A recent High Court ruling has raised alarm bells about the long-term integrity of Treaty settlements – and concern over how a little-known clause in the Fisheries Act could cost iwi millions.

In 1992, the Crown and Māori reached what was meant to be a “full and final” settlement over commercial fishing rights. In exchange for a 50% stake in seafood company Sealord and a 20% share of all quota species in New Zealand waters, Māori agreed to forgo further claims to commercial fishing rights under te Tiriti o Waitangi. This is known as the Māori fisheries settlement or Sealord deal.

However, more than 30 years on, that historic agreement has become the subject of a major legal dispute between Te Ohu Kaimoana, the entity established to manage those fisheries assets, and the Crown. At the centre of the dispute is an obscure clause in the Fisheries Act 1996 – Section 23 – which Te Ohu Kaimoana argues has been quietly undermining the fisheries settlement for more than two decades.

In March 2025, the High Court found that the Crown had breached the Fisheries Settlement by enabling the erosion of Māori settlement quota through the operation of what are known as “28N rights”. The full implications of the case are still yet to be known, but already, it has raised serious concerns about how the Crown honours the integrity of Treaty settlements over time and whether property transferred to Māori can ever truly be considered permanent.

What are 28N rights?

To understand the issue, it helps to go back to the 1980s. In response to collapsing fish stocks, the Crown introduced the Quota Management System (QMS) in 1986 to limit commercial catch and create a more sustainable fishing industry. To make the changes palatable to affected commercial fishers, the Crown offered a form of deferred compensation: “28N rights”. Effectively, these promised that if catch limits ever increased, affected fishers would be first in line to receive new quota – and they’d get it for free.

At the time, quota was issued in tonnes. But in the 1990s, the QMS shifted to a share-based system, with each stock divided into 100 million quota shares. Māori settlement quota was converted accordingly, making up 10 million shares per stock. It’s under this system that the problems began.

Under Section 23 of the Fisheries Act 1996, when catch limits increase in fisheries with unredeemed 28N rights, the government does not issue new shares to honour those rights. Instead, it permanently reallocates shares from existing quota holders – including iwi – to the 28N rights holders. No compensation is offered.

In some fisheries, especially where catch levels have fluctuated or temporarily dropped to zero, that can result in iwi losing their entire allocation.

Why does this matter for the Māori fisheries settlement?

Te Ohu Kaimoana says the reallocation of shares through Section 23 amounts to the Crown confiscating quota that was promised to Māori in perpetuity. It argues this undermines the entire premise of the fisheries settlement – that iwi would receive permanent quota holdings as part of the redress for Treaty breaches.

“The effect of the 28N rights anomaly is thus, by operation of legislation, to re-take from Māori the quota shares allocated to them by the Crown,” the group said in its amended court filings. In practical terms, the financial loss is significant. In one fishery alone – snapper in the upper North Island (SNA8) – the value of quota at risk has been estimated at $10m.

This erosion of quota has happened slowly and mostly unnoticed over time. However, for Te Ohu Kaimoana and the iwi it represents, it raises broader questions: What does “full and final” mean when parliament can later pass laws that change the value of what was agreed? And if the Crown can use legislation to reallocate assets granted under a settlement, what protection does any Treaty settlement really have?

What did the court say?

In a significant ruling issued late last month, Justice Boldt found that the Crown’s continued use of Section 23 had breached the fisheries settlement. The judgment is a major win for Te Ohu Kaimoana, though questions remain about what practical changes will follow.

In earlier proceedings, the court declined Te Ohu Kaimoana’s request for an interim order to stop the minister of fisheries from making catch decisions in affected fisheries, citing the potential economic impact on the fishing industry. But even then, Justice Boldt said Te Ohu Kaimoana had demonstrated a “serious question to be tried”. That question has now been answered – and it doesn’t reflect well on the Crown.

The court’s ruling draws attention to historic records of hui held during the Sealord settlement negotiations, where Māori repeatedly emphasised the need for “akeake” (forever) quota rights. At the time, the Crown gave repeated assurances that settlement quota would not be subject to future erosion. However, that’s exactly what Section 23 has allowed.

How has the Crown responded?

In its defence, the Crown argued that the potential impact of 28N rights was always built into the QMS – and that settlement quota was never immune to the laws governing all quota holders. The Crown maintains that the Māori fisheries settlement remains valid and that no promises were made to shield Māori from the effects of proportional quota adjustments.

It also pointed to the complexity of balancing the interests of all rights holders – including commercial fishers who have waited nearly 40 years to redeem their 28N rights. Redeeming those rights through reallocation, the Crown argued, was an efficient way to meet longstanding obligations without requiring additional public funds or new quota to be issued.

However, Justice Boldt’s ruling suggests that the method chosen – taking from Māori to repay Crown debts – was both inappropriate and inconsistent with the terms of the settlement.

What happens next?

The ruling does not automatically restore any lost quota or invalidate Section 23. However, it does confirm that the Crown has breached its obligations. What form any remedy might take is still unclear and will likely require further legal, political or legislative resolution.

For iwi and Māori fishing interests, the decision has wider implications beyond the fisheries sector. If the Crown can legislate away elements of a Treaty settlement – or pass laws that allow for its slow erosion – then it raises the question of how enduring any settlement really is.

The case also highlights the challenges of reconciling Treaty redress with complex regulatory systems like fisheries management. In seeking to settle past injustices, the Crown may have unintentionally established procedures that create new ones.

Why it matters

Beyond the courtroom, the fight over Section 23 is about more than fish. It’s about the durability of Treaty promises and whether the redress agreed to by the Crown can be quietly chipped away through legislative change.

When Māori agreed to the Sealord deal, it was on the understanding that what was given would not be taken back. That those rights, like the fish themselves, would endure.

Now, more than 30 years on, that understanding has been tested. For Māori, it’s a reminder that vigilance is still required, even over settlements supposedly meant to last forever.

This is Public Interest Journalism supported by NZ On Air.