Old space, new space … Maori space?
Last Tai Pari we discussed the issue of an Environment Court decision, SMW Consortium Limited v Tasman District Council , where doubt was cast over the legislation promising Maori a 20 percent allocation of new marine farming licenses.
In its role as trustee under the Maori Commercial Aquaculture Settlement Act, Te Ohu Kaimoana has decided to appeal the Environment Court 's decision to the High Court. Te Ohu Kaimoana believes that it is appropriate for the High Court to review the decision while it is also considering similar issues in the Golden Bay Marine Farmers v Tasman District Council proceedings.
The Ministry of Fisheries has also indicated that it would become a party to the proceedings if an appeal were lodged. An appeal will provide an opportunity for other parties with a direct interest in the case to take an active role in the proceedings.
To remind readers, Te Ohu Kaimoana is an interested party in both proceedings mentioned above – the Environment Court case and the the High Court Golden Bay Marine Farmers proceedings. The cases are related to aquaculture activities within proposed aquaculture management areas (AMAs) in the Tasman District. They are the first proceedings related to the application and effect of the new legislative provisions concerning aquaculture, in particular the Maori Commercial Aquaculture Claims Settlement Act 2004, which came into force on 1 January 2005 .
In December 2005, SMW Consortium Limited sought a number of declarations in the Environment Court concerning mussel-farming applications that had been made to the Tasman District Council (TDC) in January 2005 immediately following the lifting of the Government's aquaculture moratorium. The TDC had initially declined to accept the applications on the grounds, among other things, that the proposed AMAs within the proposed Tasman Resource Management Plan were not yet operative.
The focus before the Court was the meaning of AMAs under the Resource Management Act, the effect of transitional provisions under the new 2004 legislation and the duty of the TDC to accept applications. Te Ohu Kaimoana was concerned about the potential effect of any decision by the Environment Court on the rights and interests of Maori under the Aquaculture Settlement Act.
The Environment Court handed down an interim decision in March and a final decision on 9 May this year. The major aspect of the decision, which affects iwi and Te Ohu Kaimoana, is that if applications must be accepted by councils for such proposed AMAs then it appears likely that those AMAs, when operative, will fall outside the definitions of either “new” space or “existing” space, with no obligation to allocate 20 percent of such space or the financial equivalent to Maori. This was certainly not contemplated when Maori agreed to the settlement or when the relevant legislation was enacted.
If you would like more information about these proceedings, please contact us at Te Ohu Kaimoana. -
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Protecting Māori fisheries assets for future generations