as an attempt to privatise the fisheries. From the point of view of MŠori the fisheries were never the property of the Crown in the first place, so that the Crown was not entitled to treat the fisheries as private property. Furthermore, since the ITQs were allocated according to catch history it was unlikely that MŠori would be able to get back into the industry through the allocation process. Although MŠori might still have been able to purchase ITQs in the market, many MŠori lacked the capital necessary to obtain ITQs by this method.

4. Challenge to the Quota Management System

The QMS was in direct conflict with the Treaty of Waitangi. A claim was therefore taken by the Muriwhenua people to the Waitangi Tribunal in respect of the introduction of the QMS, amongst other things, and in respect of the QMS the Tribunal said:

The system, we find, is in fundamental conflict with the Treaty’s principles and terms, apportioning to non-MŠori the full, exclusive and undisturbed possession of the property in fishing that to MŠori was guaranteed. Like the right envisaged by the Treaty, the quota right of fishermen is held in perpetuity but may be sold, or some other agreement or arrangement may be settled upon. The system has not only excluded the Muriwhenua people, but it has placed real difficulties upon new fishermen getting in.[18]

The Tribunal also found that any commercial fishing by non-MŠori must “necessarily have interfered with” MŠori fishing rights, and that an agreement was therefore required if such fishing was to be permitted.[19] The Tribunal considered that, in light of the changed circumstances, new agreements between the Crown and MŠori, whereby the QMS could be introduced in a way that would comply with the Treaty, were essential.[20]

No such agreement could be reached, and four MŠori parties – the Ngai Tahu MŠori Trust Board, Muriwhenua, the Tainui MŠori Trust Board and the New Zealand MŠori Council - sought an interim injunction from the court preventing further fish species from being introduced into the QMS.[21] The injunction was granted by the court on the basis that MŠori had an arguable case that the government was breaching MŠori fishing rights.[22] The injunction represented a severe setback to the government, which wished to proceed with the introduction of the QMS in order to provide certainty to the fishing industry in terms of the legislative regime under which the industry had to operate. It also represented an apparent turn-around in the law, which had worked against MŠori for more than 100 years. However, the decision was an interim one, and MŠori were still very anxious and unsure about what the outcome might be if the matter went to court for a final decision on the merits.

The injunction forced the government into negotiations with MŠori. The MŠori negotiators took the initial stance that, while the whole fishery was MŠori property, in the interests of the partnership under the Treaty between MŠori and the Crown, and to show the reasonableness required by the court, MŠori would settle for 50% of the fisheries. Originally this quota would be transferred to MŠori over a 20-year period, but MŠori objected to certain requirements of the Crown, and negotiations became drawn out.

The Crown introduced the MŠori Fisheries Act 1989 as an interim settlement. That Act provided for the setting up of the MŠori Fisheries Commission and for 10 percent of the total fishing quota to be transferred to the Commission, together with $10 million in cash. This interim settlement and the benefits therefrom, which came to be called the pre-settlement assets (PRESA) in later cases, have been the cause of considerable strife in MŠoridom, not because of the terms of the interim settlement, but as a result of the terms of the final settlement made in 1992.

III. THE SETTLEMENT

1. Nature of the Settlement

The final settlement of the fisheries claims was made pursuant to the Deed of Settlement signed between the MŠori negotiators, other MŠori with far less knowledge of the background to the settlement and the Crown, and embodied in legislation in the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (FCSA). The Act had, in the words of one commentator, a “turbulent passage” through Parliament.[23] No MŠori member of the House supported it, and there was considerable opposition to the settlement and the means by which it was achieved amongst MŠori generally.

The FCSA provided for the Crown to pay $150 million to fund MŠori to purchase Sealord Products Ltd in a 50-50 joint venture with Brierley Investments.[24] Sealord Products held 26 percent of the total fishing quota. MŠori were also to receive 20 percent of all new species of fish brought under the QMS. The name of the MŠori Fisheries Commission was changed to the Treaty of Waitangi Fisheries Commission (“the Commission”), and is now called Te Ohu Kaimoana. The Commission is responsible for implementing the settlement, and in particular for developing a method of allocation of the quota and other proceeds of the settlement to iwi (tribes). In exchange, MŠori “agreed” that their Treaty fishing rights in respect of commercial fishing had been honoured, and that the deal was in full and final settlement of MŠori commercial fishing claims.

Section 9 of the Act brought MŠori fishing claims to an end and provided that “no court or tribunal shall have jurisdiction to inquire into the validity of such claims”, including claims regarding the validity of the Deed of Settlement. Section 40 abolished the jurisdiction of the Waitangi Tribunal to “inquire or further inquire into, or make any finding or recommendation in respect of” commercial fishing, the Deed of Settlement or any enactment relating to commercial fishing.

Section 10 of the Act also provided that “claims by MŠori in respect of non-commercial fishing ...[s]hall in accordance with the principles of the Treaty of Waitangi, continue to give rise to Treaty obligations on the Crown...” Combined with section 9, this wording clearly indicates that commercial fishing no longer gives rise to Treaty obligations on the Crown. The section also provides for the Minister to make regulations regarding the recognition of customary food gathering, and for consultation with MŠori in developing policies. However, the section also says that rights or interests of MŠori in non-commercial fishing shall “henceforth have no legal effect”, and are not enforceable before the courts or provide a defence to any criminal or other proceeding.

