Decisions Notice No. 5406 (A) Report and Recommendations of the Tribunal Pursuant to section 54g (9) (b) (i) of the Fisheries Act 1983, the Minister of Fisheries hereby publishes the report and recommendations of the tribunal considering the Palliser Bay Taiapure application. In the matter of section 54g of the Fisheries Act 1983, and in the matter of a proposal by Ngati Kahungunu Ki Wairarapa to establish Te Kopi and Te Kumenga Taiapure local fishery in Palliser Bay. REPORT AND RECOMMENDATION TO THE HONOURABLE MINISTER OF FISHERIES (S 54G 8 FISHERIES ACT 1983) This Tribunal is constituted pursuant to section 54g of the Fisheries Act 1983 (the Act) and has conducted a public inquiry into all objections and submissions submitted to the Registrar of the Maori Land Court of New Zealand (Takitumu Registry) (the Registrar) made in respect of a proposal by Ngati Kahungunu Ki Wairarapa to establish a taiapure - local fishery, in respect of two coastal areas in Palliser Bay such proposal having been agreed to in principle by the Minister of Fisheries, after consultation with the Minister of Maori Affairs and after having regard to the provisions of section 54b (3) of the Act. The areas the subject of the proposal are as follows: Te Kopi ``the area contained within a line commencing at the mouth of the Hurupi Stream at 41 26.55S, 175 12.91E and proceeding in a westerly direction to a point of 41 26.65S, 173 12.4-E, then proceeding in a generally southerly direction at a distance of 800 m from mean high water to a point at 41 27.80S, 175 12.50E then proceeding in a easterly direction to the mouth of Twin Creeks at 41 27.85S, 175 13.08E then proceeding along the mean high water mark to the point of commencement'' Te Kumenga ``the area contained within line commencing at the mouth of the Makotukutuku Stream at 41 29.81S, 175 12.42E and proceeding in a westerly direction to a point at 41 29.82S, 173 12.25E, then proceeding in a generally southerly direction at a distance of 300 m from mean high water to a point at 41 31.75S, 175 11.60E then proceeding in an easterly direction to a point at Te Kumenga Point at 41 31.70S, 175 11.78E then proceeding along the mean high water mark to the point of commencement''. These definitive descriptions are subject to the comments below as to their correctness. The proposal was submitted to the Minister and the Ministry of Agriculture and Fisheries effected the statutory steps as required by the Act culminating in receipt by the Registrar of submissions and objections thus necessitating the Chief Judge of the Maori Land Court constituting this Tribunal by appointing Heta Kenneth Hingston, Esquire, a Judge of the Maori Land Court to conduct this inquiry. The Registrar received in total sixteen written submissions of which eleven were objections and five in support of the proposal; two of the objectors prior to this public inquiry had withdrawn their objections. The enquiry commenced at the Frank Cody Lounge, Masterton Borough Council Chapel Street Masterton at 9 a.m., 28th September 1994. The following persons for and on behalf of the proponents participated in the inquiry. Mita Carter Ann Carter The Honourable Ben Couch Heni Te Whaiti As well there were many local Maori who attended but did not take an active part. Of the persons who had made written submissions, three persons attended to object, Messrs M. Hanson, M. J. Appleyard and J. Peacey, the General Manager of the New Zealand Fisheries Industry Board. Messrs Ian Beachman from the Wellington Regional Council; B. Dix from Conservation Department, M. Heatherington for the New Zealand Underwater Club, R. Cade for New Zealand Federation of Commercial Fishermen and the Cape Palliser Commercial Fisheries Association and M. Sykes all attended the inquiry and made submissions generally supportive of the proposals. Messrs D. McCulloch and R. Sims from the Ministry of Agriculture and Fisheries attended and made themselves available to assist the Tribunal. The proponents were led by Mr Mita Carter who along with his daughter Ann Carter made submissions and gave a comprehensive explanation of the proposals and the need for the Taiapure fishery. (See Appendix for their complete submission). Messrs Beachman, Dix, Heatherington, Cade and a Mr Winter of the Masterton Historical Society all made short statements supporting and together acknowledging the extensive consultation that had been undertaken by Mr Carter and Ngati Kahungunu Ki Wairarapa when the proposal was prepared. Mr Heatherington adverted to the possibility that the interpretation of littoral waters could cause concern. Mr Cade in turn affirmed the support of the Palliser Bay Commercial Fisheries who he represented noting the preparedness of the proponents to accommodate some commercial fishing in the taiapure area. M. J. Appleyard confirmed his written objection to the proposal producing a map (Appendix III) demonstrating that the definitive descriptions moved across Cook Strait well into the Richmond Range in the South Island. He also recorded his objection to the proposals because he was against the whole concept of Taiapure Fisheries. Mr Hansen told the