Rapua ngā tuhinga ruku tātari

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’.