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Heremaia, Shane --- "Native Title to Commercial Fisheries in Aotearoa/New Zealand" [2000] IndigLawB 31; (2000) 4(29) Indigenous Law Bulletin 15


Native Title to Commercial Fisheries in Aotearoa/New Zealand

By Shane Heremaia.

Maui’s[1] discovery of Te Ika a Maui[2] from the ocean depths[3] and the wealth of other references to fish in the stories, histories, geographies and economies of Maori peoples indicate the importance of fish to Maori. It is not surprising, then, that the extinguishment of Maori rights to commercial fisheries by the enactment of the Treaty of Waitangi (Fisheries Claims Act) Settlement Act (1992) has invited fierce debate.[4] While some see the fisheries ‘settlement’ in a positive light, to others it is a betrayal of customary laws.

History

Ownership of fisheries in pre-contact Aotearoa was held by Maori and regulated exclusively according to tribal law for over one thousand years.[5] The Maori text[6] of the 1840 Treaty of Waitangi did no more for Maori than reaffirm that authority.[7] For Pakeha,[8] the Treaty did create new rights. In it, Maori recognised the Crown’s right to regulate the conduct of non-Maori settlers in Aotearoa.[9]

Since the commencement of British colonial rule,[10] the English language version of the treaty and the interpretations of the English and New Zealand courts has been preferred in Pakeha law to the Maori text and Maori interpretations of it. The English text’s eurocentric assumption of sovereignty[11] and interpretation of Maori authority as a mere right to ‘undisturbed possession’[12] have formed the basis of the Crown’s understanding of its constitutional relationship with Maori.

Native Title to Fisheries in the New Zealand Courts

Native title to the continued use and occupation of traditional property was first recognised and confirmed by Justice Chapman in the New Zealand Supreme Court in 1847 in the case of Symonds.[13] In that decision, His Honour stated that:

... it cannot be too solemnly asserted that [native title] is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupiers. [14]

However solemnly stated, underlying the use of native title as a mechanism for the recognition of Maori customary law by non-Maori law is the dual assumption that (a) non-Maori law is capable of so recognising Maori law and (b) that Maori law is incapable of similarly recognising non-Maori law. As a result of this assumption, as Moana Jackson observes,

[c]olonisation demanded and still requires, that Maori no longer source their right to do anything in the rules of their own law. Rather they have to have their rights defined by Pakeha; they have to seek permission from an alien word to do those things which their philosophy had permitted for centuries. [15]

Indeed, today, the Crown may reject any claims to Maori title unless that title has been previously recognised in Pakeha law.

Symonds was overturned 30 years after it was decided by the judgment of Chief Justice Prendergast in Wi Parata.[16] In that case, His Honour found that legal claims having their basis in native title rights could not be upheld or even considered by the courts. He reasoned that Maori customary law was merely the habit of an uncivilised people and did not constitute law as understood by the English legal system. Title to rights under Maori customary law was therefore unrecognisable in either common or statutory law.[17] As a result of Prendergast’s ethnocentric definition of ‘law’, subsequent legislation, such as the Native Land Act 1909 (NZ) made only vague references to customary fishing rights. The development of the common law of native title was limited to cases interpreting this legislation.[18]

In spite of its drawbacks, Maori have sought to assert and protect our fishing rights using the doctrine of native title. Native title ownership of lake,[19] river[20] and foreshore[21] areas was claimed in a series of long court cases. In defence of alleged breaches of fishing regulations, Maori have claimed that their customary fishing rights exempted them from the application of those regulations,[22] drawing on the doctrine of native title, the Treaty[23] and statutory reference to Maori rights.[24] These cases met with little success because of the effect of Wi Parata, which dictated that such rights could not be recognised unless specifically incorporated into legislation.

Finally, in 1986, our rights to subsistence fisheries were recognised in the Te Weehi[25] case. The decision of the Supreme Court in that case provided that where there was evidence of traditional usage of fish resources, the rights arising on that tradition were protected by the doctrine of native title until expressly extinguished by statute.[26] The Te Weehi decision was perceived to create uncertainty for the commercial fishing industry because it was not clear if native title was based on Maori customary law included commercial or trading rights. Six years later, native title to commercial fisheries was in fact wholly extinguished by the Treaty of Waitangi (Fisheries Claims) Act 1992 (NZ).

