| Report
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 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:
- What does section 12 mean?
- What section 12 requires the Minister to do?
- 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:
- Consult and engage with a wide group of interests; and
- 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?
Consultation
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)
TOP
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 .
TOP
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.
12.Consultation-
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:
- "To ensure the
capacity and capability is there for Maori to manage fisheries;
and
- 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)
TOP |
