Amicus Curiae: 620,000km of Separation - The Relationship Between the Kermadec Ocean Sanctuary and Treaty Settlements in NZ

Content Contributor, Chris Ryan

At the UN in September 2015 the New Zealand government announced that the Kermadec Islands, which are located 1000km northeast of New Zealand, were to become one of the world’s largest marine reserves. The Kermadec Ocean Sanctuary will cover 620,000km2, an area equivalent to 15% of New Zealand's exclusive economic zone, twice the size of New Zealand’s landmass and will be 50 times the size New Zealand’s largest terrestrial national park.

The Kermadec region is both biologically and geologically diverse, having the world's longest underwater volcanic arc and the world’s second deepest ocean trench as well as being home to 35 species of whale and dolphins, three species of turtle and 150 species of fish. The marine reserve will create an area in which fishing and mining would be banned. Currently 20 tonnes of fish are caught in the area each year.

Although the Kermadec Ocean Sanctuary Bill passed its first reading unanimously, in March 2016 the Māori fisheries trust Te Ohu Kaimoana, which was formed following the 1992 Fisheries Claim Settlement to manage Māori fishery interests, announced its intention to challenge the legality of the legislation which creates the reserve. The fisheries settlement guarantees Māori involvement in statutory decisions about fisheries and Te Ohu Kaimoana argues it was not consulted about the creation of the marine reserve because it was notified about the government’s intention to create the Kermadec Ocean Sanctuary just 10 hours before it was announced. Although Northland iwi Ngāti Kuri and Te Aupouri were consulted about the planned marine reserve, the government’s failure to consult with Te Ohu Kaimoana (even if it does not breach the terms of the fisheries settlement) arguably makes the government seem as if it is acting in bad faith especially as the Bill provides no compensation for the fishing rights lost. Furthermore, overruling an existing treaty settlement without compensation creates a dangerous precedent, with Te Ohu Kaimoana arguing that creating the marine reserve in this way would undermine both the 1992 fisheries settlement but also all other treaty settlements. Correspondingly, the outcome of this case could have a significant impact on the current and future legal relationship between Māori and the Crown.

Te Ohu Kaimoana also maintains that the legislation which creates the Kermadec Ocean Sanctuary  is discriminatory and as such conflicts with the New Zealand Bill of Rights because Māori, via Te Ohu Kaimoana, are the only group who own quota in the Kermadec area, and that quota is unilaterally invalidated by the creation of the marine reserve.

The government’s response to Te Ohu Kaimoana’s legal action has not been reconciliatory. Conservation Minister, Nick Smith, suggested that Te Ohu Kaimoana’s argument was theoretical on the basis that they had not fished in the area in more than decade, although as Sir Tipene O'Regan noted while explaining his support for the Te Ohu Kaimoana challenge, rights should not be contingent on whether that right was currently being used.

Northland iwi Ngāti Kuri and Te Aupouri, who were consulted about the proposal and who will receive a seat each on the proposed management board, both supported the marine reserve. This indicates that marine conservation is more likely to be supported and have more legitimacy when parties with cultural and statutory rights are consulted. Furthermore, given that Te Ohu Kaimoana, via its ownership of Aotearoa Fisheries Ltd and Sealord New Zealand, is the biggest single owner of fishing quota in New Zealand, sustainable fishing is more likely to be attained in the if the government and Te Ohu Kaimoana cooperate. Marine conservation in the Kermadec Islands is desirable given the biological and geological significance of the area and Te Ohu Kaimoana has supported prior marine conservation projects in the area, including smaller marine reserves around the Kermadec Islands. Negotiation between the government and Te Ohu Kaimoana could lead to innovative solutions that protect the marine environment and which allow Māori to continue customary or commercial fishing in the Kermadec Islands area. Marine conservation should be a priority, but it should not involve overriding important rights guaranteed by treaty settlements.

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