“If something goes wrong, its not only our beaches that get ruined. It’s everyone’s.”

[Tweedie Waititi, Te Whanau-a-Apanui, Sunday Star Times]

Anne Salmond: In April 2011, a small flotilla of protest vessels headed out to sea from the Eastern Bay of Plenty in New Zealand. Among them was a fishing boat, the San Pietro, owned by the local iwi (kin group), Te Whanau-a-Apanui, and skippered by Elvis Teddy, an iwi member. Rikirangi Gage, a senior tribal leader, was also on board.

At that time, a large ship, the Orient Explorer, contracted by the Brazilian oil company Petrobas, was conducting a seismic survey of the Raukumara Basin, about 300 kilometers north of East Cape. In 2010, Petrobas had been granted a permit by the New Zealand government to prospect for oil in these waters, which crossed Te Whanau-a-Apanui’s ancestral fishing grounds.

When they learned of this permit from press reports, the iwi leaders were incensed. Under the Treaty of Waitangi, signed in 1840, Queen Victoria had guaranteed their ancestors the “full, exclusive, undisturbed possession of their Lands and Estates Forests Fisheries and other properties… so long as it is their wish and desire to retain the same in their possession.” (Waitangi Tribunal)

Since 1975 the Waitangi Tribunal, established to inquire into breaches of the Treaty, had held hearings around the country and investigated many complaints by Maori kin groups, including those relating to fishing and the ocean. The Tribunal issued reports and made recommendations, and over this period, successive governments had offered apologies and settlements in cash and kind to many iwi around the country.

When Te Whanau-a-Apanui leaders met with the Prime Minister to state their opposition to drilling for oil in their ancestral waters, he expressed sympathy, but refused to revoke the permit. Determined that their point of view should be heard, the tribe put out a call for assistance, and the environmental group Greenpeace responded by sending a flotilla of protest vessels to the Bay of Plenty.

As anger about the oil prospecting increased, placards and signs sprang up on windows and fences along the road between Opotiki and Gisborne. Bonfires were lit in protest, and large-scale haka (war-dances) performed on the beaches.

In April 2011 Greenpeace protestors swam into the path of the Orient Explorer, watched by members of the Air Force, Navy and police. The police issued notices under the Maritime Act, ordering the protest boats and their crews to stay 200 meters from the ship, or to face a fine of NZ$10,000 or up to a year in jail (Hill 2011).

In a press interview, Tweedie Waititi from Te Whanau-a-Apanui expressed surprise at the depth of feeling among her people: “We are the most placid iwion earth. And I tell you what, the government has awakened some sort of taniwha [guardian creature]. It’s quite a surprise to see my people react the way they are reacting. We’re all virgins at doing this. We never fight.” (Waititi 2011).

Like other New Zealanders, tribal members had heard a great deal about the Deep Horizon blowout in the Gulf of Mexico the previous year, and the damage done to the ocean, sea life, coasts and estuaries, and the livelihoods of local people. They were fearful that a similar catastrophe might happen in their ancestral waters.

Tweedie also expressed concern for the moki, a sacred fish that migrates every year from Hawaiki, the ancestral homeland, to Te Whanau-a-Apanui waters. “That’s the moki’s home”, she said, “Right where they want to drill. Every June, there is a star that shines in the sky and her name is Autahi, and that’s our indication that the moki has come home.”

The story of the moki is told in paintings in the dining hall and carved meeting-house at Kauaetangohia marae, at Whangaparaoa. I had also heard about this sacred fish many years earlier when I worked with Eruera Stirling, a leading elder of the iwi, on a book about his ancestors and his life. He told me about a time in his youth when a senior elder, Manihera Waititi, invited him and his elder brother to catch the “first fish” to open the moki season.

On that occasion, the two boys went to the Whangaparaoa River before dawn and boarded Manihera’s boat. With a land breeze behind them, the elder took them to the moki fishing ground about one hundred yards offshore from Ratanui, a beach where ancestral voyaging canoes had come ashore.

After catching several moki, they headed out to a deep water fishing ground, where they caught several more of the sacred fish. Back on shore, the old man gave them the moki to take home to their mother, Mihi Kotukutuku. As the tribe’s senior leader, it was customary for her to be presented with the first fish of the season.

According to Eruera, the waters offshore from Raukokore, his home village, are known as Te Kopua a Hine Mahuru, the deep waters of Hine Mahuru, named after the ancestress of his people. Its fishing grounds and shellfish beds are linked with the carved meeting-house on shore, also named after this high born woman, whose mana(ancestral power) extended over the land and sea.

A rock named Whangaipaka stands in these waters, guarded by a kai-tiaki or guardian, a large sting-ray. If a stranger went there without permission, a great wave carrying the stingray would sweep over the rock, drowning the intruder. Eruera told me that in his time, shellfish beds and fishing grounds were jealously guarded:

Each district had its own mussel beds, and they were reserved for the people of that place. If the people saw a stranger picking their mussels, look out! He’d be a dead man if he came ashore. Fishing was very tapu [imbued with ancestral presence], and each family had its own fishing grounds, no one else could fish there or there would be a big fight.

The old people were very particular about the sea, and nobody was allowed to eat or smoke out on the boats. If a man took food with him when he went fishing, he’d sit there all day with his hook and line empty and the fish would stay away.

Sometimes if the fishing was very bad the people would start asking questions, and if they found out the guilty man, he’d get into big trouble for breaking the sacred law of tapu. The people would just about knock him to pieces, and he wouldn’t be allowed to go out to sea again for quite a while. If a thing like that happened at home, you were well marked by the people (Stirling 1980:106).

Given the intensity of this bond between people, their land and ancestral waters, it is not surprising that Te Whanau-a-Apanui were outraged when, without prior warning, the government issued a permit for an oil company to explore their ancestral waters. As Tweedie Waititi remarked, it was as though a taniwha, a powerful ancestral being, had woken up and was thrashing around in the ocean.

When Rikirangi Gage, an acknowledged senior leader of the iwi, joined the protest flotilla, the government ignored this gesture. Several days later, Te Whanau-a-Apanui’s fishing boat San Pietro motored across the bow of the Orient Explorer, trailing tuna fishing lines and a string of buoys tied together with rope. When the captain of the survey ship told them to stay away, Gage replied, “We won’t be moving. We’ll be doing some fishing.”

Soon afterwards police officers boarded the fishing boat and arrested the skipper, Elvis Teddy, charging him with an offense under the Marine Transport Act. Back on shore, Teddy defended his actions, saying that he was simply exercising his right under the Treaty of Waitangi to fish his ancestral waters. If his boat had come close to theOrient Explorer, it was the fault of the drilling ship’s commander for not avoiding a fishing vessel.

Teddy was prosecuted, and during his trial in the Auckland District Court, his lawyers argued that since the confrontation had happened outside New Zealand’s twelve mile territorial zone, the Maritime Transport Act did not apply. The judge agreed, and the charges were dismissed.

When the police appealed the judgment to the High Court, however, the Court ruled that as a New Zealand vessel, the San Pietro came under New Zealand jurisdiction, even on the high seas (Woolford 2013). Although there was no specific provision in the Maritime Transport Act to this effect, the Act must apply beyond the twelve mile limit, or the New Zealand government would be unable to uphold its international obligations under the 1982 UN Convention on the Law of the Sea. (Webster and Monteiro 2013).

After this verdict, Teddy’s lawyer issued a statement saying that by granting a drilling permit in their ancestral waters without consulting Te Whanau-a-Apanui, and by sending the Navy, Air Force and police to stop Teddy and Gage from fishing in ancestral waters, the New Zealand Government had breached not only the Treaty of Waitangi but the International Convention of Indigenous Rights, which New Zealand has also signed (Te Whanau-a-Apanui 2012).

Soon afterwards, the New Zealand government took further steps to tighten its control over New Zealand vessels on the high seas, passing a hotly debated act that prohibits protest at sea in the vicinity of oil exploration vessels (Devathasan 2013).

This clash between Te Whanau-a-Apanui on the one hand, and Petrobas and the Crown on the other, was not just a physical confrontation. It was an ontological collision – a clash between different “worlds” or ways of being. Different claims to the sea, different ideas about collective rights, and different kinds of freedoms and constraints were being negotiated.

At the same time, this is not a simple confrontation between different “cultures” or “ethnicities.” It is a complex story, with different resonances for different people.

The Sea as a Theater of Protest

For many in New Zealand, the standoff between the San Pietro and a large oil drilling ship recalled an episode in 1973 when the New Zealand government tried to stop French nuclear testing in the Pacific. Two naval frigates, one with a cabinet minister on board, were sent to Moruroa atoll, a testing site in the Society Islands. When a Greenpeace yacht was boarded off Moruroa, its skipper was assaulted by French marines.