Legislative Extinguishment

The same year that Te Weehi was decided, the New Zealand Parliament introduced a quota management system (‘QMS’), imposing environmental controls on the commercial fishing industry. The QMS proposed to limit the commercial fishing of certain species by issuing individual commercial fishers with exclusive permits to take a proportion of that quota.[27] The Crown initially allocated quotas to those who could demonstrate a previous catch of industrial quantity. Many of the smaller Maori fishing enterprises, whose catch share fell bellow the minimum level required to receive a quota, were excluded from the allocation. The big fishers, who controlled over 70 percent of the industry, benefited handsomely as a result.[28]

The Muriwhenua tribes challenged the Crown’s assumption that it owned the commercial fisheries subject to the QMS before the Waitangi Tribunal (‘the Tribunal’).[29] The Tribunal’s warning to the Crown that its unilateral distribution of the quotas constituted a breach of the Treaty of Waitangi (‘the Treaty’) went unheeded.[30]

Muriwhenua, and others, took the matter to the High Court, which granted an interim injunction [31] preventing the implementation of the QMS because, as the Tribunal informed the Crown for a second time,[32] it breached Maori fishing rights under the Treaty. The Court’s decision pressured the Government into negotiating a settlement with Maori of their fishing claims. [33]

The Maori negotiating team,[34] while maintaining that Maori owned 100 percent of the fisheries, were prepared to concede 50 percent to the Crown. The Crown’s proposal envisaged, through a complex rearrangement of the fisheries regime,[35] a 25 percent Maori share. The parties could not reach agreement by the set reporting date of 30 June 1988. On 22 September 1988, the government introduced the Maori Fisheries Bill into Parliament with the stated intention of extinguishing Maori rights to fisheries altogether. With the threat of loss of their fisheries looming, Maori again resorted to the courts, the only institution that seemed to provide any fetter on the Government’s actions.

Almost all fishing tribes brought actions alleging trespass, breach of fiduciary duty and negligence.[36] This time it was political considerations that forced the Crown back in to negotiations. The Crown could have continued with the legislation and ousted the court’s jurisdiction. However, this option was seen as unconstitutional.[37]

The select committee considering the original Maori Fisheries Bill incorporated some changes,[38] which met with the approval of the negotiating parties and resulted in the passage of the Maori Fisheries Act 1989 (‘the Act’). The settlement under the Act consisted of $10m cash and 10% of the commercial fishing quota to be managed by a Maori Fisheries Commission, now the Treaty of Waitangi Fisheries Commission (‘the Commission’), on behalf of Maori. The final ’settlement’ of Maori claims to commercial fisheries would later be provided by the passage of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (‘the Settlement Act’).

Prior to the negotiation of the Settlement Act, an opportunity had arisen for Maori to purchase shares in a substantial New Zealand fishing company named Sealord Products Ltd, which held 26 percent of the total fishing quota. At about the same time, the Waitangi Tribunal issued the Ngai Tahu Sea Fisheries Report,[39] which recommended settlement of Maori claims to fisheries.

The adoption of the Tribunal’s recommendations, combined with the Sealords purchase, would provide Maori with a total share of 23 percent of the fisheries, consisting of 10 percent from the interim settlement and 13 percent through the acquisition of a half interest in Sealord Ltd. This was a far cry from the total authority previously exercised over our fisheries and proposed by Maori in the interim settlement negotiations but there was immense pressure on Maori from both the Crown and the Maori negotiators to take what was promoted as perhaps the last opportunity to settle.[40]

The parties entered into a Memorandum of Understanding on 27 August 1992. It provided for an agreement in principle, subject to ratification by 24 September 1992. The Deed of Settlement followed less than one month later, entered into by the Crown and representatives of Maori tribal groups. Opposition to the non-representative nature of the settlement was pacified to some extent by the Waitangi Tribunal[41] and New Zealand Court of Appeal[42] findings that the Deed of Settlement, as a contract, could not bind non-parties to it. However, it was made clear that the legislation would bind all Maori, whether we agreed or not.[43]

The Settlement Act was passed under urgency on 10 December 1992 amidst total opposition from the Maori members of Parliament and the Labour opposition but with the support of the National Party Government and Alliance members of Parliament. Under the Settlement Act, the Crown paid the Commission $150 million to enable it to buy a 50 percent share in Sealord Ltd. In return, Maori were required to discontinue certain civil proceedings in relation to fisheries and bring no others, endorse the QMS and give up all claims to commercial fishing rights.

