on the draft Kaupapa Whakahaere
Te Runanga A Iwi O Nga Puhi
PO Box 263
Tena koe Sonny
- First let me re-iterate the Ministry's commitment to building
a strong working relationship and the establishment of workable
arrangements with the Hokianga Accord to support that relationship.
I welcome the work you have done to date to produce the
Kaupapa Whakahaere for consideration by the Accord.
- I regret to say that because of sickness and commitments including
providing support to the new Minister neither I nor members of
the Policy team will be able to attend this hui.
- We would like more time to consider your proposals, but I have
provided preliminary comments on the Kaupapa Whakahaere.
I think it would be most useful to establish a smaller group of
my staff to work with your team to work through the issues and
finalize the necessary relationship documents that will enable
the Hokianga Accord and MFish to work together. The driver
for MFish continues to be our commitment to use this opportunity
to establish a forum to fulfill our settlement and legislative
obligations to provide for the input and participation of tangata
whenua into sustainable utilization processes.
- This note comments on the draft Kaupapa Whakahaere that is being
developed by the working group for their engagement with the Ministry.
- The comments that are provided on the draft Kaupapa Whakahaere
recognise that the Ministry of Fisheries has a number of restrictions
placed on it by:
- the provisions of the Fisheries Act 1996 that set out specific
obligations on decision makers and the Minister to act consistently
with the Treaty of Waitangi (Fisheries Claims) Settlement
Act (TOWFC) and to recognise and provide for the input
and participation of tangata whenua in sustainable utilization
- funding for initiatives and particular costs to address
TOWFC objectives and to recognize and provide for input and
participation by tangata whenua that are specifically allocated
for those purposes and can not be reallocated without Ministerial
- the commitments set out in the Ministry's Statement of Intent,
particularly the intention to manage fisheries through the
development of Fisheries Plans, (rather than the annual sustainability
measures currently undertaken by the Ministry;
- the Governments requirement that any relationship document
that is entered into between a Crown agency and Maori (including
any Memorandum of Understanding between the Hokianga Accord
and the Ministry) must conform to the Crown Maori Relationship
Instrument Policy (CMRI) and be approved by Cabinet.
- The key components of the Government's CMRI Policy are attached
as Appendix I.
- As a general comment, the Kaupapa is drafted as a terms of reference
(TOR) between the Iwi and the non-commercial fishers, rather than
a Memorandum of Understanding (MOU) setting out how the members
of the Hokianga Accord and the Crown will work together.
The Ministry does not see itself as a signatory to the Accord,
although it would accept responsibilities to act in specified
ways when working with the Accord members or on issues of concern
to Accord members. The mechanism to record the Ministry's
commitments would be the MOU that is consistent with the Cabinet
- We therefore make the following as suggestions only for your
consideration as a TOR for the Hokianga Accord. The document
could provide more detail on the legal basis for the Accord to
participate in MFish processes, membership of the Accord, the
procedures that will guide the activities of the members, and
the key activities that you want to undertake.
- If you use this as a TOR between members, then it would serve
as a background to the finalisation of a Hokianga Accord/Ministry
MOU based on the draft we tabled at our last hui. That
draft has been approved as consistent with the Government's CMRI
- The Kaupapa could be reorganized to make it clearer as to who
are the members of the Accord, what is the policy and legal basis
for them being involved in Ministry processes, what are the fisheries
management objectives of the Accord, and what actions they want
to undertake to achieve those objectives. We suggest that
the document could be re-ordered as follows:
- Legal basis for the Accord – section 5 and sections 11
–14 obligations of the Fisheries Act and provisions of the
- Membership of iwi/hapu including mandate/status of representatives
attending the Accord;
- Acknowledgement of the significant non-commercial interest of
iwi/hapu, the fact that these are often exercised through harvesting
under recreational regulations and the common interests and objectives
shared by tangata whenua with recreational groups. Recognition
of this shared interest can be effected through an invitation
by the iwi for recreational representatives to participate in
Accord and to assist iwi to have input into sustainability processes.
This approach would assist in clarifying the involvement
of non tangata whenua groups in a process that legislation makes
exclusive to tangata whenua.
- List of non-commercial participants;
- Process to include new members/ remove non-participants;
- Tikanga of the Hokianga Accord. You might want to expand this
to detail how you resolve issues where parties have different
views on achieving the Accords objectives;
- Objectives of the Accord;
- Actions the Accord wishes to undertake to achieve those objectives.