In 1984 when the New Zealand government declared the nation nuclear-free and refused to allow visits by US nuclear vessels, the country was ejected from the ANZUS alliance. A year later, French agents sank the Greenpeace vessel Rainbow Warrior, which was about to lead another protest flotilla to Moruroa, in Auckland harbor (Thakur 1986).

In New Zealand, as one can see, freedom to protest at sea is deeply entangled with national identity, and a concern for environmental issues. For many New Zealanders, by pitting its small boat against the oil drilling ship, Te Whanau-a-Apanui was following in that tradition, fighting to protect the ocean.

For many members of Te Whanau-a-Apanui, on the other hand, this was more a question of protecting the mana of their kin group. The San Pietro and its crew were asserting the right of their iwi to protect their ancestral fisheries against unwanted intrusion, based on the guarantee of “full, exclusive and undisturbed possession” of their fishing grounds under Article 2 of the Treaty of Waitangi.

At the same time, for the Government and many other New Zealanders, it was a matter of upholding the sovereignty of the Crown, and the government’s right to manage the 200-mile Exclusive Economic Zone; to issue exploration permits to oil companies; and to protect prospectors from interference by protest vessels, including those owned by iwi.

Nevertheless, this was not an ethnic confrontation. Many of the protestors were not Maori, and as Tweedie Waititi remarked, “If something goes wrong, it’s not only our beaches that get ruined. It’s everyone’s. I’m pretty sure that not only Maori have a connection to the sea.” Also, some iwi were flirting with the idea of supporting oil exploration: “Like our lawyer said,” she added, “our mana’s not for sale and no amount of money could pay us off. Maybe some iwi you could dangle a carrot. But this one’s not biting.”

In order to explore these ontological collisions, and what they tell us about different relationships between people and the ocean in New Zealand, and different ideas about the commons, I’d like to explore some of the deep, taken-for-granted presuppositions that underpin the positions adopted by different protagonists, along with previous alliances and confrontations.

The Fountain of Fish: The Ocean in Te Ao Maori

As the anthropologist Marshall Sahlins once remarked, “The [Mori] universe is a gigantic kin, a genealogy… a veritable ontology” (Sahlins 1985:195). Te Ao Maori [the Maori world] is ordered by whakapapa – vast, intricate networks of relationships in which all forms of life are mutually defined and linked, and animated by hau [breath, wind, life force].

In 1907, Elsdon Best, a New Zealand ethnologist who had spent a lifetime studying Maori customs, wrote to an elder called Tamati Ranapiri, asking him to explain the idea of the hau. Ranapiri replied:

As for the hau, it isn’t the wind that blows, not at all. Let me explain it to you carefully. Now, you have a treasured item (taonga) that you give to me, without the two of us putting a price on it, and I give it to someone else. Perhaps after a long while, this person remembers that he has this taonga, and that he should give me a return gift, and he does so.

This is the hau of the taonga that was previously given to me. I must pass on that treasure to you. It would not be right for me to keep it for myself. Whether it is a very good taonga or a bad one, I must give to you, because that treasure is the hau of your taonga, and if I hold on to it for myself, I will die. This is the hau. That’s enough (Ranapiri 1907).

The hau is at the heart of life itself. As Ranapiri explains, if a person fails to uphold their obligations in such exchanges, their own life force is threatened. As gifts or insults pass back and forth, impelled by the power of the hau, patterns of relations are forged and transmuted, for better or for worse.

When Elsdon Best wrote about Ranapiri’s account of the hau, it captured the imagination of a French sociologist, Marcel Mauss. In 1925, Mauss published The Gift, a classic work exploring gift exchange in a range of societies, including his own. Quoting Ranapiri, he contrasted the Maori concept of the hau and chiefly generosity with the utilitarian assumption in contemporary capitalism that all transactions are driven by self-interest, arguing that this gives an impoverished, inaccurate view of how relations among people shape social life.

For Mauss, the hau, or the “spirit of the thing given” impels a gift in return, creating solidarity. His discussion of the concept is perceptive, but in fact, it only scratches the surface. In Maori philosophy, hau drives the whole world, not just human communities. It goes far beyond the exchange of gifts among people.

According to the tohunga [experts] in the ancestral whare wananga [schools of learning], hau emerged at the beginnings of the cosmos. In a chant recorded by Te Kohuora, for example, the world begins with a burst of energy that generates thought, memory and desire (Te Kohuora 1854).

Next comes the Po, long aeons of darkness. Out of the Po comes the Kore, unbound, unpossessed Nothing, the seedbed of the cosmos, described by one of Best’s contemporaries as “the Void or negation, yet containing the potentiality of all things afterwards to come” (Tregear 1891:168).

In the Void, hau ora and hau tupu, the winds of life and growth begin to stir, generating new phenomena. The sky emerges, and then the moon and stars, light, the earth and sky and the ocean.

When the forest ancestor Tane creates the world of light and life by forcing earth and sky apart, his brother Tawhiri, the wind ancestor, attacks him and his children, the trees, smashing their branches, and the ancestors of root crops, forcing their offspring to hide in the ground. In this cosmic battle, only Tu, the ancestor of people, stands tall against the Space Twister. For his bravery, he earns for his descendants the right to harvest the offspring of his brothers – birds, root crops, forest foods and trees, fish, crayfish and shellfish.

Utu, the principle of reciprocity, drives the interactions between individuals and groups and all other life forms in the Maori world, working towards (an always fragile) equilibrium. In the process, hau is exchanged among and between people and other life forms, binding their fates together.

Here, individuals are defined by their relationships, and subject and object are not radically divided. From this we can see that any idea of the commons that presupposes this Cartesian division is rooted in a particular modernist cosmo-logic, one that cannot claim universal validity or application.

In Maori life, the mingling of self and other is reflected in many ways. When greeting one another, for instance, Maori people press noses and breathe, mingling their hau [wind of life] together. People speak of themselves as ahau[myself], and when rangatira or chiefs speak of an ancestor in the first person, it is because they are the kanohiora [living face] of that ancestor.

A refusal to enter into reciprocal exchanges, on the other hand, is known as hauwhitia, or hau turned aside. Hauhauaitu [or “harm to the hau”] is manifested as illness or ill fortune, a breakdown in the balance of reciprocal exchanges. The life force has been affected, showing signs of collapse and failure.

This also applies to people’s relations with other life forms. Unless the exchanges between people and the sea are balanced, for instance, the hau of both the ocean and the people alike will suffer.

Stories about the sea illustrate this point. According to Timi Waata Rimini, an elder from Te Whanau-a-Apanui, many generations ago the son of the ancestor Pou drowned in the Motu River. Setting off in search of his son, Pou arrived at the home of the sea ancestor Tangaroa, a “fountain of fish” teeming with different species, where he asked the sea ancestor whether he had taken his son. When Tangaroa denied it, knowing that he was lying, Pou asked him to attend his son’s tangi [funeral].

Returning to the Bay of Plenty, Pou told his people to make a great net. That summer, a huge shoal of kahawai (Arripis trutta) approached the coast, escorting the sea ancestor to the funeral. On a signal, Pou ordered his people to cast the great net. Thousands of Tangaroa’s children were caught and fed to the crowds that had gathered to mourn Pou’s son (Rimini 1901).

As Rimini explained, when the kahawai arrive at the mouth the Motu River every year, a chiefly youngster was sent out to catch three kahawai, which were offered to Pou and the high chief of the region. By acknowledging the mana of the sea ancestor, these “first fish” rituals opened the fishing season, protecting the fertility and abundance of the ocean.

Other local customs related to the kehe or granite trout, a sacred fish that frequented rocky channels in the reefs, grazing on kohuwai, a particular type of seaweed. There were a number of methods used to catch this fish, including shaping channels in the reef with stones, waiting until the kohuwai grew back again, and then using a hoop net to scoop up the kehe as they grazed on the seaweed, or using a pole to drive them into the net.

When the chief’s wife at Omaio became pregnant, he said, the rahui or sacred prohibition on a famous kehe fishing ground called Te Wharau was lifted, and as people gathered on the beach, men with hoop nets were sent to stand on particular named rocks. When the tohunga or expert called out Rukuhia, people dived into the channels, swimming underwater and driving the keheinto the hoop nets, in a joyous pandemonium. Afterwards, the fish were cooked and presented to the chieftainness as a delicacy (Te Rangihiroa 1926).

