Is there a solution?
The Kermadecs
Introduction:
1. I became Attorney General of New Zealand and Minister for Treaty of Waitangi
Negotiations in early November 2008. I was lucky to hold these portfolios throughout the
nine years of the Key/English Administrations and surrendered my warrants on 23
October 2017 following the change of Government 1.
2. During that nine-year period:
a. I negotiated over sixty deeds of settlement with iwi, including the Tuhoe and
Whanganui River Settlements which have attracted a lot of interest internationally
because of the recognition of legal personality in natural resources.
b. I worked with the Maori Party and others to repeal the awful Foreshore and Seabed
Act 2004 to restore to Maori the right to access to our courts to restore customary
rights which the previous government had extinguished.
c. I negotiated a deed of reconciliation with Parihaka. This deed acknowledged the
horrendous actions of the Army in 1881 when Parihaka was invaded and basic
standards of British justice ignored.
d. I established the Post Settlement Commitments Unit to safeguard the integrity of
settlements. This has now morphed into Te Arawhiti which is an agency of the
Ministry of Justice responsible for Foreshore / Seabed Policy, The Office of Treaty
Settlements and durability of Settlements.
e. Sadly, I failed to reform Te Ture Whenua Act 1993. Reform was defeated by selfish
vested interests.
3. Given my ministerial experience, I have come to know a great deal about our country’s
history – both good and bad. I have also appreciated that things have gone badly wrong in
the Crown/Maori relationship when:
a. first, the Crown in the person of the colonial State has, historically, often failed to
observe natural justice and the rule of law in its dealings with Maori; and
b. secondly, the Crown has failed to recognise and respect the property rights of Maori.

1 On 30 January, 2019 I left Parliament to resume practice as a barrister. (see
https://www.bankside.co.nz/barrister/hon-christopher-finlayson-qc/)

 Most of the wrongs I apologised for over the years can be traced to a failure to respect
these fundamental concepts.
4. What does it mean to act in accordance with the rule of law? This is not a law lecture so I
will be brief. The rule of law is a fundamental principle of our constitution which means
politicians govern within their powers, the law applies equally to all and the law is
certain. The late Lord Bingham in England identified a number of principles to define the
rule of law including:
 the law must be accessible, clear and predictable;
 the law should apply to all, except where objective differences justify differentiation;
 the law must afford adequate protection of human rights;
 The law should provide access to justice, especially where people cannot resolve
disputes themselves 2.
I readily acknowledge that the State is more than capable of producing bad law, which is
discriminatory, inequitable and unjust and that it can do this both legislatively and
judicially. I believe we need a constitutional mechanism to enable our society to remedy
the effects of bad legislation but discussion of that is for another day.
5. The decision maker must:
(a) Hear the other side;
(b) Not be biased; and
(c) Consult which means genuine not pro forma consultation. Consultation does not
mean informing someone of a result 3.
6. Finally, protection of property rights and their importance to the economy. Again, much
has been written on this subject and I don’t think I need to dwell on the topic too long 4. It
is well known that insecure property rights hinder economic opportunities for the poor.
Property rights cannot be disregarded without consequences. I like the way the late
Justice Hammond expressed it many years ago:
“Property rights are very strong rights. They rank in the hierarchy of rights recognised by
law, just behind absolute constitutional rights. In more colloquial terms, on a scale of one
to ten, constitutional rights are a ten and property rights are a nine”5.
2 See the Rule of Law by Tom Bingham, Penguin Books, 2011, ISBN 978-0-141034-53-9.
3 See WIAL v Air NZ [1993] 1 NZLR 671
4 See, for example, “Property Rights: the key to economic development” The Cato Institute’s Policy Analysis
No 482.
5 A H Properties Ltd v Tabley Estates Ltd (unreported, 1993, High Court, Hamilton Registry, para 36).

