Hokianga Accord Working Group
20 - 21 April 2006
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Ryan, partner, Hesketh Henry Lawyers
The New Zealand Big
Game Fishing Council and the New Zealand Recreational Fishing
Council are taking the Kahawai Legal Challenge to the High
|Ngapuhi have provided support by way of an affidavit
including evidence of Maori’s multiple interests in fisheries,
commercial, customary and recreational. option4 has fully supported
High Court hearing is due to be heard on June 6th and is expected
to take four days to complete.
case is about getting a clearer definition of the nature and
extent of recreational fishing rights. In particular, before
the Minister sets the commercial quota limits he has to “allow
for” non-commercial fishing interests, both customary
The case goes beyond
just the allocation of kahawai and onto the act of how the
Ministry administers the Fisheries Act when a new species
enters the Quota Management System (QMS). Kahawai was one
of the last important shared fisheries to go into the QMS.
It was hoped non-commercial fishers would get some useful
case law out of the action that would influence future management
and allocation decisions.
In December 2005
commercial fishers lodged a counterclaim against the Ministry
of Fisheries. The commercial companies are Sanford Ltd, Sealord
Group and a holding company Pelagic and Tuna Ltd.
is based around the Minister setting allowances for non-commercial
catch and the Ministry do very little to monitor and manage
recreational and customary fishing within those allowances.
Commercial’s concern is that the value of their quota
right, which is essentially a property right, would be eroded
over time due to expanding non-commercial take.
Part of the counterclaim
seeks orders from the courts in relation to customary fishing
rights. In particular the lack of reporting of customary catch.
The change from Regulation 27 to 27A in 2005 made it mandatory
for issued permits to be recorded and reported to MFish. Previous
reporting requirements were quarterly.
Stuart Ryan was
due to talk with Lyn Stevens, the QC managing the case and
discuss with him whether there was a need for legal counsel
for customary interests in this case and whether there is
a need for more affidavits from tangata whenua. Any decisions
would have to be made quickly considering there was only around
six weeks to the scheduled court date.
Sharing the Fish Conference
It was discovered in November 2005 that the Ministry of Fisheries was sending a delegation of nine people to the Sharing the Fish Conference in Perth, West Australia. Considering the theme was the allocation of fisheries resources it was important the non-commercial sector was represented. Objections were raised with MFish regarding the absence of non-commercial representatives at the Freemantle event from 27th February to 2nd March.
Ministry eventually succumbed to the pressure from recreational fishing representatives and agreed to send three non-commercial people, one customary, a recreational and one environmental representative. Following a poor selection process promoted by the Ministry, Shane Reece from the Chatham Islands was chosen as the customary fishing representative, Clive Monds as the environmental representative and Keith Ingram for recreational fishing.
Ngapuhi, the New Zealand Big Game Fishing Council and option4 all agreed that Kim Walshe should attend as a representative of recreational fishing interests so all parties agreed to sponsor Kim’s attendance. Kim and Davidson Kemp Ltd must be acknowledged for their willingness to donate Kim’s time to attend the event at no cost to the other parties. Kim has subsequently supplied a report to Ngapuhi, the NZBGFC and option4.
Value of Attendance
Kim was only able to give the hui a quick summary of the conference as he was due at another meeting. He was keen to present what he had learnt about different approaches to fisheries management at the July hui.
An alternative approach had been taken in the Canadian halibut fishery where the recreational sector has been allocated a tonnage equal to 30% more of its historical catch. They were then given the opportunity to lease that quota back to commercial fishers to enjoy a return on that investment.
Great value was gained from the information gathered at the conference and the contacts made during the event. Papers presented at the conference were online at http://fishallocation.com/papers/. The team were encouraged to read the reviews in Kim’s report, select a few papers of interest and download those from the website.
Although Kim had not given any recommendations in his report he did make the point that how a problem is defined generally determines the type of solution arrived at.
