Strategic direction for a busy future by Judge Craig Coxhead
Customary title to waterways – Paki v Attorney-General  NZSC 118
Aboriginal Title – Tsilhqot’in v. British Columbia  SCC 44 by Professor John Borrows
Trusts – variation – Clarke v Downs – Lake Taupō Forest Trust  2014 Māori Appellate Court MB 16
Active protection - The Interim Report on the MV Rena and Motiti Island Claims (Pre-publication) (Wai 2391, 2393, 2014) by Dr Carwyn Jones
Lex Aotearoa – Hon Justice Joseph Williams delivered the most recent of our 2014 lunchtime seminars on 21 August 2014 at the Faculty of Law, Victoria University of Wellington.
Sir Edward Taihakurei Durie student essay competition 2014 – this competition is now open. Entries close on 1 October 2014.]]>
Supreme Court of New Zealand/Te Kōti Mana Nui  NZSC 118
29 August 2014
Download Paki v Attorney-General  NZSC 118 here (860 KB PDF).
The Supreme Court has dismissed an appeal about whether a part of the bed of the Waikato River was held by the Crown under fiduciary or equitable obligations for the benefit of former Māori owners of adjacent riparian lands.
The Supreme Court’s summary of the judgments in the case is available here.
The Māori Law Review will publish an article on the Court’s decision in the near future.]]>
Download the Waitangi Tribunal’s Strategic Direction 2014-2025 (16.1MB PDF) here.
In the last year the Tribunal has granted urgency to six claims, with another carried over from the previous year. Of these, one has been heard and reported on (Te Aroha Maunga), one has been partly heard and reported on (National Freshwater and Geothermal Resources), one has been heard and an interim report issued (MV Rena and Motiti Island claims), one has completed the hearing phase and a report is being prepared (Māori Wardens), one is to be heard in mid-2015 (Electoral Amendment) and others have been deferred and are not currently active (Ngāti Ruapani and Legal Aid).
While dealing with urgent claims the Tribunal continues to progress and hear historical claims. There are eight districts either in hearing or preparation for hearing. Those in the hearing phase of the inquiry process are the five districts that make up the Northland regional inquiry of Te Paparahi o Te Raki and the two districts of Te Rohe Pōtae and Porirua ki Manawatū.
There are a number of reports in the writing phase. There are also many claims still to be heard.
It is no surprise that the Tribunal is busy given, first, the cut off legislation and flood of claims following the 1 September 2008 deadline for the filing of new historical claims that resulted in a last-minute flood that more than doubled the number of claims submitted to the Tribunal; and second, increased Treaty settlements activity.
While dealing with a busy present, the Tribunal is also planning for a busy future. It has recently released its intended strategic direction for 2014-2025.
Strategic thinking is not new in planning the Tribunal’s business programme. The Chairperson of the Tribunal, Chief Judge Wilson Isaac touched on the underlying issues when he addressed a Law Society intensive seminar on the topic of the “Future of the Waitangi Tribunal”. His presentation outlined some of his thoughts on where the Tribunal is going. Further, the recent Tribunal publication “Te Manutukutuku” noted:
The Tribunal is actively preparing for a future of growing diversity, and to this end it has been developing a long-term strategic plan to outline its priorities and direction for the coming years. The last district inquires are currently in progress and will take some years to complete. Other historical claims will also require attention as the Crown and Maori move to complete historical Treaty settlements. The strategic plan will outline the future work programme when its main focus moves towards contemporary and kaupapa (non-land based) claims.
The Tribunal has inquired into many historical claims and reported on claims covering more than 80 per cent of New Zealand’s landmass. However, more than a third of registered claims still need to be dealt with. These include outstanding historical claims, kaupapa (issue-focussed) claims and contemporary claims.
While the Tribunal has been, in the main, focussed since 1985 on historical inquiries it has not forgotten the contemporary grievances, many of which now stretch back more than 20 years. A number have already been included in district Tribunal inquiries. Others have been heard in thematic inquiries on issues concerning, for example, Māori culture and identity (Wai 262) and kōhanga reo.
Since its establishment in 1975 the Tribunal has experienced many and varied changes. Changes in circumstances, along with claimant and the Crown demands, have required change. The changes have sometimes been dramatic, as with the 1985 expansion of Tribunal jurisdiction to consider historical claims back to 1840. At other times changes have been more gradual, as the Tribunal adjusts its inquiry processes to ensure that it can hear and report on the claims before it in the most meaningful, relevant and efficient manner.
While not all claimants will opt for a Tribunal inquiry, many will, and therefore many claims have yet to be fully heard. With all these claims still to be dealt with the release of the Tribunal’s strategy shows how the Tribunal intends to schedule the hearing of these claims and balance the competing needs, demands and priorities of both claimants and the Crown.
The strategy sets out how the Tribunal intends to deal with claims within both established forms of inquiry, such as the district inquiries under way, along with new pathways to hear the remaining historical claims, kaupapa claims, and contemporary claims.
The challenge for the Tribunal will be to deliver, for those who wish to be heard, a high-quality inquiry process and reports in time to add real value to the integrity of the Māori-Crown partnership.
There will be change. With the changing environment in which Treaty of Waitangi issues are addressed, the Tribunal obviously needs to respond to claimant and Crown desires, as the Tribunal has done in the past.
What is clear is, as the Chairperson of the Tribunal has stated, that the Tribunal remains committed to its core objective: to advance a Treaty-based Crown-Māori relationship and thereby sustain the political, social and cultural fabric of Aotearoa/New Zealand.
The Tribunal’s strategic direction to 2025, and associated implementation planning, will be of assistance to all those who engage with the Tribunal and its work in the changing and vibrant Treaty sector.
Download Tsilhqot’in Nation v. British Columbia  SCC 44 here.
On June 26, 2014 the Supreme Court of Canada released its decision in Tsilhqot’in Nation v. British Columbia  SCC 44. The Court ruled that the Tsilhqot’in have Aboriginal title to lands they claimed they owned and possessed from time immemorial. The Court construed Aboriginal title as a broad right to use and own land for a wide variety of purposes. It also ruled that Aboriginal title could be infringed by the Crown if it demonstrated a compelling and substantial objective and acted consistent with its fiduciary duty and upheld its honour. The Supreme Court said that the Crown had this authority because it held underlying title to the Tsilhqot’in lands and possessed jurisdictional authority over the lands pursuant to section 92 of the Canada Constitution Act, 1867 (which vests authority over property and rights in the provinces).
The decision is an important victory and a substantial loss for First Nations in Canada. The Tsilhqot’in people are now the recognized owners of the claimed territory and can use their land as they choose. At the same time the Court solidified the provincial Crown’s claim to modify or diminish these interests when it acts in a constitutionally prescribed manner. The case both diminishes and reinforces colonialism in Canada. Its laudatory and deeply problematic nature will be briefly explored in this note.
The Tsilhqot’in people are an Athapaskan speaking group who live in the central region of British Columbia. Their approximately 3000 citizens are organised in 6 bands. For the purposes of this case they claimed approximately 438,000 ha (4,380 km2) of land which was recognised and affirmed as Aboriginal title under section 35(1) of Canada’s Constitution.
The roots of the Tsilhqot’in case were planted when “[o]n June 4, 1792 Captain George Vancouver stepped ashore and claimed all of the land of what was later to become British Columbia on behalf of the British Crown” (Tsilhqot’in Nation v. British Columbia  BCSC 1700). European traders and explorers had very little contact with the Tsilhqot’in over the next fifty years. Eventually a party of British settlers attempted to unilaterally survey and settle a portion of their territory. The Tsilhqot’in blocked the construction of this road. In the process, in 1864, they killed nineteen settlers and expelled every so-called White person from their territory. While the Tsilhqot’in paid for these acts through the hanging of four of their chiefs under questionable legal proceedings, for the next one hundred years they continued to live on their territory with minimal external demands on their lands. This was the case until 1983 when Province of British Columbia granted Carrier Lumber Ltd. a forest licence to cut trees in part of their territory.
Over the next 15 years the Tsilhqot’in objected to the province’s action through blockades, negotiations and legal action. In 1998 they eventually filed an Aboriginal title claim in the courts. The case began in 2002 and resulted in a 339 day trial which led to a judgment in their favour in 2007 (Tsilhqot’in Nation v. British Columbia  BCSC 1700). Justice Vickers of the British Columbia Supreme Court, who presided over the case, held that the Tsilhqot’in people were entitled to a declaration of Aboriginal title though he refused to make the declaration for procedural reasons. Nevertheless, the 1,382 paragraph decision was favourable to the Tsilhqot’in people. It contained detailed findings concerning use, occupation and ownership of land in accordance with Tsilhqot’in legal traditions.
The trial decision was appealed to the British Columbia Court of Appeal where the Tsilhqo’tin lost. In 2012 the Court of Appeal overturned the trial judge’s decision (William v. British Columbia  BCCA 285). The Court of Appeal applied a narrower test for Aboriginal title – site-specific occupation as opposed to regular and exclusive use of wider territorial lands. It held “that the Tsilhqot’in claim to title had not been established, but left open the possibility that in the future, the Tsilhqot’in might be able to prove title to specific sites within the area claimed” (Tsilhqot’in Nation v. British Columbia  SCC 44 at ).
As noted, on June 26, 2014 the Supreme Court of Canada overturned the British Columbia Court of Appeal and granted a declaration of Aboriginal title over Tsilhqot’in land.
