Photo: 123RF
The High Court has found the Crown has breached one of New Zealand's oldest Treaty Settlements by appropriating Māori fishing quota without compensation.
It relates to the 1992 Fisheries Settlement, commonly known as the Sealord Deal, which funded the purchase of a 50 percent stake in Sealord and protected Māori fishing rights and interests in perpetuity.
The court found the Crown had breached the 1992 settlement and by extension the Treaty of Waitangi.
Te Ohu Kaimoana acting chairperson Dion Tuuta said it had been a long journey to get to this point, Te Ohu Kaimoana has been trying to seek accommodation from the Crown for the last ten years and he was hopeful the Crown will take a principled position on the decision.
Tuuta said he didn't want to prejudice any discussions with the Crown but said the compensation Māori were owed was "substantial".
"This kaupapa was always about mana, not money. So essentially one of the key thing we'll be looking for is for the Crown to live up to its obligations it signed up to as part of the Fisheries Settlement."
The Crown makes promises in Treaty Settlements and iwi have expectations that it lives up to those promises, he said.
"The Crown's debt should not have be borne by iwi and it's really up to the Crown to remedy that situation, so we are hopeful that the Crown accepts that and we can move forward and put this behind us."
Fishing Quota and 28N Rights
At the centre of the case is the introduction of the Quota Management System (QMS) in 1986. The QMS operated as a fixed tonnage regime, the Crown would assess whether a fishery was sustainable or not and allocate fishing quota on that basis.
It included the option of a 28N right, to compensate owners for the money they would lose as a result of the QMS. They could choose to be paid out or be first in line to be given new quota at zero cost once fishery stocks recovered.
"The 28N right was essentially a guarantee that when the fishery recovered that they would have the first right to access the quota when it came back, and at the stage that guarantee would be covered by the Crown," Tuuta said.
Te Ohu Kaimoana acting chairperson Dion Tuuta. Photo: Supplied / Erica Sinclair
But in the early 2000's this system changed so that rather than the Crown bearing the debt it would be made up be reallocating quota's from other fisheries, he said.
That meant other quota owners would lose a portion of their quota, that included Māori settlement quota which was guaranteed to Māori under the 1992 Fisheries Settlement, he said.
"We've basically been arguing at its most simplistic that the Crown's debt to the 28N right holders should not be paid for by Māori settlement quota.
"One thing that we've always been clear about is that this case was never about those companies or those individuals who had 28N rights, those people made a decision at the time which was actually in the best interest of the fisheries... The Treaty claim has always been about the Crown's promises to Māori and in this case what the Court found was that the Crown elevated the rights of the 28M holders over those of its Treaty partner."
The court found if Māori negotiators had known settlement quota would be subject to reappropriation, without compensation, in years to come they never would have accepted the 1992 settlement.
Minister responds
Minister for Oceans and Fisheries Shane Jones said the government was currently seeking advice on how to respond to what he called a "longstanding, knotty" issue.
"Obviously the High Court has found there was merit in the Te Ohu Kaimoana's claim, we're taking advice, I don't want to make any abrupt decision and worsen matters."
Jones said he will be working through the issue with his fellow ministers before making a call on the government's next step.
"The next steps will require discussion with the other senior ministers," he said.
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