MŌ Te Ohu - About Te Ohu

Treaty of Waitangi Fisheries Commission's Submission on Tapui Taimoana: Reviewing the Marine Reserves Act 1971

Overview

  1. Te Ohu Kai Moana is supportive of the need to review the Marine Reserves Act, and the way in which marine reserves are established and managed. However, we have major reservations about both the narrow focus of the review and its timing in relation to the development of an overarching national policy for marine management in the form of the Government's Oceans Policy.

  2. Te Ohu Kai Moana is concerned that the discussion document, Tapui Taimoana: Reviewing the Marine Reserves Act 1971, implies that Maori rights to fisheries are solely customary (non-commercial). Under both the Maori Fisheries Act and the Treaty of Waitangi (Fisheries Claims) Settlement Act, Maori rights to fisheries are recognised as commercial and non-commercial. Both stem from the same Treaty right.

  3. In Te Ohu Kai Moana's, view the purpose of the Marine Reserves Act should be to provide high level protection to ecosystems which need to be protected from numerous sources of risk.

  4. An absolute minimum Treaty of Waitangi reference in the Marine Reserves Act must read:

    Act to give effect to Treaty of Waitangi - This Act shall be interpreted and administered as to give effect to the principles of the Treaty of Waitangi.


  5. Te Ohu Kai Moana is of the view that it is not appropriate to simply expand the purpose of the Marine Reserves Act to fill all the legislative gaps that currently exist in relation to marine protection, such as marine historic heritage or scenic or geological features. These should not be included in this statute.

  6. Te Ohu Kai Moana believes that Maori customary fishing rights must have priority over the establishment of marine reserves. Considering all New Zealand's coastal zone come within a rohe moana of a specific Iwi then the consent of that Iwi and its constituent hapu must be a prerequisite to the establishment of a marine reserve.

  7. Te Ohu Kai Moana would agree to marine reserves being no-take areas if the purpose of the Marine Reserves Act is focussed solely on the provision of high level protection for marine biodiversity and the informed consent of the Iwi in whose rohe moana the reserve was proposed is obtained.

  8. Te Ohu Kai Moana proposes that to maintain the integrity of existing rights, any displacement should recognise the degree of displacement and provide appropriate compensation. Consequently assessment methods for the potential loss of existing rights will need to be developed.

  9. The question; 'how should tangata whenua be defined?', should be rephrased to focus on the issue of how tangata whenua should be represented rather than asking how tangata whenua should be defined.

  10. The process for establishing Marine Reserves must be transparent and subject to review.

_____________________________________________________________________
Introduction

  1. 1. This submission is made on behalf of the Treaty of Waitangi Fisheries Commission (Te Ohu Kai Moana). Te Ohu Kai Moana has a statutory obligation 'to facilitate the entry of Maori into, and the development by Maori of, the business and activity of fishing.'

  2. Maori through Te Ohu Kai Moana are key commercial stakeholders in New Zealand's fishing industry. Maori have a substantial interest in over 303,000 tonnes of quota representing some 47 % of the Total Allowable Commercial Catch (TACC).

  3. Te Ohu Kai Moana's responsibilities include:
  • Stewardship of assets;
  • Allocation of assets;
  • Leasing quota;
  • Developing new Maori Fisheries legislation;
  • Input into fisheries policy and management issues;
  • Training and development.
  1. Te Ohu Kai Moana's vision for the management of the marine environment is that it will promote sustainable development: growth that builds economic, social and cultural strength while maintaining ecological integrity and health.

  2. Te Ohu Kai Moana also has an additional and fundamental concern with protecting and enhancing the rights of Maori secured and guaranteed by Te Tiriti o Waitangi: "te tino rangatiratanga … o ratou wenua o ratou kainga me o ratou taonga katoa." or the "full exclusive and undisturbed possession of their Lands and Estates Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession."

  3. These Treaty rights were reaffirmed in the Conservation Act (1987), Maori Fisheries Act (1989), the Deed of Settlement (1992), the Treaty of Waitangi (Fisheries Claims) Settlement Act (1992), and the Fisheries (Kaimoana Customary Fishing) Regulations (1998). Te Ohu Kai Moana works to enhance the Treaty rights of Maori in relation to all aspects of fisheries and the marine environment.