In essence, the settlement was negotiated by some MŠori, notably some of those involved in the court cases which delayed the introduction of the QMS, but the FCSA bound all MŠori.[25] In exchange for rangatiratanga and the other rights MŠori had under the Treaty and aboriginal rights’ doctrine, MŠori received quota and cash and were forced to accept the QMS and the governance of the Minister of Fisheries. One may wonder how MŠori could agree to this, and the answer is that many did not.[26]

2. Issues Arising from the Settlement

A number of difficulties surround the settlement, some arising from the manner in which the settlement was achieved, others from the actual terms of the settlement. Some of the problems discussed at the time of the settlement have, with the passage of time, been ameliorated, while some problems have arisen which were unforeseen.

At the time of settlement many MŠori were unhappy with the lack of consultation undertaken on the terms of the settlement.[27] Many felt that they had been given insufficient detail about the terms of the settlement, and that consultation took place in a very short timeframe. There were also allegations that some of the signatories to the agreement did not have the mandate of the people whom they were supposed to represent.[28] In essence, the consultations and negotiations were carried out in a way which brought to mind classic “divide and rule” strategies. Those who could anticipate greatest benefit from the settlement, and who were very uncertain as to how the courts would find on MŠori fishing rights in the long run or if MŠori could fund an ongoing legal battle, wanted to seize on and implement the settlement before the government changed its mind. However, many MŠori were concerned at losing rights which might give governance of the fisheries to MŠori. Nor was the prospect of MŠori being locked into the Sealords company with Brierleys, a typical corporate player whose primary concern was profit rather than the achievement of MŠori aims, and which was best known for the asset-stripping expertise of its founder, an inviting one.

Those who wanted to take more time for consideration were not given time - the Act passed through Parliament without going through the select committee stage which would have allowed submissions to be made on legislation by the public and MŠori.[29] Those who wanted more detailed information about the settlement were not given it. The Memorandum of Understanding between the Crown and the MŠori negotiators containing the essence of the settlement was the document used in the consultation round, but it “was rarely seen except by the negotiators” on the grounds that it contained “privileged information, commercially sensitive, and therefore it remained hidden”.[30] Some coastal iwi, such as Ngati Porou, Ngati Kahungunu and Whanau-a-Apanui, all on the east coast of the North Island, did not support the settlement and no agreement was reached with them, although they were, of course, bound by the Act to the settlement. The drafting flaws of the Deed of Settlement and the FCSA evidence the haste with which the deal was rammed through, and the consequence for MŠori has been ongoing strife.[31]

There was some concern about the actual quantum of the settlement,[32] given the value of the fisheries, but far more about the specific extinguishment of MŠori Treaty rights in respect of both the commercial and non-commercial fisheries.[33] In the earlier years of the Commission’s existence, and particularly in 1995 and 1996, there was evidence of a philosophical conflict between MŠori and the Crown over the nature of the ownership of the resource.[34] This conflict has led to court battles where the Commission has attempted to assert a greater role for MŠori in the management of the fisheries than is provided for in the legislation. For instance, in the New Zealand Fishing Industry Association case, the Commission tried to argue that the Minister needed to take into account the interests of MŠori people before cutting the TACC. However, the Court held that under the settlement MŠori were in exactly the same position as all other holders of quota.[35] The Minister is required to consult with the Commission about matters such as the setting of the TACC but, as MŠori have found in the past, being consulted is one thing and being in charge is another.

A number of circumstances can arise which will affect the tonnage of fish that can be taken under quota. In the New Zealand Fishing Industry Association case, the Minister reduced the TACC for snapper in one particular fisheries management area for two years in order to enhance the sustainability of that fish stock in that area. Such a reduction inevitably affects the value of the settlement to MŠori. Another example of lack of control that MŠori have in relation to fisheries was when one of the southern fisheries management areas was closed because of an epidemic which almost wiped out the whole of the Hooker sealion population; this affected MŠori fishers who had quota to be fished in that area. At such times MŠori have pushed for an increase in the TACC for other species without success. We are left to wonder what might have been the result had MŠori retained their rights to governance of the fisheries and the fisheries themselves, under the Treaty and at common law.

One of the other issues relating to acceptance of the QMS by MŠori relates to the continuing Crown persistence in pushing for resource rentals. The initial form in which the QMS was developed included the concept that quota holders would pay a resource rental to the Crown for the quota on the basis that the fisheries resource was a common pool resource and that those who “farmed” the resource should pay rental to the representatives (the Crown) of those who “owned” the resource (all New Zealanders). This concept again is in direct opposition to the Treaty which recognised MŠori as owners of the resource - why should MŠori pay rental for our own resource? The Commission has therefore continued to argue that the resource rental concept is unacceptable, although it has accepted the concept that the costs of the commercial industry should be borne by the industry.[36] The government’s focus has therefore moved to the idea of cost recovery for services such as research, registry maintenance, and compliance systems.[37] These costs have undermined the value of the settlement.

