AbstractThis paper will examine some of the decisions of the New Zealand judiciary, made in the closing years of both the nineteenth and twentieth centuries, concerning the extent and nature of both customary and contemporary Māori fishing rights. Some themes are common to both periods, such as the influence of domestic political concerns and overseas legal developments. Another area of similarity is the influence of judicial bodies set up specifically to deal with Māori rights – in the nineteenth century, the Native Land Court, and in the twentieth century, the Waitangi Tribunal – on the judgments handed out by the general courts.
TextI have chosen to contrast the approach of the judiciary to Māori fishing rights in the late nineteenth century and the late twentieth century for a number of reasons. I think that foremost among these is the importance of both periods in shaping Pākehā attitudes towards and understanding of Māori resource rights. In the late nineteenth century, the process of Pākehā acquisition of Māori land was perhaps at its zenith, especially under the Liberal government. It was not only the amount of land that was significant, but its position – the land of the more isolated and less settlement-minded tribes, who had survived the 1860s with most of their land intact, was passing through the Native Land Court (which is now called the Māori Land Court) and into Pākehā ownership at this time, in places such as the Rohe Pōtae or King Country, the upper Whanganui River, and the East Coast.
You might wonder why I am discussing land sales when I'm supposed to be talking about fishing rights. The reason for this is that with a few notable exceptions, the issue of Māori fishing rights was inextricably linked in the Pākehā mind with the ownership of adjoining land. This applies especially to freshwater rights but also to coastal rights too. I need to say less at this stage, I suppose, about the significance of Māori fishing rights and the judiciary in the late twentieth century. Māori have been assiduous in putting their fisheries claims before the Crown and the courts over the last ten or fifteen years, and much attention has been paid to the allocation of fisheries resources. Perhaps I should just note that the wider public perception that Māori claims to fishing rights have come from nowhere betrays a lack of knowledge of the development of the relationship between Māori and the courts.
Another important factor in the judicial consideration of Māori fishing rights is that we are not talking simply about the general courts dealing with civil or criminal cases. Criminal cases brought against Māori fishermen and women have always played an important part in defining the extent to which customary rights have been recognised or protected in Pākehā law, but the work of the general courts has always been complemented and at times even outstripped by that of other courts or quasi-judicial bodies when it comes to considering the nature of Māori rights. In the nineteenth century, it was the Native Land Court which decided many matters of Māori custom from a legal perspective, and it played an important part in codifying Māori custom for Pākehā legal minds. It was also the Native Land Court that considered matters of customary resource rights between contending Māori claimants.
In the late twentieth century, we have had the Waitangi Tribunal working alongside the general courts. While the Tribunal is constituted as a commission of inquiry rather than a court, and its investigations are often historical in nature, its manner of operation has been influenced by the general Pākehā legal system and currents in legal thinking. As its findings carry no legal weight, however, its relationship with the general courts has been different to that of the Native Land Court and the general courts in the nineteenth century. Perhaps it would be more accurate to say that the decisions of the Waitangi Tribunal and the general courts in the late twentieth century have shown signs of parallel development.
As I have said, the 1880s and 1890s were a period of extensive land alienation, and by extension, a very busy time for the Native Land Court, which investigated the ownership to Māori land and granted a Crown-derived form of title to its owners as a necessary prerequisite of any sale. For this reason the Native Land Court was the branch of the judiciary which had the most to do with Māori fishing rights in the late nineteenth century. The general courts were usually highly reluctant to consider issues of Māori custom such as customary resource rights, unless they were required to consider legislation such as Fisheries Acts or other regulatory laws. So, it is to the Native Land Court we must look for most judicial decisions concerning fishing rights late last century.
This court was a land court first and foremost, however, and most of its judges seem to have been quite reluctant to deal with fishing rights as anything but a subset of land-associated resource rights. This was partly the result of government policy and the close social and political connections between judges and legislators in an extremely small colonial society. Government policy was laid down in the early 1870s, when the assertion of the Crown's prerogative right over gold-bearing sands below the high tide mark ran smack into long-standing and comprehensive Māori property rights in fisheries on those same tidal flats. In the Kauwaeranga case of 1870, Chief Judge Fenton of the Native Land Court gave clear indication that he might have given freehold to the Māori claimants to the Kauwaeranga mudflats had not there been gold in the beach, and he asserted that feudal doctrines could not override Māori property rights in their fisheries. This hint was enough to see the government ban Native Land Court judges from dealing with land below the high tide mark in 1872, which was reinforced by the Harbours Act of 1878.
