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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new Act also has repealed Section 88(2) of the Fisheries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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