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The Report on the Management of the Petroleum Resource is the Waitangi Tribunal’s second report on petroleum claims and results from an urgent inquiry held in 2010 to investigate the management of the resource in modern times. It forms the sequel to the Tribunal’s first report published in 2003, which considered the ownership of the petroleum resource. The Tribunal, consisting of Judge Layne Harvey (presiding), Joanne Morris, Basil Morrison, and Professor Pou Temara, heard the claims at Aotearoa Pa, Okaiawa, from 26 to 29 April 2010, and the closing submissions at the Wellington District Court on 6 May. The report was released on 20 April 2011.

The claims considered in the report were brought against the Crown by Ngāruahine of Taranaki and by Ngāti Kahungunu of Hawke’s Bay and the Wairarapa. Taranaki has already been extensively affected by petroleum prospecting, exploration, and production, and exploratory drilling has also been carried out in Hawke’s Bay and the Wairarapa. The current regime for managing petroleum is governed by the Crown Minerals Act and the Resource Management Act, both of 1991. In essence, the claimants saw three main problems with the regime. They said that the substance of the legislation was biased against Māori and favoured the interests of others. They claimed further that the processes established to apply the legislation failed to ensure effective participation by Māori. Indeed, the processes in question might even deter or deny Māori involvement, meaning that Māori struggle to safeguard their interests. Lastly, said the claimants, a further obstacle was created by the lack of reliable and sufficient assistance for Māori communities to participate in resource management processes. As a result, the claimants said, the regime breached the principles of the Treaty of Waitangi.

In the course of the inquiry, the Crown accepted that Māori capacity to participate in resource management processes was an issue but said that ‘incremental steps’ were being taken to improve the situation. Other than that, the Crown denied the claims.

Having examined the evidence presented, the Tribunal said that it was ‘disturbed by the extent to which the current regime depends for its protection of Māori interests on the ad hoc involvement of Māori individuals and groups who are ill-resourced to bear the burdens involved’. The Tribunal was particularly concerned about the effects of the regime on sites of historical and cultural significance in Taranaki, given the already devastating effects of land confiscation there in the nineteenth century. The Tribunal noted that many of the sites were not only significant to Māori but had a bearing on the history and identity of New Zealand as a whole.

For the petroleum management regime to meet the standards of the Treaty, the Tribunal found that four criteria needed to be met. Tangata whenua must be able to:

• count on being involved at key points in decision-making processes that affect their interests;
• make a well-informed contribution to decisions;
• afford to have that level of involvement; and
• be confident that their contribution will be understood and valued.

The Tribunal found that, overall, this was not happening. In part, this was because the rūnanga or iwi authorities envisaged under the Runanga Iwi Act 1990, and intended to act as a kind of Māori counterpart to local government bodies, were disestablished when that Act was repealed less than a year after it was passed. Another problem was the complexity of the petroleum management regime, and the number of local government processes in which Māori were required to engage simultaneously if they wished to try to protect their interests. To help address the situation, the Tribunal made 11 recommendations covering matters such as:

• The establishment of a ministerial advisory committee to provide advice directly to the Minister of Energy on Māori perspectives and concerns.
• The re-establishment of district and regional representative bodies for tangata whenua, for the purpose, among other things, of considering petroleum management issues. Such bodies should be adequately resourced by central government and empowered with some decision-making responsibilities by local government.
• The use of a small percentage of the Crown’s petroleum royalties to establish a fund to which iwi and hapū could apply for assistance to help them participate more effectively in petroleum management processes.
• Greater use of joint hearings by local authorities on matters relating to petroleum management.
• Reform of the Crown Minerals Act, including strengthening the Treaty provisions, amending the compulsory arbitration requirements, and enhancing the provisions for site protection.

In closing, the Tribunal noted that its findings on the petroleum management regime had implications for the resource management regime more generally, and it hoped that its recommendations might also be of assistance to the Crown in that broader context.

The Petroleum Report is the outcome of an urgent hearing held in Wellington over four days from 16 to 19 October 2000. In the report the Tribunal, consisting of Chief Judge Joe Williams (presiding), John Baird, John Clarke, and Joanne Morris, addresses claims by Nga Hapu o Nga Ruahine of Taranaki and Ngati Kahungunu of Hawke’s Bay and Wairarapa in relation to their interests in the petroleum resource.

