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(Image: Erica Sinclair)
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ĀteaMay 26, 2022

The crucial movement to protect Māori rights to kaimoana

(Image: Erica Sinclair)
(Image: Erica Sinclair)

The legal recognition of customary rights to gather kai and manage the resource has been an essential recognition of Māori tino rangatiratanga.

Food is whakapapa. It defines who we are and tells us where we come from. Food develops cultural practices and relationships with the world and these become essential markers of identity. 

Intertwined in the concept of customary fishing rights is the physical and spiritual relationship Māori have with the world. Customary fishing is not just about the gathering of kai for obtaining food, it also provides the context by which tangata whenua engage with the land and sea. 

For Tā Tipene O’Regan, the former long serving chairman of the Ngāi Tahu Trust board and the founding chairman of Te Ohu Kaimoana, food is a key part of the identity of not just Māori, but the individual cultural character of iwi. 

“Who you are and where you are from is marked by your food preferences. Things are cultivated by them and practices are cultivated by them. In many ways those preferences are markers of identities and very cultural things,” says O’Regan.  

Tā Tipene O’Regan (Image: Barry Durrant/Getty Images)

That is why securing access to customary use of kaimoana resources was a vital part of the fishery claims to the Waitangi Tribunal in 1989 and 1992. The outcome of the claims was the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. As part of its settlement of commercial claims, it also officially recognised the importance of customary kai to Māori and the special relationship Māori have with the environments where food is collected. The agreement required the Crown to recognise and provide for customary food gathering – so long as gathering was not commercial – and Māori were to oversee the management through individual iwi.

“Non-commercial fisheries were enormously important to me personally. It’s a huge thing within Ngāi Tahu. The non-commercial dimension of the fishery was absolutely fundamental to our cultural character.”

It was also an essential recognition of Māori tino rangatiratanga. O’Regan remembers receiving a call from Ngāi Tahu senior counsel on New Years Day 1994, advising him that as of that date he had 14 sets of individual proceedings against the Crown under his name. 

“He thought that was something of a record and wished to offer me the good greetings of the new year. I hadn’t realised I’d caused so much offence,” he says.  

Gags aside, the legal system had become an essential part of O’Regan’s tool kit in the Māori claim to fisheries. While more commonly seen as a vehicle for the colonisation of Māori, O’Regan saw the law as a way to have Māori values and practices undeniably recognised. 

(Image: Erica Sinclair)

Māori were drawn to the law from the first arrival of Pākehā, says O’Regan. In the early 1800s, Māori like Ngāti Hauā leader Wiremu Tamihana were fascinated by its application to te ao Māori. In the 80s and 90s O’Regan saw the opportunity for Māori to use and adapt the law to advance their mana motuhake over the fishery that had been such an essential resource to iwi for so long. 

“Marshall Simons, the great ethnographer and anthropologists from the University of Chicago, he had a line, and I’m paraphrasing a bit: ‘indigenous people who accept new concepts, new tools, new ideas from colonising societies adapt them so as to become more like themselves’,” says O’Regan. “That goes right against the idea of the conversion of the natives. The customary fisheries regulations as they operate today reflect a Māori adaptation of rules which we could manage and manage under our own steam.”

In the 1980s, the common law provided a historic turning point for Māori customary rights in what is known as the Te Weehi decision. In January, 1984, on a remote beach in North Canterbury, Tamati Paku (Tom) Te Weehi was accosted by fisheries officers while gathering kai for his whānau. The officers, inspecting Te Weehi’s catch, found that some of the pāua he was carrying were undersized and charged him under the Fisheries Act 1983. But what seemed like a routine compliance issue would go on to prove one of the more fundamental cases in the field of Māori customary rights.

At the District Court in Rangiora, Te Weehi argued he was exercising a traditional property right to take kaimoana from the area, and was therefore not bound by the restrictions of the Fisheries Act. Initially this defence was unsuccessful, however on appeal to the High Court Te Weehi maintained he was exercising a customary right that existed before the signing of the Treaty of Waitangi, and had never since been extinguished. Motunau Beach, approximately 100km north of Christchurch, is part of the traditional rohe of Ngai Tahu, and Te Weehi had been given permission to take kaimoana from the area by a local rangatira

Previous cases citing rights guaranteed under the Treaty of Waitangi had been decided against Māori on the grounds that the Treaty itself is not a legally binding document, but Te Weehi’s argument lay outside of statute and was based on British common law principles. 

In a landmark decision, Justice Williamson found “sufficiently clear, undisputed and precise” evidence of the existence of Te Weehi’s customary rights, holding that he was therefore outside of the scope of the Fisheries Act of the time and could not be charged. But while the decision was historic for Māori, it immediately opened the door to vitriol from the press and public to the executive – vitriol that is disturbingly familiar today.

“There was great terror among officials and the industry predicting doom when this model was being worked out,” recalls O’Regan.

