Te Ohu Kai Moana Trustee Ltd v The Attorney-General

• Jurisdiction: New Zealand
• Court: High Court
• Judge: Boldt J
• Judgment Date: 27 March 2025
• Neutral Citation: [2025] NZHC 657
• Docket Number: CIV-2023-485-614

Between

Te Ohu Kai Moana Trustee Ltd together with Te Ohu Kai Moana Trust

Plaintiff

and

The Attorney-General

Defendant

[2025] NZHC 657

Boldt J

CIV-2023-485-614

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

Fisheries, Indigenous, Statutory Interpretation — claim Crown was in ongoing breach of the Treaty of Waitangi (Fisheries Claims) Act 1992 — fishing quota, transferred to Māori as part of settlement, confiscated without compensation — Treaty of Waitangi — Fisheries Act 1983 — Fisheries Act 1996 – Māori Fisheries Act 1989

Appearances:

V E Casey KC and A K Irwin for Plaintiff

M G Colson KC, J B Watson and R M Fistonich for Defendant

JUDGMENT OF Boldt J

TABLE OF CONTENTS

Introduction	[1]
The settlement	[4]
The problem	[11]
History: introduction	[19]
First timeline: the evolution of the quota management system	[22]
An introduction to the QMS and the creation of 28N rights	[22]
Allocating the first ITQ	[24]
28N rights	[29]
The first incarnation of the QMS	[32]
The orange roughy crisis	[36]
Consultation	[41]
28N rights under the new model	[44]
Final change to the QMS: a proportional shares regime	[49]
Second timeline: the settlement of Māori fisheries claims	[54]
The initial Māori response to the QMS	[56]
An interim solution: the Maori Fisheries Act 1989	[62]
Final resolution	[71]
Sealord	[75]
28N rights and their effect on Māori	[83]
The problem becomes apparent	[89]
This proceeding	[97]
Relief sought	[103]
The Crown's response	[105]
The legal framework	[115]
The Settlement Act and related legislation	[115]
Legal relations	[130]
Declaratory judgments	[135]
The Crown's affirmative defences	[137]
Jurisdiction to make declarations sought	[138]
Section 308 of the Fisheries Act 1996	[141]
Section 9 of the Settlement Act	[147]
Limitation Act 1950	[148]
Concluding remarks	[151]
The pleadings	[153]
Has the Crown breached its obligations under the settlement?	[158]
The 1992 negotiations	[159]
The Deed and 28N rights	[178]
Conclusions	[188]
Declarations	[196]
Final observations	[199]
Costs	[202]
Appendix	[205]
The operation of s 23: hypothetical examples	[205]

Introduction

1 The Treaty of Waitangi fisheries settlement, concluded in 1992, represented a watershed in the relationship between Māori and the Crown. It was the first “modern” settlement of Crown breaches of Te Tiriti o Waitangi | the Treaty of Waitangi (the Treaty) and provided the model for many of the settlements that have followed. This case is about the legal obligations the fisheries settlement conferred upon the Crown in 1992, and what obligations, if any, endure in 2025.

2 In this proceeding, Māori do not seek to revisit the settlement or undermine the finality of the resolution it signalled. This case arises because the applicant, Te Ohu Kai Moana Trustee Ltd (Te Ohu), alleges the Crown is in ongoing breach of the settlement. The Crown denies any breach; it says it discharged its obligations under the settlement long ago. It argues, in any event, that Te Ohu is barred from bringing the present proceeding.

3 The case centres on a once-benign provision — s 28N of the Fisheries Act 1983, first enacted in 1986 — which was designed to enable the Crown to repay a debt it incurred when the quota management system (QMS) was established that year. Changes to the QMS since then have transformed that provision into a mechanism by which fishing quota, transferred to Māori as part of the 1992 settlement, are confiscated, without compensation, and given to other operators. Te Ohu says it was never part of the settlement that the quota Māori acquired would remain vulnerable to permanent reappropriation.

The settlement

4 By the early 1990s, the nature and scope of the fishing rights guaranteed to Māori under art 2 of the Treaty, 1 had devolved into a protracted and difficult dispute. Interim orders made in 1987 had frozen parts of the newly-established QMS. 2

Multiple proceedings, most notably those consolidated in Te Runanga o Muriwhenua v Attorney-General, 3 resulted in the allocation of quota for some fish species being suspended. Those orders endured for five years as the parties sought, through negotiation, litigation and legislation, to craft a lasting solution.