The complex interaction of legislation affecting customary fisheries has produced some uncertainty.[44] The Settlement Act made provision for the regulation[45] of customary fisheries under a quite different legal regime[46] from that utilised for commercial fisheries through the protection of customary food gathering[47] and fish taking for marae consumption,[48] the declaration of local fisheries reserves[49] and the conferral of a degree of local self-management.[50] The Settlement Act completely removed the option of asserting customary fishing rights as a defence in criminal or as an action in civil proceedings.[51]

The 50 percent interest in Sealord Ltd is yet to be allocated to Maori by the Commission due to the failure of affected Maori to agree on an appropriate formula for distribution. For example, there has been much debate about the position of urban Maori in the allocation process – particularly in relation to the Commission’s attempts to distribute the assets and proceeds of the interim settlement to only tribal groups. The matter has been to the Privy Council, referred back to the New Zealand courts, and again reached the Court of Appeal.[52] The delay in allocation has highlighted the divisions between urban and tribal factions. Meanwhile, Maori are desperately waiting to realise the economic and social benefits of the Crown’s settlement.

The effect of the Fisheries Settlement has not been confined to fisheries. It has become the template for the management of resources by creating property rights in them that are not based in Maori law. As a result, the question of who originally held the property rights to those resources has not been properly determined.

Shane Heremaia is a lecturer in the School of Law at the University of Auckland, New Zealand. His tribal affiliations are Ngati Tuwharetoa and Te Arawa.


[1] Maui was a trickster hero in Maori legend who was responsible for miraculous feats such as procuring fire, snaring the sun and fishing Aotearoa/New Zealand out of the sea.

[2] The Fish of Maui, the Maori name for the northern island of Aotearoa/New Zealand.

[3] See Te Rangi Hiroa, The Coming of the Maori (1987) 5-6; M Orbell, Maori Myth and Legend (1995) 115-117.

[4] See S Heremaia & A Tunks, ‘The “Iwi Status” Decision: Clash of Ethics in the Allocation of the Maori Fisheries Resource ‘ (1986) 1 NZELR 168; cf W Dewes, ‘Fisheries – A Case Study of an Outcome (1995) 25 VUWLR 219.

[5] M Jackson, ‘The Treaty and the Word: The Colonization of Maori Philosophy’ in G Oddie & RW Perrett (eds), Justice, Ethics, and New Zealand Society (1992) 6.

[6] There are several texts of the Treaty of Waitangi, one in English and one in Maori are Scheduled to the Treaty of Waitangi Act 1975 (NZ).

[7] Ibid, Te Wahanga Tuarua (the second part) of the Maori text of the Treaty of Waitangi 1840.

[8] Pakeha is Maori for ‘white person’.

[9] Above n 6, Te Wahanga Tuatahi (the first part) of the Maori text of the Treaty of Waitangi 1840. See A Mikaere, ‘Challenging the Mission of Colonization: A Maori view of the Treaty of Waitangi and the Constitution’ (Paper presented at the Liberty, Equality, Community: Constitutional Rights in Conflict Conference, Auckland, 20-21 August 1999) 3.

[10] The English Laws Act 1858 declared that British sovereignty over the colony of New Zealand commenced 14 January 1840.

[11] Above n 6, Article I of the English text of the Treaty of Waitangi.

[12] Ibid, Article II of the English text of the Treaty of Waitangi.

[13] R v Symonds (1847) [1840-1932] NZPCC 387 (SC).

[14] Ibid 390.

[15] M Jackson, above n 5, 6.

[16] Wi Parata v The Bishop of Wellington (1878) 3 NZ Jur 72.

[17] P McHugh, The Maori Magna Cartna (1991) 17.

[18] See, for example,Waipapakura v Hempton [1914] NZGazLawRp 141; (1914) 33 NZLR 1065.

[19] Tamihana Korokai v Solicitor-General (1913) 32 NZLR 321.

[20] Re The Bed of the Wanganui River (1962) NZLR 600.

[21] In Re the Ninety Mile Beach (1963) NZLR 461.

[22] Waipapakura v Hempton [1914] NZGazLawRp 141; (1914) 33 NZLR 1065; Inspector of Fisheries v Ihaia Weepu & Ors (1956) NZLR 920; In Re the Ninety Mile Beach (1963) NZLR 461; Keepa & Wiki v Inspector of Fisheries (1965) NZLR 322.

