Wickliffe, Catherine --- "The Sealord's Deal: Te Runanga o Muriwhenua & Ors v Te Runanga o Te Upoko o Te Ika Inc" [1996] AboriginalLawB 46; (1996) 3(82) Aboriginal Law Bulletin 11

• The Sealord’s Deal: Te Runanga O Muriwhenua &Amp; Ors V Te Runanga O Te Upoko O Te Ika Inc
• Findings Of The Court Of Appeal

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The Sealord’s Deal: Te Runanga o Muriwhenua & Ors v Te Runanga o Te Upoko o Te Ika Inc

Te Runanga o Muriwhenua & Ors v Te Runanga o Te Upoko o Te Ika Inc

New Zealand Court of Appeal

Unreported

30 April 1996

CA 1555/95

Casenote by Catherine Wickliffe

In September 1992 the New Zealand Government entered into a 'full and final' settlement ('the Sealord's Deal') of Maori fishing claims with various groups of Maori. This was achieved by way of a Deed of Settlement and enacting the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (NZ). Assets previously held by the Maori Fisheries Commission ('the pre-settlement assets') were transferred to the new Treaty of Waitangi Fisheries Commission. These pre-settlement assets included 10% of all New Zealand fishing quota allocated to Maori as an interim settlement under the Maori Fisheries Act 1989 (NZ), and the cash assets held by the former Maori Fisheries Commission.

Under s6 of the Maori Fisheries Act 1989 (as inserted by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (NZ)) the new Treaty of Waitangi Fisheries Commission has been charged with the responsibility for 'developing a procedure for identifying the beneficiaries and their interests under the Deed of Settlement in accordance with the Treaty Of Waitangi, and a procedure for allocating to them, in accordance with the principles of the Treaty, the benefits from the Deed of Settlement'.

Following consideration of these matters the Treaty of Waitangi Fisheries Commission must report the scheme providing for the distribution of assets to the Minister of Fisheries. The Minister retains a discretion to request that the Treaty of Waitangi Fisheries Commission reconsider the scheme.

The issues giving rise to this litigation relate to concerns that certain tribes or Maori groups had regarding what they perceived or suspected to be the Treaty of Waitangi Fisheries Commission's intention to include, in its report to the Minister of Fisheries, a scheme providing for the distribution of the pre-settlement assets based on or influenced by the principle of mana whenua mana moan-authority over land gives authority over the sea. It was argued that such a model would unfairly advantage coastal tribes.

The tribes (known as Consortium One) and certain urban Maori groups concerned about this possibility filed claims before the Waitangi Tribunal seeking an inquiry into the Commission's intentions. Tribes (known as the Treaty Tribes) supporting the man whenua man moana model objected before the Waitangi Tribunal, arguing that the Tribunal had no jurisdiction to proceed with such an inquiry. The Waitangi Tribunal found that it did have jurisdiction, but before the inquiry could proceed the Treaty Tribes and the Treaty of Waitangi Fisheries Commission challenged that decision by way of judicial review before High Court.

Ellis J in the High Court held that proceedings before the Waitangi Tribunal at this stage were premature. He found that when the Treaty of Waitangi Fisheries Commission had made its decision on policy and reported to the Crown, then the Tribunal could consider the issues.

Findings of the Court of Appeal

Although the main issue before the Court of Appeal was the very narrow point of whether the Waitangi Tribunal had a jurisdiction to inquire into the Treaty of Waitangi Fisheries Commission's scheme for distribution, significant statements relating to the substance of the case, that is how allocations should be determined, were also made. Lord Cooke of Thordon in delivering his judgment on behalf of the unanimous Court of Appeal found:

• The Deed of Settlement was conceived as a pan-Maori settlement of all fisheries claims (pages 15,27);
• Moriori of the Chatham Islands, who claim to be a distinct group to Maori, have strong grounds to be treated as a special case when determining the policy for allocation;
• When proposing a policy to the Minister for asset distribution, the Treaty of Waitangi Fisheries Commission will be partly acting on behalf of the Crown (page 22);
• The Waitangi Tribunal does not have jurisdiction to inquire into this policy because of the Treaty of Waitangi (Fisheries Claims) Settlement Act, which amended the Treaty of Waitangi Act 1975 (NZ), effectively preventing the Tribunal considering matters relating to commercial fishing rights (pages 22-25);
• It appears that the main Maori group in the context of the ownership of fisheries is the hapu (page 26);
• Iwi refers to the people of the tribes and all those entitied to be members, even where their tribal affiliation is not known or cannot be established. This latter group are among those entitled to benefit from the pan-Maori Settlement (page 29);
• Natural justice requires that this latter group be consulted by the Commission. The most practicable mode of consultation with them is thorough Urban Maori Authorities. This is their statutory duty. This duty extends to ensuring that any scheme or legislation proposed by the Commission includes equitable and separately administered provision for urban Maori. This is required by the Treaty of Waitangi and its principles, applied as a living instrument in the light of the developing national circumstances (page 29).

The last few findings of the Court of Appeal have created much controversy in New Zealand, with tribes and subtribes upset that their property rights may be allocated to Urban Maori Authorities representing people who do not know their tribal affiliation, and who can feel no responsibility to the resource. In addition, the logistical difficulty of finding a formula for allocation without knowing whether an individual is from a inland tribe or coastal tribe presents a significant new challenge to the Treaty of Waitangi Fisheries Commission.

Leave to appeal to the Privy Council was granted by Richardson P, Gault and Henry JJ of the Court of Appeal on 26 June 1996.