Introduction

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”.

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.

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.

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.

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 .

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.

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.

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.