Each day during the month of April, the Institute will feature one of the 30 ‘perspectives’ from the One Ocean report. These short articles include a diverse range of views regarding oceans management in New Zealand. Enjoy!
Jamie Ferguson, Partner, Kahui Legal
Customary and legal rights in oceans governance
The ocean presents a myriad of jurisdictional complexities and challenges, including the 12-nautical-mile mark which signifies the jurisdictional boundary of the Resource Management Act 1991 (RMA), the coastal and marine area under the Takutai Moana Act 2011 and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act). However, in Te Ao Māori, there are no such jurisdictional divisions. To Māori, Tangaroa is an interconnected and indivisible whole comprising all its elements and ecosystems (both physical and metaphysical). Māori have customary rights and interests in, and corresponding responsibilities as kaitiaki to, Tangaroa. In Aotearoa, the lens through which the ocean is viewed should therefore have a strong impact on how regulation is developed and implemented.
New Zealand has seen much change in this space during the past five years, including RMA reforms, the establishment of the Environmental Protection Authority (EPA) and the enactment of the EEZ Act. However, it is highly questionable that these mechanisms have strengthened Māori involvement in relevant frameworks or provided recognition of Māori rights and responsibilities.
In 2011 the Waitangi Tribunal’s Ko Aotearoa Tenei report considered the RMA in detail and found, among other things, that the RMA did not provide appropriately for Māori. Ko Aotearoa Tenei recommended a new legal framework through which Māori could exercise a level of involvement in environmental regulation that recognises appropriately their rights and corresponding responsibilities. That framework proposes Māori involvement in terms of values recognition, participation in governance and management and partnership. Neither the RMA nor the EEZ Act currently reflect this approach.