MÄORI FISHERIES AMENDMENT BILL - TEXT
MÄORI FISHERIES AMENDMENT BILL
EXPLANATORY
NOTE
Introduction
THIS Bill gives effect to the “Optimum Method for Allocation” adopted by the Treaty of Waitangi Fisheries Commission (“Commission”) for the allocation of assets held by it on 22 September 1992, being the day before the date of the Deed of Settlement dated 23 September 1992 entered into between the Crown and Mäori. Those are the assets referred to in the Mäori Fisheries Act 1989, being the quota plus cash and shares that formed the initial interim settlement of fisheries claims (“pre-settlement assets”).
Background
The Commission formulated an Optimum Method for Allocation of the pre-settlement assets, after undertaking one of the most wide-ranging consultation processes ever conducted among Mäori. During the course of that consultation, the Commission was also involved in a number of court actions, brought by various groups to challenge the way in which the Commission interpreted its legal obligations in terms of managing the pre-settlement assets pending their allocation.
The extensive consultation process undertaken by the Commission resulted in substantial agreement by iwi on the major principles underlying allocation. In recognition of that fact, the Commission resolved to report its proposed Optimum Method for Allocation to the Minister of Fisheries, as required by the Mäori Fisheries Act 1989. At that stage, a number of other legal proceedings were brought against the Commission, challenging the process by which it formulated the Optimum Method for Allocation of the pre-settlement assets. An interim order was obtained, preventing the Commission from presenting its report to the Minister until those legal challenges have been resolved. Therefore, notwithstanding the substantial agreement achieved in respect of the Commission's proposed method, litigation has halted the allocation process.
The delay in allocation of the pre-settlement assets to iwi has caused, and continues to cause, substantial economic and other damage. The Bill recognises that allocation must occur without any further delay, to bring that damage to an end and to finalise the settlement between the Crown and Mäori. The Bill recognises that the Crown has a responsibility to ensure allocation of the pre-settlement assets.
Clauses of the Bill
Clause 1
relates to the Short title and commencement. The Bill comes
into force on the earlier of a date to be appointed by Order
in Council or 31 December 2000.
ii
Clause 2 states
that clauses 2 to 8 of the Bill are to be deemed part of the
Mäori Fisheries Act 1989.
Clause 3 amends section 2 of
the Mäori Fisheries Act 1989 by inserting three new
definitions relating to iwi, pre-settlement assets and the
method for the allocation of those assets in accordance with
the Deed of Settlement and the Mäori Fisheries Act 1989
(which is the method set out in full in the Schedule to the
Bill).
Clause 4 repeals section 6(e)(i) of the Mäori
Fisheries Act 1989 in recognition of the fact that the
Commission has completed its consideration as to how best to
give effect to the resolutions set out in Schedule 1A to the
Mäori Fisheries Act 1989.
Clause 5 inserts two new
sections into the Mäori Fisheries Act 1989. 7A directs the
Commission to allocate and distribute pre-settlement assets
in accordance with the Optimum Method for Allocation and 7B
limits the jurisdiction of any Court or Tribunal to matters
of interpretation and implementation of this Act.
Clause
6 repeals section 9(2)(l) of the Mäori Fisheries Act 1989 in
recognition of the fact that the Commission has completed
its consideration of the matters set out in section 6(e)(i)
of the Mäori Fisheries Act 1989 and the fact that the
process for allocating pre-settlement assets is now dealt
with by the amendment inserted by clause 5 of the
Bill.
Clause 7 repeals section 9(4) of the Mäori
Fisheries Act 1989, to remove the Minister’s ability to
require the Commission to reconsider the report to the
Minister under section 9(2)(l) of the Mäori Fisheries Act
1989.
Clause 8 inserts a new Schedule 1B into the Mäori
Fisheries Act 1989.
The Schedule sets out the Optimum
Method for Allocation.
MÄORI
FISHERIES AMENDMENT
ANALYSIS
Title
Preamble
1. Short title and
commencement
2. Sections to be read with Mäori
Fisheries Act 1989
3. Interpretation
4.