 7. In the Treaty of Waitangi, the Crown agreed to protect Maori fisheries. Virtually all
fisheries legislation since the 1860s recognised that duty of protection of Maori interests –
although we must remember, it had always failed to define the nature and extent of the
right. So, the Maori fisheries issue has been around for a long time. A transforming event
in this area was the Fisheries Amendment Act 1986, which substantially amended the
Fisheries Act 1983 to bring into operation the Quota Management (“QMS”) system. The
1986 Act was a reaction against the former regime of open slather and government
subsidy, which had led to a massive expansion of the fishing industry from 1963. At the
same time the inshore fishery dramatically declined as a result of overfishing.
8. The 1986 amendment moved away from the older regulated system which contained no
conservation incentives toward the creation of valuable and transferrable property rights
in the resource.
9. The QMS was introduced on 1 October 1986. In response, Maori obtained an injunction
against the Government to prevent further fishstocks being introduced into the QMS until
the issue of ownership had been resolved.
10. As a result of the action taken by Maori, the courts confirmed that Maori customary
fishing rights were controlled by “hapu and tribes” and that those customary rights
contain both commercial and non-commercial elements. One judge said that:
“there is a strong case that before 1840 Maori had a highly developed and controlled
fishery over the whole coast of New Zealand, at least where they were living. That was
divided into zones under the control and authority of hapu and tribes of the district. Each
of these hapu and tribes had the dominion, perhaps the rangatiratanga, over those
fisheries. Those fisheries had a commercial element and were not purely recreational or
ceremonial or merely for the sustenance of local dwellers.”
11. After that case, negotiations began.
The outcome of those drawn out negotiations was a settlement in which Maori agreed:




that all Maori commercial fishing rights and interests were settled or provided for;
to accept regulations for customary non-commercial fishing;
to stop litigation (including any Tribunal claims) relating to Maori commercial



fisheries;
to support legislation to give effect to the settlement; and

 

to endorse the QMS.

12. It was clearly understood by Maori that they were not only receiving existing rights but
that there was also a right to development. Beyond the general principle of a Treaty right
to development, for example, there could be an undeveloped fisheries management area
or species that, with the passage of time and improved fishing techniques could be
worked up into a commercially valuable settlement. This right to development is very
relevant when I come to talk about the proposed establishment of a marine reserve in the
Kermadecs.
13. Some years ago, the Government of which I was a member, announced the establishment
of the Kermadecs Sanctuary to be created in the Kermadec region of the South Pacific
Ocean about 1000 kilometres northeast of New Zealand. At 620,000 square kilometres, it
would be one of the world’s largest and most significant fully protected areas. It would be
35 times larger than the combined area of New Zealand’s existing 44 marine reserves.
Once in place, the Sanctuary would mean that 15 percent of New Zealand’s ocean
environment would be totally reserved from even the most carefully managed sustainable
fishing activity6.
14. The Sanctuary is proposed to cover an area of New Zealand’s Exclusive Economic Zone
(EEZ) from 12 to 200 nautical miles from the five Kermadec Islands of Raoul, Macauley,
Cheeseman, Curtis and L’Esperance which lie halfway between New Zealand and Tonga.
It will be the first time an area of our EEZ has been fully protected.
15. The Sanctuary follows the establishment in 1990 of the Kermadec Marine Reserve which
consists of 7500 square kilometres. The Marine Reserve extends 12 nautical miles from
the cliffs and boulder beaches of the various Kermadec Islands and rocks, out to the edge
of the territorial sea. Maori were consulted on the establishment of this Marine Reserve
and agreed to support its creation. The new Sanctuary proposal is a vastly different
proposition both conceptually and geographically.
16. The Kermadec area is said to be one of the most pristine and unique places on Earth. It
includes the World's longest chain of underwater volcanoes and the World's second
6 Similar sanctuaries have been established in the Pacific. Last year the US Government announced The Pacific
Remote Islands Marine National Monument; The UK has established an 835,000 square kilometre sanctuary
around the Pitcairn Island Group; and a 720,000 square kilometre marine park has been established around Rapa
Nui (Easter Island). The latter proposal will allow fishing by the local population.

 deepest ocean trench at over 10 kilometres - deeper than Mount Everest is tall. Its waters
are home to:
 over six million seabirds of 39 different species
 over 150 species of fish
 35 species of whales and dolphins
 three species of sea turtles - all endangered
 many other marine species unique to this area such as corals, shellfish and crabs.
17. The Kermadecs area is one of 10 New Zealand fisheries management areas and is known
as FMA10. A total of about 20 tonnes of fish are caught there every year with a value of
about $165,000. The species caught are highly migratory and include swordfish (11
tonnes), bigeye and albacore tuna (three tonnes) and blue shark (2.8 tonnes).
18. The quota for these highly migratory species is for New Zealand’s entire EEZ and is not
specific to FMA10. As the catch can be caught in other parts of New Zealand’s EEZ,
fishing interests will not, be significantly impacted by the establishment and extension, of
the Sanctuary.