The Supreme Court disagreed with the legal theory underlying the Court of Appeal decision.
The Court of Appeal had ruled that the ‘nomadic’ Tsilhqot’in did not regularly and sufficiently occupy the land when the British asserted sovereignty over their lands. The Court of Appeal purported to apply the approach of an earlier Aboriginal title case which originated in Nova Scotia. In that case, called R. v. Marshall; R v. Bernard, a majority of the Supreme Court held that “[n]ot every nomadic passage or use will ground title to land. … In each case, the question is whether a degree of physical occupation or use equivalent to common law title has been made out” (R. v. Marshall; R. v. Bernard  2 S.C.R. 220,  SCC 43, at ).
In rejecting the Court of Appeal’s application of this test, the Supreme Court found the Tsilhqot’in established a sufficiency of occupation necessary to prove Aboriginal title. The Court held the Tsilhqot’in also demonstrated a continuity and exclusivity of occupation to establish their case (at -).
In coming to this conclusion the Supreme Court of Canada judged Tsilhqo’tin title by both the Aboriginal and common law perspectives (at -). Aboriginal title was thus established on a territorial basis, rather than a narrower site-by-site approach advanced by the Court of Appeal. In adopting this view the Supreme Court of Canada deferred to the trial judge’s finding of facts (at ) and wrote that there is “no suggestion in the jurisprudence or scholarship that Aboriginal title is confined to specific village sites or farms, as the Court of Appeal held” (at ).
It is worthwhile noting (though the Supreme Court never acknowledged this fact) that large portions of the Tsilhqot’in case depended upon the testimony of elders, who gave evidence on their territory, and spoke volumes about Tsilhqot’in law in their own language and in accordance with their own legal traditions. Elders’ testimony demonstrated a wide-ranging relationship with all parts of the territory which “evinces an intention on the part of the Aboriginal group to hold or possess the land in a manner comparable to what would be required to establish title at common law.” (at ). The significance of the case’s evidentiary foundation certainly lends credence to the ongoing importance of Indigenous peoples’ own legal processes and substantive views as one of the pillars of Canadian law.
Having recognised that the Tsilhqot’in people possess Aboriginal title, the Supreme Court explained which rights were conferred through a broader recognition of Aboriginal title. The Court wrote that the rights which flow from Aboriginal title are very broad. Since Tsilhqot’in title arose prior to European sovereignty the Court called it an independent legal interest (meaning it was not created by the Crown or Courts). They also noted that Aboriginal title is also a:
right to exclusive use and occupation of the land . . . for a variety of purposes, not confined to traditional or “distinctive” uses… In other words, Aboriginal title is a beneficial interest in the land… In simple terms, the title holders have the right to the benefits associated with the land — to use it, enjoy it and profit from its economic development. (at ).
Furthermore, the Supreme Court of Canada held that the Crown does not retain any beneficial interest on Aboriginal title lands (at ). First Nations who have title can use their lands as they choose, subject to two limits: 1) Aboriginal title cannot be alienated except to the Crown; 2) nor can it be encumbered, developed or misused in ways that would prevent future generations of the group from using and enjoying it (at ). Despite these limits the Court recognized that Tsilhqot’in land use is not “confined to the uses and customs of pre-sovereignty times; like other land-owners, Aboriginal title holders of modern times can use their land in modern ways, if that is their choice (at ). As a result the Tsilhqot’in now have a measure of control over their land which is largely akin to (though not exactly like) fee simple ownership. As the Court wrote:
Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land. (at ).
Furthermore, Tsilhqot’in title also imposes significant limits on the Crown’s underlying title. The Court wrote that “Crown title…is burdened by the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival” (at ). Additionally, the “content of the Crown’s underlying title is what is left when Aboriginal title is subtracted from it” (at ). These are substantial subtractions from the Crown’s estate. These limits substantially reduce the ability of the Crown to control, use or benefit from land subject to Aboriginal title. However, the Crown still has a paramount legal interest in Aboriginal title lands. This is where the judgment becomes more problematic when considering whether the court has rejected the doctrine of discovery.
In writing its opinion the Supreme Court of Canada purported to refute the application of the doctrine of terra nullius in Canada. It wrote: ““[t]he doctrine of terra nullius (that no one owned the land prior to European assertion of sovereignty) never applied in Canada” (at ). Unfortunately the Court reproduced and reaffirmed one of the most troubling aspects of terra nullius in the very same paragraph. The Court wrote: “At the time of assertion of European sovereignty, the Crown acquired radical or underlying title to all the land in the province.” This formulation is a restatement of the doctrine of terra nullius despite protestations to the contrary in the decision. The Court presupposes that Aboriginal land is legally vacant for the purposes of underlying title and overarching governance. Despite the Court’s attempt to reject terra nullius the Court gives the Crown governance and use rights over Aboriginal lands by virtue of their assertions of sovereignty.
There is no explicit justification in the decision for why the Crown and not the Tsilhqot’in have underlying title to the land. The Tsilhqot’in people are its rightful, prior and present owners, as the Supreme Court now acknowledges. Furthermore, they have owned this land from time immemorial. It ‘does not make sense’ to vest rights possessed by Indigenous peoples in other peoples through the mere act of assertion (see John Borrows, “Sovereignty’s Alchemy: An Analysis of Delgamuukw v. the Queen” (1999) 37 Osgoode Hall Law Journal 537). It requires a discriminatory denigration of Indigenous peoples’ laws and life-ways to hold that Indigenous title and governance is subject to non-Indigenous paramount interests as a by-product of European sovereign assertions. This is what the Supreme Court of Canada has done in the Tsilhqot’in decision. Despite the many positive aspects of the case in the Tsilhqot’in decision, Aboriginal title is still a “burden on the underlying title asserted by the Crown at sovereignty” (at ). Terra nullius, though modified by this case, is very much alive and well in Canada.
The implications of the Supreme Court’s application of terra nullius assumptions are at least three-fold.
First, the Court is quite clear that Aboriginal title can be infringed or diminished as a result of the Crown’s superior position. As noted the Crown’s paramount status gives the government a right to encroach on Aboriginal title, and not the other way around: Aboriginal peoples have no right to unilaterally diminish constitutionally vested title or impede Crown interests.
Second, the subordinate nature of Aboriginal title and the continued application of the doctrine of discovery is evident in the fact that Tsilhqot’in title is not assumed to exist in the same way that Crown sovereignty and its underlying title are assumed to exist. Unlike Crown title, Aboriginal title must be established by the Court or through agreement with the Crown. 1 This is often a difficult process. There are not many avenues to achieving recognition that are costless for First Nations. Throughout the opinion the All PostsCourt makes the distinction between established or confirmed title on the one hand, and unproven title on the other. (see , , , , , , , , , , -, -, - for references to established/confirmed and ,  for references to unproven title). The fact that Aboriginal title will require some official recognition process signals one of the greatest challenges for Indigenous groups flowing from the Tsilhqot’in decision. The Crown and Courts have the upper hand in the recognition process. Court cases cost millions of dollars each, and First Nations do not have this kind of money available to them. For example, the Tsilhqot’In case was a publically funded test case which allegedly cost over $40,000,000 to bring to a successful conclusion. The next case will not fall into such a category and thus public funding would not be available to bankroll it. The cost of litigation will place a court-ordered declaration of Aboriginal title beyond the reach of most groups. Furthermore, the 20 year old treaty process in British Columbia has been a dismal failure for First Nations, making it unlikely they would secure recognition of title under this process, at least as currently constituted.
Third, the Supreme Court demonstrated a terra nullius approach to Aboriginal rights in the Tsilhqo’tin case when it failed to give attention to Tsilhqot’in jurisdiction over the land flowing from their ancient occupation. Instead the Supreme Court allowed provincial laws of general application to govern Tsilhqot’in lands (at ). It said a legal vacuum would exist in Canadian law if provincial law did not apply to Aboriginal lands (at ). The Court’s conclusion cuts against a two hundred and fifty year-old constitutional principle first outlined in the Royal Proclamation of 1763, and accepted by many First Nations in central Canada in the 1764 Treaty of Niagara. The Royal Proclamation and 250 years of Canadian law, as affirmed in section 91(24) of the Constitution Act, 1867, interposed a more distant imperial or federal power between First Nations and colonial/state/local/provincial governments. The exclusion of the provinces for dealing with First Nations was one of the few checks and balances Indigenous peoples enjoyed under Canadian law throughout history. While the 13 former American Colonies rebelled against this principle in the American War of Independence, governments north of the border have largely upheld the Proclamation and Treaty of Niagara’s principles – that is until June 26, 2014 when the Tsilhqot’in decision was released. With the Tislhqot’in decision the Supreme Court of Canada has overturned First Nations’ Magna Carta (Calder. V. A.G.B.C (1973), 34 D.L.R. (3d) 145,  S.C.R. 313.). The Court has now substituted a justificatory process which provinces (and the federal government) must follow in infringing Aboriginal title; the provinces with all their incentives to derive benefit from Indigenous lands are now fully vested with such authority.
While Indigenous peoples now have the possibility of owning and using lands in British Columbia for a wide variety of purposes, the Crown still retains underlying title and paramount sovereign authority over these lands by virtue of the Tsilhqot’in decision. These propositions are the echo and remnants of terra nullius. Crown power can be directly traced to discriminatory assumptions rooted in European sovereign assertions when the Crown ‘discovered’ Canada.
