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’.

Two days of hearing for the Paraninihi ki Waitotara Incorporation (PKW) claim regarding changes to the dairy industry were held on 12 and 13 November 2001. The Tribunal's report was released before Christmas 2001.

The claim had four separate aspects to it. The Tribunal did not uphold the the first three points of claim. The Tribunal did not agree that the creation of Fonterra would necessarily cause the relative value of PKW's unimproved land to decrease; did not agree that the rental income from PKW's land necessarily would be of less value; and did not agree that the relative cost of exercising the right of first refusal to buy out perpetual leases would necessarily increase.

However, the Tribunal did uphold the fourth point of claim – that the cost of entering the dairy industry has increased – and recommended that the Government should guarantee a loan to enable PKW to purchase shares to supply Fonterra, so that PKW would be able to enter the dairy industry in an equitable manner.

The Tribunal found this was particularly necessary because the Crown had ignored repeated recommendations from various inquiries and commissions since the confiscation of Taranaki land to provide remedies for the problems created by confiscation, and by the subsequent establishment of perpetual leases of returned lands. The Tribunal considered that the failure to provide such remedies created an even more compelling need for the Crown to do so urgently: 'we regard the wilful and repeated turning of the Crown's face from its Treaty obligations and breaches as a further breach in itself'.

The Tribunal considered that the Crown should have at the very least acted immediately on the recommendations of the Tribunal's 1991 Ngai Tahu Report regarding perpetual leasing and the Māori Reserved Land Act 1955:

having ignored the [1975] Sheehan report, the Crown should, at the very least, have given the matter urgent attention and provided a fulsome remedy when the implications of the finding of the ‘Ngai Tahu Report’ were apparent, and had the strong words in the 1987 judgment of the Court of Appeal been taken to heart.

Claim Wai 789, the Mokai Primary School claim, was brought by Mohi Osborne and Te Aroha Adams and concerned the closure of a sole-charge primary school at Mokai in October 1999.

The claimants alleged that, by closing Mokai Primary School, the Crown failed to protect the tino rangatiratanga and taonga of the hapu of Mokai, and so did not meet its Treaty responsibilities. The school, it was said, was a significant vehicle for the retention and transmission of 'local identity and autonomy - Mokaitanga'. Koti Te Hiko said:

I believe that if we are to retain the ahi ka of Mokaitanga then we need to educate our tamariki here in Mokai. Te ahi ka is within us when we are born but it must be nurtured within Mokai for it to survive. As the future kaumatua and kuia of Mokai the tamariki must walk alongside their parents and grandparents to learn the ways and responsibilities of the people. With the marae being so close there is a natural flow and interaction between what we sometimes call the triangle, this being the marae, the Mokai village and the school.

Mere Wall told the Tribunal that:

This isn't really just about education. This is about who we are. Our identity. This is about our whole being, our wairua, our tinana, our tikanga, our kawa … And it is time for us to stand up, as we are doing, and reclaim that … It comes from an inbuiltness to strive and to fight for who we are. You take away a man's identity, he has no face. You move these tamariki out of Mokai, they have no face. They are faceless out in the world. You keep them here, you give them solid roots and solid foundations, ae they go out to the world and they can face them with a face. So that when people ask them, ‘Ko wai koe?’ ‘Ae ko au,’ and [they] say who they are with pride and with dignity.

The Tribunal constituted to hear the claim was comprised of Joanne Morris (presiding), John Baird, Areta Koopu, and Rangitihi Tahuparae. Urgency was granted, and hearings were held in November 1999 and January 2000. The Tribunal presented its report to the Minister of Māori Affairs and the claimants on 31 March 2000:

Our analysis of the evidence and submissions presented in the claim leads to the conclusion that, despite the Crown's commitment to the goal of improving the education of Māori children, its closure of Mokai Primary School was not undertaken consistently with the principles of the Treaty of Waitangi. In brief, the "good governance" that is required of the Crown, and that is demonstrated by its attention to protecting taonga and enhancing tino rangatiratanga by reasonable means, was not evident in the chain of events that culminated in the school's closure.

The Tribunal recommended that the school be reopened with more intensive support from the Crown than was available in the past. It also recommended that the Crown clarify its policies and processes for intervening (by closure or other means) in the governance of schools in difficulty:

Although the claim concerned one small primary school that was serving a rural Māori community, we consider that the Treaty arguments and evidence submitted to us, and our analysis of them, raise larger questions about the responsiveness to Māori interests of contemporary Crown education policies.

