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OBLIGATIONS TO MAORI

 

Occasional Papers - Obligations to Maori

The Occasional Papers were presented to the meeting between the Minister of Fisheries, Ministry officials and recreational interests in December 2002. The papers were discussed with the Minister and later reviewed by option4, New Zealand Big Game Fishing Council (NZBGFC) and the New Zealand Recreational Fishing Council (NZRFC).

There are 4 parts to the Occasional Papers.
Links to others are provided below.

PART 1  Shared Resource: Allocation between stakeholders

PART 2  The legal nature of recreational fishing rights

PART 3  Obligations to Maori

PART 4  Maintaining the marine environment and recreational fishing rights

 

PART 3
Obligations to Maori


Introduction
52. The Crown has a number of obligations to Maori in respect of fisheries arising from the 1989 interim settlement of Maori fisheries claims, the Maori Fisheries Act 1989, the 1992 fisheries Deed of Settlement, and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 that followed. This paper provides an overview of those obligations.

53. The fisheries settlement impacts on recreational fishing activity to the extent that it redressed fisheries claims by ensuring Maori ongoing access to fisheries for both commercial and customary purposes – commercial through the provision of quota, and customary through the application of specific tools and regulations designed to recognise and provide for the use and management practices of Maori.


Historical Background

Customary fishing rights

54. As the indigenous people of New Zealand, Maori held customary fishing rights under British common law. These rights were guaranteed by the Treaty of Waitangi, signed between the British monarchy and Maori chiefs in 1840, which guaranteed Maori “the full, exclusive and undisturbed possession” of their fisheries. Customary fishing activity was exempted from the rules and regulations in a number of pieces of fisheries legislation made after the signing of the Treaty. The most recent example of this exemption was section 88(2) of the Fisheries Act 1983, which, before its repeal, that stated “Nothing in this Act shall affect a Maori fishing right”.

55. However, the exact nature of Maori customary fishing rights was never defined. As a result, Maori fishing rights were slowly eroded by successive governments and legislation. The statutory provisions protecting Maori customary fishing rights meant little without any associated definition of the nature of those rights, or ability to protect them from encroachment by the activities of others. Maori fishing rights came to be regarded as little more than a subsistence right to gather seafood for ceremonial occasions.

56. The task of defining the nature of Maori customary fishing rights fell to the Courts. In an important test case in 1986 Tom Te Weehi was found not guilty of taking undersized paua on the grounds that he was exercising a customary fishing right, and thereby exempted from the limits in the amateur fishing regulations by s 88(2) of the Fisheries Act 1983. He had fished in accordance with customary practices by obtaining permission from the kaitiaki, or guardian, of the tangata whenua from the area where the fishing occurred, and acted in accordance with the instructions of the kaitiaki.

57. The concept of tangata whenua, or “people of the land”, is crucial to the definition of Maori customary fishing rights. Tangata whenua are the iwi (tribe) or hapu (sub-tribe) that hold customary authority over a particular area. Rather than being general Maori rights, customary rights belong to tangata whenua and can only be exercised within their area. Most importantly, customary fishing rights pertained not only to the use of fisheries, but also to the management of the resource. While fishing practices differed between the different tribes, customary fisheries had always been actively managed by individuals known as kaitiaki, or guardians. Traditionally, fishing outside of the rules set by the kaitiaki could make the fisher subject to severe penalties.

58. The nature and extent of customary fishing rights was further elucidated by the Waitangi Tribunal as a result of extensive research into two tribal claims to fisheries . Maori customary fishing rights were found to have both a commercial and a non-commercial component, based on evidence that Maori were trading seafood widely prior to the signing of the Treaty of Waitangi. The fisheries they exploited were extensive, and the methods they had used to catch fish were highly advanced compared to those of their European counterparts. The Tribunal also ascribed a developmental component to the customary right, giving Maori a right to a share of the deep-sea fisheries off the coast of New Zealand, even if they were not being fished at the time the Treaty was signed .

The Fisheries Settlement
59. In 1986 the Ministry of Fisheries was moving to implement the Quota Management System, based on the use of Individual Transferable Quota (ITQ), for the management of New Zealand’s commercial fisheries. In 1987, following an application from several Maori leaders, the High Court made orders preventing the Crown from proceeding to implement the QMS until litigation could be heard which would decide the question of whether Maori fishing rights were properly recognised and provided for in the allocation of commercial fishing quota. The 1987 orders led the Government into negotiations with Maori as an alternative to litigation over the issue.

60. An interim settlement of Maori fisheries claims was negotiated in 1989 with a full and final settlement signed and legislated for in 1992. The principal effect of the settlement on the customary fishing rights of Maori was to affect a split between the commercial and non-commercial components of those rights. This distinction was made necessary by the need to accommodate the settlement within the broader fisheries management framework, which was by then based on the use of ITQ for commercial fisheries, while non-commercial fishing continued to be managed by regulation.