The other main issue which arose as a result of the settlement, and which is still having ongoing effect, is the distrust and division that was caused between the negotiators themselves, between the negotiators and MŠori, and between MŠori and MŠori. The climate of mistrust flowed on to taint the work of the Commission in implementing the settlement, and is evidenced by the series of cases involving Urban MŠori Authorities and their claims for a share of the benefits under the settlement. These cases are referred to in the next part of this article.

IV. IMPLEMENTATION OF THE SETTLEMENT

1. Nature of the Implementation

Under the FCSA legislation the Commission’s main objective is the development of a plan for the allocation to iwi of the assets obtained under the 1989 interim settlement (the pre-settlement assets), and then the distribution of the benefits from the final settlement. The Commission also seeks to facilitate MŠori entry into fishing and to help develop the business and activity of fishing.[38] The important point to note is that the Commission has been very active in growing the assets obtained in the settlement, but not without taking the risks associated with commercial ventures. The Commission has made a profit in most years, although in the 1998 financial year it made a loss.[39]

While the Commission has been developing the plan of allocation, it leased the pre-settlement quota and the 20 percent of quota from new fish species as they were brought into the QMS to iwi. The leases were at a “discount rate” to assist MŠori into the industry.[40]

The Commission has also been involved in making submissions on new legislation affecting the industry, including the new Fisheries Act 1996 and its 1999 amendment, which make the statutory fisheries management regime more flexible, less complex and with clearer guidelines.[41] The Commission is active on the Fishing Industry Board and committees, and in many ways has become aligned with the industry vis-a-vis the Crown.[42]

Another important role of the Commission has been to put in place a training and development strategy to help MŠori obtain the skills to be able to utilise effectively the fisheries resource and the benefits flowing from it.[43] A scholarship programme allows MŠori to enrol in courses relevant to the fishing industry, including management courses, practical fishing operations skills courses and food management courses.

2. Issues Regarding Implementation

In order to accomplish the distribution of the pre-settlement assets, it was necessary for the Commission to develop a method of allocation, which it did in conjunction with widespread consultation with iwi. The method of allocation has been the cause of a lengthy and unedifying court battle between the Commission and traditional tribes on the one hand and Urban MŠori Authorities (UMAs) on the other,[44] and between the Commission and some tribes as to the calculation of the entitlement of iwi to the assets.[45] The Commission has also faced litigation surrounding the leasing of quota to iwi pending the allocation of the settlement benefits.[46] All matters raised were not resolved prior to the change of Commissioners.

The essence of the argument between the previous Commission and the UMAs was over whether those to whom the allocation is made should be only traditional tribes or should include the UMAs. The UMAs are organisations that have developed in the cities to provide services to MŠori living in the city, some of whom have become displaced from their traditional tribal area and have lost contact with their hapŸ or iwi. The UMAs provide a range of social services, such as health and employment services, but they also provide a focus for the expression of aspects of MŠori culture, such as learning the MŠori language, kapahaka (MŠori songs and dances), and social and sporting interaction with other MŠori. MŠori who are members of the UMAs can come from all the different tribes. Many MŠori came to the cities to find employment in the middle decades of the last century and their children or grandchildren no longer know the whakapapa which would link them back to their traditional iwi. These people have found support in the environment created by the UMAs.

While the settlement was in compensation for the loss of commercial fishing rights by those who had them (the traditional tribes), the benefits of the settlement were expressed to be for all MŠori. The Commission argued that allocation should be made to the traditional tribes who would then have to ensure that the benefits were shared with all members, including those who no longer knew that they were members. The UMAs argued that traditional tribes would not have the systems (and perhaps the incentives) to find all beneficiaries and distribute the benefits to them, and that the UMAs had effectively become the iwi for the displaced. The argument finally turned on the meaning of the word “iwi” as used in the settlement documents. In MŠori, “iwi” can mean “tribe” or it can mean “people”. The Williams MŠori-English dictionary also gives the meaning of “iwi” as “nation”. This matter was argued in numerous courts in New Zealand, and one court outside New Zealand, the Privy Council.[47] The whole country was treated to the utterly appalling sight of a non-MŠori judge deciding what a MŠori word meant, and worse, to MŠori experts from all over the country lining up against each other for one side or the other. The parties ceased to see the matter as one where a badly drafted commercial deal was having its flaws revealed, but saw it as a matter of the mana (prestige, reputation, status) of those involved. Once that happened, the possibilities for settling the matter by consensus between the parties disappeared.

Those who thought that the latest decision of the Court of Appeal, in Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission,[48] settled the matter in favour of the traditional tribes will need to reconsider. The Court’s decision means that the new Commission is bound to distribute the settlement assets solely to iwi and not to UMAs, whether the new Commissioners like it or not. The latest word is that the matter will be appealed to the Privy Council.