  4. The discussion document, Tapui Taimoana: Reviewing the Marine Reserves Act 1971, implies that Maori rights to fisheries are solely customary (non-commercial). This is incorrect. Under both the Maori Fisheries Act and the Treaty of Waitangi (Fisheries Claims) Settlement Act, Maori rights to fisheries are recognised as commercial and non-commercial. Both stem from the same Treaty right. The discussion document does not identify the Treaty implications of the significant Maori rights to commercial fisheries, nor the potential effect that marine reserves may have in eroding the ability to exercise these rights. Under Te Ohu Kai Moana's current optimum method of allocation, quota for inshore fisheries held by the Commission, will be allocated to Iwi on the basis of 'coastline'. It is these commercial, as well as customary (non-commercial), fisheries which are most likely to be affected by the establishment of marine reserves. The implementation could also affect claims to the foreshore and seabed which are still to be determined.


Part 1: Key Issues in Marine Reserves

Overarching National Policy for Marine Management - Oceans Policy

  1. Te Ohu Kai Moana is supportive of the need to review the Marine Reserves Act, and the way in which marine reserves are established and managed. However, we have major reservations about both the narrow focus of the review and its timing in relation to the development of an overarching national policy for marine management in the form of the Government's Oceans Policy.

  2. The Oceans Policy process has been established to identify goals and principles for managing the marine environment and to design tools to achieve that vision. The Oceans Policy was initiated in response to a need for clear policy goals and an integrated and comprehensive policy and legal framework for oceans management.

  3. The Oceans Policy has three stages:
  • defining the vision (by 30 September 2001);
  • designing the tools to achieve the vision (by 1 October 2002); and
  • delivering the vision (by 30 June 2003).
  1. The current review of the Marine Reserves Act is taking place in advance of, and in isolation from, the appropriate stage of the Oceans Policy. While the Oceans Policy is still only in stage one "defining the vision", there is no coherent over-arching strategy on marine protection to guide the Marines Reserves Act review.

  2. The Marine Reserves Act review is therefore taking place in the absence of any well-informed, coherent over-arching policy for marine protection. Considering this, the Marine Reserves Act review risks perpetuating the same problems the Oceans Policy was designed to overcome, i.e. a piecemeal approach to marine ecosystem management. The review of the Marine Reserves Act undermines the purpose of the wider Oceans Policy process.

  3. Without a common understanding of these over-arching issues, some of the questions posed in the discussion document, such as the 'purpose of the Act' cannot be adequately answered.

  4. Considering this, Te Ohu Kai Moana is of the view that Stage 1 of the Oceans Policy (defining the vision) should be completed before decisions are made about the role and content of the Marine Reserves Act review. This would require delaying decisions until October 2001. Any changes to the Marines Reserves Act should be made within the context of Stage 2 of the Oceans Policy (designing the tools to achieve the vision).

  5. Te Ohu Kai Moana proposes that in the interim officials, industry, local government and the science sector work together to develop a programme to progressively identify our coastal marine ecosystems and any accompanying risks to them. This will identify marine areas which are deemed to require high-level protection, or ecosystems deemed to be of unique scientific importance be identified so that the nature and extent of these areas can be ascertained. By undertaking such an exercise a co-ordinated management approach can be taken in protecting these areas and mitigating the effects on other users.

Purpose of the Marine Reserves Act

  1. As mentioned above, it is difficult to make constructive and informed comments about the purpose of the Marine Reserves Act in the absence of an overarching national policy framework for marine management and protection. However, Te Ohu Kai Moana accepts that the current purpose of the Act does not reflect the manner in which the Act is currently being applied. For example, most of the marine reserves established recently have been established to protect marine biodiversity or natural habitat features, rather than the current purpose of the Act which is to preserve areas in their natural state as the habitat of marine life for scientific study.

  2. Te Ohu Kai Moana is of the view that it is not appropriate to simply expand the purpose of the Marine Reserves Act to fill all the legislative gaps that currently exist in relation to marine protection, such as marine historic heritage or scenic or geological features. The Marine Reserves Act is just one of a number of legislative tools available for providing various forms of protection to the marine environment. The main feature that distinguishes the Marine Reserves Act, compared with other legislative tools, such as area closures, seasonal area closures, restrictions on certain fishing techniques under the Fisheries Act, is that the Marine Reserves Act provides a high level of protection from all manageable sources of risk. As noted above Te Ohu Kai Moana's vision is for sustainable utilisation that maintains ecological integrity. However, Te Ohu Kai Moana considers that there does remain a need for high level protection for some marine areas in some circumstances. However, given the impacts of such high level protection on the Treaty rights of Maori (both customary and commercial) to the marine environment, including the seabed, the purpose of the Act must remain tightly focused on management objectives that can not be managed by other legislative tools to mitigate or remedy risk to areas.