Certain functions discharged
5. Direction to
allocate PRESA
6. No requirement for Commission
to report on PRESA
7. No ability for Minister to
refer
report back to Commission
8. New
Schedule 1B inserted
Schedule-Optimum Method
for
Allocation
Mäori Fisheries
Amendment
A BILL INTITULED
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
WHEREAS—
(a) the Commission held assets prior to the settlement of
claims relating to Mäori commercial fishing rights, as
embodied in a Deed of Settlement dated 23 September 1992
between the Crown and Mäori, and, pursuant to the Treaty of
Waitangi (Fisheries Claims) Settlement Act 1992, was
responsible for allocating the pre-settlement assets;
and
(b) as the result of an extensive consultation
process, undertaken in accordance with the resolutions set
out in Schedule 1A to the Mäori Fisheries Act 1989, the
Commission obtained the substantial agreement of iwi to the
Optimum Method for Allocation of the pre-settlement assets,
and adopted that method by resolution on 23 February 1999;
and
(c) the Commission was injuncted and prevented
from reporting the Optimum Method for Allocation to the
Minister of Fisheries in accordance with the Mäori Fisheries
Act 1989 and, thereby, prevented from giving effect to the
Optimum Method for Allocation; and
(d) the Crown
recognises that, in furtherance of its obligations under the
Deed of Settlement dated 23 September 1992, its duties
arising from the Treaty of Waitangi and in order to halt the
significant losses that have accrued as the result of delay,
it is now necessary to direct allocation of the
pre-settlement assets to iwi in accordance with the Optimum
Method for Allocation.
Mäori Fisheries Amendment
BE IT ENACTED by the Parliament of New Zealand as
follows:
1. Short title and commencement—(1) This Act
may be cited as the Mäori Fisheries Amendment Act 2000.
(2) This Act shall come into force on the earlier of a date
to be appointed by the Governor-General by Order in Council
or 31 December 2000.
2. Sections to be read with Mäori Fisheries Act 1989—This section and the next 6 succeeding sections shall be read together with, and deemed part of, the Mäori Fisheries Act 1989 (in those sections, referred to as the principal Act).
3. Interpretation—Section 2 of
the principal Act is hereby amended by inserting, in
appropriate alphabetical order, the following
definitions:
“iwi” for the purpose of this Act, includes
any body duly authorised and mandated to represent an iwi:
“PRESA” means all the assets held by the Commission as
at the day before the date of the Deed of Settlement dated
23 September 1992, and includes any property or income
acquired or derived from those assets that is held by the
Commission at the time of allocation:
“Optimum Method for
Allocation” means the method for allocation of PRESA set out
in Schedule 1B to this Act.
4. Certain functions discharged—The principal Act is hereby amended by repealing section 6(e)(i) (as enacted by section 15 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992).
5.
Direction to allocate PRESA—The principal Act is hereby
amended by inserting, after section 7, the following
sections:
“7A. Allocation of PRESA—Notwithstanding any
other provision contained in this Act or any other Act, the
Commission must, without delay, allocate and distribute
PRESA to iwi in accordance with the Optimum Method for
Allocation.
Mäori Fisheries Amendment
7B. No
jurisdiction—(1) Notwithstanding any provision contained in
this Act or any other Act or any rule of law, no Court or
Tribunal shall have jurisdiction to enquire or further
enquire into, or make any finding or recommendation in
respect of, the Optimum Method for Allocation or this
Act.
(2) Subsection (1) does not exclude the jurisdiction
of a Court or Tribunal in respect of the interpretation or
implementation of this Act .”
6. No requirement
for Commission to report on PRESA—The principal Act is
hereby amended by repealing section 9(2)(l) (as enacted by
section 17(1) of the Treaty of Waitangi (Fisheries Claims)
Settlement Act 1992).
7. No ability for Minister to refer report back to Commission—The principal Act is hereby amended by repealing section 9(4) (as enacted by section 17(2) of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992).
8. New Schedule 1B inserted—The
principal Act is hereby amended by inserting, after Schedule
1A, the Schedule 1B set out in the Schedule to this Act.
Mäori Fisheries Amendment
SCHEDULE
New Schedule 1B inserted into Mäori Fisheries Act 1989
“SCHEDULE 1B
OPTIMUM METHOD FOR ALLOCATION
Classification of Fishstocks
A fishstock is defined as a fish species within a Quota Management Area (QMA).
All PRESA fishstocks are classified as inshore or deepwater depending on whether they are caught predominantly at depths less than or greater than 300 metres.
The table below sets out the classification of all 178 PRESA fishstocks.
