MFish MOU Feedback

Feedback on the draft Kaupapa Whakahaere

Ministry of Fisheries

8 November 2005

Hokianga Report

Appendix Five

Sonny Tau

Chair

Te Runanga A Iwi O Nga Puhi

PO Box 263

Kaikohe

Tena koe Sonny

Hokianga Accord: Kaupapa Whakahaere

Introduction

1. 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.
2. 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.
3. 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.
4. This note comments on the draft Kaupapa Whakahaere that is being developed by the working group for their engagement with the Ministry.

Background

5. 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:
   
   1. 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 processes;
   2. 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 approval;
   3. 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;
   4. 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.
      
6. The key components of the Government's CMRI Policy are attached as Appendix I.

Comments

7. 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 CMRI Framework.
8. 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.
9. 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 Policy.
10. 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:

1. Preamble;
2. Background;
3. Legal basis for the Accord – section 5 and sections 11 –14 obligations of the Fisheries Act and provisions of the TOWFC;
4. Membership of iwi/hapu including mandate/status of representatives attending the Accord;
5. 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.
6. List of non-commercial participants;
7. Process to include new members/ remove non-participants;
8. 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;
9. Objectives of the Accord;
10. Actions the Accord wishes to undertake to achieve those objectives.

11. 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.

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Clause 1 - Preamble

12. 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 document.

Clause 2 - Background

13. 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.
14. 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 this objective.

Clause 3 -   Objectives of the Hokianga Accord

15. 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.

Clause 4 – Ministers obligations

16. 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 legal requirements.
17. 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.

Clause 4 –Tikanga of the Hokianga Accord

18. 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.

Clause 5 – Make up of the Forum

19. 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.

Clause 6 – Principles of the Hokianga Accord

20. See comments on Clause 3.

Hokianga Accord work priorities

21. 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.
22. 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.
23. 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.

Stan Crothers

for Chief Executive

Ministry of Fisheries

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Appendix I

Ministry of Fisheries Feedback on the draft Kaupapa Whakahaere

Government Criteria to Guide the Development of Crown Maori Relationship Instruments

The CMRI policy framework should:

1. give assurance that government policy is being complied with;
2. provide an authoritative source of advice for officials;
3. manage the government's risks;
4. allow maximum flexibility and autonomy to the parties which enter into CMRI;
5. 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:

1. 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 and relationships;
   • 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.;

2. 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;
3. 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;

4. 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;
5. that agencies should ensure consistency among and within CMRI in respect of:
   1. compliance with policy and legislation
   2. acknowledgements of tangata whenua/mana whenua status
   3. recognition of rohe/areas of interest
   4. recognition of mandate
   5. fairness between parties in similar situations;

6. that undertakings in CMRI be given only by signatories with the authority to ensure that they are kept;
7. that agencies ensure that where a CMRI creates obligations for other agencies those agencies are joined in the CMRI;
8. 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:

1. The parties acknowledge the Treaty of Waitangi as New Zealand's founding document and the basis for relations between the Crown and Maori.
2. "To give effect to their obligations under the Treaty the parties will:
   • 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 party.
   • 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."

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