At the same time the decision has very positive implications for Indigenous peoples in the broader context of the dispossession they have encountered. Tsilhqo’tin people now own and control their land in the claim area and can use it for a wide variety of purposes. A broad array of remedies exists to enforce that interest, including: injunctions, damages, and orders for the Crown to engage in proper consultation and accommodation of Aboriginal title. They can also bring legal suits to secure all the usual remedies for a breach of land rights, as long as they are adapted to the special nature of Aboriginal peoples’ relationship to land. The Court even suggested it might even cancel provincial projects if governments did not properly discharge their duties to First Nations at earlier points in their dealings (at ). These are significant remedies which exist much more clearly as a result of the Tsilhqot’in case.
At the same time the Supreme Court of Canada assumed away Indigenous peoples’ underlying title and overarching governance powers in the Tsilhqot’in decision. While a future decision might recognise Indigenous governance power there is now a new obstacle for future actions to address: the presumptive application of provincial laws of general application to Indigenous lands. This obstacle is present courtesy of the application of a troublingly modified terra nullius assumption. While Canadian governmental privileges are gained through an inequitable fiction, provincial and federal power will nevertheless continue to frame and constrain Indigenous land use and governance throughout the land. The case demonstrates how Canada remains a deeply colonial state built on the vilest of discriminatory tenets. Despite the real and substantial cause for cheering which accompanies the Tsilhqot’in decision, much work remains to be done.
Trustee conflicts of interest – Naera v Fenwick  NZSC 58
Judicial review – unlawful delegation of Waitangi Tribunal decisions – Baker v Waitangi Tribunal  NZHC 1176 by Leo H Watson
Judicial review – use of land in a Treaty settlement – Ririnui v Landcorp Farming Limited and others  NZHC 1128 by Leo H Watson
Injunctions – Taueki v Horowhenua Sailing Club – Horowhenua 11 (Lake) Block  Māori Appellate Court MB 60 by Craig Linkhorn
Māori in the seafood sector (fisheries and aquaculture) – the year in review by Justine Inns
Constitutional development and decolonisation in the South Pacific – Professor Tony Angelo from Victoria University of Wellington will deliver the next of our 2014 lunchtime seminars on 31 July 2014 at the Faculty of Law, Victoria University of Wellington.
Download the Māori Law Review July 2014 (496 KB PDF).]]>
Judicial review – use of land in a Treaty settlement – Ririnui v Landcorp Farming Limited and others  NZHC 1128 by Leo H Watson
Māori in the seafood sector (fisheries and aquaculture) – the year in review by Justine Inns
Download the Māori Law Review June 2014 (480 KB PDF).]]>
Commercial seafood production accounts for around 3.5% of New Zealand’s total national exports, and the Ministry for Primary Industries has estimated $1.51 billion in seafood export earnings for the year ended June 2013. 1 Export markets are diverse, but China has become the sector’s largest single export market in recent years, accounting for more than 20% of earnings and certain to increase in importance for some time yet.
This level of earnings is fairly static compared with preceding years, but seafood export earnings are forecast to increase by an annual average of 4.5%, rising to $1.8 billion by 2016/17. This prediction is based primarily on achieving higher prices and assumes only modest increases in the volume of wild capture and aquaculture that will be exported over the period.
The export volume of wild capture fisheries is only expected to increase by 0.2% per annum, with growth coming from fish stocks that have completed rebuild programmes, and may have higher catch limits set to increase use. It is generally accepted that there is little potential for further growth in wild capture production beyond this.
It is therefore essential to develop new and higher-priced products and markets in order to increase export revenue. Research initiatives, such as the Precision Seafood Harvesting programme, 2 are seen as key to increasing the value of seafood products. The programme began in April 2012 and is focused on developing new harvesting technology to land fish fresher and in better condition. It is jointly funded to the tune of $52 million (over six years) by the country’s three largest fishing companies: iwi-owned Aotearoa Fisheries Limited (AFL), the Sealord Group, and Sanford, as well as the Government’s Primary Growth Partnerships (PGP) fund.
Overall financial results for AFL for the year ended 30 September 2013 are mixed. AFL’s own operations, focused on inshore fishing, pāua, kōura (crayfish), and farming of Pacific Oysters (through its Pacific Marine Farms subsidiary) performed strongly, reporting a gross profit of $14 million; $2 million more than the previous year and 7% above budget.
However, once AFL’s 50% share in Sealord Group was factored in, the picture became less rosy, with Sealord reporting a total loss of $46 million. As a result, AFL reported an overall loss of $6 million, its first loss since the company was formed in 2004. The Māori Fisheries Act 2004 (MFA04) requires AFL to distribute 40% of its net profit to iwi, by way of a dividend. Unsurprisingly, AFL was unable to pay in 2013.
The Sealord loss resulted from the disposal of its interests in Argentinian company, Yuken, after several years of loss on the investment. This was due in part to rampant inflation in Argentina increasing fishing costs by as much as 75% per annum. Low local catches of squid, Southern Blue Whiting, and other pelagic species also contributed to the loss, though total catch across all species exceeded expectation.
In October 2013, AFL, Sealord and Te Ohu Kaimoana (Te Ohu) collaborated to purchase key assets of Auckland-based Anton’s Seafoods Limited, including a large processing facility and a significant package of quota, particularly in the Orange Roughy fishery. The quota package was shared 50/50 between Sealord on the one hand, and AFL and Te Ohu on the other, with the latter package recently offered for sale to iwi wishing to partner with Sealord for a more active involvement in the industry.
Aquaculture comprises only 17% of total seafood exports and suffered declines in both volume and value for the year ended June 2013, although the value of exports from this sector is forecast to increase by an annual average of 6% over the next 3-4 years.
Mussels, oysters and salmon are the three main species farmed in New Zealand, with green-lipped mussels accounting for around three-quarters of the sector’s earnings. Mussels suffered a decline in export volume for a number of reasons, including La Niña weather conditions and drought, while the availability and quality of mussel spat has increasingly constrained development. Another PGP-funded project, SpatNZ, is attempting to address this issue through selective breeding of spat in hatchery conditions. 3
Oyster farmers continue the slow process of recovery from the OsHV-1 virus that hit farms in Northland in 2010, causing the loss of up to 80% of juvenile oysters on some farms, with level of production remaining well below historic highs. This appears to be a worldwide issue, with decreased international production similarly attributable to disease issues. Reduced international supply and strong demand raised export prices, largely offsetting lower volumes.
Similar issues with global salmon supply since 2009 have seen demand for New Zealand-farmed salmon grow strongly. The gruelling experience of The New Zealand King Salmon Company, New Zealand’s largest salmon farmer, in applying for consent to significantly increase their number of farm sites in the Marlborough Sounds (see below), has resulted in some pessimism about the capacity of the sector to expand.
Sadly, late 2013 saw the demise of one of New Zealand’s largest mussel farming companies. Greenshell New Zealand, which had been named Food and Beverage Exporter of the Year by industry group ExportNZ only months earlier, was placed in receivership by its bankers. Iwi-owned mussel farms in the Hauraki Gulf that had been involved in joint ventures with Greenshell were impacted by this receivership, and the ultimate purchase of the bulk of the company’s assets by Sanford marked another stage in the continuing consolidation of the aquaculture industry by a small number of large, vertically-integrated companies.
The Fisheries (Foreign Charter Vessels and Other Matters) Amendment Bill continued its slow progress through Parliament in 2013-14. The Bill, introduced in February 2013, is the Government’s response to concerns about employment conditions of crew on foreign-owned and operated vessels chartered by New Zealand companies to fish in New Zealand waters. The primary objective of the Bill is to require all vessels fishing in New Zealand waters after 1 May 2016 to be ‘New Zealand-flagged’ (registered under the Ship Registration Act 1992). In addition, the Bill would significantly expand the role of the Chief Executive of the Ministry for Primary Industries (MPI), through new powers and discretions to refuse, suspend, cancel, or place conditions on the registration of vessels under s 103 of the Fisheries Act 1996 (FA96).
The Bill prompted concern that these measures would adversely impact the value of the Fisheries Settlement quota owned by iwi. It was feared that the policy would result in a reduction in the total number of ships in the deepwater fleet (reducing competition to purchase ACE), increased compliance costs and decreased certainty, which would discourage investment. An Iwi Leaders’ Group (ILG) was convened to engage with the Government. While strongly committed to fair employment practices and to maintaining New Zealand’s international reputation, the ILG sought to ameliorate the potential negative impacts of the Government policy.
It seemed that these concerns had been heard and addressed, at least to some extent, when the Primary Production Select Committee reported the Bill back to Parliament on 25 July 2013. 4 The Committee recommended a number of amendments to constrain the powers of the Chief Executive of MPI, by limiting their application to foreign-owned vessels, adding provision for a review and appeals process for those parties affected by a suspension, and removing the power to cancel registration.
The Select Committee considered, but ultimately rejected, industry submissions (supported by the ILG) that advocated an alternative to the re-flagging policy that would see all vessels in New Zealand waters legally “deemed” to be operating under New Zealand jurisdiction. This alternative was seen as a means of achieving the Government’s objectives, while reducing the risk that vessels from some countries would be unable to re-flag to New Zealand as a result of domestic legal complications.