This ban seems to have caused some nervousness among Native Land Court judges when it came to dealing with fishing rights in inland waters as well, unless there was a firm connection made between the fishing rights and the land under investigation. Legal authorities in the civil service also seemed unwilling to have freshwater fishing rights dealt with by the Native Land Court. The fishing rights in Wairarapa Lake are a case in point. There was a conflict there between extensive traditional Māori eel fishing practices and the needs of pastoral farmers further upstream. The Crown or settlers could not legally open the Māori-owned lake mouth bar, and so the Crown decided to buy out the fishing rights of Wairarapa Māori in the lower part of the lake. Some rights were bought but many chiefs were opposed to the sale. The advice of Parliament's Native Affairs Committee was that the matter should be referred to the Native Land Court so that title to the fishery could be decided there.
When the case finally came before Judge Brookfield in the Wairarapa Native Land Court in 1881, however, he proved very reluctant to deal with the case and determine the title to the fishing rights in the lake. He had before him an opinion from the Assistant Law Officer in the Crown Law Office that as a right to fish was not an interest in land, it was not within the jurisdiction of the Land Court. Presumably there would not have been a problem if the Crown had sought the investigation of the title to the lake, which would be an interest in land as technically the ownership of a lake bed confers ownership of the lake above it. This can be seen from Judge Brookfield's investigation of title to the upper part of the lake in the following year. He did not seem to have any problem with hearing this case, and granted shares in the lake to various Māori claimants and to the Crown. When the original case to the lower lake came before a new judge, Judge Puckey, in 1883, he seems to have investigated title to the whole lake, rather than the fishing rights alone. Of course all the evidence given by claimants in both these lake cases discussed ownership of the lake in terms of the resource rights exercised on it, and not abstract concepts such as the ownership of the underlying soil. What seemed to be at issue from the Crown's point of view was to determine just how many interests it had and had not bought up. Again the Crown was awarded a small proportion of the shares granted.
These Wairarapa Lake cases are relatively rare nineteenth century examples of the Native Land Court dealing primarily with fishing rights, although it is clear from them that the Court was far happier to deal with a legalistic concept of fishing rights as the primary indication of an underlying ownership of the soil under the water. There were however other cases in which fishing rights were considered by judges as part of the investigation of ownership of the adjoining land. In these sorts of cases fishing rights were treated merely as a sign of occupation, in the same way that planting kūmara, building a house, or burying dead on the land were signs of occupation. It was rare for fishing rights to be considered in their own right, although sometimes they did play a major part in the arguments of the claimants and counter-claimants in the Court.
For example, the various blocks around the margins of Lake Taupō were investigated by the Native Land Court in the 1880s and early 1890s, and while the boundaries of these blocks only went to the lake shore, fishing reefs and grounds out from the shore were often discussed by claimants, as these fishing grounds were often closely linked with particular fishing villages on shore. In the Taupō cases where fisheries were extensively discussed, judges did not really deal with these fishing rights in their judgments, except to note that the nature of the right exercised had or had not been circumstantial evidence of occupation of the land under investigation. The same sort of approach was usually taken by the Native Land Court in the Whanganui area, where evidence of the use of the hundreds of eel and lamprey weirs which lined the river was usually taken simply as a reinforcement of rights to the adjoining land on the river bank. To return to the Wairarapa, there was a major investigation there of the Tipua Mapunatea block, on the swampy margins of the lake. The land was almost entirely unfit for habitation, but it was an intensively used eel fishing area with literally hundreds of fishing sites claimed by various intersecting groups of kin. When Judge Alexander Mackay gave his judgment on the block, however, he relegated these fishing rights to a mere sign of occupation rather than the essential reason why the block was so closely contested. As far as he was concerned, the undisputed exercise of a fishing right was simply proof that the mana of the land was with the hapū exercising that right, relegating fishing rights to a sub-section of land occupation rights.
