Fisheries mess calls for miracle worker

By ANGELA GREGORY maori issues reporter

The Bible says Jesus fed a multitude with five loaves and two fishes. Distributing $800 million of Maori fishing assets may need the same miraculous touch.

The man called to perform the miracle is 40-year-old Shane Jones, newly appointed head of the revamped Treaty of Waitangi Fisheries Commission and its youngest member, as he has been since he first joined in 1993.

The commission, in its various forms, has for 11 years been minding a bundle of quota, cash and fishing company shares, the first lot transferred in the 1989 pre-settlement deal with the Crown.

In 1992 it further gained a 50 per cent share in Sealord Products (New Zealand's biggest fishing company) and 20 per cent of all new species brought into the quota management system as a full and final settlement for all fisheries claims.

The commission is charged with ensuring the allocation of those assets to iwi for the benefit of all Maori, but has been dogged by endless litigation and accusations of bias.

Its attempt last year to secure an allocation model was stymied by doubts about whether the proposal had enough support, and courtroom challenges by feisty urban Maori authorities wanting a slice of the action.

The proposed carveup of the pre-settlement assets would have seen inshore fish stocks allocated on an iwi coastline basis, and deepwater stocks evenly split between a coastline and population-based iwi share.

A $10 million development fund was to be put aside for Maori who did not maintain tribal links.

The model, accepted by most iwi, is now in abeyance as its underlying premise that traditional tribes should handle the assets is to be challenged before the Privy Council in London early next year.

Mr Jones and his 10 commissioners have meanwhile been given a year to find a way out of the impasse.

Through all the legal wrangling since 1995 the courts have defined iwi as the traditional tribal authorities, and it is through them that the fisheries assets are to be distributed.

Those who debate the definition argue that the tribes are not capable of delivering benefits to "all Maori" as required by the fisheries settlement legislation.

The harshest critics rubbish traditional iwi as archaic, rural, poorly led, and in some cases even untrustworthy.

Urban Maori authorities have been pursuing their case through the courts, although some have recently indicated that they might settle for more cash in the development fund.

Mr Jones' preferred option, what he calls his "non-parochial" and pan-Maori view, has been to not allocate the assets at all.

He wanted them retained in a critical commercial mass under the control of the commission, from which dividends could be issued.

"I have said on a number of occasions that such a commercial approach will outlast any political hotchpotch solution."

Mr Jones hoped a restructuring of the commission into a businesslike body would be possible under the existing framework, but legal advice was needed.

"The legislation can be interpreted in a range of ways, therein lies the difficulty."

Now he is chairman, Mr Jones says he will have to rise above his personal views and remain "somewhat aloof."

He is not predicting any outcomes except that there will be one, that it will be positive for all Maori, and that "there will be no sudden lurches."

He has faith that his fellow commissioners are capable of approaching the complex issues with open minds.

Maori Affairs Minister Parekura Horomia has brought seven new faces into the commission. High-profile members ousted to make way for them included the chairman, Sir Tipene O'Regan, of Ngai Tahu, and Tainui leader Sir Robert Mahuta.

The new members are being widely applauded for their mix of skills and experience. Appointees regarded as particularly significant because of their strongly urban backgrounds include June Jackson (chief executive of the Manukau Urban Maori Authority) and June Mariu (chairwoman of the Waipareira Trust.)

The appointment of retired District Court judge Ken Mason was a surprise, but it was well received by those who respected his "sharp mind and fairness."

Mr Jones said he did not believe any of the commissioners would undermine the importance of traditional iwi in any scheme designed to distribute benefits and assets.

A starting point for their discussions would be examining the legislative framework underpinning the commission's role.

Such a move could rattle the cages of the Treaty Tribes Coalition and Ngai Tahu, from which murmurings of possible legal action are already being heard.

They favour the former commission's model of allocation from which coastal iwi, which they represent, did very well.

Mr Jones is confident, however, that the "credibility" of participation and process will legitimise his commission's eventual decision, and limit its exposure to legal challenges.

Wellington lawyer and member of the Maori Law Commission Moana Jackson said the new commission was well skilled but would face inevitable problems.

"What they have been asked to do is incredibly difficult, even impossible unless the framework is reviewed ... it still has potential fishhooks."

Mr Jackson said there needed to be a clear distinction between who was entitled to the assets and the most effective method of distribution. "There has been too much confusion between iwi fishing rights and asset distribution."

Another Wellington lawyer, Donna Hall, said a lot of hope was vested in the new commission and its ability to stand at arm's length. But the commission's job was made extremely difficult by the legal definition of iwi.

"They are stuck with this dopey decision which leaves the new commission no flexibility."

Donna Hall is taking the case to the Privy Council for Wellington's urban Maori authority and as a representative action backed by the NZ Maori Council on behalf of individual Maori considered unlikely to benefit from the proposed allocation model.

She said the latter action arose from accusations of bias in the old commission over its interim allocation of fishing leases since 1990.

She implored the new commission to open the books: "That will tell the full story."

The story so far:

* In 1989, the Maori Fisheries Commission is set up to hold the assets from the interim fisheries settlement of that year. They include 60,000 tonnes of fish quota, a 68 per cent interest in Moana Pacific Fisheries, and about $50 million cash.

* In 1992, Crown and Maori sign a final deed of settlement, known as the Sealords deal, with half shares in Sealord Products and more quota. The Treaty of Waitangi Fisheries Commission, or Te Ohu Kai Moana, is formed and charged with ensuring that the allocation of the assets benefits all Maori.

* In 1995, the litigation begins: Lower Hutt and Auckland urban Maori authorities take High Court action to claim a share of the assets. The Waitangi Tribunal agrees to hear a claim lodged by the urban authorities, but the commission obtains a ruling to keep them out. The case then goes to the Court of Appeal, which rules that city-based Maori non-tribal links can receive a share of fisheries settlement assets.

* In 1997, the Privy Council overturns the ruling, saying the court had defined iwi without hearing submissions on it. Further High Court action alleges that the commission is biased.

* In 1998, the High Court rules that the allocation of assets should be by iwi, the traditional tribes. The Optimum Model for Allocation is finalised with majority support.

* In 1999, the commission planned to report to the Government on the model, but was prevented by an interim court order. The Court of Appeal, meanwhile, upholds the High Court decision.

* This year papers are filed to the Privy Council by parties including Wellington and Auckland urban Maori authorities. A hearing is expected next February.

* Recently appointed Maori Affairs Minister Parekura Horomia announces the new, and overdue, appointments to an 11-member commission which now has a year to find an acceptable compromise to end the disputes.