Historically the problems in New Zealand’s fisheries were viewed by the Crown as economic, so the solution was to introduce the Quota management System (QMS) to try and address the economic issues, but the Crown failed to give due consideration to the socio-economic issues.
A prime example of this was the removal of the right of small-time fishermen to continue fishing in 1983 prior to the introduction of the QMS in 1986. This disenfranchised many Northland fishermen and coastal communities from their traditional access to income and lifestyle. In addition recreational rights had not been addressed adequately in the New Zealand model.
Alternative management regimes that could be applied to New Zealand were worth considering if they had been used successfully overseas. The QMS was not the only way to manage fisheries. Kim would prepare some case studies to support his report for the July hui.
Aotea (Great Barrier) Marine Reserve
Sonya Williams and Rawiri Wharemate joined the hui and gave a brief overview of the process Ngati Rehua had gone through regarding the marine reserve at Aotea. Sonya had recently been appointed chairperson of the Ngati Rehua-Ngati Wai Ki Aotea Trust Board.
The Department of Conservation had approached Ngati Rehua around five years ago with a proposal for a marine reserve off the north east coast of Aotea (Great Barrier Island). The proposal included over 50,000 hectares and went out to the 12-mile limit. Ngati Rehua vehemently opposed the reserve and advised other iwi involved in discussions with DoC that they objected to the proposal.
Ngati Rehua had met with the Minister of Conservation twice to discuss the proposal and their understanding that DoC was supposed to be negotiating with Ngati Rehua over the proposal and not making decisions in the absence of their consent.
Ngati Rehua has also had discussions with the Ministry of Fisheries regarding a mataitai at Whangapoua. There was little value in that proposal as the area suggested was too small and not very productive.
In their opinion DoC had not shifted its objective from the first proposal and Ngati Rehua were opposed to the recent approval given by the Conservation Minister, Chris Carter, to the establishment of the marine reserve.
The Minister of Fisheries had been asked to provide his concurrence to support the establishment of the reserve. Stan Crothers, MFish deputy CEO, had given an assurance at the Whakamaharatanga hui in July last year that MFish would meet with tangata whenua before the concurrence decision was made.
||Ngati Rehua had met with MFish around four weeks
prior to this hui. Stan attended that hui on the island with
three other Ministry colleagues. Scott Macindoe, Bill Cooke,
Bruce Galloway and Peter Blackwell were also at the hui, as
Ngati Rehua had planned to meet with their Auckland based people but that meeting had not occurred before this hui. They would welcome any advice on how they could stop the marine reserve process.
The imposition of a marine reserve would deny tangata whenua the opportunity to practice kaitiakitanga in their rohe, whether that was by way of a mataitai, taiapure or some other management measure deemed appropriate by Ngati Rehua. These rights stemmed from obligations of the Crown to tangata whenua through the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, Kaimoana fishing regulations and the Fisheries Act 1996.
Ngati Rehua has lodged a complaint with the Waitangi Tribunal. Their objective is to have the Tribunal review the Aotea marine reserve process. The marine reserve was a confiscation of some of the best fishing grounds by the Crown.
One part of the concurrence process was an adverse affect test. MFish needed evidence of “undue effect” on fishermen who use the area, commercially, customarily or recreationally. It was important tangata whenua gathered the data on customary fishing within the proposed area and supplied that to the Ministry.
The opportunity exists to initiate judicial review proceedings, but this would need to be done fairly quickly. It would have to occur before the Minister of Fisheries gives or declines his concurrence to the DoC process and agrees to the establishment of the marine reserve.
Of real benefit to Ngati Rehua would be the compilation of evidence to prove adverse effect, denial of kaitiakitanga, and confiscation of access to food and the sea. Take this information to other iwi and ask for a position statement in support of Ngati Rehua’s stance. This would undeniable evidence to give to both the Ministry of Fisheries and DoC.
The public are also more aware of the existence of other marine protection tools available aside from marine reserves. Kaitiakitanga offered an alternative approach, which many recreational fishing representatives are now promoting.
