MÄORI FISHERIES AMENDMENT BILL

EXPLANATORY NOTE

Introduction

THIS Bill gives effect to the “Optimum Method for Allocation” adopted by the Treaty of Waitangi Fisheries Commission (“Commission”) for the allocation of assets held by it on 22 September 1992, being the day before the date of the Deed of Settlement dated 23 September 1992 entered into between the Crown and Mäori. Those are the assets referred to in the Mäori Fisheries Act 1989, being the quota plus cash and shares that formed the initial interim settlement of fisheries claims (“pre-settlement assets”).

Background

The Commission formulated an Optimum Method for Allocation of the pre-settlement assets, after undertaking one of the most wide-ranging consultation processes ever conducted among Mäori. During the course of that consultation, the Commission was also involved in a number of court actions, brought by various groups to challenge the way in which the Commission interpreted its legal obligations in terms of managing the pre-settlement assets pending their allocation.

The extensive consultation process undertaken by the Commission resulted in substantial agreement by iwi on the major principles underlying allocation. In recognition of that fact, the Commission resolved to report its proposed Optimum Method for Allocation to the Minister of Fisheries, as required by the Mäori Fisheries Act 1989. At that stage, a number of other legal proceedings were brought against the Commission, challenging the process by which it formulated the Optimum Method for Allocation of the pre-settlement assets. An interim order was obtained, preventing the Commission from presenting its report to the Minister until those legal challenges have been resolved. Therefore, notwithstanding the substantial agreement achieved in respect of the Commission's proposed method, litigation has halted the allocation process.

The delay in allocation of the pre-settlement assets to iwi has caused, and continues to cause, substantial economic and other damage. The Bill recognises that allocation must occur without any further delay, to bring that damage to an end and to finalise the settlement between the Crown and Mäori. The Bill recognises that the Crown has a responsibility to ensure allocation of the pre-settlement assets.

Clauses of the Bill

Clause 1 relates to the Short title and commencement. The Bill comes into force on the earlier of a date to be appointed by Order in Council or 31 December 2000.
ii

Clause 2 states that clauses 2 to 8 of the Bill are to be deemed part of the Mäori Fisheries Act 1989.
Clause 3 amends section 2 of the Mäori Fisheries Act 1989 by inserting three new definitions relating to iwi, pre-settlement assets and the method for the allocation of those assets in accordance with the Deed of Settlement and the Mäori Fisheries Act 1989 (which is the method set out in full in the Schedule to the Bill).
Clause 4 repeals section 6(e)(i) of the Mäori Fisheries Act 1989 in recognition of the fact that the Commission has completed its consideration as to how best to give effect to the resolutions set out in Schedule 1A to the Mäori Fisheries Act 1989.
Clause 5 inserts two new sections into the Mäori Fisheries Act 1989. 7A directs the Commission to allocate and distribute pre-settlement assets in accordance with the Optimum Method for Allocation and 7B limits the jurisdiction of any Court or Tribunal to matters of interpretation and implementation of this Act.
Clause 6 repeals section 9(2)(l) of the Mäori Fisheries Act 1989 in recognition of the fact that the Commission has completed its consideration of the matters set out in section 6(e)(i) of the Mäori Fisheries Act 1989 and the fact that the process for allocating pre-settlement assets is now dealt with by the amendment inserted by clause 5 of the Bill.
Clause 7 repeals section 9(4) of the Mäori Fisheries Act 1989, to remove the Minister’s ability to require the Commission to reconsider the report to the Minister under section 9(2)(l) of the Mäori Fisheries Act 1989.
Clause 8 inserts a new Schedule 1B into the Mäori Fisheries Act 1989.
The Schedule sets out the Optimum Method for Allocation.

MÄORI FISHERIES AMENDMENT

ANALYSIS

Title
Preamble
1. Short title and commencement
2. Sections to be read with Mäori
Fisheries Act 1989
3. Interpretation
4. Certain functions discharged
5. Direction to allocate PRESA
6. No requirement for Commission
to report on PRESA
7. No ability for Minister to refer
report back to Commission
8. New Schedule 1B inserted
Schedule-Optimum Method for
Allocation

Mäori Fisheries Amendment

A BILL INTITULED

An Act—

To direct the Treaty of Waitangi Fisheries Commission to give effect to the Optimum Method for Allocation of assets held by it as at the day before the date of the Deed of Settlement dated 23 September 1992 between the Crown and Mäori