(Images: Erica Sinclair)

Speculation at the time on the future of the nation’s kereru population and the survival of toheroa beds, “under siege from hordes of Māori”, would not be out of place in many media today. And, as evidenced in the passionate Pākehā reaction to customary fishing exemptions during the Covid pandemic, claims of separatist legislation have never died down. This year they’ve grown even louder.

During negotiations O’Regan was challenged by the minister to calculate how much Ngāi Tahu could fish in a year, fearing Māori customary fishing would pillage the resource. He got on the phone and rang around marae up and down Te Wai Pounamu. He was able to show the way Māori managed their customary use was based in a sustainable understanding of fisheries. 

That understanding comes from the special relationship between Māori and their food resources. Food doesn’t just sustain life, it sustains identity and culture and protects a way of life, says O’Regan. That’s captured in the concept of mahika kai, which refers to natural resources that have a vital role in sustaining Māori ways of life. Mahika kai are forests where birds flourish, the act of gathering of plants, and places where pāua flourish. At that heart of mahika kai is the kaitiakitanga of the resources.

“The mahika kai places and mahika kai resources are a key element in making us who we are,” says O’Regan.

The modern application of customary fishing rights is informed by the spiritual relationship with mahika kai and a contemporary application of traditional tikanga. Iwi manage permits to look after their people. They’re used to gather kaimoana for local rugby clubs, to gift to retirement villages, to provide for weddings and tangihanga, and cater to special guests. Tim Shadbolt has been a major beneficiary of Ngāi Tahu manaakitanga and the iwi’s customary kai, says O’Regan. 

They’re also used to protect their people in times of need. During Covid-19 lockdowns in 2020 and 2021, skipper Roger Rawlinson (Ngati Awa) relocated his boat the Santy Maria from Tauranga to utilise his customary quota and give away three tonnes of catch worth up to $12,000 to whānau – both Māori and non-Māori – in need. 

“There’s a lot of people struggling in the Far North and I’m just doing my bit as a Māori fisherman,” he told the New Zealand Herald. “It means a lot to me knowing tamariki and older people who can’t get out of the house because of lockdown are getting a fresh feed of fish.”

The permits allocated by local rangatira mean that when iwi and hapū need large amounts of food, there are mechanisms by which it can be obtained, according to former fisheries officer Sam Tamarapa (Ngāti Maru), now iwi communications officer at Taranaki District Council.

But tangihanga rarely crop up according to a predictable schedule. Weather conditions, the impacts of the seasons and variations in numbers of attendees put unique pressures on marae, which are not always relieved by a trip to the beach. And so Tamarapa found a solution in tikanga Māori. 

“In the old days when we were harvesting kai from our gardens, when we had large amounts being harvested, our people would store them in the pātaka. And so there were storehouses for kai, and we could use that kai throughout the year. Or if we had tangi or large hui, we could actually pull from pātaka for those events.”

Modern pātaka, of course, differ from their traditional iteration in form – but not function. According to Tamarapa, demonstrating that functionality has been key to increasing buy-in from mana whenua, who can experience significant scepticism towards legislative solutions.

(Image: Erica Sinclair)

While the legal acknowledgement of customary kai acknowledged the special relationship of Māori with food, more must be done to ensure that relationship is protected and preserved. According to Tamarapa, far from ceding control of everything in the ocean to Māori, the legislation has encouraged little actionable evidence of Māori interests in protecting and enhancing the relationships between tangata whenua and their fisheries. He wants to see more recognition of the need to manage the fisheries in accordance with tikanga. In Taranaki, Tamarapa has witnessed a revival of the use of tikanga when iwi are looking at rights for kaitiaki and kaitiakitanga. But he says there is more to be done to cultivate modern understandings of mātauranga Māori. 

“It’s not to say that the mātauranga Māori is lost, but people who are getting involved now are just starting to pick it back up again. It’s not just about harvesting and eating kai. It is also about how we look at sustainability. What things can we put in place? Like, for example, rāhui is not [legally] recognised. 

“I think we can actually do more in terms of revitalising our understanding of what our uncles and aunties did, what our tūpuna did. How do we make that relevant to what we have now? Right now I’ve got three moko, and what I’m focusing on in my role is to build that foundation for them.”

Customary fishing rights were never about subsistence provision for iwi, says O’Regan. They represent a complex and sophisticated ecosystem of the way Māori interacted economically with each other, the way they used a resource in accordance with tikanga, and the way that resource was protected for future generations. The management of the fishery and the rights to control the resource are an essential expression of tino rangatiratanga, according to O’Regan.

“The mahika kai places and mahika kai resources are a key element in making us who we are. We’re participating in a wider society and we’ve adapted the law and rules to suit our principles,” he says.  

“The customary fisheries regulations as they operate today reflect a Māori adaptation of rules which we could manage and manage under our own steam. And furthermore we could not only do that but manage them alongside with our tribal commercial interest and retain the local and marae based flavour, and permit us to offer manaaki from the marae.”

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