Classification of Fishstocks for PRESA Allocation Purposes
Inshore Local Fishstocks
(Adjacent Iwi Coastline)
CRAl CRA2 CRA3 CRA4 CRA5 CRA6
CRA7 CRA8 CRA9
FLA1 FLA2 FLA3 FLA7
GMUl GMU2 GMU3
GMU7
PAU1 PAU2 PAU3 PAU4 PAU5 PAU6 PAU7
PHCl
Inshore
Mobile Stocks (Iwi Coastline Related to QMA
Coastline)
BAR1 BAR4 BAR5 BAR7
BCO1 BCO2 BCO3 BCO4
BCO5 BCO7 BCO8
BNS1 BNS2
BYXl BYX2
ELE1 ELE2 ELE3
ELE5 ELE7
GUR1 GUR2 GUR3 GUR7 GUR8
HPB1 HPB2 HPB3 HPB4
BPB5 HPB7 HPB8
JDO1 JDO2 JDO3 JDO7
LIN1 LIN2
LIN3
MOK1 MOK3 MOK4 MOK5
RCO1 RCO2 RCO3 RCO7
SCH1
SCH2 SCH3 SCH4 SCH5 SCH7 SCH8
SKI1 SKI2 SKI3 SKI7
SNA1
SNA2 SNA3 SNA7 SNA8
SPO1 SPO2 SPO3 SPO7 SPO8
SQU1J
STAl STA2 STA3 STA4 STA5 STA7 STA8
TAR1 TAR2
TAR3 TAR4 TAR5 TAR7 TAR8
TRE1 TRE2 TRE3 TRE7
WAR1 WAR2
WAR3 WAR7 WAR8
Mäori Fisheries Amendment
Deepwater
Fishstocks (Combined Coastline/Population)
BNS3 BNS7
BNS8
BYX3 BYX7 BYX8
HAK1 HAK4
HAK7
HOK1
JMA7
LIN4 LIN5 LIN7
OEO1 OEO3A
OEO4
ORH1 ORH2A ORH2B ORH3A ORH3B ORH7A
ORH7B
SQU1T
SWA1 SWA3 SWA4
LIN6 OEO6 SQU6T
(Sub-Antarctic)
All Area 10 Quota
(Kermadecs)
Allocation of Inshore Fishstocks
The fish caught predominantly at depths down to 300 metres belong exclusively to those iwi whose rohe are adjacent to the relevant QMA.
For each inshore fishstock, the portion of that fishstock that is allocated to an iwi is in the same proportion that the iwi’s length of coastline in the QMA bears to the length of the QMA coastline.
Allocation of Deepwater Fishstocks
A proportion of the fish caught predominantly at depths greater than 300 metres belongs exclusively to those iwi whose rohe are adjacent to the relevant QMA.
For 50% of each deepwater fishstock, the portion of fishstock that is allocated to an iwi is in the same proportion that the iwi’s length of coastline in the QMA bears to the length of the QMA coastline.
For the other 50% of each deepwater fishstock, the portion of fishstock that is allocated to an iwi is in the same proportion as that iwi’s population bears to the total iwi population.
Allocation to the Chathams
A 200 nautical mile circle drawn around the Chathams forms a “separate fishery” in which the total quantity caught of each fishstock is determined from Ministry of Fisheries’ catch data for the years 1990/91 up to the latest figures available at the time of allocation.
This quantity is expressed as a percentage of the total catch of the respective fishstock over the same period of years.
For each inshore fishstock this percentage of PRESA is allocated to the Chathams.
For each deepwater fishstock 50% of this
percentage of PRESA is allocated to the Chathams.
Mäori
Fisheries Amendment
The Chathams shares in the population component of all deepwater fishstocks in the same way as all other iwi.
Allocation of Fishstocks in FMA6 and FMA10
Quota whose QMA is FMA6 or FMA10 is classified as deepwater and is allocated 50% by iwi coastline relative to New Zealand coastline including the Chathams and 50% by iwi population including the Chathams.
Measurement of Coastline
The measurement of coastline will use 1:50,000 scale digital maps produced by Land Information New Zealand (LINZ).
Rivers and harbours are cut off across their natural entrance points and that distance is included in the coastline measurement.
Where the distance between the natural entrance points of a bay is 10 kilometres or less, the juridical bay test is applied to determine whether or not the bay is:
· a harbour which is cut off across its
natural entrance points; or
· a bay whose coastline is
included in the measurement.
The juridical bay test consists of calculating the surface area of the bay inside the line between the natural entrance points and comparing it with the surface area of a semicircle drawn on the same line between the natural entrance points.
If the surface area of the bay is greater than the surface area of the semicircle, the bay is treated as a harbour and its coastline is excluded from the coastline measurement. The line between the natural entrance points of the harbour becomes the “coastline” and is included in the measurement. If the surface area of the bay is less than the surface area of the semicircle, the coastline of the bay is included in the coastline measurement.
Inclusion of Islands in an Iwi Coastline
The coastline of an island is to be included in the coastline measurement of an iwi if the iwi can demonstrate all three of the following:
· Ahikaaroa (long
and current habitation on the island);
· a traditional
and separate fishing history associated with the island;
and
· occupation of the island such as marae and other
communal infrastructure.
Using these criteria Great
Barrier Island and Stewart Island are the only islands that
qualify.
Mäori Fisheries Amendment
Inshore Fishstocks in Harbours
A percentage of QMS fishstocks commercially caught within each harbour is to be applied to the PRESA fishstock quota and the resultant amount of quota is reserved for allocation to those iwi who border that harbour.