Ngati Rehua were encouraged to work with Ngati Wai on this issue and also determine whether the Aotea process was included in Ngati Wai’s recent judicial proceedings filed with the High Court.
They were also invited to participate in the Hokianga Accord and the next hui. It was expected the next hui would be in the Ngati Whatua area in July, dates to be confirmed. DoC and MFish will be invited to participate as well.
Bruce Galloway gave a summary of the continuing legal obligations of the Crown to tangata whenua and non-commercial fishing rights. These obligations were tied in with section 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, sections 33 and 36 of the Fisheries (Kaimoana Customary Fishing) Regulations 1998 and sections five and twelve of the Fisheries Act 1996. All of these relate back to kaitiakitanga (guardianship) obligations of tangata whenua.
All the obligations under the Fisheries Act 1996 have to be carried out in a way that is consistent with the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. This is a continuing obligation on the Crown. The key question is whether the Crown views the Kaimoana Regulations as a discharge of its obligations to tangata whenua. If so, then Bruce needs to go back and review the Treaty obligations to verify the Crown’s position.
The Kaimoana Regulations deal specifically with gazettal of rohe moana, kaitiaki, the issuing of customary permits, enabling kaitiaki to have “input and participation” into sustainability measures and reporting provisions.
More investigation is required into what the effect of this continuing obligation is for the Crown. And whether claims by Maori, in respect to non-commercial fishing, continue to give rise to Treaty obligations on the Crown.
The Kahawai Legal Challenge is seeking a clearer definition of what “non-commercial fishing interest” means in regards to section 21 of the Fisheries Act 1996. Many people had expressed their non-commercial interest as being more fish in the water to provide a reasonable chance of catching a reasonable daily bag of fish.
Public support for kaitiakitanga will only come through understanding what kaitiakitanga is, the background legal obligations and what the advantages are. It would be naïve to contemplate a public awareness campaign without a complete literature review of the Fisheries Act 1996, Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, Resource Management Act, Coastal Policy Statements (DoC) and Fisheries (Kaimoana Customary Fishing) Regulations 1998.
The New Zealand Big Game Fishing Council has discussed kaitiakitanga with its members for the past two years with a majority supporting the concept. Using the Guardians of the Sea banner kaitiakitanga would be easier to market to the general population.
The public was already being tuned into the Hokianga Accord and its objectives so kaitiakitanga would be another step in the direction of marine protection without the need for no-take forever marine reserves.
Marine reserves do not deliver kaitiakitanga as they displace effort into neighbouring rohe and deny tangata whenua the opportunity to exercise their kaitiakitanga obligations.
Jeff Romeril has written a number of articles about the Hokianga Accord and its objectives. The latest item is online at http://option4.co.nz/Fish_Forums/haaromeril206.htm.
The complete record of Hokianga Accord information was also online at http://option4.co.nz/Fish_Forums/hokianga.htm
Some discussion on the need for a set of principles followed this korero. An identifiable platform was helpful for people when considering whether they would give their support for any initiative. The option4 principles had stood the team in good stead for six years and a set of principles was worth considering for the Hokianga Accord and the kaitiakitanga project.
Inspiration was the key. The Hokianga Accord had the potential to offer the public a future by working with tangata whenua to achieve good outcomes for our marine environment and the aspirations of New Zealanders.
The concept of papakainga was discussed briefly. The short lineout understands papakainga provides the opportunity for a number of people to be appointed to fish for the whanau/community several times a week in a relatively unconstrained manner. More details are required on this concept as there are implications for non-commercial fishers and sustainability.
The Hokianga Accord short lineout committed to taking responsibility for investigating and reporting the papakainga concept and the Crown obligations, for the benefit of all non-commercial fishers.
Marine Protected Areas – Hokianga Accord View
All the marine protection tools and mechanisms are underpinned by kaitiakitanga in law. DoC has an obvious preference for marine reserves as the Marine Reserves Act 1971 gives them statutory powers for a particular area. Marine reserves would be the correct protection measure in some situations but in many instances customary tools would be more appropriate.
