Ngai Tahu Sea Fisheries Report

04 Ngai Tahu Sea Fisheries Treaty Rights at 1840

4.3 Contexts

English text

4.3.1 The Muriwhenua tribunal gave detailed consideration to the English law of fisheries since it was assumed by the Crown from an early stage of settlement in New Zealand that the English law, not the Treaty of Waitangi, governed the rights of both Maori and non-Maori to sea fishing. It came to the conclusion:

first, that the Crown's presumptive title to the foreshore was capable of being displaced by, or made subject to customary rights on proof of long term user. Secondly, however, there is no strong evidence that anyone held some special right to fish the open seas by virtue of long term user, but only by actual Crown grant. Thirdly, the private foreshore fisheries were regarded as properties. Fourthly, there was a Court procedure whereby people's claims to private fisheries could be upheld as against the Crown.{FNREF|0-86472-103-X|4.3.1|3}

In the English text of the Treaty of Waitangi, Maori fisheries are called properties too. This led the Muriwhenua tribunal to consider whether the drafter of the English text might have had English foreshore fisheries in mind. On the evidence it concluded, as does this tribunal, that that was not so. The Treaty was prepared in New Zealand and the article on fisheries was drafted by James Busby who was fully aware of Maori fishing activity. He had lived in the Bay of Islands as British Resident since 1833. He well knew that every acre of land in New Zealand was appropriated among the different tribes; that Maori fishing was practised well beyond the foreshore and that Maori would not have understood the more limited arrangements of English law.{FNREF|0-86472-103-X|4.3.1|4} We concur in the view of the Muriwhenua tribunal that the English experience places no gloss on the Treaty's plain words and that the text was drafted with the New Zealand context in mind. We turn then to the Maori version.

Maori text

4.3.2 Under this heading the Muriwhenua tribunal gave a full and informative exposition of the significance of such key Treaty words as 'taonga' and 'tino rangatiratanga' in the context of Maori cultural values with particular reference to fisheries. We set this out in its entirety and subject to some additional observations, adopt it as our own:

(a) There are obvious distortions when Maori concepts are translated in Western terms. It must be understood that the division of properties was less important to Maori than the rules that governed their user. These criteria underline Maori thinking

(i) A reverence for the total creation as one whole;

(ii) A sense of kinship with fellow beings;

(iii) A sacred regard for the whole of nature and its resources as being gifts from the gods;

(iv) A sense of responsibility for these gifts as the appointed stewards, guardians and rangatira;

(v) A distinctive economic ethic of reciprocity; and

(vi) A sense of commitment to safeguard all of nature's resources (taonga) for the future generations.

To meet their responsibilities for these taonga, an effective form of control operated. It ensured that both supply and demand were kept in proper balance, and conserved resources for future needs.

Maori extended their deep sense of spirituality to the whole of creation. In their myths and legends they acknowledged gods and other beings who bequeathed all of nature's resources to them. There was a system of tapu rules which combined with the Maori belief in departmental gods as having an overall responsibility for nature's resources served effectively to protect those resources from improper exploitation and the avarice of man. To disregard or to disobey any of the rules of tapu was to court calamity and disaster.

To the pre-European Maori, creation was one total entity - land, sea and sky were all part of their united environment, all having a spiritual source. It was by divine favour that the fruits from these resources became theirs to use. The first fruits taken were invariably offered back to the gods.

In Maori terms these resources were possessed. Before European contact Maori had no system of buying and selling. Rather their economy was based principally on the giving of gifts upon which were attached the obligations of reciprocity.

All resources were 'taonga', or something of value, derived from gods. In a very special way Maori were aware that their possession was on behalf of someone else in the future. Their myths and legends support a holistic view not only of creation but of time and of peoples.

Maori involvement with fish and fisheries is as ancient as the creation. The North Island is a fish in their legends.

Tangaroa is the God of the fish, allowing Maori to gather fish after the appropriate ritual and karakia have been observed. He is known throughout Polynesia. Fish were referred to as "the progeny of Tangaroa" (Buck 1949:458). There was absolutely no way a sale or a purchase could have been negotiated under Maori law.

Taonga were either gifted or wrested, never sold. To buy and sell was an entirely western practice and when finally Maori engaged in buying and selling, they were behaving in a Western way within the colonial design and system. In the western pattern they sold only what was listed on the English bill of sale, no more, no less. When Te Kawau said "the land I sold, the sea I did not sell" he was making a genuine un-Maori statement backed by English documentation and was acting in an un-Maori way in order to comply with an un-Maori situation .... In their own cultural terms they would have known that access to the fisheries was gained from Tangaroa in return for the observance of the appropriate rites.