In this onto-logic, the sea itself was alive and breathing. When Te Parata, a powerful being in the heart of the ocean, breathed out, the tide began to flow, and children were born. When he breathed in, a great vortex formed, swallowing canoes at sea. At death, a great rangatira might be farewelled with the chant, “The eddy squall is gone, the storm is passed away, the Parata is gone, the big fish has left its dwelling place.” (Colenso 1887:422).

Here, ideas about collective rights acknowledge the vitality of other life forms – fish, rivers, mountains and land, for example. Rights in particular localities are distributed between people and other phenomena, nested and linked in exchange relationships at various scales. In relation to the sea, these ideas allow the control of use rights, along lines of kinship and descent or gift exchange.

In contemporary times, these ways of thinking are receiving legal recognition in New Zealand. In 2014, for instance, in a Waitangi settlement with the Whanganui iwi, the Crown has recognised their iconic river as a legal being; while in a Waitangi settlement with Tuhoe, an inland people, their ancestral land Te Urewera has been recognized in the same way, with co-management regimes with the Crown and regional authorities being established.

In many ways, these legal innovations echo contemporary biological understandings in which people and other phenomena (such as the ocean) are engaged in complex interactive systems, mutually implicated at every scale, while the idea that people might be linked by kinship with marine life forms is shared with evolutionary biology, for instance.

The virtue of these arrangements is that the well-being of a lake, a river or the ocean can be given legal priority in the allocation of resource rights and management regimes, alongside the interests of human beings.

The Ocean in the Enlightenment

There are both divergences and resonances between Western and Maori ideas about the sea. When Captain Cook’s ship Endeavour arrived off the east coast of the North Island in October 1769 and brought the first Europeans ashore, for instance, the ship was a travelling sideshow of the Enlightenment in Europe, laden with a cargo of colliding cosmologies.

This was a scientific naval expedition, sponsored by the Royal Society of London to observe the Transit of Venus in Tahiti, and by the Admiralty to find Terra Australis, the Unknown Southern Continent. It is a mistake to think of the meetings that followed as binary clashes between two “cultures,” however. As at present, Maori and European ways of thinking alike were diverse.

One strand of Enlightenment thought, for instance, can be traced back at least as far back as the seventeenth century, when the philosopher Descartes had a new vision of reality, at once powerful and intoxicating. In his dream, the Cogito – the “thinking self” or Subject – became the eye of the world, which in turn became an Object for inspection.

The Cartesian division between mind (res cogitans) and matter (res extensa), Subject and Object is historically and culturally specific. During the Enlightenment in Europe, as culture was separated from nature, the natural sciences and the humanities and social sciences began to diverge (Descola 2013).

As entities were detached from each other, they were objectified and classified, and the different disciplines emerged. This “Order of Things,” as Michel Foucault called it, was at the heart of Enlightenment science (Foucault, 1970). It also shaped the law of the sea, and how forms of control were distributed over the ocean.

In this style of thinking, the ancient motif of the grid was used to divide and sort different dimensions and entities into bounded units, bringing them under control for practical purposes. Often, the grid was hierarchical – the old idea of the Great Chain of Being, for example, with God at the apex followed by angels, divine Kings, the aristocracy and successive ranks of people, from “civilized” to “savage,” followed by animals, plants and minerals in descending order (Lovejoy 1936, Hodgen 1971).

As the cogito or thinking self became the guarantor of being, the all-seeing “Eye of God” was replaced by the “Mind’s Eye,” and human beings were put in charge of the cosmos. Often, this was understood as a machine, made up of distinct, divisible working parts that performed particular functions.

In the mid-eighteenth century in Europe, the Order of Things went viral. Many aspects of life were transformed – administration (with censuses, surveys, and bureaucratic systems), industry (with manufacturing based on mechanization and standardization, the replication of parts and processes), and science (with the use of instruments and quantification, and the increased specialization of knowledge), for instance (Frängsmyr, Heilbron and Rider 1990). In the case of surveying, this was closely associated with military activities, and the scientific use of force (Edney 1994).

As it happened, Captain James Cook, the first European explorer to land in New Zealand, as a leading hydrographer, was in the vanguard of this way of reimagining the sea. Like his cartographic peers, he adopted an imaginary vantage point high above the earth – an “Eye of God” perspective.

In Cook’s charts, the ocean – grey or blue-green, the home of birds, fish and whales, surging with tides and currents, ruffling or roaring in the wind – was transformed into a static, white, two-dimensional expanse, gridded by lines of latitude and longitude and mathematically partitioned and measured.

Near harbors or lagoons, the depth of the coastal seabed was measured with the lead, and these soundings were recorded on his charts. Using a process of instrumental observation, the blurred, shifting liminal zone between land and sea was reduced to a simple line (Salmond 2005).

As Jordan Branch has recently argued, this process of cartographic simplification was intimately entangled with imperial power and the creation of the modernist nation-state. Except for scatters of islands, new stretches of the Pacific were depicted as vacant expanses, waiting to be explored, charted, claimed and ruled by European powers (Branch 2011).

At this time in Europe, the sovereignty of the Crown (or imperium) in Europe was held to extend about a league (three nautical miles) from the coastline, or within cannon shot, although property rights [dominium] could be granted within that limit (Bess 2011:87). Captain Cook had instructions from the Admiralty to claim any new lands he might “discover” for the British Crown.

At the same time, as Peter Hans Reill has remarked, one should not underestimate the diversity of Enlightenment thinking. In the mid-eighteenth century, for instance, men including Erasmus Darwin and Priestley, many of those involved in the Scottish Enlightenment, Buffon in France, Benjamin Franklin in America, and later the Humboldt brothers, understood reality as living networks of relations among different phenomena, animated by complementary exchanges – an account that has strong resonances with Maori and Polynesian thinking (Reill 2005; see also Israel 2006).

In this Enlightenment tradition – the Order of Relations, one might call it – people are just one life form among many, and the world is constantly changing. Ideas such as justice, truth, equality and honor, and balance and equilibrium suggested how exchanges – particularly among people – should be handled. Here one can find the origins of participatory democracy, and much of contemporary anthropology, earth sciences, cosmology, ecology and evolutionary theory. The World Wide Web and scientific ideas about complex systems and networks also trace back to this strand of modernist thought.

Not surprising, this diversity of views was reflected on board the Endeavour. In addition to his orders from the Admiralty, Cook had a set of “Hints” from the Earl of Morton, the President of the Royal Society, which acknowledged the legal rights of Pacific people to control their own lands and coastlines, and suggested how to describe in detail the people, places, plants, animals and minerals that they might encounter during their voyage around the world.

While Cook’s charts abstracted the land and sea, the journals, sketches and collections produced by the scientists and the ship’s officers restored them to life again, at least in part, with meticulous depictions of local people and landscapes, canoes and fishing gear, different species of fish, as well as currents, tides and the temperature of the ocean (Salmond 2004).

During the Endeavour’s circumnavigation of New Zealand in 1769-1770, these divergent strands in Enlightenment thought – as reflected in the Admiralty orders and the Earl of Morton’s “Hints” in particular – helped to shape what happened. The presence of Tupaia, a brilliant man later described as a “genius” by Georg Forster, also powerfully shifted the dynamics of these encounters. A high priest from one of the homelands of Maori, he was quickly able to master the sound shifts between Maori and Tahitian, and speak with the local people.

The warriors who came out in their canoes to challenge the ship were unsure what this bizarre apparition might be. In Turanga, for instance, the first harbor visited by the Endeavour in New Zealand, the people thought this might be Waikawa, a sacred island off the end of the Mahia peninsula, floating into their harbor. Nevertheless, they used their own time-honored rituals for challenging the strangers, performing wero [ritual challenges], karakia [incantations] and haka [war dances].

While Cook followed his Admiralty orders and took possession of New Zealand, marching the marines ashore to set up a British flag, he also followed the “Hints” by negotiating with Maori, using Tupaia, the Ra’iatean star navigator, as his interpreter. When the first encounters on land and sea ended in shootings, Cook was bitterly chagrined.

There were many such clashes around the coastline of New Zealand. When the Endeavour arrived at Waikawa, for instance, off the end of the Mahia peninsula, a sacred island and the site of a school of ancestral learning, priests chanted and warriors in canoes threw spears at the hull of the Endeavour. As they sailed across Hawke’s Bay, flotillas of canoes came out, led by elderly chiefs wearing fine cloaks, chanting, making speeches and brandishing their weapons, preventing the Europeans from making a landing.

When the Endeavour headed north and arrived in the Bay of Plenty, a large canoe carrying sixty warriors came out from Whangaparaoa in Te Whanau-a-Apanui waters, and circled the ship, a priest reciting incantations as the crew performed a war dance. They cried out, “Come to land and we will kill you,” paddling at high speed to attack the Endeavour and stopping only when a volley of grapeshot was fired beside their canoe. When a cannon loaded with round shot was fired overhead, they fled back to the land.