61. The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 constituted a final settlement of Maori claims in respect of commercial fishing. The Settlement Act also changed the status of Maori non-commercial fishing rights so that they no longer have legal effect except to the extent that they are provided for in regulations made under what is now s 186 of the Fisheries Act 1996. However, Maori customary non-commercial fishing rights continue to give rise to Treaty obligations on the Crown.

62. The obligations arising from the fisheries settlement can be split into three broad categories – commercial obligations, non-commercial obligations, and relationship obligations. Each category is addressed in turn.

Commercial obligations
63. The fisheries settlement addressed claims in respect of Article 2 of the Treaty that guaranteed Maori undisturbed possession of their fisheries resources. The commercial rights of Maori were recognised through the provision of commercial assets comprising quota, shares and cash.

64. An interim settlement negotiated and legislated for in the Maori Fisheries Act 1989, provided for 10 percent of all existing commercial fishing quota, or its cash equivalent, to be transferred to Maori. The Maori Fisheries Commission was established to manage that quota and to get Maori into the business and activity of fishing. The interim settlement allowed the quota management system to continue while a full and final settlement was negotiated.

65. Central to the full and final settlement in 1992 was the Crown’s provision to Maori of $150 million to purchase a half-share of Sealord Products Ltd. Sealords was the largest commercial fishing company in New Zealand at the time, owning over 20 percent of all commercial fish quota. The Settlement also resulted in the establishment of the Treaty of Waitangi Fisheries Commission, previously the Maori Fisheries Commission, to manage the commercial settlement assets on behalf of Maori.

66. The main on-going obligation on the Crown resulting from the commercial component of the fisheries settlement is the requirement to allocate 20 percent of quota for fish species to Maori via the Fisheries Commission, on their introduction to the QMS. At the time of the settlement in 1992 there was an expectation by both the Crown and Maori that commercial species still outside of the QMS would be brought under quota in the near future.

67. Since 1992 only 15 new species have been introduced to the QMS. During this time, species outside of the QMS have continued to be exploited by permit holders, although a moratorium on the issuing of new permits has helped reduce the expansion of effort in most fisheries. The Ministry of Fisheries has recently announced an objective of bringing up to fifty further species into the quota management system over the next four years – amounting to a substantial realisation of the Crown’s settlement obligations.

68. The use of ITQ to settle Maori commercial fisheries claims places an additional onus on the Crown to maintain the integrity of the overall fisheries management framework – a framework based on transferable property rights that provide access in perpetuity to sustainably managed fishstocks. Crown actions [such as reallocating fishstocks between commercial and recreational fishers] that may diminish the worth of the fisheries redress accorded to Maori, directly or indirectly, need to be considered in full light of their potential implications for the longevity of the settlement and the need to avoid creating a new Treaty grievance.

Non-commercial obligations
69. In acknowledgement of the management role of tangata whenua over their local fisheries, the Maori Fisheries Act 1989 contained provisions for the establishment of taiapure-local fisheries areas. Taiapure-local fisheries areas can be established over areas of special significance to tangata whenua. A management committee is appointed on the basis of nominations from the local Maori community. Taiapure management committees may recommend the making of general fisheries regulations to the Minister of Fisheries for the management of fish within the taiapure area, including regulations relating to commercial, recreational or customary fishing.

70. The 1992 fisheries settlement went further in defining the nature and extent of customary non-commercial fishing rights. The provisions of the Deed of Settlement relating to non-commercial fishing rights were critical to the achievement of a settlement, with many Maori feeling that protection of their right to manage and take fisheries resources for traditional purposes was more important that any commercial settlement based on ITQ.

71. Section 10 of the Settlement Act 1992 addresses the effect of the settlement on Maori non-commercial fishing rights. The status of those rights changes so that they no longer have legal effect except to the extent that they are provided for in regulations made in accordance with s10(c) of the Settlement Act 1992. However, Maori customary non-commercial fishing rights continue to give rise to Treaty obligations on the Crown. Section 10(b) of the Settlement Act 1992 places an ongoing obligation on the Minister to consult with tangata whenua about, and develop policies to help recognise the use and management practices of Maori in the exercise of customary non-commercial fishing rights.

72. Section 186A of the Fisheries Act 1996 is an example of a legislative tool that has arisen out of the Crown’s obligations under s 10(b) of the Settlement Act 1992. Section 186A provides for the closure of an area to fishing, or restriction of the use of a particular fishing method, for up to two years, in order to provide for the use and management practices of tangata whenua in the exercise of their customary non-commercial fishing rights. Temporary closures and method restrictions are designed to help manage the impact of commercial and recreational fishing on important customary fisheries, and provide an interim management measure while a mataitai reserve or taiapure is being established.

Customary Fishing Regulations
73. Section 10(c) of the Settlement Act 1992 provides for the making of regulations to recognise and provide for customary food gathering by Maori and the special relationship between tangata whenua and those places of customary food gathering importance, to the extent that such food gathering is neither commercial in any way nor for pecuniary gain or trade. The regulations provide a legislative framework for ensuring that customary fishing takes place under the management of kaitiaki who have been properly appointed by, and are accountable to, the tangata whenua.

