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Sunday, October 09, 2011

White bait

RNZ report 06/10/2011: The first prison term has been handed down for illegal whitebaiting to an Opotiki man who also threatened Department of Conservation rangers.
Peter Warren, 57, had been remanded in custody for 10 weeks since being found guilty on six charges of taking whitebait illegally and two of threatening Department of Conservation rangers.
On Thursday, the Opotiki District Court jailed him for eight months.
Warren took about 10kg of whitebait from the Huntress Creek floodgate three times in August and September last year.
DoC's programme manager of biodiversity assets in Gisborne and Whakatane, James Holborow, says rangers found Warren fishing on three occasions within 20 metres of a floodgate, giving the whitebait very little chance.
Warren was not present in court on Thursday.

But I was in court on Thursday and I've told Tumeke! readers what happened. He was sentenced without even being present - at least RNZ got that right even if they haven't told nearly half the story.

When the judges and the registrars of the court obstruct a defendant's legal representative from gaining access to their court file - when they deny the right of disclosure - then it is impossible to conduct a proper defence, to make a sentencing submission or to make any application to the court. This is what has happened in this case. The media are being fed only one side of the story - the Crown's - while the defendant has no means to present their story. So all we hear is the Department of Conservation's spin. And it all goes unchallenged: From RNZ's checkpoint programme on 2nd August when the judge convicted him, told him sentencing was in two months and then sent him immediately to jail (an outrage in itself):

Repeat offender, recidivist... spoken to... his attitude... obstructive on several occasions... abusive... threatened... [but can't say with what! Then she asks what his defence was:] his sovereign right and that no-one can tell him otherwise"

And his defence is rock solid - it is his sovereign right - and those that tell him otherwise and try to seize his nets are obstructing him. The law is firmly on his side and yet - because he's a Maori - the Pakeha will ignore their own legislation that guarantees his rights in order to persecute and enforce their constitutionally invalid and debunked mythological 'white man's law' over the top of the Tangata Whenua. The Pakeha authorities will use every dirty trick in the book to do it and the Pakeha civil society and Pakeha-controlled media will turn a blind eye and parrot whatever nonsense crap their white colleagues tell them. And people wonder why there are so many Maori in prison? It's where they want them. He got 6 months because he refused to let go of his net - a net they had no right to touch - that's what happened. The judge said it was serious; but it could not have been more petty.

The DoC arseholes with their shorts too tight and their socks pulled right up are in no position to tell him anything. If the DoC cocks feel threatened and get abusive words used towards them it is because they are wrong and he is right. He knows he is right that is why he can abuse them and "threaten" them and refuse to give them his net. DoC are not entitled to take it - they are not authorised to interfere. He is allowed to resist that interference. He has every cause to counter-sue for assault.

Since the judge didn't want to hear the defence perhaps our readers do. It's really simple - so basic that even a muppet in a black robe ought to understand:

The defendant was charged under the Whitebait Fishing Regulations 1994 - sec. 16(a):

Every person commits an offence and is liable on summary conviction to a fine not exceeding $5,000 who—
(a) contravenes, or fails to comply with, any of regulations 4 to 14;

- and with "obstruction" under the Conservation Act 1987 - sec. 41

Offences in respect of warranted officers and fish and game rangers
Every person commits an offence who—
(a) resists or obstructs any warranted officer or fish and game ranger in the execution of powers or duties conferred by this Act, or any person lawfully acting under the officer's or ranger's orders or in the officer's or ranger's aid; or
(b) fails, without lawful excuse to comply with the requirements of any warranted officer or fish and game ranger; [...]

There is a one year maximum imprisonment for obstruction - so the 6 months he got on those charges and the fact he had to start serving it at the point of conviction - are punitive.

