BACKGROUND

THE DRAFT MÄORI FISHERIES AMENDMENT BILL

The draft Mäori Fisheries Amendment Bill was commissioned by the Treaty Tribes Coalition and prepared by national law firm Bell Gully, working in conjunction with Mr Nick Davidson, a senior New Zealand commercial lawyer who has been involved in Mäori Treaty Settlement issues since the mid 1980s.

If introduced and enacted, the draft legislation would direct the Treaty of Waitangi Fisheries Commission to immediately implement the “optimum allocation model” for “pre-settlement” fisheries assets. This would stop the destruction of more than $1 million of Mäori wealth every month, as identified in an independent report by the New Zealand Institute of Economic Research.

Legislation is the only solution to the issue because any attempt to modify the model requires, under the law, more consultation. It took five years of consultation to achieve support for the model from 76 percent of iwi representing 63 percent of Mäori, with all other iwi agreeing allocation should be to iwi. There is no reason to believe modifying the model would take less than five years, over which time the losses to Mäori would compound to $84 million. The Treaty Tribes Coalition therefore argues for immediate legislation.

The full title of the draft Bill is “an Act to direct the Treaty of Waitangi Fisheries Commission to give effect to the Optimum Method for Allocation of assets held by it as at the day before the date of the Deed of Settlement dated 23 September 1992 between the Crown and Mäori”.

The preamble to the draft legislation explains that the Commission was responsible under the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 to allocate the “pre-settlement” assets. It records that the Commission met its statutory obligations to consult and develop a model for allocation and that it adopted that model at its meeting on 23 February 1999, but that it was injuncted and prevented from taking the first step in implementing the model.

The preamble records that the Crown is obliged under the Deed of Settlement and the Treaty of Waitangi to step in and direct to Commission to allocate to stop the significant losses that delays in implementing the model are causing.

Clause One of the draft legislation says that short title of the Act is the “Mäori Fisheries Amendment Act 2000”. The clause says the Act would come into force by 31 December 2000. Clause Two says the Act would be part of the Mäori Fisheries Act 1989 and Clause Three provides defines key terms: “iwi”, “PRESA” and “Optimum Method for Allocation”.

Clause Four says the Commission has completed consultation. Clause Five says the Commission must immediately implement the model, which can no longer be challenged in the courts. Clause Six says the Commission doesn’t have to report on the model to the Minister of Fisheries. Clause Seven says the Minister can’t refer the report back to the Commission. Clause Eight introduces a schedule that ensures the model is clearly defined.

The Treaty Tribes Coalition presented the model to all Members of Parliament at noon on Tuesday 19 September 2000. This was almost exactly eight years to the day since the signing of the fisheries Deed of Settlement in 1992.

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QUESTIONS AND ANSWERS

THE DRAFT MÄORI FISHERIES AMENDMENT BILL

Why have you taken this step of commissioning draft legislation and presenting it to all Members of Parliament?

Mäori are suffering losses of over $1 million a month because the “pre-settlement” assets remain tied up in the Treaty of Waitangi Fisheries Commission. This is despite all iwi agreeing that allocation should be to iwi and all the courts that have considered the matter agreeing too. It is also despite five years of careful consultation and compromise that led to 76 percent of iwi representing 63 percent of Mäori agreeing two years ago to the “optimum allocation model”. A handful of individuals with axes to grind are exploiting flaws in current legislation with technical litigation and thus holding up the implementation of the model.

Cases currently on the books, that take advantage of these flaws in current legislation, mean there is at least five years of litigation ahead of us. In that time, the losses to Mäori would compound to $84 million. What’s more, further litigation is always possible. The legal action could go on forever.

The law needs to be fixed to stop the constant legal challenges and direct the Treaty of Waitangi Fisheries Commission to immediately implement the model. That is now the only way to stop the destruction of wealth.

But the Government has just appointed a new group of commissioners and the Minister of Mäori Affairs has given them a year to sort the issue out. Surely they should be given that time to have a go?

What exactly do you think the new commissioners are able to do? No disrespect to them, but unfortunately they are completely impotent.

They can’t implement the compromise model because they are hamstrung by litigation. If they try to change the model, the law requires them to consult. That took five years last time. Why do you think it would take any less this time?

Even if they did spend five years consulting – while watching $1 million a month go down the tubes – do you really think that they would achieve a better consensus than 76 percent of iwi representing 63 percent of Mäori?

And, at the end of all that, the flaws in current legislation mean that if even one individual was unhappy with any new approach they could tie the whole issue back up in court again.

Is this all about you being worried you won’t win next year’s case in the Privy Council?

There is almost no doubt that we will win that case. We have won every case so far and we very much doubt that the Privy Council in London would overrule the Court of Appeal in Wellington on issues that go to the heart of New Zealand’s historic social structure, such as the definition of “iwi”.

