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Heidi Kai Guth
excerpted from: Heidi Kai Guth, Dividing the
Catch: Natural Resource Reparations to Indigenous Peoples--examining the
Maori Fisheries Settlement , 24 University of Hawaii Law Review 179-244,
184-215 (Winter, 2001)( 430 Footnotes Omitted)
The Polynesian demigod, Maui, fished Aotearoa from the sea, and he
and his waka (canoes) populated the new land with a progeny of fishers.
Traditionally, when Maori fishing nets became ragged, some Maori would
send an expert to the wild flax fields, where he would pluck two blades
of flax and look for ends that had already been nibbled by fish. When
the most tempting flax was found, the weaving was made tapu, which
forbade food, fire, and people not directly associated with the task
from being allowed near the net. Because many nets of Aotearoa's
indigenous, pre-Colonial Maori were more than 1,000 yards long, the
whole community would be somewhat involved, even if not allowed on the
site. And, in some traditions, when the net caught its first haul, the
"first" fish would be returned to the sea in thanks and in
hopes of that fish leading more to the net in the future. Of that catch,
only one fish per person who had helped in the net's creation would be
kept. Through this ceremony, New Zealand's Maori thanked both the fish
and everyone who had created the net and supported the community. Thus,
Maori always knew the importance of respecting the resource as well as
the people.
Maori today make up a steadily increasing minority of fifteen percent
of New Zealand's population of 3.8 million. New Zealand is small enough
that this indigenous group can be heard, and Maori are determined to be
heard. Their problems are common among indigenous peoples elsewhere, but
uncommon in that Maori are persistent and moderately successful in
trying to solve them. Most Maori progress flows from the original Treaty
of Waitangi, signed by Maori and the Crown on February 6, 1840.
Maori claims of violations of the Treaty of Waitangi are heard both
in federal courts and in the Waitangi Tribunal, created by the Treaty of
Waitangi Act of 1975. The Tribunal initially was charged with
investigating Maori claims against government actions since 1975. In
1985, the national government allowed the Waitangi Tribunal to hear
claims dating back to 1840. The Tribunal reports its findings of
prejudice against Maori and makes recommendations of compensation. It
has no enforcement capabilities, but by merely reporting its findings,
it often influences all three branches of New Zealand government.
The following sections describe and discuss fisheries claims arising
from the Treaty. The first difficulty in analyzing the Treaty is
determining the words' meanings and translations. The first section
explains that because of differing interpretations, many Maori believe
that the Treaty has never been honored by the Crown, and seek to remedy
the subsequent injustices. The second section describes the legal and
political history of fisheries issues that have led the way toward the
first Pan-Maori settlement. The final section in this Part is an
analysis of the Treaty of Waitangi (Fisheries Claims) Settlement Act
1992 and its impacts on Maori commercial and customary fishing.
A. Treaty Claims
The Tribunal agreed that Te Tiriti o Waitangi, the Maori name for the
Maori version of the Treaty, differs from the English version. The
English language treaty cedes sovereignty to Britain, allowing the
British the right of first refusal of lands that Maori wanted to sell.
It also guarantees full rights of ownership of all lands and fisheries
to the Maori, who became British subjects. The Maori version, however,
retained sovereignty for the Maori by using a different word for
sovereignty. The Maori version gave the Crown "kawanatanga,"
or the right to make laws, and used the phrase "rino tino
rangatiratanga," or the right to manage and control according to
one's cultural traditions, for themselves. Therefore, Article II of the
Maori version guaranteed sovereignty to the Maori signatories, not the
Crown.
The Waitangi Tribunal found that "rangatiratanga" means not
just the right to own a resource, but the right to manage it per tribal
customs. Iwi (tribes) have argued that point consistently. For example,
in a large tribal settlement case, plaintiffs told the Waitangi
Tribunal:
. . . '[R]angatiratanga' and 'mana' are inextricably related and . .
. rangatiratanga denotes the mana not only to possess what one owns but,
and we emphasise this, to manage and control it in accordance with the
preferences of the owner. We thought that the Maori text would have
conveyed to Maori people that, amongst other things, they were to be
protected not only in the possession of the [taonga] but in the mana to
control them in accordance with their own customs and having regard to
their own cultural preferences.
Indeed, resource values and management methods vary among different
iwi, hapu (sub-tribes), and whanau (extended families), depending upon
how they use the resource, and for what purpose they want to manage it.