74. The regulations also provide for the establishment of mataitai reserves over traditional fishing grounds. Commercial fishing is generally prohibited within mataitai reserves and all non-commercial fishing is managed by the kaitiaki through the making of bylaws that must apply equally to all individuals. In contrast to the broader role of recommending general fishing regulations contained in the taiapure provisions, the mataitai reserve provisions provide for hands-on management of customary non-commercial fishing by kaitiaki. The largely effects-based criteria for the establishment of mataitai reserves mean that mataitai reserves are generally smaller and more focused than taiapure.

75. The Fisheries (South Island Customary Fishing) Regulations 1998 were made on April 20 1998 after Ngai Tahu and Te Tau Ihu iwi agreed to use the Ngai Tahu Treaty Settlement to progress the finalisation of the regulations. The Fisheries (Kaimoana Customary Fishing) Regulations 1998, covering the remainder of New Zealand, came into effect on 1 February 1999.

76. The obligations in respect of customary non-commercial customary fishing rights, contained in s 10 of the Settlement Act 1992, are linked into allocation decisions made under the Fisheries Act 1996. When setting Total Allowable Commercial Catches (TACC) under s 21 of the Fisheries Act 1996 the Minister must make allowances for customary and recreational fishing. Allowances for customary harvest must take into account the level of removals from a particular fishery as authorised by kaitiaki appointed under the customary fishing regulations.

77. Section 10(c) of the Settlement Act provides for the making of regulations to recognise and provide for customary food gathering by Maori and the special relationship between tangata whenua and those places of customary food gathering importance, to the extent that such food gathering is neither commercial in any way nor for pecuniary gain or trade. The regulations provide a legislative framework for ensuring that customary fishing takes place under the management of kaitiaki who have been properly appointed by, and are accountable to, tangata whenua. However, the management of customary fishing under the regulations must be consistent with the sustainability of fisheries.

78. All the customary fisheries management tools arising from the 1992 fisheries settlement (customary fishing regulations, mataitai, s186A closures and method restrictions) are contained in Part IX of the Fisheries Act 1996, along with the taiapure provisions that formed part of the 1989 interim settlement. It is important to remember that all of these provisions have arisen in the context of Treaty settlement negotiations. The fisheries Treaty settlement in 1992 was a necessary precursor for establishing the legitimacy of the QMS. Obligations attached to the fisheries settlement provisions should be approached in this regard. Similarly, the QMS and the ITQ rights are now fundamental to the integrity of the settlement.

Relationship obligations
79. Taken together the Settlement Act 1992 and the Fisheries Act 1996 encapsulate the Treaty relationship between Maori and the Crown in respect of fisheries management. The Settlement Act not only placed a number of specific ongoing obligations on the Crown, it also prescribed a wider purpose of making better provision for Maori participation in the management and conservation of New Zealand’s fisheries.

80. As mentioned above, the Fisheries Act 1996 includes specific provisions designed to meet this obligation. In particular, s 12(1)(b) of the Act requires the Minister of Fisheries to provide for the input and participation of tangata whenua with a customary non-commercial interest in the stock concerned, prior to making sustainability decisions under Part III of the Act. The Minister must also have particular regard to kaitiakitanga. Tangata whenua is defined, in respect of a particular area, as the hapu or iwi holding manawhenua (customary authority) over that area.

81. The relationship obligations on the Ministry of Fisheries, derive from it being an instrument of the Crown. While fisheries legislation puts a legal duty on the Ministry of Fisheries when carrying out particular tasks, the obligation to uphold the principles of the Treaty extends to all aspects of the Ministry’s operations.

82. There are three basic requirements:
• That the Crown acts reasonably and in good faith in its dealings with Maori;
• That the Crown makes informed decisions; and
• That the Crown avoids impediments to providing redress, and avoids creating new grievances.

83. The principles that the Crown acts in good faith and makes informed decisions, amount to a requirement to consult with Maori before making decisions that may affect their interests. As outlined above, s12(1)(b) of the Fisheries Act 1996 requires provision for the input and participation of tangata whenua in the making of fisheries management decisions. This reflects the increased obligations on the Crown to involve the Treaty partner in the management of fisheries, as envisioned in the preamble of the Settlement Act 1992.

84. The principle of avoiding the creation of new grievances is of particular relevance in the fisheries environment now that a full and final settlement has been achieved. Fisheries management decisions seldom impact on one sector group alone, and the risk of such decisions adversely impacting on the newly secured rights and interests of Maori is a very real one. For example, the management of species prior to their coming under quota has the potential to influence the size and/or nature of the redress to Maori on their introduction to the QMS.

Next: Maintaining the marine environment and recreational fishing rights »»
  The legal nature of recreational fishing rights »»
  Shared Resource: Allocation between stakeholders »»
 

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