The particular offences were to do with fishing within 20 metres of a floodgate (possibly out of season too - I'm not sure, as I say the court refuses to disclose the details to me). The regulations (about floodgates and whitebaiting in general) are made pursuant to sections 48 and 48A of the Conservation Act 1987. In particular sec. 48A
(f) regulating or prohibiting the taking or use or possession or sale of any specified freshwater fish:

So the regulations sit under the Conservation Act and are authorised and have power through the Act. The obstruction charges stem from DoC officers attempting to enforce these regulations.

The Act is specific about freshwater fisheries: Part 5B Freshwater Fisheries.

The second section 26ZH of the part says:

Maori fishing rights unaffected by this Part
(1) Nothing in this Part shall affect any Maori fishing rights.
(2) Subsection (1) does not apply to customary Māori fishing rights with respect to freshwater fisheries within South Island fisheries waters, in respect of which regulations have been made under section 48B, for so long as such regulations remain in force

So anything to do with freshwater fisheries and DoC's rules and regulations have no affect on any Maori fishing rights - except in the South Island under (2). And by mentioning sec.48B it infers that sec.48 and sec.48A has no bearing on limiting the rights in (1) either - so the fact that sec.48A is not in Part 5B is no reason to argue that Maori fishing rights are being limited (or else it would have said so at this point).

Maori fishing rights are not defined in the interpretation section, but freshwater and freshwater fish are:
freshwater fish includes all species of finfish of the Classes Agnatha and Osteichthyes, and all shellfish of the Classes Mollusca and Crustacea, that must, at any time in the life history of the species, inhabit fresh water; and includes any part thereof and such finfish and shellfish that seasonally migrate into or out of freshwater

Those two classes constitute most fish including 'whitebait'. So the Conservation Act 1987 is quite clear. But just in case someone might not get it they put something up the top at section 4:

This Act shall so be interpreted and administered as to give effect to the principles of the Treaty of Waitangi.

And the Treaty of Waitangi is very clear, the English version is explicit and unambiguous:

Article The Second
Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests
Fisheries and other properties [...]

That's pretty basic isn't it - it's not particularly difficult to follow. An uneducated Maori living in the rural backwaters could work it out, and yet DoC and the District Court Judges down here in Mississippi are obtuse enough to ignore what is written in their own legislation. So, for their benefit, let's go through it again:

1. Section 4 of the Conservation Act 1987 says the Act shall be interpreted and administered to give effect to the Treaty.
2. The Treaty says Maori have full, exclusive and undisturbed possession of their fisheries.
3. The Act says that Maori fishing rights are unaffected by provisions to do with freshwater fisheries.

Even if the Tangata Whenua of an area wanted to prosecute a fellow Tangata Whenua Maori they couldn't get DoC to do it through the courts - they would have to authorise DoC to take action and then any sanction would have to be under their own system. That's the law.

In this case I know that the hapu have many greviences against DoC and there would be no way they would authorise them to harass their own members and there will be no evidence DoC can produce to claim that local Maori have in any way empowered the department to act on their behalf or have handed over any fishing rights to DoC.

So all the arbitrary rules about not being able to go onto a log(or an obstruction) and whitebait and being 20m back from a floodgate and the net dimensions and all that bullshit integral to Pakeha culture doesn't apply to Maori - at least not to the Tangata Whenua. Maori determine what their own fishing rights are - not bloody DoC. Maori never consented to the floodgates and the other intrusions and destruction of the waterways in the confiscated zone in which he was fishing - they are obstructions to him.

The defendant has made it quite clear that he is the indigenous authority in this area and no other Maori authority would - or could - disprove that fact. The Judge has conceded - though not explicitly - that the defendant is a Maori who says he is exercising his Maori fishing rights.

Given his rights to fish in his own area must be - in terms of DoC's own statute - unaffected by the Act and by any regulation made under that Act, then no obstruction has occurred because officers can only be obstructed "in the execution of powers or duties conferred by this Act" - and Maori fishing rights are unaffected so interfering with the exercise of those rights is not something conferred.

But try telling that to a District Court Judge in Opotiki. I tried, but he threatened to chuck me out of the courtroom - twice. He quite literally wouldn't hear of it.

