NZLII Home | Databases | WorldLII | Search | Feedback

New Zealand Yearbook of New Zealand Jurisprudence

You are here:  NZLII >> Databases >> New Zealand Yearbook of New Zealand Jurisprudence >> 2004 >> [2004] NZYbkNZJur 6

Database Search | Name Search | Recent Articles | Noteup | LawCite | Download | Help

Coxhead, Craig --- "Maori title to petroleum: The Waitangi Tribunal Petroleum report" [2004] NZYbkNZJur 6; (2004) 7 Yearbook of New Zealand Jurisprudence 66

Last Updated: 12 April 2015

Maori Title to Petroleum:
The Waitangi Tribunal Petroleum Report

Craig Coxhead*

On 19 May 2003 the Waitangi Tribunal (the Tribunal' released their report known as the Petroleum Report (the Report). Following the Report, Maori, government,3 industry and the general public are all asking 'where to from here?' The Report is significant in terms of the further development of Treaty jurisprudence with the advancement of a new 'Treaty interest'. The Report's findings and the basis for its findings follow a persuasive and sensible approach. It has been described as a `very balanced and fair discussion which covers the legal and historical issues thoroughly'.4 This article considers the Report with an examination of the Crown's reaction to the Report. It concludes with discussion of likely reaction Maori may consider following the Report.


The Report followed the inquiry into claims5 registered by Nga Hapu o Nga Ruahine of Taranaki and Ngati Kahungungu of the Hawke's Bay and Wairarapa relating to petroleum resources. In December 1999 Nga Hapu

BSocSc, LLB(Hons), LLM, is of the tribal groups of Ngati Makino, Ngati Pikiao, Ngati Awa and Ngati Maru. Craig is a Senior Lecturer at the School of Law, University of Waikato.

Established under the Treaty of Waitangi Act 1975. For further discussion see C T Coxhead, Where are the Negotiations in the Direct Negotiations of Treaty Settlements? [2002] WkoLawRw 2; (2002) 10 Wai L Rev 13.
2 Waitangi Tribunal, The Petroleum Report (Wellington: Legislation Direct, 2003).

3 For the purposes of this article, the words Crown and government will be used interchangeably, recognising that:

'[t]he Crown refers to the executive arm of Government and symbolises the historical authority of the sovereign as head of the state. While the Crown is a convenient way of referring to one party involved in the settlement negotiations, in practice there are a number of agencies and positions within the Crown that are significant in the Treaty settlement process'.

Office of Treaty Settlements <>.

Deborah Edmunds available <> viewed 14 Dec 2003.

  1. This refers to claims by Maori that they have been prejudicially affected by legislation, policies, acts or omissions of the Crown inconsistent with the principles of the Treaty of Waitangi.
  2. A number of other registered claims also had a watching brief in terms of the inquiry. These were: Ngati Rahiri, Wai 871; Rongomaiwahine, Wai 716; Te Pakakohi, Wai 99; Ngati Kahungungu, Wai 201 & Wai 506; and Ngati Ruanui me to Mum Raupatu Working Party.

o Nga Ruahine successfully applied for an urgent hearing. Urgency was granted given because:

(a) there was a conflict between Maori Treaty claims' to petroleum which the Tribunal had left open after considering the Taranaki Claims and the Crown's Treaty Settlement policy,9 which excludes petroleum resources as a means of redress. If the Crown were to conclude settlements of some of the Taranaki claims this would create an adverse precedent for other claimant groups; and
(a) there were indications that the Crown was about to divest itself of its 11 per cent non-contributory interest in the Kupe field offshore from Taranaki. If this was done, it would remove any chance that claimant groups could negotiate for that interest's use in Treaty settlements.

Urgency was also required in terms of the release of the Report itself after the Minister of Energy advised the Tribunal in early 2003 that the Crown was indeed intending to sell its interest in the Kupe licence. The Tribunal therefore reported the first part of the claims, with Part 2, dealing with the regulatory framework and management of the petroleum regime since 1937, to be issued as soon as the Tribunal can complete it.

