Protecting Maori Fisheries Assets for Future Generations

Presentation to US Fisheries Tour Friday 17 March

Treaty of Waitangi Provisions ARTICLE IIARTICLE IARTICLE III Crown Authority Tino Rangatiratanga Citizenship Rights Powers of Government Status of Maori Individuals Authority of Tribes

1987Waitangi 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” 1987High 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 Right 1987 High Court – Justice Greig

Gifting Customary Fishing Barter Sale Personal use Family use Community use Trade Commercial Q.M.S. Barter Sale Trade 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 Back to Main Protecting the Assets Protecting the Assets Growing the Assets Growing the Assets Growing Capacity Growing Capacity Allocating the Assets Allocating the Assets ToWFC “Getting Maori into the ToWFC “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

Who To? 57 Iwi (traditional Tribes) agreed 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 Back to Main

Inshore & Deepwater Continental Shelf 200 metre depth 300 metre depth Fishstocks are classified as: Inshore -less than 300m Deepwater - greater than 300m Models: Base ModelCorporate & TrustAllocate EverythingMix ‘n Match

Managing the centrally retained assets Back to Main

Te Kawai Taumata: The Electoral College

Benefits to Iwi Total 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 IwiVolume (1000 mt) %Price paid $M Gross margin $M Ngai Tahu Chathams Kahungunu Te Tau Ihu Ngapuhi Ngati Porou Ngati Whatua TOTAL

Who fills the roles now Back to Main Te Ohu Protecting the Assets Te Ohu Protecting the Assets AFL Growing Assets Growing Assets TPW Growing Capacity Growing Capacity Te Ohu Allocating the Assets Te Ohu Allocating the Assets Te Ohu Te Ohu “Advance the interests of iwi primarily in fisheries” “Advance the interests of iwi primarily in fisheries” TWM Advance Maori interests in Freshwater Fisheries Advance Maori interests in Freshwater Fisheries 57 Iwi 57 Iwi Growing Assets Growing Assets

Te Ohu as Corporate Trustee Te Ohu Kai Moana Trust (“Fisheries Trust”) Takutai Trust Maori Commercial Aquaculture Settlement Trust (“Aquaculture Trust”) Te Ohu Kai Moana Trustee Ltd

Presentation to US Fisheries Tour Friday 17 March

Marine Management Inconsistent 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 System11 Total Allowable Catch (tonnes): set annually by Minister TACC – based on ITQ - generate ACE Maori customary fishing Recreational fishing Commercial fishing (TACC) Commercial fishing (TACC)

Fisheries rights Are both communal and individual11 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).