Protecting Maori Fisheries Assets for Future Generations

Presentation to US Fisheries TourFriday 17 March

Treaty of Waitangi Provisions

ARTICLE IIARTICLE I ARTICLE III

Crown Authority

Tino Rangatiratanga

Citizenship Rights

Powers of Government

Status of Maori Individuals

Authority of Tribes

1987 Waitangi Tribunal Muriwhenua

Legal Basis of Fisheries Settlement

There is at least an arguable case that the proposed actions (QMS) were in conflict with the statutory prescription and could have an effect contrary to those rights

“Their fisheries” means their business and activity in fishing, including the places where they fished and their property rights in fishing”

1987 High Court - Injunction

“I am satisfied that there is a strong case that before 1840 Maori had a highly developed and controlled fishery over the whole of the coast of New Zealand, at least where they were living. That was divided into zones under the control and authority of hapu and tribes of the district. Each of these hapu and tribes had the dominion, perhaps the rangatiratanga, over those fisheries. Those fisheries had a commercial element and were not purely recreational or ceremonial or merely for the sustenance of the local dwellers”.

Nature of Right1987 High Court – Justice Greig

GiftingCustomary Fishing

BarterSale

Personal use

Family use

Community use

Trade

Commercial Q.M.S.

Barter

SaleTrade

Non Commercial

Regulations

Family use Community use

Personal use

Gifting

Kaitiakitanga

Key Components of the Fisheries Settlement• Commercial

– Quota, Cash and Subsidiaries

• Customary – Use and Management rights

• Participation – Management & Conservation of NZ fisheries

Estimated value as at 2005 approximately $750 - $800 million dollars

Key Components of the Aquaculture Settlement

• 20% of all Marine Farming Space

– Established from 21 September 1992 and beyond

There are no current estimates of the value of these assets at present

Primary Function & roles of Treaty of Waitangi Fisheries Commission

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Protecting the Protecting the AssetsAssets

Growing theAssets

GrowingGrowingCapacityCapacity

AllocatingAllocatingthe Assetsthe Assets

ToWFCToWFC“Getting Maori into the “Getting Maori into the business and activity business and activity

of fishing”of fishing”

Current Value of Fisheries Assets

From $275m to $700m without further Government contribution

Asset Value

0

100

200

300

400

500

600

700

800

1991 2003 2005 2005

Mill

ion

s of

dol

lars

Who To?• 57 Iwi (traditional Tribes) agreed 1992-2004

What?• Quota shares

• AFL income shares

• Cash

When?

• When Iwi have systems (governance arrangements -constitutions, structures and register of members) and agreements between Iwi

What Progress?

• Have transferred some of each Iwi’s assets to 6 MIO by 30 Sept 2005

• Expect to have transferred some of each Iwi’s assets to 19 MIO by 31 March 2006

• Aiming to have transferred some of assets to all Iwi by March 2007

Allocation

The Allocation Model

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Inshore & Deepwater

Continental ShelfContinental Shelf

200 metre depth

300 metre depth

Fishstocks are classified as:Fishstocks are classified as:Inshore -less than 300mInshore -less than 300m

Deepwater - greater than 300mDeepwater - greater than 300m

Models: Base Model Corporate & Trust Allocate EverythingMix ‘n Match

Managing the centrally retained assets

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Te Kawai Taumata: The Electoral College

Benefits to IwiTotal Benefits to Iwi $18.0m

Multiple Iwi Company Representatives $4.8m

Top Six:

Ngai Tahu $3.9m

Chathams $1.5m

Ngati Kahungunu $1.0m

Ngati Porou $0.8m

Nga Puhi $0.7m

Ngati Whatua $0.6m

Disputed Quota $1.2m

Lease Rounds Summary 1990 -2000

Iwi Volume

(1000 mt)

% Price paid

$M

Gross margin

$M

Ngai Tahu 170 29.1 26.3 38.7

Chathams 52 9.0 8.7 11.4

Kahungunu 37 6.3 9.3 10.2

Te Tau Ihu 24 4.1 5.0 6.5

Ngapuhi 31 5.3 3.9 5.5

Ngati Porou 24 4.0 3.3 4.9

Ngati Whatua

TOTAL

20

358

3.4

60.2

3.0

59.5

3.7

80.9

Who fills the roles now

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Te OhuTe OhuProtecting the Protecting the

AssetsAssets

AFLAFLGrowing Assets

TPWTPWGrowingGrowingCapacityCapacity

Te OhuTe OhuAllocatingAllocatingthe Assetsthe Assets

Te OhuTe Ohu““Advance the interests of iwi Advance the interests of iwi

primarily in fisheries”primarily in fisheries”

