High Court win for Te Ohu Kaimoana in s 28N rights case

The High Court today issued a strong judgment in favour of Te Ohu Kaimoana in the 28N rights litigation.

Prior to the fisheries settlement, the Crown gave preferential rights to some fishers in exchange for the surrender of quota in overfished stocks, including Snapper. At the heart of this litigation is a provision in the Fisheries Act that automatically redistributes quota in those stocks when the commercial catch limits go up again – quota is taken from other quota holdings – including settlement quota - and given to those fishers with preferential rights.  

Te Ohu Kaimoana took the case seeking rulings from the Court about whether the taking back of settlement quota  was in breach of the 1992 fisheries settlement.  

Te Ohu Kaimoana successfully argued that changes to fisheries law, described by the Court as "random and capricious”, effectively confiscated quota that was transferred to Māori through the fisheries settlement without compensation.  

The Court has not quantified the loss to Māori, but indicated that redress should in the first instance be resolved by the Treaty partners.  Te Ohu Kaimoana has a statutory role to assist the Crown to discharge its obligations under the fisheries settlement. It brought this case in accordance with that role. The win is a win for all Māori.

The Court has ruled that the Crown has been in breach of the Settlement by confiscating settlement quota without compensation, and that it must remedy that breach.  

“This is an important judgement for all iwi and Te Ohu Kaimoana. The judgement affirms the importance of the 1992 Māori fisheries settlement as a watershed moment in the relationship between Māori and the Crown. The judgement finds the Crown has been in breach of that settlement over the past 30 years, is in ongoing breach of the settlement, and accordingly the Treaty, and that the breach must now be addressed. Te Ohu Kaimoana has worked hard to bring this matter to light on behalf of all iwi in Aotearoa and we are pleased with the Court’s judgement today.” - Dion Tuuta, Acting Chair of Te Ohu Kaimoana.

“The Court endorsed Te Ohu Kaimoana’s actions in bringing the claim as part of its mandate under the Māori Fisheries Act 2004 to “assist the Crown to discharge its obligations under the Deed of Settlement and the Treaty of Waitangi”, saying “Sometimes, when all else fails, that assistance may have to be achieved through bringing proceedings.” (at [134] of the judgement).

At this time our legal team is carefully considering the full implications of the decision. However, as stated by the Court, it is well established that breaches of Te Tiriti o Waitangi require active and affirmative steps by way of redress, and we look forward to engaging directly with the Crown to restore the mana of the Settlement.

We would like to take this opportunity to thank our legal counsel, Victoria Casey KC, Andrew Irwin and Aroha Beck.

A copy of the High Court’s decision is available to download in the link below and is also available on our 28N rights proceedings information hub under ‘court documents’.