Thompson v Treaty of Waitangi Fisheries Commission CA247/03
[2004] NZCA 421
•15 June 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA247/03
BETWEEN HORATIO THOMPSON
Appellant
ANDTREATY OF WAITANGI FISHERIES COMMISSION
First Respondent
AND MINISTER OF FISHERIES & OTHERS
Second Respondents
ANDTE RUNANGA O NGAI TAHU AND TREATY TRIBES COALITION LIMITED
Third Respondents
Hearing: 3-5 May 2004
Coram:Glazebrook J Hammond J William Young J
Appearances: I Millard QC and H McDouall for Appellant
C Carruthers QC, J P Ferguson and T B Johnson for First Respondent V L Hardy and D N Soper for Second Respondents
R E Brown for Third Respondents Judgment: 15 June 2004
JUDGMENTS OF THE COURT
Judgments
Para No
Glazebrook and William Young JJ [1] Hammond J [199]
HORATIO THOMPSON V TREATY OF WAITANGI FISHERIES COMMISSION And Ors CA CA247/03 [15
June 2004]
GLAZEBROOK AND WILLIAM YOUNG JJ (DELIVERED BY GLAZEBROOK J)
TABLE OF CONTENTS
Introduction [1]
Further background to the settlement [8]
The legislation and the Deed of Settlement [15]
Cases interpreting the settlement [21]
Summary of He Kawai Amokura [39]
Structure of and reasons for the Putea [58]
Development of the Putea proposal [63]
The High Court judgment [81]
Mr Thompson’s submissions [103]
The Commission’s submissions [125]
The Crown’s submissions [133]Discussion [140]
Legislative framework [140]
Meaning of “ultimately for the benefit of all Maori” [150]
Standard of review [163]
Measures to deliver ultimate benefit [167]
Funding and structure of the Putea [169]
The merits of the Putea proposal [173]
Result and Costs [197]
Appendix 1: Extracts from the Settlement Deed Appendix 2: Chronology of Events
Appendix 3: Letter of Transmittal of He Kawai Amokura to The Minister of Fisheries
Appendix 4: Iwi Representation Principles and Requirements Appendix 5: Extract from Te Ohu Kai Moana: Report on the
Proposed Method of Allocation of Pre Settlement Assets November 1998
Introduction
[1] The Treaty of Waitangi Fisheries Commission (then called the Maori Fisheries Commission) was set up as a result of an interim settlement of Maori claims with regard to commercial fishing in New Zealand. Court action had been taken to stop the proposed introduction of a quota management system (QMS) to manage the fisheries resources in New Zealand.
[2] The interim settlement provided for the transfer of $10m cash and 10% of all quota to the Commission and the passing of the Maori Fisheries Act 1989 to embody the interim settlement. A final settlement was reached when the opportunity arose for the purchase of shares in a large commercial fishing company. The Crown funded the purchase and a Deed of Settlement was entered into on 23 September 1992. The Treaty of Waitangi (Fisheries Claims Settlement) Act 1992 was passed to amend the Maori Fisheries Act and to implement the settlement.
[3] Under the amended Maori Fisheries Act, one of the functions of the Commission was to report to the Minister on the allocation of the assets acquired under the interim settlement. These assets have become known as the pre-settlement assets or PRESA. Subject to the power of the Minister to request reconsideration of the proposal, the Commission had the power to allocate PRESA directly. With regard to the assets acquired as a result of the final settlement, the Commission was given the power to put forward proposals for a new Maori Fisheries Act to implement the final settlement, including a procedure for allocating the benefits from the assets which are known as post-settlement assets or POSA.
[4] Allocation of PRESA is required to be made to iwi, which in this context means traditional Maori tribes. The Commission considers that it is obliged to recommend a predominantly iwi allocation system for POSA also. The Commission is also required to take into account, both for POSA and PRESA, clause 4.5.1 of the Settlement Deed, which provides that the settlement is “ultimately for the benefit of all Maori”.
[5] The Commission reported to the Minister on 9 May 2003 in a report called He Kawai Amokura. That report set out the Commission’s proposed allocation system and recommended that both PRESA and POSA be allocated through legislation. A draft bill was attached to the report. On 20 November 2003 the Maori Fisheries Bill was introduced into Parliament. It was based on the Commission’s draft bill but with some modifications. The Maori Fisheries Bill is now before the Fisheries and Other Sea-related Legislation Select Committee and that Select Committee is due to report back in early July.
[6] This case concerns the Commission’s recommendation in He Kawai Amokura for the establishment of a trust, Te Putea Whakatupu Trust (the Putea). The Putea was designed to deal with the situation of those who are not able to or do not wish to access the settlement through their iwi. It is proposed that it be funded to the extent of $20m, out of a total current settlement value of some $700m. Its objects were confined in the Commission’s draft bill to fisheries related matters, although that was not the case in the Maori Fisheries Bill before Parliament. The level of funding for the Putea remains the same in that Bill, however.
[7] In the High Court, McGechan J held that the Commission erred to the extent that, pursuant to the draft Bill annexed to its report, the purposes of the Putea were confined to fisheries related objects. In other respects, and in particular as to the quantum of assets to be allocated to it, he upheld the Putea. The central question for this appeal is whether McGechan J was correct to do so.
Further background to the settlement
[8] In 1986 a quota management system (QMS), designed to manage New Zealand’s fisheries resource, was introduced. As a result, proceedings were instituted in the High Court and claims made to the Waitangi Tribunal alleging that the QMS was unlawful because it affected rights conferred upon Maori either by the Treaty of Waitangi or under customary law. Interim relief was granted forbidding further steps to bring fisheries within the QMS. Negotiations between representatives of the Crown and Maori followed, eventually leading to the interim settlement embodied in the Maori Fisheries Act. The Long Title of that Act provided (in relevant part) that it was an Act:
(a)to make better provision for the recognition of Maori fishing rights secured by the Treaty of Waitangi; and
(b)to facilitate the entry of Maori into, and the development by Maori, of the business and activity of fishing.
[9] The interim settlement provided that 10% of all quota was to be transferred to Maori over a period of four years. The sum of $10m was also provided for Maori fisheries development. The assets to be transferred to Maori under the interim settlement were to be held by a newly constituted body called the Maori Fisheries
Commission, now called the Treaty of Waitangi Fisheries Commission. Under the Maori Fisheries Act, the Commission was able to lease but not otherwise dispose of quota for a transitional period that was to end on 31 October 1992.
[10] There were doubts as to the legal ability of the Commission to allocate the quota at the end of that transitional period but it was contemplated by the majority of Commissioners that there would be such an allocation and the Commission devised an allocation scheme. It consulted on its proposals during 1991 and 1992 and, at its hui-a-tau of 25 July 1992, thirteen resolutions were passed relating to the allocation.