The Committee did, however, recognise the need to introduce some flexibility in certain circumstances and recommended the addition of provisions for exemptions to the re-flagging requirement where the Chief Executive of MPI considered an exemption would be in New Zealand’s interest, the vessel would come under sufficient local control and:
In respect of the settlement quota exemption, the Select Committee report included the extraordinary statement that:
The committee received amendments immediately prior to deliberation. Unusually the committee did not receive written departmental advice pertaining to these amendments. Acting on reliance on the oral advice we received from officials we have recorded below our questions and their responses.
We were concerned that unless clearly defined, that clause could result in operators with only a relatively small proportion of Annual Catch Entitlement (ACE) derived from settlement quota, or those that might seek to acquire a settlement quota could seek to qualify for an exemption beyond the intent of the Act.
We note that the exemption is limited to ACE held on 30 April 2012, which effectively means the holdings cannot be manipulated post implementation of the Act.
We note that settlement quota is only quota defined as such in the Act and the Maori Fisheries Act.
It appears that the Committee’s recommendation of an amendment to provide for a limited ‘settlement quota’ exemption came as a result of a very late recommendation by officials from MPI. It seemed surprising, therefore, that the Minister apparently distanced himself from the recommended amendment within hours of the Select Committee report being tabled in Parliament, with media reporting that “he had some concerns and would be seeking further advice.” 5 The issue soon saw the Government caught between its support parties, with the Māori Party refusing to support the Bill if the settlement exemption was removed. This saw the Bill languish low on the Order Paper for many months.
When the Bill received its Second Reading on 15 April 2014, the Minister (in a speech read on his behalf by the Associate Minister, Hon. Jo Goodhew), 6 announced that it was the Government’s intention to remove three of the four exemptions recommended by the Select Committee, leaving scope for foreign-flagged vessels to be used only for fisheries-related research approved by the Chief Executive of MPI.
It is likely that the Bill will be passed prior to the 2014 election in the form proposed by the Government, making changes in the make-up and control of the deepwater fishing fleet almost inevitable in the lead-up to the May 2016 implementation date.
A recent decision of the Court of Appeal underlined the fact that chartering vessels to fish in New Zealand is far from a risk-free proposition for foreign owners. In The Ministry for Primary Industries and another v Sajo Oyang Corporation and others  NZCA 46, the Court considered who had standing on the question of whether there existed “special reasons relating to the offence,” such that the Court should order that forfeiture of a vessel or other property not occur. Virtually all serious offences under the FA96 include, as a mandatory penalty, forfeiture of property used in the commission of the offence. Such forfeiture is an automatic consequence of conviction unless “the Court for special reasons relating to the offence orders otherwise.” 7 In the situation from which the Sajo Oyang case arose, officers operating the vessel in question had been charged and convicted of serious offences involving the illegal discarding of fish. Before convictions were entered (on one of the officer’s convictions at least), the vessel’s Korean owner, Sajo Oyang Corporation, and New Zealand charterer, Southern Storm Fishing (2007) Ltd, sought to intervene and put evidence before the Court in an effort to persuade it that special reasons existed, such that forfeiture should not occur. As the Court of Appeal noted ( NZCA 46 at ):
Prior to the present case, it appears that the issue for determination has not been the subject of detailed consideration by the higher courts. The probable reason is that, until recently, the Ministry has not objected to third parties making representations to the Court under the special circumstances exemption.
Judge Saunders, in the District Court at Christchurch, declined the owner and charterer leave to appear, a decision that was subsequently set aside in the High Court by Dobson J on judicial review. The Court of Appeal summarised Dobson J’s reasoning for finding that the District Court had erred at :
Dobson J concluded that the first and second respondents ought not to have been precluded from addressing the Court on the special reasons exception. He saw a distinction between the “core elements” of the criminal proceedings which he viewed as involving determination of whether the charges were established, and the consideration of the appropriate penalties including forfeiture. It would, the Judge said, be inconsistent with the right to natural justice recognised by s 27 of the New Zealand Bill of Rights Act 1990, and more generally with minimum standards of fairness, to deny standing to non-parties to criminal proceedings who have an interest in preserving property that is vulnerable to forfeiture. He noted the concession made on behalf of the Ministry that the requirement to establish manifest injustice on an application for relief from forfeiture under s 256 is materially more difficult for an owner of property than establishing special reasons for non-forfeiture under s 255C. He concluded that the right to natural justice could not properly be vindicated by the opportunity to be heard on a later application for relief against forfeiture.
The Crown succeeded in having Dobson J’s decision overturned by the Court of Appeal, with the higher court ruling that a non-defendant owner had no standing on the issue, being particularly swayed by the need to protect the fair trial rights of the defendant ( NZCA 46 at ):
Another important contextual factor relevant to the contention of fairness is that the third party’s rights ought not to trump or conflict with those of the defendant in criminal proceedings. We have concerns that the defendant’s rights to a fair trial under s 25 of the New Zealand Bill of Rights Act could be compromised by the intervention of a third party at the stage the court is considering the special circumstances exception.
The Supreme Court subsequently refused leave to appeal the Court of Appeal decision. 8
The deepwater fisheries sector has also had to grapple with the implementation of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (the EEZ Act) over the past few months, after regulations were promulgated defining activities that would be permitted under the EEZ Act and those for which a marine consent could be sought on a non-notified basis. 9 Applications to the Environmental Protection Agency (EPA) for consent to carry out seabed mining activities have caused consternation for fishing interests.
An application by Trans-Tasman Resources Ltd was made to undertake an iron sand mining project in an area covering 65.76km2 in the South Taranaki Bight, 22 to 36km offshore from Patea. The proposal was for excavation of up to 50 million tonnes of seabed material per annum for a term of 20 years, with the excavated material taken aboard a processing vessel, where iron sand would be extracted and other material (around 45 million tonnes per year) returned to the seabed. Fishing interests, including iwi, expressed intense concern about the application and the proposal’s potential effect on aquatic habitats. 10
Hearings concluded on 19 May 2014. The decision-making committee of the EPA issued its decision on 18 June 2014. Marine consent was declined. 11 Trans-Tasman Resources Ltd has appealed from that decision.
The application by Chatham Rock Phosphate Ltd to mine phosphate nodules from the Chatham Rise is perhaps even more ambitious. The permit would initially cover an 820km2 area, but could potentially extend over as much as 10,192km2 depending on monitoring results and environmental investigations. At least 30km2 of seabed would be targeted annually, with the company having an annual minimum production target of 1.5 million tonnes of phosphate nodules. The application was lodged on 14 May 2014 and its completeness (in terms of s 39 of the EEZ Act) is currently being assessed by the EPA. 12
Even at this early stage in the process, fishing interests have expressed concern with the application, drawing particular attention to the anomaly that allows the potential for mining activities to be conducted in Benthic Protection Areas (BPAs) created under fisheries legislation. 13 The BPAs were created in 2007 at the instigation of the fishing industry and were designed to protect representative and untouched ocean biodiversity on the seafloor. Fishing within BPAs is closely monitored and methods that could damage the seabed are prohibited within them. While the logic of the fishing industry position has force, it is difficult to see how this anomalous position could be resolved without legislation.
The tragic loss in March 2012 of the Easy Rider and eight of the nine people aboard sent shockwaves through the close-knit Tītī (Muttonbird) Island community of Murihiku (Southland). The Easy Rider was a small fishing vessel owned by AZ1 Enterprises Ltd, and was on a voyage transporting passengers and equipment to the Tītī Islands when it was lost. The sole shareholder and director of that company was Gloria Davis, the partner of the vessel’s skipper, Rewai Karetai.
On 18 March 2014, Ms Davis and the company were each convicted of:
The company was recently sentenced to fines totalling $204,500, and Ms Davis to a $3,000 fine and 350 hours of community service.
Ms Davis, who defended herself, argued that the voyage in question was not a commercial one and that the standards applied to it by Maritime New Zealand failed to take into account the Easy Rider’s “multi-functional” purpose. While the decision refers to submissions that the voyage in question was for ‘recreational’ purposes or a ‘pleasure voyage’, submissions made to the Court by the Rakiura Hananui Whanauka Incorporation o Mamoe, expressing concern that the outcome of the decision might affect the right of Rakiura Māori to participate in the annual tītī harvest, indicate that the relationship between voyages such as this and the exercise of customary rights was in many minds.
More broadly, the decision has served as a sobering reminder to many other ‘mum and dad’ fishing operations of the very real exposure of family members who are principals in name only, but who can very easily be left facing the legal consequences for the errors of others.
Iwi attention is increasingly turning to the upcoming review of entities established under the MFA04, with Mandated Iwi Organisations (MIOs) and other entities being called upon to appoint a Committee of Representatives by 21 May 2014. The role of the Committee of Representatives will be to set the Terms of Reference for the review, appoint the reviewer, receive the report of the review, and distribute the report to MIOs and the entities under review.
Provision for a review was included in the Act largely as a result of lingering iwi discomfort with the way in which the debate over allocation of fisheries resources had been resolved. The scope, requirements, and procedure for the review is set out in Part 2, Subpart 6 of the MFA04, which requires the review to be completed by the end of the 11th year after the MFA04’s commencement.
The entities to be reviewed are:
The scope of the review, as prescribed in s 122 of the MFA04, is to consider and report on:
There are, however, a number of restrictions placed on the recommendations the reviewer can make (MFA04 s 124):
Once appointed, the reviewer has six months to conduct the review, after which its findings and recommendations are distributed to the entities reviewed and MIOs. Each entity under review may prepare a plan specifying the actions it intends to take to address the findings and recommendations of the reviewer, with that plan also being distributed to Te Ohu and MIOs.
