Privy Council Appeal A “Disgraceful Waste”
Next week’s Privy Council appeal is a “disgraceful waste of time and money”, Harry Mikaere, Chairman of the Treaty Tribes Coalition, said today.
“It is one year to the day since the Treaty Tribes Coalition released independent economic research that showed delays in allocating our fisheries assets are costing $14 million a year. Next week, Maori and the taxpayer face legal costs of at least another $1 million bringing the total cost over the last year to $15 million.
“The Treaty Tribes Coalition is going to win the Privy Council case – just as we have won every previous case launched by these litigants – but that is not going to stop the litigation. Court action will continue to 2004 at the earliest.
“Once the Privy Council issues its judgement, the Government must step in to ensure the assets are allocated to iwi as soon as possible. Government action is the only way to stop the ongoing costs of delay, which are forecast to reach $61 million by 2004. It is the path forward advocated by iwi and by the New Zealand seafood industry.
“The Treaty Tribes Coalition looks forward to working with the Government to achieve allocation as soon as the Privy Council issues its judgement.
“Iwi also look forward to working with one another – and with others in the seafood industry – to maximise the wealth creation opportunities of the assets as soon as they are allocated.
“A good example of what the future may hold could be the East Coast Iwi Consortium. Hauraki iwi, Ngati Porou, Ngai Tamanuhiri, Ngati Kahungunu and Ngai Tahu have been working together for four years and are achieving returns that are as good as any achieved elsewhere in the industry.”
Mr Mikaere was commenting on the eve of his departure for London for the Privy Council appeal to which the Treaty Tribes Coalition is a respondent.
BACKGROUND ON THE LITIGATION
The Privy Council appeal has been taken by the Manukau Urban Maori Authority after the High Court and Court of Appeal rejected the authority’s interpretation of the Maori Fisheries Act and ruled in favour of the respondents, the Treaty of Waitangi Fisheries Commission supported by the Treaty Tribes Coalition.
The case is restricted to matters of statutory interpretation. The Privy Council is being asked to consider whether the High Court and Court of Appeal were correct when they said that the Maori Fisheries Act requires the Treaty of Waitangi Fisheries Commission to allocate assets solely to iwi and that ‘iwi’ means the traditional Maori tribes.
It is almost certain that the appeal will be rejected, with the Privy Council unlikely to overrule New Zealand judges on such questions. However, legal costs for all parties are estimated to exceed $1 million on top of the $14 million iwi have lost over the last year as a result of delays in allocation, according to independent research by the New Zealand Institute of Economic Research (NZIER).
Once the Privy Council makes its judgement, the High Court of New Zealand will be able to consider the substantive point of whether the Treaty of Waitangi Fisheries Commission acted properly when developing the ‘optimum allocation model’. The Privy Council judgement is expected in July or August. The earliest practical date for a substantive High Court hearing, which could take as long as two months or more, is the middle of 2002.
With appeals back to the Court of Appeal and the Privy Council, a final result could not be expected until 2004. Given the history of this issue, fresh litigation could be expected whatever the result, delaying allocation indefinitely.
NZIER’s independent study released one year ago today estimates that the dispute is holding back the development of the New Zealand seafood industry and will cost Maori $61 million by 2004 and would soon surpass $100 million.
BACKGROUND ON THE TREATY TRIBES COALITION
The Treaty Tribes Coalition was established in 1994 and has the support of more than 35 iwi.
The Coalition is seeking the immediate implementation of the ‘optimum allocation model’ for fisheries assets that was developed by the Treaty of Waitangi Fisheries Commission through a five-year consultation process. At the conclusion of the consultation process in 1998, the model achieved the support of 76 percent of iwi representing 63 percent of Maori.
The model deals with $350 million of ‘pre-settlement’ fisheries assets, which have been held in trust by the Commission since 1989. The Commission has also held a further $350 million of ‘post-settlement’ assets since 1992.
The model was a compromise between those iwi that believed the assets should be allocated on the basis of coastline and those iwi that believed they should be allocated on the basis of population. All iwi agreed that allocation should be to iwi.
Under the model, deepsea quota would be allocated on a 50 percent population, 50 percent coastline basis. Inshore quota would be allocated on a coastline basis. Shares in Moana Pacific Fisheries would be allocated in proportion to the total quota volume allocated to each iwi.
A further $40 million cash would be allocated on the basis of population only, with another $10 million cash kept in trust for a Development Putea for those Maori who are not yet active members of their iwi organisations.
The model also requires that iwi have mandate and accountability mechanisms to deliver to their members, the vast majority of whom are urban residents.
Despite the majority support for the compromise model, allocation is being held up by the technical legal challenges of a few individuals. None of these challenges have been found to have merit by the courts, but legal action continues.
In May 2000, the New Zealand Institute of Economic Research (NZIER) undertook an independent and conservative study into the costs of delaying allocation of the ‘pre-settlement’ assets.
It looked at just three costs of delay relating only to the quota component of the assets, including the inability of iwi to form long-term multi-iwi partnerships. From just these three costs, it concluded the costs were up to $14 million a year. This would compound to $84 million by 2006 if allocation did not occur immediately.
Following the release of the report, the Treaty Tribes Coalition renewed its call for the Government to fix the law to end the technical legal wrangling. The call was supported unanimously by the New Zealand Seafood Industry Council (SeaFIC) at its 2000 annual conference.
On 19 September 2000, the Coalition and representatives of 36 iwi presented the draft Maori Fisheries Amendment Bill to all Members of Parliament. If enacted, this draft bill would direct the Treaty of Waitangi Fisheries Commission to immediately implement the ‘optimum allocation model’ and stop the destruction of wealth.
The Minister of Maori Affairs said he would refer the draft bill to Cabinet and the Commission, while the National Party said it would support it. The draft bill has been placed in the ballot to be introduced as a Private Member’s Bill.
On 11 November 2000, a Hui Taumata at Waipatu Marae saw representatives of 36 iwi support the resolutions that Parliament immediately implement the Maori Fisheries Amendment Bill and that this hui demands the allocation of all our fisheries assets and will not entertain the non-allocation of deepsea quota. These resolutions were sent to the Government.