[11] At about that time, an opportunity arose for Maori to take an interest in a substantial New Zealand fishing company called Sealord Products Ltd. This led, after negotiation between Maori and the Crown, to a Deed of Settlement being signed on 23 September 1992. The Deed not only provided for the purchase of Sealord but it purported to settle all claims by Maori in respect of commercial fishing rights, both current and future. Maori agreed, among other things, that the QMS was a lawful and appropriate regime for the sustainable management of commercial fisheries in New Zealand waters and agreed to discontinue certain court proceedings.
[12] Under the Deed, the Crown agreed that the Maori Fisheries Commission would be renamed the Treaty of Waitangi Fisheries Commission and that the Crown would pay to it the sum of $150m in three instalments so that it could buy a 50% share in Sealord. Further, it undertook to allocate to the Commission, for distribution to Maori, 20% of the quota in respect of fish species brought into the QMS after 23 September 1992. There were also provisions in the Deed related to the allocation of PRESA.
[13] As a consequence of the Deed and the negotiations between Maori and the Crown, the Treaty of Waitangi (Fisheries Claim) Settlement Act 1992 (the Settlement Act) was passed. This provided for the implementation of the settlement and amended the Maori Fisheries Act in a number of respects. Notably, the amendments provided for the Commission to develop allocation proposals for both
PRESA and POSA. The resolutions of the hui-a-tau of 25 July 1992 were annexed as Schedule 1A to the Maori Fisheries Act.
[14] There was a lengthy preamble to the Settlement Act outlining the background to the settlement and the Long Title provided that it was an Act:
(a) To give effect to the settlement of claims relating to Maori fishing rights; and
(b) To make better provision for Maori non-commercial traditional and customary fishing rights and interests; and
(c) To make better provision for Maori participation in the management and conservation of New Zealand’s fisheries.
The legislation and the Deed of Settlement
[15] The most significant of the amendments to the Maori Fisheries Act, made by the Settlement Act, was the addition of s6(e). This provided that one of the particular functions of the Commission was:
In relation to the Deed of Settlement between the Crown and Maori dated the 23rd day of September 1992,—
(i) To consider how best to give effect to the resolutions in respect of the Commission's assets, as set out in Schedule 1A to this Act:
(ii) To develop, after full consultation with Maori, proposals for a new Maori Fisheries Act that is consistent with the Deed of Settlement and makes provision for—
(A) The appointment, composition, and powers of any body succeeding the Commission; and
(B) The development of a procedure for identifying the beneficiaries and their interests under the Deed of Settlement, in accordance with the Treaty of Waitangi, and a procedure for allocating to them, in accordance with the principles of the Treaty, the benefits from the Deed of Settlement:
(iii) Within 90 days after the commencement of this paragraph, to propose for consideration by Maori provisions and a process for the Commission's accountability to Maori:
(iv)To report to the Minister on the matters referred to in this paragraph.
[16] The relevant parts of the resolutions adopted at the hui-a-tau on 25 July 1992 contained in Schedule 1A are as follows:
ALLOCATION
AUTHORITY
1. That the hui endorse the decision made by the Commission to seek legislative authority to further secure the Commission's intention to allocate its assets to iwi.
METHOD
2. That MFC [Maori Fisheries Commission] examine the alternative methods to allocate, consult with iwi, and have prepared discussion material to enable agreement to be reached on the optimum method for allocation.
[17] Additional powers were given to the Commission in section 9(2)(l) of the Maori Fisheries Act to implement the settlement in relation to PRESA. Section 9(2)(l) provides that the Commission shall have the power:
After giving consideration to the matters referred to in section 6(e)(i) of this Act and reporting to the Minister on those matters under section 6(e)(iv) of this Act, and subject to subsection (4) of this section, to give effect to the scheme (if any) included in the report furnished to the Minister under the said section 6(e)(iv) (being the scheme providing for the distribution of the assets held by the Commission before the Settlement Date defined in the Deed of Settlement and being the assets referred to in clause 4.5.2 of that deed).
[18] A new section 9(4) was also added to give the Minister power to request reconsideration of the Commission’s report on PRESA as follows:
The Minister may, at any time and from time to time, but not later than 30 days after the date of the receipt of the Commission's report under subsection (2)(l) of this section, request the Commission to reconsider all or any part of the proposed distribution under that subsection; and the Commission shall reconsider its proposed distribution of assets, amend the proposal, and report further to the Minister accordingly.
[19] Section 3 of the Settlement Act provides that it is the intention of Parliament that the provisions of that Act be interpreted in a manner that best furthers the agreement expressed in the Deed of Settlement. The Deed is also referred to in s6(e) of the Maori Fisheries Act and the pertinent provisions are set out in Appendix 1 to this judgment. They were summarised by this Court in Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [2000] 1 NZLR 285 at 358, paras 119-122 as follows:
[119] Considerable attention has been paid by the appellants to cl 4.5 which was headed “Distribution of Benefits to Maori”, and we therefore summarise this provision. In cl 4.5.1 Maori agreed that the settlement evidenced by the deed of all the commercial fishing rights and interests of Maori was to be ultimately for the benefit of all Maori. It is common ground that this
provision was directed to both PRESA and POSA. Clause 4.5.2 required the commission to “consider how best to give effect to the resolutions taken at the annual general meeting of the Maori Fisheries Commission in July 1992” and provided that the commission would be empowered to allocate assets held by it at the day before the settlement date. Obviously this related to PRESA.
[120] Clause 4.5.3 then required the commission to develop, after full consultation with Maori, proposals for a new Maori Fisheries Act consistent with the deed and to report to the Crown within 90 days with a request that it be enacted as soon as practicable having regard to commercial considerations. Any “tribe” with a beneficial interest might request that the Crown recommend to Parliament that the resulting Bill be referred to the Waitangi Tribunal. It was common ground that this provision related to POSA. Clause 4.5.4 contained matters which must be included in the proposals to be developed by the commission. These included a procedure for the allocation of the benefits of the settlement deed which addressed “the questions set out in Annexure A”. That annexure, which applies only to POSA, calls for the distribution system to “address the criteria to be applied in identifying iwi and determining if a particular iwi has a fishing interest”. It also stipulated that “[t]he scheme will need to address how individual, whanau or hapu interests can be accommodated within the iwi structures” and it said that any distribution system “should aim to achieve a fair allocation of the benefits among Maori”.
[121] In cl 4.5.6 the Crown agreed that until such time as a scheme of distribution which satisfied it had been provided by Maori in accordance with the preceding provisions (relating to POSA), it would not introduce legislation conferring any power to distribute to Maori any assets or benefits of either the deed of settlement (POSA) or of the Maori Fisheries Act (PRESA).
[122] The final provision of cl 4.5 was one in which all parties acknowledged that the commission “receives and holds the settlement benefits on behalf of Maori and for their benefit”.