As one can see, there is a strong continuity between Rikirangi Gage’s presence on board the San Pietro and their confrontation with the oil drilling ship, and these earlier clashes in which Te Whanau-a-Apanui defended their mana(ancestral power) over their tribal waters.

On the whole, Captain Cook respected these challenges, retorting with warning shots rather than shooting the warriors. The Earl of Morton had insisted that people in these new lands had the right to defend their own territories, including their coastal waters. Later, this same understanding underpinned the promise in the English text of the Treaty of Waitangi that Maori would enjoy “full, exclusive, undisturbed possession of their Fisheries and other properties… so long as it is their wish and desire to retain the same in their possession.”

It was not until quite recently in New Zealand (in 1965) that the Crown’s sovereignty was formally extended out to three miles from the coast, to twelve miles in 1977, and in 1982 under the United Nations Convention on the Law of the Sea (or UNCLOS) out to 200 miles, defining an oceanic “Exclusive Economic Zone” that the Government sought to defend against Whanau-a-Apanui and Greenpeace protestors.

Thus in very recent times, the high seas or mare liberum¹ – that part of the ocean which falls outside the Exclusive Economic Zones, an expanse free to all nations but belonging to none – has been shrinking, as nation-states expand their terrestrial sovereignty out from their coastlines – a kind of oceanic enclosure. As we have seen, such cartographic visions of the ocean embody particular assumptions about the world. This atomistic, quantifying, abstracting, commodifying logic is still unfolding.

This cosmo-logic fragments the sciences, detaches people from “the environment” and makes the well-being of other life-forms contingent. It therefore is not particularly successful at understanding or safeguarding the vitality of those intricate socio-biophysical systems in which human beings participate, and on which their own well-being and futures rely.

In New Zealand, as in other situations where the government has sought to commodify and privatize resources formerly held in common, Maori have reacted by challenging the Crown’s right to make these decisions. As Alex Frame, a law professor in New Zealand, has observed, under the Treaty of Waitangi:

The commodification of the “common heritage” has provoked novel claims and awakened dormant ones…Claims to water flows, electricity dams, airwaves, forests, flora and fauna, fish quota, geothermal resources, seabed, foreshore, minerals, have followed the tendency to treat these resources, previously viewed as common property, as commodities for sale to private purchases. Not surprisingly, the Maori reaction has been, if it is property, then it is our property (Frame 1999:234).

The Foreshore and Seabed

It would be possible to examine the unfolding of this logic with the quantification of fish stocks in the fisheries quota system in New Zealand, for instance, which provoked one of the first claims to the Waitangi Tribunal. Here, however, I will focus on the confrontations between many Maori and the Crown over the foreshore and seabed, since this forerunner to the clash between Te Whanau-a-Apanui and the Crown also illuminates complexities in contemporary debates about the commons.

The foreshore and seabed saga began in the Marlborough Sounds, at the northern end of the South Island. Although the local tribes had repeatedly applied to the local District Council for licenses to farm mussels in their ancestral rohe (territory), none were granted. Finally in frustration, they finally applied to the Maori Land Court to recognize their customary rights over the foreshore and seabed in the Sounds (Bess 2011:90-93; Boast 2005).

In Maori ancestral practice, the foreshore is a fertile place. At the time of the Treaty, clans and families moved from gardens and forests to wetlands, sandy beaches, rocky reefs and out to sea in seasonal migrations, maintaining relations with a complex mosaic of fish, plants and animals, and harvesting at peak times of plenty. Particular groups held nested use rights to particular resources at particular times of the year, creating overlapping, shifting networks of rights that crossed the shoreline, binding people, land and sea together.²

According to English common law in 1840, on the other hand, land and sea were divided at the high tide mark, and subject to different regimes of control. On land, the Crown held the right of imperium or sovereignty, whereas dominium or ownership was generally held as private property; whereas at sea, it was assumed that the Crown held both imperium and dominium, at least as far as three miles offshore, unless it had granted the right of ownership to other parties.

When land began to be surveyed, partitioned into bounded blocks and sold in New Zealand, the government and European purchasers alike generally assumed that if they bought coastal land, they owned it to the high tide mark, but that the foreshore or tidal zone and the seabed belonged to the Crown.

From the beginning, Maori contested this assumption, which clashed with the Article 2 Treaty promise about their control of ancestral fisheries. But in 1963, when the Court of Appeal ruled in a case over the Ninety Mile beach that customary rights to the foreshore had been extinguished when the Native Land Court had issued title to coastal land, the matter was assumed to be legally settled.

The application of the Marlborough iwi to the Maori Land Court overturned that legal precedent, however. The judge held that the legislation cited by the Attorney General, including the Ninety Mile Beach case, had not in fact extinguished the customary rights of the Marlborough iwi.

The case was appealed, and then referred to the High Court, where the judge reversed the ruling, and then to the Court of Appeal, where the judges ruled unanimously that upon the signing of the Treaty, the Crown had acquired only a radical right or imperium over the sea with the acquisition of sovereignty.

Citing the doctrine of aboriginal title, they ruled that unless the rights of dominium had been legally extinguished, they remained with Maori kin groups, and that this was also the case with the foreshore and seabed. Furthermore, they argued, the distinction in English common law between land above the high water mark, and land below it, did not apply.³

As Judge Elias said, “The common law as received in New Zealand was modified by recognized Maori customary property interests. There is no room for a contrary presumption derived from English common law. The common law of New Zealand is different.” The judges referred the case back for the Maori Land Court to determine whether or not the Marlborough iwi had customary ownership of the foreshore and seabed in their ancestral territories (Elias, S, in the Court of Appeal of New Zealand, CA 173/01).

By this time, however, most New Zealanders took it for granted that, apart from riparian rights, the foreshore and seabed were owned by the Crown, and the decision caused a furor. Over the generations, many non-Maori New Zealanders had also formed close ties with particular beaches and stretches of coastline, echoing an ancestral Maori habit of setting up summer fishing camps by heading to beaches and coastal camping grounds, and spending a great deal of time fishing, diving, surfing and sailing.

Although some Maori leaders insisted that they only wished to exercise kai-tiakitanga or guardianship over the foreshore and seabed, and not treat them as private property, others were clearly interested in commercial possibilities, and claimed property rights in the ocean. Fearing that their relationship with particular beaches and harbors would be severed, and their recreational as well as commercial interests in these places would be lost to Maori, many non-Maori New Zealanders were incensed by the Court of Appeal’s decision.

Again, this was not strictly an ethnic confrontation. None of the Court of Appeal judges, for example, were Maori. Nevertheless, public anger was such that in 2004, the Government hastily passed legislation to ensure that the foreshore and seabed would be owned by the Crown, with open access for all, subject to various regulatory restrictions and acknowledging Maori customary interests (but not allowing this to be translated into freehold title).

When a hikoi (march) of thousands of Maori protesters marched on Parliament, they were dismissed by the Prime Minister as “wreckers and haters,” a comment that hurt and horrified many of the elders who participated.

In the aftermath, however, as different iwi signed Treaty deeds of settlement with the Crown, anger on all sides gradually cooled (Palmer 2006:197-214). When a new Government formed a coalition with the Maori Party, which had been created in protest against the Foreshore and Seabed Act, in 2010 new legislation gave Maori further customary (but not freehold) rights to these areas, while protecting public access and enjoyment by defining the foreshore and seabed as “public domain” (Bess 2011:92-93).

Out at sea, on the other hand, the Crown reserved its right to allocate oil and mineral licences, without public participation. By the time that Te Whanau-a-Apanui’s fishing boat confronted the Orient Explorer, they had many non-Maori supporters who shared their fears for the future of the ocean. In October 2011 when a container ship the Rena ran aground on a reef in the western Bay of Plenty, it seemed that they had been prescient. A cargo including hazardous materials, fuel oil and diesel spilled into the sea, causing widespread environmental and economic damage.

“Tie the Knot of Humankind”: Experiments Across Worlds

As one can see, in New Zealand, fundamentally different onto-logics about human relations with the ocean have proved very resilient. At the same time, there have been significant transformations, both to Maori ideas and to modernist thinking.

In the law, for example, at different times, the doctrine of continuity in relation to Maori rights has transformed English common law by the incorporation of Maori customary law. As Sian Elias, now the Chief Justice of New Zealand, put it succinctly, “The common law of New Zealand is different.” One can see this in many New Zealand laws that cite tikanga (ancestral conventions), whether in general or in particular,⁴ including those recent laws giving effect to those Waitangi settlements in which ancestral rivers and stretches of land are recognized as beings with their own legal rights.