WHEREAS—
(a) the Commission held assets prior to the settlement of claims relating to Mäori commercial fishing rights, as embodied in a Deed of Settlement dated 23 September 1992 between the Crown and Mäori, and, pursuant to the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, was responsible for allocating the pre-settlement assets; and
(b) as the result of an extensive consultation process, undertaken in accordance with the resolutions set out in Schedule 1A to the Mäori Fisheries Act 1989, the Commission obtained the substantial agreement of iwi to the Optimum Method for Allocation of the pre-settlement assets, and adopted that method by resolution on 23 February 1999; and
(c) the Commission was injuncted and prevented from reporting the Optimum Method for Allocation to the Minister of Fisheries in accordance with the Mäori Fisheries Act 1989 and, thereby, prevented from giving effect to the Optimum Method for Allocation; and
(d) the Crown recognises that, in furtherance of its obligations under the Deed of Settlement dated 23 September 1992, its duties arising from the Treaty of Waitangi and in order to halt the significant losses that have accrued as the result of delay, it is now necessary to direct allocation of the pre-settlement assets to iwi in accordance with the Optimum Method for Allocation.
Mäori Fisheries Amendment

BE IT ENACTED by the Parliament of New Zealand as follows:

1. Short title and commencement—(1) This Act may be cited as the Mäori Fisheries Amendment Act 2000.
(2) This Act shall come into force on the earlier of a date to be appointed by the Governor-General by Order in Council or 31 December 2000.

2. Sections to be read with Mäori Fisheries Act 1989—This section and the next 6 succeeding sections shall be read together with, and deemed part of, the Mäori Fisheries Act 1989 (in those sections, referred to as the principal Act).

3. Interpretation—Section 2 of the principal Act is hereby amended by inserting, in appropriate alphabetical order, the following definitions:
“iwi” for the purpose of this Act, includes any body duly authorised and mandated to represent an iwi:
“PRESA” means all the assets held by the Commission as at the day before the date of the Deed of Settlement dated 23 September 1992, and includes any property or income acquired or derived from those assets that is held by the Commission at the time of allocation:
“Optimum Method for Allocation” means the method for allocation of PRESA set out in Schedule 1B to this Act.

4. Certain functions discharged—The principal Act is hereby amended by repealing section 6(e)(i) (as enacted by section 15 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992).

5. Direction to allocate PRESA—The principal Act is hereby amended by inserting, after section 7, the following sections:
“7A. Allocation of PRESA—Notwithstanding any other provision contained in this Act or any other Act, the Commission must, without delay, allocate and distribute PRESA to iwi in accordance with the Optimum Method for Allocation.

Mäori Fisheries Amendment

7B. No jurisdiction—(1) Notwithstanding any provision contained in this Act or any other Act or any rule of law, no Court or Tribunal shall have jurisdiction to enquire or further enquire into, or make any finding or recommendation in respect of, the Optimum Method for Allocation or this Act.
(2) Subsection (1) does not exclude the jurisdiction of a Court or Tribunal in respect of the interpretation or implementation of this Act .”

6. No requirement for Commission to report on PRESA—The principal Act is hereby amended by repealing section 9(2)(l) (as enacted by section 17(1) of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992).

7. No ability for Minister to refer report back to Commission—The principal Act is hereby amended by repealing section 9(4) (as enacted by section 17(2) of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992).

8. New Schedule 1B inserted—The principal Act is hereby amended by inserting, after Schedule 1A, the Schedule 1B set out in the Schedule to this Act.
Mäori Fisheries Amendment

SCHEDULE

New Schedule 1B inserted into Mäori Fisheries Act 1989

“SCHEDULE 1B

OPTIMUM METHOD FOR ALLOCATION

Classification of Fishstocks

A fishstock is defined as a fish species within a Quota Management Area (QMA).

All PRESA fishstocks are classified as inshore or deepwater depending on whether they are caught predominantly at depths less than or greater than 300 metres.

The table below sets out the classification of all 178 PRESA fishstocks.

Classification of Fishstocks for PRESA Allocation Purposes

Inshore Local Fishstocks (Adjacent Iwi Coastline)
CRAl CRA2 CRA3 CRA4 CRA5 CRA6 CRA7 CRA8 CRA9
FLA1 FLA2 FLA3 FLA7
GMUl GMU2 GMU3 GMU7
PAU1 PAU2 PAU3 PAU4 PAU5 PAU6 PAU7
PHCl