MIOs may resolve to adopt all or some of the reviewer’s recommendations, or all or part of any plan, or amend and adopt any of those recommendations or plans, with such resolution being binding only if supported by 75% of MIOs representing at least 50% of the total notional population of all iwi combined (as set out in the MFA04).
Meanwhile, it is business as usual for Te Ohu, with only two of the 57 iwi or iwi groupings recognised under the MFA04 yet to establish MIOs that are entitled to receive and manage their share of Fisheries Settlement assets. In addition, further progress has been made in concluding coastline agreements between iwi as a pre-condition to the allocation of inshore quota. 15
Implementation of the Fisheries (Kaimoana Customary Fishing) Regulations 1998 (in respect of the North Island) and the Fisheries (South Island Customary Fishing) Regulations 1999 continues, with just over 400 tāngata tiaki/kaitiaki (including two committees) appointed under the Kaimoana Regulations. Under the South Island regulations, a total of 140 tāngata tiaki/kaitiaki are appointed to manage general customary food-gathering areas and a further 13 appointed to manage mahinga mātaitai/mātaitai reserves.
Customary fishing regulations received attention from the Court of Appeal recently in the case of Tapsell v R  NZCA 122. The case involved an appeal from a sentence for convictions arising from illegal fishing, conducted on the basis of fraudulently obtained and misused authorisations issued under the regulations. After being convicted of 15 charges relating to commercial dealing in between 395kg and 526kg (meat weight) of pāua between May 2010 and March 2011, the appellant had been sentenced to four years’ imprisonment, with a minimum sentence of two years (at -).
The Court of Appeal decision has become one of the leading authorities on sentencing principles as they apply to offences under the FA96, particularly with respect to the relationship between sentencing and the forfeiture of property used in the commission of the offence (in this case motor vehicles, a small boat and other property, to an estimated total value of $5,000). While the Court ultimately determined that the appeal should be allowed and substituted a sentence of three years, two months (quashing the minimum sentence), it recognised the context of the customary fisheries regime as a significant factor in sentencing ( NZCA 122 at ):
The second factor is the effect of the offending on the overall scheme of fisheries control imposed by the Act. The special relationship between tangata whenua and places of importance for customary food gathering are expressly recognised in the Act. Section 186 enables regulations to be made regulating customary fishing. The Fisheries (Kaimoana Customary Fishing) Regulations 1998 [sic 16.], created pursuant to s 186, give effect to this special relationship. The regulations give a considerable measure of autonomy to those responsible for the issuing of customary authorisations. That level of autonomy carries with it a responsibility to exercise the power to authorise customary taking in a way which meets the legitimate needs and expectations of persons entitled to invoke customary rights, while maintaining the integrity of the fisheries regime, and recognising the legitimate rights and expectations of other participants in other aspects of that regime. Any abuse of the customary authorisation process is accordingly to be viewed as a potential threat to the proper administration of the fisheries regime. For this reason, the appellant’s fraud in obtaining special privileges to which he was not entitled, perpetrated against the Tangata Tiaki by whom the authorisations were issued, adds significantly to the culpability of the commercial taking of paua offending.
The network of mātaitai reserves expanded slightly (from 29 to 30, with a handful of others approved by the Minister and yet to be Gazetted) in the course of 2012-13.
Meanwhile, iwi continue to pursue innovative and collaborative means of exercising their rights and responsibilities as kaitiaki. The Kaikōura (Te Tai-o-Marokura) Marine Management Bill, introduced to Parliament on 17 March 2014,is the most recent example of this approach. The Bill would establish a suite of marine management measures over the Kaikōura coastline, including a marine reserve, whale, and fur seal sanctuaries, taiāpure, mātaitai, and regulations for recreational fishing regulations. It would also establish a local advisory committee, comprising iwi and community representatives, and representatives of environmental, tourism, and fishing interests.
The Bill had its genesis in the Kaikōura Marine Strategy 2012, 17 which resulted from seven years of effort by Te Korowai o Te Tai o Marokura (the Kaikōura Coastal Marine Guardians). Te Korowai encompassed iwi and representatives from the community and marine industries and developed the strategy as a vision for the area after reaching a consensus on how the coastal and marine environment of the area should be managed. Te Korowai described this as a “gifts and gains” process, where each stakeholder group gifted concessions “to sustain the integrity of the whole resource for the future.”
The influence of Ngāi Tahu hapū Ngāti Kurī’s perspectives on kaitiakitanga are apparent in the vision agreed by Te Korowai, as described in the Explanatory Note to the Bill:
Te Korowai’s vision is that, by perpetuating the mauri and wairua of Te Tai-o-Marokura, the Kaikoura community, as kaitiaki of Tangaroa’s taonga, is sustaining a flourishing, rich, and healthy environment where opportunities abound to sustain the needs of present and future generations. Te Korowai’s core objectives for seeking integrated management of this area are that—
- traditional fishing areas of special significance to Ngati Kuri are restored and maintained and traditional knowledge and customs are utilised to protect the fisheries of Te Tai-o-Marokura;
- the marine treasures of Te Tai-o-Marokura are protected so that future generations can experience the area as it is today;
- there are abundant fish, aquatic life, and seaweed in Te Tai-o-Marokura for present and future generations;
- the quality of the coastal and marine environment of Te Tai-o-Marokura is sustained.
The Bill is currently being considered by the Local Government and Environment Select Committee, which is due to report back to Parliament by 20 September 2014. The Minister of Conservation has expressed confidence that the Bill will be passed before the end of the year, so that the measures can come into effect in 2015. 18
In March 2014, the continuing implementation of iwi-driven fisheries management regimes was exemplified when the first set of bylaws was approved under the Waikato-Tainui (Waikato River Fisheries) Regulations 2011, (promulgated pursuant to s 186 of the FA96 and s 93 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010). The bylaws would apply certain traditional management practices to commercial eel fishing, by imposing:
Continuing litigation has dominated the aquaculture legal scene over the past year, in respect to applications by The New Zealand King Salmon Company Ltd (NZKS) to expand its operations in the Marlborough Sounds. NZKS had applied for consent to farm nine new sites, only one of which was in an area where salmon farming was permitted under the Marlborough Sounds Resource Management Plan.
The Board of Inquiry, appointed by the Minister for the Environment to consider and determine the applications (the Board), released its final decision on 22 February 2013, which allowed the plan change and consented to applications for four of the sites, declining the remaining five applications. The Board’s decision was appealed by the Environmental Defence Society Inc (EDS) and Sustain Our Sounds Inc (SOS), and the subsequent High Court decision was further appealed to the Supreme Court. The Supreme Court’s decisions on the appeals were issued on 17 April 2014. 19
The Supreme Court dismissed the appeal by SOS 20, upholding the EDS appeal which related to only one of the four sites approved by the Board. The decision is seen as having far-reaching implications for aquaculture and other coastal developments.
The EDS appeal focused on concurrent plan change and consent applications for a site at Papatua in Port Gore. The Board had found that the proposed farm would have significant adverse effects on the outstanding natural character and landscape of the area and would not comply with policies 13(1)(a) and 15(1)(a) of the New Zealand Coastal Policy Statement (NZCPS). Those policies require persons exercising functions and powers under the Resource Management Act 1991 (RMA) to:
Notwithstanding this finding, the Board approved the plan change for the Papatua site on the basis that it was required to give effect to the NZCPS “as a whole” 22, including objectives and policies supportive of aquaculture and appropriate economic development in general.
The Supreme Court rejected the ‘overall judgment’ approach adopted by the Board, noting: 23
A danger of the “overall judgment” approach is that decision-makers may conclude too readily that there is a conflict between particular policies and prefer one over another, rather than making a thoroughgoing attempt to find a way to reconcile them.
The Court took a different view on the fundamental question of the how the provisions of the NZCPS should be applied, finding: 24
Give effect to” simply means “implement”. On the face of it, it is a strong directive, creating a firm obligation on the part of those subject to it.
And ( NZSC 38 at ):
…we consider that “avoid” has its ordinary meaning of “not allow” or “prevent the occurrence of”. In the sequence “avoiding, remedying, or mitigating any adverse effects of activities on the environment” in s 5(2)(c) [of the RMA], for example, it is difficult to see that “avoid” could sensibly bear any other meaning. Similarly in relation to policies 13(1)(a) and (b) and 15(a) and (b) [of the NZCPS], which also juxtapose the words “avoid”, “remedy” and “mitigate”.
And, to the extent that the relevant NZCPS refers to the need to preserve the natural character of the coastal environment and protect natural features and natural landscapes by avoiding “inappropriate” use and development ( NZSC 38 at ):
We consider that where the term “inappropriate” is used in the context of protecting areas from inappropriate subdivision, use or development, the natural meaning is that “inappropriateness” should be assessed by reference to what it is that is sought to be protected.
The decision will almost certainly have an impact on proposals to establish new aquaculture operations adjacent to outstanding natural features, or areas of outstanding natural landscape or outstanding natural character. Of particular concern to the industry is the fact that this decision will almost certainly impact on ‘renewal’ 25 of consents for operational farms in such areas, unless plan rules designate those farms as controlled activities such that consent cannot be declined. 26 Regional councils are required to progressively amend their Regional Coastal Plans to give effect to the NZCPS (under s 67(3) of the RMA). Until then, they are only required to have regard for the NZCPS, along with a number of other matters (s 104 of the RMA). Therefore, the full impact of the NZKS decision will not be felt until councils seek to amend their plans.