At the same time, while particular tikanga may be cited in legislation, their content has often fundamentally shifted. One can see this in the case of kai-tiakitanga, for example, once exercised by non-human beings such as sharks and stingrays over particular ancestral stretches of the ocean. Today, a more anthropocentric version is common, with people regarding themselves as kai tiaki (guardians) of these places.

On the other hand, the assumption that with the signing of the Treaty, sovereignty was transferred to the British Crown, has not been seriously disturbed, despite many challenges, since this provides a fundamental scaffolding for legal processes in New Zealand.

In relation to the sea, this means that mechanisms such as mataitai and taiapure, where Maori kin groups either exercise or share limited rights over coastal subsistence fishing with other community members, operate within strict limits. For example, Ministers appoint tribal “representatives” to management groups and require that their arrangements not clash with commercial fishing rights.

Simultaneously, however, the idea of the “Crown” itself has also altered, so that any pure opposition between Maori and the Crown is now difficult to sustain. For many years in New Zealand, Maori have been lawyers and judges, officials, members of Parliament and Ministers. In fact, it was a Maori Minister of the Crown, Matiu Rata, who helped to set up the Waitangi Tribunal.

Again, the relation between iwi and the Crown is structural rather than strictly ethnic, and this is played out in fisheries management as well, with non-Maori as well as Maori managing fishing quota for iwi according to strictly commercial principles; while in mataitai and taiapure, the management of customary fishing is usually shared with non-Maori community members (Jacobson and Moller 2009).

At the same time, some non-Maori New Zealanders now speak of themselves as kai-tiaki or guardians for rivers, beaches and endangered species. As Maori terms increasingly shift into Kiwi English, both European and Maori ways of thinking are being transformed.

This holds promise for the future, because in relation to the sea, experiments of this kind are urgently needed. In New Zealand as elsewhere, a radical division between Nature and Culture, born of one strand of modernist thought, and the belief that Nature is there for human beings to exploit without limit and that any damage can be fixed, is fundamentally disruptive to relations between people and the ocean.

While surfers, swimmers, divers and fishers still frequent our beaches and coasts, and sailors still cross the Pacific, their activities are increasingly at risk from water-borne pollution, sedimentation, over-harvesting of reefs, shellfish beds and fisheries, and the intense storms, acidification and current shifts driven by climate change, for example.

Contemporary scientific models, with their fragmented partitions, and the split between Nature and Culture with its deep separation between people and other phenomena (also born of the Order of Things), are flawed. They fail to adequately grasp the cascading dynamics of complex systems in which people are implicated at every scale, putting the future of many marine species andcoastal human communities at risk.

Ideas of the commons do not always escape these limitations. In New Zealand, these play out in complex ways, sometimes to oppose Maori claims to fisheries or waterways (“No one owns the water!”), whose control may then be privatized – but also to forge alliances with Maori kin groups (in the case of the San Pietro, for example) to try and prevent extractive activities that seem too damaging or dangerous.

Until people grasp that their being and that of the sea are bound together, they will not demand that human activities that put our futures at risk are conducted within survivable limits. We need new ways of thinking about the shifting relations between people and the ocean – and indeed, all the intricate biophysical systems of which human beings are a part.

In New Zealand, deep resonances may be found between relational thinking from the Enlightenment (including the commons); Maori ideas of complex networks that bypass Cartesian divisions between subject and object, mind and matter, society and nature; and the contemporary science of complex systems. These convergences may help to incubate some new ideas about the ocean.⁶

Just as the physicist Niels Bohr drew upon Asian conceptions to grasp quantum theory, or Marcel Mauss reflected on the Maori idea of the hau to imagine alternatives to a commodified world, such cross-philosophical experiments (and not just in New Zealand) might help to engender new kinds of environmental science.

They might also foster ideas of the commons based on complex systems – those intricately entangled, cascading, dynamic, interactive networks among people, and between people and other life forms at different scales – and legal arrangements in which rivers and the ocean have their own being and their own rights.

As my mentor, Te Whanau-a-Apanui elder Eruera Stirling, used to chant:

Whakarongo! Whakarongo! Whakarongo!

Ki te tangi a te manu e karanga nei

Tui, tui, tuituiaa!

Tuia i runga, tuia i raro,

Tuia i roto, tuia i waho,

Tuia i te here tangata

Ka rongo te po, ka rongo te po

Tuia i te kawai tangata i heke mai

I Hawaiki nui, i Hawaiki roa,

I Hawaiki pamamao

I hono ki te wairua, ki te whai ao

Ki te Ao Marama!

English Translation:

Listen! Listen! Listen!

To the cry of the bird calling

Bind, join, be one!

Bind above, bind below

Bind within, bind without

Tie the knot of humankind

The night hears, the night hears

Bind the lines of people coming down

From great Hawaiki, from long Hawaiki

From Hawaiki far away

Bind to the spirit, to the day light

To the World of Light!

References

• Bess. 2011. “New Zealand’s Treaty of Waitangi and the Doctrine of Discovery: Implications for the Foreshore and Seabed.” Marine Policy 35:85-94.
• Blomley, Nicholas. 2003. “Law, Property and the Geography of Violence: The Frontier, the Survey and the Grid.” Annals of the Association of American Geographers 93(1):121-141.
• Boast, Richard. 2005. Foreshore and Seabed. Wellington: LexisNexis.
• Branch, Jordan. 2011. “Mapping the Sovereign State: Cartographic Technology, Political Authority, and Systemic Change.” PhD thesis in Political Science, Berkeley.
• Brookfield, F.M. 2004. “Maori Customary Title in Foreshore and Seabed.” New Zealand Law Journal 34(1).
• Colenso, William. 1887. “Ancient Tide Lore, and Tales of the Sea.” Transactions and Proceedings of the New Zealand Institute 20:418-22.
• Cox, Michael, Arnold, Gwen, and Tomás. 2010. “A Review of Design Principles for Community-based Natural Resource Management.” Ecology and Society 15(4):38.
• Descola, Phillipe. 2013. Beyond Nature and Culture. Chicago: University of Chicago Press.
• Devathasan, Anna. 2013. “The Crown Minerals Act 2013 and Marine Protest.” Auckland University Law Review 19:258-263.
• Diaw, Mariteuw. 2008. “From Sea to Forest: An Epistemology of Otherness and Institutional Resilience in Non-Conventional Economic Systems.” http://dlc.dlib.indiana.edu/dlc/bitstream/handle/10535/312/diaw.pdf?sequence=1
• Edney, M.H., 1994. “British Military Education, Mapmaking, and Military ‘Map-mindedness’ in the Later Enlightenment.” The Cartographic Journal 31:14-20.
• Frame, Alex. 1999. “Property and the Treaty of Waitangi: A Tragedy of the Commodities?” In Janet McLean, editor. Property and the Constitution. Oxford: Hart Publishing: 224-234.
• Foucault, Michel. 1970. The Order of Things. London: Tavistock.
• Frängsmyr T., J.L. Heilbron and R. Rider, editors. 1990. The Quantifying Spirit in the 18th Century. Berkeley: University of California Press.
• Grotius, Hugo, translator. Ralph Magoffin. The Freedom Of The Seas: Or, The Right Which Belongs To The Dutch To Take Part In The East Indian Trade. New York: Oxford University Press.
• Henare [Salmond] AJM. 2007. “Taonga Maori: Encompassing Rights and Property in New Zealand.” In A. Henare, M. Holbraad and S. Wastell, editors. Thinking through Things: Theorising Artefacts Ethnographically. London: Routledge. 47-67.
• Hill, Marika. 2011. “Police Make Arrest on Protest Ship.” Stuff NZ, April 23.
• Hodgen, Margaret. 1971. Early Anthropology in the Sixteenth and Seventeenth Centuries. Philadephia: University of Pennsylvania Press.
• Israel, Jonathan. 2006. “Enlightenment. Which Enlightenment?” Journal of the History of Ideas 67(3):523-545.
• Jacobson C., and H. Moller. 2009. “Two from the same cloth? Comparing the outcomes of Mtaitai and Taipure for delivering sustainable customary fisheries.” He Khinga Rangahau No. X. Dunedin: University of Otago.
• Lovejoy, Arthur. 1936. The Great Chain of Being: The History of an Idea. Boston: Harvard University Press.
• Mauss, Marcel. 1966. The Gift: Forms and Functions of Exchange in Archaic Societies. London: Cohen and West Ltd.
• Palmer, M. 2006. “Resolving the Foreshore and Seabed Dispute.” In Raymond Miller and Michael Mintrom, editors. Political Leadership in New Zealand. Auckland: Auckland University Press, 197-214.
• Ranapiri, T, 1907. Letter to Peehi (Elsdon Best), 23 November 1907, p. 2, MS Papers 1187-127, in the Alexander Turnbull Library, Wellington. Anne Salmond, translator.
• Reill, P.H. 2005. Vitalizing Nature in the Enlightenment. Berkeley, California. University of California Press.
• Rimini, Tiimi Waata. 1901. “Te puna kahawai i Motu.” Journal of the Polynesian Society 10(4):183-190.
• Sahlins, Marshall. 1985. “Hierarchy and Humanity in Polynesia.” In A. Hooper and J. Huntsman, editors. Transformations of Polynesian Culture. Auckland. The Polynesian Society.
• Salmond, Anne. 1992. Maori Understandings of the Treaty of Waitangi, F19, for the Waitangi Tribunal, Muriwhenua Land Claim.
• —– . 2004. The Trial of the Cannibal Dog: Captain Cook in the South Seas. London: Penguin.
• —– . 2005. “Their Body is Different, Our Body is Different: European and Tahitian Navigators in the 18th Century.” In History and Anthropology,16 (2):167 – 186.
• —– . 2010. Brief of Evidence of Distinguished Professor Dame Anne Salmond, WAI 1040, #A22, for the Waitangi Tribunal.
• Stirling, Eruera, as told to Anne Salmond. 1980. Eruera: The Teachings of a Maori Elder. Christchurch: Oxford University Press.
• Te Kohuora of Rongoroa, dictated to Richard Taylor. 1854. [The Maori text is in Taylor, Richard (1855), Te Ika a Maui. London:15-16.]
• Te Rangihiroa, Peter Buck. 1926. “The Maori Craft of Netting.” Transactions of the New Zealand Institute 56: 597-646.
• Thakur, Ramesh. 1986. “A Dispute of Many Colours: France, New Zealand, and the Rainbow Warrior Affair.” The World Today 42(12):209-214
• Schmidt, Jeremy and Mitchell, Kyle. “2014 Property and the Right to Water: Towards a Non-Liberal Commons.” Review of Radical Political Economics46(1):54-69.
• Te Whanau-a-Apanui. 2012. Statement of Te Whanau-a-Apanui, iwimaori.weebly.com/…/te_whanau_a_apanui_statement_16_may_2012
• Tregear, Edward. 1891. The Maori-Polynesian Comparative Dictionary. Wellington: Lyon and Blair.
• Waitangi Tribunal. http://www.justice.govt.nz/tribunals/waitangi-tribunal/treaty-of-waitangi
• Waititi, Tweedie. 2011. Quoted in Sunday Star Times. April 24.
• Woolford, J. 2003. Judgment in NZ Police vs. Elvis Heremia Teddy, CRI-2011-470-00031 [2013, NZHC 432].
• Webster, Kerryn and Felicity Monteiro. 2013. “High Court clarifies jurisdiction over New Zealand ships on high seas, International Law Office.” http://www.internationallawoffice.com/newsletters/detail.aspx?g=96970d24-7159-4b4c-b41f-71d8c0f58 

