Reserves and other Lands Disposal Act (ROLD) 1956
The lakebed, dewatered zone, islands and the Hokio Stream are owned by beneficial members of the Muaupoko tribe 1511 of them in 81 shares, as determined by the Reserves and other Lands Disposal Act (ROLD) 1956. The lake waters Muaupoko Domain, dewatered zone and one chain reserve strip in front of the Muaupoko Domain are vested under the Reserves Act 1977 in the Horowhenua Lake Domain Board. To date they have achieved nothing and at their latest Feb 2013 meeting one of the Board members J. Proctor asked for a scientific report on the lake water/sediment??? yet this should have been done and known years ago??
A Submission on the Foreshore and Seabed Act 2004
To the Ministerial Foreshore and Seabed Review
Name of Submitter: Vivienne Taueki
on behalf of Muaupoko
Address and contact details:
We reject the whole of the Foreshore and Seabed Act 2004 and recommend that the whole Act be repealed.
The Act is a breach of the Treaty of Waitangi, it impairs and obstructs our rights to exercise both Kaitiakitanga and Tino Rangatiratanga and is not consistent with the definitions of the Section 18 of the Reserves and Other Lands Disposal Act
1954. We have attached a letter that was sent to Tariana Turia on this matter
and wish to include the attachment as being part of our submission.
We wish to be heard in respect of our submission, and as stated above we
recommend that the whole of the Foreshore and Seabed Act 2004, be repealed.
On behalf of Muaupoko
Dated: 19 May 2009
6 September 2007
The Honourable Tariana Turia MP
Per email: to Helen.firstname.lastname@example.org
Tena koe Tariana
Kei to mihi aroha kia koe, ki to whanau whanui hoki, tena koutou katoa. Re: Maori Customary Fishery Rights Ministry of Fisheries
My name is Vivienne Taueki and I am a Kaitiaki of the taonga and wahi tapu of Muaupoko. I am writing to ask for an appointment with you to discuss the serious concerns Muaupoko have in relation to various Acts of Parliament, including the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, Public Act 1992 No 121, the Fisheries Act 1983 and the Land Transfer Act, in terms of the negative impact these laws have had, and are still having on the free and unrestricted customary Maori fishery rights of Muaupoko, rights that are currently recognised and provided for within section 18 of the Reserves and Other Lands Disposal Act 1956 (56 ROLD Act), which has not yet been repealed. The Lake Horowhenua Trust is the recognised body appointed by the Muaupoko tribe, to deal with matters related to the fishery easement, and the Ministry of Fisheries has formally acknowledged this fact. However, despite this and despite numerous verbal and written attempts by the trustees of the Lake Horowhenua Trust requesting meetings and inclusion and participation in all processes relating to Maori fishery, this has not occurred. The Crown/Government first acknowledged and made provision for Maori
customary fishery rights in statute in 1898 in the Horowhenua Block Act, then in 1905 in the Lake Horowhenua Act, and most recently in section 18 of the 56 ROLD Act.
In the past there have been various challenges made to these rights, an example of this is where our people, when out gathering customary kaimoana, have had their rights challenged by the Crown/Ministry of Fisheries, illegally asserting jurisdiction over our fisheries under the Fisheries Act. Our people have informed the various Fisheries Officers of their rights under the 56 ROLD Act, however they were told by these officers that they were committing an offence under the Fisheries Act and as a result have had their kaimoana confiscated from them, then issued with infringement notices, fined, had gear confiscated and threatened with confiscation of their assets for committing these offences. In previous case law of the Magistrates Court, the Supreme Court and the High Court, challenges made to our Maori customary fishery rights by the Crown have been dismissed.
In 1975, in the matter of Crown/Regional Fisheries v Mr Joe Tukapua, Unreported, Supreme Court, Palmerston North M33/75, 13 June 1975, in the
decision of His Honour Justice Cooke, he said that the issue before him, was whether the customary Maori fishery rights of Muaupoko protected by the Lake Horowhenua Act 1905 and the Reserves and Other Lands Disposal Act 1956, were subject to the Fisheries Act and Regulations, Cooke J held that they were not. This was reaffirmed in 1978, in the decision of His Honour Justice O'Regan, in the matter of Crown/Regional Fisheries Officer v Mr Ike Williams, Unreported, Supreme Court, Palmerston North M 116/78, and then again in 1987 in the High Court, Whanganui, in the matter of Crown/Regional Fisheries Officer v Mr P Heremaia.