In the Maori Tiriti, Maori were promised control over, inter alia,
their taonga, or treasures. Maori thought of their treasures as both
tangible and non-tangible. While taonga has been roughly equated to
"natural resources," that definition does not incorporate the
full meaning of the term, which includes economic, spiritual, and
cultural connections. In essence, according to the Crown's version of
the Treaty, Maori retained authority over their fisheries and other
natural resources through the Treaty, but had lost their sovereignty -
contradicting the Maori version and Maori definitions and
understandings.
Neither the New Zealand courts nor the Waitangi Tribunal have devised
a firm set of principles explaining the Treaty or its meaning, which
could then be systematically applied to every circumstance. The courts
have agreed that the spirit of the Treaty, not specific words in it,
should be applied to questions and claims. Such may be a tribute to an
attempt to understand Maori values. For example, rangatiratanga cannot
be understood without reference to individual Maori cultures. Only those
who hold mana whenua (customary rights and authority over land) or mana
moana (customary rights and authority over the sea) over an area or
resource can define and explain matters of rangatiratanga over those
resources.
Thus, only through consultation can tangata whenua (people of a given
place; host people or tribe) and a government agency find the true
Treaty guarantees for each resource or area. Both Maori and Pakeha
(Non-Maori, outsider, white colonialists) representatives have declared
this principle. For example, the Waitangi Tribunal, examining the
Muriwhenua iwis' claim to wrest back control over their fishery
resources, wrote, "it appears that the key to defining the
principles of the Treaty is to be found in the idea of a partnership
between Pakeha and Maori, and that cooperation is at the heart of the
agreed relationship of the two partners." And one Court of Appeals
judge said, "The way ahead calls for careful research, for rational
positive dialogue and, above all, for a generosity of spirit."
Many see the Treaty of Waitangi as the founding document for New
Zealand, and because the country does not have a constitution, that may
be true. The 1986 Constitution Act makes New Zealand official within its
own shorelines, but unlike an overriding constitutional document, the
same government branch that created this statute can easily alter it.
Also, of special concern to Maori, the 1986 Constitution Act has no
"constitutional enforcement mechanism requiring adherence to
treaties," so "there is no absolute guarantee that a treaty
will be honored in New Zealand." Increasingly, national statutes
contain references to the Treaty, and Acts require recognition of Treaty
principles, but that may not be enough.
B. Maori Fisheries Claims
Many Maoould argue that the Treaty has never truly been honored in
New Zealand. While Maori have taken to federal courts and the Waitangi
Tribunal such diverse treaty claims as radio airwaves, language, sewage,
and eels, most of these claims have been on a tribal basis. Fisheries
claims - inshore, offshore and freshwater - began with individual and
tribal concerns, and graduated to the first Pan-Maori settlement.
The vociferous contention can be traced to the 1960s, when government
subsidies and loans to the fisheries industry, and the removal of rigid
licensing restrictions caused a rapid expansion in the catching of fish.
Because the Maori economy was so depressed at the time, few Maori had
collateral for loans, and were further squeezed out of the industry. New
legislation in the early 1980s refused fishing licenses to those who did
not earn at least eighty percent of their income from fishing. This
eliminated many Maori who often used fishing to supplement their income
and their sustenance. Fishers still in the business, however, depleted
the inshore fishery with their subsidized equipment, aided by the
government's lax regulations.
To bring fishing to a sustainable level, the New Zealand legislature
enacted the Fisheries Amendment Act 1986 creating the Quota Management
System ("QMS") for commercial fishing in New Zealand's
exclusive economic zone ("EEZ"), the 200-mile ribbon of ocean
encircling the coastline of New Zealand. The Crown privatized the
nation's fisheries by creating this QMS, which allocates individual
fishing quotas out of a Total Allowable Catch ("TAC"). The
Ministry of Fisheries subtracted recreational fishing and Maori
customary, non-commercial fishing interests from the TAC to get the
Total Allowable Commercial Catch ("TACC") for one year for
each fish species in each of the seven (now ten) newly created
management areas of New Zealand's EEZ. Individual Transferable Quotas
("ITQs") were issued to qualifying fishers, and those quotas
could be sold or traded. Maori were not consulted in this fisheries
revolution. Yet, they saw a taonga being usurped by the national
government. Furthermore, Maori asserted that one of their treaty rights
was being quantified, labeled, divided, and parceled out to the highest
bidders, who, for the most part, were not Maori. As a result, they
sought remedies in court and made a first attempt at a fisheries
settlement.
