A year ago, Prime Minister John Key announced on a trip to New York that 620,000 square kilometres of sea around the Kermadec Islands, which is 1000 kilometres from New Zealand, would be closed forever to fishing and ocean-floor mining.
The United Nations General Assembly learned about the sanctuary plan before New Zealand was told, and before Key informed his caucus.
The debate around this issue has several strands – the government apparently legislating away property rights, the competing demands of environmentalism and Maori rights, and the government’s alleged failure to consult.
The ACT Party leads the property rights argument. ACT leader David Seymour said ACT would no longer support the bill, citing a breach of property rights and a lack of compensation and consultation for both Maori and non-Maori fishers.
A closer look at the proposed Kermadec sanctuary shows that few property rights are involved.
A total of about 20 tonnes of fish are caught in the Kermadecs area every year with a value of only $165,000. Te Ohu Kai Moana tribes do not fish there. There has been hardly a peep from the other quota owners over the proposed sanctuary.
Some 2200 individuals and companies own quota in the entire New Zealand exclusive economic zone, of which the tribal fisheries trust Te Ohu Kai Moana owns 30 percent.
Compensation, if compensation was settled upon, of $165,000 per year, is not a huge amount, and could mean $49,500 a year for the tribal fisheries trust Te Ohu Kai Moana based on the current take -- if they fished there. A little extra thought by Environment Minister Nick Smith about rights and quota in this area could have headed off the current irritation for the government.
Bear in mind, tribal quota owners have not fished the Kermadec area and are objecting on limitation to rights to fish there if and when they so desire.
“Maori rights” have been a “cause celebre” for about as long as environmentalism has been. Maori rights campaigners have positioned themselves close to environmentalists by presenting themselves as first-peoples close-to-nature guardians of the environment.
But the reaction of Te Ohu Kai Moana to the Kermadecs sanctuary proposal has put an unexpected contradiction of expectations into the limelight. We now have a Maori rights group that is ostensibly a guardian of the environment strenuously objecting to limitations on exercising its right to fish quota from a proposed conservation area.
This Kermadecs gamekeeper-wants-to-be-poacher row comes soon after the former Ngapuhi leader Sonny Tau was fined and sentenced to community work for killing five protected native wood pigeons, then lying about it.
Te Ohu Kaimoana chair Jamie Tuuta said the Kermadecs issue was "this Government's foreshore and seabed".(1)
Maori Party co-leader Marama Fox said "they [Maori] already don't fish that area, but what they're saying is that actually you just can't wipe it away with one piece of legislation because this goes to the heart of every treaty settlement that we have ever made." (2)
These allegations invite a close look at the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, which started with a claim by a handful of Far North Maori who were not commercial fishermen who demanded a share of fishery quota when it was issued.
Far North “Muriwhenua” tribes filed a claim with the Waitangi Tribunal in 1985 that the fishing quota scheme created a property right in the sea from which they were excluded, thus contravening Article 2 of the treaty.
The claim got a favourable tribunal ruling that was used to get a High Court injunction preventing the Crown from allocating further quota under the system until Maori commercial fishing rights had been clarified.
These Maori commercial fishing rights were the product of negotiations between claimants and the Crown and were written into the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, which is:
• A full and final settlement of all Maori claims to commercial fishing rights;Although the settlement is supposed to benefit “Maori”, in fact dividends from Aotearoa Fisheries Ltd go to 58 tribes and Te Ohu Kai Moana represents 14 tribes. The cash benefit goes to and stays with an iwi elite.
• That transferred $150-million in cash much of which went to buying a half share in Sealord Fisheries for Maori;
• And transferred in 1989 10 percent of the total allowable commercial catches for all species then subject to the quota management system;
• And further allocated 20 percent of all quota for species henceforth brought within the quota management system
Te Ohu Kai Moana and the Maori Party appear to be making their claim under Clause (i) (viii) of the Act’s preamble that says:
the implementation of the deed through legislation and the continuing relationship between the Crown and Maori would constitute a full and final settlement of all Maori claims to commercial fishing rights and would change the status of non-commercial fishing rights so that they no longer give rise to rights in Maori or obligations on the Crown having legal effect but would continue to be subject to the principles of the Treaty of Waitangi and give rise to Treaty obligations on the Crown.One of Justice Robin Cooke’s six treaty principles (and there are at least 11 other lists of treaty principles) is the requirement that “the Crown had an obligation to consult with Maori in the exercise of kawanatanga”.
Another of those principles was that “the principles of the treaty do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy”.
It appears that Te Ohu Kai Moana and the Maori Party strongly emphasise a claimed lack of consultation but ignore the right of a duly elected government to follow its chosen policy.
While looking at the legislation, there are a couple of other points to note.
Clause (a) of the Act’s preamble says that “by the Treaty of Waitangi the Crown confirms and guarantees to the Chiefs, tribes, and individual Maori full exclusive and undisturbed possession and te tino rangatiratanga of their fisheries”.
However, the treaty the chiefs signed in 1840 was the Maori text Te Tiriti and this text has no reference to fisheries.
And the term “te tino rangatiratanga” in 1992 had come to refer to Maori self-determination but in 1840 simply translated the phrase “the complete possession”.
The current incarnation of the Maori Party appears to have revived a bit of old fashioned chest-beating separatist radicalism which differs from the “separatism with a human face” of Pita Sharples and Tariana Turia. And over at Te Ohu Kai Moana, Ken Mair, who 20 years ago led the Moutoa Garden occupation in Wanganui, sits on the board.
This radical revival coincides with a rise of the non-separatist New Zealand First party, which is also a largely Maori party. The rise of New Zealand First gives the governing National Party a substantial alternative which could end years of pandering to the Maori Party.
The rise of Winston Peters, the lack of trickle-down of the benefits of the fisheries settlement, and the gamekeeper-turned poacher new look of Te Ohu Kai Moana may mean that the Maori Party and Te Ohu Kai Moana may be tub thumping at their peril.
1. Maori Party won’t rule out walking, New Zealand Herald, September 14, 2016. http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11709570
2. Kermadec sanctuary legislation to be delayed. Stuff, September 14, 2016, http://www.stuff.co.nz/national/politics/84249268/kermadec-sanctuary-lawsuit-to-continue-after-failed-negotiations-between-maori-and-government