Whitebait season

The NZ government's official commercial open season on the vulnerable juvenile inanga and kokopu begins today.

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DoC:
Wednesday 15 August marks the start of another whitebait fishing season for areas other than the West Coast of the South Island. The West Coast whitebait season starts on 1 September. Whitebaiters are reminded that Department of Conservation (DOC) staff will be patrolling fishing sites to check that people are abiding by the Whitebait Regulations. DOC Ranger, Jamie Quirk said today that the regulations are in place to protect whitebait species and therefore the fishery so it can be enjoyed by future generations.
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The regulations are actually there to support a Pakeha free-for-all exploitation that keeps the native fishery in check so as to promote the introduced trout and salmon fishery (by eliminating the native competitor species at an early stage in the life-cycle) and that consequently undermines the Maori customary fishery. There are no limits as to the sale of whitebait for commercial gain and no limits as to the actual catch so a lot of damage can be done "legally". Otherwise unlawful structures are encouraged to be built as a consequence of the regulations and the operation of these effect a confiscation as they occupy the prime positions in the waterway at the only "legal" locations.

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DOC is also calling on whitebaiters to ensure they comply with whitebaiting regulations in place to protect the whitebait fishery and native fish populations and to be courteous to other waterway users. The regulations include requirements to use only one whitebait net at a time, to stay within 10 metres of the net, and the net should not exceed more than one third of the water channel width.
              
DOC administers regulations regarding fishing methods, timing, location and net size to ensure that enough young fish get upstream to mature and subsequently create new whitebait for the future. Throughout the season, DOC staff will be patrolling popular fishing sites.
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The operation of the regulations is in itself a Treaty breach. Undisturbed and exclusive are the terms of the Treaty regards fishing rights, but DoC - as I have blogged on before - are hostile to recognising Maori customary rights and have unlawfully attempted to subvert them in a pattern of intimidation and harrassment that leads to a conclusion that it is official policy.

The following extract from the DoC statement DOES NOT APPLY to Maori customary fishers, fishing and fisheries despite what they may say or imply and how they may act:

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Last year a number of whitebaiters were apprehended and appeared in court. Seven were fined $1,000 each for whitebait offences and their fishing equipment was forfeited to the Crown.
"We're aware that instant communities spring up on the banks of streams and rivers during the whitebaiting season as people experience the pleasures of both tending their nets in beautiful surroundings and consuming their catches. This traditional kiwi pastime is dependent on having sustainable native fish populations. If future generations are also to have the opportunity of enjoying this healthy recreation, it is essential that all whitebaiters observe the regulations," said Mr Quirk.
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People who are not Tangata Whenua in that area may be bound to observe those regulations - in addition to or in the absence of known Maori rules applying to the area - but Maori in their own rohe most certainly do not.

The case was heard  on appeal from the Opotiki District Court (after every manner of obstruction from the local judge and registrar) in the High Court at Rotorua earlier this year (despite the absence of the applicant or his counsel): Warren v Department of Conservation [2012] NZHC 1017

Interestingly the Crown in defending the extraordinary militant actions of DoC against Maori customary fishers, have during the course of legal proceedings, confirmed the principles in Te Weehi (1986) that have recognised the right but have avoided an adverse finding based on technical rather than substantive arguments in the case in which I was involved (as an advocate for the defendant).
The NZ government's justice system evidently thinks...
...that a locally resident Maori that most of the DoC officers/NZ Police involved know is Tangata Whenua and that was displaying clearly identifiable Tino Rangatiratanga and Confederation of United Tribes flags at all times (and has a full face moko to boot) and that has repeated to the Crown agents at the time and to the judge at the trial and at every opportunity that his basis is that the English law cannot prevail over Maori rights being exercised by Maori on Maori land...
...hasn't made a case that he is exercising a customary right!? Risible rationalisations on the part of the judiciary thus far. This is still a Mississippi scenario.

Is it worth taking this to the Court of Appeal to sort out?

The open season has officially begun and there will be more conflict on the waterways if this isn't resolved so that the Crown agents adhere to the law: Maori fishing rights are unaffected by the regulations.

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The relevant sections from the Conservation Act 1987:

 2 Interpretation
[...]
fishery means 1 or more stocks or parts of stocks or 1 or more species of freshwater fish or aquatic life that can be treated as a unit for the purposes of conservation or management
[...]

fishing—

• (a) means the catching, taking, or harvesting of freshwater fish; and

• (b) includes—
  • (i) any other activity that may reasonably be expected to result in the catching, taking, or harvesting of freshwater fish:
  • (ii) any attempt to catch, take, or harvest freshwater fish:
  • (iii) any operation in support of, or in preparation for, any activity described in this definition

[...]

freshwater means—

• (a) all waters of rivers, streams, lakes, ponds, lagoons, wetlands, impoundments, canals, channels, watercourses, or other bodies of water whether naturally occurring or artificially made:

• (b) all waters of estuaries or coastal lagoons:

• (c) all other fresh or estuarine waters where freshwater fish indigenous to or introduced into New Zealand are found:

• (d) all waters in the mouth of every river or stream, and the mouth of every river and stream shall be deemed to include every outlet thereof and the seashore between those outlets and the waters of the sea or lying within a distance of 500 metres from any place where at low tide the waters of a river or stream meet the waters of the sea

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

[...]
Maori has the same meaning as in Te Ture Whenua Maori Act 1993
[...]
3 Act to bind the Crown

This Act binds the Crown.

4 Act to give effect to Treaty of Waitangi

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

[...]

Maori fishing rights

26ZH 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.

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