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David Round

Mixed Motives in Kermadec Tangle

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The Kermadecs lie six hundred or so miles to the north of the rest of New Zealand. The main island, Raoul Island, is our country’s northernmost inhabited outpost. The islands are all reserves, administered by the Department of Conservation, and the only inhabitants are Conservation Department staff and volunteers. The islands were settled by Polynesians around the fourteenth century, but they were uninhabited when the first Europeans reached them in the Lady Penrhyn in 1788.

Last year, while attending the United Nations General Assembly in New York, the Prime Minister announced plans for a Kermadec Ocean Sanctuary. Marine reserves and sanctuaries are an excellent idea, and we also have international obligations to establish them. At about 620,000 square kilometres the Kermadec reserve would be a large one, actually thirty-five times larger than our forty-four other marine reserves combined. The Kermadecs would appear to be the perfect place for such a sanctuary. The seas teem with life; as well as myriads of fish, about 39 species of seabird are found there, and 35 species of whales and dolphins. There are also three species of turtles, all endangered. The area is uninhabited, and so there are no locals to complain that they are being imposed upon. Nor has there been any recent commercial fishing in the area. In particular, it appears that no fishing by Maori has occurred since the 1993 fisheries settlement, the ‘Sealords deal’, and very possibly for much longer before then.

Parliament, therefore, is now considering a Kermadec Ocean Sanctuary Bill.  But there’s many a slip ‘twixt cup and lip. Te Ohu Kaimoana, the Maori Fisheries Commission, which is in charge of administering the Maori share of our fisheries resources, lodged a statement of claim in the High Court a couple of months ago, alleging inadequate consultation by the Crown and also complaining that Maori fishing rights are being overridden. Fighting words! The Commission was not concerned about the costs of legal action, because it has a ‘large war-chest’. But evidently those fighting words did not frighten the government quite enough, for now the news arrives that the Commission is urging the Maori Party to ‘seriously consider’ walking away from its ‘relationship’ with the National Party. The Commission claims that the interference with Maori fishing rights is as serious, if not more so, than Labour’s foreshore and seabed legislation. But Te Ururoa Flavell, of the Maori Party, thinks that although the proposed reserve will have a very serious effect on Treaty rights, it is not quite as bad as that.

The government appears to be standing its ground, and good on it if it continues to do so. Dr Nick Smith has so far been very firmly insisting that the Kermadec Sanctuary’s establishment does not undermine the 1993 settlement. He maintains that the government has continued to have the power to create new protected areas where no fishing is allowed, and offers as evidence that over twenty such marine reserves have been established since 1993. He points out also that since that 1993 settlement not a single ton of fish has been caught by Maori fishers in the area of the proposed Kermadec Sanctuary. Just exactly what Maori property right, then, is being infringed?

The whole argument does become rather tangled. The New Zealand Fishing Industry Association has also filed legal proceedings, and an umbrella group, Seafood New Zealand, has asked Parliament to put the bill establishing the sanctuary on hold for the time being. They express concerns about property rights, poor processes and inadequate advice.

I think we are entitled to be a little cynical about some of their objections.  These groups are clearly interested parties. Seafood New Zealand’s submission on the Kermadec bill to the Select Committee clearly envisages ‘opportunities for future development in an environmentally sustainable….and economically viable manner’. I wonder which might lose out if a future choice has to be made between environmental sustainability and economic viability. The submission claims that commercial fishing poses ‘no threat to the current or future protection of marine biodiversity’ in the area. But it stands to reason that increased fishing in future will affect biodiversity. Not all fish stocks managed under the quota system are maintaining their numbers, and even if numbers are stable fishing will still affect the balance of marine life in that area.

It appears that the Kermadec area is hardly touched now, and is actually still described as a ‘pristine environment’. Well, if the fishing quota in this particular quota area, FMA (Fishing Management Area) 10, can be caught now without intruding on the Kermadecs, why can that not continue to be done? Certainly some of the species which could be ‘harvested’ in the region are migratory species which do not spend all their time in the area of the proposed sanctuary.

Although I would be reluctant to offer a final opinion on these points, I am prepared to give the government the benefit of the doubt. Our government is not one keen to override private property rights. The fishing industry seems to be as concerned not to lose a possible area of future exploitation as it does to guard existing property rights. Dr Smith is correct to say that marine reserves may still validly be established even after the Sealord settlement. There seems to be general agreement that so far, anyway, there has been little to no commercial fishing in the sanctuary area. Te Ohu Kaimoana would seem to accept this, as it argues that it is ‘not the scale that matters, but the precedent’; but if there has been no fishing hereabouts hitherto, just what precedent are we talking about?

Dr Smith has also proposed that the Act acknowledge Maori fishing rights and the effect of the Act on those fishing rights. That would surely be sufficient to deal with the precedent issue?

Te Ohu Kaimoana may consider the establishment of this sanctuary to be a worrying precedent, but I consider their opposition to be a very worrying precedent. They claim that a sanctuary is a ‘new environmental ideology’ that cuts across fishing rights. That would seem to suggest that they consider sanctuaries to be unacceptable always and everywhere. Maori have certainly opposed the establishment of other smaller reserves ~ in Akaroa Harbour, for example ~ simply because of an objection in principle to reserves where absolute protection is the rule. That is a foolish attitude, for there is no doubt that reserves do enhance fishing stock outside reserves. For Maori to demand the right to fish absolutely everywhere is also a very greedy and environmentally irresponsible attitude. Is nothing sacred? The evidence of middens ~ rubbish piles, essentially, of discarded shells and bones ~ shows patterns of overfishing even before European settlement. With modern fishing techniques the seas may be vacuumed clean much more swiftly. The Quota Management System may be a good idea, but it will only last as long as fishers themselves display some sense of restraint and responsibility. The oft-claimed Maori environmental responsibility continues to be an elusive concept.

As we know, the proposal is to establish this particular marine sanctuary by its own Act of Parliament. Parliament, in our constitution, is supreme. An Act of Parliament cannot be questioned. It is our highest law, and nothing can stand against it. That being so, I cannot quite understand what the purpose is of the action which Te Ohu Kaimoana and others are bringing against the Crown. Even if judges were to declare that our international obligations did not require a sanctuary this large, or that it would have been nice if there had been more consultation, or that the Crown should have done something else, any decision of the judges is surely irrelevant, because Parliament is making this new Kermadec Sanctuary Act, and an Act of Parliament prevails over everything else. A decision of the judges criticising the government might perhaps be slightly embarrassing for the government ~ or perhaps not ~ but that would be all. So ~ why is this litigation being brought? Embarrassment seems a rather inadequate reason.

Yet what other reason could there be? Surely not an expectation that judges would be prepared to interfere with parliament’s processes and attempt to forbid Parliament to make laws as it wishes to? If any judge did that, then our ancient liberties would end that very day.

I am not quite sure what other reason there might be. I suspect there is a great deal of bluff in all these posturings.