The new Commission will also need to resolve arguments between the previous Commission and some of the tribes about the basis of calculation of the quantum that each tribe is to receive, and whether compensation should be given in respect of alleged inequities in the leasing rounds which disadvantaged some tribes in terms of the amount of quota, provided to them for lease by the Commission, in comparison to others. Some tribes, such as Ngai Tahu who have lengthy coastlines, would benefit enormously from an allocation method based solely on the proportion that their coastline bears to the coastline of the country. Other tribes which had large populations preferred an allocation method based on population proportions. The previous Commission undertook wide and lengthy consultations with the tribes and originally proposed allocation on the basis of inshore stocks to go by coastline (with which there is general agreement), and deepwater stocks to go 40 percent by population of iwi and 60 percent by coastline. Some of the tribes disagreed with these proportions and took court action,[49] and the Commission also accepted in its allocation model that a special case should be made for the Chatham Islands people who preferred to be treated as having a separate fishery.

The last proposal by the previous Commission was for a 50:50 division between coastline and population, with a separate fishery for the Chathams. The cash was to be shared on a population basis, with some money being put into a development fund to assist MŠori into fishing. Shares in the various fisheries companies were to be allocated in proportion to the quantity of quota (by tonnes) allocated to each iwi.

Once the new Commission has devised a plan of allocation, the process is that the Commission must report its plan to the Minister, who can either accept the plan or require the Commission to reconsider it.[50] If the Minister decides that the plan fulfils the requirements of the settlement, the Commission can proceed to allocation. If not, and no change follows from the reconsideration, the Minister has the option of introducing legislation to protect those beneficiaries who claim that they are disadvantaged by the scheme. On notification by the previous Commission that it intended to make a report to the Minister, an interim injunction was obtained by some of the tribes to prevent the report being made, so as to obtain further time for discussion with the Commission about the plan.[51] It is yet to be seen whether further court action will be taken.

Other aspects of the previous Commission’s allocation plan include stringent requirements on iwi relating to recognition of groups as iwi, the validation of the mandates of iwi organisations, and checking of iwi structures to ensure that they are able to account to their members to an acceptable standard. As the law stands at the moment, if the Commission does not recognise a group as an iwi, it will receive nothing from the settlement. As part of the recognition process, iwi organisations must have a mandate from the people they represent. Whether the Commission accepts a group as an iwi with a mandate is determined on guidelines originally developed by the Crown when trying to set up the (now repealed) Runanga Iwi Act. So, for instance, the iwi organisation:

must have a constitution which provides for full participation by iwi members in a regular electoral process. The constitution must entrench this provision and constitutional changes are to be made only with the consent of iwi members. Every iwi organisation must provide for ongoing structural accountability through transparent separation of functions. There must also be appropriate communication and control processes between the entities responsible for the different functions. Every iwi organisation must ensure that access to the benefits of the settlement is available to all their members wherever they may reside and regardless of the strength of their ties to the iwi.[52]

In other words, the iwi must be a body corporate. Thus, the Commission is requiring that MŠori give up their traditional ways of recognising hapŸ and iwi, and adopt Western methods in order to fit in with the Western corporate model which is being imposed with the settlement.

The irony is that many, if not all, of these requirements could be met by the UMAs, but very few of them by traditional iwi. Many of the requirements for fulfilment of mandate are unheard of in iwi. The choosing of representatives by electoral process, while not unknown in other contexts, seems strange in relation to iwi, and the idea of an entrenched constitution is novel to say the least. The courts have upheld these requirements,[53] despite the fact that they are not custom or tikanga (the right way of doing things in the MŠori world), as a matter of practicalities, but it is disturbing to see how traditional ways of doing things have been so quickly put aside in favour of European-based organisational models. This surely means a loss of rangatiratanga for those hapŸ and iwi who used to define themselves.

The previous Commission also developed a dispute resolution procedure intended for use in disputes between or within iwi over the distribution of the benefits of the settlement. It may be a forlorn hope that groups will be able to settle their differences by traditional consensus decision-making rather than having to resort to these procedures.

This whole process emphasises the importance of being clear at the outset of any settlement as to what the underlying principles of the settlement are. Is it to compensate for lost rights and if so who holds the rights? Is it to fulfil rights? How are those rights defined and by whom? Is the settlement to ameliorate the poor socio-economic conditions of a group of people, and if so who are those people? What objectives do you wish to achieve with the settlement: employment, compensation, service delivery, resource protection and conservation, or commercial gain? How best are these objectives to be achieved? Who should benefit, how are they to be identified, and how are they to receive that benefit? Many of these questions were not answered or not clearly answered in the MŠori fisheries settlement and thus problems have arisen accordingly.

One last point to emphasise about the settlement is that it was imposed without adequate agreement from MŠori and, by “accepting” a property right in the fisheries, rather than fully developing the Treaty right, MŠori have been left with diminished, if any, rangatiratanga.