inquiry that he was a commercial fisherman based in Wellington and that from time to time he fished within the proposed Taiapure area; he objected because to be excluded would effect his livelihood even going so far as to say that it may force him out of the industry; he expressed surprise that the Palliser Bay Commercial Fisheries supported the proposal. Mr Hansen was also clearly against the whole Taiapure legislation. Mr Peacey complimented the proponents and the extensive consultation they had undertaken, expressed his and his Board's reservations about the possible definitions of littoral waters and the area encompassed by the proposals, he raised the wide support for the fishery including that of commercial fishermen. Mr Sykes also of the Board was also complimentary of the proponents wide consultation but expressed reservations about definitions and also the validity of agreements made by the proponent, with commercial fishermen of Palliser Bay. The submissions of the objectors and supporters who did not withdraw are annexed to this report along with a transcript of the evidence presented to the enquiry. Conclusions The creation of these proposed Taiapure fisheries were generally supported by the recreational and commercial fishing interests. The noted exception was M. Hansen who saw his livelihood as a commercial fisherman being endangered. In respect of this aspect of his objection if he conclusively established pecuniary loss he would be justified particularly as the legislation does not allow or provide compensation for commercial fishermen suffering loss because a taiapure fishery is established. This is a matter that legislation should address rather than this report. Moving to the public in general, again there appears to be support excepting M. J. Appleyard whose objecting to boundary definition as advertised in the statutory notices and gazetting may upon investigation be proven justified; his general objection goes to the very legislation rather than to the proposal, before this inquiry, Mr Hansen expressed similar sentiments in alleging discrimination in the legislation. A more valid objection is the definition of estuarine and littoral coastal waters; these unless clarified by legislation will prove to be fruitful area for future objectors not to mention the legal profession. Of concern to this inquiry is the failure in the legislation in providing proper servicing of the Inquiry; but for the generosity of the registrar Maori Land Court, Takitimu, in providing clerical and administrative support the inquiry may never have got off the ground, as it is not the province of the Judge to provide this back up. I compare this to the Waitangi Tribunal where Maori Land Court Judges are often presiding in claims hearings; it is clear that the Tribunal is charged with provision of all necessary support services. The evidence is such that if the Minister intends recommending a Taiapure fishery as sought nothing before this inquiry should inhibit that course of action; as well there is no justification for any recommendations amending the proposal. Primary Recommendation That the Minister take no action as a result of the objections and submissions made to this Tribunal. Ancilliary Recommendations (1) That the legal boundaries already published be checked for accuracy taking into account the submission of Mr M. J. Appleyard. (2) That the Taiapure Fisheries legislation be re-visited with particular emphasis on the following: (a) a definition of estuarine and littoral coastal water (b) clarification of the role of the Registrar and staff of the Maori Land Court. There must be provision in the legislation for the servicing of the Inquiry (c) the compensation by the Crown of persons who can prove pecuniary loss because of the creation of a Taiapure fishery. Dated at Rotorua the 21st day of October 1994. H. K. HINGSTON (Judge). (B) Decisions of the Minister of Fisheries Pursuant to section 54g (9) (b) (ii) of the Fisheries Act 1983, the Minister of Fisheries hereby publishes his decisions made in regard to the report and recommendations of the tribunal considering the Palliser Bay Taiapure application. i. In regard to the primary recommendation contained in the Tribunal Report. Having regard to the matters specified in section 54 (b) (3) of the Fisheries Act 1983, I am satisfied that recommending the Governor-General declare a taiapure for the two areas described as Te Kopi and Ke Kumenga is appropriate. ii. I have decided to refer the ancillary recommendations (a) and (b) of the Tribunal, regarding the definition of estuarine and littoral coastal water, and clarification of the role of the registrar and staff of the Maori Land Court to the Customary Regulations Working Party for consideration in the process of reviewing the taiapure provisions. iii. In regard to ancillary recommendation (c), I have declined to accept this recommendation on the basis that I do not consider the creation of a taiapure would itself impinge on commercial fishing rights to the point where compensation could be sought. Dated at Wellington this 13th day of April 1995. Hon. D. L. KIDD, Minister of Fisheries.