[20] We also set out s9 of the Settlement Act as this is important because it extinguishes all Maori claims in respect of commercial fishing:
9 Effect Of Settlement On Commercial Maori Fishing Rights And Interests
It is hereby declared that
(a) All claims (current and future) by Maori in respect of commercial fishing—
(i) Whether such claims are founded on rights arising by or in common law (including customary law and aboriginal title), the Treaty of Waitangi, statute, or otherwise; and
(ii) Whether in respect of sea, coastal, or inland fisheries, including any commercial aspect of traditional fishing; and
(iii) Whether or not such claims have been the subject of adjudication by the courts or any recommendation from the Waitangi Tribunal,—
having been acknowledged, and having been satisfied by the benefits provided to Maori by the Crown under the Maori Fisheries Act 1989, this Act, and the Deed of Settlement referred to in the Preamble to this Act, are hereby finally settled; and accordingly
(b) The obligations of the Crown to Maori in respect of commercial fishing are hereby fulfilled, satisfied, and discharged; and no court or tribunal shall have jurisdiction to inquire into the validity of such claims, the existence of rights and interests of Maori in commercial fishing, or the quantification thereof, the validity of the Deed of Settlement referred to in the Preamble to this Act, or the adequacy of the benefits to Maori referred to in paragraph (a) of this section; and
(c) All claims (current and future) in respect of, or directly or indirectly based on, rights and interest of Maori in commercial fishing are hereby fully and finally settled, satisfied, and discharged.
Cases interpreting the settlement
[21] There have been a number of cases where the provisions of the settlement have been at issue, including two Privy Council decisions. All of the parties rely on statements from those cases and it is therefore important to examine them in some detail. The history of these cases is somewhat complicated. The first set of cases concerned whether there should be a preliminary question argued under R418 of the High Court Rules. The next set of cases dealt with the preliminary questions that were formulated by the Privy Council. We have attached as Appendix 2, for reference purposes, part of the chronology supplied by the Commission setting out the timing of the various decisions and the timing of the reports referred to in this judgment.
[22] The first set of cases and the questions formulated by the Privy Council were described by Paterson J in his decision on the preliminary issue, Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [2000] 1 NZLR 285 (High Court iwi decision) in the following terms (at 289):
The matter for determination is a preliminary question formulated under the provisions of R 418 of the High Court Rules. It has come before this Court by a lengthy process. On 30 June 1995 Anderson J (High Court, Auckland, CP 395/93, CP 562/94, M 1514/94, CP 27/95 & CP 122/95) ordered that a preliminary question be determined. There was an appeal from that order.
The Court of Appeal sat as a five Judge Court to hear this appeal and made a declaration that the commission had a duty to ensure any scheme or legislation proposed by the commission pursuant to the provisions of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (the Settlement Act) or the Maori Fisheries Act 1989 (the Maori Fisheries Act), include equitable and separately administered provisions for urban Maori. As it said that no useful purpose would be served by the determination of the preliminary point as, in effect, it had been determined, the Court of Appeal allowed the appeal from the order of Anderson J (Te Runanga o Muriwhenua v Te Runanganui o Te Upoko o Te Ika Association Inc [1996] 3 NZLR 10). The Court of Appeal also determined that the meaning of “iwi” as used in the Settlement Act was “tribe” or more particularly “the people of the tribe”. Some of the parties then appealed to the Privy Council (Treaty Tribes Coalition, Te Runanga o Ngati Porou and Tainui Maori Trust Board v Urban Maori Authorities [1997] 1 NZLR 513) which allowed the appeal in part and set aside the Court of Appeal’s declaration as to the duty of the commission in any proposed scheme. It remitted the matter back to this Court for consideration of the preliminary question which it reformulated. In giving the judgment of Their Lordships, Lord Goff of Chieveley said at pp 522-523:
The form of question has been considered in the course of argument before Their Lordships, and a question in the following form has, Their Lordships understand, the agreement of all parties, including the Urban Maori Authorities, counsel for whom agreed that if, contrary to her submission, the appeals should be allowed, the question to be considered by the Judge should be in this form. It is in two parts, and reads as follows:
1. Does the Maori Fisheries Act 1989 (as amended by the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992) require that any scheme providing for the distribution of the assets held by the commission before the settlement date, which the commission includes in a report furnished to the Minister under s 6(e)(iv) of the 1989 Act, should provide for allocation of such assets solely to ‘iwi’ and/or bodies representing ‘iwi’?
2. If the answer to question 1 is Yes, in the context of such a scheme does ‘iwi’ mean only traditional Maori tribes?
[23] The two questions relate only to PRESA and were answered in the affirmative by Paterson J. The first question was also answered in the affirmative by a majority of this Court. The second was answered in the affirmative unanimously - see Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [2000] 1 NZLR 285. The Privy Council also answered both questions in the affirmative, Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [2002] 1 NZLR 17.
[24] Returning to the decision of Paterson J, we note that the Judge analysed the nature of commercial fishing rights in 1840 as collectively kin-based, being under the guardianship or control of either whanau or hapu in most cases, but in some cases with the tribe or iwi having some “overright”. Individual rights of a limited nature also existed. The Judge, therefore, concluded (at 310) that the beneficiaries of the settlement are mainly the hapu who succeeded to the Treaty or customary rights and the Maori who are members of, or who are entitled to be members of, such hapu.
[25] Paterson J also indicated that, in a pan-Maori settlement compensating Maori for the abrogation of rights, there is a need for fairness and compromise. He accepted (at 319) that individuals may have had fishing rights and that current day Maori individuals may be able to enforce commercial fishing rights as members of a communal group which had such rights. The Crown had extinguished such claims by s9 of the Settlement Act. He concluded (at 320) that the Commission had the obligation to ensure that all Maori who had had rights taken from them were able to participate in the settlement. This could not, however, alter the meaning of the statutory provisions which, in his view, required allocation to iwi.
[26] Paterson J noted the changes in Maori society since 1840, and in particular urbanisation, which, it had been submitted, meant that an allocation to iwi would not deliver the benefits of the settlement to the beneficiaries. He said (at 320-321):
In summary these include the fact that 81 per cent of Maori now live in urban areas, at least one-third live outside their tribal influence, more than one-quarter do not know their iwi or for some reason do not choose to affiliate with it, at least 70 per cent live outside the traditional tribal territory and these will have difficulties, which in many cases will be severe, in both relating to their tribal heritage and in accessing benefits from the settlement. It is also said that many Maori reject tribal affiliation because of a working- class unemployed attitude, defiance and frustration. Related but less important factors, are that a hapu may belong to more than one iwi, a particular hapu may have belonged to different iwi at different times, the tension caused by the social and economic power moving from the iwi down rather than from the hapu up, and the fact that many iwi do not recognise spouses and adoptees who do not have kinship links.
[27] He also summarised (at 321) the opposing view, being that iwi to date had not had the means to provide benefits, even to those members living within the rohe. It had been argued, on behalf of iwi, that, unless benefits were allocated to them,
they would not be in a position to deliver benefits to their members. The Judge had earlier (at 306) noted that the Tainui and Ngai Tahu land settlements had contributed considerably to the number of Maori claiming membership of those two tribal entities and that there was evidence that the benefits of the settlements were reaching tribal members. He also noted (at 321) that Mr Tamihere, the executive officer of an Urban Maori Authority, had acknowledged that, notwithstanding the claim of urban Maori, the tribal groups should receive a substantial portion of the allocation.