So, to summarise the approach of the Native Land Court to fishing rights late last century, it determined the ownership of resource rights in freshwater fisheries, but in a roundabout sort of way. As its investigations were focused on blocks of land, it often allocated rights to quite major fisheries to those found to have occupied the adjoining land. The fishing rights of any non-residents were not taken into account. There was no concept of a non-territorial right to fisheries. The Land Court was also sometimes called upon to determine the extent of the Crown's fishing rights, a role it was uncomfortable with unless the investigation was cast in the form of an investigation of the underlying title to the waterway.
I should now turn to the function of the general courts and the implications for Māori fishing rights late last century. The general courts could or would only deal with fishing rights proper once they had been made part of a Crown title by the Native Land Court, and so fishing rights came before the general courts only when there was a dispute between Māori and Pākehā. The other fisheries role of the general courts was to prosecute Māori for any breaches of fisheries legislation and regulations. These sorts of cases were rare late last century, simply because the Crown did not play a great role in managing fisheries before there were game fish, and when marine fish were still plentiful.
As with the Native Land Court cases, many key decisions were laid down in the 1870s which had implications for following court dealings. Perhaps the most influential of these cases was the well-known Wi Parata v The Bishop of Wellington in 1877, which had far-reaching consequences for all cases to do with Māori proprietary rights. In essence, Chief Justice Prendergast ruled that the Treaty of Waitangi was 'a legal nullity' and that those Māori proprietary rights confirmed in the Treaty were unenforceable against the Crown in the New Zealand courts. This view, based on a theory known as legal positivism, was based on a belief in the ultimate sovereignty of Parliament and held that the Treaty would only be legally binding if enshrined in legislation. By extension, the courts could only consider legislative Māori fishing rights.
Consequent to the Wi Parata case, successive pieces of fisheries legislation were passed which also limited customary Māori fisheries, although, curiously, most major pieces of fishing legislation contained some saving clause about Māori rights not being affected by that Act. Nevertheless the law banned commercial exploitation on Māori terms of many indigenous fish species, and limited them to fishing for personal needs only. Almost all the court cases in which Māori continued to assert their customary rights or Treaty rights against the Crown were criminal cases, with Māori fishermen and women defending themselves against convictions under the Fisheries Acts for fishing in a customary manner outside Pākehā law. These cases became more common in the early twentieth century as Pākehā and Māori society came closer together and Crown control over fisheries was extended. The final nail in the coffin of Māori attempts to have their fishing rights recognised in the courts came in 1914 in the Waipapakura v Hempton case. A Māori woman convicted for whitebaiting with an illegal net appealed her conviction in the Supreme Court on the grounds that she was exercising a Māori fishing right as protected under fisheries legislation. In the absence of any legislation defining such a right, her case was rejected, and this judgment effectively killed all customary Māori fishing rights until about ten years ago.
What should be clear from the nineteenth century examples of judicial investigation of fisheries is that the fishery itself was often not the real centre of attention in the eyes of the court. As was the case with most late nineteenth century investigations of Māori property rights, the focus was as often as not on the extent of the Crown's powers of control and regulation. It is also obvious from both the Native Land Court and the general courts that the ownership of fisheries was almost always linked with issues of ownership and control over land. This need not have been the case initially in the Native Land Court, but a nervous Pākehā government soon put a stop to what could have seen the granting of extensive exclusive Māori fishing rights. The general courts too showed perhaps an over-eager willingness to limit Māori rights in their fisheries by taking an extremely restrictive view of the enforceability of both Treaty rights and customary property rights.
This restrictive view remained the prevailing one in the general courts until the mid 1980s, when a new strain of judicial thought began to influence judgments on fishing rights. Nowadays, the Maori Land Court has a largely administrative role. Some of its old functions, such as the determination of the nature of customary Māori property rights, have unofficially been passed on to the Waitangi Tribunal. As a commission of inquiry rather than a court, the Tribunal can only make findings and recommendations, without the binding powers of a court, but this allows it to take a wider view of the historical context of customary Māori rights. It is bound by its requirement to consider claims against the principles of the Treaty of Waitangi, however, which does not allow the Tribunal to adopt any sort of non-Treaty framework for the assessment of claims. Because a large number of the Tribunal's early cases dealt with waterways and fisheries, it has been particularly important in redefining for Pākehā the nature of customary Māori fishing rights, an area which had been neglected for quite some time.