TWMTWM Advance Maori interests Advance Maori interests

in Freshwater in Freshwater FisheriesFisheries

57 Iwi57 IwiGrowing Growing

AssetsAssets

Te Ohu as Corporate Trustee

Te Ohu Kai Moana Trust

(“Fisheries Trust”)

Takutai TrustMaori Commercial

Aquaculture SettlementTrust

(“Aquaculture Trust”)

Te Ohu Kai MoanaTrustee Ltd

Presentation to US Fisheries TourFriday 17 March

Marine ManagementInconsistent Decision Making• Customary Provisions

– Mataitai, Rahui and Taiapure (area management tools)

• Aquaculture Management Areas– Marine Farms

• Recreational Rights

– Sub QMA Zoning and TAC re-allocations

• Marine Reserves– special and representative areas (for sustainability or public good?)

• Coastal Developments– Mariners, pipelines, discharge

What are Iwi/Maori seeking?

• Protection of existing Treaty settlements, including the Fisheries & Aquaculture Settlements

• No prejudice to future settlements

• Recognition of all customary and commercial rights including: – Rights to benefit from fishing, marine farming, and other uses of marine

resources including development rights

– Full recognition of the role of Iwi /hapu in management & conservation (“kaitiakitanga”)

Current Marine Laws Inadequate for Maori Treaty Settlement Interests

• No clear overarching law – Oceans Policy?

• Unclear:– priorities between different uses and values

– purposes for applying management tools

– processes to integrate new activities

– co-ordination between decision-makers

• Lack of justifiable approaches to address:– public good vrs threats and risks to sustainability

– treatment of property rights

– costs and effectiveness of measures

– changing circumstances

The Quota Management System1

Total Allowable Catch (tonnes):

set annually by Minister

TACC – based on ITQ

- generate ACE

Maori customary fishing

Maori customary fishing

Recreational fishingRecreational fishing

Commercial fishing(TACC)

Commercial fishing(TACC)

Fisheries rights

• Are both communal and individual1

• Have spatial rights but not exclusivity – note that fish

occurrence is not even

• In perpetuity

• Can be changed annually for sustainability purposes without

compensation

• Any other changes eg allocative require compensation

• System is very strongly user pays for mangement and

research

Fisheries Act

• Purpose – sustainable utilisation

• Environmental principles

• Information principles incl precautionary

• Decisions taken by Minister but (generally)

following consultation

• No s 32, reviews only on process

Purpose?

• Risk management approach:

• Identify, analyse, evaluate risks (what is/not acceptable)

• Assess the effects of the new activity on existing activities. Then consider:

What is the purpose or reason for the new activity?• Is it to protect environmental sustainability?• Or is it to allocate or reallocate new use rights?

– Can the effect of the new activity

on existing activities be avoided?

– Can the effect of the new activity on existing activities be remedied

or mitigated

• Assess the costs and benefits:

• Use the best tool at the least cost on existing users

• Adaptive management:

• Establish monitoring and review programme

A Principled and Consistent Approach• In the absence of an Oceans Policy

– Be clear about the purpose or reason for decisions

– Apply a risk based adaptive management where sustainability is threatened and

– Use the best tool for the job at the least cost

– Apply a consistent principled approach for dealing with the effects of new developments on existing property right and

– Develop incentives for negotiated solutions that:• Avoid (explore other areas where less conflict with existing users)

• remedy or mitigate (explore conditions to enable activities to co-exist or explore compensation options consistent with the level of displacement)

Undue or Adverse Effects Test

• Acknowledges the existence of prior users and established property rights

• Requires consideration of the effects or impacts of new activities on existing rights

• Determines conditions for decision making about new activities

• Determines the outcome if effect or impact is undue

Best Method/Least Cost

• Best Method

– Establish the extent of the risk(s) associated with any identified threats, acceptability of those risks and consider realistic options

– Choose the option(s) that would provide the least cost method of satisfactorily reducing any unacceptable risks

• Least cost – means all current and future costs (to both Government and

existing users) associated with the establishment, implementation, monitoring and review of the chosen option(s) including any transitional costs.

Maori Fisheries

Who decides/acts

• Minister overall responsibility

• Commercial - Iwi and other quota owners

• Non-commercial - Whanau, hapu, Iwi

Customary Fishing

Range of options

• Permits s 27(1) and (2)

• Temporary closures

• Taiapure

• Mataitai

– promoted as a solution

Mataitai

Current process flawed

• Poor information

• Poor consultation

• Poor examination of needs and options to provide

• Poor application of test

Mataitai

Win- Lose? Lose – Lose? or Win- Win ?