[28] The Judge considered that iwi should set up structures to ensure that those entitled to benefit from the settlement do not lose their entitlement, wherever they may now live and no matter how strong their present tribal link may be (at 322). The Judge (at 321-322) stated, however, that, if, under a scheme developed by the Commission, individual Maori who would have been entitled to commercial fishing rights or urban or other Maori who had lost their tribal affiliations were not able to participate in the benefits of the settlement, then the matter would be in the hands of the Minister under s9(4) of the Maori Fisheries Act. He warned that it also may require further consideration by the courts.
[29] Paterson J, on the two questions before him, concluded that iwi, in the context of the settlement, meant traditional Maori tribe. His conclusion on the first question was as follows (at 323-324).
Conclusion and Answer The duty of the commission is to endeavour to allocate its assets to iwi by an optimum method of allocation. As noted by the Court of Appeal, in the end the commission itself may have to decide, by majority as a last resort, on a scheme for the Minister’s consideration. Such a scheme will need to give all beneficiaries of the pan-Maori settlement access to the benefits of the settlement and will need to provide adequately for those who do not have close iwi ties at this time. … For the reasons already given the answer to the first part of the question is that the Maori Fisheries Act requires that any scheme providing for the distribution of the assets held by the commission before the settlement date, which the commission includes in a report furnished to the Minister under s 6(e)(iv) of the Maori Fisheries Act 1989, should provide for allocation of such assets solely to ‘iwi’ and/or bodies representing ‘iwi’. Issues concerning representing iwi will be dealt with more fully when answering the second part of the question.
[30] We now turn to the majority judgment of this Court in Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [2000] 1 NZLR 285 (Court of Appeal iwi decision). The majority first indicated that, in their view, the main
question in the appeal concerned the means of allocation and not the ends. A similar point had been made by Paterson J. The majority said at 352, para [100]:
As indicated in the 1992 deed of settlement, all parties acknowledge that the commission ‘receives and holds the settlement benefits on behalf of Maori and for their benefit’. That pan-Maori emphasis also appears in the long title to, and s 5 of, the Maori Fisheries Act 1989. According to para (b) of the title, the Act is to ‘facilitate the entry of Maori into, and the development by Maori of, the business and activity of fishing’, and the first listed of the principal functions of the commission is in the same terms. The second principal function is to grant assistance to any Maori or group of Maori for the purpose of enabling that Maori or group to enter into or continue in or develop the business and activity of fishing. The provisions, in part at least, look to the future and are not exclusively tied to the traditional and historical origins of Maori fishing.
[31] The majority held that it was intended under the Deed that the tribes were to be the beneficiaries of the settlement – see at 372, para [187]. They considered that this conclusion applied both to PRESA and POSA. Of POSA they said at 370-371:
[182] The deed makes no other reference to the intended recipients of POSA. It is very clear that it was contemplating only a distribution to iwi, but on the basis that the iwi must achieve a fair allocation among all Maori. That last requirement of course reflects cl 4.5.1 in which ‘Maori agrees that the settlement [both PRESA and POSA]… is ultimately for the benefit of all Maori’.
[183] An examination of the whole of cl 4.5, including Annexure A, shows that what is occurring is a tribal settlement – a settlement with Maori in their tribes – and that the benefits which are ‘ultimately’ to be available to all Maori are to be delivered through tribal mechanisms….
[187] Our study of the deed and its antecedents leads us to the view that this was a transaction between tribal Maori and the Crown for the benefit of all Maori, but through their iwi.
[32] Turning to the Settlement Act, the majority held that this also contemplated allocation through iwi but that the Commission was obliged to put protective measures in place to ensure that the ultimate delivery of benefits from the settlement are enjoyed by all Maori. They said at 373-374:
[197] Section 3 requires that the Settlement Act, including the provisions inserted into the Maori Fisheries Act, is to be interpreted in a manner that best furthers the agreements expressed in the deed of settlement. When the explicit requirement of the resolutions is taken together with the deed’s requirement that the settlement (both PRESA and POSA) is ultimately to be for the benefit of all Maori, it seems to us that the obvious intention of Parliament is that these twin requirements are to be harmonised. The
allocation must be to iwi but on the condition that iwi have put in place structures, both tribal and pan-tribal, which will ultimately enable delivery of benefits to all Maori. When s 6(e) is read as a whole, along with the resolutions which it adopts, there is neither room nor need for an allocation going beyond iwi. The safeguards for non-affiliated Maori are the role of the Minister and the commission’s accountability, as a trustee, to all Maori. It must ensure that the necessary protective mechanisms are put in place.
[33] It is worth setting out in relevant part the majority’s conclusions on the allocation question. In summary, they stressed that allocation was to iwi but that the settlement was for the benefit of all Maori. The settlement was of rights possessed by groups of Maori and individuals enjoyed those rights only by virtue of their membership of those groups. The settlement benefits, like the rights, were therefore to be enjoyed through iwi-based mechanisms and not through Urban Maori Authorities (UMA). They said at 374-376:
[199] The appellants are right in their argument that the intention which must govern the interpretation of the Settlement Act is the intention of Parliament, not that of the hui. But when it is so clearly established that the hui had a particular allocation in mind (only iwi could receive an allocation), and there is little or nothing to suggest any departure in the memorandum of understanding or the deed of settlement, then if Parliament had intended anything different – particularly something always likely to be a cause of controversy within Maoridom – it would surely have spelled that intention out with great particularity. Not to do so would have been deceptive, particularly given the absence of any warning to Maori in the parliamentary debates or otherwise that there was such an intention.…
[200] The appellants placed much weight on the argument that the risk of unaffiliated Maori missing out on the benefits of the settlement was so great, if UMA were not involved, that Parliament must have wanted UMA and other non-traditional groupings included for consideration when allocation was in prospect. Again, however, there is nothing in the legislation or in ministerial statements in the parliamentary debates which could lead to the conclusion that the crucial parts of the legislation were framed as a response to any such risk. The amendments made to the Bill during its passage through the House appear to be merely recognising the need for a machinery provision relating to the Minister’s reaction to a proposal for allocation and the need for an explicit power for the commission to make an allocation after the reference to the Minister. If there had been legislative concern about the risk, it would certainly have been addressed in a more direct manner than the appellants assert to be the case. There is, moreover, no reason to think in light of the evidence that any risk that an allocation restricted to iwi, now accepted to require inclusion of a putea or similar mechanism, is significantly, or at all, greater than would still exist even if UMA were to participate directly in an allocation. In the circumstances of New Zealand society it may be impossible to remove completely the risk that some Maori will not receive benefits whatever allocation model is adopted but we do not see that an iwi allocation mechanism will necessarily conflict with or frustrate the purpose of conferring benefits upon all Maori.