Anne Salmond (New Zealand) is a Distinguished Professor of Mori Studies and Anthropology at the University of Auckland. For many years she has worked with indigenous leaders and groups in New Zealand and the Pacific. As a writer, she has won many literary and academic awards. A passionate environmentalist, she has also led major ecological projects in New Zealand. In 2013 she was awarded the Rutherford Medal, New Zealand’s top scientific award, and was made the New Zealander of the Year.

Patterns of Commoning, edited by Silke Helfrich and David Bollier, is being serialized in the P2P Foundation blog. Visit the Patterns of Commoning and Commons Strategies Group websites for more resources.

Photo by amg1994

The post Patterns of Commoning: The Fountain Of Fish: Ontological Collisions At Sea appeared first on P2P Foundation.

When I first began thinking about ideas of subjectivity and emotion in relation to fisheries most people thought I was crazy. Talk to fishermen about their feelings? But it quickly became clear that I was on the right track. As one fishermen’s advocate said to me, laughing, “People are definitely not rational, especially fishermen. They make decisions based on other factors.”¹ I became fascinated by what some of these “other” factors might be.

My project begins with the excellent work done by Ostrom² and others on design principles for the commons. Design principles focus on the institutional rules and norms required for effective management of collective resources. This work has been done within a rational choice framework, however, which leaves little space for understanding alternative rationalities or “nonrational” behaviors. If we simply add in perspectives on gender, kinship relations, emotional attachments to resources and land- and seascapes to our understanding of design principles, it prevents us from exploring how design principles emerge in the first place. Rather, I suggest we need to explore how institutions, resources and societies are co-emergent. This starting point shows how the “design” of a commons is a product of personal interactions, histories and relationships that need to be continually renewed.³

Taking co-emergence as a starting point has major implications for how we understand the dynamics of the commons. It is not a question of explaining how resource use affects the commons, but rather a question of exploring how the commons, as an institution, a place and an ecosystem, is embedded within and productive of the communities that rely on commons. The two cannot be neatly separated, spatially, temporally or analytically.

My research has been on the Scottish inshore Nephrops norvegicus fishery, which is the largest fishery in Scotland in terms of landings and number of boats. Nephrops are also known as Norwegian lobster or prawns and are the main species marketed as scampi or langoustines. They are fished both by creel and by trawl net, although the creel fishery produces a higher value, live product. Skipper-owned boats, operated out of small ports on a daily basis, dominate the fishery.

The west coast is a mixed fishery with creelers (pots on the sea bed) and trawlers (nets towed across the sea bed) sharing the same fishing grounds. One community on the west coast has banned all trawl gear from its fishing grounds and operates a formal (although not legally binding) scheme to limit the number of creels fished per day per boat. They are an unusual case because the UK government sets and distributes prawn quotas, leaving limited opportunities for fishers to make their own rules for managing fish catches. The situation is rapidly changing as the government implemented inshore fisheries groups in 2009 to decentralize management. How much authority they have, however, is still quite restricted. It is in this context that I want to explore the “(non)rational commons.”

Design Principles and the (Non)rational

Much of the work done on the commons has centered on the institutions that make collective management of shared resources viable. Institutions (rules and norms) are vital to limiting and monitoring resource extraction. Yet I want to focus on the dynamics of institutions, the everyday practices through which institutions come into being and are reproduced over time and space. In particular, I want to add in a consideration of subjectivities, including gender, race, class and even identities such as “fishermen,” which I suggest are equally important to how a common-pool resource is managed. When we take into consideration alternative rationalities, then the reasons that some well-designed institutions fail becomes clearer. It is the ongoing enactment of institutions as well as their underlying rules and norms that are crucial to outcomes.

Subjectivities are important to the operation of institutions as they are integrally bound up with how people understand their relationship to others. In a fisheries context, I focus on the practices and interactions that are required for one to be considered a “fisherman” and the contradictory ways in which these interactions both promote and frustrate attempts at collaboration.

For example, when I tell inshore fishermen I am interested in how they cooperate, they laugh and say they do not. And yet, when I have been on boats with them, there is an almost constant stream of communication as skippers radio others about the sea conditions, alert them to a strange boat in their waters, or warn trawlers they are too close to someone’s creel line. When I point this out, they readily agree that they cooperate in these ways. In fact, I think most would agree that they must cooperate in order to ensure their safety and that of their gear and catch. The question then becomes whether or not these forms of cooperation help to build a foundation for more formal collaboration.⁴

The types of relationships driving cooperation can be considered “rational” in certain respects. Taking account of community obligations, the need to preserve kinship relationships and an emotive attachment to the sea can be seen as “rational,” particularly over long time scales. Kinship relationships, for example, can be vital to supporting people during times of crisis and therefore are logically considered important to maintain. This kind of rationality, however, is not the kind of “rational fisherman” that rational choice theorists have in mind. I am therefore interested in challenging the dominant idea of the greedy fisherman by highlighting the alternative or “(non)rational” relations and commitments that underpin cooperation.

Subjectivity and Cooperation

I suggest that subjectivity is an important component of the “(non)rational” relations that underpin informal and formal modes of cooperation. Subjectivity is often conflated with identity, but the two concepts are different in important ways. Subjectivity refers to the ways in which people are brought into relations of power, or subjected, as well as how they resist them. Power is at the heart of social interactions; it is impossible to conceptualize relationships that are not bound by power in some way. Power can operate in the commons in many different forms, from gender, caste, and ethnicity inequalities within commons user-groups, to the relations between fisheries policy or policy makers and fishermen, to more subtle dimensions of power such as those that arise from differences in experience and knowledge of commons resources – all of which produce different subjectivities. These serve to position people engaged in the commons differently in relation to each other and in relation to the commons itself.