The Ngāti Maniapoto/Ngāti Tama Cross-Claims Settlement Report (2001) is a report on two Ngāti Maniapoto claims (Wai 788 and Wai 800) about the proposed settlement of Ngāti Tama’s historical Treaty claims relating to Taranaki. An urgent hearing to consider these claims was held in Wellington from 26 to 28 February 2001 by a Tribunal consisting of Judge Carrie Wainwright (presiding), the Honourable Dr Michael Bassett, and Professor Wharehuia Milroy.

Wai 788 was lodged in July 1999 by Atiria Takiari and others, while Wai 800 was submitted by Harold Maniapoto and Roy Haar in November 1999. The two sets of claimants worked together, Wai 788 representing Ngāti Maniapoto hapu of the Mokau region and Wai 800 representing wider Ngāti Maniapoto interests. These claims were prompted by settlement negotiations between Ngāti Tama and the Crown, which in turn were a response to the Tribunal’s Taranaki Report. As a result of these negotiations, a heads of agreement for a proposed settlement of Ngāti Tama’s claims was signed in September 1999. This agreement proposed, among other things, to transfer various properties to Ngāti Tama and to provide other forms of recognition of Ngāti Tama’s interests in the north Taranaki–Mokau area.

The Ngāti Maniapoto claimants stated that they had interests in part of the area covered by the Ngāti Tama settlement, and that they would be prejudiced by the provision of redress to Ngāti Tama within that area before Ngāti Maniapoto’s claims had been heard by the Tribunal, or before Ngāti Maniapoto had entered into settlement negotiations with the Crown for its Treaty claims.

In evidence to the Tribunal, the Crown submitted details of revisions to the Ngāti Tama settlement which had been agreed to by Ngāti Tama and the Crown. The Tribunal considered that, by revising the settlement and by giving a number of undertakings intended to allay Ngāti Maniapoto’s concerns about the possible effects of this settlement on their interests, the Crown had conscientiously endeavoured to meet its obligations as a Treaty partner to both Ngāti Tama and Ngāti Maniapoto. The Tribunal noted:

There are serious precedent implications arising from the Wai 788 and Wai 800 claims. If the Tribunal were to take the view that the Crown ought not to deliver redress to any claimant where there are overlapping or cross-claims, the repercussions for the Crown’s settlement policy would be very serious. It would thwart the desire on the part of both the Crown and Māori claimants to achieve closure in respect of their historical Treaty grievances. Indefinite delay to the conclusion of Treaty settlements all around the country is an outcome that this Tribunal seeks to avoid.

The Tribunal made clear that Crown has a responsibility to ensure that negative inferences about Ngāti Maniapoto’s interests are not drawn from the Crown’s recognition of Ngāti Tama’s interests in the settlement. In the Tribunal’s view, the Crown had taken, or had promised to take, appropriate steps to meet this responsibility. The Tribunal was also convinced that, if the revised settlement with Ngāti Tama were to go ahead, the Crown would retain the capacity to provide adequate and appropriate redress to Ngāti Maniapoto when its settlement came to be negotiated.

For these reasons, the Tribunal found that the Crown would not breach Treaty principles by going ahead with the Ngāti Tama settlement on the basis of the revised settlement package. It also made a recommendation in relation to one particular site, Te Kawau Pā, which is on the coast south of Mokau. This site was originally to have been vested in Ngāti Tama as part of its settlement, but the Crown subsequently recognised that, because both Ngāti Tama and Ngāti Maniapoto had strong interests in the site, it would be inappropriate to vest title exclusively in either group. The Tribunal recommended that the status of Te Kawau Pā should remain unchanged for the time being, but that the Crown should take an active role in trying to find a way of recognising the interests of both parties:

We further recommend that the Crown facilitate hui involving Ngāti Maniapoto and Ngāti Tama to discuss the future management and ownership of Te Kawau Pā. If no agreement about the future ownership and management of this site results from such hui, we recommend that the matter be reconsidered when Ngāti Maniapoto negotiate their settlement with the Crown, at which time another attempt should be made to find a way of recognising the interests of both Ngāti Tama and Ngāti Maniapoto in the site, and of including both groups in its ownership and management.

The Waitangi Tribunal released its second preliminary report on Te Tau Ihu customary rights on 3 September 2007. This report follows an earlier preliminary report released in March 2007. The Tribunal has prepared these reports to assist claimants and the Crown with their negotiations by providing early findings on customary rights and their treatment by the Crown. The Tribunal’s main Te Tau Ihu report will address the remaining issues in the Northern South Island inquiry.