1. Taking fisheries claims to the courts
Even before some Maori recognized the implications of the QMS for
their fishing rights, others had seen the erosion of those rights begin
and had started to fight back. The 1986 case of Te Weehi v. Regional
Fisheries Officer forced the New Zealand government to negotiate with
Maori over their fishing rights. A Maori fisher successfully used his
Treaty and aboriginal rights as a defense in a prosecution for taking
undersized paua, which is a type of abalone, Haliotis species. He
invoked the Fisheries Act 1983, section 88(2), which stated that no part
of the Act should be used to affect Maori fishing rights under the
Treaty of Waitangi. This decision alerted Maori that they had moral,
political, and legal fishing rights, which could be used in the opposing
party's court system. In fact, the author of the Te Weehi opinion
explicitly said that "[t]he customary right involved has not been
expressly extinguished by statute and I have not discovered or been
referred to any adverse legislation or procedure which plainly and
clearly extinguishes it."
A barrage of cases followed Te Weehi, but the most prominent of them
began in the Waitangi Tribunal. Matiu Rata, who is credited with
establishing the Waitangi Tribunal while serving as Minister of Maori
Affairs, became the principal claimant for a consortium of Northland iwi
named Muriwhenua. Muriwhenua live in the far north of New Zealand, which
neither has much arable land, nor much in the way of urban amenities
like electricity or phones. Most Muriwhenua lead a subsistence
lifestyle, with most of their protein coming from the sea. "A
fishing ground could be of much greater value and importance to their
existence than any equal portion of land." Muriwhenua brought the
first major fisheries claim to the Tribunal in 1986, and testimony was
being heard at the same time that the Crown was initiating the
implementation of QMS. Although the Tribunal kept the then-Ministry of
Agriculture and Fisheries abreast of the claim, the ministry passed the
Fisheries Amendment Act 1986 and began allocating quota. Muriwhenua
joined other iwi and brought its Waitangi Tribunal case before the High
Court, seeking to enjoin the ministry from allocating the quota.
Muriwhenua alleged that the QMS breached their rights because it created
a property right out of something that had been retained for Maori under
the Treaty of Waitangi.
Equally offensive to Maori, those property rights were sold to the
very people whom Maori claimed were responsible for overfishing the
resource because of the 1960s' subsidies - the Pakeha.
These are people [Muriwhenua] who have always lived one foot on land,
the other in the sea, but what is left to them of either is little
enough indeed. And they complain. They object to what they see as their
forced severance from the ocean life, the raiding of 'their' sea
resources and now, the final blow, the 'sale' of what they claim as
'their' fisheries.
The High Court, in 1987, granted an interim declaration against the
ministry allocating any more fishing quota. When the Tribunal issued its
final, 370-page report in 1988, it followed the court's lead and
chastised the Crown:
The current inconvenience [the 1987 injunction] arises not from the
Treaty's terms, but from the Crown's past failure to seek or provide for
a reasonable settlement. Instead, Maori fishing rights were simply
denied. The Crown cannot now profit from the inconvenience that arises
from its own wrong.
The Tribunal found that the QMS concept violated principles in both
versions of the Treaty. The Tribunal suggested, however, that because
conservation was the purported purpose of the management system, that
part of QMS did not violate the Treaty because conservation would be a
benefit to both parties. To remedy the wrongs to Muriwhenua, the
Tribunal suggested that the Crown must negotiate with the claimants to
find a settlement that protected both Maori customary and subsistence
fishing, and restored them to a competitive spot in the commercial
industry.
Although the Court of Appeal later found that the Waitangi Tribunal's
findings and recommendations were not binding on the Crown or the
courts, the Crown and Maori entered into settlement negotiations in 1987
based on the High Court's finding that the Tribunal's findings counted
as res judicata.
2. First settlement attempt
Part of the High Court's 1987 injunction against QMS included the
establishment of a joint working group of Crown and Maori, four members
from each side, to report by June 1988 on how to answer Maori treaty
fishing claims. A national hui (meeting) in Wellington mandated Maori
fisheries negotiators to secure a just and honorable settlement with the
Crown. The negotiators had been told by their kaumatua (elders) to
settle for fifty percent or more of the fisheries because although the
Treaty already guaranteed them 100 percent of the fisheries, in the
spirit of fairness, they were to share the resource. By June, an
agreement had not been reached, and the Tribunal's Muriwhenua Fishing
Report had been published, showing evidence of Maori customary
commercial fishing and of fishing "offshore," which means
fishing on New Zealand's continental shelf at depths of more than 200
meters.