I have a clipping of the article that appeared in our local newspaper, The Chronicle in 1978, reporting on the decision of Justice O'Regan in relation to
Crown/Regional Fisheries Officer v Mr Ike Williams. I do not have a scanner or fax, however because I feel that the decision of Justice O'Regan gives further clarity to the Court's interpretation of the status of customary Maori fishery rights, and I also believe that it would give some clarity to you as to the concerns we have, I have decided to type the article out word for word as follows:
MAORI RIGHTS ON FISHING UPHELD
In what is described as a unique situation in New Zealand, ancient Maori fishing rights in the Hokio Stream, near Levin, also
override the Crown's authority over public land on the beach foreshore, according to a judgement made by Mr Justice O'Regan in the Supreme
Court, Palmerston North.
His Honour dismissed an appeal by the Crown (Regional Fisheries Officer) that the fishing rights of members of the Muaupoko
tribe in the stream do not apply where the stream in its progress to the sea crosses the foreshore, which is Crown land. The Maori fishing rights were established by statute in 1898 and allow tribe members to fish at all times in the stream from its outlet from Lake Horowhenua to the sea. The rights cannot be over ruled by any laws or restrictive fishing regulations. The Supreme Court appeal was against a decision in the Levin
Magistrate's Court where a charge of fishing for whitebait, in the closed against Mr Ike Williams, a tribe member, was dismissed by Mr J C K
Fabian SM. The part of the stream where Mr Williams was fishing was below mean high-water mark and above mean low-water mark and the Crown Solicitor, Mr D A Ongley, alleged that Mr Williams' fishing rights did not extend onto that area of Crown land foreshore. After traversing case law that had a bearing of the case, Mr Justice O'Regan did not accept that submission. He said that fishing rights of the Muaupoko tribe are unique rights
and very old rights. "Research by counsel and by me have not unearthed their genesis. I do not find that surprising. They might well have existed prior
to the coming of the pakeha. They were asserted in general terms throughout the years of land settlement and in the end they were given
The statute stated the fishing rights extended from the lake outlet to the sea and had always been owned by the members of the tribe.
His Honour said that this seemed to him to indicate that ownership of the rights preceded the coming of the pakeha and his introduction of
laws, regulations and recording of property rights. He concluded: "I think therefore that the right of the Crown to the foreshore at the outlet of the Hokio stream to the sea is subject to the fishing rights of the Maori owners in that part of the stream and where it forks to those parts of the stream which cross the foreshore to the sea" In dismissing the appeal, His Honour ordered the Crown to pay Mr Williams costs which he fixed at $250.00.
Counsel for Mr Williams, was Mr P J Comber of Levin.
During the time of Parliament debating over the definition of what customary Maori fishery rights were and how best to provide for them, Muaupoko were
regularly bringing the matters raised above, to the attention of the various government representatives appointed to consult Maori tribal authorities
throughout the country, so as to ensure they are taken into account by the law makers. Muaupoko naturally assumed that if there were to be a new law created to cater for customary Maori fishery rights, then the new law would have to ensure that the definitions and provisions within existing statute relating to these rights, such as those definitions and provisions that exist within section 18 of the 56 ROLD Act, must be recognised within the new law and that the new provisions within that law shall not lessen or erode such rights. It was also assumed that various case law relating to these rights, such as the precedents set in relation to the previous decisions of the Magistrate's, Supreme, and High Courts on customary Maori fishery rights, would need to be provided for within the new law. Unfortunately, despite our best efforts, these matters have been completely ignored and sadly, it is all Maori, not just Muaupoko who are seriously affected by the conflicting processes and conflicting laws created by all of the various
governments who have held power in New Zealand. Muaupoko are seriously concerned about the serious cumulative, past, current
and ongoing negative cultural effects affecting the psychological, spiritual and physical health and well being of the tangata whenua who (by virtue of
whakapapa) are recognised as the customary kaitiaki with inherent rights and responsibilities relating to maintaining, protecting, enhancing the cultural values and practices associated to their taonga and wahi tapu. Viewed strategically, it is perceived by Muaupoko, as responsible Kaitiaki, that
Governments failure to make proper statutory provisions for customary Maori rights (a step that I believe is necessary to avoid, remedy or mitigate such
effects, and also a step that is integral in ensuring the prevention of any further attempts to threaten or obstruct these rights) to be a methodical system of theft of resources and the rights to control access to them. In November 2005, I was visited by Mr Richard Paul who asked for my
assistance in relation to an Infringement Notice that had been issued to him by a Regional Fisheries Officer, while he was out gathering toheroa at Hokio Beach. The notice alleged that Mr Paul's taking of toheroa without a permit was an offence under section 260A of the Fisheries Act 1996, and the Infringement Fee Payable for the offence was $500.00.
Mr Paul had explained to the Fisheries Officer at the time that his authority to collect toheroa was provided for under the 56 ROLD Act. However instead of the Fisheries Officer accepting Mr Paul's explanation, the officer then threatened him with arrest for obstruction and proceeded to call the Police.
