Māori Commercial Aquaculture Settlement

Update On Te Rūnanga Decision – Māori Commercial Aquaculture Settlement

At the March meeting, Te Rūnanga resolved to sign a Deed of Settlement to fully redress the entitlements of Ngāi Tahu to pre-commencement space under the Māori Commercial Aquaculture Settlement Act. This pānui provides a brief overview of the Aquaculture Settlement and the reasons why Te Rūnanga has taken this decision.

The Aquaculture Settlement

Aquaculture is the practice of farming in water, mainly cultivating kaimoana (shellfish and fin fish) in marine spaces. Ngāi Tahu has a history of husbandry of this type, and was actively involved in iwi Māori advocacy to have these rights recognised in the form of an allocation of marine farming space, on a similar basis to the Māori Fisheries Settlement.

The Māori Commercial Aquaculture Settlement Act 2004 (the Act) was a response to these advocacy efforts, and provides full and final settlement of all Māori claims to commercial aquaculture arising on or after 21st September 1992 and provides for the allocation and management of settlement assets relating to aquaculture. The Settlement does not address customary aquaculture entitlements or rights to aquaculture space created before 1992.

For space that was created between 1992 and 2004, the Act provides that coastal iwi are entitled to 20% of aquaculture space created after 1992, and sets out the methods by which the space entitlements are transferred, according to two types of space created by the Act:

  • New Space – defined as space created after 1st January 2005, that can be fulfilled through setting aside 20% of space as it is created; and
  • Pre-commencement space – defined as space in existence at the time of the Act, including space that had been approved but not issued at the time of the Act. The 20% entitlement can be satisfied in one or a combination of three ways:
    • New Space – central government can direct regional authorities to transfer up to 20% of new space (in addition to the automatic new space entitlement);
    • Purchase of Marine Farms – central government can purchase marine farms for transfer to iwi; and/or
    • Financial equivalent – allowing for monetary payment in lieu of space being available.

Problems with the Act

The key challenge under the Act (some might say flaw) is that pre-commencement space is unlikely to be fulfilled in any way other than through the financial equivalent. The difficulty with new space is that none is being created in a way that meets the criteria in the Act to be set aside for iwi and there are no marine farms available for sale on the market. Accordingly, it became accepted that the financial equivalent was the only viable mechanism available to iwi and the Crown, however, the Act did not provide for such a buyout option before 2013.

Creating Solutions

In June 2008, the Minister of Fisheries decided to fast track the payout of financial equivalent for pre-commencement space in areas with high value and large amounts of aquaculture space: Marlborough, Tasman and the Coromandel. These areas cover the vast majority of New Zealand’s pre-commencement aquaculture space and are most suited for development.

Although there is not a great deal of aquaculture in the rest of the South Island, Ngāi Tahu were invited to participate in the process because our Takiwā extends into the Marlborough region. Also, this provided a good opportunity to settle the whole of Te Waipounamu.

The 2008 Agreement in Principle

From August to October 2008, the combined iwi of Te Waipounamu and Hauraki negotiated with the Crown to determine a fair value for the payout of these regions. The outcome was an Agreement in Principle, signed by Iwi Leaders and the Crown on 13th October 2008, for a one-off cash payment of $97 million in full and final settlement of the pre-commencement aquaculture space.

The iwi negotiators are confident that this amount is sufficient to constitute a full and final settlement. It is a slight compromise on the amount the iwi negotiators were seeking, but this is offset by three significant ‘value adds’ to the agreement:

  • Interest will be paid on the $97 million from the date the agreement was signed until it is given effect through legislation (potentially a period of 6 months), which could result in a $3+ million increase to the total of the Settlement;
  • The real value in having the asset transferred now, as opposed to in 2014; and
  • There is some pre-commencement space that has been approved, but has not been finally issued – therefore additional quantum will be transferred once the final amount of hectares has been confirmed and issued.

The total Ngāi Tahu entitlement is $5,837,418. This amount was reached strictly on the basis of mana whenua-mana moana, resulting in the Ngai Tahu allocation being determined solely according to the value of the space within the Ngāi Tahu Takiwā.

At 6% of the total settlement, the allocation to Ngāi Tahu reflects the fact that the value of the space within the Takiwā is less productive and is therefore of lower commercial value than space in the Marlborough and Tasman regions.

2009 Deed of Settlement

The Crown and Iwi have now completed drafting the Deed of Settlement, which like the Ngāi Tahu Deed of Settlement, puts the legal and practical details around the content contained in the Agreement in Principle. The Crown and Iwi will look to sign the Deed over the coming months, followed by legislation in 6-12 months which is needed to transfer the asset that Ngāi Tahu, and the other iwi, are entitled to. Ngāi Tahu can therefore expect to receive the $5.8 + million in approximately 6-12 months.

On 23rd March, Te Rūnanga mandated the Kaiwhakahaere to sign the Deed of Settlement on behalf of Ngāi Tahu. The actual signing is likely to occur in May 2009.

In signing the Deed of Settlement, Ngāi Tahu is not accepting that our rights to pre-1992 space or customary rights to aquaculture have been settled.