Unable to reach the mandated fifty percent on the first attempt, the
subsequent 1989 Maori Fisheries Act provided an interim settlement by
creating the Maori Fisheries Commission ("MFC") to manage ten
percent of the TACC for all species in the QMS and monetary compensation
of NZ $10 million. The Act expected half of the transferred quota to be
available for lease by Maori fishers. The other half would go to
Aotearoa Fisheries, Ltd. for the transition period of four years.
Meanwhile, the injunctions remained in effect, as did section 88(2), as
invoked by Te Weehi. In 1990, the negotiators agreed to suspend pending
court proceedings about fisheries claims while the QMS injunction
continued, and agreed that negotiations toward a final settlement would
move forward in good faith.
C. Treaty of Waitangi (Fisheries Claims) Settlement Act, 1992
When Sealord Products, the largest New Zealand fishing company, went
on the market, the Crown and some Maori saw an opportunity. The Maori
Fisheries Commission would gain a half share of Sealord, which owned
twenty-seven percent of New Zealand's total quota, sharing ownership of
the company with Brierley Investments Limited. Added to the Commission's
ten percent from the earlier negotiations, Maori then would have
twenty-three percent of New Zealand's entire quota.
An August 27, 1992 Memorandum of Understanding between the Crown and
Crown- selected Maori fisheries negotiators outlined the government's
proposal for the fishery settlement and was discussed at several hui
around the country. Most of that memorandum was incorporated in the
final Deed of Settlement ("the Deed"), which was signed on
September 23, 1992, by six Maori negotiators, as well as Minister of
Justice Douglas Graham, Prime Minister James Bolger, and Minister of
Fisheries Douglas Kidd. According to the Deed, if at any time the rest
of Sealord was to be sold, Maori would have the right of first refusal
for the remaining shares. The Deed also provided for twenty percent of
any TAC quota added for new fish species to be immediately given to
Maori, and for Maori to be represented on all "Fishery Statutory
Bodies so as to reflect the special relationship between the Crown and
Maori."
On September 29, 1992, less than a week after the Deed was signed,
several Maori groups sued in Te Runanga o Wharekauri Rekohu Inc. v.
Attorney General for an injunction to prevent the settlement. After a
negative judgment on October 12, 1992, Maori appealed to the New Zealand
Court of Appeals, which heard their case from October 19 through 21,
1992. "The speed with which this highly complicated litigation has
been dealt with in both Courts probably needs no underlining. It
reflects the national importance of the case and the urgency of a
decision on the proposal embodied in the deed, the Sealord
proposal."
Besides the commercial aspects, the Deed also made references to
customary fishing rights. The court in Te Runanga noted that these
references were confusing: "[The Deed] has apparently conflicting
provisions about customary or traditional food gathering, some speaking
of regulations to recognise and provide for this, others seeming to say
that there will no longer be any legislative or regulatory
recognition." The court considers that these discrepancies may have
been because several people wrote the document, but it also suggests
that the Deed may have been purposefully obscure.
The appellants were concerned that the Deed provided an investment
interest but not a method of getting Maori back into fishing. Several
Maori objected to the fact that the Crown paid the Maori negotiators,
creating at least a perception of impropriety. They also did not think
that the negotiators were in a position to sign for all Maori,
particularly not something so major as to extinguish all further
commercial fishing rights and claims of Maori. The latter belief refers
to a section of the Deed of Settlement entitled "Permanent
Settlement of Commercial Fishing Rights and Interests."
The Deed also included a clause entitled the "Treaty of Waitangi
Settlement Fund," which was a direct copy of the same terms found
in the Memorandum of Understanding. In this clause, the Crown explained
that the settlement, worth approximately NZ$150 million, would be the
first payment from a settlement account that the Crown planned to
create. The account would thus limit the amount of all future
settlements, of any sort. Maori began to call this the "Fiscal
Envelope," and could not believe that their negotiators had signed
such an agreement, especially when it was later made clear that the
envelope only held NZ$1 billion.