Tangata whenua had access to temporary closures, taiapure and mataitai provisions. Due in part to a lack of awareness of kaitiakitanga and the potential of customary tools to provide for the needs of the public, support or opposition seems to be the most common outcome of a marine reserve proposal.
The short lineout needs to develop a concise document and have that available to present to the next Accord hui. This document should explain the benefits of kaitiakitanga in a series of bullet points that could include the following:
- It inspires tangata whenua and the rest of New Zealand to work together positively.
- It addresses the real issue of the impact of people’s behaviour on the environment.
- Kaitiakitanga focuses on the social and cultural values of the people.
- Have “more fish in the water” as its headline.
- Kaitiakitanga would not create new grievances.
The document also needs to explain the benefits in a manner that answers the question, ‘what’s in it for me?’ so people support it.
This work needs to be done immediately as the standards associated with the Marine Protected Areas (MPA) strategy are one month overdue and could be released at any time. The Department of Conservation and Ministry of Fisheries are working on this project jointly. It is likely that mataitai will not qualify as meeting the standards of an MPA unless it has a large no-take component included in the area.
Many of the above points were covered in an article published in the April edition of the “Pothole,” a local publication distributed around the Mimiwhangata area. Bruce made this available to the hui and is worth reading. It is online at http://option4.co.nz/Marine_Protection/mimltonks406.htm
A joint iwi statement to the effect that until kaitiakitanga has been adequately resourced and reasonably explored there cannot be any more marine reserves accepted. This would represent a type of moratorium from Maori, to enable tangata whenua to exercise their kaitiakitanga obligations.
Jeff Romeril (team leader), Bruce Galloway, Robert Willoughby, Bill Wii, Matu Clendon and Judah Heihei would work on the draft document. Other people were welcome to participate.
Shared Fisheries Policy Project
The Ministry released a paper on the Shared Fisheries Policy project in December 2005. Mark Edwards presented the project to the recent Hokianga Accord hui. MFish has asked for feedback on the issue of allocation of resources in shared fisheries.
|MFish plan to release a public discussion document by the end of August, which will be followed by four months public consultation.
The Ministry has been asked where and when they planned to hold hui and public meetings to discuss the document. MFish had responded that they have no details yet of where and when the meetings and hui will occur. Reports from meetings already held with the Ministry to discuss the project are online at http://option4.co.nz/Fisheries_Mgmt/sharedfisheries.htm
It was important the Hokianga Accord formulate a position on the Shared Fisheries Policy project. A draft document in response to the Ministry’s initial proposal was underway now. This would be available soon for the short lineout to consider, as the position of the Hokianga Accord on the Shared Fisheries Policy project.
It is expected that much of the draft would be based on the proportional allocation document already submitted to MFish last year. This is online at http://option4.co.nz/Fisheries_Mgmt/proportions.htm
Realistically the Accord would need to see the public discussion document before having a fixed position. The August timing made it difficult to obtain full agreement from the next hui scheduled for July. More discussion was required before a position could be agreed.
Evidence of how much influence non-commercial fishers have had into the process to date will be in the contents of the public discussion document. If it is much the same as what Ministry had promoted in previous attempts then obviously the effort had been a waste of time. If the document includes concerns expressed at the various meetings held with the MFish team, then there is hope.
The hui did not have time to address the topic of public awareness, although everyone accepts this is an essential element of progressing the issues the Hokianga Accord are, and would be, pursuing. A co-ordinated effort entailing the pooling of resources is likely, as is the appointment of a public relations consultant.
To be addressed at the next hui:
- Public awareness
- Yield curve – fisheries management
- April Hui report
Another successful hui had been completed with everyone clear about their commitments to achieve the respective goals discussed over the two days. Results of their investigations would be supplied to the short lineout via email as soon as possible. A report of the hui would be produced and distributed as soon as practical. The next full Hokianga Accord hui was scheduled for July, with dates to be confirmed.
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