V. M€ORI COMMERCIAL FISHING

1. Developing MŠori Commercial Fishing

So far the discussion has focussed on the Crown, MŠori in general and the Commission. However, MŠori have been actively using the property rights provided by the settlement. As previously stated, the Commission is leasing quota to iwi at a discounted rate while preparing the final allocation plan. A market has been created for the sale and purchase of quota so that it has been possible for iwi to on-sell the leased quota to others in the industry, and thus make a profit. Many iwi have chosen to do this and it remains their sole involvement in the industry. Other iwi, such as Ngai Tahu and Tainui, wished to engage actively in fishing operations. Their ideal goals were not only to make profit which would be fed back to iwi members as dividends, but also to provide employment for iwi members and to ensure that the resource was fished in accordance with tikanga and conservation principles in order to protect and maintain the resource for future generations.[54]

Raukura Moana Fisheries Ltd[55] is one example of the initiatives by iwi to enter the fishing business. Raukura Moana Fisheries Ltd was set up by three tribes, Waikato, Maniapoto and Raukawa, all members of Tainui waka. The aim of the tribes in going into the venture was primarily to provide employment for their people. However, the company was set up as a standard commercial company - nothing was written into the constitution of the company or any of the founding documents of the company which would indicate that employment was the primary aim of the venture. Each tribe put in the start-up capital from its own funds - the tribes had no access to a portion of the fisheries settlement monies for the setting up of the company.

The export industry, which is based on the deepwater fish species, is more profitable than the inshore fisheries, and the company directed its business accordingly. None of the tribes had any commercial fisheries experience to speak of, so it was a new and risky venture for them. The company therefore had to buy in the expertise that they needed to run the fishing operation, especially as the established industry members initially tried to push Raukura Moana out of the industry.

Reliance on outside expertise provided a way into the industry for the company, but consultants tended to see the company as a cash cow, which caused considerable trouble for the company. The consultants were also not as “expert” as the company expected and in some cases really only had a head start on the tribes’ own people. However, the company had to weigh up the risk of using outside experts against letting their own people work their way through. With limited funds and a very difficult trading situation, the incentives were there to buy in the expertise. Steps have been taken to help tribal members gain the skills necessary to run the business, but it may be many years before the dream of an operation run entirely by the tribes will be a reality.

The deepwater manager’s review in the company’s annual report details some of the issues that the company needs to deal with. The manager notes that the “critical success factor” for the company is securing required quota from one fishing season to the next. The quota leases are for one year only and it is important to get sufficient quota in order to make the operation economically viable in the first place, and to make gains from economies of scale. The setting of the TACC for each year also means that the company is not sure from one year to the next what quota it will have. Thus there is huge pressure on the commercial operators, who are keen to see the finalisation of the settlement by the Commission. To deal with the difficulties of short-term leasing, the company has entered into pooling of quota arrangments with other iwi in order to have the “critical mass to spread the risks”.[56]

Another problem with the short-term nature of leased quota is that banks have refused to accept lease quota as security for loans, so there is added pressure in obtaining sufficient working capital to keep a highly volatile business going. Within any one year cash flow is not steady - there are times when the company is paying out continuously with income not due for long periods of time, so large amounts of working capital are essential. The company has also retained profits in order to help build up the company but it was not easy to tell tribal members, who have justifiable need for the funds, that they would have to wait.

2. Lessons for Development of MŠori Commercial Fishing

While Raukura Moana is now a healthy company it is obvious that there are tremendous difficulties in the way of iwi entering into the fishing business. Many of the lessons to be learned from the Raukura Moana experience are the lessons to be learned from inexperienced people going into any business venture. The fishing business is a competitive, complex and risky business, where some of the factors affecting the business are not within the control of the managers. Other iwi initiatives, for example the Mt Fish initiative, have failed due to inexperience in the business.

Some lessons are particularly relevant to indigenous peoples. The business requires long-term investment and the ability to take the volatility in the returns. However, the returns for entering into the fishing business have been greater than if the tribes had simply sold on their quota. Using the quota also offers better long-term prospects than quota trading.

The amicable agreements that have been reached between the tribes setting up the company, and between the company and the tribes involved in the partnering arrangements, have been very important to the company’s success. And the more tribes involved in the business the easier it has been to achieve that success. This can be contrasted with the shambles surrounding the settlement and method of allocation, where huge amounts have been lost in costs and delays.

The tribes also accepted the necessity of delay in providing employment for their own people where the necessary expertise was missing. However, it is very easy to continue along that original pathway of buying in expertise because the company is in a commercial environment where maximising profit becomes the be all and end all. All the incentives are there for company members and the tribal members involved to lose sight of the original objectives. Whatever the tribal objectives are, they need to be written at the outset into the constitutional documents, and probably into the employment contracts of the senior management, so as to be measures of the company’s and managers’ performance. Of course, there also needs to be allowance for the long-term nature of some of these goals.

The success of a commercial venture may be as close as MŠori can come in the commercial fishing industry to claiming back rangatiratanga. However, the limits on the rights of the iwi owning the quota and the vulnerability of any commercial venture mean that this is a very limited form of rangatiratanga.

