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.
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