On November 3, 1992, the Court of Appeals found the Sealord purchase
to be a requisite product of the Crown's fiduciary duty to Maori. The
court looked to its own precedent and to recent decisions in Canada and
Australia as representations of Commonwealth nations' case law stating
the fiduciary duty of a federal government to a nation's indigenous
peoples. The court explained that the Treaty of Waitangi created this
fiduciary duty and that New Zealand's case law in the area is "part
of widespread international recognition that the rights of indigenous
peoples are entitled to some effective protection and advancement."
Thus, the court found buying shares of Sealord for Maori interests was
consistent with the fiduciary duty, calling the opportunity "a tide
which had to be taken at a flood."
The court also looked to the principle of non-interference of the
courts in Parliamentary proceedings. The court found that the Deed did
not bind non-signatories, and that, even though the Deed used legal
terms, it really
is a compact of a political kind, its subject-matter so linked with
contemplated Parliamentary activity as to be inappropriate for
contractual rights. At best the provisions for payments might be
contractually enforceable, yet they are so associated with the rest of
the deed that even that is doubtful.
The court did not want to bind Parliament or the court's successors,
stating, "[a]ll that can be said now is that a responsible and
major step forward has been taken."
The next day, on November 4, 1992, the Waitangi Tribunal released its
report on the Deed of Settlement. Although criticizing the repeal of
statutory recognition of Maori fishing rights and the proposed
extinguishments of commercial fishing Treaty rights, the Tribunal found
that the Deed should proceed because the Maori negotiators had acted
reasonably. But, it should only proceed if the above critical elements
were removed.
Parliament passed the Treaty of Waitangi (Fisheries Claims)
Settlement Act ("Fisheries Settlement") in December 1992,
retaining the repeal of statutory recognition of Maori fishing rights,
but without the explicit extinguishment of Treaty rights. Even so, the
Act limits the Waitangi Tribunal's powers of inquiry into commercial
fisheries claims, and states that all current and future claims about
commercial fishing have thus been settled.
While the Deed did not bind all Maori, the Act did, according to
then- Minister of Fisheries Douglas Kidd.
We should confirm that the deed was not entered into by all Maori,
nor does it bind all Maori but this Bill will do that. It will do so
because the Crown in exercise of kawanatanga, or governance, and
fulfillment of its treaty obligations to all Maori, must in the end act
in the public interest as it sees that to be.
Maori and Brierley Investments bought Sealord in a joint venture on
January 6, 1993, and the Crown explained away the expense by saying that
this would allow New Zealand to get back into the fisheries market
because it would end the injunction against adding more species to the
QMS. At this point, the Crown created the Treaty of Waitangi Fisheries
Commission as the decision-making body to address the allocation of the
quota.
1. Treaty of Waitangi Fisheries Commission and commercial fishing
rights
The Fisheries Settlement Act replaced the MFC with the Treaty of
Waitangi Fisheries Commission, which Maori call Te Ohu Kai Moana ("TOKM").
The Crown charged the new commission with, inter alia, allocating the
quota and assets from the Deed of Settlement and the pre- settlement
assets transferred to Maori under the 1989 Maori Fisheries Act. The Act
required that an allocation proposal for the pre- settlement assets be
brought before the Crown within ninety days of the passing of the Act.
After the Act was passed, the newly formed TOKM tried to follow the
Maori tradition of open discussion to build consensus. It immediately
began holding meetings at each iwi's and hapu's marae (meeting houses)
across the country, taking oral and written testimony for many years
beyond its mandated ninety days. Under pressure from the Crown and
Maori, the TOKM has developed several allocation plans, all of which
have angered some group: inland and coastal iwi, populous and small iwi,
urban and rural Maori, and Pakeha.
After eleven years, the value of the quota has grown from
approximately NZ $200 million to NZ$800 million under management by the
TOKM, but Maori have seen little of that money or quota. The allocation
process for the pre-settlement has yet to be finalized and remains
contentious, with the quota from the Settlement Act being leased at a
discount to Maori until an allocation method is determined. Thus, for
eleven years, in different forms, the Commission has been managing quota
and assets for Maori, and debating how to get the benefit to the proper
beneficiaries.