• Mataitai prohibits commercial fishing – Iwi cant catch ACE for key species

• Test applies at Quota Management Area level – cumulative effect

– Later applications will be refused

Maori Fisheries

Must be win-win

• Iwi have a key role

– Decisions at QMA and iwi (and groups of Iwi) are responsible

– Can work with other quota owners to offer creative solutions

– Need to pro-actively work with hapu to ensure use range of options to get satisfactory provision across whole rohe

– Use of ‘pataka kai’ model under s 27(2) positive option

• No magic bullet - each iwi with its hapu will need to find solutions that work for them

Protecting Maori Fisheries Assets for Future Generations

Declaration of a Mataitai reserve

(1) Subject to regulation 19, the Minister must, by notice in the Gazette, declare an area to be a mataitai reserve if satisfied that –

There is a special relationship between the tangata whenua making the application and the proposed mataitai reserve; and

The general aims of management specified in the application under regulation 17 are consistent with the sustainable management of the fishery to which the application relates; and

The proposed mataitai reserve must be an identified traditional fishing ground and is of a size appropriate to effective management by the tangata whenua; and

The Minister and the tangata whenua are able to agree on suitable conditions for the proposed mataitai reserve; and

The proposed mataitai reserve will not –

Unreasonably affect the ability of the local community to take fish, aquatic life, or seaweed for non-commercial purposes; and

Prevent persons with a commercial interest in a species taking their quota entitlement or annual catch entitlement (where applicable) within the quota management area for that species; or

Prevent persons with a commercial fishing permit for a non-quota management species taking fish, aquatic life, or seaweed under their permit within the area for which that permit has been issued; and

The proposed mataitai reserve must not be a marine reserve under the Marine Reserve Act 1971.

Maori Aquaculture Settlement Assets

• Regional Settlements based on regional council boundaries and harbours

• 20% of all new AMAs – as they happen; and

• 20% of space between Sept 1992 and 1 Jan 2005 incl space subject to moratorium through:– Either additional % through Council AMAs (up to

further 20%); or

– Crown buys farms/ space after 1 Jan 2008; or

– Crown provides equivalent cash after 1 Jan 2013

Purpose of the Maori Commercial Aquaculture Settlement Trust

• Facilitate steps by Iwi to meet the requirements for the allocation of settlement assets;

• Receive settlement assets

• Hold and maintain settlement assets on trust; and

• Allocate settlement assets to Iwi.

Duties of the Trustee

• Holding and administering settlement assets pending allocation and transfer Allocating and transferring settlement assets

• Facilitating steps by Iwi organisations to be recognised as Iwi aquaculture organisations

• Determining allocation entitlements

• Facilitating steps by Iwi aquaculture organisations to reach agreement:

– During the first 12 months after the trustee has recognised IAOs for all Iwi of the region

• about coastline and harbour claims

• about the allocation and transfer of settlement assets

Additional Discretionary Duties

The trustee may undertake additional activities for related or ancillary purposes (such as facilitating and co-ordinating the development and use of settlement assets, and representing the interests of Iwi) if the Iwi concerned agree to the trustee doing so.

Aquaculture Allocation Requirements

Iwi Aquaculture Organisations (IAOs)

• Must be Mandated Iwi Organisations under the Maori Fisheries Act 2004

• Trustee must be satisfied that the constitution authorises the organisation to act on behalf of its Iwi in relation to aquaculture claims and settlement assets under the Act.

Ownership & management

• Can be as agreed by IAOs

• Statute allows for joint company and shares

• Default if no agreement is individual ownership and management of discrete assets

Criteria for Agreement

IAOs must have regard to:

• Whether all Iwi will be treated equitably based on the value and quality of the settlement assets to be transferred

• The desirability of allocating settlement assets that are of an economic size (section 46)

Agreements

• Formal agreements: only after all Iwi of the region have Iwi Aquaculture Organisations

• First 12 months after above: all Iwi can agree on settlement assets entitlements

• Trustee may ‘determine’ entitlements on the basis of a written agreement

• Trustee must be satisfied that all Iwi of the region are parties.

If no initial agreement …

• Trustee to allocate on the basis of coastline and harbour claims (to be endorsed by IAOs of each Iwi that affected by claim).

• Defaults are:

– all Iwi with coastlines in a region share in settlement assets located outside harbours; and

– Iwi whose territory abuts harbours share settlement assets located in harbours (Schedule 2 of the Act).