[23] See R v Symonds (1847) [1840-1932] NZPCC 387; Wi Parata v Bishop of Wellington (1877) 3 NZLR 72 & Tamihana Korokai v Solicitor-General (1913) 32 NZLR 321.

[24] Fish Protection Act 1877 (NZ) s8; Fisheries Amendment Act 1903 (NZ) s14; Fisheries Act 1908 (NZ) s 77(2); Fisheries Act 1983 (NZ) s 88(2).

[25] Te Weehi v Regional Fisheries Officer [1986] NZHC 149; (1986) 1 NZLR 680.

[26] Ibid, 692.

[27] Fisheries Amendment Act 1986 (NZ).

[28] See J Kelsey, A Question of Honour? Labour and the Treaty 1984-1989 (1990) 109. Note that the quota was initially given away.

[29] Note, however, that the Tribunal contended that the Treaty did not protect the Maori right to ownership of the fisheries but rather their business of fishing. Waitangi Tribunal, Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim, Wai 22 (1988).

[30] ‘Memorandum from the Waitangi Tribunal 10 December 1986 to the Director-General, Ministry of Agriculture and Fisheries re fish quota, 10.12.86 ‘ in Waitangi Tribunal, above n 28, 292.

[31] New Zealand Maori Council v Te Runanga o Muriwhenua. (Unreported, High Court, Greig J, 30 September 1987); Ngai Tahu Maori Trust Board v Attorney-General (Unreported, High Court, Greig J, 2 November 1987); cf (1988) NZ Recent Law 242; (1990) NZLJ 35 ; (1990) 4 Canta L R 241 ; (1994) 7 AULR 560.

[32] ‘Memorandum of Tribunal’s preliminary opinions as conveyed to Hon Minister of Fisheries, 30.9.87 ‘ in Waitangi Tribunal, above n 28, 295.

[33] P McHugh, ‘Sealords and Sharks: The Maori Fisheries Agreement (1992) ‘ (1992) NZLJ 354, 355.

[34] Matiu Rata from Muriwhenua, Tipene O’Regan from Ngai Tahu, Sir Graham Latimer from the New Zealand Maori Council and Denese Henare for Tainui were consulted by the Crown as representatives of the parties to the court cases.

[35] Above n 28, 121.

[36] Filed as Te Runanga o Muriwhenua Inc v Attorney-General (Wellington, CP 743/88).

[37] J Munro, ‘The Treaty of Waitangi and the Sealord Deal ‘ VUWLR 24(4) Dec 1994 404.

[38] Above n 28, 127.

[39] Waitangi Tribunal, The Ngai Tahu Sea Fisheries Report (1992).

[40] P Moon, The Sealord Deal (1999) 43.

[41] Waitangi Tribunal, The Fisheries Settlement Report (1992).

[42] Te Runanga o Wharekauri Rekohu Inc v Attorney-General (1993) 2 NZLR 301.

[43] Ibid 308.

[44] Consider, for example, the discussion regarding the Taranaki Fish and Game Council v McRitchie (Unreported, High Court, Neazor and Greig JJ, 14 May 1998) cited in RP Boast, ‘Maori fisheries 1986-1998: A reflection’ (1999) VUWLR 30(1) 129.

[45] Fisheries (South Island Customary Fishing) Regulations 1998 and the Fisheries (Kaimoana Customary Fishing) Regulations 1998

[46] Although this regulation-making power is now contained in the Fisheries Act 1996, s186.

[47] Section 10(c).

[48] Section 34.

[49] Fisheries Act 1996 (NZ) s 175.

[50] Above, n 48.

[51] Section 10(d).

[52] Te Runanga o Muriwhenua v Te Runanganui o Te Upoko o Te Ika Association Inc (Unreported, High Court, Anderson J, 30 June 1995) 122-95; Te Runanga o Muriwhenua v Te Runanganui o Te Upoko o Te Ika Association Inc (1996) 3 NZLR 10; Treaty Tribes Coalition v Urban Maori Authorities (1997) 1 NZLR 513; Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [1999] NZCA 232; (2000) 1 NZLR 285; Manukau Urban Maori Authority & Others v Treaty of Waitangi Fisheries Commission & Others: Te Waka Hi Ika o Te Arawa & Others v Treaty of Waitangi Fisheries Commission & Others (Unreported, Court of Appeal, Gault, Thomas, Keith, Blanchard, Tipping JJ, 18 October 1999).


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