The last allocation model, created after five years of negotiations,
would have divided the inshore fish stocks among coastal iwi, based on
the length of their coastlines. The deepwater stocks would be split
evenly between iwis' percentage of coastline and percentage of
population. Upon submission of the plan to iwi in 1998, Te Arawa (a
landlocked iwi on the North Island) sued, claiming that the allocation
favored coastal iwi, particularly powerful Ngai Tahu of the South
Island. The same plan established that Maori with no tribal ties,
including mainly urban Maori, would have a percentage of a NZ$10 million
development fund. Urban Maori also sued, arguing that the mandate of the
Fisheries Settlement Act to allocate assets to iwi included them, even
though they no longer identified with traditional iwi.
In a resulting case, Te Waka Hi Ika o Te Arawa v. Treaty of Waitangi
Fisheries Comm'n ("Te Waka"), the High Court investigated
whether "iwi" included only traditional tribes. The Urban
Maori Authorities ("UMAs") contended that Maori society had
changed dramatically since 1840 and that the traditional iwi system
could no longer properly distribute the settlement's benefits to all
those who deserved them. Even if urban Maori knew to which iwi they
belonged and they associated with that iwi, the iwi would find it
difficult to distribute the benefits to all its distant members. Also,
because the Treaty of Waitangi included all Maori, UMAs argued that
allocation to Maori should go to individual Maori, whether or not they
officially associated with a traditional Maori iwi.
The High Court held that a traditional iwi "includes all persons
who are entitled to be a member of it because of kin links and
genealogy." The links must be genealogical even if the people no
longer live in the same region, and the iwi must have been recognized as
legitimate by other iwi. Therefore, the court found that UMAs do not
constitute iwi, and that the only way their members could claim shares
of the settlement was through their specific, genealogical iwi. The
Court of Appeals in Wellington upheld the High Court's decision on
October 18, 1999. The UMAs vowed to appeal to the Privy Council in
London within a year.
In September 2000, however, the Crown appointed seven new TOKM
commissioners, keeping only four of the original eleven, to negotiate an
allocation system for both settlements, giving them two years to do so.
Two of the new appointees are major players among the UMAs: June
Jackson, chief executive of the Manukau Urban Maori Authority; and June
Mariu, chairwoman of the Waipareira Trust. Also, retired District Court
Judge Ken Mason has been well received because of his prowess in
conflict resolution. Removed from the Commission were several of the
original Settlement negotiators, including Sir Tipene O'Regan of Ngai
Tahu, who had been the only Commission chair and chair of Sealord. The
UMAs subsequently announced that they planned to withdraw their appeal
to the London Privy Council because the new commission members had
restored their confidence.
Meanwhile, the other half of Sealord went on the market, and, in
accordance with the Fisheries Settlement Act, the TOKM received the
first option. The Commission shared the NZ$208 million price tag with a
Japanese company, Nissui, purchasing it on December 4, 2000. Nissui now
holds fifty percent of the shares of Sealord with TOKM, but the
Commission owns all of Sealord's fishing quota, which is twenty-six
percent of New Zealand's total fishing quota. Added to the rest of the
Commission's quota, TOKM's total is now more than fifty percent of the
national total.
As the amount of assets accrued, UMAs found that they were not
appeased. They brought their case to the Privy Council in London, now
the highest court of appeal for New Zealand, in May 2001. The
PrivyCouncil dismissed the claim two months later, saying that courts
could not solve a political problem, and that perhaps the settlement
should be revised. New Zealand Parliament ministers have since demanded
that Parliament decide the dispute over the fisheries assets, while the
High Court has before it a claim that the TOKM was biased toward such
traditional iwi as Ngai Tahu. TOKM has responded to the discontent by
entering dispute resolution with three parties and preparing a proposal
to all Maori to combine the pre-settlement and post-settlement assets in
an allocation plan. A variety of options will be presented in hopes of
meeting Maori Affairs Minister Parekura Horomia's deadline of August
2002 for the allocation of the assets.
2. Customary rights
Although Maori remain divided about allocation of commercial fishing
assets and rights, they are unified in the need to ensure their
customary fisheries rights. During the fisheries settlement
negotiations, the Crown expected that any future Maori customary fishing
regulations would take into account the interests of Maori, the Crown,
and other users, both commercial and recreational. The Crown also
expected that the regulations would allow Maori to create their own
guardian system over certain areas that they would identify and manage,
authorizing Maori to fish for customary, non- commercial uses. Until
these regulations were finalized, the Settlement Act provided that the
existing tangihanga (funeral) and hui regulations of the Fisheries
(Amateur Fishing) Regulations be modified.