  3. Te Ohu Kai Moana is of the view that when there is a significant risk or a combination of risks to marine biodiversity those risks must be clearly identified as the first priority. Once this has been achieved then the best tool must be adopted to mitigate or remove that risk. For example, if marine biodiversity requires protection from a specific fishing activity, such as trawling, or set netting, then a fisheries management tool (under the Fisheries Act) should be implemented. Should marine biodiversity require protecting from land use effects, such as agricultural run-off, then the Resource Management Act or non-regulatory measures should be the appropriate tool to mitigate or remedy that risk. However, should a marine area need protecting from a myriad of risks then this is the role of a marine reserve. In Te Ohu Kai Moana's view the purpose of the Marine Reserves Act should be to provide high level protection to ecosystems which need to be protected from numerous sources that collectively pose a significant risk.

  4. Over-arching policy developed under the Oceans Policy could contain a series of tests (similar to section 32 of the RMA) to direct decision makers to the most appropriate legislative tool that provides the most appropriate protection for the marine biodiversity under consideration.

  5. It is the view of Te Ohu Kai Moana that should marine biodiversity be threatened by a number of activities, such as specific fishing activities, land use effects, mining, boating or other recreational activities then a high level management tool would be required to remedy or mitigate all these risks. This then would be the role of a marine reserve, a high level protection tool to be utilised when other statutes do not provide the necessary tools to remedy, remove or mitigate the combination of significant risks to marine biodiversity.

Impacts of high level protection on Maori commercial and customary fishing rights

Maori customary fishing

  1. Table 1 of the discussion document identifies taiapure and mahinga mataitai as 'other management tools with protection as their purpose'. This is incorrect and misleading. The purpose of taiapure is 'to make, in relation to areas of New Zealand fisheries waters (being estuarine or littoral coastal waters) that have customarily been of special significance to any iwi or hapu either - as a source of food; or for spiritual or cultural reasons, - better provision for the recognition of rangatiratanga and of the right secured in relation to fisheries by Article II of the Treaty of Waitangi.' While the Fisheries (Kaimoana Customary Fishing) Regulations provide for customary food gathering and the special relationship between the tangata whenua and places of importance for customary food gathering. While they can operate to remedy or mitigate specific risks to fisheries and habitat they are both primarily fisheries management tools which recognise specific non-commercial aspects of Maori aboriginal rights secured and guaranteed under the Treaty of Waitangi.

  2. The Iwi that occupy the coastal area of New Zealand have traditional territories which extend from the coastline out to New Zealand's Exclusive Economic Zone (EEZ). These traditional marine areas are referred to as rohe moana. Within each rohe moana there exists a complex set of rights, based on whakapapa, which operate to determine who can take certain marine species, harvest in particular areas, and at what times harvesting can occur. These rights operate on three levels: whanau, hapu and Iwi and were recognised and guaranteed by the Treaty of Waitangi and recently reaffirmed by the Treaty of Waitangi (Fisheries Claims) Settlement Act (1992).

  3. To control human behaviour over marine resources tapu and makutu were applied to protect marine resources against unsustainable use by restraining the manner of use and extent of user. Rahui were applied to prohibit use of particular fishing grounds that were under pressure, or to prevent fish being taken out of season. These management tools are examples of some Maori cultural practices utilised to ensure sustainability of marine resources and the future wellbeing of hapu and Iwi.

  4. Under the Treaty of Waitangi (Fisheries Claims) Settlement Act, regulations were developed by the Crown, in consultation with hapu and Iwi, to provide legal protection for these unique customary practices. When a marine reserve is established within a rohe moana they inevitability overlay an already established set of rights and suppress the exercise of those rights. Because of this there is a great tension between Maori fishing rights and marine reserves.

  5. The Fisheries (Kaimoana Customary Fishing) regulations promulgated for both the North and South Islands have only been in effect for a short period of time. There are problems within the current regulations associated with the dispute resolution procedures relating to the confirmation of Tangata Kaitiaki/Tiaki. Because of this the establishment of mahinga mataitai has been a very slow process. Many Iwi and hapu remain without a clear legal framework for exercising their customary rights to sustainably manage their fisheries. While these drawn out dispute resolution processes remain Iwi and hapu can not establish mahinga mataitai within their rohe moana.