In a decision released within a week of the NZKS decision, the Environment Court confirmed the grant of resource consents for a proposed 70ha mussel farm on the western coast of Stephenson Island in Northland’s Whangaroa Bay. 27 While both the applicable District Plan and the proposed regional policy statement (RPS) classified Stephenson Island as an outstanding natural landscape, neither the operative RPS nor regional coastal plan did so. 28 The Environment Court therefore formed its own view of the landscape in question, on the basis of expert evidence presented to it and reached the conclusion: 29
The evidence before us must be said to demonstrate that the islands concerned are not an outstanding natural landscape or feature. They do not exhibit outstanding natural character or qualities. The imperatives of … Policies 13 and 15 of the NZCPS are therefore not triggered, particularly when proper consideration is given to the context of what might or might not be “inappropriate” in the context of the analysis of the present landscape in terms of them.
While deftly avoiding the need to grapple with the impacts of the NZKS decision, the Environment Court did place considerable weight on the potential economic benefits of the proposed marine farm, in light of the significant economic disadvantage suffered in the region 30 and the fact that Stephenson Island is administered by the Ririwha Ahu Whenua Trust, on behalf of over 500 beneficial owners. The Trust was to be a 50% partner in the mussel farm applied for, and gave evidence of the economic and cultural benefits that the farm would provide, including generating income to support the Trust’s ecological restoration projects. 31
The Māori Commercial Aquaculture Claims Settlement Act 2004 (the MCACSA) gave statutory recognition to iwi claims in respect of:
Law changes in 2011 scrapped the AMA concept and went back to managing applications for aquaculture space on a ‘first come, first served’ basis. Amendments to the MCACSA as part of the2011 reform package preserved the original iwi entitlement to 20% of new space in principle, but introduced new mechanisms for delivery of that entitlement, with the emphasis on tailored regional agreements between Iwi Aquaculture Organisations (IAOs) and the Crown. Regional agreements operate on the basis of regional council boundaries and must include all IAOs with coastal interests in the relevant region. They must also provide for redress based on the level and type of anticipated new aquaculture development in the region, not just ‘new space’ that has already been granted a resource consent.
While the great majority of entitlements in respect of pre-commencement space have now been addressed, focus turned to new space entitlements in the course of 2013, as a result of statutory timeframes for concluding regional agreements. The MCACSA requires the Crown to use its best endeavours to conclude regional agreements within two-tier timeframes:
Section 11(4) of the MCACSA allows the Minister responsible for Aquaculture (currently the Minister for Primary Industries) to extend these periods one or more times, provided that she or he is satisfied, after consultation with affected IAOs and Te Ohu, that reasonable steps have been taken to progress a regional agreement and that the proposed extension is likely to enable an agreement to be entered into. In September 2013, after consulting IAOs in the four priority regions, the Minister extended the period for negotiation of agreements, with respect to those regions, to 30 June 2014.
In addition, relevant resource consent applications were made in the Auckland, Waikato west, and Canterbury regions prior to 30 September 2012, meaning that the current negotiation period for those regions concludes on 30 September 2014. More recent applications in the Chatham Islands and the Southland region mean that the negotiation period for those regions will end during 2015. For all other regions, the negotiation period will not commence until two years after first new resource consent applications have been made for aquaculture activities.
If no agreement is reached for a region within the relevant timeframe, s 11(5) of the MCACSA provides that ‘default’ redress must be transferred to iwi (via Te Ohu), unless the Minister extends the relevant timeframe. Default redress would comprise:
Somewhat belatedly, (s 14(1) of the MCACSA required that preparation of this plan should begin before 31 December 2012) the Minister issued a draft plan for consultation in February 2014, outlining a proposed approach to achieving regional agreements in the priority regions by 30 June 2014. 32 Section 14 provides that such a plan should establish “processes and methods for determining the value of the settlement assets to be delivered” and, further, that those processes and methods should enable an assessment to be made of:
Section 14 includes the proviso that those processes and methods should avoid increasing the demand for coastal permits, which would increase the value of space, reduce the risk of collusion, and be cost effective for the Crown.
It is fair to say that the draft plan, released for consultation in February 2014, fell somewhat short of meeting the objectives set out in the MCACSA. The document reviews what it describes as five “core elements of the new space settlement process”:
Before the end of the consultation period, the draft plan was largely overtaken by approaches made to iwi to consider a proposal that the Minister further extend the timeframes for concluding regional agreements. Extensions to those timeframes, until 30 June 2015 for the four priority regions and 30 November 2015 for others, were notified in the Gazette on 26 June 2014. 33
It seems inevitable that the negotiation of regional aquaculture agreements and the statutory review of Te Ohu will dominate the Māori seafood sector over the coming year. The general election will, of course, punctuate the year and the possibility it presents for a change of government (or a change in the composition of the government) could produce any number of new challenges and opportunities.
Use of land held for public works in Treaty of Waitangi settlements – Kane v Attorney-General  NZHC 251 by Lisa Hansen
Ruruku Whakatupua Te Mana o te Awa Tupua – Upholding the Mana of the Whanganui River by Linda Te Aho
Tikanga Māori – Te Mātāpunenga – A Compendium of References to the Concepts and Institutions of Māori Customary Law – reviewed by Matiu Dickson
He Papakupu Reo Ture: A Dictionary of Māori Legal Terms – reviewed by Pānia Papa
Te Hunga Rōia Māori o Aotearoa update – two conferences in 2014 outlined by Renika Siciliano
Download the Māori Law Review May 2014 (508 KB PDF).]]>
Ruruku Whakatupua Te Mana o te Awa Tupua is a document containing the terms of a new legal framework for Te Awa Tupua, the Whanganui River system. The intention of the framework is to uphold the mana of Te Awa Tupua and to recognise the intrinsic ties that bind Te Awa Tupua and its people to each other. The framework document comes under the umbrella of Ruruku Whakatupua Te Mana o te Iwi o Whanganui, a Deed of Settlement between Whanganui Iwi and the Crown which will settle the Iwi’s historical Treaty of Waitangi claims in relation to Te Awa Tupua. Whanganui Iwi will now go through a process whereby eligible members may vote on whether to ratify the Deed. Despite some reported dissension concerning the Ngāti Uenuku hapū, 1 it is likely that the Deed will be supported.
An Agreement entitled Tūtohu Whakatupua between the Crown and Whanganui Iwi in 2012 stirred interest and excitement when it foreshadowed redress that would extend beyond what had been negotiated in earlier freshwater settlements. 2 Settlements such as those that relate to the Waikato, Waipā and Kaituna Rivers, and the Rotorua Lakes settlement, have recognised to varying degrees Māori conceptions of the environment. For example, the Waikato River settlement recognises that to Waikato-Tainui the River is a tupuna, an ancestor, which has mana and a lifeforce of its own. 3 The earlier settlements have also vested lakebeds, riverbeds (or parts of the beds), and surrounding lands in claimant groups. They have created co-management regimes that either compel or encourage relationship agreements between claimant groups and central and/or local government. These regimes provide more freedom for iwi and hapū to carry out customary activities, and will lead to more collaborative planning processes, arguably laying the foundations for the current resource management reforms.
The settlements have provided funding for restoration projects and have highlighted the need for matauranga Māori indicators when monitoring the health and well-being of waterways. The Whanganui River Settlement does all of these things. It also involves an interesting legal development – it accords Te Awa Tupua full legal personality. Ownership of parts of the riverbed are to be vested in the River itself rather than the Iwi. In 2012, the Waitangi Tribunal, under urgency, considered what rights and interests (if any) in water and geothermal resources were guaranteed and protected by the Treaty of Waitangi and found that Māori had rights and interests in their water bodies for which the closest English equivalent in 1840 was ownership. Those rights were then confirmed, guaranteed, and protected by the Treaty of Waitangi, save to the extent that the Treaty bargain provided for some sharing of the waters with incoming settlers. The nature and extent of the proprietary right was the exclusive right of hapū and iwi to control access to and use of the water while it was in their rohe. 4
Though it is the first river settlement to have been reached after such significant findings, the Whanganui River settlement, like those that have gone before, explicitly avoids issues relating to ownership of water. In doing so, it draws upon wording used by the Tribunal in elaborate statements about the effect of the settlement on what the Iwi view as their proprietary rights, interests, and responsibilities in water.
This review begins by offering some comments about the prominence of mātauranga Māori throughout the documents, then summarises each part of the Deed of Settlement before turning to the River framework document. It ends with some brief observations about this innovative settlement.
A striking feature of both the Deed of Settlement and the River framework document is the prominence of te reo and mātauranga Māori. Standard template terminology and structure such as sections devoted to a Historical Account, Cultural Redress, Commercial Redress, and so on, is nowhere to be seen. Instead each part has a Māori name and is introduced by reference to a traditional saying. All entities and frameworks to be established under the settlement enjoy Māori names. An excellent example of this is the name ascribed to the Te Awa Tupua Strategy that will be created under the settlement, Te Heke Ngahuru ki te Awa Tupua. Te Heke Ngahuru is the first autumn migration of eels, signifying well-stocked storehouses for the winter. The name is said to symbolise the potential of Te Awa Tupua to provide for all if cared for and protected as a living spiritual and physical resource.