(b) To understand the significance of such key Treaty words as 'taonga' and 'tino rangatiratanga' each must be seen within the context of Maori cultural values. In the Maori idiom 'taonga' in relation to fisheries equates to a resource, to a source of food, an occupation, a source of goods for gift-exchange, and is a part of the complex relationship between Maori and their ancestral lands and waters. The fisheries taonga contains a vision stretching back into the past, and encompasses 1,000 years of history and legend, incorporates the mythological significance of the gods and taniwha, and of the tipuna and kaitiaki. The taonga endures through fluctuations in the occupation of tribal areas and the possession of resources over periods of time, blending into one, the whole of the land, waters, sky, animals, plants and the cosmos itself, a holistic body encompassing living and non-living elements.

This taonga requires particular resource, health and fishing practices and a sense of inherited guardianship of resources. When areas of ancestral land and adjacent fisheries are abused through over-exploitation or pollution the tangata whenua and their values are offended. The affront is felt by present-day kaitiaki (guardians) not just for themselves but for their tipuna in the past.

The Maori 'taonga' in terms of fisheries has a depth and breadth which goes beyond quantitative and material questions of catch volumes and cash incomes. It encompasses a deep sense of conservation and responsibility to the future which colours their thinking, attitude and behaviour towards their fisheries.

The fisheries taonga includes connections between the individual and tribe, and fish and fishing grounds in the sense not just of tenure, or 'belonging', but also of personal or tribal identity, blood and genealogy, and of spirit. This means that a 'hurt' to the environment or to the fisheries may be felt personally by a Maori person or tribe, and may hurt not only the physical being, but also the prestige, the emotions and the mana.

The fisheries taonga, like other taonga, is a manifestation of a complex Maori physico-spiritual conception of life and life's forces. It contains economic benefits, but it is also a giver of personal identity, a symbol of social stability, and a source of emotional and spiritual strength.

This vision provided the mauri (life-force) which ensured the continued survival of the iwi Maori. Maori fisheries include, but are not limited to a narrow physical view of fisheries, fish, fishing grounds, fishing methods and the sale of those resources, for monetary gain; but they also embrace much deeper dimensions in the Maori mind, as referred to in evidence by Miraka Szaszy in the context of spiritual guardianship ....

(c) "Te tino rangatiratanga o o ratou taonga" tells of the exclusive control of tribal taonga for the benefit of the tribe including those living and those yet to be born. There are three main elements embodied in the guarantee of rangatiratanga. The first is that authority or control is crucial because without it the tribal base is threatened socially, culturally, economically and spiritually. The second is that the exercise of authority must recognise the spiritual source of taonga (and indeed of the authority itself) and the reason for stewardship as being the maintenance of the tribal base for succeeding generations. Thirdly, the exercise of authority was not only over property, but of persons within the kinship group and their access to tribal resources.

[This tribunal would add a fourth main element as being the creation of the necessary conditions for the survival of the species.]

In the Maori text authority is represented in rangatira, or chiefs who led by virtue of their mana, or personal and spiritual prowess. It was usual for Maori to personalise authority in that way, so that the one word 'mana' applies to both temporal authority and personal attributes.

Accordingly it would be said that a certain chief held the mana of a particular place, or that the authority over tribal seas was vested in a specified person. ... R H Matthews described the position at Rangaunu in terms of the usual Maori idiom.

At the time I am speaking of [1857], the mana or authority over the kopua (the deep) was solely exercised by Popata te Waha, who had inherited it from his ancestors ... Popata te Waha's mana over the kopua was acknowledged by all the surrounding tribes.

The petition of Arama Karaka of 1879 ... shows that Arama saw Maori as having mana over "deep-sea fisheries".

'Mana' is the more usual Maori word for 'authority'. It is likely that Rev Henry Williams avoided using the word in the Treaty because of its particular connotations (see Manukau Report at 8.3). The missionaries were rarely keen on the word, for mana is said to have been inherited from heathen Maori gods. Nonetheless in debating the Treaty in 1879, it was 'mana' that Maori consistently used to describe that which they thought the Treaty had reserved ....

(d) Accordingly, the Maori order related primarily to how resources were used, rather than to how they were owned, and human leadership was combined with spiritual beliefs for the maintenance of control. It does not follow that there was no concept of private rights. There is no doubt that particular subgroups had special use rights of various places and resource areas, and that areas of sea were as much their properties as cultivations on land .... But they did not own them; they stayed in the bloodline; they were not transferable; and all were subject to the overright of the tribe.

Again it is necessary to understand that while particular areas of the land and sea were defined, and prior use rights were apportioned, the key to Maori ownership is not survey definitions but kinship. People moved about the resource areas and had use rights in many places based on kinship or marriage.{FNREF|0-86472-103-X|4.3.2|5}

4.3.3 The Muriwhenua report translated 'te tino rangatiratanga' as 'the full authority'. In paragraph (c) of the preceding passage reference is made to the need for the exercise of authority to recognise the spiritual source of taonga (and indeed of the authority itself) and the reason for stewardship as being the maintenance of the tribal base for succeeding generations. We believe that an extremely important element in rangatiratanga is trusteeship. This implies a relationship between the rangatira as trustee and his or her kin group - the trustee's beneficiaries. So the kin group is a closed definable group. In general terms the function of the rangatira as trustee is to sustain the group of beneficiaries - whanau, hapu, iwi - by any means available. The means are the group's estate both material and non-material. Rangatiratanga is the reciprocal relationship between the trustees of a kin community and the beneficiaries and the community's estate provides the means for exercising rangatiratanga. It is people specific and territory specific. We cannot talk about rangatiratanga in a vacuum.

