Sunday, August 4, 2013

Mike Butler: Fishery settlement mischief

Tribal misbehaviour and government favouritism is the outcome of a process that started nearly 30 years ago with a treaty claim by few part-time fishers in the Far North that was expanded by a Waitangi Tribunal ruling, a High Court injunction, and resulted in dividing up the nation's ocean fishery along racial lines. The assertion that the 1992 $170-million commercial fisheries settlement would “get young Maori into the fisheries business” was one of several sanctimonious justifications to obscure the naked opportunism and political weakness surrounding that settlement.

That settlement started off as a claim by Far North tribes for a share of quota introduced by the Fisheries Act 1983 which was an attempt to maintain fisheries at a sustainable level. The claim was on behalf of those who supplemented their income with part-time fishing.

Rarawa, Aupouri, Ngati Kuri, Ngai Takoto, and Ngati Kahu filed a claim with the Waitangi Tribunal in 1985, under the collective title Muriwhenua, that the fishing quota scheme created a property right in the sea from which they were excluded, thus contravening Article 2 of the treaty. (1)

The Ministry of Agriculture and Fisheries announced that it would issue quota for jack mackerel and squid in the Far North, so in September 1987, Muriwhenua claimants and the Maori Council sought a ruling from the chairman of the Waitangi Tribunal to back a High Court injunction to stop the issue of quota.

Tribunal chairman Eddie Durie ruled that the sea was owned in the same way the land was, and if the government wished to develop the sea commercially, it had to acquire the right from the traditional user.

Justice J. Greig agreed that the quota management system contravened the rights of the Muriwhenua people that were guaranteed under Section 88(2) of the Fisheries Act, which said: “Nothing in this Act shall affect any Maori fishing right”. He ordered a stop to the quota system in the Muriwhenua area until their rights and obligations by the Crown were resolved.

The Maori Council, the Tainui Trust Board, the Ngai Tahu Trust Board, and other tribes lodged a more comprehensive injunction to suspend the quota scheme in October 1987.

Justice Grieg agreed that there was a case for a "highly developed and controlled Maori fishery" over the whole coast of New Zealand before 1840, and those rights, if any, still had to be proven in court. He ordered an interim stop to the system until Maori rights to the fishery were resolved.

Instead of proving those rights in court, a working party of four government members and four Maori members was set up to negotiate fishing rights, define what they were, and see how they could be recognised.

Negotiations led to a Maori Fisheries Bill introduced in September 1988 in which 50 percent of the fisheries quota would be handed transferred at a rate of 2.5 percent a year for 20 years with a stop to Maori fishing claims before the courts and a 20-year moratorium on fisheries claims to the Waitangi Tribunal.

After pressure from the fishing industry, the government dropped the bill and introduced another conceding 10 percent of the fisheries over four years to tribes and leaving the courts to decide the other 90 percent.

The government bought back 10 percent of the quota shares it had given to fishers and an interim agreement in 1989 transferred to the Waitangi Fisheries Commission about 10 per cent of New Zealand's commercial quota or 60,000 tonnes, shareholdings in fishing companies, and $50-million in cash.

The second part of the deal in 1992, the Sealord deal, included 50 per cent of Sealord Fisheries, and 20 per cent of all new species brought under the quota system and $18-million in cash.

Debate between tribes on how to share the settlement took years, as did setting up the necessary tribal organisations to manage the proceeds. The Maori Fisheries Act 2004 led to the first distribution to tribes of fish quota, cash, and shares in Aotearoa Fisheries Ltd in September 2005.

The claim grew from that of a few part-time fishers in the Far North to a claim for a substantial share of the national fishery. Doug Graham for the government, and Tipene O’Regan and Matiu Rata for the claimants negotiated this deal that assumed a right existed instead of proving it. More than 20 years later we have a set-up that condones abusive labour practices on foreign rust buckets pillaging New Zealand’s fisheries.

1. pp274-5, Ranginui Walker, Struggle Without End, Penguin, 1990.
2. Treaty2u

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