[201] We reject also the arguments that..…an individual Maori must be accorded the right to claim his or her right to participate in benefits through the organisation of that person’s choice.
[202] The settlement was of rights possessed by groups of Maori, be they whanau, hapu or iwi. They were rights derived from kinship and marriage and were exercisable by individuals only by virtue of their membership of particular descent-based groups. Mr Williams is right when he denies that an individual Maori had, in terms of Maori custom, an ability to transport the rights deriving from membership of an iwi, or a component thereof, and to exercise them through another group outside that iwi, or to exercise them wholly individually. …
[203] ….It appears to have been common ground amongst witnesses in the High Court that the ability to exercise a traditional fishing right depended upon whakapapa. Such being the nature of the rights, it is inconceivable that an enactment in settlement and extinguishment of them would without clear language authorise so radical a departure from custom. In this context it is not discriminatory to require benefits to be enjoyed through descent-based groups. The settlement benefits, like the rights, are to be enjoyed on the basis of a descent-based grouping or by a mechanism in which the iwi reach out to those who cannot or will not affiliate, recognising the obligation on them to use their very best endeavours to deliver benefit to all who are entitled to call themselves Maori. Because this obligation is a condition of allocation which the commission has to impose on iwi, urban Maori are not been deprived of their fishing rights without being afforded the opportunity of sharing in the benefits of the settlement.
[34] We also quote an extract from the final observations of the majority. In that section they make it clear that the fundamental requirement of the Deed was that all Maori share in the benefits of both PRESA and POSA. The mechanism for this was to be through iwi, however, and not through the UMA. They said at 377-378:
[208] It is a great pity that so much time, effort and money has been expended upon the preliminary questions when the real issue should be whether the scheme to be promulgated by the commission will adequately meet the fundamental requirement of the deed of settlement, and therefore of the Settlement Act, that ultimately all Maori are to share in the benefits of PRESA, and indeed of all assets vested in the commission. Save in one important respect, and looking at the matter from the perspective of individual Maori, affiliated or unaffiliated to a tribe, it is likely to make little difference whether there is a direct allocation of a part of PRESA to UMA or other bodies not recognised by the commission as iwi, or whether the benefit is delivered through an iwi-administered fund or by another pan-Maori mechanism under the control of iwi. …
[209] The matter which we do regard as the only question of importance appearing to be raised in the current contention between the tribes and UMA is one upon which Mr Williams spoke eloquently in his oral submissions on behalf of the commission. It is fundamental, in our view, that the implementation of the settlement accords with Maori traditional values, although it will necessarily utilise modern-day mechanisms and the benefits
must go to all Maori. We discern that it was this concern with traditional values which caused the Privy Council, with an expression of hesitation, to refer the present matter back to the High Court. The settlement was of the historical grievances of a tribal people. It ought to be implemented in a manner consistent with that fact. With all due respect to UMA, who are formed on the basis of kaupapa not whakapapa, they cannot fulfil such a role. In saying this we do not intend to disparage UMA. They are worthy organisations of great value to Maoridom and to the wider New Zealand community. They are, and should be held in high regard. In their short histories they have accomplished much good and their role in the delivery of benefits emanating from central and local government is vital and increasing. But they cannot legitimately claim to be tribes or the successors of tribes. If, in terms of the Settlement Act, they were to be qualified to receive an allocation, it seems to us that the settlement would have resulted in a situation never contemplated by those who adopted the resolutions at the hui-a-tau. Parliament might then have been seen to have played false with those who participated in the hui and to have done so in a most obscure way. We reject any notion that this is what Parliament intended.
[35] The case went on appeal to the Privy Council, Te Waka Hi Ika o Te Arawa v Treaty of Waitangi Fisheries Commission [2002] 2 NZLR 17 (the Privy Council iwi decision). Their Lordships considered that the answer to the first question was clear as a matter of statutory construction. The Commission’s only power to distribute PRESA was conferred by s9(2)(l) of the Maori Fisheries Act. That provides only for distribution under a scheme which gives effect to the resolutions of the hui-a-tau of 25 July 1992. Those resolutions plainly provided for distribution to iwi and that means traditional Maori tribes.
[36] Their Lordships went on to discuss the dissenting judgment in this Court of Gault J. Gault J considered that the settlement did not necessarily require allocation solely to iwi. He said that, if there was a conflict between the purpose of the trust which was for the benefit of all Maori and the specified mechanism for achieving that purpose, then the mechanism should give way. Their Lordships commented that the Commission accepted that any scheme would have to be in accordance with the Commission’s over-riding duty to the Maori people. They said that, if that could not be achieved through a distribution to iwi, then the Commission is not obliged to distribute. They said at 28:
[19] Their Lordships do not think that it is right to construe the statute as imposing upon the commission two potentially conflicting obligations. Section 9(2)(1) imposes no obligation whatever. It confers a limited power but imposes no duty. The reference to distribution being according to ‘the scheme (if any)’ included in the report recognises that, for one reason or
another, the commission may not produce a scheme; perhaps because it is not satisfied that any scheme commands sufficient agreement in accordance with the second resolution, perhaps because it is not satisfied that any scheme within the powers of s9(2)(1) could satisfy its trust obligations. Counsel for the commission accepted that any scheme would have to be in accordance with the commission’s over-riding duty and accountability to the Maori people. If that cannot be achieved by a distribution to iwi, the commission is under no obligation to make any distribution at all. If it wishes to make a distribution in a manner which falls outside the powers conferred by s9(2)(1), it will have to seek further statutory authority. …
[20] Their Lordships consider that the only ground upon which a Court could depart from what appears to be the plain meaning of s9(2)(1) would be if it appeared that when the Act was passed it was in fact impossible to have a distribution to iwi which satisfied the trust obligations of the commission. It might then be legitimate to argue that Parliament could not have intended to confer a power which was so restricted as to render it useless and that some other, wider meaning should be sought. Even then, the argument would not be easy. But there is no evidence that consistency cannot be achieved. The commission is confident that it can propose a scheme which will satisfy its trust obligations and one must assume that the Crown, when it entered into the deed of settlement, also thought so. In the absence of any actual scheme, it is impossible to say now that they must be wrong. Gault and Thomas JJ went no further than to say that there was a possibility that the mechanism might fail to achieve its purpose.
[37] Their Lordships then made (at 28) some obiter comments about the meaning of the phrase “ultimately for the benefit of all Maori”. They said (apparently reading the reference in clause 4.5.1 of the Deed to “all Maori” as being “the Maori people”):
[21] Their Lordships would also observe, without wishing to preempt what may be further argument in the Courts of New Zealand, that the trust for the ultimate benefit of the Maori people would appear to be a concept of public law which uses the term ‘trust’ only by analogy with the more familiar trust of private law (See the discussion by Megarry VC in Tito v Waddell (No 2) [1977] 1 Ch 106 at pp 210 – 219). It employs a very broad concept of benefit, underlined by the use of the word “ultimate”, which would not seem to require any immediate and demonstrable advantage for each member of the Maori people. There must be many ways in which the encouragement of an economic enterprise among Maori can be said to be for the ultimate benefit of the Maori people, even though not all are able to participate in the enterprise itself or even share directly in its profits. The trust concept therefore allows much scope for the discretion of the commission, subject to the Minister’s powers under s9(4) to require reconsideration of aspects of the scheme.