5 A breakthrough came in September 1992. After a swift but successful negotiation, the longstanding question of commercial fishing rights under the Treaty was resolved. An opportunity arose for a joint venture representing Māori and Brierley Investments Ltd to purchase Sealord Products Ltd (Sealord), and the Crown agreed to provide Māori with the capital to participate. Sealord was, and is, a giant in the New Zealand commercial fishing industry. In 1992 it held 26 per cent of total fishing quota. As the Court of Appeal observed in Te Runanga o Wharekauri Rekohu v Attorney-General ( Sealords): 4

The Sealord opportunity was a tide which had to be taken at the flood. A failure to take it might well have been inconsistent with the constructive performance of the duty of a party in a position akin to partnership.

6 The agreement was recorded in a Deed of Settlement (the Deed), executed in September 1992, and followed shortly afterwards by the Treaty of Waitangi (Fisheries Claims) Act 1992 (the Settlement Act). The acquisition of Sealord was a central feature of the settlement, which is colloquially known as the Sealord deal. But acquisition of Sealord was only one part of it. The progressive acquisition by Māori of standalone tranches of fishing quota, which had been underway since 1989, also formed part of the settlement.

7 In return for the settlement quota and the capital required to purchase Sealord, Māori permanently surrendered their right to seek judicial recognition of customary or Treaty-based commercial fishing rights. 5

8 The Deed recorded that the Crown and Māori wished to resolve their disputes about fishing rights and interests and sought “a just and honourable solution in conformity with the principles of the Treaty of Waitangi”. 6 The same phrase formed part of the Preamble to the Settlement Act. 7 The Long Title to that Act provided, among other things, that it was an Act “to give effect to the settlement of claims relating to Māori fishing rights.”

9 The settlement was controversial at the time. Many iwi did not consider their interests were represented in the negotiations. In Sealords, opponents of the settlement unsuccessfully asked the courts to stop the introduction of the Bill that enshrined the settlement in law. 8

10 But with the benefit of more than 30 years' hindsight it can be said the settlement has been a conspicuous success. It was a landmark in the relationship between Māori and the Crown. Ten pieces of complex litigation, commenced in 1987 and 1988, were immediately discontinued. 9 Māori have, over the last 32 years, gained a substantial stake in New Zealand's fisheries through a combination of settlement quota, the Sealord stake and judicious investment in other large fishing companies. Māori are now a significant force in New Zealand's commercial fisheries.

The problem

11 I explain below how quota work and where they fit into the settlement, but it is sufficient for present purposes to note that quota holders are entitled to fish for particular species, in specified quota management areas (or fisheries), up to a certain volume. In theory, the total catch entitlement in each fishery should never exceed the level required to ensure fish stocks remain sustainable. Since their creation in 1986, fishing quota have become valuable property rights. They represent a tangible stake in New Zealand's commercial fisheries.

12 The QMS was established in 1986. Back then, the Government promised to compensate fishing operators who were obliged to reduce their catch levels and fish sustainably as part of the new system. While the Government kept that promise by paying cash to some operators, others opted for a different solution — an undertaking that when catch levels increased in the future, they would be the first to receive new quota, and would do so free of charge. In other words, the Government took on a debt to some fishing operators (referred to in this judgment as 28N rights holders), which it promised to pay, in years to come, through free quota.

13 Then things changed. For reasons I set out in detail below, the structure of the QMS was overhauled in 1990, and the Government stopped issuing new quota when catch levels increased. As a result, the Government could no longer pay its debt by issuing new quota. It decided, instead, to repay the debt by reallocating existing quota. In effect, Parliament transferred the Government's debt to private fishing operators. Instead of the Government paying its debt by issuing new quota, it began confiscating quota from some operators, and passing them to others. The provision responsible for the reallocation of quota was re-enacted as s 23 of the Fisheries Act 1996.

14 Private fishing operators continue to pay the Crown's 28N debt today. Quota held by Māori under the 1992 settlement, which otherwise enjoy a number of special protections, are as vulnerable to confiscation under s 23 as any other. Quota are stripped from Māori automatically, compulsorily, and without compensation, and given to companies the Crown promised to compensate nearly 40 years ago.

15 Section 23 is the modern manifestation of s 28N of the Fisheries Act 1983, which was part of the suite of provisions that established the QMS in 1986 (hence the reference throughout this judgment to “28N...