It was very obvious to me at the time, that Mr Paul was very shocked and extremely concerned about this matter and explained to me the great offence he
was feeling as a result of what he considered this to be yet another attack on the mana of Muaupoko. Mr Paul then wrote to the Ministry of Fisheries denying any liability for the offence and advised the Ministry that he wished to exercise his right to request a hearing to defend the charges, and a hearing date was set for the matter to be heard in the District Court, Levin.
Throughout the proceedings, Mr Paul maintained that his customary right to gather kaimoana was provided for in section 18 of the 56 ROLD Act. In response to this, counsel for the Crown/Regional Fisheries Officer quoted section 10(d) of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, Public Act 1992 No 121, and claiming that all customary fishery rights whether arising by common law, the Treaty of Waitangi, statute or otherwise henceforth had no legal effect, and that accordingly were not enforceable in civil proceedings; and could no longer provide a defence to any criminal, regulatory, or other proceeding, except to the extent that such rights or interest are provided for in regulations made under section 89 of the Fisheries Act 1983. Mr Paul's response was that case law, including international case law, relating to customary rights, recognise that these rights cannot be altered or extinguished by a Government, simply by the creation of an Act of Parliament stating that this has happened. Mr Paul also insisted that it was his belief that customary rights can only be knowingly ceded by the 'owners' of those rights, and cannot be forcibly taken, therefore as he had never intentionally or unintentionally ceded his rights, he did not accept the Crown's submission as being valid. Mr Paul also brought attention to the fact that there was no record or evidence of any action taken by the Government to repeal section 18 of the 56 ROLD Act. For this to occur, it would have been necessary for the provisions already recognised and defined within that Act that relate to customary Maori fisheries rights to be appropriately provided for in the Fisheries Act.
Mr Paul asserted that it would also be necessary for provisions to be made in recognition of the previous decisions of the Magistrate, Supreme, District and High Courts, confirming that customary Maori fishery rights are defined as being free and unrestricted'; and are old rights that existed before the coming of the pakeha that 'cannot be over ruled by any laws or restrictive fishing regulations, including the Fisheries Act'; and 'the right of the Crown to the foreshore, is subject to the fishing rights of the Maori owners'. To date there is no record of this occurring. In response to Mr Paul's continued insistence that his customary Maori fishery rights were still recognised and provided for in section 18 of the 1956 ROLD Act,
Mr Michael Bott, counsel for Mr Paul had discussions with counsel for the Crown/Regional Fisheries Officer. These discussions resulted in an agreement
that it would be useful to request an opinion from the Crown Law Office. The Crown Law Office responded by issuing an opinion stating, that based on the
information provided to them on this matter, that it was their opinion that Mr Paul did have a case.
It was only a matter of days after receipt of the opinion of the Crown Law Office, that Mr Bott received a letter from the Ministry of Fisheries advising him of the Ministry's decision to withdraw all charges against Mr Paul. Since this time, we have written to the Ministry of Fisheries and attended
meetings expressing clearly to them, the urgent need to consult and determine the appropriate provisions that are required within the Fisheries Act, that are also consistent with the intentions and provisions that already exist within section 18 of the 56 ROLD Act.
Sadly our requests to the Ministry of Fisheries, Te Puni Kokiri and Te Ohu Kai Moana asking for recognition of the matters provided for within section 18 of the 1956 ROLD Act, are being totally ignored.
I therefore, most humbly and respectfully, ask for your assistance in resolving these matters, and to remove the conflict that has been created by the existence now of two Acts of Parliament, claiming to have jurisdiction over customary Maori fishery rights, including those of Muaupoko.
I have attached for your reference a copy of a letter written by Mr Ron Taueki, and tabled and discussed at the most recent hui of the Muaupoko Kaunihera Kaumatua me nga Kuia, held at Kawiu Marae on Friday, 31 August 2007.
The Kaunihera agreed and confirmed their recognition of section 18 of the 56 ROLD Act as being the only statute having any jurisdiction in relation to the
customary Maori fishery fights of Muaupoko, and also moved, seconded, and unanimously supported the resolution that was proposed in Mr Taueki's letter. There are so many issues of concern that I would like to talk to you about, but at this point in time, I would so appreciate the opportunity to just meet with you to discuss the matters raised above.
In closing, if you have any queries relating to the above, or require further information then please do not hesitate to contact me by return email or
alternatively I can be contacted by phone by calling my home on 06-368-0718 or by calling my mobile on 021-234-6076.
I thank you for your consideration of the above, and look forward to hearing from you in due course.
LAKE HOROWHENUA SHOWING ORIGINAL OWNERSHIP LIST
Click here to download the Rold Act 1956 and 1977 & [OPEN pdf: ]
there were 2 Acts that were initiated. ??