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Hui Report Nov 2005

Whakamaharatanga Marae Hui
Page 2

(PDF 450Kb)

A hui to discuss non-commercial fishing interests and Maori customary forums
10 - 11 November 2005



Fisheries Act s12

Ministry of Fisheries
Customary fishing

Fisheries Act 1996, section 12

Bruce Galloway, partner, Kensington Swan

Prior to the hui, at Sonny's request, Bruce wrote a paper on section 12 of the Fisheries Act which, in broad terms, requires that before the Minister of Fisheries makes any decisions on sustainability measures he must provide for the input and participation of tangata whenua having a non-commercial interest in the stock concerned, and consult widely including Maori, environmental, commercial and recreational interests.

Bruce said that in order to understand section 12 contained in Part 3 of the Fisheries Act 1996 concerned with sustainability measures, it was important to consider previous sections of the Act which underpin fisheries management in New Zealand.

Section 8 contains the purpose of the Fisheries Act:

Section 8 (1) The purpose of this Act is to provide for the utilisation of fisheries resources while ensuring sustainability.
  (2) In this Act –
ensuring sustainability means –
  (a) maintaining the potential of fisheries resources to meet the reasonably foreseeable needs of future generations; and
  (b) avoiding, remedying, or mitigating any adverse effects of fishing on the aquatic environment.


Sustainability is not just a short-term issue, but goes well beyond our lifetimes.

Utilisation is defined as conserving, using, enhancing, and developing fisheries resources to enable people to provide for their social, economic, and cultural well-being.

Bruce posed three questions in relation to section 12:

  1. What does section 12 mean?
  2. What section 12 requires the Minister to do?
  3. How it would work in practice?

What does section 12 mean?

The effect of section 12 is that, before giving any approval or carrying out any functions specified in relation to sustainability measures the Minister shall - there is no discretion - provide for input and participation of tangata whenua and consult widely.


Section 12

(1) Before doing anything under any of sections 11(1)..(sustainability measures), the Minister shall:

(a) consult with such persons or organisations as the Minister considers are representative of those classes of persons having an interest in the stock or the effects of fishing on the aquatic environment in the area concerned, including Maori , environmental, commercial, and recreational interests; and


(b) provide for the input and participation of tangata whenua having-

(i) a non-commercial interest
in the stock concerned; or

(ii) an interest in the effects of fishing on the aquatic environment in the area concerned-

and have particular regard to kaitiakitanga .


The obligations to both consult and provide for the input and participation put in place a two-layered requirement on the Minister on the proposed sustainability measure, namely, the Minister must:

  1. Consult and engage with a wide group of interests; and
  2. Make the necessary arrangements, including adequate resourcing, to provide for the input and participation of tangata whenua .

and have particular regard to kaitiakitanga.

What section 12 requires the Minister to do?


The courts have considered the term "consultation" [1] and although not defined in the Fisheries Act 1996 is defined in at least one other statute, the Local Government Act. (Appendix One)

The Ministry has considered what consultation means in the Fisheries Act context as discussed in the Ministry paper entitled "Section 12: Consultation" (dated October 2001); in broad terms consultation has to be a meaningful engagement with an open mind, not merely an offer of a proposal and disregarding people's responses. (Appendix Two)


Input and Participation

The MFish section 12 paper refers to an informal working group having initiated a project to establish how to incorporate the views of tangata whenua in developing proposals and making decisions relating to fisheries management, seeking advice from tangata whenua on how they wished to provide such input and participation with the project to have been completed by the end of the year 2000.

Apart from statements made in various Ministry plans - the five-year plan and the ten-year plan - of the need to involve tangata whenua in decision making processes, to date it appears that the Ministry has not developed a policy on what the Ministry considers input and participation means.   

Some key phrases in section 12:

Provide for
This suggests:

  • Positive steps or actions that need to be taken;
  • Adequate resourcing.

Input and participation
This must include:

  • The contribution of tangata whenua in formulating the sustainability proposal;
  • The act of taking part or being involved in the process to which the proposal relates.

Contrasted with consultation , input and participation means being involved in the formulation of a proposal.

Tangata whenua having a non-commercial interest

There was some discussion of what tangata whenua having "a non-commercial interest" actually means. One interpretation put forward was that this term is limited to a customary non-commercial interest.

The consensus of those at the hui was that the words "a non-commercial interest" clearly includes both customary and recreational fishing especially given the realisation that the vast majority of kaimoana harvested by tangata whenua is categorised as recreational fishing.

It was suggested the Forum request the Ministry for its view on this point.

kaitiakitanga - section 2

means the exercise of guardianship; and, in relation to any fisheries resources, includes the ethic of stewardship based on the nature of the resources, as exercised by the appropriate tangata whenua in accordance with tikanga Maori.

In response to a question by Bruce, Sonny informed the hui that, in his experience since the Fisheries Act came into force in 1996, MFish have never consulted with Ngapuhi on sustainability measures at the formative stage. There is a clear need for consensus on how the input and participation and consultation processes are to work. Then tangata whenua can engage with MFish and say, "this is what we think you should be doing" on a specific sustainability measure proposed.