In fisheries, to be “a fisherman” requires that one goes to sea and catches fish. This relationship between the resource and subjectivity is crucial for how fishers see themselves and integrate certain attitudes and behaviors into other aspects of their lives, including formal institutions to manage the fishery.

Subjectivities are not necessarily negative; they are a consequence of the multidimensional aspects of power, making it difficult to think of power as simply unidirectional or even bidirectional. Power is what gives the subject the ability to act, and any resistance to a dominating power will always have some contradictory outcomes. In order to resist power, one has to first accept that they are subject to that power.

In Scottish fisheries, the subject “fisherman” is dependent upon a large web of economic, political and social relationships wherein fishing as an historical, cultural, technological and legal activity is defined and policed. If we consider the operation of power in this context, fishers cannot contest fishing regulations without first accepting that they are subject to those regulations. This power over them also provides the power to act in a variety of ways. Similarly, fishermen cannot make claims about protecting their fishing grounds without simultaneously reinforcing the idea that fishermen exploit their fishery and that the fishing grounds belong to someone.

In most thinking on the commons, power is either something which might derail an otherwise well functioning community, or as something contained in individuals that they can use to maximize their profits by overexploiting the shared resources in defiance of the rest of the users.

For example, even though overfishing or violating quotas is a familiar phenomenon, recently some Scottish fishers have been at the forefront of voluntary schemes to create sustainable fisheries. One is a scheme for white fish boats to report and actively avoid areas where large concentrations of young cod are found. Another is the case, mentioned above, where mobile gear was banned from a creel fishery. (This is rather unusual in that part of the fishing ground is “protected” by a military zone on one side, and that combined with the topography of the coast lines serves to demarcate a relatively clear “local fishing ground” that is clearly identifiable on a map.) About fifteen years ago fishers in this area became concerned over the decline in their fishery. They engaged in a variety of legal and somewhat more dubious tactics in what is known as the “trawl wars” to exclude mobile gear from their area. One of the most notorious incidents was the sinking of a caravan to interfere with the trawl gear. This was successful in deterring the trawlers but the culprit was identified because, as one informant told me, “they forgot to take off the licence plate, so that wasn’t so smart.”

The group succeeded in getting a partial ban in the fishing ground that excludes mobile gear and limits the number of creels fished per day, per boat. They also use escape hatches to allow the smaller prawns to leave the creel before it is lifted. These agreements are voluntary, but the exclusion of mobile gear has been legally confirmed, although not permanently. The exclusion has to be renewed regularly (roughly every ten years, but it changes with changes in Scottish fisheries policy). Because this has helped produce excellent fishing ground, “there are more boats, especially in the south end of the area that aren’t signed up [to our agreement] and aren’t complying. Especially Max [pseudonym]… is not a fisherman, he’s just a businessman.” My respondent explains why some fishers are committed to limiting the fishery and others are not by invoking the difference between “fishermen” who respect the local customs and seek to limit their fishing, and a “businessman” who simply wants to catch as much profit as possible. In another area, a creeler contrasted the “businessmen” who trawl, with creeling which he described as, “days you’re out there and you’re barely making a living but you’re at sea…It’s a way of being.” He went on to complain that the large trawlers do not spend money in the village and have no commitment to the community. Not only is the trawl catch more indiscriminate, but he suggests that their emotional attachments to the sea and the community are dissimilar, and as a result, they do not have the same commitments to try to manage the fishery sustainably. Both of these schemes are constructive, pro-active attempts to protect their fishery.

Neither scheme provides short-term financial returns for the fishers although most people involved believe and hope that longer term it will ensure the viability of the fishery. Under a rational choice framework, however, these schemes are considered highly irrational. They are not seen as advancing the best interests of individual fishers because they often result in fishers earning less money from their days at sea. But my point here is that these schemes only appear as “unusual” or “innovative” because of the dominant view (fostered by rational-choice theory itself!) that fishers are only interested in self-improvement or profits. Schemes to limit the fishery are all based on the assumption that fishers will try to catch as many fish as they can when they are out on the sea. Yet the everyday practices of fishers generally do not reflect these assumptions. This is largely because the identity of being a “fisherman” emerges from the act of going to sea and living in a web of kinship, community and peer relationships that are crucial to supporting fishing as an activity and as an industry. Significantly, this identity persists regardless of the institutional rules and to a certain extent regardless of dominant theoretical paradigms. Thus attention to alternative rationalities and identities is crucial to understanding how cooperation or noncooperation emerges – and therefore how a commons can function so effectively.

Fishing produces particular kinds of bodies and emotions that are not insignificant when it comes to trying to draw up management agreements. Men who are used to coping with dangerous and physically demanding environments, find it literally uncomfortable, physically and subjectively, to situate their bodies in a meeting room. In other words, this experience changes what it means to be a fisherman. This change is as much an embodied experience as it is a political and emotional one. A fisherman working on his boat, providing food and income for his family, is often in a relatively powerful position. I have met few fishers in Scotland who are not proud of their occupation. And yet, that changes to a very different kind of subjectivity when they find themselves the target of decommissioning schemes, blamed personally for degradation of their fishing grounds, or forced to interact with policymakers. The exercise of power changes in profound ways and they end up in a more defensive position relative to their occupational identity.

Conceptualizing power and subjectivity in this way brings into focus the kinds of relationships and practices that shape how cooperation occurs within the commons, many of which are not “rational” as narrowly defined by rational choice theory.⁵ Every relationship linked to the commons – from that between policymakers and resource users, to internal user-group dynamics, to those between resource users and the larger community – contain the possibility for power to produce either a resistant, uncooperative subject or a variety of subjectivities that are more conducive to working collectively.

The spaces within which these interactions occur are also important in shaping power and relationships. Therefore, we need to shift the focus in commons work from institutional design (rules and norms) to the everyday spaces, experiences and practices wherein commons management occurs. It is those elements that shape whether management rules are accepted, who accepts them, who polices them and the kinds of social and environmental transformations they produce.

Working the Sea: Everyday Practices and the Operation of Power

This discussion, however, still seems remote from the pitching fishing boats and smelly piers wherein fishers spend most of their time. I think that attention needs to be paid to the embodied experiences of fishermen in the spaces wherein they interact: the pier, on boats, in meeting halls, and in the community.

In Scotland, the inshore fishery is often the lifeblood of small, coastal villages. Many places have few other job possibilities outside of tourism, which itself is dependent on selling the idealized “fishing village” image to guests. In response to a question about what had caused the biggest changes in her west coast community, an older woman said,

Well, mainly the fishing, the prawn fishing. Years ago now, I suppose ten or fifteen years ago, there weren’t that many boats out of here and most of the young ones were really going away from the place. But now a lot of the young ones are back… They are buying houses and they are building houses…

Fishing, then, is far more than an occupation. It is one of the activities that keeps the community viable and lively. As a result, fishers are embedded in a set of relationships that support fishing in symbolic and emotional ways, even if local people buy very little fish directly off the boats. Fishers do not financially gain from the community, but the relationships bind them together – which itself enacts an alternative rationality to profit maximization. The benefits of fishing flow from these relationships and from that particular place; they provide subconscious emotional support to fishers when they may not catch any fish. This kind of support is crucial to keeping fishers rooted in place and dissuades them from moving to more productive fishing grounds, as “rational” theory suggests they should.

As more “local” boats have appeared, many fishers are concerned that there are now too many fishers. Yet none of them suggests that people should be actively excluded. Rather they highlight the ways they cooperate, as one fisherman said,

Everyone is free to go where they want but I mean basically your [fishing ground] is marked and it’s…well, it’s more of a kind of gentleman’s agreement that you don’t go and shoot over the top of someone else’s creels…I mean it does happen…basically because people think maybe somebody else is getting something better but its generally put down to a mistake with tides…but if someone was blatantly doing it, moved in here and just plastered on top of everyone there would have to be something done that maybe you wouldn’t put down on paper. [laughter]

Here, the fisher suggests that the ability to exclude someone from your fishing ground is tied up in being a legitimate member of the community. He assumes that a blatant violator of the “gentlemen’s agreement” would be an outsider. Thus being a “fisherman” in a locally understood sense is also to be part of the community.

Another fisherman spoke about how it was unpleasant to have confrontations with people, indicating that relationships are often more important than the catch. In localities where two communities’ fishing grounds overlapped, they actively tried to avoid fishing in areas that might cause conflict. People aren’t willing to risk causing an altercation just to catch a few more prawns.