The Maori Response:
19. Maori were very unhappy with the proposal. Almost immediately after the announcement,
it was alleged that there had been inadequate consultation and that the proposed
Sanctuary undermined the fisheries settlements. Let us look at these allegations.
20. I think Maori are right about the absence of adequate consultation. A quick phone call to
Ngati Kuri, the far North iwi, was not enough. It occurred shortly before the
announcement. The basic requirements of consultation, with all those affected, were not
satisfied. That shouldn’t be surprising. In my years in office I often found that
consultation with Maori was flawed – invariably rushed and superficial, often telling
people what is going to happen rather than actually consult them. The matter goes beyond
the ‘quick chat on the phone syndrome’, though. The allocation mechanisms devised and
imposed by the Clark Labour government made deep water fisheries the property right of
all Maori on a basis of population. This produced some very questionable and perverse
outcomes which I am not going to explore here. For the moment I want to emphasise that

 in respect to the Kermadec Sanctuary proposal there was no consultation with ‘all Maori’
or even a proxy for that expression.
21. There was also inadequate consultation within government. Observing the very detailed
Cabinet process limits the opportunity for things to go wrong. Interdepartmental
discussion and discussion at officials’ level followed by consideration by Cabinet
committee then Cabinet will enable the issues to be highlighted and any red flags to be
raised.
22. The allegation that the Settlement has been undermined is a very serious charge which
worries me. Let us consider it. Earlier I mentioned the right to development. The
settlements reached in 1989 and 1992 were not just about existing opportunities but future
opportunities as well. FMA10 may not have much fishing in it now but, in years to come
with climate change and different fishing methods, the situation may be completely
different. There could be valuable commercial opportunities. One of the things that really
disturbed me after the storm broke was the complete lack of understanding by Crown
officials of the fisheries settlements reached in 1989 and 1992. When I asked officials of
the Ministry for the Environment to explain their understanding of the 1992 settlement,
they didn’t really know what I was talking about. Little wonder then that Te Ohu
Kaimoana mounted a public relations campaign which asked what the difference was
between Maori property rights and Pakeha property rights. The answer: Maori property
rights can by interfered with at will by the Crown and are not as valuable as Pakeha
property rights.
23. Maori accepted the QMS, which included defined QMAs, as the basis of a Treaty
Settlement. It was a core condition on the Crown side agreed to by Maori. If the Crown
now wants to change the QMS, it cannot do it unilaterally without being in breach of the
Settlement. Such change requires Maori agreement. It should be noted that the Inshore
Kermadec (12 mile) Zone currently has the highest possible international level of marine
protection. As I have already noted, this was imposed with the agreement of Maori.
24. In the Kermadec Zone there is no evidence of fish-stock depletion of abundance in any
species. The only fishery of any current scale is in fact migratory Tuna which can, by
definition be harvested either to the North or the South of proposed Sanctuary. The case
for the Sanctuary cannot on any evidence be made on any presently observable danger to
bio-diversity or ecology.

 25. The point made by Maori is that if the Crown can unilaterally alter the system it entered
into as a condition of the Fisheries Settlements of 1989 and 1992, it has the capacity to
alter any Treaty Settlements on its own political whim. That is a very troubling statement.

26. The legislation giving effect to the Sanctuary is now in limbo because the issues have not
been resolved. It was deferred in 2016 because a coalition partner threatened to leave if
the Government proceeded with the proposal. I don’t think it will be resolved by further
consultation. Applying a principled approach to the matter, the proposal in its current
form cannot proceed as it undermines the rights of Maori recognised as recently as 1992.
In any event, a strong argument can be made that with the QMS, there is in fact no need
for such a large marine reserve. Conservation of fisheries species is an essential
ingredient of the QMS. It is the intelligent and proper recourse to that system on which
we should rely for the conservation and management of our fisheries resources.
27. As JFK once said, we should strive to find what unites us rather than belabour the
problems which divide us. When one considers the state of our oceans, we can very
quickly agree on the damage caused by, for example, plastics in the environment. The
Royal Society Te Aparangi has just released a comprehensive report on the use and
disposal of plastics and their effect on human health and the environment 7. I suggest that
it be compulsory reading for all with an interest in the health of our seas. The report is
frightening. Much has also been written about the Northern Pacific which is known as the
Great Pacific Garbage Patch.
28. Most people are aware of the shocking state of Henderson Island, one of the most remote
places on earth. It is part of the Pitcairn Group. I developed a great interest in these
islands many years ago when I acted for the Governor of Pitcairn in a case about whether
he could be sued in the courts of New Zealand 8. Henderson Island should be a jewel of
nature and instead it is covered in plastic. It is the best example if the need for urgent
action to protect our oceans and marine environment before it is too late 9.