  6. An example where there was conflict between a marine reserve and mahinga mataitai was evident in the marine reserve proposal for Parininihi in North Taranaki. Here, Ngati Tama sought to establish a mahinga mataitai to protect their customary fishing grounds (the Pariokarewa reef), while the Department of Conservation sought to establish a marine reserve which would extinguish Maori customary fishing rights to the traditional fishing ground. The conservation values sought to be protected by the Department of Conservation by establishing a marine reserve could have been easily met under customary fishing regulations.

  7. Te Ohu Kai Moana believes that Maori customary fishing rights must have priority over the establishment of marine reserves. Considering all New Zealand's coastal zone come within a rohe moana of a specific Iwi then the consent of that Iwi and its constituent hapu must be a prerequisite to the establishment of a marine reserve. Maori customary fishing rights, along with Maori commercial rights, are Treaty rights and the Crown has an active duty to protect those rights.

  8. A priority for customary fishing rights is consistent with the Convention on Biological Diversity (CBD), which recognises the inter-relationship between cultural diversity and biological diversity. For example, Article 8 (j) of the CBD states: "Subject to its national legislation respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for conservation and sustainable use of biological diversity and promote their wider application…". While Article 10(c) states: "Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements."

  9. Iwi must be consulted when there is an intention to establish a marine reserve within their rohe moana from the beginning of an application. The rationale for establishing a marine reserve, along with the environmental impacts which an area needs protection from, must be clearly identified prior to consultation beginning.

  10. Te Ohu Kai Moana would agree to marine reserves being no-take areas if the purpose of the Marine Reserves Act is focussed solely on the provision of high level protection for marine biodiversity and the informed consent of the Iwi (in whose rohe moana the reserve was proposed) was obtained. With the purpose of the Act focussed on high level protection from numerous sources that collectively pose a significant risk, any extractive use could undermine the purpose of the high level protection and would reduce the effectiveness of the marine reserve.

  11. However, if the purpose of the Act is broadened as suggested in the discussion document to enable marine reserves to be established for other purposes, such as protection of natural or heritage features, then Te Ohu Kai Moana sees no reason to prohibit sustainable use of marine resources, as that use would in all likelihood not put the protected area at risk.


Maori Commercial Fishing Rights

  1. Te Ohu Kai Moana proposes that to maintain the integrity of existing rights, any displacement should recognise the degree of displacement and provide appropriate compensation. Consequently assessment methods for the potential loss of existing rights will need to be developed.

  2. One method for assessing the potential loss of existing rights would be for the Marine Reserves Act to be linked to a list of criteria or considerations to be taken into account when determining the existence or magnitude of any effects on fishing. For example, the test could be based around a requirement to avoid, remedy or mitigate any adverse effects on fishing, and considerations in relation to determining an "adverse effect" could include:
  • Fishstock-specific matters (e.g., the spatial extent of a particular fishery, whether the species are sessile, sedentary, demersal or pelagic);
  • Economic considerations (effects on income, including costs of participating in the process, and the value of property rights); and
  • Temporal concerns (past and future improvements in a fishery that existing proportional rights holders might legitimately expect a share of. For example enhancement activities).

Does the Marine Reserves Act need to change to recognise Treaty Principles?

  1. The lack of a Treaty reference in the Act does not reduce the Crown's Treaty obligations as the reference in section 4 of the Conservation Act applies to the Marines Reserves Act. This section creates a precedent for recognition of the Treaty of Waitangi in the reviewed Marine Reserves Act. The Marine Reserves Act impacts on both commercial fisheries and other properties (coastal space), as well as the ability of Iwi and hapu to exercise their customary rights to traditional resources. The Treaty guarantee in the Conservation Act requires the consent of Maori when these rights are impacted upon.

  2. The Crown is obliged to give effect to the Treaty of Waitangi not only in the administration of the Marine Reserves Act, but also in the consultation and development of the Marine Reserves Act review itself.

  3. An absolute minimum Treaty of Waitangi reference in the Marine Reserves Act must read:
  • Act to give effect to Treaty of Waitangi - This Act shall be interpreted and administered as to give effect to the principles of the Treaty of Waitangi.

How should Tangata Whenua be defined?