VI. CUSTOMARY FISHING REGULATIONS

The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 included a provision, against the objections of MŠori, that non-commercial fishing rights would become legally unenforceable and that instead the Minister, acting in accordance with the principles of the Treaty, shall consult with MŠori and “develop policies to help recognise use and management practices of MŠori in the exercise of non-commercial rights...”.[57]

One difficulty with the section, amongst others, is that the principles of the Treaty were developed by a PŠkehŠ court interpreting the Treaty when the judges in the court could not even speak MŠori.[58] The court’s principles speak of a partnership and consultation between MŠori and the Crown. Under this decision both parties must act in good faith and with reasonableness, but the Crown has the right and duty to govern. The MŠori language version of the Treaty actually says that MŠori retained tino rangatiratanga, the right to self-government. Section 10 of the Act is therefore a breach of the Treaty in itself because it gives to the Minister the right to make regulations governing MŠori in the exercise of our customs.

Another difficulty is that, if MŠori wish to challenge the Minister’s actions under the section, the only requirement that the Minister actually has to meet is to consult with MŠori. The Court of Appeal has already found that the requirement of consultation is not open-ended,[59] and there is no necessity for the Minister to act on submissions from MŠori. The Minister’s ultimate defence is that the Crown has the right to govern. MŠori are dependent on the good faith of the Minister. This is clearly a loss of rangatiratanga.

From the passing of the Act, the Ministry of Fisheries attempted to get agreement on the form of the regulations with a group of MŠori representatives. The MŠori representatives ultimately walked out of the discussions because the consultation being conducted by the Minister was unacceptably inflexible in terms of what the Minister was prepared to negotiate. The Ministry had taken no account of the fact that different hapŸ around Aotearoa had different customs and practices, and that the regulations needed to provide for this. The result was that a considerable time passed while the Ministry went around to the different hapŸ and iwi and worked out with them what was needed. The operation of the regulations means that that consultation with the local people must continue.[60]

There are two sets of regulations in place, one for the North Island and one for the South Island, although they are similar in most respects. The regulations in the North Island are called the Kaimoana Customary Fishing Regulations 1998[61] and cover non-commercial customary fishing, which means fishing to provide food for hui (meetings) and tangi (funerals), and which does not involve the exchange of money or other form of payment.[62]

The regulations provide for the tangata whenua (people of the area) of any particular area to appoint a tangata kaitiaki/tiaki (guardian) who is responsible for issuing authorisations to individuals or groups to fish for customary purposes.[63] The tangata whenua notify the appointment to the Minister, who will notify the public by advertisement in the newspaper.[64] Where there is a dispute about who are the tangata whenua of an area, or over who has been appointed tangata kaitiaki, it must be resolved by the groups involved before the Minister will confirm the appointment.[65] Only on the advice of the tangata whenua or the tangata kaitiaki may the Minister cancel the appointment once it is made.[66]

The authorisations given by the tangata kaitiaki govern the date when fishing is to occur, who can take the fish, the quantity and size of each species to be caught, the fishing method, the area where fishing is to occur, the purpose and venue for which the fish are needed, and any other matters that the tangata kaitiaki considers necessary.[67] The fishers must carry the authorisation with them when they go fishing. The enforcement of the regulations is carried out by fisheries officers. It should also be noted that all the processes of appointment of tangata kaitiaki go back through the Minister’s office. So, while the local people have a certain measure of control, it takes place within the oversight of the Minister.[68]

The tangata kaitiaki must keep accurate records of the authorisations that they issue and the quantities of fish taken.[69] They also take part in fisheries management processes, such as setting the TAC and developing regulations.[70] They must report to tangata whenua each year on how the fishing has been managed, and to the Ministry each quarter on the quantity and species harvested and in what area.[71]

The regulations provide for tangata whenua to have a say in the management of their customary fisheries, including the activities of commercial and recreational fishers. The tangata kaitiaki may also develop management plans for the fisheries within their area for approval by the tangata whenua.[72] These documents can be “Iwi Planning documents” for the purposes of the Resource Management Act 1991, which means that the plans will be taken into account by local and regional councils in developing their plans and considering resource consents. The plans can also be used for the development of sustainability measures for the fisheries in the area. The sustainability measures ultimately guide the setting of the TAC by the Minister.

The regulations also provide for the establishment of mŠtaitai reserves,[73] which are areas where the tangata whenua manage all non-commercial fishing by making bylaws. The bylaws apply to everyone, and generally commercial fishing is prohibited within the reserve unless the tangata kaitiaki proposes to the Minister that a commercial harvest be allowed for specified species and quantities for a specified period. The Minister will then consult with the tangata whenua and representatives of people with an interest in the fish stock and recommend (or not) that a regulation allowing the commercial harvest to take place.

Approval of a mŠtaitai reserve proposal is over to the Minister who must be satisfied that:

- a special relationship exists between tangata whenua and the area of the proposed reserve;
- the proposed reserve is a traditional fishing ground;
- the proposed reserve can be effectively managed by the tangata whenua;
- the general management aims are consistent with the sustainable use of the fisheries resources in the area;
- the proposed mŠtaitai reserve is not a marine reserve;
- the reserve will not unreasonably affect the ability of the local community to take fish for non-commercial purposes;
- the reserve will not prevent persons with a commercial interest in a species from taking their quota or annual catch entitlements, or those with a commercial fishing permit from taking fish within the fishing management area;
- the reserve will not unreasonably prevent non-commercial fishers from fishing within the fishing management area.[74]

Once a mŠtaitai reserve is established, control of the fishing in the area lies with the tangata kaitiaki, although the making of the bylaws also goes through a process to obtain the approval of the Minister.