- Alternatively if you wish the Kaupapa Whakahaere to form the
basis for a MOU with the Ministry it would need significant amendments
to meet the Government's CMRI framework. If that is the
case, I would make the following comments on each clause.
1 - Preamble
- The preamble appears to be consistent with requirements of the
CMRI Policy. However, a specific acknowledgement of the
treaty might be better set out in a specific treaty clause, rather
than a pre-amble which is more often used as a background to a
2 - Background
- Paragraph 3 of the background might need confirmation with those
iwi. You have accurately recorded what both you and MFish
understood to be the case from hui, however subsequent discussions
with Te Rarawa indicates they have a different view.
- Paragraphs 4 and 5. MFish does not consider its approach
to working with tangata whenua and recreational fishers (who as
you point out have a significant Maori component) to be segregated.
MFish has specific statutory duties to recognize and provide
for the input and participation of tangata whenua and to provide
mechanisms for the exercise of non-commercial customary fishing
activities. These legal duties apply only to tangata whenua
and have been funded by Government on that basis. This of course
does not prevent tangata whenua and other groups working together
to propose common approaches to fisheries management. MFish
recognizes that the Accord approach is an effective way to achieve
3 - Objectives of the Hokianga Accord
- The objective of input and participation to sustainability measures
is one possibility that the Accord might consider but the way
it is stated is inconsistent with MFish's statutory duties and
the CMRI Policy. This wording also omits what results you
may want from input into sustainability processes, as well as
any role you might see for the Accord in other processes MFish
runs, for example research planning processes. The participants
in the Accord have said their common objective is more fish in
the sea, perhaps of a type/abundance and at places of importance
to customary/non-commercial fishers. This would form a
good high-level objective to be achieved by having input and participation
into sustainability processes and involvement in other MFish processes.
The principles section in clause 6 sets out a mix of objectives
and actions. It might be beneficial to reorganize the document
and join these together as a set of objectives, followed by actions
to achieve those objectives.
4 – Ministers obligations
- It might be useful to bring this clause further forward in the
document to set out the legal and policy basis for input and participation
by tangata whenua and the role of the Accord in meeting those
- The issue of funding should be clarified. The current
putea of $20,000 is designed to address meeting the costs of venue,
travel costs and some administration for regional forums to meet
the Ministry's engagement obligations to tangata whenua.
The support to the Forums to develop plans and input into Ministry
processes was intended to be provided separately through the Ministry
extension team. This could either be through personnel
who would be employed by the Ministry until the Forums had the
governance systems to enable the transfer of the positions, or
through a contract fto undertake particular functions.
The second option still needs further development and will be
subject to any government policy on governance and performance
that might be associated with direct contracting.
4 –Tikanga of the Hokianga Accord
- MFish supports the intent of this clause, however, could be
useful to set out dispute procedures where parties cannot agree
on a common approach to achieving the Accords objectives.
MFish considers that the areas of interaction and the standards
relating to frequency of meetings, and timing of information transfer
could usefully be included in this clause. The format of
the draft MOU tabled at the last hui could provide a basis for
the content of this clause.
5 – Make up of the Forum
- See paragraph 7 iv, v and vi. The Government's CMRI Policy requires
that iwi organizations participating in any MOU with a Crown agency
be specified and their status to represent iwi be confirmed.
Similarly, any representative must have a mandate from the iwi
to make decisions that might bind that group. Similar requirements
could most usefully apply to any non-commercial group.
Where a group or individual could not meet these requirements
they could still participate in the hui and other activities of
the Accord, but the Kaupapa should set out how their input would
be included in decisions.
6 – Principles of the Hokianga Accord
- See comments on Clause 3.
Accord work priorities
- I note that the objectives and principles of the Accord are
based on the current MFish processes and are necessarily reacting
to the problems presented by that process. The Ministry
Statement of Intent signals a change to move towards managing
fisheries or groups of fisheries through Fisheries Plans.
While MFish generally manages fisheries at a QMA level, and the
scale of management for Ministry led Fisheries Plans is yet to
be determined, it might be useful for the Accord to consider the
benefits of developing an plan of their own that could inform
the Ministry's Fisheries Plans and also set out a permanent record
of iwi values and objectives for your fisheries that could be
used in the current sustainable utilization processes run by MFish.