  1. This question should be rephrased to focus on the issue of how tangata whenua should be represented rather than asking how tangata whenua should be defined.

  2. This is a major issue with huge implications for the future of Iwi governance and the management of marine resources.

  3. The definition of 'tangata whenua' is based on whakapapa and historical associations between people and land. It can only be those who are expert in such matters who can define 'tangata whenua'. It is of concern that this is a question that has been opened by the discussion document for discussion by those who maybe uninformed on the dynamics of Maori society.

  4. What is at issue here impacts on the integrity of Iwi governance. In relation to the Treaty of Waitangi (Fisheries Claims) Settlement Act, Te Ohu Kai Moana has recognised Iwi as the governing body for commercial fisheries management. Iwi are the 'tangata whenua' for a specified rohe. Within that rohe there are numerous hapu which constitute the Iwi. It is for Iwi members to determine how decision making is distributed between Iwi and hapu.

  5. When a Crown, or external agency wishes gain consent for work within an Iwi rohe which affects their fisheries, in the first instance, an approach must be made to the mandated Iwi organisation for the specific rohe. Establishing the mandated Iwi organisation as the first point of contact for issues which affect Iwi fisheries provides the Iwi organisation with the opportunity to monitor the activities which are occurring within their rohe which may impact on their commercial and customary fisheries management. In this way the Iwi can advise on the effects that proposals such as establishing a marine reserve, may have on the sustainable management of their fisheries.


Part two: Establishing and Managing Marine Reserves

The Role of the Department of Conservation in Establishing Marine Reserves and establishing a transparent process

  1. The establishment of Marine Reserves must be a transparent process and subject to review. A conflict of interest arises when the Department of Conservation is both the promoter of a marine reserve and the Crown agency who assesses the proposal's merits.

  2. The Water Conservation Order (Part IX of the Resource Management Act) has a process which is already established which offers some guidelines on how national, local and individual interests could be balanced when the Minister of Conservation considers objections, evaluates an application, or decides what can occur in a marine reserve.

  3. Under a similar process, developed under the Marine Reserves Act review, once the Minister of Conservation has received an application (following wide consultation with affected parties) formal notification, submissions and hearings (held by a commissioner or a special tribunal if the Department of Conservation is the applicant) can proceed. Once this has occurred a publicly notified report and recommendation is provided to the Minister of Conservation from either the Department of Conservation, commissioner or special tribunal. The applicant or affected parties may appeal the decision of the Department/commissioner/special tribunal to the Environment Court. If there are appeals, the Environment Court can convene an enquiry and then report its findings and recommendation to the Minister of Conservation. The Minister of Conservation then makes the final decision, subject to the concurrence of other Ministers, such as the Minister of Fisheries. The Minister would be obliged to give reasons if the recommendation of the Environment Court was rejected.

  4. The above process removes the conflict of interest when the Department of Conservation is both the applicant and assessor of a marine reserve proposal. It also provides a transparent process where affected parties can have their concerns heard in an open forum.


Time Limitation

  1. The purpose of a reserve is to maintain the biological integrity of the ecosystem. Over time, the risks and pressures on the area and those surrounding it will change. Iwi who commented on Te Ohu Kai Moana's draft submission expressed a wish for marine reserves to have a time limitation (25 years) on the existence of marine reserves. Once this period expired the area's conservation or scientific values may be able to be managed under a different framework which provides for sustainable utilisation, such as the exercise of customary fishing rights. Te Ohu Kai Moana supports this time limitation.

Role of the Minister of Fisheries

  1. The discussion document is silent on the current concurrence role of the Minister of Fisheries. Te Ohu Kai Moana supports the retention of the Minister of Fisheries' concurrence role, alongside the inclusion of more specific criteria to guide decision making. The recent court case concerning Te Tapuwae o Rongokako Marine Reserve identified the lack of a clearly defined role for the Minister of Fisheries in the decision making process.

  2. Te Ohu Kai Moana supports the SeaFIC recommendation that the specific evaluation responsibilities of the Minister's concurrence role be clarified. For example, it may be appropriate for the Minister of Fisheries to have specific responsibility, among other matters, for:
  • evaluating whether a marine reserve or a Fisheries Act tool is more appropriate in achieving the desired management objective; and
  • assessing the actual and potential cumulative effects on fishing and fisheries management of a marine reserve proposal in the context of other management measures operating in the area (fisheries plans, closures under the Fisheries Act etc).