The right to fish

Treaty rights
Negotiation
The Deed of Settlement
Allocation of assets

The Treaty of Waitangi Fisheries Commission (Te Ohu Kai Moana) is not a government department. It is an organisation established by statute (the Māori Fisheries Act 1989 and its amendments) and works with a variety of government, industry and private organisations to advance the interests of Māori in the business and activity of fishing.

The resources of the sea are of great importance to Māori . The loss of land since 1840 meant even greater dependence on kai moana (food from the sea) despite the problems of pollution of harbours and coastlines, and inroads on fish stocks from commercial fishing.

In the 1980s two developments brought the issue of fishing rights to a head. First, the powers of the Waitangi Tribunal were widened to allow it to examine claims dating back to 1840. Secondly, the government proposed to introduce the Quota Management System (QMS) as a way of managing and conserving New Zealand’s commercial fisheries.

Treaty rights

The initial concept of the QMS did not take into account Māori fishing rights. It was also in direct conflict with the evidence being presented to the Waitangi Tribunal, by Ngai Tahu and the various Iwi of Muriwhenua, of pre-existing and unextinguished collective tribal fishing rights, which were protected by section 88(2) of the Fisheries Act 1983.

Representatives of four Māori groups – Ngai Tahu, Muriwhenua, Tainui and the New Zealand Māori Council – sought and won on behalf of Iwi a 1987 High Court injunction preventing the Crown from allocating further quota under the system until Māori commercial fishing rights had been clarified.

During the same period, Waitangi Tribunal reports identified certain values associated with Māori fishing. It found the Treaty of Waitangi guaranteed to Māori full, exclusive and undisturbed possession of their fisheries, that Iwi and hapu held collective fishing rights in the waters adjacent to their rohe and that such rights included the right to use new technology to develop commercial fishing in New Zealand waters.

Negotiation

Following the High Court injunction, negotiations between Māori and the Crown led to an Interim Settlement of Māori commercial fisheries claims and the Māori Fisheries Act 1989. At its heart was a two-year adjournment of the fisheries litigation in return for a phased delivery of 10% of the then Total Allowable Commercial Catch for each fishstock of each species in the Quota Management System.

The Act further provided for $10 million in cash to be transferred to a Māori Fisheries Commission and for the establishment of Aotearoa Fisheries Ltd. These assets, together with further quota and other assets acquired in the market were later to become known as the Pre-Settlement Assets.

By the time the next phase of the fisheries settlement was arrived at in 1992, the Commission held some 11% of New Zealand’s quota and had acquired control of the nation’s largest specialist inshore fishing business, Moana Pacific Fisheries Ltd.

The Deed of Settlement

When Sealord Products Ltd was offered for sale in 1992, the opportunity to settle the commercial fisheries claims was seized by both the Māori Fisheries Negotiators and the Crown. A Deed of Settlement was signed on 23 September 1992. Under this settlement the Crown provided the Māori Fisheries Commission with $150 million payable in three sums of $50 million, the first of which was to assist the Commission to buy a half share in Sealord Products Ltd in a joint venture with Brierley Investments Ltd. Also, 20% of all new species brought into the Quota Management System was to be handed to the Commission for the benefit of all Māori. Provisions relating to customary fisheries and Māori involvement in fisheries statutory bodies were also contained in the Deed of Settlement. Māori agreed that all current and future claims in respect of commercial fishing rights had been fully satisfied and discharged.

The Deed – commonly referred to as the Sealord Deal – was given effect by the enactment of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. That Act saw the Māori Fisheries Commission reconstituted as the Treaty of Waitangi Fisheries Commission – Te Ohu Kai Moana. These assets are generally referred to as the Post-Settlement Assets.

Allocation of assets

It is the responsibility of the Treaty of Waitangi Fisheries Commission to devise a method of allocation of the fisheries assets to Iwi.

Allocation of these assets is one of the most important issues to confront the current Māori generation; it also has important implications for New Zealand in general. Its importance to Māori has made it a contentious issue and various Iwi have opposing views. Changes to Māori society since the time of the Treaty have complicated the issue. A degree of compromise is required to resolve the issues surrounding allocation, and this has long been recognised by the majority of interested parties.

The Treaty of Waitangi Fisheries Commission has after years of consultation with Iwi, urban Māori organisations, interested parties and individuals developed an optimum method of allocating the entire fisheries settlement, called Ahu Whakamua. The main elements of the model are:

• all Inshore Quota is to be allocated to Iwi through a coastline formula. (Inshore Quota is defined as fishstocks caught at depths down to 300 metres)
• all Deepwater Quota is to be allocated to Iwi through a 75% Iwi population: 25% Iwi Coastline formula. (Deepwater Quota is defined as those fishstocks caught at depths greater than 300 metres)
• an amount of cash is to be allocated to Iwi using a population formula, while certain funds are set aside for a Putea (fund) for all Māori, particularly those who cannot find or do not associate with their Iwi
• the establishment of a designated Freshwater Fisheries Fund
• the creation of the largest fishing company in New Zealand – Aotearoa Fisheries Limited – that will issue ‘income shares’ to all Iwi on a population basis. AFL will be required to pay out 40% of net profit after tax to owners of “income shares”.

In early 2003, the Commission was to issue a report to the Minister of Fisheries as required by its governing legislation to allow for allocation to begin.

Find out more!

Treaty of Waitangi Fisheries Commission (Te Ohu Kai Moana)
PO Box 3277, Wellington
Tel: (04) 499 5199; Fax: (04) 499 5190

Māori fishing rights are now being recognised.

The resources of the sea are of great importance to Māori.

Safe harbour after a stormy passage.