Saturday, September 17, 2016

Mike Butler: Kermadecs, tribes, fishing rights

A dispute between those in charge of tribal fishing interests and the government over the proposed marine sanctuary around the Kermadecs is déjà vu all over again for those who remember the overblown claims of 30 years ago for Maori to share in the growing commercial fishing industry.

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;
• 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
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.

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.
2. Kermadec sanctuary legislation to be delayed. Stuff, September 14, 2016,


Lesley Munro said...

Would you consider running for Prime Minister next year, this was a perfectly logical and concise and intuitive argument.

Enuff said...

If 'Maori are guardians of the environment' - then why is almost exclusively 'Maori' that appear on these Coastwatch programmes total abusing the quota and rules?
When will the brown gravy train finally pull into the station!

Anonymous said...

That fishery will be increasingly raided by foreign fishermen (If it isn't already), so the area will be useless as both sanctuary and resource in the next few years anyway. The Pacific is completely overfished,and areas such as the Kermadecs will come under great pressure from poachers.World 10 ,New Zealand and Environment 0

Anonymous said...

It has been noted and said that there is a real threat to fisheries in New Zealand. The blatant disregard for the intended sanctuary by those who claim to be the guardians of the fisheries shows their general intent. It disturbs me that the majority of crimes committed against fishing regulations are committed by Maori. Their iwi and leaders are on a collision course with the extinction of the fish species. If they were true conservators, they would be behind this scheme, but in truth they are only money hungry rip-off merchants and their children and grand-children will suffer when there are no fish left. The most disturbing fact is that they were never the "indigenous" tribe of New Zealand and that most of mine - and your ancestors arrived here by the same transport that their ancestors did. Left wing and supposed do-gooders have wrecked this country and the ability of us all to live under a one-law-for-all culture. To have given the world the chance to see that a melting pot of cultures could live in harmony and equality is now lost and we are no better than the fighting and bickering countries that goes on in the middle east.

Anonymous said...

Well said. The posturing by some Maori over the Kermadecs issue contrasts sharply with the objection by other Maori to a proposal to mine the seabed off the Wanganui coast.
The action by the Maori Party in threatening to withdraw from the Confidence and Supply agreement (treaty) with the National Party is an ugly one and reflects badly upon insistence by Maori that the Treaty of Waitangi is to be honoured.
And is a political party that insists upon personal gain before honor one that should not be seen again in NZ politics?

Anonymous said...

Your commentator,as with the majority of the New Zealand public are unaware that the Kermadecs are already protected. The waters round the islands themselves form our largest "no take" reserve. The rest of the area proposed as a Marine Park is a Benthic Protection Area and has been so since 2007. There is no bottom contact with the seabed by fishing allowed. Thus the corals and fish that dwell there are preserved.

At issue is the Tuna and Tuna like species that were fished by foreign fleets before establishment of our Quota Management Species. These are not resident and are migrating through the zone. They are the reason for some 200 foreign vessels now fishing right upto the periphery of the Kermadecs.

These tuna species are part of our quota management but shown generically over the entire New Zealand zone - because of their migratory nature. Without access to Kermadecs upper water column by New Zealand vessels we will reduce our Tuna fleet to that of a inshore coastal fishery. Foreign vessels will continue to fish right to our boarders with impunity.

Had Government consulted properly a perfectly good Sanctuary could have been established and a viable ,non invasive ,New Zealand tuna fishery also.

New Zealand Tuna Fisher.

Anonymous said...

Further to my previous comment it is necessary to add to Mike Butler’s synopsis on quota value and fishing opportunity lost.

In fairness he can only work on information made publicly available. No account has been taken of the migratory stocks that pass through the area. Had due process been followed and Cabinet properly informed, he as with them, would be working to a different set of figures.

New Zealand leads the way at International fora in trying to address the overfishing of Tuna stocks in the Pacific. When ultimately this is achieved we could anticipate a return to the catch levels obtained by foreign fleets fishing the Kermadec's in former years.

In aggregate the fleets of Japan and Korea used to catch annually some 1400 tonnes of Tuna species in Kermadec's. A far cry from the 20 tonnes of demersal species referenced in the Butler paper.

Maori rights are pivotal to the current debate. They have just reason to be aggrieved when they, with Industry, supported Kermadec's as a Benthic Protection Area (BPA). That Government have chosen to circumvent their own Marine Protection Area Bill and use Special Legislation as the legal framework adds to the insult. Nick Smith has also stated that the Special Legislation option remains available to Government to create further MPA's of their choice within New Zealand's EEZ. !

The Sanctuary proposal as it now stands has little to do with sustainability but much to do with bragging rights on the International stage. The suggestion that an area twice the size of New Zealand needs ,for "sustainability" reasons, to exclude surface fishing by a New Zealand fleet has no scientific basis whatsoever. Government have yet to prove the conservation value in their current proposal and would have difficulty in doing so.

Foreign subsidised fleets fishing in juxtaposition to the proposed Sanctuary lie in delightful anticipation.

The fact that Government appear, now, to have put the proposal on ice should provide the opportunity for reasoned debate on the value, style and type of Sanctuary.

That there should be a Sanctuary is not the issue - that it should be established respecting existing rights and be in New Zealand's best interest is.

New Zealand Tuna Fisher

Dave said...

Its all about the money, offer the Maori elite another few hundred million as 'compensation' after all didn't they in pre European days fish around the Kermadecs?.
Besides if NZ proclaims the area as a sanctuary how do we propose to police it? with a tiny toothless Navy and an obsolete air force with no strike capacity. We could just send the offenders an email asking nicely no to fish in the area or try that other effective body the UN .. yeah that will really scare them.