While the findings of the Tribunal's Report are obviously significant, the procedures adopted by the Tribunal are also significant. The Tribunal engaged in an 'accelerated process' to move the claims of Nga Hapu o Nga Ruahine (Wai 796) and Ngati Kahungunu (Wai 852) to hearing. Aspects of the 'accelerated approach' now form part of what is commonly referred to as the 'new approach'." The Chief Judge of the Maori Land Court and Deputy Chairperson of the Waitangi Tribunal, Judge Joe Williams, recognised that an improvement to the procedures of the Tribunal was required. The new approach seeks to make inquiries more efficient, to clearly identify issues of grievance, to refine arguments surrounding historical evidence relating to grievance, and to get claimants

  1. For the purposes of this article the term 'Treaty claims' refers to any claim lodged with the Waitangi Tribunal. This phrase is used interchangeably with the term 'Maori claims.' The terms are consistent with each other as at present only persons of Maori descent are able to lodge Treaty claims.

8 Waitangi Tribunal, The Taranaki Report: Kaupapa Tuatahi, (Wai 143) 1996.

9 For discussion on the Crown's Treaty settlement policy see Office of Treaty Settlements, Healing the Past, Building a Future: A Guide to Treaty of Waitangi Claims and Direct Negotiations with the Crown (1999), Office of Treaty Settlements, Treaty of Waitangi Claims: Direct Negotiations Process (1999) and <>.

  1. The government owns a share in the Kupe licence which relates to the Kupe gas fields. 11 For a full discussion of the new inquiries procedures for claims see Te Roopu Whakamana 1 Te Tiriti o Waitangi, Te Manutukutuku 57, Mar 2003 8.

through the hearings more quickly, into negotiations12 with the Crown.13 The procedures adopted for the hearing of the petroleum claim can be seen as the seed for what are now the new procedures for Tribunal claims.14

In seeking to clearly identify issues of grievance in the petroleum claim, the Tribunal considered the claims, statements of claim, the claimants' arguments at the urgency hearing, along with the Crown's response and its arguments at the hearing, and all parties' comments on a draft statement of issues. The Tribunal then finalised the issues to be determined in the hearing of the petroleum claims as:

  1. With regard to land that Maori owned at any time before 1937, what was the nature of the Maori interest in petroleum? In particular:

2. With regard to the 1937 Petroleum Act:

(a) what effect did it have on the Maori interest referred to in 1 above?
(a) was there an overriding national interest rendering that effect reasonably necessary?
(a) was the effect consistent with Treaty principle?

3. (a) How has the Crown dealt with any Maori interests in petroleum since 1937:

(i) when developing and implementing the modern regulatory framework governing the resource (including provision of access to Maori land for petroleum prospecting, exploration and production purposes)?
(i) when developing and implementing its modern Treaty settlements policy?

12 The current settlement process for settling Treaty claims provides that Maori enter negotiations with the Crown either directly or after a Waitangi Tribunal hearing. This process has been evolving since 1975 with both Maori and the Crown continuing to examine the processes. For a full discussion of the Waitangi Tribunal processes and direct negotiation processes see Coxhead, supra note 1.
13 Te Roopu Whakamana I Te Tiriti o Waitangi Te Manutukutuku 57, March 2003 2.

  1. For a review of the 'new approach' see M Edmonds, Maori Claims Processes — The 'New Approach' to Balancing Interests: Whose Interests are being Served (unpublished paper, School of Law, University of Waikato, 2003).

(iii)when developing and implementing its policies with regard to the Crown's participation in petroleum licences?

(iv)when entering into and proposing to exit from its non-participatory interest in the Kupe licence?

(b) Have those dealings since 1937 been consistent with Treaty principle?

4. If the Crown has acted inconsistently with the principles of the Treaty

of Waitangi and prejudice to that claimants is established, what can now be done to remedy the situation (in light of the nature of the petroleum resource, the regulatory regime, the petroleum industry and the Crown's remaining interest in that industry)?ls

The above issues were therefore addressed by the Tribunal.