The report was written under urgency owing to the Government’s intention to sell the Crown’s interests in the Kupe licence. Because of that situation, the Tribunal reported in two stages. Part 2 of the report dealt with the regulatory framework and management regime since 1937.

At the hearing, it was common ground between the claimants and the Crown that, before 1937, land ownership carried with it legal rights to the petroleum in the land. However, the claimants argued that in the nineteenth century, and up to 1937, the Crown was implicated in many breaches of the Treaty whereby they lost most of their land and the petroleum that went with it. Then, in the Petroleum Act 1937, the Crown nationalised the petroleum resource, without paying compensation to landowners, and without making provision for the ongoing payment of royalties to them. This, the claimants said, was a further breach of the Treaty.

The question before the Tribunal was whether, if Maori no longer have any subsisting legal ownership in the petroleum resource, an interest of any other kind remains. The inquiry led the Tribunal to conclude that the expropriation of the pre-existing Maori rights to petroleum arose from a context riddled with breaches of the Treaty. The situation in Taranaki, for example, where most of the land was confiscated, is well known. The Tribunal reached the view that, where legal rights to an important and valuable resource are lost or extinguished as a direct result of a Treaty breach, an interest of another kind is generated. The Tribunal called this a ‘Treaty interest’.

When a Treaty interest arises, there will be a right to a remedy, and a corresponding obligation on the Crown to negotiate redress for the wrongful loss of the legal right. Importantly, the Treaty interest creates entitlement to a remedy for that loss additional to any other entitlement to redress.

In relation to the loss of the petroleum resource under circumstances that breach the Treaty, the Tribunal considered that separate redress was due to Māori. By ‘separate’, the Tribunal meant additional to that made for historical land loss grievances, and relating to the loss of rights in the petroleum resource.

The Tribunal considered that the claimants in these claims had a subsisting Treaty interest in the petroleum resource and that they were accordingly entitled to redress beyond that to which their historical land loss grievances entitled them.

Finally, the Tribunal examined the reasoning underlying the Crown’s view that petroleum assets ought to be excluded from settlements. The Tribunal concluded that this exclusion was in breach of the principles of the Treaty of Waitangi and that the Crown’s remaining petroleum assets ought to be on the table in any settlement negotiations with affected claimants. The Tribunal’s conclusion in this regard had general application but applied with particular force in the case of Taranaki.

The Tribunal concluded by recommending that the Crown negotiate with affected Maori groups for the settlement of petroleum grievances and that it withhold the Kupe petroleum mining licence from sale until either a rational policy had been developed to safeguard Maori interests or the petroleum claims had been settled.

Heoi ano enei whakaaro o matou mo te kaupapa i whakatakotoria ki mua i to matou aroaro. E tautoko ana i tera rerenga korero kua whakawharikitia ki roto ki nga mahi a te Karauna mo nga kereme. Ko matou kei muri, ko te Karauna me te iwi Maori kei mua - ‘Ka tika a muri, ka tika a mua’.

The Waitangi Tribunal’s report on Treaty claims around the Turanga (Gisborne) area was formally handed to claimants at Whakato Marae on 30 October 2004.

The Tribunal has ruled that the Crown repeatedly disregarded its own laws in its treatment of Maori from the Turanga area in the nineteenth century. In particular, it found that the execution of unarmed prisoners at Ngatapa Pa in 1868 was one of the worst abuses of law and human rights in New Zealand’s colonial history.

Significantly, it ruled that Maori also breached the Treaty during this period and that there was no justification for the murder of Pakeha settlers and other Maori in the Turanga area by Te Kooti and his followers.

This was the first report to be released under the Tribunal’s ‘new approach’, which heralded a faster approach to the hearing of, and reporting on, historical claims. This approach produced a report in four and a half years – from the first judicial conference held with claimant groups, their lawyers, and the Crown to discuss how the new approach would work practically in Gisborne, through to hearings, and then the writing, editing, and release of the report . This is roughly half the time it has taken in comparable districts using the standard inquiry process. The Tribunal says the two-volume report is the result of an unprecedented degree of cooperation both among the various claimant groups, and between claimants and the Crown.