While the Tribunal brought the subject of customary Māori rights back under investigation in the early 1980s, perhaps a more important influence on the general courts and the judiciary was the work of a few academic legal thinkers, most notably Paul McHugh. Their research focused on an understanding and an explanation of some of the older concepts underlying British and other colonial common law approaches to indigenous rights, and as a result some of these doctrines have been rehabilitated in New Zealand legal thought. The key doctrine has been the doctrine of aboriginal title. A proper explanation of this would have use here all day, but to summarise it rather briefly, aboriginal title holds that at the coming of British law, all the existing property rights of the indigenous people are maintained. They cannot be disposed of or overridden by accident or afterthought. It was the basic tenets of this common law doctrine that underlay the property rights guarantees of the Treaty and early judicial interpretation of Māori rights, in this sense the Treaty was a simple recapitulation of existing law and rights, not a benevolent grant.
This doctrine is not particularly useful now to Māori land claimants in the courts, as the aboriginal title was extinguished when land was sold or brought under the Pākehā title system through the Native Land Court. It is, however, extremely relevant for Māori fishing rights, because unless a fishing right has been expressly sold or allowed to lapse by Māori, there remains the possibility of a non-territorial aboriginal right in the general courts. These sorts of aboriginal rights have been recognised in similar overseas jurisdictions such as Canada, and so a large body of case law outlining the workings of the doctrine exists. So, it is the acceptance of this doctrine of aboriginal title which has seen some judges reject the concept expressed in Wi Parata in the late nineteenth century: that the only legal Māori rights were Treaty rights, which were not enforceable in the courts.
The revived doctrine of aboriginal rights made its twentieth century debut in the New Zealand courts in a case called Te Weehi v Regional Fisheries Officer in 1986. As usual, this case was an appeal by a Māori fisherman against a conviction under the Fisheries Act for having undersized pāua. Mr Te Weehi relied on a clause in the Fisheries Act which said, 'Nothing in this Act shall affect any Maori fishing rights'. He claimed that the circumstances of his fishing – that he had only taken the pāua for personal use, and that he had sought the permission of local kaumātua to do so – meant that he was exercising a customary Māori fishing right. This defence had failed in the District Court, but the High Court heard a lot of evidence on the nature of such a customary fishing right, and Justice Williamson decided that customary fishing rights did still exist over areas under tribal control. In contrast to the approach taken in earlier cases, it did not matter that the land on shore had been sold, because fishing there in a customary manner had maintained a non-territorial right. These rights were limited to personal, not commercial, use of a fishing resource within the bounds of customary authority over fisheries. One of the features of the Te Weehi case is the overview and rejection of older New Zealand judgments on the nature of Māori rights, and Justice Williamson also reviewed some of the overseas case law, modern legal research, and Waitangi Tribunal waterways reports. The judge drew on this to find that Mr Te Weehi had been legitimately exercising a non-territorial fishing right. Significantly, there was little mention of the Treaty guarantee of fisheries.
This case has set the framework for subsequent legal consideration of Māori customary fishing rights, but as the work of the Waitangi Tribunal and others on the nature of customary rights has advanced, there has been a tendency by judges to broaden the application of these rights. The issue of the extent to which commercial fishing rights could be claimed under either or both the Treaty and aboriginal title became an issue fairly quickly, largely because of the Labour Government's impending privatisation of the commercial fishing resource through the quota system. Māori responded with challenges through the courts and the Waitangi Tribunal, and in deciding the issues the courts paid great attention to the findings of the Tribunal in the Muriwhenua Fishing report. This had reviewed archaeological, ethnographic, historical and oral evidence, and found that customary Māori fishing rights had a commercial element. Justice Greig concurred in an interim judgment in the Ngai Tahu Maori Trust Board v Attorney-General case in 1987 that these customary commercial rights existed, and that the Crown had not specifically taken them away, in fact it has specifically guarded them in the Treaty, so that they could be presumed to still be in existence.