On a more fundamental level, the following statement appears inside the cover pages of both the Deed of Settlement and the River framework document and forms part of Tupua Te Kawa, the intrinsic values of the settlement:
E rere kau mai te Awa nui
Mai i te Kahui Maunga ki Tangaroa
Ko au te Awa, ko te Awa ko au
The English interpretation follows: ‘The Great River flows from the Mountains to the Sea. I am the River, and the River is me.’ This brief statement encompasses many layers of meaning. It recognises that Te Awa Tupua is an indivisible and living whole from the mountains to the sea. The now famous maxim ‘Ko au te Awa ko te Awa ko au’ (I am the River and the River is me) proclaims the intrinsic ties that bind Te Awa Tupua and the people of the River to each other. By doing this, this statement encapsulates the concept of interconnectedness between humans and the environment which lies at the heart of the way that Whanganui Iwi view the world, and which forms the underlying premise of the settlement.
The Deed is arranged in 13 Parts, each with its own title.
This is a separate document (the framework document) that contains the agreed terms of the new legal framework for Te Awa Tupua entitled Te Pā Auroa nā Te Awa Tupua (the framework).
The framework comprises the following elements:
Part 1 of the framework document sets out the overarching purpose of the framework; namely, the legal recognition of Te Awa Tupua, the legal recognition and effect of the Awa Tupua values, the development of the Awa Tupua strategy, and the protection and promotion of the health and wellbeing of Te Awa Tupua. It also states how the framewok will be given effect to in legislation and in the exercise of certain statutory functions.
Under Part 2 of the framework, Te Awa Tupua will be a legal person who has the rights, powers, duties and liabilities of a legal person. Those rights, powers and duties will be exercised by Te Pou Tupua, the human face of the River, who is also responsible for the liabilities of Te Awa Tupua.
Four intrinsic values, Tupua te Kawa, are identified:
The Crown confirms its commitment to these values. Decision-makers exercising functions under 25 relevant statutes including the RMA (in relation to preparing or changing a regional policy statement, regional plan or district plan) are required to ‘recognise and provide for’ the status of Te Awa Tupua as well as the intrinsic values. Decision-makers exercising functions under the Historic Places Act 1993 and the RMA (to the extent not covered above) must ‘have particular regard to’ the Te Awa Tupua status and the intrinsic values. Where the exercise of any statutory function is the subject of a written report, decision or document, that report, decision, or document must include a statement recording how those clauses have been complied with. Local authorities must consider their RMA planning documents in light of the Te Awa Tupua status, the values, and the strategy, and may initiate a review of their documents in order to comply.
Symbolic of the Treaty partnership, two persons will be appointed to the single position of Te Pou Tupua – one to be appointed by interested iwi and one to be appointed by the Crown. Processes for appointment and removal are set out in Part 3. Te Pou Tupua has full capacity to exercise its functions. Te Pou Tupua will act and speak on behalf of the River, uphold the Te Awa Tupua status and the intrinsic values, and promote and protect the health and wellbeing of Te Awa Tupua. Te Pou Tupua will exercise landowner functions and administer the $30 million dollar contestable fund that will be available for initiatives related to Te Awa Tupua under part 7 of the framework. Te Pou Tupua has other functions that include developing mechanisms to engage with and report to iwi, and engaging with relevant agencies and decision making bodies.
This part provides for the establishment of Te Karewao, an advisory group to Te Pou Tupua, made up of 3 persons, 2 appointed by iwi and one by the relevant local authorities. An inclusive addition is the power to appoint an additional person from iwi and hapū with interests in areas affected by the exercise of certain functions. Other persons may be invited to assist Te Pou Tupua. Te Pou Tupua is to contract the services of the PSGE for administrative services.
The Crown will pay $200,000 per year for 20 years to contribute to the costs associated with Te Pou Tupua and Te Karewao. The purposes for the $1 million transitional fund are set out and include the commissioning of a scoping study to identify the current state of health and wellbeing of Te Awa Tupua and issues affecting that state. Part 3 goes on to outline the relationship agreements to be established with Crown agencies and local authorities.
Te Heke Ngahuru ki te Awa Tupua is the ‘Whole of River’ Te Awa Tupua strategy which will identify issues relating to the environmental, social, cultural, and economic health and wellbeing of Te Awa Tupua. It will provide a strategy and recommend actions to address those issues.
A strategy group, Te Kōpuka nā Te Awa Tupua, will prepare the strategy then engage in a publicly notified consultation process before they approve the strategy.
Part 5 sets out the purpose and functions of Te Kōpuka, confirms that the group has full capacity to exercise its functions, and outlines the membership of the group as being representative of persons and organisations with interests in the Whanganui River, including iwi, local and central government, commercial and recreational users and environmental groups. Part 5 goes on to declare Te Kōpuka to be the collaborative planning group for the purposes of the current RMA reform process for preparing freshwater policy statements.
Part 5 also sets out processes for appointing members to the group and its meeting procedures. Horizons Regional Council will provide administrative support and the Crown agrees to contribute $430,000 to the Council towards the costs of establishing Te Kōpuka and the strategy.
Crown-owned parts of the riverbed are to be vested in Te Awa Tupua. Future vesting of land is also provided for, including parts of the bed remaining in Crown ownership following Public Works Act disposal processes.
Part 7 provides for the establishment and the administration of the $30 million contestable fund.
In this part the name ‘Te Awa Tupua’ is protected.
There is provision for a register of hearing commissioners which must include appointees with skills, knowledge and experience across a range of disciplines, including tikanga Māori, knowledge of the Whanganui River, and an understanding of Te Awa Tupua and Te Pā Auroa nā Te Awa Tupua.
Collaborative processes will be established to manage activities on the surface of the River, and to co-ordinate fisheries and customary food gathering. The Crown agrees to engage with Iwi in relation to taonga and the Protected Objects Act 1975. Te Awa Tupua is deemed to be a body corporate for the purpose of making an application to be a heritage protection authority under the RMA.
A notable feature of the definitions and general provisions section is the inclusion of elaborate statements about ownership of water, not seen in other Deeds of Settlement to the same extent. The Crown confirms its position that no one, including the Crown, owns water. While Whanganui Iwi confirms that it does not view its relationship with water in terms of ownership in a strict sense, it also asserts that its rights and responsibilities in relation to the Whanganui River (an indivisible and living whole being) are of a proprietary nature. The parties agree that this settlement is not intended to derogate from the freshwater policy review process nor is it intended to resolve issues of rights and interests in water. To avoid doubt, clause 9.5 confirms that the vesting of the riverbed does not create proprietary interests in water. Te Pou Tupua’s consent is not required for the use of water (the parties acknowledge that this may change in the future following the freshwater review process), but may be required as a landowner in relation to the use of the riverbed.
Other matters include an acknowledgment by the parties that there will be future settlements with Whanganui Iwi groups in relation to lands, and with other iwi with interests in the Whanganui River and that those settlements will include consideration of the matters relating to the Whanganui National Park and the Tongariro National Park in which parts of the Whanganui River are located.
This settlement recognises the profound relationships that Whanganui Iwi have with their Awa Tupua in a way that is distinctively Māori, with te reo and mātauranga Māori at the forefront of each part of the Deed of Settlement and the River framework document. Though the settlement does not fully adopt the Waitangi Tribunal’s recommendations set out in its 1999 Report, it does include an interesting legal development.
The according of legal personality and voice to the Whanganui River provides an opportunity for more effective recognition of the rights and interests of the River. The legal status of the River combined with that of the Post-Settlement Governance Entity, Ngā Tāngata Tiaki, as having an interest in Te Awa Tupua greater than the public generally when applying the RMA, provides the strongest opportunity for more effective participation by Iwi in planning processes of all freshwater settlements to date.
This settlement, like that in relation to the Waikato River, compels local government relationship agreements. The emphasis in this settlement on a stronger legal voice in RMA processes is not surprising given the feedback from Whanganui Iwi in the 1995 consultation process for the Sustainable Water Programme of Action. At their hui, a prominent Whanganui Iwi member had this to say:
The Resource Management Act has always provided the opportunity for Māori to participate at planning level, but it never happens because there is no willingness, we have no political weight. So we are shut out, and we become one voice amongst many other constituencies.
It is clear that Whanganui Iwi negotiators have benefitted from closely analysing earlier freshwater settlements. The settlement contains most of the redress features of other freshwater settlements, particularly those that relate to the Waikato River, and in some cases the settlement streamlines and strengthens redress mechanisms and post-settlement implementation processes.
Though significantly less than the resourcing allocated to the Waikato River settlement, the level of resourcing for Whanganui, much of which will be paid on-account; together with the Whole of River strategy will no doubt produce tangible improvements in the health and wellbeing of Te Awa Tupua. It is hoped that the provision for a social services project will have similar results for whānau, hapū and iwi. The redress included in relation to protecting the rapids may well assist Iwi and the River in any future proposals to dam the River for water storage, given climate change challenges.
The Agreement that foreshadowed this settlement, Tūtohu Whakatupua, was the topic of the winning essay written by Laura Hardcastle for the Sir Edward Taihakurei Durie Student Essay Competition (see (2014) February Māori LR). Ms Hardcastle describes the agreement as ‘ground-breaking’, but also as a ‘compromise to prevent iwi from gaining ownership.’ I tend to agree.
Renika Siciliano, lead co-ordinator for Te Hunga Rōia Māori o Aotearoa’s hui a tau, outlines two upcoming events.
The World Indigenous Legal Conference is being held at the Queensland University of Technology, Gardens Point, Brisbane from 25 to 27 June 2014. The 2014 Conference follows on from the inaugural World Indigenous Lawyers’ Conference hosted by Te Hunga Rōia Māori o Aotearoa in September 2012 in Hamilton.