The defendant is classified by them and the court as a "recidivist" because he acts consistently in asserting his rights. It is DoC that is obstructing and displaying a pattern of threatening behaviour and so that makes him the real victim in this not some whining arsehole sticking his beak in where it doesn't belong. The "attitude" is the racism and contempt towards the defendant from DoC staff, the judge and the registrars and the media.

I went to see the local newspaper reporter who was in court on Thursday when that unlawful in absentia sentencing farce was going on and I explained the obstructions from inside the court and showed him the letters and other documents. His attitude was clearly that the court was right - no matter what. Even after he was forced to admit that the court should have disclosed his file to me he still couldn't get his (Pakeha) head around how a Maori might be right.

I told him I wanted to see his notes on what had happened at sentencing because it would be the only record that I could have access to because they are not disclosing anything to me. He said I'd have to wait till Tuesday when the paper was next published! Because that's way more important than justice. So I asked him what had happened - and he didn't want to tell me. I pointed out specific issues raised in my applications to court and his reaction was nothing to do with the substance, but that I should type it out and do it in "the right way". But I had and just because it was handwritten was irrelevant. He said it should be in "the right form". I said it was (and of course it is). But he didn't want to read the documents either - he just didn't want to know. Just like the other lawyers in court didn't want to know, how the judge didn't want to know and how no white person connected with this case gives a shit.

The only defence this reporter was going to hear and he didn't want to hear it! He never asked at any point. He had already made up his mind and had his story: another uppity Maori gets a lick of jail. No need to report anything else. No need for the other side of the story. And that's how it will be reported, nothing from me or the defendant, just the hysterical bluster from DoC and its highly prejudiced amplification from the bench, all packaged up in the local paper as if it were news.

In the civil rights song about Mississippi, Nina Simone sings at one point "you're all going to die and die like flies". She says that of the racist, white segregationist wankers of the South. The same sentiment could be applied - equally - to this situation.

It isn't just one racist white person being a dick, it's not just a few people with a misplaced colonial mindset - it's every layer and arm of government and civil society acting in concert to grind the Maori into the dirt and keep them forever pinned under their thumb. It is an attempt to break Maori until every last one of them gives up their lawful, constitutional freedoms and rights and submits to the subjection of the Pakeha. I don't think that plan will work, or could ever have worked, but they still seem to be persisting with it into the 21st century. Unless and until a majority of Pakeha do start giving a shit our colonial status cannot be overcome.

A Pakeha guy who was in court during the in absentia sentencing saw me afterwards and told me I should have applied to be a McKenzie's friend to the defendant. That way I could assist him and even speak in some circumstances. I said that would have been best, but how could I be a friend to McKenzie if McKenzie ain't there? That was the obvious problem in this case.

The issue here (apart from the legality of in absentia sentencing) is that a defendant who doesn't want a "proper" lawyer must only rely on themselves. That seems so wrong to me, a bullshit rule to preserve the elites and gain compliance so the conveyor-belt of justice moves at a steady pace. The "proper" lawyers are officers of the court and do not always act in the interests of their clients, so I do not blame people who want representation beyond the people with practicing certificates who will be playing golf with the judge next weekend. That the ringmaster gives you an option of which clown gets to hold your hand when they send you across the high wire doesn't make it any less of a circus.

A person should have the right to choose their legal representative no matter what bit of paper they have or don't have. What is important is that the defendant approves and trusts them, not that the judge approves and trusts them.

As for the defendant he waits in jail - where he will be till December and as a consequence also deprived of his right to vote.

UPDATE: According to the Opotiki News the Judge was Thomas Ingram.



At 10/10/11 3:26 pm, Blogger Morgan said...

"all that bullshit"

That "bullshit" is to protect the fisheries. If you quit your spittle flecked ranting for ONE second you might see that. It's better for EVERYONE to have some restrictions on fisheries. Shouting about being a sovereign doesn't change the fact that it sounds like he was doing his level best to decimate the river.