The result of these regulations is that MŠori can have some control over customary fishing and some control in respect of mŠtaitai reserves, but it is still within the overarching control of the Minister.

VII. CONCLUSION

The settlement of MŠori fishing claims has had far reaching effects on the fishing industry and on MŠori. The promise of the Treaty, that MŠori would continue to enjoy the governance and bounty of the fisheries resources that they had prior to European contact, has not been fulfilled. There has been more litigation by MŠori on the settlement than on any other single issue which has faced MŠori. Huge amounts of money have been paid to lawyers, but MŠori are yet to see a final allocation of the benefits eight years afterwards. The settlement provided for the extinguishment of MŠori rights, including tino rangatiratanga, in exchange for limited rights under the QMS and the customary fishing regime. Whether that exchange will provide MŠori with the benefits of governance that we would have had under the Treaty is yet to be seen. But, in light of what has been provided under the legislation, any rangatiratanga will be but a shadow of what might have been.


[*] Senior Lecturer in Law, University of Waikato.

[1] The settlement was carried into law in the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.

[2] Ministry of Fisheries, “Our Fisheries Resources”, in Briefing to the Incoming Minister (Dec 1999), accessed via internet at www.fish.govt.nz/information/briefing_index.htm1.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid, in the introduction section of the briefing document.

[8] Chiefly the United Nations’ Law of the Sea Conventions and the United Nations’ Fishstocks Agreement.

[9] Waitangi Tribunal, Muriwhenua Fishing Report (Wai 22) 13-63.

[10] Ibid, chapter 3.

[11] Ibid, chapter 4.

[12] The first fish law was the Oyster Fisheries Act 1866, which was passed as a result of concerns raised about the depletion of oyster beds adjacent to Auckland and other large settlements. The Fish Protection Act 1877 was the first “comprehensive fisheries control measure” in New Zealand. See supra note 9 at chapter 5, paragraphs 5.4 and following for other fisheries measures in the period 1870 onwards.

[13] Supra note 9, chapter 6.

[14] Ibid, chapter 6 at part 6.2 and following.

[15] For instance, in 1909, the Reverend Manihera Tumatahi was fined £5 for fishing without a licence. He was fishing from his own land, into a lake from which he and his ancestors had always fished (Lake Rotorua), and caught a trout, a species of fish which had been liberated into the lake without the permission of or consultation with the local hapŸ. See Te Arawa MŠori Trust Board Te Arawa MŠori Trust Board (1974) for further information about this prosecution and the protests by MŠori and threatened court action which followed.

[16] In discussions of MŠori fishing rights it is frequently forgotten that protection for MŠori fishing rights was contained in legislation beginning with the Fish Protection Act 1877, s 8, which provided that nothing in the Act was to affect any of the provisions of the Treaty of Waitangi, or to take away MŠori rights to any fishery. This provision was re-enacted in s 77(2) of the Fisheries Act 1908 and again, with slight amendment, as s 88(2) of the Fisheries Act 1983.

[17] The case Te Weehi v Regional Fisheries Officer [1986] NZHC 149; [1986] 1 NZLR 680 was the first case of the new era of MŠori fisheries litigation which re-opened the issue of MŠori fishing rights.

[18] Waitangi Tribunal ,supra note 9, Summary, xx.

[19] Ibid, 239.

[20] Idem.

[21] These proceedings were later discontinued by s 11 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, as part of the settlement. For a discussion of the legal issues involved, which included both considerations of the principles of the Treaty and aboriginal rights, see Te Runanga o Muriwhenua Inc v Attorney-General [1990] NZCA 7; [1990] 2 NZLR 641.

[22] Ibid.

[23] See Waetford, “Treaty of Waitangi (Fisheries Claims) Settlement Act 1992” [1993] Auckland Universities Law Review 402.

[24] It is salutary to remember that at this time Brierley Investments were still considered a profitable and successful business and were still based in Aotearoa.

[25] See Te Runanga o Wharehauri Rekohu v Attorney-General [1993] 2 NZLR 301, 307 (CA), where Cooke P states that all parties to the Deed of Settlement agreed that the Deed did not bind those who were not signatories to the Deed. This case was taken by iwi who had not signed the Deed in an attempt to prevent the government introducing a Bill into Parliament which would implement the settlement in accordance with clause 3.5 of the Deed. In this case the Court of Appeal abided by the principle of non-interference by the courts in parliamentary proceedings. The courts could not and would not restrain a Minister from putting matters before the legislative assembly nor constrain a Minister to put matters before Parliament. The result was that the Minister was able to introduce the settlement Bill to Parliament, even though its provisions in binding all MŠori did not match the provisions of the Deed of Settlement.

[26] See Waitangi Tribunal, The Fisheries Settlement Report (Wai 307, 1992).

[27] Ibid.

[28] Ibid, 11-15.

[29] Supra note 23, at 402.

[30] (1992) 532 NZPD 12945, per B Gregory.

