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Maori
settlement removes constraints on fisheries Management
By
David Payne, Communications Manager, MAF Fisheries ( January
1993).
Introduction
| Commercial property rights | Customary
rights
The passing
of the Treaty of Waitangi (Fisheries Claims) Settlement Act
late last year, and the subsequent purchase of Sealord Products
Ltd by a Maori/Brierley consortium, has cleared the way for
New Zealand's fisheries management systems to be further developed
and operated more effectively.
Before
the passing of the Act, the main fisheries management system
used in New Zealand, the Quota Management System or QMS, was
stalled in the courts. Now the Act has been passed, and Maori
fishing claims addressed with the sale of Sealord Products,
the government will be able to bring new species into the
QMS and operate the system without the serious constraints
that had been imposed by the courts as the result of Maori
claims to commercial fisheries.
The new
Act also has repealed Section 88(2) of the Fisheries Act 1983,
which provided that 'nothing in this Act shall affect a Maori
fishing right'. It removed the ability of Maori to take court
action on claims to commercial fisheries and removed the ability
of the Treaty of Waitangi Tribunal to hear any further claims
to commercial fishing rights.
These
changes will mean that in future all commercial fishers will
be subject to one law.
Commercial
property rights
While many people perceive the Maori fisheries rights issue
as a racial issue, the reality is that the strength of the
Maori claims is based on the strong legal claim they have
developed for property rights which were confirmed by the
Treaty of Waitangi. The issue is not about race but really
about property rights where the claimants happen to be Maori.
The property
rights issue came to the fore in 1986 when the Quota Management
System was introduced. This system is based on the private
ownership of quota, which is a right to harvest commercially
a certain quantity of a particular species of fish in a defined
area. The initial allocation of quota was based on the catch
histories of all commercial fishers.
Soon
after the introduction of the QMS, Maori groups challenged
the legality of the system through the Waitangi Tribunal and
in the courts. The basis of their challenge was that in allocating
private rights to harvest fish commercially, the Crown had
ignored Maori fisheries rights guaranteed by the Treaty of
Waitangi. The Waitangi Tribunal, the High Court and the Court
of Appeal all upheld the Maori claims. In November 1987 Maori
successfully gained an interim declaration from the Court
of Appeal that prevented further development of the quota
system.
Significantly,
while finding that the allocation of rights was prejudicial
to Maori, the Waitangi Tribunal found that the purposes of
the QMS and its mechanisms to restrict catches and conserve
fisheries were not in conflict with the Treaty. In the Tribunal's
view, the management system was good but the allocation, by
ignoring Maori rights guaranteed by the Treaty, was wrong.
Customary
rights
In 1986 the courts found that the taking of fish for customary
purposes by Maori was not restricted by any fisheries law,
as section 88(2) of the Fisheries Act stated that nothing
in the Act shall affect a Maori fishing right. However the
rights referred to were not defined and this left the law
open to interpretations which were inconsistent with both
Maori customary lore and the need for sustainable fisheries
management.
The new
Settlement Act seeks to resolve the sorts of problems associated
with section 88(2) of the Fisheries Act by clarifying how
Maori customary rights will be applied and given legal effect.
The new Act contains two separate components dealing with
Maori traditional, non-commercial fishing rights. One concerns
Maori management of customary gathering in all New Zealand
fishing waters. The other concerns Maori management of discrete
areas called mataitai reserves.
In regard
to the customary gathering, the Act provides for regulations
to allow Maori to control the gathering of seafood under customary
practice by any person (Maori or non-Maori - it does not permit
exclusion by race or ethnicity). This would mean that if any
person decides to go fishing anywhere along the coast, that
person may either elect to fish under the existing amateur
fishing regulations or that person may choose to apply to
local kaitiaki (or guardians) to fish under the customary
regulations which may provide benefits different from the
amateur regulations. These provisions are similar to the present
'hui/tangi' provisions of the Amateur Fishing Regulations,
but they will be more clearly defined. The customary rights
and the procedures for using them are to be clearly defined
in regulations. This should lead to less confusion and minimise
the potential for abuse of the system. The rights will be
strictly non-commercial in nature.
In regard
to the mataitai reserve areas, the new Act provides for regulations
which will give local Maori communities a degree of management
responsibility over small, defined fishing grounds which have
been of traditional importance to them. The Act requires that
any controls on fishing within mataitai reserves must apply
equally to all people. There is only one exception; if a reserve
is closed for general harvesting, the mataitai management
committee could still approve of the taking of seafoods to
meet the needs of events on the marae which manages the reserve.
Before
any mataitai reserve can be established, the Act requires
the Minister of Fisheries to consult with the local community
in the area and consider their views. Policing of the reserves
is to be carried out by officers acting under the authority
of the Fisheries Act.
Both
sets of regulations, for customary gathering and mataitai
reserves, are to be developed in consultation with Maori early
in the new year.
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