What you have to understand, though, is that even once we win that case, the matter is not resolved. It’s only one of the cases. If this issue is not resolved by Parliament, we will be backwards and forwards between the High Court, the Court of Appeal and the Privy Council in London for years We’ll win all the cases, but that isn’t the point. The courts have already strongly hinted in some of their judgements that they don’t think they can resolve the issue and that Parliament must act. The problem is caused by flawed legislation.

Who other than you says the law is flawed?

Other than the judges that have hinted it, former Fisheries Ministers Ken Shirley and Doug Kidd have said publicly the law they were responsible for is flawed. I think you will find that most people who are familiar with the issue agree the law needs to be changed.

But surely it is a bit drastic to change the law on people with cases before the courts?

Not really. The Treaty of Waitangi (Fisheries Claims) Settlement Act specifically extinguished a large number of cases that were before the courts. Similar measures have been in other Acts. What we are proposing is not as strong. It just fixes the law. And Parliament is a court – the country’s highest court. It is perfectly entitled to do this.

But why should all the assets go to iwi Mäori and none to urban Mäori?

Let’s start out by clarifying some terms. There is no such thing as “iwi Mäori” and no such thing as “urban Mäori”. All Mäori are part of an iwi and have a right to be part of their iwi organisation. And it doesn’t matter where you live. A person who affiliates to Ngäti Porou, for example, doesn’t have to live on the East Coast of the North Island. They could live in Auckland, Sydney or London and they would still be Ngäti Porou. That’s why the allocation of the assets will benefit all Mäori, wherever they live.

What you mean by “urban Mäori” are those people who are not yet in contact with their iwi organisation. For them, there is a $10 million trust fund, a Development Putea, included in the model. We would hope that they would soon become active members of their iwi organisations.

Didn’t you recently propose to enter into negotiations with the Crown to settle the matter? What did the Crown say?

Yes. In late August, comments by the former Chairman of the Treaty of Waitangi Fisheries Commission and by the Chairman of the Mäori Affairs Select Committee suggested that allocation could be fast-tracked if negotiations were launched around the size of the trust fund, a Development Putea, for those Mäori who are not yet in close contact with their iwi organisations.

We took up the opportunity to settle the matter by writing to the Prime Minister, asking her for a reply within a week. The Prime Minister had one of her staff reply within two days advising us that the Minister of Fisheries would respond. His office was able to advise us that a detailed response would be available by mid-September. That allowed us to keep the offer to negotiate on the table.

But surely today’s initiative – presenting draft legislation to all Members of Parliament – cuts across your offer?

To the contrary. At the time, we said a start to negotiations would require the Crown’s confirmation that the following principles would be observed:

1. The principle of Mana Whenua Mana Moana will not be compromised
2. The ‘optimum allocation model’ will not be compromised – it is only the size of the Development Putea that will be the subject of negotiation
3. Negotiations are between the Treaty Tribes Coalition, representing the Treaty partner, and Ministers, representing the Crown
4. All litigation will be withdrawn before negotiations commence
5. The Crown commits in good faith to legislate to implement the ‘optimum allocation model’ before the end of this year.

By presenting this draft legislation, we are making it easier for the Crown to fulfill the fifth principle while maintaining the rest of the principles.

Why are you putting so much importance on negotiating only with the Crown? Why not negotiate with the Treaty of Waitangi Fisheries Commission?

As discussed above, the Commission is impotent. There is also an important point of principle. The Commission is the trustee of our assets and you do not negotiate with your own trustee. The Commission exists simply to look after our assets and work out a way to allocate them. It has done that, and done it well. But Parliament needs to legislate to direct our trustee to implement the compromise allocation model.

Do you expect the Government to agree to introduce your draft legislation to Parliament?

We certainly hope it does. It is not often that the Government and the Parliamentary Counsel Office get the assistance of one of the country’s best law firms for free. All the Government has to do is pick it up, introduce it and allow Parliament to pass it. It would restore our property right and mean the Crown had met its obligations under Article Two of the Treaty of Waitangi.

It would also stop the destruction of wealth and thus allow iwi to develop our own regional economies and close our own gaps between Mäori and non-Mäori. It would therefore help the Government achieve its social policy objectives, and it wouldn’t cost the taxpayer a cent!

Compare that with presiding over the destruction of $1 million a month of Mäori wealth and the Government would be foolish not to give this initiative the most serious consideration!

But what if the Government says no?

We haven’t come to Wellington with the expectation the Government would say no. Obviously we have a plan B but it would be discourteous to the Government to talk about that today. We want to work constructively with the Government on this issue, as do all the other parties in Parliament.

If nothing happens, the assets would stay with the Commission. Aren’t some people arguing that anyway?

You won’t find any iwi arguing that. Those that want to turn the Commission into a cross between a producer board and WINZ don’t understand the concept of property rights.

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