[38] Their Lordships then commented on the nature of the settlement, which they saw as a settlement between Maori and the Crown but also to some extent between Maori and Maori. They finished the judgment by repeating the remark of the
Waitangi Tribunal that Treaty matters should be for statesmen and not lawyers. They said at 29:
[23] It appears to Their Lordships that the parliamentary sanction given to the resolutions of the hui-a-tau for the distribution of pre-settlement assets formed part of a political settlement, not only between the Crown and Maori but also to some extent between Maori and Maori. Of course it was assumed to be consistent with the overall objective of a settlement for the benefit of the Maori people as a whole. And it is possible that the commission or the Minister may eventually reach the conclusion that consistency is impossible and that the settlement has to be revised. Or a Court may decide that no other conclusion is rationally possible. But Their Lordships do not think it right for the Courts to revise the terms of the settlement now. As the Waitangi Tribunal remarked in the Fisheries Settlement Report 1992 (Wai 307) at p 21, ‘treaty matters are more for statesmen than lawyers’. They will therefore humbly advise Her Majesty that the appeals should be dismissed. As in the Court of Appeal, there will be no order as to costs.
Summary of He Kawai Amokura
[39] This case concerns the Commission’s He Kawai Amokura report. We have attached as Appendix 3 extracts from the letter of transmittal of He Kawai Amokura to the Minister of Fisheries as this letter summarises the Commission’s views and processes. We note in particular the comment of the Commission in that letter that the fisheries settlement already represents a significant compromise on the part of Maori. The Commission commented that, in such circumstances, to give to one necessarily reduces the available redress for another and that it had been necessary for the Commission to weigh all competing priorities in the interests of all Maori so as to find a resolution. The Commission commented that the level of agreement to its proposals had been hard won.
[40] In brief, He Kawai Amokura proposes that all fishing quota be allocated directly to iwi. All inshore quota is to be allocated in proportion to the length or percentage of coastline attributed to each iwi. Deepwater quota, on the other hand, is to be allocated on the basis of a 25% coastline and 75% iwi population model. The iwi population figures are based on those claiming iwi affiliations in the 2001 census. Where multiple affiliations were claimed, there is multiple counting. Special provisions regarding the Chatham Islands are to be made whereby all inshore quota is to be allocated to the Chatham’s iwi, with all deepwater quota in the
Chatham Zone allocated 50% to the Chatham’s iwi and 50% to all iwi on a population basis.
[41] The Commission considers that quota has a special position in the settlement as it represents the modern day equivalent of the traditional right to fish and that its allocation to iwi appropriately reflects Treaty principles. It said at 62, para E4:
The Commission is required to allocate PRESA, including PRESA quota, to Iwi. In relation to POSA the Commission’s proposal must be consistent with both the principles of the Treaty of Waitangi and the Deed of Settlement. The findings of the Waitangi Tribunal in relation to Maori fishing rights have already been identified above. The Commission considers that the return of quota, as the modern-day equivalent of the traditional right of Iwi to fish, appropriately reflects Treaty principles including rangatiratanga, redress for past breaches and the right to development. This is also consistent with clause 3.2 of the Deed of Settlement, which records the Crown’s obligation to provide the Commission with POSA quota in the form of 20% of any new species introduced to the QMS, and supports the allocation of such POSA quota to Iwi.
[42] The Commission also recommends that ownership of the POSA fishing companies be transferred to a new holding company, Aotearoa Fisheries Ltd (AFL). AFL is then to issue voting and income shares. It is proposed that the voting shares be held centrally by a trust to be established to replace the Commission, Te Ohu Kai Moana (TOKM). Income shares are to be held as to 80% by iwi on a population basis and 20% by TOKM. There are to be restrictions on the sale of the income shares and quota so as to ensure retention of assets for future generations.
[43] It is further proposed that cash held by the Commission be allocated to iwi using a population formula, subject to the topping up of iwi allocations to ensure that all iwi receive an allocation of at least $1m, the payment of the TOKM establishment costs and the establishment of both the Putea and the Te Wai Maori Trust, the latter designed to assist freshwater fisheries initiatives. Iwi are to be the ultimate beneficiaries on the wind-up of any of these post-allocation entities. The Commission recommends that the key components of the model be implemented through legislation and a draft statute is annexed to the report. It also recommends a review of the structures 12 years after allocation commences. For an overview of the allocation model see at 18-22, paras B9-B12 of He Kawai Amokura.
[44] The total assets involved in the settlement (not counting the 20% of quota for species that are later brought into the QMS) are estimated to be worth about $700m, with some $76m in cash and $291m in currently held quota. Approximately 50% of those assets are PRESA. The Commission estimates, at 274-275 of the report, that iwi will in total receive approximately $27.8m annual income from the settlement.
[45] We now set out the considerations that led the Commission to recommend this allocation model. The Commission, in the Executive Summary of He Kawai Amokura, says that the model it puts forward is a composite one, which has had to reconcile a number of competing considerations. It warns that altering one element had the potential to unravel the whole model. It says (at 23, para B13):
Altering or removing one of the elements of He Kawai Amokura has the potential to undermine all of the other elements and unravel the whole. It is a finely balanced set of compromises and structures that is contained in this Report, the presentation of which now has the support of the majority of Iwi and Maori. This Report makes explicit the basis on which the Commission has forged its view and the guiding principles that underpin those decisions. In order to fulfil the Commission’s task of developing this final allocation model it has:
• Found a compromise that is fair, and maximises the support of Iwi and Maori, and
• Developed a sustainable allocation model that ensures the settlement is durable and maximises the opportunity for Maori commercial success.
[46] At 30, para C33 the Commission recognises that fairness is necessary for any allocation model and that this requirement is an objective one. It then goes on, however, to say that fairness must also reflect compromise and balance between all the relevant rights, interests and considerations and that the Commission is, therefore, required to provide a pragmatic solution as much as a legal one. At 30, para C35 the Commission said that it must ensure that the model for allocation of both PRESA and POSA is not inconsistent with the Commission’s functions as set out in the Maori Fisheries Act and the Settlement Act and (at 30, para C36) that it is required to take into account all relevant considerations including:
(a)The views expressed by Iwi;
(b)The views expressed by Maori;
(c)The Treaty of Waitangi;
(d)The Deed of Settlement;
(e)Maori custom;
(f)Economic considerations;
(g)Social considerations;
(h)Alleged lease round inequities;
(i)The special circumstances of the Chatham Islands (and any other special circumstances);
(j)How Iwi will ensure that ultimately all Maori benefit;
(k)Dispute resolution procedures; and
(l)That all Maori be treated fairly.