The Report is most significant in the Tribunal's statements regarding the `Treaty interest.' All parties accepted that prior to the nationalisation of petroleum in 193716 a legal interest in petroleum was inherent in land ownership. It was also accepted by all parties that Maori customary interest in land included an interest in the petroleum under the land. It was therefore accepted that prior to 1937 Maori had a legal interest in petroleum in any land they owned." The Crown argued that any Maori legal right in petroleum existed only by virtue of Maori title to the surface of the land. Maori interests in petroleum remained as long as Maori held title, and once this title was transferred so too was the interest. It was recognised, once again by all parties, that by 1937 Maori had lost ownership of most of their lands. The Tribunal therefore inquired into how Maori had lost lands and concluded that Maori had lost most of their lands prior to 1937 often by means inconsistent with the principles of the Treaty.18 The Crown accepted that in some cases Maori land was lost by means inconsistent with the Treaty of Waitangi. The Tribunal then proceeded to consider whether 'if Maori no longer have any subsisting legal ownership interest in petroleum resource, an interest of any other sort remains.'1

16 The Petroleum Report, supra note 2 at 6.
16 By the Petroleum Act 1937.
17 The Petroleum Report, supra note 2 at 44.
is Ibid at 45-56 for discussion on the various means by which Maori land was wrongly

19 Ibid at 39.

Where Maori had once had a legal right in petroleum only due to their ownership of land, and that ownership had been lost through means inconsistent with the Treaty, did this create or leave any right? The Tribunal stated yes:

... we see that the expropriation of the pre-existing Maori rights to petroleum arose from a context that is riddled with breaches of the Treaty. We are satisfied that, in this situation, where legal rights to an important and valuable resource were lost or extinguished as a direct result of a Treaty breach, an interest of another kind is generated. We call this a `Treaty interese.20

It is reasonable to conclude that Maori customary law and English common law provided that when Maori owned land they owned an interest in petroleum. When Maori lost land due to breaches of the Treaty they lost their interest in petroleum due to breaches of the Treaty. This resulted in Maori retaining a 'Treaty interest' in the wrongly-taken interest in petroleum.


The further significance of the Treaty interest is in its creation of an entitlement to a remedy additional to any other entitlement. The Tribunal stated:

When it [the 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. Most importantly of all, the Treaty interest creates an entitlement to a remedy for that loss additional to any other entitlement to a remedy.21

The Crown argued that there was no obligation to provide a separate remedy in respect of the acquisition of petroleum22 as the expropriation of Maori petroleum rights in 1937 was not in breach of the Treaty, and that, while some titles of land acquired prior to 1937 had been acquired in breach of the Treaty, the loss of petroleum rights associated with the wrongfully acquired land did not give rise to a remedy separate to that relating to the loss of land itself. This is consistent with Crown Treaty settlement policy that the Crown's duty to provide redress does not extend to accounting for any particular attributes of the land. The

Ibid at 39-40.
21 'bid at 65.
22 Ibid at 66.

Tribunal considered that while such an approach was generally sensible, the circumstances of this case made the adoption of that approach inappropriate.

Those circumstances are where, in the period between the Maori loss of land through breaches of the Treaty and the provision of redress for those breaches, some attribute is found (inherent in the land rather than brought to it) which not only is able to be valued separately from the land but also is so disproportionately valuable as to make the application of the general approach grossly unfair. Most often, the attribute which is subsequently discovered will be mineral wealth. It may be that this mineral wealth was known of but only recently rendered extractable, but the principle is the same. Petroleum is one of a small number of examples which fit this exceptions category. For Maori to lose the entire benefit of such valuable resources without appropriate redress, and for the Crown to gain it, would serve to compound the original, and often already grievous, Treaty breach in relation to the acquisition of the land.23

The Tribunal concluded that given the context of the claim a broad, unquibbling and generous approach was required for the Crown to be seen to be honouring its fiduciary obligation and avoiding the appearance of being mean-spirited.24

The Tribunal acknowledged that this finding could have a significant impact on the claimant's settlement and on Treaty settlements generally. However, it had been acknowledged by the Crown that there was no longer a fiscal cap on the settlements of claims.25 The Tribunal added:

... in order to be fair, the cost of settlement of any petroleum claim would have to be additional to whatever relativity calculations the Crown has already arrived at in respect of claimant groups. It would be grossly unfair if the Crown accepted our reasoning and then came to conclude the settlement of petroleum claims within relativity quantums calculated before that acceptance. That would see Maori giving up more Treaty interests for the same quantum. It is difficult to see how that outcome could be consistent with a reasonable or good-faith settlement process.26

One would anticipate that the approach taken by the Tribunal in terms of a valuable resource like petroleum will also be applied in other areas

23 Ibid at 67.
24 Ibid at 68.

For further discussion of the 'fiscal cap' policy see W Gardiner, Return to Sender —What Really Happened at the Fiscal Envelope Hui (Auckland: Reed Publishing (NZ) Ltd, 1996).
26 The Petroleum Report, supra note 2 at 68.

where there are claims for valuable resources. It can be predicted that the approach adopted by the Tribunal will be applied in some of the 56 claims that have been included in the Wai 686 Hauraki Inquiry,27 where claims relate to minerals such as gold. The Crown's approach will be less predictable. When the Treaty interest principle is applied in the Hauraki Inquiry, will the Crown similarly ignore the findings of the Tribunal as is the case with the findings of the Petroleum Report? It would surely be more difficult for the Crown to totally ignore Maori claims for gold 'as gold is not in the national interest and less objectionable in political terms than oil'.28


Another important finding of the Inquiry relates to whether modem-day petroleum assets or interests (such as royalties or the Crown interest in the Kupe mining licence) should be made available as part of a remedies package in Treaty settlements. The Crown position has been to exclude petroleum-based remedies from settlements. At hearing the Crown made it clear that the Kupe licence and any royalties are excluded from settlements. It is ironic that although New Zealand/Aotearoa is held out to the world as a leader in terms of recognition of indigenous rights, yet the New Zealand/Aotearoa Government excludes petroleum-based remedies from settlements when other indigenous peoples in Australia, Canada and America already have ownership in natural resources such as petroleum. It is also of note that in those countries where indigenous people share in the natural resources industry they have done so with some success. Industry has not collapsed, corporations have not exited the market as some in New Zealand/Aotearoa would have us believe will be the case if Maori gain ownership of natural resources.29 Similar negative expressions of doom were expressed when Maori obtained a share of the fisheries industry. Yet as Hemi points out 'the fishing industry hasn't suffered under Maori ownership and management. It has prospered.' Initially, the Crown argued petroleum-based remedies should be excluded from settlements as they were concerned that if assets of uncertain value and risk, like petroleum, were included in settlements this would destabilise

27 The claimants include the Marutuahu iwi of Ngati Maru, Ngati Whanaunga, Ngati Tamatera and others, and pre-Marutuahu people such as Ngati Huarere, Ngati Hako, Ngati Koi, Te Uri-o-Pou and Ngai Tai.

  1. Stephen Franks quoted in 'Maori go for gold after oil report' The Dominion Post, 23 May 2003.

29 M Hemi, 'The Good Oil', Mana Magazine, Issue 52, June-July 2003 at 60.
30 Ibid at 60.

the Crown's overall Treaty settlement framework, and in particular the relativity between claimants would be undermined.

The Tribunal was not convinced with these arguments and concluded the Crown had no good reason to exclude the assets from negotiations. The Tribunal noted:

We have found above that the Treaty interest creates an entitlement to a remedy for the loss of legal rights to petroleum and that this remedy must be additional to any other entitlement to redress. It must follow from those conclusions that no relevant Crown asset capable of providing redress to the particular claimants should be excluded from negotiations without a good reason.31

The Tribunal concluded that what is required is that the issues and assets be on the table for Treaty settlement negotiations.

Since the release of the Report, the Crown has moved a little in terms of the potential petroleum-type remedies available in settlements. The emphasis seems to be on allowin Maori some participation in the management of petroleum resources. 2 As part of the Ngati Ruanui settlement for example, they were not precluded from participating in any future changes to the petroleum management regime.33 Further, Ngati Ruanui and the Ministry of Economic Development entered into a protocol as part of the Ngati Ruanui Deed of Settlement. The key for Iwi and Hapu is that the protocol does nothing in terms of recognising Maori ownership of petroleum and does not state how Ngati Ruanui may be involved in the management of petroleum resources.