- A plan could, amongst other things, identify the customary,
recreational and commercial importance of each fishery or groups
of fisheries to tangata whenua. It could identify the areas where
customary/non-commercial fishing traditionally took place as well
as the measures tangata whenua considered necessary to rebuild
the fishery to achieve the objectives that tangata whenua wanted
from the fishery, including research and compliance priorities.
A plan could also set out the value to and objectives of the non-commercial
groups for those fisheries where they differed from tangata whenua.
The Plan approach would limit the necessity to respond
in detail to each proposal of the Ministry to manage each fish
stock. It would also address the probability that when
the Ministry moves towards developing a Fisheries Plans for stocks,
there will be less emphasis on regular assessments and alterations
to the TAC/TACCs for individual fish stocks. While such
a Plan could not be part of an MOU between the Accord, the development
of a plan of that nature could be included.
- As I noted above, given the importance of working through these
issues carefully, I consider it would be most useful to set up
a separate smaller working group of MFish/Accord members to finalise
a TOR and the MOU for consideration by the Hui. I am happy
to discuss further.
for Chief Executive
Ministry of Fisheries
Ministry of Fisheries
Feedback on the draft Kaupapa Whakahaere
to Guide the Development of Crown Maori Relationship Instruments
The CMRI policy framework
- give assurance that government policy is being complied with;
- provide an authoritative source of advice for officials;
- manage the government's risks;
- allow maximum flexibility and autonomy to the parties which
enter into CMRI;
- minimize administrative hurdles and compliance costs both for
officials who develop and use CMRI, and in the administration
of the overall CMRI framework.
Definition of instruments
subject to the CMRI policy framework
For the purposes of the CMRI
policy framework that CMRI be defined as "a documented agreement
or arrangement, signed by both parties, that establishes or recognizes
an ongoing collaborative relationship between Ministers, government
departments or Crown entities, and a whanau, hapu, iwi, Maori organization
or Maori community.
Proposals to guide and regulate
the development and content of CMRI
The CMRI policy framework
contain the following directions to government agencies:
- that all CMRI are to include clear statements of:
- who the parties are and who they represent, preferably with
a legal description and reference to their accountabilities
- the purpose of the agreement;
- definition of any terms liable to cause misunderstanding;
- any particular undertakings regarding outcomes, aspirations,
deliverables or processes;
- whether or not the agreement is intended to be legally binding
upon the Parties; and
- execution, signed and dated.;
- that any commitments undertaken within CMRI are to be consistent
with the agency's statutory obligations and not devolve statutory
obligations inappropriately or limit the ability of the agency
to meet those obligations;
- that agencies are to ensure that acknowledgments of the status,
representative role, mandate or rohe of Maori parties to CMRI
are accurate, by checking the acknowledgement:
- against settlement legislation,
- through a mandate determination procedure,
- by seeking advice from the appropriate authorities, being
the Office of Treaty Settlements and Te Puni Kokiri
- through internal systems and procedures;
- that agencies should avoid statements in CMRI which limit the
government's freedom to act in any matter not directly covered
by the agreement or to interact directly with any other citizens
or their representatives;
- that agencies should ensure consistency among and within CMRI
in respect of:
- compliance with policy and legislation
- acknowledgements of tangata whenua/mana whenua status
- recognition of rohe/areas of interest
- recognition of mandate
- fairness between parties in similar situations;
- that undertakings in CMRI be given only by signatories with
the authority to ensure that they are kept;
- that agencies ensure that where a CMRI creates obligations for
other agencies those agencies are joined in the CMRI;
- that undertakings from Maori may be accepted only from people
with the necessary authority and mandate to give them;
Clauses within CMRI which
recognise Treaty obligations
Where agencies choose to
include their understanding of the Treaty and Treaty obligations
in a CMRI, and except as allowed by Cabinet, they are required to
use the following model clauses:
- The parties acknowledge the Treaty of Waitangi as New Zealand's
founding document and the basis for relations between the Crown
- "To give effect to their obligations under the Treaty the parties
- seek continually and in good faith to improve communication
and cooperation between them.
- share all information of interest to the other party, subject
to restraints of law, policy or tikanga.
- cooperate reasonably and earnestly together to promote the
objectives of this instrument and to seek agreed solutions
to any issues which arise between them;
- The Crown party will respect the aspirations of the Maori
- In the event of disagreement the Maori party acknowledges
the right of the government, following all efforts in good
faith to find agreed solutions, to make final decisions in
the national interest;
- The Crown party will inform the Maori party of all decisions
affecting this agreement and the reasons for them, subject
to constraints of law or policy."