[47] The Commission says that it has taken seven specific principles into account in formulating its recommendations (at 31, paras C39-C46 of the report). In the Commission’s view, the settlement had to be consistent with law, financially viable both for iwi and for TOKM, technically feasible, consistent with tikanga Maori, responsive to social and economic needs, capable of delivering desired benefits and politically sustainable. The Commission considers that it should seek to deliver benefits both now and for future generations in terms of economic wealth creation, influence with Government, influence in the fisheries sector and integrated management of fisheries and rangatiratanga – see at 31, para C45. It then notes (at 32, para C47) that it had been required to ensure a balance between a number of key characteristics. Those of particular importance were:
(a)the nature of the Settlement and the objectives of allocation;
(b)the desirability of immediate allocation against the central management of assets with benefits distributed over time;
(c)Maori custom (tikanga Maori);
(d)economic and social considerations;
(e)the definition and categorisation of the assets in PRESA and POSA;
(f)the formulae for apportioning the benefits of the settlement (He Kawai Amokura confirms the use of coastline length and population) and how they are applied; and
(g)ensuring that allocation is ultimately for the benefit of all Maori.
[48] The Commission explains further (at 32, para C48 of the report) that there was a range of views on the aim of the settlement but that the debate over the last 10 years could be characterised as a tension between two considerations - recognition of traditional tribal rights and the consideration of social and economic needs. The Commission is aware that these themes do not describe the whole spectrum of views about the settlement but they “portray an axis between two polar considerations” - see at 32, C54.
[49] Those who concentrated on the first objective were, in the Commission’s view, primarily concerned with the re-establishment of the relationship between particular iwi and the fisheries approximate to their rohe. The Commission accepts that it is important that any allocation proposal takes account of these traditional relationships and that this is also consistent with tikanga Maori - see at 32, para C50, at 32-33, para C54 and at 34-35, para C68. Those who concentrated on the second objective saw the more pressing need as being the maximisation of social and economic benefits from the settlement. In putting forward its allocation model, the Commission had been mindful of that factor as well – see at 32-33, paras C52 and C54. The Commission considers that the principles of the Treaty require this to be taken into account, given that the essence of the Treaty is forward looking – see at 29, para C30.
[50] The Commission also considers it important that any allocation model recognises the Treaty principle of tribal rangatiratanga and the right to self- regulation or self-management in relation to tribal rights, assets and interests - see at 29, para C28. This means also that it is required to ensure in its allocation that all assets are ultimately distributed to iwi. It takes the view, however, that, although immediate allocation was required for the PRESA assets, there is more flexibility in relation to the POSA assets, at least in the medium term - see at 33, para C56.
[51] The Commission also stresses the need for any settlement to be durable and says that this requires compromise between the competing objectives, as well as acceptance as far as possible of that compromise by iwi and Maori generally. An extensive consultation programme had been undertaken and the Commission is able to report that it has support from 93.1% of iwi, representing 96.7% of iwi-affiliated Maori for its allocation model - see at 58, para D49.
[52] The Commission considers that the level of support it achieved during the consultation process shows that the Commission has appropriately balanced the various considerations. It said (at 30, para C38):
The Commission has had to carefully consider and balance many often conflicting factors and views. The allocation model is, by its nature, a product of this balancing of wide-ranging legal and other considerations, including the many views expressed in the course of the Commission’s
numerous consultations with Iwi and Maori over the past decade. The appropriateness of the balance that the Commission has elected to adopt is reflected in the significant support that exists for the Commission to proceed with reporting this model of allocation to the Minister.
[53] As to the requirement that the settlement be for the benefit of all Maori, one mechanism is the Putea, discussed in the next section. However, there are other measures that the Commission considers will ensure that the requirement is met. It considers, for example, that central management of some of the assets will help to ensure that the settlement is ultimately for the benefit of all Maori. It says at 39, para C104:
Concerns have been expressed by some that a significant number of Maori individuals and whanau are uncertain of their tribal origins, have weak associations with their iwi, or live outside their tribal rohe. These Maori may encounter difficulty in directly participating in benefits distributed through Iwi. A key question that the Commission therefore considered was whether the allocation of all assets to Iwi organisations would ensure that the Settlement will ultimately be for the benefit of all Maori, or whether other mechanisms should also be used. In the end, the Commission has determined that the central management of some assets with the allocation benefits over time is necessary to help meet this requirement. This approach is reflected in He Kawai Amokura.
[54] The Commission has also provided for mechanisms to ensure that benefits will reach all members of an iwi. The Commission notes that, while hapu, whanau and individual Maori may be acknowledged as the ultimate beneficiaries of the settlement, they are required to receive benefits through iwi structures and that this is consistent with the settlement being for the benefit of all Maori - see at 29, para C24. The Commission recognises, however, that it is important to ensure that iwi are representative of and accountable to their hapu, whanau and individual members, wherever they may live. Iwi organisations will thus be required to meet minimum standards of structure, accountability and representation before being recognised as mandated to receive allocation – see at 29, para C25 and s9 of the Commission’s draft Bill. Iwi must also make suitable arrangements to ensure benefits flow to all members of their hapu and whanau, including urban iwi members living outside their tribal rohe. This is to be achieved by iwi improving structures and forming relationships with representative Maori organisations, particularly UMA - see at 40, para C108.
[55] Mandated iwi organisations, and the ongoing requirements imposed upon them, are discussed at 104-109, paras E267-297 of the report. The constitutional requirements set out are stated to be minimum standards that must be met and implemented before any recognised iwi organisation can become a mandated iwi organisation. Schedule 7 to the draft Bill attached to the report sets out kaupapa that must be included in the constitution, trust deed or rules of a mandated iwi organisation. The first eight kaupapa relate to iwi representation and distribution principles and requirements. These are set out in Appendix 3 to this judgment. We note in particular, Kaupapa 6 which requires iwi to make ongoing efforts to add members to the register of those who affiliate to the iwi by whakapapa and Kaupapa 1, which provides that the constitutional documents of a mandated iwi organisation must:
Acknowledge the mandated iwi organisation’s obligation to act ultimately for the benefit of all members of the iwi for fisheries settlement purposes irrespective of where they reside.
[56] The Commission (at 109, paras E293-E294) notes that effective ongoing compliance with the requirements set out in the kaupapa is critical in order to ensure that the settlement is ultimately for the benefit of all Maori. It will be for iwi members to police the requirements through the dispute resolution measures provided for both in the iwi constitutions and by the legislation. The Commission considers that there will be an effective sanction to ensure compliance as there will be the power to withhold the distribution of dividends from AFL and future quota allocation – see at 109, para E297.