The scope of Maori involvement in the management of petroleum resources is still being developed, and there is much uncertainty what this may involve. It still appears, however, to be Crown policy that petroleum assets or interests (such as royalties or the Crown interest in the Kupe mining licence) are excluded from settlement negotiations.34

31 The Petroleum Report, supra note 2 at 76.

32 While not stating the Crown position regarding Maori participation in petroleum, Roger Perkins's article in this volume discusses potential options for Maori and government.
33 Ngaati Ruanui Deed of Settlement available <> viewed 1 Nov 2003.

34 Margaret Wilson, Waitangi Tribunal Report on Petroleum, available <www.beehive.> on 1 Oct 2003.


The issues surrounding petroleum have largely been overshadowed by the foreshore and seabed debate.35 Yet they are to an extent interrelated. The Waitangi Tribunal noted that:

... Maori access to offshore petroleum remedies does not depend upon the claim to customary title in that area being upheld. Offshore petroleum remedies can be made available for historical breaches above or below the high-water mark.36

Maori claims to offshore petroleum could be argued on the basis of the inherent Treaty development right — 'a right to exploit a resource not extensively used in traditional times for new purposes not contemplated in those times'.37 Maori claims to offshore petroleum do not depend on Maori customary title, but will be depend on the Crown's willingness to make those resources available for settlements. Legally Maori could establish rights to offshore petroleum, however, given the Crown reaction to the Report, it is unlikely that the current government would make such resources available.

The second point the Tribunal made in relation to foreshore and seabed was that:

... if the Maori applicants in the seabed litigation are successful, that may reinforce the conclusions that we [the Tribunal] have reached in this report.38

The Tribunal found a high threshold exists when extinguishing Article 2 Treaty rights. In a similar manner the Court of Appeal decision Ngati Apa
v Attorney General" set a high threshold for statutes purporting to extinguish customary title.

The Crown had argued that the expropriation of petroleum in 1937 was in the national interest, and was a valid exercise of sovereignty that did not require Maori consent, provided it was undertaken in good faith with an informed understanding of the Treaty interest affected. The Crown's

  1. For a full discussion on the government's draft proposal on the foreshore and seabed, see <www.beehive.govt,nz/foreshore/home.cfm>. For Maori reaction to the government's proposal see < >.

36 The Petroleum Report, supra note 2 at 80.
37 Ibid at 43.
38 Ibid at 80.
39 [2003] NZCA 117; [2003] 3 NZLR 643.

stance is that those Treaty interests were properly weighed against the wider national interest. This approach contemplates that Maori land, like any other land, may be subject to compulsory acquisition despite the Treaty guarantee under Article 2. In rejecting the Crown's argument the Tribunal stated:

A decision to override a guarantee in article 2 is a grave decision indeed. It is a decision to override fundamental rights guaranteed in the country's constituting document. It cannot be sufficient for the Crown merely to inform itself of the effect of that decision and proceed in good faith, as the Crown argued before us. That would reduce the effect of the Treaty to a mere procedural safeguard. The plain fact is that the Treaty is not a mere procedural safeguard — it guarantees substantive rights as well.

The Crown exercises its governmental power -- its kawanatanga — as a partner and as a fiduciary. It follows that this power must be used to make good on article 2 and article 3 promises except in exceptional and clearly justifiable circumstances. To take any other approach would require us to conclude that the Crown is not a partner nor a fiduciary obliged by the terms of the Treaty to protect the interests of its Treaty partner to the fullest extent reasonably practicable. If this Tribunal were excluded from closely reviewing a Government decision to abrogate a Treaty guarantee, as the Crown argued, the Treaty would become little more than a dead letter.°

The Tribunal accepted that the government expropriation was reasonably necessary, and that no reasonable alternative was available, but that the Crown failed in terms of minimum interference with Maori Treaty rights. The Crown could have achieved all its important objectives and also acted to minimise that interference by holding petroleum revenues as trustees for the landowners who had petroleum rights. Distribution of the revenue should have been effected through payment of royalties.


