Tena koutou nga Morehurehu o nga tangata whenua o te Ao whanui
Greetings to the present-day survivors of Indigenous Peoples worldwide.
On april 30, the New Zealand Court of Appeal (CoA), ruled in what has been
a vexing and complicated issue surrounding the NZ Government's settlement
of all Maori Fishing Claims, following successful claims to Fishing rights
by various tribes before the Waitangi tribunal over the past decade.
In 1993 the Government entered into a "full and final" settlement of
fishing claims by providing $NZ170million (approx $US100million) to assist
Maori tribes to buy into the commercial fishing industry. The settlement
(referred to as the Sealord's Deal after the name of the company involved
in the buy-up) also confirmed the existing Maori ownership of 10% of
commercial catch quota, and promised a 20% share of all new commercial
species as they come into the quota management regime.
The case before the CoA was complicated by appeals and counter appeals to
test an earlier judgment as to who had the right to determine the mechanism
for the allocation of Maori fishing assets.
The CoA ruling, delivered by Cooke, J. stated that the Waitangi Tribunal
did not have the jurisdiction to determine how the assets should be
allocated amongst the tribes. His decision further stated that the
Settlement was as "pan-Maori" settlement and "not for the benefit of
selected groups of Maori only".
Cooke J., said that the legislation which followed the Sealords Settlement
Deal which extinguished all Maori claims to commercial fishing rights and
provided for Maori to buy into the Sealords company, specifically stated
that the settlement "was to benefit all Maori". Although variously
translated elsewhere as people/tribe/nation), the court also said that
"'iwi' refers to the people of tribes and this must include those entitled
to be members although their specific tribal affiliation may not have been
and even can not be established".
The CoA judgement has confirmed the power of government over iwi, as Mr
Apirana Mahuika, the Chairman of the Ngati Porou Runanga (Tribal Council)
has responded, "this is a judgement whereby a colonial government has made
an unwarranted and unwelcome intrusion into indigenous affiairs". Rather
than seeing the settlement from the claimants perspective as tribal
property rights finally restored after being taken from indigenous tribes
in a series of legislative thefts in the past, the CoA has confirmed the
colonial government's prespective that this is a "settlement which is not
related directly to the restoration of those rights but one which is merely
based on race".
The court's decision creates further anxiety in tribal circles because it
may be used as a precedent to allocate land rights in pan-Maori settlements
on the same basis rather than on the principle or restorative justice for
wrongs visited upon individual tribes.
It seems highly likely that the Waikato Raupatu (Land Confiscation)
settlement agreed to in 1995 between the NZ Government and the Waikato
tribe may be the last major settlement in which the principle of
restorative justice (meagre thought it might be) has operated. Tribal
leaders have argued that as resources and resource rights were taken from
specific tribes, they should not be returned to all tribes on the basis of
social equity funding, but should be returned to the descendants of those
people who have suffered the loss rather than to all Maori on a pan-tribal
settlement. If the CoA decision is going to set a precedent on claims
settlements, this may be it.
When the full judgement of the CoA is available in June, , this information
will be revisited.
Edward Te Kohu Douglas
Director, Maori Development Programme,
Social Anthropology,
University of Waikato
Private Bag 3105 Hamilton
AOTEAROA (New Zealand)
FAX +64 7 856-2158
phone +64 7 856-2889