These “fishermen” are very different from the “fishermen” of fisheries policy. In many respects, they act “irrationally” in the face of competition in the fishery. One would expect fishers to try to exclude new boats or to capture as much catch as they can individually, even if it meant conflict with people they do not know. While certainly the local men involved in the fishery compete with each other in a variety of ways, they are also highly valued because of the jobs and prosperity they bring into the village. They need to live up to their reputations and feel bound by certain local etiquettes that supersede some of the more blatant forms of self-interested behavior. When I speculated on some of these ideas to a fisherman’s wife she immediately broke in, “They don’t have a choice. I don’t even think it’s conscious; they have to be a part of things here. It’s part of who they are. It’s how we do things here.”⁶

Similarly, in two other west coast fisheries, the creelers know that they would have bigger and more prolific prawns if trawlers were banned from their fishing grounds. But they are acutely aware that the fishing ground has to be shared and are against trying to ban the trawlers altogether. In one place, the brother of a successful creeler is physically disabled and while he can run a trawl boat, he would be physically unable to creel. Everyone agrees that he needs to have an opportunity to fish, too. It is also common for fishers to trade in their creels for a trawler when they get older and find the physical demands of creeling to be too difficult. It is these kinds of community obligations and alternative rationalities that make all fishers in those particular areas committed to a mixed gear (creel and trawl) fishery.

Interestingly, this commitment is rapidly changing as fuel prices increase and more trawlers are converting to creeling which uses significantly less fuel. The creel fishermen also federated in late 2012 and their organization is trying to provide an alternative lobbying voice to that of the trawlers. It is also promoting creeling as a clear commitment to conservation of the fishery for the short and long term. For example, the federation issued a public statement embracing the new marine-protected areas along the Scottish coast as a welcome development in marine spatial planning. Some of these areas will allow limited fishing while others will exclude fishers entirely. The trawl-dominated federations have been adamantly against marine protected areas.

Clearly, such relations of power can also lead to noncompliance and defiance of peer pressures to be a “good community (or federation) member.” Many fishing communities have at least one such person, and indeed, at one of my field sites I was told to stay away from one man because he is considered dangerous. Yet for the vast majority of the fishers I have worked with, they are consciously and unconsciously bound within relations that make them unwilling to resist the subject “good community member.”

Fishing in Scotland is very much a masculine activity, with the work and time demands deemed inappropriate for women raising children. With a few exceptions, women (wives) do most of the paperwork and onshore fisheries-related activities but rarely go on the boats themselves. This is important because the kinds of conflicts that emerge are linked to ideas of how men should behave in a west coast fishing village. One woman vividly described for me the priorities of the men in her village: “Oh, you know these West Highland men, it’s work, pub, wife.” She held her hands up in front of her and placed “work” right in front, “pub” right next to it, and then stretched her arms all the way to the side and placed “wife” there. She continued, “I’m sure in their heads they think it’s the opposite but it isn’t.” [laughter] The notion that “good men” work hard is emphasized along with the idea that men’s and women’s places are very different. Very few women hang out in the pubs. Maintaining your reputation, providing for your family, working hard and drinking in the pub are key ways in which males become “men,” and through their activities on the sea, become “fishermen.”⁷

What makes it so difficult to understand the relationships I’ve described is that attempting to identify patterns or to associate identities with particular motivations is inappropriate. Community obligations can just as easily lead to a ban on mobile gear as it can to a mixed gear fishery – as is the case in different places on the Scottish west coast. It is important to recognize that relationships are complex, contingent and changeable. If the commons is not successful, it is more likely due to problems with these relationships than it is with the institutional design. Therefore I propose the (non)rational commons, one which takes account of how power operates in the fishery, including the kinds of relationships I’ve described here.

Meetings, Emotion and Subjectivity

In order to understand more fully the relationships relevant for cooperation in the fishery, it is also necessary to consider the meeting room. A variety of meetings occur in relation to fisheries, ranging from informal chats on the pier between skippers and other users of the sea such as tourist boat operators or port authorities, to policy meetings in Edinburgh and Brussels attended by fishers’ representatives, policymakers and scientists. The shift from their boats to the meeting room subjects fishermen in radically different ways. Here I focus on the consultation meetings that usually involve policymakers and fisheries regulators with fishermen, fishermen’s advocates, and occasionally other stakeholders such as environmental groups or local development authorities. Most often, these meetings are held in larger west coast towns or areas central to the dispersed fishing villages.

In the interviews many fishers expressed a much stronger emotion and pragmatic connection with their resources than with policy meetings. One fisherman put it poignantly, “People sitting in their office, they are not even affected by the rain.” Another said, “They are so divorced from what it’s about. We have a lot of conversations about what it’s about to live here. We are surrounded by greens and blues [i.e., nature], [policy makers] coming from the city, they don’t have that, they do not understand what that means.”⁸” These men insist that managers do not understand the realities of the act of fishing and living in a remote coastal village, and this is seen by them as a major problem for collective solutions. In other words, the fishermen and the policymakers inhabit very different relationships with the resource and this is crucial for how relations of power are exercised.

The meeting room itself produces a very different subjectivity among fishermen than time on the boat. They are clear that the meeting room is not their place. One man said, “It’s the difference between standing on the landing and jumping in the sea.” Another said, “One’s real and the other is not. Well yeah, I’m happier for one [on the boat].” Equally importantly, many fishermen pointed out that policy makers are paid to attend meetings whereas they are not. Instead, they take time away from their boats or other activities in order to have their voices heard. The space of the meeting room itself produces particular kinds of subjects for both the fishermen and policymakers that sets them literally, on opposite sides of the room.

The fishermen are well aware of these relations and how the assumptions of fisheries regulators shape meeting dynamics. One man said about a recent meeting, “The guys come with their preconceptions, it’s almost like here we go again. We threw them a surprise [when we started talking about limiting the creel fishery in addition to banning trawling]. Someone talking about their own sector, they didn’t expect that.”⁹ Another man said, “You explain your point of view but they don’t want to hear it. They’ve made up their mind before they go in the meeting.”

These preconceptions emerge from the normative practices of fishing. Policymakers base their policies and their meeting agendas on ideas of “rational fishermen,” who by definition need to be policed and regulated. By this reckoning, the creel fishermen I have described here shift from being family providers, bound by “gentlemen’s agreements” and subjected by the “community,”to being an overexploiter of the sea who needs to be told about proper fisheries management. This shift in subjectivity is central to why there is so much antagonism between fishermen and policymakers.

Alternative rationalities or the “nonrational” are therefore key components of commons management. The relationships and places within which fishers interact are important components of their subjectivities, which in turn is integral to how power is exercised. My work suggests that these kinds of relations of power are central to whether fishers bond together to cooperate (sometimes to manage the fishery, sometimes to protest against rules) or fiercely resist any kind of collective action.

These embodied interactions create openings and close down others for particular kinds of cooperation. What emerges is an important difference between “managing a common-pool resource” as fisheries policy schemes try to do, and the “gentlemen’s agreements” that emerge out of community commitments and obligations I have described here. While the Scottish case shows that such gentlemen’s agreements are vulnerable to noncompliance and even to lack of support from state regulatory structures, they also point to the tremendous possibilities that arise when people bring their commitments to “commoning” into their everyday lives. Or as Silke Helfrich puts it, “If you consider yourself a commoner and if you realize and reflect upon what you’re doing in terms of commoning, then it’s likely to be a successful commons.” Emotional attachments to land and seascape and community subjectivities can help to foster such consciousness.

Patterns of Commoning, edited by Silke Helfrich and David Bollier, is being serialized in the P2P Foundation blog. Visit the Patterns of Commoning and Commons Strategies Group websites for more resources.

Andrea J. Nightingale (Sweden) is a Geographer by training and presently Chair of Rural Development in the Global South at the Swedish University of Agricultural Sciences (SLU) in Uppsala, Sweden. Her current research interests include climate change adaptation and transformation debates; public authority, collective action and state formation; and feminist work on emotion and subjectivity in relation to theories of development, collective action and cooperation. She previously worked at the School of Global Studies, University of Gothenburg, Sweden and the University of Edinburgh, Geography, School of GeoSciences, Scotland.

I would like to give a special thanks to the people on the west coast who contributed their time, thoughts and patience to my project. They have shown a generosity in working with me that helped me to better understand the importance of the “community obligations” I discuss. I would also like to thank David Donan, Jim Atkinson, Jim Watson and Hamish Mair for discussions on the policy context and pressures facing the fishery and being open to thinking about the social science aspects of the science they do.

Photo by Chris Golightly

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