Inshore Mobile Stocks (Iwi Coastline Related to QMA Coastline)
BAR1 BAR4 BAR5 BAR7
BCO1 BCO2 BCO3 BCO4 BCO5 BCO7 BCO8
BNS1 BNS2
BYXl BYX2
ELE1 ELE2 ELE3 ELE5 ELE7
GUR1 GUR2 GUR3 GUR7 GUR8
HPB1 HPB2 HPB3 HPB4 BPB5 HPB7 HPB8
JDO1 JDO2 JDO3 JDO7
LIN1 LIN2 LIN3
MOK1 MOK3 MOK4 MOK5
RCO1 RCO2 RCO3 RCO7
SCH1 SCH2 SCH3 SCH4 SCH5 SCH7 SCH8
SKI1 SKI2 SKI3 SKI7
SNA1 SNA2 SNA3 SNA7 SNA8
SPO1 SPO2 SPO3 SPO7 SPO8
SQU1J
STAl STA2 STA3 STA4 STA5 STA7 STA8
TAR1 TAR2 TAR3 TAR4 TAR5 TAR7 TAR8
TRE1 TRE2 TRE3 TRE7
WAR1 WAR2 WAR3 WAR7 WAR8

Mäori Fisheries Amendment

Deepwater Fishstocks (Combined Coastline/Population)
BNS3 BNS7 BNS8
BYX3 BYX7 BYX8
HAK1 HAK4 HAK7
HOK1
JMA7
LIN4 LIN5 LIN7
OEO1 OEO3A OEO4
ORH1 ORH2A ORH2B ORH3A ORH3B ORH7A ORH7B
SQU1T
SWA1 SWA3 SWA4
LIN6 OEO6 SQU6T (Sub-Antarctic)
All Area 10 Quota (Kermadecs)

Allocation of Inshore Fishstocks

The fish caught predominantly at depths down to 300 metres belong exclusively to those iwi whose rohe are adjacent to the relevant QMA.

For each inshore fishstock, the portion of that fishstock that is allocated to an iwi is in the same proportion that the iwi’s length of coastline in the QMA bears to the length of the QMA coastline.

Allocation of Deepwater Fishstocks

A proportion of the fish caught predominantly at depths greater than 300 metres belongs exclusively to those iwi whose rohe are adjacent to the relevant QMA.

For 50% of each deepwater fishstock, the portion of fishstock that is allocated to an iwi is in the same proportion that the iwi’s length of coastline in the QMA bears to the length of the QMA coastline.

For the other 50% of each deepwater fishstock, the portion of fishstock that is allocated to an iwi is in the same proportion as that iwi’s population bears to the total iwi population.

Allocation to the Chathams

A 200 nautical mile circle drawn around the Chathams forms a “separate fishery” in which the total quantity caught of each fishstock is determined from Ministry of Fisheries’ catch data for the years 1990/91 up to the latest figures available at the time of allocation.

This quantity is expressed as a percentage of the total catch of the respective fishstock over the same period of years.

For each inshore fishstock this percentage of PRESA is allocated to the Chathams.

For each deepwater fishstock 50% of this percentage of PRESA is allocated to the Chathams.
Mäori Fisheries Amendment

The Chathams shares in the population component of all deepwater fishstocks in the same way as all other iwi.

Allocation of Fishstocks in FMA6 and FMA10

Quota whose QMA is FMA6 or FMA10 is classified as deepwater and is allocated 50% by iwi coastline relative to New Zealand coastline including the Chathams and 50% by iwi population including the Chathams.

Measurement of Coastline

The measurement of coastline will use 1:50,000 scale digital maps produced by Land Information New Zealand (LINZ).

Rivers and harbours are cut off across their natural entrance points and that distance is included in the coastline measurement.

Where the distance between the natural entrance points of a bay is 10 kilometres or less, the juridical bay test is applied to determine whether or not the bay is:

· a harbour which is cut off across its natural entrance points; or
· a bay whose coastline is included in the measurement.

The juridical bay test consists of calculating the surface area of the bay inside the line between the natural entrance points and comparing it with the surface area of a semicircle drawn on the same line between the natural entrance points.

If the surface area of the bay is greater than the surface area of the semicircle, the bay is treated as a harbour and its coastline is excluded from the coastline measurement. The line between the natural entrance points of the harbour becomes the “coastline” and is included in the measurement. If the surface area of the bay is less than the surface area of the semicircle, the coastline of the bay is included in the coastline measurement.

Inclusion of Islands in an Iwi Coastline

The coastline of an island is to be included in the coastline measurement of an iwi if the iwi can demonstrate all three of the following:

· Ahikaaroa (long and current habitation on the island);
· a traditional and separate fishing history associated with the island; and
· occupation of the island such as marae and other communal infrastructure.

Using these criteria Great Barrier Island and Stewart Island are the only islands that qualify.
Mäori Fisheries Amendment

Inshore Fishstocks in Harbours

A percentage of QMS fishstocks commercially caught within each harbour is to be applied to the PRESA fishstock quota and the resultant amount of quota is reserved for allocation to those iwi who border that harbour.