It must, therefore, be kept constantly in mind by you and any others considering this Report that He Kawai Amokura is a finally balanced set of compromises between a range of often competing and divergent factors and views. It is very much a polycentric model … where the consideration of individual components cannot properly be divorced from consideration of the whole. As such, the alternation of a single component of the allocation model has the potential to adversely affect other components and thereby undermine the integrity of the entire model….
The future
…
It has taken significantly longer than any of the architects of the Settlement could reasonably have expected to reach this final stage. It is therefore imperative that the
momentum, which has been gained through the concerted work of the Commission and willingness of the vast majority of Iwi to commit to the road ahead, it is not lost now that the Commissioner has reported to you.
It is therefore the Commissioners’ conclusive view that, following your consideration of this Report, the proposed Maori Fisheries Development Bill should be promptly introduced into Parliament.
As the Waitangi Tribunal stated in 1992 in the context of fisheries allocation, and the Privy Council reiterated in 2001, “Treaty matters are more for statesmen than lawyers”. We consider that statemanship has been displayed by the Commission and Iwi in reaching the position enshrined in this Report. This role now rests with both you, as Minister, and Parliament.
We therefore commend to you the allocation model and Maori Fisheries Development Bill in this report and what they offer to Iwi and ultimately all Maori.
APPENDIX 4
Iwi Representation Principles and Requirements
The constitutional documents of the mandated iwi organisation must:
Kaupapa 1: Acknowledge the mandated iwi organisation’s obligation to act ultimately for the benefit of all members of the iwi for fisheries settlement purposes irrespective of where they reside.
Kaupapa 2: Provide that membership, expressed as the right to participate in choosing directors, trustees or officeholders according to the nature of the mandated iwi organisation, is a right open to all members of the iwi.
Kaupapa 3: Provide that adult members of the iwi have the opportunity at intervals not exceeding 5 years to elect directors, trustees or officeholders according to the nature of the mandated iwi organisations. Not all positions need be elected at once, but no person can hold office for more than 5 years without an election.
Kaupapa 4: Provide that voting rights in iwi elections and matters relating to constitutional amendments are available to adult members of the iwi and any other persons permitted to vote under the constitution, trust deed or rules of the mandated iwi organisation (members) and are able to be exercised in accordance with the agreed electoral system of that iwi. Issues relating to whangai are for determination according to the tikanga of each iwi. Accordingly the matter of whangai membership and voting rights remains at the discretion of each mandated iwi organisation.
Kaupapa 5: Provide that those entitled to vote have the right to request and exercise a personal postal vote in any process that elects directors, trustees or officeholders according to the nature of the mandated iwi organisation, or considers amendments to the constitution, trust deed or rules. If the mandated
iwi organisation has electronic voting facilities then electronic voting must be allowed but cannot be mandatory.
Kaupapa 6: Provide that the mandated iwi organisation must have and maintain a register of those who affiliate to the iwi by whakapapa (members) including contact details and dates of birth and make ongoing efforts to add members to that register and keep it current.
Kaupapa 7: Provide that the organisation is accountable to all the members of the iwi (including those not living within its rohe) for its performance by providing planning and reporting systems to allow adult members of the iwi to measure the performance of the directors, trustees or officeholders and management of the organisation against previously published objectives. These systems must include holding a hui-a-tau (AGM) at which it will provide to iwi members:
(a)an annual plan, including objectives;
(b)an annual report including the efforts of the mandated iwi organisation to increase the number of registered members and comparing performance against objectives in the previous annual plan;
(c)annual audited accounts;
(d)a report on the performance of the asset holding company or trust that receives the allocated quota and income shares;
(e)any proposal by that company or trust to rationalise those fisheries assets.
(f)any proposal to change the constitution or trust deed of that company or trust, or any fish harvesting company;
(g)the policy of the mandated iwi organisation in respect of sales and exchanges of allocated quota and any changes to that policy from the policy for the previous year;
(h)a report detailing all sales and exchanges of allocated quota in the previous year including the value of quota or sold or exchanged and the identity of the purchases or other party to the exchange.
Kaupapa 8: Provide a dispute resolution mechanism to deal with disputes within the iwi relating to matters arising under this Act.
APPENDIX 5
Extract from Te Ohu Kai Moana:
Report on the Proposed Method of Allocation of Pre Settlement Assets November 1998
Te Ohu Kai Moana, during the 1997 consultation round, presented the notion of a Development Putea fund. The Development Putea was conceived as a contestable fund for the benefit of all Maori, but which would target those living outside their tribal rohe or who do not have close Iwi ties. Taken together with conditions imposed on Iwi organisations, it would assist in enabling all beneficiaries to have access to the benefits of the settlement that flow from allocation.
As a result of the support received during the consultation hui, and following a recommendation from Taumata Paepae, Te Ohu Kai Moana set up a Project Team to further advance the establishment of a Development Putea. The Project Team comprised Commissioner Whai Dewes, Matiu Rei (as the Iwi representative) and John Tamihere (as the urban Maori representative).
The Project Team discussed matters such as the purpose of the Development Putea, what assets should comprise the Development Putea, who should control the fund and the structure of the controlling body. The Project Team also discussed whether certain classes of beneficiary should get priority distributions from the fund, how to structure the fund so as to ensure accountability and whether the controlling body should contract out its administrative responsibilities.
There were competing views expressed by Iwi and urban Maori over the size of the fund (the amount of PRESA cash contemplated for inclusion ranged between $20 million and $5 million), control of the fund (whether the fund should be controlled by urban Maori representatives, Iwi representatives, or varying combinations), and how the fund should be distributed.
Following the discussions of the Project Team, Te Ohu Kai Moana resolved to establish a Development Putea, in the form of a charitable trust, comprising
$10 million of PRESA cash. It is proposed that the shares in Te Kupenga Limited currently held by the Guardian Trust on behalf of Te Puni Kokiri also be included in the fund. The purpose of the fund will be to provide a means through which Iwi can collectively discharge their trust obligations to all their beneficiaries, including those who have not maintained their Iwi links.
Te Ohu Kai Moana has also resolved that the putea will be managed by a Board of Trustees made up of two Iwi and two urban Maori representatives, who will be appointed by Te Ohu Kai Moana after receiving nominations from Iwi and urban Maori. Te Ohu Kai Moana will also appoint a further trustee as a chairperson, who will represent Iwi interests. Iwi control of the fund is a necessary prerequisite given Te Ohu Kai Moana’s statutory obligation to allocate solely to Iwi and the fact that the Trust obligation of ensuring all Maori benefit is an obligation owed to Maori by the Iwi organisations.
The Board controlling the Development Putea will only be able to distribute profits derived from the capital of the fund. Distributions will be available on a contestable basis, and priority of access to the fund will be given to those who live outside their tribal rohe or whose Iwi ties are not maintained.
The trust will be structured to ensure accountability to the beneficiaries. The Trust will be required to submit to Te Ohu Kai Moana a draft annual plan prior to each financial year and an annual report reviewing the Trust’s performance against the preceding annual plan, and the Trust’s records will also be audited annually.
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