This kaupapa started out as a means for all indigenous lawyers to discuss indigenous issues as a group, rather than in isolation. For co-convenor, Aidan Warren (Director at McCaw Lewis Lawyers), the idea behind the Conference was “about giving our Māori lawyers an opportunity to understand similar legal issues that Māori people face in an international context, to listen and to learn about other ideas and experiences.”
The theme of this year’s Conference is “Past, Present and Future”. A number of speakers from Aotearoa are confirmed on the programme including Linda Te Aho, Natalie Coates, Season-Mary Downs, Horiana Irwin-Easthope, Harata Paterson, Ngāi Tahu Māori Law Centre (Desiree Williams, Malcolm Lucas and Haines Ellison), Kiritapu Allan, Leluatea Iosefa and Michael Sharp.
Te Hunga Rōia Māori, and the Organising Committee for the inaugural Conference, encourages all Māori lawyers and legal minds to attend the Conference in Brisbane to continue to build on the relationships formed two years ago. “I believe that our clients, hapū and iwi will continue to want the best advice. With many iwi heading towards settlement and the corporate and cultural rebuild, it will be invaluable for our Māori law students, lawyers, judges and legal academics to learn from others around the world by a holding regular conference for “lawyers” on indigenous issues”, says Mr Warren.
Te Hunga Rōia Māori is hosting its hui-ā-tau from 5 to 7 September 2014 in Tauranga. The focus for this year’s hui-ā-tau is on building and developing our Māori lawyers across all areas of the law to ensure that we can grow as Māori and as a profession to assist our people going forward, says hui-ā-tau organiser, Renika Siciliano. The theme of the Conference is “Māori lawyers in the 21st Century: survive and thrive individually and collectively”.
With the new requirements for Continuing Professional Development (“CPD”) in place from 1 April 2014, the hui-ā-tau will be a valuable source of education for Māori lawyers practising across a range of areas including family, criminal, commercial and Te Tiriti o Waitangi. The 2014 programme is being designed with practitioners in mind and hopes to build on the success and popularity of the last hui-ā-tau which was combined with the inaugural World Indigenous Lawyers’ Conference two years ago. Students will continue to play an important role in the hui-ā-tau with specifically designed sessions for tauira as well.
Keynote sessions for the hui-ā-tau are expected to be confirmed by the end of May 2014 with registrations opening soon after.
For more information on these two important conferences, visit www.maorilawsociety.co.nz.]]>
Remedies – the Mangatū Remedies Report (Wai 814, 2013) by Dr Carwyn Jones
Remedies – analysis of the Mangatū Remedies Report (Wai 814, 2013) by Baden Vertongen
Rights to water – the Tribunal’s final report on Te Kāhui Maunga: The National Park District Inquiry Report (Wai 1130, 2013) by Dr Jacinta Ruru
Review of Te Ture Whenua Māori Act 1993 – final report and recommendations from the independent review panel
Tikanga Māori – Te Mātāpunenga – A Compendium of References to the Concepts and Institutions of Māori Customary Law – reviewed by Matiu Dickson
Indigenous on the Margins by Eileen Luna-Firebaugh
Download the Māori Law Review April 2014 (552 KB PDF).
Download the Review Panel’s final report (1.3 MB PDF) and the Government’s subsequent announcement about law reform.
The independent panel of experts has recommended new Māori land legislation to replace Te Ture Whenua Māori Act 1993.
The Panel has confirmed its preliminary view, raised in its 2013 discussion document, that the Māori Land Court’s current role in the management and utilisation of Māori land can be scaled back in favour of greater final decision-making by those with governance roles for Māori land. Mediation has been recommended as a first step in addressing disputes.
The 2013 discussion document had suggested that decision-making over Māori land might be limited to owners who controlled a minimum threshold interest. The idea did not gain support from those who submitted on the issue and the Panel does not recommend it be pursued in addressing the issue of fragmentation of interests in land.
Decision-making about governance and use of Māori land should be by engaged owners who participate, yet safeguards should remain for disposals of Māori land in the Panel’s opinion. Further, duties and responsibilities of those with governance roles should be aligned with the general law. Under-utilised land without an administrative structure might have external managers appointed as a transitional measure.
The Panel’s view is that improved governance will lead to greater utilisation of Māori land and “will increase confidence within the banking and financial sector to provide development support and finance to Māori land governance entities.” (At p 30.)
The expert review panel was chaired by Matanuku Mahuika. The other members were Toko Kapea, Patsy Reddy, and Dion Tuuta.
The review panel released a discussion document in March 2013 where it proposed five integrated measures the Panel considered will improve the likelihood of Māori land being used more effectively.
The Panel conducted 20 consultation hui, and received 189 written submissions from individuals, whānau, hapū, iwi, trusts and incorporations, local authorities, law firms and others.
The report summarises submissions and explains shifts in emphasis from the Panel’s March 2013 discussion paper as a result of the submissions process in relation to each of its key propositions.
In particular, the Panel stressed that its approach was to consider principled bases for Māori land legislation rather than detailed amendments to existing legislation. The Panel’s view is that giving effect to its recommendations will require new legislation:
The structure of Te Ture Whenua Māori Act, with a primary focus on the Māori Land Court and its jurisdiction, does not lend itself well to a new framework in which we consider the focus should very clearly be on Māori land protection and utilisation and empowerment of Māori land owners and their decision-making.
The Panel’s final recommendations on each proposition are set out below.
Proposition 1: Utilisation of Māori land should be able to be determined by a majority of engaged owners
We recommend that reforms to the laws relating to Māori land include provisions to give effect to Proposition 1
The laws relating to Māori land should:
• be changed and clarified to enable engaged owners of Māori land to make governance and utilisation decisions that take effect and bind relevant parties without the need for confirmation, approval or other action by the Māori Land Court or any other supervisory body; and
• continue to include safeguards requiring a high threshold of owner agreement before decisions to dispose of Māori land will have legal and binding effect.
Proposition 2: All Māori land should be capable of utilisation and effective administration
We recommend that reforms to the laws relating to Māori land include provisions to facilitate Proposition 2
The laws relating to Māori land should:
• provide clear mechanisms for external managers to be appointed to administer under-utilised Māori land blocks when there is no engagement by the owners.
Proposition 3: Māori land should have effective, fit for purpose, governance
We recommend that reforms to the laws relating to Māori land include provisions to give effect to Proposition 3
The laws relating to Māori land should:
• clearly prescribe the duties and obligations of Māori land governance entities, including their trustees, directors or committee members, and aligns those duties and obligations with the general law applying to similar entities; and
• clarify the jurisdiction of the Māori Land Court to consider alleged breaches of duty and make appropriate orders.
Proposition 4: There should be an enabling institutional framework to support owners of Māori land to make decisions and resolve any disputes
We recommend that reforms to the laws relating to Māori land include provisions to give effect to Proposition 4
The laws relating to Māori land should:
• require disputes relating to Māori land to be referred, in the first instance, to mediation; and
• contain clear and straightforward provisions and rules to ensure the Māori Land Court remains an accessible judicial forum for resolving disputes that cannot be resolved by mediation and enabling trustees, directors and committee members of governance entities to be held to account for breaches of duty.
Proposition 5: Excessive fragmentation of Māori land should be discouraged
We recommend that reforms to the laws relating to Māori land include provisions to facilitate Proposition 5 but the rights of decision-making should remain open to all owners
The laws relating to Māori land should:
• provide transparent registration provisions for Māori land titles and assurance of title to reflect the nature of Māori land tenure as a collectively held taonga tuku iho;
• contain provisions that facilitate succession to Māori land with a minimum of compliance requirements and simple, straightforward administrative, rather than judicial, processes; and
• contain provisions to address barriers caused by excessive fragmentation of Māori land ownership interests.
The Government has announced that it is drafting a new Te Ture Whenua Māori bill to reform the governance and management of Māori land based on the Panel’s findings. This was announced on 3 April 2014 by Associate Minister of Māori Affairs Christopher Finlayson at the same time as the Panel’s final report was released.
The Minister announced that key features of the bill will include:
In contextualising these proposals for law reform, the Minister’s announcement reproduced some important statistics about Māori land and its utilisation:
There are over 27,137 blocks of Māori land under Te Ture Whenua Māori Act, comprising 1.42 million hectares, or around 5% of the total land in New Zealand.
It has been estimated that up to 80% of Māori land is under-performing for its owners. In many cases this is because of structural issues which stem from the existing legislation.
Improving the performance and productivity of Māori land would provide tremendous economic and cultural benefits to its owners and their whānau, hapū and iwi.
A study prepared for the Ministry of Primary Industries suggested the benefits of improving governance and management of Maori land could be huge, increasing output by up to $8 billion and creating up to 3600 jobs over a decade.
Finally, the Minister also stated:
Māori land is a resource that contributes significantly to the cultural identity and well-being of Māori land owners,” Mr Finlayson said. “I look forward to progressing legislation that will allow this potential to be realised.
The Minister for Land Information and I are developing proposals for implementing the changes so that services to support Māori land owners and assure the integrity of the Māori land title system will be in place and aligned with the new legislation.
Tom Bennion wrote about the Panel’s 2013 discussion document ((2013) May Māori LR). The Māori Law Review will publish further articles about the Panel’s final recommendations and resulting law reform in future issues.]]>