Percentage of Inshore Fishstocks in Harbours for Allocation
SPECIES
% TACC
QMA
1
Parengarenga
Flatfish 0.340
Grey
Mullet 0.500
Trevally 0.400
Snapper 0.020
Houhora
Flatfish 0.080
Grey
Mullet 0.200
Rangaunu
Flatfish 0.340
Grey
Mullet 0.500
Trevally 0.200
Snapper 0.020
Mongonui
Flatfish 0.340
Grey
Mullet 0.600
Trevally 0.300
Snapper 0.020
Whangaroa
Flatfish 0.340
Trevally 0.260
Upper
Bay of Islands
Flatfish 0.170
Grey
Mullet 0.500
Trevally 0.130
Snapper 0.040
Mäori Fisheries Amendment
Whangaruru
Flatfish 0.170
Grey
Mullet 0.200
Trevally 0.130
Snapper 0.040
Whangarei
Flatfish 1.680
Grey
Mullet 3.000
Trevally 4.670
Snapper 0.220
Rig 0.640
School
Shark 0.750
Mangawhai
Flatfish 0.160
Grey
Mullet 0.300
Trevally 0.030
Snapper 0.040
Tauranga
Flatfish 0.510
Grey
Mullet 0.200
Trevally 4.670
Snapper 0.270
Ohiwa
Trevally 0.300
Aotea
and Kawhia
Flatfish 0.240
Grey
Mullet 0.500
Trevally 0.130
Snapper 0.040
Raglan
Flatfish 0.240
Grey
Mullet 0.500
Trevally 0.130
Snapper 0.040
Port
Waikato
Flatfish 0.160
Grey
Mullet 7.000
Trevally 0.130
Mäori Fisheries
Amendment
Manukau
Flatfish 8.270
Grey
Mullet 17.490
Gurnard 0.090
School
Shark 0.001
Snapper 0.070
Rig 6.670
Trevally 1.250
Kaipara
Flatfish 12.380
Grey
Mullet 24.467
Gurnard 0.150
School
Shark 4.300
Snapper 0.039
Rig 4.593
Trevally 1.241
Hokianga
Flatfish 0.800
Grey
Mullet 0.800
Trevally 0.660
Snapper 0.180
Rig 0.640
School
Shark 0.450
Marlborough
Sounds
Flatfish 0.960
School
Shark 0.940
Snapper 2.500
Rig 0.900
Blue
Cod 1.600
Elephant Fish 5.900
Red
Cod 0.160
Where more than one iwi is involved it is
proposed that the reserved quota is divided by their own
agreement or by the Commission's dispute resolution
procedures.
The remainder of the available fishstock quota is allocated by the coastline method to all iwi with rohe adjacent to the QMA including those iwi who have received quota via their association with a harbour provided they also have a seaward coastline in the QMA.
Measurement of “Population”
For the purposes of this method of
allocation, iwi population is as measured by the 1996
Census.
Mäori Fisheries Amendment
In calculations for fisheries allocation all iwi affiliations are counted.
Each iwi’s relative size expressed as a percentage will be used to determine each iwi’s share of PRESA. Individual iwi concerns will be dealt with by the Commission on a case by case basis.
Allocation of Cash and Shares
Of the PRESA cash, $10 million will be allocated to iwi via the Development Putea and allocation of the remainder will be in proportion to the iwi population.
Te Ohu Kai Moana Limited, a wholly-owned subsidiary of the Commission, holds approximately 68% of the shares in Moana Pacific Fisheries Limited.
The Commission has an 18.6% interest in Te Kupenga Limited, which holds the remaining 32% of Moana Pacific Fisheries Limited. Shares in Te Kupenga Limited will be transferred to Te Ohu Kai Moana Limited. Shares in Te Ohu Kai Moana Limited will be allocated to iwi in proportion to the quantity of quota (by tonnes) allocated to each iwi.
Development Putea
A Development Putea, in the form of a charitable trust, comprising $10 million of PRESA cash and the shares in Te Kupenga Limited currently held by the Guardian Trust on behalf of Te Puni Kokiri, will provide a means through which iwi can collectively discharge their trust obligations to all their beneficiaries, including those who have not maintained their iwi links.
The Development Putea will be managed by a Board of Trustees made up of 2 iwi and 2 urban Mäori representatives, who will be appointed by the Commission after receiving nominations from iwi and urban Mäori. The Commission will also appoint a further trustee as a chairperson, who will represent iwi interests.
The Board controlling the Development Putea will only be able to distribute profits derived from the capital of the fund. Distributions will be available on a contestable basis, and priority of access to the fund will be given to those who live outside their tribal rohe or whose iwi ties are not maintained.
The trust will be structured to ensure accountability to the beneficiaries. The trust will be required to submit to the Commission a draft annual plan prior to each financial year and an annual report reviewing the trust’s performance against the preceding annual plan, and the trust’s records will also be audited annually.
The
Commission will the review of the operation of the
Development Putea within 5 years of its establishment in
order to assess its continued
usefulness.”