Percentage of Inshore Fishstocks in Harbours for Allocation

SPECIES
% TACC
QMA 1
Parengarenga
Flatfish 0.340
Grey Mullet 0.500
Trevally 0.400
Snapper 0.020

Houhora
Flatfish 0.080
Grey Mullet 0.200

Rangaunu
Flatfish 0.340
Grey Mullet 0.500
Trevally 0.200
Snapper 0.020

Mongonui
Flatfish 0.340
Grey Mullet 0.600
Trevally 0.300
Snapper 0.020

Whangaroa
Flatfish 0.340
Trevally 0.260

Upper Bay of Islands
Flatfish 0.170
Grey Mullet 0.500
Trevally 0.130
Snapper 0.040

Mäori Fisheries Amendment

Whangaruru
Flatfish 0.170
Grey Mullet 0.200
Trevally 0.130
Snapper 0.040

Whangarei
Flatfish 1.680
Grey Mullet 3.000
Trevally 4.670
Snapper 0.220
Rig 0.640
School Shark 0.750

Mangawhai
Flatfish 0.160
Grey Mullet 0.300
Trevally 0.030
Snapper 0.040

Tauranga
Flatfish 0.510
Grey Mullet 0.200
Trevally 4.670
Snapper 0.270

Ohiwa
Trevally 0.300

Aotea and Kawhia
Flatfish 0.240
Grey Mullet 0.500
Trevally 0.130
Snapper 0.040

Raglan
Flatfish 0.240
Grey Mullet 0.500
Trevally 0.130
Snapper 0.040

Port Waikato
Flatfish 0.160
Grey Mullet 7.000
Trevally 0.130
Mäori Fisheries Amendment

Manukau
Flatfish 8.270
Grey Mullet 17.490
Gurnard 0.090
School Shark 0.001
Snapper 0.070
Rig 6.670
Trevally 1.250

Kaipara
Flatfish 12.380
Grey Mullet 24.467
Gurnard 0.150
School Shark 4.300
Snapper 0.039
Rig 4.593
Trevally 1.241

Hokianga
Flatfish 0.800
Grey Mullet 0.800
Trevally 0.660
Snapper 0.180
Rig 0.640
School Shark 0.450

Marlborough Sounds
Flatfish 0.960
School Shark 0.940
Snapper 2.500
Rig 0.900
Blue Cod 1.600
Elephant Fish 5.900
Red Cod 0.160

Where more than one iwi is involved it is proposed that the reserved quota is divided by their own agreement or by the Commission's dispute resolution procedures.

The remainder of the available fishstock quota is allocated by the coastline method to all iwi with rohe adjacent to the QMA including those iwi who have received quota via their association with a harbour provided they also have a seaward coastline in the QMA.

Measurement of “Population”

For the purposes of this method of allocation, iwi population is as measured by the 1996 Census.
Mäori Fisheries Amendment

In calculations for fisheries allocation all iwi affiliations are counted.

Each iwi’s relative size expressed as a percentage will be used to determine each iwi’s share of PRESA. Individual iwi concerns will be dealt with by the Commission on a case by case basis.

Allocation of Cash and Shares

Of the PRESA cash, $10 million will be allocated to iwi via the Development Putea and allocation of the remainder will be in proportion to the iwi population.

Te Ohu Kai Moana Limited, a wholly-owned subsidiary of the Commission, holds approximately 68% of the shares in Moana Pacific Fisheries Limited.

The Commission has an 18.6% interest in Te Kupenga Limited, which holds the remaining 32% of Moana Pacific Fisheries Limited. Shares in Te Kupenga Limited will be transferred to Te Ohu Kai Moana Limited. Shares in Te Ohu Kai Moana Limited will be allocated to iwi in proportion to the quantity of quota (by tonnes) allocated to each iwi.

Development Putea

A Development Putea, in the form of a charitable trust, comprising $10 million of PRESA cash and the shares in Te Kupenga Limited currently held by the Guardian Trust on behalf of Te Puni Kokiri, will provide a means through which iwi can collectively discharge their trust obligations to all their beneficiaries, including those who have not maintained their iwi links.

The Development Putea will be managed by a Board of Trustees made up of 2 iwi and 2 urban Mäori representatives, who will be appointed by the Commission after receiving nominations from iwi and urban Mäori. The Commission will also appoint a further trustee as a chairperson, who will represent iwi interests.

The Board controlling the Development Putea will only be able to distribute profits derived from the capital of the fund. Distributions will be available on a contestable basis, and priority of access to the fund will be given to those who live outside their tribal rohe or whose iwi ties are not maintained.

The trust will be structured to ensure accountability to the beneficiaries. The trust will be required to submit to the Commission a draft annual plan prior to each financial year and an annual report reviewing the trust’s performance against the preceding annual plan, and the trust’s records will also be audited annually.

The Commission will the review of the operation of the Development Putea within 5 years of its establishment in order to assess its continued usefulness.”

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