Bid to change how iwi share in funds from fisheries assets
Nga¯i Tahu launches High Court claim over planned changes to Ma¯ori Fisheries Act
Nga¯i Tahu has filed papers in the High Court over attempts to change how surplus funds from collective Ma¯ori fisheries assets are allocated among iwi.
The allocation model used now distributes benefits on a population basis, but planned amendments to the Ma¯ori Fisheries Act (MFA) would allow surplus funds to be distributed equally among iwi.
The legislative change has its origin in a 2015 review of Te Ohu Kaimoana — the trust set up to manage the collective interests of iwi arising from the 1992 settlement of their commercial fishing treaty claim.
Nga¯i Tahu’s November 1 claim filed in the High Court at Wellington named Te Ohu Kaimoana’s corporate trustee as first defendant, with the Minister for Oceans and Fisheries as second, but neither had filed a statement of defence as of last Monday.
Restructuring plan
The 2015 review recommended winding up the trust and transferring its assets to iwi, in accordance with the MFA, but instead iwi decided on a restructure plan that would allow them more direct control over Te Ohu Kaimoana and the assets they collectively own through it, including a 50 per cent shareholding of Sealord.
A further 2016 report on a funding model found that the trust held $73 million in “available funds” and recommended $24m be distributed as surplus to requirements.
At a special general meeting, where the funding model was considered, a resolution brought from the floor to distribute the surplus funds equally among iwi was passed 28-23.
Nga¯i Tahu’s claim said in allowing the resolution, Te Ohu Kaimoana had breached its fiduciary duties as trustee.
It also said amending the Ma¯ori Fisheries Act to give effect to the resolution would be inconsistent with the purposes of both the act and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and would also breach the principles of the Treaty of Waitangi.
In a 2017 report to the minister, the trust said it had been argued it would be more appropriate for the funds to be distributed equally because many smaller iwi had insufficient resources to manage their fisheries alone.
“Equal distribution of surpluses would put smaller iwi in a better position, compared to larger iwi, to manage their fisheries themselves,” said the advice.
However, the Government was warned the resolution on distributing surplus funds had generated the most contention among iwi and said there was a risk it might be challenged later in the process.
Decade to negotiate
Nga¯i Tahu’s claim sought judicial review of the way the trust chaired the meeting in which the resolution was passed, and of the trust’s 2017 advice
to the Government.
The South Island iwi said not all iwi were at the meeting when the resolution was tabled and the trust should have deferred the vote to a future meeting.
Nga¯i Tahu said in its statement of claim that deciding on an agreed allocation model had taken over a decade and involved extensive consultation with individual Ma¯ori, iwi and other interested parties.
It said the final allocation model recommended by the Treaty of Waitangi Fisheries Commission achieved the support of 93.1 per cent of iwi, representing 96 per cent of iwiaffiliated Ma¯ori.
That model allocated benefits according to the “notional” population of iwi as defined in a schedule of the Ma¯ori Fisheries Act.
Nga¯i Tahu said the iwi voting
against the resolution represented more than 75 per cent of this notional iwi population.
A Cabinet paper on the Ma¯ori Fisheries Act review said an operational review had found Te Ohu Kaimoana did not have any surplus funds and nor did the trust expect there to be any significant surplus in the future.
Its analysis said the resolution to distribute funds equally met the purposes of the act, met the purposes of the trust and was consistent with other legislation.
An August update Te Ohu Kaimoana gave iwi said the Government planned to introduce the amendments in late November.
Earlier this month, Nga¯i Tahu’s commercial arm reported a net profit for the June year of $105.2m, with a net operating surplus of $44.3m.