Non-commercial fishing issues could still give rise to Treaty of
Waitangi claims, and those rights would be officially recognized in the
form of national regulations. As the Deed of Settlement provided,
however, non-commercial fishing claims no longer have any legal effect
in civil or criminal proceedings. The Fisheries Settlement Act allowed
for the creation of customary fishing regulations, intimating that the
only way Maori could officially retain their customary fishing rights
was to make sure they included every possible element in what would
become Crown regulations. The Crown also stated in the Act that it only
had to "consult" with Maori in making these regulations. Thus,
by these terms, the Fisheries Settlement Act emasculated much of the
fisheries element of the Treaty of Waitangi.
Maori recognized the problem and forced the Crown to negotiate with
them about the regulations. From August 1993 to February 1994, TOKM
attended twenty- three regional hui to determine which of their
customary fishing rights iwi and hapu wanted to codify. Maori made clear
that the right to manage the resource and the right of access were
equally important. At the May 28, 1994 Hui-a-Iwi (meeting of iwi), Maori
agreed to a two-tier system for the Maori negotiators, whereby kaumatua
would mandate four Maori representatives to work with four Crown
representatives. The kaumatua were called Paepae/Taumata 1 (PP/TT 1),
and their representatives were called Paepae/Taumata 2 (PP/TT 2). The
PP/TT 2 could not make any changes to the draft regulations, which were
based on the Treaty of Waitangi and customary practice of resource
management, without conferring with PP/TT 1. On the other end of the
spectrum, the Crown sent only junior executives with no authority to
negotiate; thus, nothing useful was accomplished.
The PP/TT 1 draft regulations included methods for appointing
kaitiaki (resource managers, and spiritual assistants of the gods) for a
tribal rohe (region). These kaitiaki could authorize the taking of
seafood, create the bylaws for the rohe, and work with the Ministry of
Fisheries to maintain records and to prove sustainability of the
resource by whatever methods the local iwi or hapu traditionally
required. Iwi wanted all disputes and all powers of kaitiaki to remain
within the rohe. But the Ministry could not agree because the Crown did
not want to hand over that much authority.
In April 1998, six years after negotiations began, and after
representatives from both sides had left the process in frustration, the
South Island Customary Fishing Regulations went into effect. The
regulations for the North Island, which mirror the South Island's
regulations, became effective on February 1, 1999.
These regulations, however, have yet to be codified in the Fisheries
Act. Upon reading the newest version of the Act, the same wording
remains since the Fisheries Settlement Act. Instead, the regulations are
codified in Regulation 27 of the Fisheries (Amateur Fishing) Regulations
1986, which is called "Interim Rules for Customary Fishing
(Effective 10 February 1998)" (emphasis added). The bare-bones
rules of Regulation 27 provided the framework for both the North and
South Islands' regulations, which are virtually interchangeable. While
the customary regulations follow the structure of the Maori draft
proposal, all regulations and disputes must come before the Ministry, a
requirement that has not likely been approved by the PP/TT 1, per their
original requirements.
The regulations havealso met with contention from non-Maori
recreational fishers. These fishers submitted their concerns to the
Crown during testimony for the Fisheries Bill that led to the 1996
Fisheries Act. They never trusted Maori to let Pakeha on their rohe or
to manage the resources properly. Even now, when the regulations allow
Maori to grant permission to Pakeha to fish in their rohe, Pakeha
recreational fishers feel discriminated against by their government and
by Maori. Pakeha recreational fishers are calling for joint management
of all inshore fishery resources, both to heal a division between Maori
and Pakeha fishers and, they claim, to help protect the resource.
Currently, to protect both the resource and Maori custom, New Zealand
national law allows for two categories of Maori customary fishery
reserves: taiapure (local fisheries) and mataitai (traditionally
important fishing areas) reserves. Maori have established few taiapure
because of the lengthy procedure of creating the potentially large
littoral. The Fisheries Settlement Act 1992 provided for the simpler
formation of mataitai reserves, which are generally small and can be in
coastal and inland waters, yet only two are now in existence.
As can be seen by the above examination of the Fisheries Settlement,
as extensive and revolutionary as it may appear in the world of
indigenous peoples' negotiations, many problems and concerns remain for
both parties. Indeed, the Fisheries Settlement is more of a cautionary
tale for other indigenous peoples and their respective colonizing
governments. The next section examines methods for negotiating future
settlements, and assuring that recognition of the indigenous peoples'
culture and natural resource management authority is included in any
reparations and restitutions. |