Tribal territories were generally well defined and acknowledged between tribes. Each tribe had complete dominion over the land and foreshore - mana whenua - and over such part of the sea as they exercised mana moana. As between tribes, consent had to be obtained to enter the land or fisheries of others. Tribal wars were caused by invasion of exclusive rights. Through the tribe the rangatira exercises the autonomy of the tribe. Each tribe has its own rangatiratanga which could be called tribal sovereignty. In the context of the Treaty, rangatiratanga was to be exercised in a similar way to that of local bodies who may be said to have a form of limited self-government, which is of course subject always to the sovereignty of the Crown, that is, of the nation.

While rangatiratanga is best defined in its own context, there are some principles of general application. The point of reference for those principles is the relationship between the people and their gods and between the people and their resources which are all sourced from their gods. Rangatiratanga operates within the kin relationship between these concepts - gods, people, resources. With regard to fisheries the reference point is Tangaroa. There are no limitations to the bounty of Tangaroa except respect for the resource and sustainability of the resource. Rangatiratanga includes management and control of the resource and reciprocal obligations between those who actually harvest the resource.

Some legal perspectives of the Maori context

4.3.4 Difficulties arise in expressing Maori concepts in British legal language. For instance in paragraph (d) of the lengthy passage quoted in 4.3.2 the Muriwhenua tribunal emphasised that the Maori order related primarily to how and by whom resources were used, rather than to how they were owned, and human leadership was combined with spiritual beliefs for the maintenance of control. Particular sub-groups had special use rights of various places and resource areas, and areas of the sea were as much their property as cultivations on land. But they did not own them, they stayed in the descent group; they were not transferable, and all were subject to the oversight of the tribe.

As we have earlier indicated a tribe wishing to enter the land or foreshore of another tribe in peace was obliged to obtain consent of the other tribe. The Muriwhenua report, after citing from a Maori Land Court decision in 1957 and the adoption of certain passages from the decision by the High Court in Keepa v Inspector of Fisheries [1965] NZLR 322, 328 cited Mr Justice Hardie Boys as saying:

One knows from history that it was the invasion by one tribe of another tribe's exclusive rights that led to tribal wars. The appellants support their claim by evidence that, even as between these two tribes, consent had to be obtained by one to enter the part of the foreshore in the DOMINION of the other.(emphasis added){FNREF|0-86472-103-X|4.3.4|6}

The Muriwhenua tribunal went on to point out that:

The missionaries who translated the Bible also saw rangatiratanga in these terms. In the Book of Genesis, chapter 1, verse 26, God said "Let us make man in our own likeness" and "Let them have dominion over the fish of the sea, etc". The Maori translation of this verse is "Kia hanga tatau, te tangata. Kia rite kia tatau" and "kia waiho ratou, hei rangatira mo nga ika".

In this example, 'rangatira' equates with 'dominion'.{FNREF|0-86472-103-X|4.3.4|7}

We agree that the judicial findings correctly locate 'dominion' as the nearest British cultural equivalent to the tribal overright. In that same context, the tribal resources were also properties that were owned.

The Muriwhenua tribunal rejected, as does this tribunal, a suggestion by the Crown and the fishing industry that rangatiratanga denoted something less than ownership.{FNREF|0-86472-103-X|4.3.4|8} It was suggested that stewardship was more significant in the mores of Maori society. But neither "rangatiratanga" nor "mana" excludes ownership. Stewardship was an aspect of the Maori way, but not one that meant tribal resources were automatically shared with all comers. Indeed, it was the essential part of rangatira stewardship or trusteeship that they did not permit an intrusion at will. We endorse the conclusion of the Muriwhenua tribunal that:

Maori ranked those properties much higher than mere commodities, holding them with profound spiritual regard for a vast family, of which many are dead, few are living, and countless are still unborn. That cultural peculiarity cannot be used to deny ownership, however, or to imply that because of it, the resources must be shared.

In more simplistic terms it can be said that, 'manamoana' (authority over the seas) applied in the same idiomatic form to land-mana whenua-and yet it has never been suggested that Maori land rights amounted to less than ownership when expressed in English terms.{FNREF|0-86472-103-X|4.3.4|9}

This relatively brief discussion and the much larger section in the Muriwhenua report on which it is based, serve to highlight the problems and potential pitfalls in attempting to formulate Maori concepts such as rangatiratanga and taonga in the form of British legal constructs. But we are left in no doubt that Ngai Tahu, along with all other Maori iwi, in British legal language owned their tribal land and sea fisheries.

We turn next to a discussion of the nature and extent of the Ngai Tahu sea fisheries in the light of this discussion and the preceding chapter 3.