Reeling in the decades

By GRAHAM REID

Maui threw his hook and line overboard ... And to many it sometimes seems that's when the problems with the fishing industry began.

News last week that a deal seems certain to end the long-running Maori fisheries disputes and stalemates has left many with a sense of relief - but also a case of deja vu.

Maori fishing allocations have notoriously hogged headlines and bent some of the finest minds of a couple of generations. They have also spawned the growth industry of iwi lawyers.

Deals have been struck but, as pen was poised over paper, a subclause, subtribe or subversive character would appear from the wings. The agreement would fall over or be sent back for further consideration by patient iwi and pleased lawyers.

Last week an injunction - taken to the High Court in Auckland by lawyer Donna Hall, the New Zealand Maori Council and other parties unhappy at the Waitangi Fisheries Commission proposals for divvying up the industry - was turned down. So the commission's 300-page outline could be handed to Fisheries Minister Pete Hodgson and the fraught matter could finally be resolved.

This progress for the $700 million proposal allocating fishing rights and defining the role of the supercompany Aotearoa Fisheries Ltd meant lots of people were smiling, even more breathing sighs of relief.

All that remains will be a safe passage through Parliament - there'll be shots fired, but you'd expect that - and then it will be passed into law, maybe as soon as October.

After that it'll be "come back to my marae" for some kaimoana and backslapping.

As Treaty of Waitangi Fisheries Commissioner Shane Jones had said of AFL, Maori could now move from the courtroom to the boardroom.

The model presented should ensure that. It stipulates that members of the new commission, Te Ohu Kai Moana, must be Maori and settlement beneficiaries. Former Waitangi Fisheries Commission chairman Sir Tipene O'Reagan, an opponent of the allocation model, called that "childishly racist", but Sonny Tau, chairman of the new commission Te Runanga A Iwi O Ngapuhi, denied it and said it was about time Maori made a stand.

This week one did, but not in quite the way anyone expected. Although given the convoluted, divisive history of Maori fishing claims it was hardly surprising.

The voice calling from the shore as the boat sailed belonged again to lawyer Donna Hall. The people she represented in the North Island still thought the allocations were unfair and she would go to court again to halt the deal.

Her case was complex and confusing. In a baffling "she said/he said", Hall claimed her court action intended to halt the settlement to allow further consideration had been paid for by Te Arawa.

Various Te Arawa leaders said they weren't paying her and actually approved of the deal. She countered, saying some Te Arawa subtribes weren't happy - but wouldn't say who they were.

It didn't help when it seemed she had stepped out of the movie The Sixth Sense and was speaking for dead people. The court action she filed included the names of two men who have been dead for about three years.

This isn't as laughably Third World as it sounds and Hall admitted their names shouldn't have been on the papers. But it is confusing when the lawyer who has put a log across the slipway says that only later in the week will she have a better idea of who she is representing. She needed to check?

Not only do most lawyers know who they are representing (ie, being paid by) but many bill every 12 minutes, which is why you should always speak fast and never phone them at work.

For the layperson wondering what was going to happen to all that fish flesh waiting to be hauled up by someone other than the Taiwanese, this was all too familiar: a deal almost brokered but stymied at the last minute.

This just looked like another footnote in the never-ending story, which began in 1989 and has been punctuated by litigation, court action, appeals and mounting fees for lawyers.

Along the way things also got personal. There was the schism between North and South Island iwi over the value of the allocations. The late Tainui leader and commission member Sir Robert Mahuta claimed a "gross distortion" would give South Island's Ngai Tahu - whose Sir Tipene was the commission's chairman - more than $86 million in assets. North Island's Ngapuhi, with more than three times the population of the South Island iwi, would get only a bit more than $22 million.

When the cost of commissioners' fees and lawyers became known, people's eyes rolled - and then heads rolled. Within Maoridom harsh things were said and it's hard to imagine some of the name players of five years ago will be able to share a transit lounge, let alone a reception at Parliament, again.

But now the end is in sight. Yes, again. Hall's action - if it happens at all - should be little more than a snag when lined up against all that has gone before.

There is actually much good news about this fraught and important issue of allocations, containers of frozen fish and the cash they generate.

Since late last year, when the dissenting Iwi Forum proposed an alternative allocation model, there has been clever deal-brokering and now widespread agreement on the creation of AFL. It will be an umbrella company overseeing six others, including Moana Fisheries and Sealord, which have presences in Europe, Britain and Asia.

AFL's annual profit in the first few years is expected to be around $30 million - between a third and a half of our commercial fishing industry - with 40 per cent of profits being returned to iwi.

The company will have five commercially experienced directors - all Maori, it would appear - who Jones admits will be watched carefully by those in and outside Maoridom.

So this could be the beginning of the end again. Or maybe it's just the end of a beginning again.

Some iwi are preparing to argue their claim for 20 per cent of new aquaculture farming areas. At least one iwi is saying it may have rights over already existing marine farms. A Waitangi Tribunal report will support iwi claims over marine farming waterspace and says proposed changes to aquaculture breached at least four treaty principles.

That sounds like an interesting, tetchy discussion. And bound to involve a lawyer or two.

Watch this space - in about a decade?

FULL AND FINAL?

1989: Maori fishing rights are recognised by the Crown and a 10 per cent quota and $10 million in cash is handed over.

Many thought this was the end of simmering discontent. In fact, it was just the beginning of 15 years of claim and counterclaim.

1992: The Sealord deal and Maori relinquish commercial fishing rights for a package of quotas, cash and shares. It was considered a "full and final settlement". We should have been so lucky.

The Treaty of Waitangi Fisheries Commission is established and charged with ensuring the allocation of those assets to iwi for the benefit of all Maori, but it will be dogged by litigation and accusations of bias.

1995: Lower Hutt and Auckland urban Maori authorities take High Court action to claim a share of the assets.

The Waitangi Tribunal agrees to hear their case, the commission obtains a ruling to keep them out, and a case goes to the Court of Appeal. It rules city-based Maori without tribal links could receive a share of fisheries settlement assets.

And that could - some would say should - have been the end of the matter.

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

Sandra Lee, Deputy leader of the Alliance, accuses the commissioners of "creaming it" while Maori languish on dole queues.

1999: The Court of Appeal rules allocation of assets should be by iwi, defined as the traditional tribes. Maori Affairs Minister Tau Henare wants to replace the commission because of lack of progress.

Willie Jackson of the Manukau Urban Maori Authority calls for Sir Tipene O'Regan to go.

2000: Maori Affairs Minister Parekura Horomia cleans out the commission and dumps chairman O'Regan along with Sir Robert Mahuta and four other members. He announces new members and gives them a year to overcome inter-Maori feuding.

The Treaty Tribes Coalition indicates fresh litigation if the new commission tries to change the allocation model for assets, decided by the old commissioners.

2001: Lawyer Annette Sykes says the sum received by an unnamed former commissioner in annual fees - $330,000 - is "obscene" and, as Sandra Lee had four years previously, compares it to the income of the average Maori. It is an increasingly familiar refrain.

2002: Figures show $11 million in fees has been paid to commissioners since 1990. MP John Tamihere says the amount is higher because some have been also acting as consultants.

Since 1990 there have been 24 commissioners, who have earned on average $460,000 from the commission, or its subsidiary companies. O'Regan was paid a total of $2.1 million.

The South Island-based Iwi Forum, which says it represents 60 per cent of New Zealand's 78 iwi, opposes the commission's allocation model.

Various iwi say they will fight it through the courts. Late in the year impasses between most of the different factions are broken, although others say they will still oppose it.

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.

The end is in sight - again. But is anyone saying "full and final settlement"?