[31] Supra notes 25 and 26 for examples of such strife. See also the series of court decisions relating to the allocation of PRESA under the settlement (Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [2000] 1 NZLR 331).

[32] However, according to the Briefing Report to the Incoming Minister of Fisheries, supra note 2, MŠori now own 40% of quota outright and, with joint venture partners, control 60% of quota.

[33] Supra note 26.

[34] See Te Ohu Kaimoana, Te Reo o te Tini a Tangaroa, Issue Nos 23 and 26, for evidence of such conflict prior to the passing of the Fisheries Act 1996. Also, the editorial regarding “gripes” in relation to the Fisheries Bill, in Issue No 29, February 1996, highlights problems experienced by the Commission at that time. Te Ohu Kai Moana strongly advocated for inclusion, in the Bill, of a clause reading that the Act would be interpreted in a manner consistent with the provisions of the FCSA. The Commission’s submission was accepted and the provision was enacted as s 5(2) of the Fisheries Act 1996.

[35] New Zealand Fishing Industry Association and Ors v Minister of Fisheries, Treaty of Waitangi Fisheries Commission v Minister of Fisheries, unreported, Court of Appeal, CA 82/97 and CA 83/97, 22 July 1997, Richardson P, Gault, Keith, Blanchard, and Tipping JJ, 20-21.

[36] Te Ohu Kaimoana, Hui-a-tau Report (1997) 10. See also Te Ohu Kaimoana, “Te Reo o te Tini a Tangaroa”, Issue 35, February 1997, 2.

[37] Supra note 2.

[38] A summary of the activities of the Commission can be seen at the New Zealand Seafood Industry website. The requirement to facilitate and develop MŠori fishing activity is set out in s 5 of the MŠori Fisheries Act 1989, and was part of the interim settlement negotiated between MŠori and the Crown.

[39] Te Ohu Kaimoana, Annual Report (1998) 5.

[40] Ibid, 19. See also the later Annual Reports of the Commission.

[41] Ibid.

[42] Supra note 38.

[43] Ibid.

[44] Supra note 31.

[45] See eg Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission, unreported, High Court, Auckland, CP 395/93, Mar 31, 1999, Anderson J. For discussion of this case see Mikaere and Milroy, “MŠori Issues” New Zealand Law Review [1999] 353, 369.

[46] See eg Te Runanga o Raukawa Inc v Treaty of Waitangi Fisheries Commission, unreported, Court of Appeal, CA 178/97, 14 October 1997, Thomas, Keith, and Tipping JJ; and Te Iwi Moriori Trust Board v Treaty of Waitangi Fisheries Commission, unreported, Court of Appeal, CA 238/96, 14 October 1996, Gault, Thomas, and Blanchard JJ).

[47] Treaty Tribes Coalition v Urban MŠori Authorities [1997] 1 NZLR 513, an appeal from a decision of the Court of Appeal in Te Runanga o Muriwhenua v Te Runanganui o Te Upoko o Te Ika [1996] 3 NZLR 10.

[48] Supra note 31.

[49] Supra note 45.

[50] Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, s 15, which amended the MŠori Fisheries Act 1989, s 6.

[51] Supra note 45.

[52] Te Ohu Kai Moana, Report on the Proposed Method of Allocation of Pre-Settlement Assets (1998) 7.

[53] Te Runanga o Wharekauri Rekohu Inc v Treaty of Waitangi Fisheries Commission, unreported, High Court, Wellington, CP 297/95, 11 September 1997, McGechan J.

[54] Unfortunately conflicts may develop between the goal of profit and the goals of tikanga and conservation.

[55] This information comes from my colleague at Waikato Law School, Linda Te Aho, who was until recently a director of Raukura Moana Fisheries Ltd and whose father remains the chairman of the company. I am very grateful to Linda, who generously agreed to be interviewed in order that some of the lessons that were learned by the company could be passed on.

[56] Chairman’s Report, Raukura Moana Fisheries Limited Annual Report 1999.

[57] Section 10(b).

[58] The principles were contained in the judgment of the Court of Appeal in New Zealand MŠori Council v Attorney-General [1987] 1 NZLR 641.

[59] Ibid, 665, per Cooke P.

[60] The main requirement for consultation under the regulations occurs when tangata whenua apply for the setting up of a mŠtaitai reserve. See Reg 20.

[61] SR 1998/434.

[62] Recreational fishing by MŠori is covered by the Amateur Fishing Regulations, which apply to MŠori and non-MŠori alike.

[63] Reg 5.

[64] Reg 6.

[65] Reg 8 provides for a dispute resolution process to be undertaken where there is disagreement on such matters.

[66] Reg 10.

[67] Reg 11.

[68] See eg reg 34 which gives the Minister powers regarding the management of the rohe moana (defined area of the sea) where the Minister considers, for example, that it is not being “managed in a manner consistent with sustainable utilisation of the fisheries resources...”

[69] Regs 35 and 36.

[70] Regs 14–17.

[71] Reg 38.

[72] Ibid.

[73] Regs 18-32 govern the setting up and administration of mŠtaitai reserves.

[74] Reg 23.


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