The Tribunal panel comprises Judge Wilson Isaac (presiding officer), Rangitihi Tahuparae, John Clarke, Professor Keith Sorrenson, and Pam Ringwood.

Their second preliminary report concerns the customary rights of Te Tau Ihu iwi in the area defined by Te Runanga o Ngai Tahu Act 1996 as the Ngai Tahu takiwa. The Tribunal found that the six Te Tau Ihu iwi that advanced claims with respect to the takiwa – Ngati Apa, Rangitane, Ngati Toa Rangatira, Ngati Rarua, Ngati Tama, and Te Atiawa – had valid customary rights in the takiwa, overlapping the acknowledged rights of Ngai Tahu.

On the east coast, the Tribunal found that Rangitane, Ngati Toa, and Ngai Tahu had legitimate overlapping customary rights in the area between Parinui-o-whiti and Waiau-toa. On the West Coast, the Tribunal found that Ngati Rarua, Ngati Tama, Te Atiawa, Ngati Toa, Ngati Apa, and Ngai Tahu had legitimate overlapping customary rights between Kawatiri and Kahurangi. The rights varied, depending on the iwi, but none of the rights had been extinguished prior to Crown purchasing from 1847.

The Tribunal found that the rights of all these iwi were protected and guaranteed by the Treaty. Notwithstanding this, the Crown extinguished the vast majority of these interests in a series of purchases between 1847 and 1860 without determining the correct right-holders or obtaining their full and free consent.

In 1847, the Tribunal found, the Government extorted the Wairau block from three chiefs in Wellington, thus disenfranchising all other Ngati Toa, Ngati Rarua, and Rangitane people. Then, in 1853, the Government arranged a cession of all Ngati Toa’s interests in the South Island by an unfair manipulation. From 1854 to 1856, it used this cession (the Waipounamu purchase) to obtain the interests of all the other Te Tau Ihu tribes without their free and full consent. These actions, the Tribunal concluded, were in plain breach of the Treaty and its principles.

The Tribunal found that Ngai Tahu’s interests in the northern part of the takiwa were also extinguished through a series of blanket purchases from 1848, concluding with the Kaikoura purchase (1859) on the east coast and the Arahura purchase (1860) on the west. In the Kaikoura transaction, the Crown neither inquired into nor considered Ngati Toa or Rangitane rights. Ngati Toa’s interests in the northern part of the takiwa had been inadequately acknowledged in the Wairau purchase and were not reconsidered in the Kaikoura transaction. The Crown had altogether failed either to inquire into or to consider Rangitane’s interests on this part of the coast and these interests were unfairly extinguished through the Kaikoura purchase, in breach of the Treaty and its principles.

On the West Coast, the Tribunal considered that the rights of Ngati Toa, Ngati Rarua, Ngati Tama, and Te Atiawa had been inadequately acknowledged in the Waipounamu purchase and were not reconsidered during the negotiations for Arahura. The Crown had never inquired into Ngati Apa’s customary rights and once more failed to do so in the Arahura transaction. Ngati Apa were only belatedly considered, and the Government made no inquiry into the extent of their interests. This limited and belated acknowledgement precluded Ngati Apa’s informed consent and was, in the opinion of the Tribunal, in breach of the Treaty and its principles.

The Tribunal further considered that these historical breaches against Te Tau Ihu iwi continued into the twentieth century when the Crown chose to deal exclusively with Ngai Tahu in the Ngai Tahu takiwa, at the expense of Te Tau Ihu iwi who also had legitimate rights in the area. On the basis of a Maori Appellate Court finding in 1990 that Ngai Tahu had sole rights of ownership in the Kaikoura and Arahura blocks at the time of the sale to the Crown, the Government has since dealt exclusively with Ngai Tahu.

The boundaries of the takiwa were statutorily defined in Te Runanga o Ngai Tahu Act 1996 and the Ngai Tahu Claims Settlement Act 1998.The Tribunal pointed out that there is nothing in this legislation that prevents the Government from considering Te Tau Ihu iwi interests within the takiwa. The legislation is not in itself in breach of the Treaty, rather the breach lies in the way in which the Government has interpreted it. Te Tau Ihu iwi interests were ignored during the negotiation and settlement of the Ngai Tahu claim. The Tribunal concluded that the Crown had failed to consult adequately with Te Tau Ihu iwi during this process and assets that could potentially have been included in future settlement with Te Tau Ihu iwi were vested in the sole ownership of Ngai Tahu. This exclusive treatment had continued since the settlement, to the detriment of Te Tau Ihu iwi.