CCPR/C/70/D/547/1993
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share not only the role of safeguarding their interests in fisheries but also the effective control. In
regard to non-commercial fisheries, the Crown obligations under the Treaty of Waitangi
continue, and regulations are made recognising and providing for customary food gathering.
9.8 In the consultation process, special attention was paid to the cultural and religious
significance of fishing for the Maori, inter alia to securing the possibility of Maori individuals
and communities to engage themselves in non-commercial fishing activities. While it is a matter
of concern that the settlement and its process have contributed to divisons amongst Maori,
nevertheless, the Committee concludes that the State party has, by engaging itself in the process
of broad consultation before proceeding to legislate, and by paying specific attention to the
sustainability of Maori fishing activities, taken the necessary steps to ensure that the Fisheries
Settlement and its enactment through legislation, including the Quota Management System, are
compatible with article 27.
9.9 The Committee emphasises that the State party continues to be bound by article 27 which
requires that the cultural and religious significance of fishing for Maori must deserve due
attention in the implementation of the Treaty of Waitangi (Fisheries Claims) Settlement Act.
With reference to its earlier case law19 , the Committee emphasises that in order to comply with
article 27, measures affecting the economic activities of Maori must be carried out in a way that
the authors continue to enjoy their culture, and profess and practice their religion in community
with other members of their group. The State party is under a duty to bear this in mind in the
further implementation of the Treaty of Waitangi (Fisheries Claims) Settlement Act.
9.10 The authors’ complaints about the discontinuance of the proceedings in the courts
concerning their claim to fisheries must be seen in the light of the above. While in the abstract it
would be objectionable and in violation of the right to access to court if a State party would by
law discontinue cases that are pending before the courts, in the specific circumstances of the
instant case, the discontinuance occurred within the framework of a nation wide settlement of
exactly those claims that were pending before the courts and that had been adjourned awaiting
the outcome of negotiations. In the circumstances, the Committee finds that the discontinuance
of the authors’ court cases does not amount to a violation of article 14(1) of the Covenant.
9.11 With regard to the authors’ claim that the Act prevents them from bringing claims
concerning the extent of their fisheries before the courts, the Committee notes that article 14(1)
encompasses the right to access to court for the determination of rights and obligations in a suit
at law. In certain circumstances the failure of a State party to establish a competent court to
determine rights and obligations may amount to a violation of article 14(1). In the present case,
the Act excludes the courts’ jurisdiction to inquire into the validity of claims by Maori in respect
to commercial fishing, because the Act is intended to settle these claims. In any event, Maori
recourse to the Courts to enforce claims regarding fisheries was limited even before the 1992
Act; Maori rights in commercial fisheries were enforceable in the Courts only to the extent that s
88(2) of the Fisheries Act expressly provided that nothing in the Act was to affect Maori fishing
rights. The Committee considers that whether or not claims in respect of fishery interests could
be considered to fall within the definition of a suit at law, the 1992 Act has displaced the
determination of Treaty claims in respect of fisheries by its specific provisions. Other aspects of
19
Committee's Views on case 511/1992, I. Länsman et al. v. Finland, para. 9.8, CCPR/C/52/D/511/1992.