"A person should have the right to choose their legal representative no matter what bit of paper they have or don't have. What is important is that the defendant approves and trusts them, not that the judge approves and trusts them."

That might be fair. But if your mate had an actual lawyer instead of you then he probably wouldn't be in jail right now.

At 11/10/11 9:47 pm, Blogger BobbyD said...

Quite possibly your worst ever post Tim.

Even in the days of pre-colonisation the sort of practice this guy was carrying out would be the antithesis of the the protection kaimoana was accorded.

I'm unsure how you could lower yourself to this level.

At 12/10/11 12:04 pm, Blogger Tim Selwyn said...

Morgan: That the regulations exist to manage the fishery so that everyone can have access to it in a sustainable way is not in dispute here - what is in dispute is how you (and the Judge and DoC) seem to think that works, as you say "It's better for EVERYONE to have some restrictions on fisheries." Well it is not better for Tangata Whenua who hold fishing rights to be restricted in an arbitrary way without their consent just so some other people can have a go at their fishery. The regulations aren't for Tangata Whenua they are for everyone else so that the Tangata Whenua's fishing rights are as unaffected as possible - that is the only lawful basis on which the regulations can exist - to protect Maori fisheries as per the Conservation Act.

As to the assertion that he was decimating the river -
1. The Pakeha authorities without the consent of the tribal owners have already done that (in this area) by widescale destruction of the natural habitat, reclamation, drainage works and turning what was once a pristine tidal waterway into a narrow drain.
2. Technique v. quota. It is easier and natural for the holder of the fishing right to stand at a point of obstruction and cast their net rather than to observe rules meant for others which would mean spending a longer amount of time with greater difficulty. The fact is that the exact same amount may have been taken from that particular watercourse by the methods stipulated in the regulations. Furthermore local Maori have different ways of determining catch - for example in terms of whitebaiting I have heard from one kaumatua that if you see someone whitebaiting more than twice a week they are doing it commercially (ie. not customary), but the regulations say anyone can do it during daylight hours 7 days a week and still be within the rules. So which is more responsible? Surely it all depends on the total taken out of each waterway, not on how it's done. On one fishing show on TV I heard one woman say she was down fishing every single day of the season! That would be defined in some areas by local Maori as over-fishing, and yet the regulations permit it.

BobbyD: If a local Maori was going to get the same amount out of a given waterway anyway, then what does it matter how they do it? Remember DoC in this case claim he did this fishing too close to the floodgates on only three or four occasions over a two month period. If he had stood at precisely 20m back and was there all day every day for two months then he would have collected perhaps fifty times as much whitebait, but you would say that's OK because that's the rules?

It's his fishery at the beginning and end of the day - the law says so - and he is the one in the best position and with the most incentive to know how to manage it in a sustainable way. You afford him no credit and would rather trust a Crown agency who can't even read their own legislation.

At 17/11/11 3:34 am, Blogger bill redington said...

This is a lot of fuss about some herring, is it not? Native rights are a problem in Alaska as well but we never fight over herring, yet.
Let the poor bugger go for Christ's sake! He's only trying to get some food.

At 10/7/12 5:25 pm, Blogger Rangiroa Rongonui said...

See case law for 26zh where it can found that myself and a close friend were convicted of breaking regulations in the 1990s. Subsequently the charges were withdrawn by the conservation department there days before our hearing. However the the hearing went ahead in the Hawera District Court and the convictions were waived and the conservation department were ordered to pay $11,000.00 to our lawyers Maaui Solomon and Taki Anaru.

The basis of our submission was we were fishing in a place we could whakapapa to, and that we were exercising a Maaori Fishing Right. This same right existed in the salt water but was removed once the Sealord Deal was a done thing.

The case law files are held in th Crown Law Office, Wellington.

Rangiroa Rongonui, Pihama, Taranaki


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