Maori fishing rights "consistent with law’

Press, 30 March 1989, Page 14

Maori fishing rights "consistent with law’

By

OLIVER RIDDELL

in Wellington

Special fishing privileges for the Maori are consistent with equality before the law and the rejection of racial discrimination, according to the Law Commission.

It has prepared a 360-page paper for the Government on the Treaty of Waitangi and Maori Fisheries. It has assumed the continuing validity of these obligations and examined laws and policies that directly govern fishing rights and the indirect impact of other legislation. Past injustices should not be cured at the price of creating new ones, the Law Commission said.

Neither the law as generally understood nor past Government policies gave adequate recognition to Maori interests in fisheries, particularly sea fisheries. Governments in the past had tended to decide on Maori fishing claims purely on the basis of British rules, principles and priorities, it said. The Maori point of view had not been given full weight. In the light of recent decisions, the law had become uncertain, so legislation was desirable to clarify the law and place it on a just and sound basis. “Any solution might take the form of negotiated settlements ratified by legislation,” the Law Commission said. “The case for reform of the Maori fisheries law rests on respect for longstanding rights guaranteed by the Treaty of Waitangi rather than on giving any special privileges to Maori. “Recognition of a particular fishery means little if that fishery becomes unusable because of pollution or for other reasons,” it said.

The past often did govern the present,

whether people liked it or not. Old convenants and old statutes might be a source of rights and duties today that few would query. The Treaty of Waitangi was no more part of an irrelevant past than the Ten Commandments, the Hippocratic Oath or Magna Carta, the Law Commission said. In the Treaty the Crown made certain promises as a condition of acquiring and continuing to hold sovereignty over New Zealand. These promises were as valid on an enduring basis as the power of sovereignty. The value and importance of the Treaty was not limited to the Maori. It was the means by which British authority and government came to New Zealand peacably and with the consent of those this country belonged to.

"No-one wants to inherit a stolen country,” the report said.

"No-one doubts that New Zealand formerly belonged to the Maori; the pakeha New Zealander rightly denied being a thief or receiver of this country, but this can only be so if possession was acquired by consent.

"The evidence of that consent for New Zealand as a whole is the Treaty of Waitangi,” the report said.

It was not “the Maori” who were claiming fisheries rights, any more than it was “the people” who owned the land. Rather, it was the particular iwi or hapu whose historic possession and mana were the basis of the claim for legal recognition. “The argument for the recognition of Maori fisheries is this — those fisheries were vested historically in the iwi and hapu of Maoridom and were a major economic resource,” the Law Commission said.