In Turanga Tangata Turanga Whenua, the Tribunal found that the Crown breached the principles of the Treaty of Waitangi by: attacking a defensive pa at Waerenga a Hika in November 1865; deporting and detaining 123 prisoners on Wharekauri (the Chatham Islands) without charge or trial; executing between 86 and 128 unarmed prisoners at Ngatapa Pa in 1868, again without charge or trial; extracting the cession of 1.195 million acres under duress; and by confiscating, without legal authority, the property rights of hundreds of Turanga Maori ‘alleged’ to be rebels.

Significantly, the Tribunal also found that Te Kooti and his followers breached their own responsibilities as citizens and Treaty partners, when they murdered between 50 and 70 Maori and Pakeha at the settlements of Matawhero, Oweta and Patutahi. Even though the Whakarau (as Te Kooti’s followers were called) were greatly provoked by Crown action, the Tribunal found that ‘the Treaty of Waitangi continued to speak for reasonableness, moderation and an ethical response’.

The report details significant moments from Gisborne’s past. Turanga, as it was then called, was a fully autonomous district until 1865. That autonomy was broken when the Crown laid siege to the defensive pa at Waerenga a Hika, killing 71 defenders in the process. The Tribunal found that the Crown may only turn its guns on its own citizens if they are in rebellion. This, it said, was not the case in Turanga.

Following the surrender of the pa, the Crown imprisoned 113 men and transported them to the Wharekauri (the Chatham Islands). The Tribunal found that since the prisoners never faced charges, and were never convicted of any offence, their imprisonment was unlawful and in breach of the Treaty.

Te Kooti and nearly 300 men, women, and children escaped from Wharekauri. The Whakarau landed at Whareongaonga, south of the Bay of Plenty. Colonial forces tried to re-arrest them, and failed. Te Kooti sought safe passage from Tuhoe and sanctuary from King Tawhiao. When denied both, he attacked the Turanga settlements of Patutahi, Matawhero, and Oweta. Between 50 and 70 Pakeha and Maori were killed by the attackers. The Whakarau retreated to Ngatapa Pa in the interior, where they were besieged by colonial forces. The pa surrendered four days later. Between 86 and 128 unarmed prisoners were executed.

The Tribunal found that there was no justification for the murder of between 50 and 70 settlers and Maori in Turanga:

The Whakarau were entitled to defend themselves against Crown actions which were illegal and in breach of Treaty principle, but they breached their own responsibilities as citizens and Treaty partners in attacking and killing or forcibly detaining unarmed civilian targets.

The Crown was entitled to pursue and punish the perpetrators to the full extent of the law. But the Treaty was breached when Crown forces executed without trial, this large group of unarmed prisoners. According to the Tribunal, the scale of systematic killing at Ngatapa represents one of the worst abuses of law and human rights in New Zealand’s colonial history. Certainly it was the worst ever perpetrated by the Crown. The Crown had to respect and uphold the rule of law. It had to comply with the standards it expected of its own citizens.

Following the attack on Matawhero, 279 Turanga Maori ceded 1.195 million acres to the Crown. The Tribunal found that the cession was made under duress – the Crown had threatened to remove its protection unless the entire district was ceded. This threat was in breach of the Treaty. Nor could the deed extinguish the rights of the majority of Turanga Maori who did not sign the cession at all, the Tribunal found. In 1869, the Poverty Bay Commission was established to punish ‘rebels’ by confiscating their lands, and to return land to ‘loyal’ Maori. The Tribunal found that the commission did not have the power to confiscate land. Nor did the commission comply with applicable nineteenth century standards for fair legal process.