The concept of customary commercial Māori fisheries began to filter down very quickly to the lower courts, where most fishing cases are of course heard. In the District Court in Blenheim in 1988, in the Ministry of Agriculture and Fisheries v Love, a Māori defendant had charges against him for taking undersized crayfish for sale and breaking other regulations dismissed. The Te Weehi judgment was explicitly followed, but Judge Taylor also accepted that in intending to sell some of the crayfish, there was still sufficient compliance with Māori custom to constitute a customary fishing right. He believed that there was clear evidence, from the time of Captain Cook, that Māori traded fish amongst themselves and also traded them with Pākehā for Western goods.
These cases of the late 1980s have set the legal backdrop for more recent cases, which have usually followed the basic principles set down the in Te Weehi and Ngai Tahu Maori Trust Board cases. Some limitations have been put on the extent of customary rights. For example, in the Ngai Tahu Maori Trust Board v Director-General of Conservation case in the High Court in 1993, Justice Neazor rejected Ngai Tahu's Treaty-based claim to control access to the commercial Kaikoura whale resource. The judge found that this had been overridden by conservation legislation protecting the whales, and by the fact that Ngai Tahu's use of the whales had lapsed in the early twentieth century, and so the aboriginal right had been allowed to fall into disuse. The judge also reinforced the standard judicial view that Treaty provisions were only cognisable by the courts when incorporated into the relevant legislation, and could not be applied to all cases involving Treaty issues. Ngai Tahu appealed this to the Court of Appeal, which stated that statutory provisions giving effect to the Treaty should be broadly interpreted, but it confirmed the power of the Crown to pass statutes for the good of all New Zealanders, including conservation legislation. The Court of Appeal also rejected the applicability of aboriginal title to distinctly modern resource uses such as whale watching.
When the legal background to modern fisheries cases is considered, it is much easier to see how judgments such as the recent controversial Taranaki Fish and Game Council v McRitchie arise. In this case in the Whanganui District Court in February of this year, charges against a Māori defendant for fishing for trout without a license were dismissed. This judgment has caused much alarm in some circles, but it can be seen as a predictable progression in light of earlier cases. The relevant legislation is the Conservation Act, which contains protection for both general Māori fishing rights and Treaty principles. This allowed the judge to take an approach based on both the Treaty and aboriginal rights. The defendant was acquitted because he was fishing expressly under local protocol, in fact he was regarded as the fishing tohunga of his community. He was also fishing to feed his family and he was not fishing in an unsustainable way. Judge Becroft found that there was no specific legislative exclusion of introduced fish from the scope of Māori fishing rights. He also noted the argument of the defendant that trout had been introduced against the stated wishes of local Māori, and that the trout had seriously damaged the native fish stock, but the judge made no findings on these points. In many respects there is little difference between this case and the original Te Weehi case. The reaction to this case has betrayed that most Pākehā outside the legal system do not understand the underlying principles. Nick Smith, the Minister of Conservation, complained that it was unfair to Pākehā that Māori be able to fish under any rules they like, when Judge Becroft had expressly said that, 'This decision is not a charter for Maori to fish for trout without a licence anywhere in New Zealand. Nor does it declare "open season" on trout.' In almost all recent judgments, customary restraints as well as customary rights apply to Māori fishing.
As a note to finish on, I read in the newspaper a couple of weeks ago that Labour Māori Affairs spokesman Dover Samuels has been critical of Pākehā judges for taking the interpretation of customary Māori rights too far. He accused a District Court judge of 'cultural naïvety' after the judge had dismissed charges against a Māori commercial fisherman who had taken a tonne more scallops than he had quota for on the final day of the season, allegedly for use at hui and not for sale. Dover Samuels responded that some judges appeared to be afraid of offending someone when it came to cases involving customary rights, and that this opened the door to abuse. He pointed out that one of the major facets of customary fishing protocol is a strong conservation and sustainability ethic. This questioning of the judiciary from a Māori viewpoint may be an indication that customary fishing rights are reaching their maximum extent of liberal interpretation in New Zealand courts at the moment.
Buttons and bars by Alistair Luke; background image by Kemera Wilson
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