How section 12 will work in practice?

At the last hui the Ministry advised that $20,000 per annum could be made available to the Hokianga Accord to assist in the input and participation and consultation processes. Bruce considered that the money would be a contribution towards the cost of an administrator. (Sonny, tongue in cheek, mentioned that this amount may only cover photocopying costs).

The reality is that the amount of resourcing required will depend on the nature of the particular sustainability measure the Ministry has in mind on which tangata whenua's input and participation is required. As mentioned, $20,000 may help to fund secretarial services but the Accord would need to look at each sustainability measure that came up and decide how much is required to provide for proper input and participation .


Fisheries Act 1996, section 12

Scott Macindoe, option4

The analysis completed on section 12 to date needs more work in order to be of assistance to the Hokianga Accord and other Forums. It is very important the Forums have a good understanding of the Fisheries Act and the Crown's obligations to tangata whenua's interest and participation in fisheries management.


Section 12 (1) (a)

There was some concern expressed about the provision for consultation in section 12 (1) (a) that would allow the Minister to have discretion over who he consults with during sustainability rounds.

Phil Grimshaw confirmed the negotiations held during the process to set up the Kaimoana regulations in 1997 and 1998 the "input and participation" of tangata whenua and how that would be given effect was discussed. As a Treaty partner it was envisaged that Maori would talk with the Ministry before the process would move on to the consultation phase. Nothing much had happened since these talks to give effect to the "input and participation" phase.

As the law is written, and had been interpreted for these discussions, there is a two-stage process. The "input and participation" by tangata whenua should be conducted with the Ministry of Fisheries to formulate a sustainability proposal before it goes out for consultation.


Section 12 (1) (b)

Section 12 (1) (b) (i) refers to tangata whenua's "non-commercial interest in the stock concerned" which, in the case of flounder 1 or grey mullet 1, extends from north Taranaki in the west to Cape Runaway on the east coast.

Whereas section 12 (1) (b) (ii) of the Fisheries Act refers to tangata whenua in regards to "the area concerned" which indicates tangata whenua's interest lies in an area they have manawhenua over.

Carl Ross

Ministry of Fisheries

In response to several comments made during the question and answer session on section 12 Carl Ross, manager of the Customary Relationship team, advised the hui that the regional forums were put forward to the Ministry, by the chief Maori negotiators, they were not a construct of the Ministry of Fisheries.   Carl also pointed out that the Ministry is obligated to have these hui.

The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 provides for the Pou Hononga unit to achieve two things:

  1. "To ensure the capacity and capability is there for Maori to manage fisheries; and
  2. To have true and meaningful input into fisheries management. I tested that when I first started this position."

"If there is a question about customary, then that goes on as action point and we come back with an answer."


If there were some doubt about the Ministry's policy on participation then Carl would like the Hokianga Accord and MFish to work together on the issue.


Ministry of Fisheries

Jodi Mantle , MFish Manager, Northern Inshore team

MFish is trying to improve tangata whenua's input into fisheries management and this was one of the reasons Jodi, Stephanie and Stacey were attending the hui. " We [MFish] are very open to expanding on the input from the forums into fisheries management."   Her expectation is that if her team were writing a paper, they would come to the Hokianga Accord and ask for input at the development stage, before the paper is written.

"If my team is not involved in writing those papers then we can definitely go back to the Ministry and lobby the person who is on the particular issue you are really interested in, and try and get them here and to listen. And if not, the best we could do is take your expectations back to them and see if we can put them that way."


Customary Fishing

Phil Grimshaw, Ngapuhi

The Fisheries Kaimoana Customary Fishing) Regulations 1998 describes customary fishing as customary food gathering,

"Customary food gathering means the traditional rights confirmed by the Treaty of Waitangi and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, being the taking of fish, aquatic life, or managing of fisheries resources for a purpose authorised by tangata kaitiaki including koha, to the extent that such purpose is consistent with tikanga Maori and is neither commercial in any way or for pecuniary gain or trade".

In order for Maori to be able to have "input and participation" the Ministry is obligated to up skill Maori through training and increase capacity building. Discussions were held throughout 1997 and 1998 regarding Ministry's obligations and how it conducts its processes such as Fisheries Assessment Working Groups, regional planning groups and all the other units associated with fisheries management.

The Ministry has very clear processes around the setting of sustainability measures. What was not clear was how the Ministry were going to resource that "input and participation", up skill tangata whenua and recognise Maori as being partners with the Ministry as fisheries managers. The task then would be to work out how tangata whenua would participate in the Working Groups and other sustainability programs.

Ministry were adamant Maori had to go to Wellington to participate, tangata whenua were agreeable to the suggestion but MFish were not willing to provide the funds required to get them to Wellington. Talks broke down after this impasse.  

The Ministry have offered to ask for a definition of customary fishing from officials in Wellington and advise the Hokianga Accord of the outcome. The MFish team are obliged to report back to the Accord if that is what the Forum has asked for.

[1] Wellington International Airport Limited and others v Air New Zealand (CA 23/92, 73/92[1993] 1 NZLR 671)




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