The Native Land Court followed the Poverty Bay commission. The court commenced title investigations in Turanga in 1875, under the new Native Lands Act. The Tribunal found that although Turanga Maori saw the benefit of titles that had been ratified by the Crown; they wanted to make their own title decisions. They opposed the land court because it took that right from them. Alongside this, the Native Lands Act removed from Maori communities, the legal capacity to manage their lands collectively. This meant that the only way Maori could benefit from the new colonial economy was by the sale of individual shares, but the land sale process under the new Act was complex, expensive, and risky for both buyers and sellers. To compound matters the titles that Maori received remained in a form of customary tenure that was far less valuable in the new settler driven market. As a result, prices were significantly discounted. Taken together, these factors meant that Maori sold more land as individuals than they would have sold as a result of a community decision making process, and at far lower overall prices. The promised economic benefits which colonisation would bring to Maori were thus never realised in Turanga.

The Tribunal noted that the peoples of Gisborne have a rich and sometimes dramatic shared history. However, it expressed frustration at the lack of local education programmes to ensure local communities are aware of that history. That, it said, remains a primary obstacle to the process of reconciliation.

The Mangatū Remedies Report, released in June 2014, is the outcome of applications for remedies by four claimant groups from Tūranganui-a-Kiwa (Gisborne). These groups – the Mangatū Incorporation (Wai 1489), Te Aitanga a Māhaki and Affiliates (Wai 274 and Wai 283), Ngā Ariki Kaipūtahi (Wai 499, Wai 507, and Wai 874), and Te Whānau a Kai (Wai 892) – asked the Tribunal to use its potentially binding powers to require the Crown to return to them all or part of the Mangatū Crown forest licensed lands within the Tūranga inquiry district.

The Tribunal held its inquiry into the historical claims of Tūranga Māori between 2001 and 2002. In 2004, the Tribunal released Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa Claims. The Tribunal found that all of the iwi and hapū groups who had appeared before it had been prejudicially affected by wide-ranging Treaty breaches deriving from Crown conduct and policies in the nineteenth and twentieth centuries. The Tribunal noted especially the substantial loss of life and land suffered by Tūranga Māori.

The Mangatū Incorporation filed an application for an urgent remedies inquiry on 31 July 2008, seeking return of 8,522 acres of land in the Mangatū 1 block purchased by the Crown in 1961 for afforestation purposes. The Incorporation sought an urgent inquiry because an Agreement in Principle was expected to be signed by the Crown and Tūranga Māori in August 2008, the result of settlement negotiations that had commenced shortly after the release of the Tribunal’s Tūranga report. That agreement proposed the return of the Mangatū Crown forest licensed lands to the wider hapū grouping as commercial redress, including the land purchased from the Incorporation in 1961. The Incorporation, however, considered that the 1961 land should be returned to the Incorporation owners, and asked the Tribunal to use its binding powers to do so.

The Tribunal initially declined the Incorporation’s application for an urgent hearing. However, the Incorporation sought judicial review of the Tribunal’s decision and, on 19 May 2011, the Supreme Court directed the Tribunal to hear the Mangatū Incorporation remedies application urgently. Following this, the three other applicants – who represent the claims of hapū and iwi involved in the original Tūranga district inquiry – also lodged applications for binding recommendations.

The panel members for the Mangatū remedies hearing were Judge Stephanie Milroy (presiding officer), Tim Castle, Wharehuia Milroy, and Dr Ann Parsonson. Two weeks of hearings were held in Gisborne in June and October 2012. Closing submissions of the parties were heard in November 2012 in Wellington.

The Tribunal found that all four applicants had well-founded claims that were deserving of redress. However, the Tribunal did not consider that binding recommendations were appropriate in the circumstances and so declined to make the recommendations sought. In particular, it could not be certain that binding recommendations would provide redress proportionate to the prejudice suffered by the claimants. As a result, the Tribunal was unable to make recommendations that would be fair and equitable between the four groups. The Tribunal was concerned that redress which seemed to favour one group over others would risk creating fresh grievances, and might undermine the chances of achieving a durable Treaty settlement of the claims.

The Tribunal strongly urged all the applicants to reunite and return to settlement negotiations with the Crown. The Tribunal reiterated its preference that redress for well-founded claims should be negotiated with the Crown. In the report, the Tribunal said: ‘Any compromises that are made, and all settlements require compromises, should be made by the hapū and iwi involved – they are the ones with the mana and rangatiratanga to make such agreements, not the Tribunal.’ It emphasised that negotiations allow all parties much more flexibility than binding recommendations to develop a satisfactory settlement package.