Friday, December 13, 2019


 Heidi Kai Guth

excerpted from:  Heidi Kai Guth, Dividing the Catch: Natural Resource Reparations to Indigenous Peoples--examining the Maori Fisheries Settlement , 24 University of Hawaii Law Review 179-244, 184-215 (Winter, 2001)( 430 Footnotes Omitted)


The Polynesian demigod, Maui, fished Aotearoa from the sea, and he and his waka (canoes) populated the new land with a progeny of fishers. Traditionally, when Maori fishing nets became ragged, some Maori would send an expert to the wild flax fields, where he would pluck two blades of flax and look for ends that had already been nibbled by fish. When the most tempting flax was found, the weaving was made tapu, which forbade food, fire, and people not directly associated with the task from being allowed near the net. Because many nets of Aotearoa's indigenous, pre-Colonial Maori were more than 1,000 yards long, the whole community would be somewhat involved, even if not allowed on the site. And, in some traditions, when the net caught its first haul, the "first" fish would be returned to the sea in thanks and in hopes of that fish leading more to the net in the future. Of that catch, only one fish per person who had helped in the net's creation would be kept. Through this ceremony, New Zealand's Maori thanked both the fish and everyone who had created the net and supported the community. Thus, Maori always knew the importance of respecting the resource as well as the people.

Maori today make up a steadily increasing minority of fifteen percent of New Zealand's population of 3.8 million. New Zealand is small enough that this indigenous group can be heard, and Maori are determined to be heard. Their problems are common among indigenous peoples elsewhere, but uncommon in that Maori are persistent and moderately successful in trying to solve them. Most Maori progress flows from the original Treaty of Waitangi, signed by Maori and the Crown on February 6, 1840.

Maori claims of violations of the Treaty of Waitangi are heard both in federal courts and in the Waitangi Tribunal, created by the Treaty of Waitangi Act of 1975. The Tribunal initially was charged with investigating Maori claims against government actions since 1975. In 1985, the national government allowed the Waitangi Tribunal to hear claims dating back to 1840. The Tribunal reports its findings of prejudice against Maori and makes recommendations of compensation. It has no enforcement capabilities, but by merely reporting its findings, it often influences all three branches of New Zealand government.

The following sections describe and discuss fisheries claims arising from the Treaty. The first difficulty in analyzing the Treaty is determining the words' meanings and translations. The first section explains that because of differing interpretations, many Maori believe that the Treaty has never been honored by the Crown, and seek to remedy the subsequent injustices. The second section describes the legal and political history of fisheries issues that have led the way toward the first Pan-Maori settlement. The final section in this Part is an analysis of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and its impacts on Maori commercial and customary fishing.