7 The report may be found at royalsociety.org.nz/plastics
8 Sutton v Governor of Pitcairn [1995] 1 NZLR 426
9 See, for example: “Henderson Island has the World’s highest density of plastic pollution “
https://www.nationalgeographic.com/news/2017/05/henderson-island-pitcairn-trash-plastic-pollution/

 29. Most people are also aware of the need to protect valuable fisheries and at risk species
like whales. New Zealand has been very active on the International Whaling Commission
over the years and in 2013 intervened in the case brought by Australia in The
International Court of Justice in the Hague to challenge Japanese whaling in the Southern
Oceans. I was Counsel for New Zealand, a real highlight of my legal career. New Zealand
and Australia had an emphatic win in the ICJ although, sadly, it hasn’t stopped Japans
whaling operations 10.
30. So, conservation of precious resources and protection of our oceans are imperatives we
can all agree on without too much debate.

The way forward:
31. I think these could be the ingredients of a resolution of this unfortunate problem:
a. Any solution has to be based on ecology, not ideology. In today’s world, there is an
increasing danger of facts being less important than ideology. It is a very dangerous
phenomenon and needs to be challenged whatever the issue.
b.

I spent some time earlier in this speech reviewing the history of the QMS. Indeed, in
preparation for this address, I obtained and reviewed a history of the development of the
QMS. The system works – it is founded on evidence-based sustainability. It is under
threat at the moment because of the extreme views of some groups. It needs to be
reaffirmed. As I said earlier, a good place to start would be within Government. Too few
officials today have a good understanding of the system’s theory or its mechanisms.

c.

The Kermadec Reserve, and the other reserves I have referred to, will not address the
scourge of plastic in the oceans. That is the most pressing issue the nations of the Pacific
must confront. That can only happen if an international clean up fund is established with
contributions from all nations bordering the Pacific Ocean. Some excellent work is

10 Whaling in the Antarctic. (Australia v Japan: New Zealand intervening), decision dated 31 March 2014 https://www.icj-cij.org/en/case/148

 being done on reducing the need for plastic products – that work needs to speed up. The
Royal Society’s Report addresses some of the international and regional initiatives that
are happening 11. In the near future the World needs to develop a comprehensive
convention to address the issue just as it did years ago with the convention on Transboundary air pollution.
d. The best way of addressing stock depletion in this part of the world is to do something
about the flotilla of Tuna fishing boats which stay around the northern end of the
Kermadec zone awaiting species as they head south. The tuna fleet is mainly based out
of America Samoa. The USA needs to address this issue.
e. If the Sanctuary proposal goes ahead some fishing must be permitted. That is not an
absurd proposition. It has been agreed to in Rapa Nui (Easter Island).
f. The integrity of the 1992 Settlement must be safeguarded at all costs. We have done
great work as a nation over the last thirty years to address the historic grievances of
Maori. It was clearly understood that these settlements must be full and final, not subject
to change every generation or so. That means they must be honoured by all parties. It is
the risk of settlements being undermined that greatly troubles me. I don’t want this
important intergenerational work to founder.

Conclusion:
32. This vexed issue is soluble. We need to focus on what we really want (clean oceans and
abundant fish stock) and develop mechanisms which will achieve these outcomes. Those
mechanisms must be based on objective science not subjective ideology. We live in
scientific world, not the Dark Ages. In preparation for this speech I undertook the
inevitable Google search of the phrase “superstition and science” and, for example, reread
a study edited by Oliver Hartwich and James Pawton entitled Science versus Superstition:
the case for a new scientific enlightenment 12. I commend this work to you, and
particularly the first chapter, where two German authors say that a confident debate about
science is needed to open a more optimistic vision of the future.

11 See (7) (above) at p36.
12 Policy Exchange and University of Buckingham Press, 2006; ISBN 0-9551909-8-3.

 33. That is what is needed in this debate. A robust scientific based discussion about what is
needed to restore our oceans to health. Let’s start a fresh with the Kermadecs discussion
without anger or recrimination. Let’s maintain the basic principles of the Treaty
relationship and the Treaty based agreements we have made. And, this time, let’s get it
right.