Maori hoping action will land fishing review

By ANGELA GREGORY

Maori wanting to stop a $700 million fisheries allocation model from being introduced to Parliament say the proposed legislation is seriously flawed.

In the High Court at Auckland yesterday Maori disgruntled with the Waitangi Fisheries Commission's long-awaited model began to outline their case to have it stopped from being introduced as a bill.

They want time in which to seek a judicial review of the commission's report before it goes to a select committee.

The plaintiffs included some urban Maori, along with Te Runanga Muriwhenua, Sir Howard Morrison and others, and Nga Rauru O Nga Potiki and others.

In front of Justice Barry Paterson, lawyer Dr Don Mathieson, QC, opened their case to seek an interim order to stop further action on the model.

Dr Mathieson said Fisheries Minister Pete Hodgson had approved the substance of the commission's report, He Kawai Amokura, on how the valuable assets should be carved up.

In doing so an irreversible momentum had begun towards legislating the commission's proposals, he said.

Dr Mathieson said all Maori should be entitled to make submissions on what should be a lawful and valid report, where the commission complied with all its statutory requirements.

"It is in the public interest and of immense public importance that if there are any legal errors in He Kawai Amokura they should be exposed."

Dr Mathieson said legal error or flaws in legal reasoning might otherwise become ineradicable through the political system.

It was better that the commission be directed to reconsider its report and do additional work than leave the flaws to be argued about before a select committee, he said.

"It is therefore important that full judicial review not be impeded by an early introduction of legislation."

Dr Mathieson said there was naturally some judicial impatience with Maori fisheries litigation.

While the amount of litigation was unfortunate, the issues now being raised were of the utmost importance to the Maori involved, which included many from Northland, the Bay of Plenty and Rotorua.

"At least of equal importance to the value of the quota that they will receive, or be deprived of under the proposals, are questions of mana."

Each individual Maori in New Zealand had a right to be a litigant because the commission was a kind of trustee for the fisheries assets, for the ultimate benefit of all Maori.

Dr Mathieson said the commission had breached its duty to take into account past inequities in the tender and lease rounds of fishing quota.

The commission concluded there were no inequities but Dr Mathieson said there were gross disparities, which had mostly favoured the South Island iwi Ngai Tahu.

In 1990-93 the benefit to Ngai Tahu from the tender rounds was $7.6 million - or 66 per cent of the total benefit - yet Ngai Tahu was only about 6 per cent of the total Maori population.

"There is no indication that the commission has ever seriously grappled with the disparities."

Dr Mathieson said the commission had to promote the business and activity of fishing not just help those who were already in the industry.

He said the commission had also failed to fully consult Maori.

Ian Millard, QC, acting for various urban Maori groups, said they were seeking a declaration that the commission's report did not fulfil legal obligations.

They also sought a declaration that the Crown not take any further action until a full hearing on the matter was completed.

Mr Millard said Mr Hodgson and Parliament were entitled to, and ought to know, if the commission's proposal was legally valid.

He said that the commission as a trustee had a special fiduciary obligation to beneficiaries to ensure it acted even-handedly.

The hearing, which continues tomorrow, is set down for four days.


The story so far

1989: Maori fishing rights are recognised and a 10 per cent quota and $10 million is handed over.

1992: The Sealord deal involves Maori relinquishing commercial fishing rights for a package of quotas, cash and shares.

1995: Court of Appeal rules city-based Maori without tribal links could receive a share of settlement assets.

1997: The Privy Council overturns the ruling and a further High Court action alleges the commission was biased.

1999: The Court of Appeal rules allocation of assets should be to the traditional tribes.

2000: The Treaty Tribes Coalition indicates fresh litigation if a new commission tries to change the allocation model for assets.

2002: The South Island-based Iwi Forum, opposes the commission's allocation model. Various iwi say they will fight it through the courts.

2003: The plan - supported by 93.1 per cent of iwi representing 96.7 per cent of iwi-affiliated Maori - is presented to Fisheries Minister Pete Hodgson.