The Tribunal concluded its Report with recommendations that the Crown and claimant groups negotiate for the settlement of petroleum grievances in accordance with its findings, and until such settlement, or until a rational policy could be developed to safeguard Maori interests, the Crown withhold the Kupe petroleum licence from sale.

What has been the Crown's reaction to these recommendations? Prior to the October 2000 hearing the Crown position regarding Maori ownership of petroleum resources was stated:

The Petroleum Report, supra note 2 at 58-59.

Before the October 2000 hearing, the then associate energy minister Paul Swain was scolded by Maori supporters for saying that neither the tribunal nor the courts would change government policy on this issue whatever they said. The government has an obligation to consider tribunal findings but it doesn't have to abide by them.'"

Following the Report's release, the Prime Minister reiterated the unchanged Crown position that:

The Government's position (then) was that the 1937 nationalisation of oil and gas reserves took place in the public interest. The Crown considered it still to be in the public interest and does not consider that a Treaty breach occurred.42

In a cavalier manner the Crown formally rejected the Waitangi Tribunal recommendations in November 2003. It was announced that the Crown would proceed with the sale of the Government share in the Kupe gas field with no intention to pay Maori compensation for loss of oil and gas rights.43 Although the Crown did not need to announce its views of the Tribunal's findings regarding the 'Treaty interest' as it had already rejected the Tribunal's recommendations, it stated that 'officials advised the Government that they did not consider the concept of 'treaty interest' persuasive'.44 This is not surprising given the government's statements prior to the hearing, after the release of the Report and given the Crown argued against Maori ownership at the Tribunal hearing.

The Crown's reaction before and after the petroleum claim hearing has been disappointing and displays an immaturity on the part of the Crown as a Treaty partner. The Crown has allowed emotion to prevail over logic as Mikaere warned could happen when she stated:

While Maori are accustomed to such knee-jerk reactions from their Treaty partner (the foreshore fiasco springs to mind as the most recent example) the fact remains that the report is both well-written and carefully reasoned. It would be unfortunate if the Crown, in its handling of this issue, were to allow emotion to prevail over logic.45


`Maori claim stalls Kupe sale' Sunday Star Times, 18 May 2003.

`Clark rejects Maori Oil Claim' Dominion Post, 20 May 2003.

`Govt Rejects Iwi's Claim on Kupe Royalties' Daily News, 22 Nov 2003.

`Rebuff to Maori petroleum claim clears way for Kupe sale' New Zealand Herald, 22 Nov 2003.

  1. A Mikaere, N Tomas, K Johnston, `Treaty of Waitangi and Maori Land' [2003] NZ L
    Rev 447 at 456.

That the Crown is prepared in the twenty-first century to make such knee-jerk reactions in the case of the foreshore and petroleum 'makes a mockery of its claim to be a good faith Treaty partner'.46


Where to from here for Maori?

Do Maori continue to take claims to the Waitangi Tribunal knowing the Crown can reject the Tribunal's recommendation no matter what? Crown reaction and rejections of the Tribunal's recommendations and findings in the Petroleum claim brings into call the purpose of the Waitangi Tribunal. The Tribunal has been referred to as the 'Toothless Taniwha' due to only having recommendatory powers. The Crown's reaction (or non-reaction) to the Report reinforces that view. Henare called the worth of the process into question when she stated:

Thus, you can go through the entire process of bringing your claim, prosecuting your claim, having the Waitangi Tribunal bring down a report, and yet still have to hold your breath awaiting the outcome of whether in fact the Crown will accept the Tribunal's recommendations or not. There is no certainty in the process. Maori are always the suppli-cant.47

Do Maori take their cases to the Court of Appeal knowing that the Crown may well reject the Court's decision, as is the case with the foreshore fiasco?" Is it time for Maori to return their protest to the streets, as with the recent foreshore and seabed `hikoi,' rather than confining protest to the Tribunal and courts?"

In 1989 Tainui took their claim to coal to the Court of Appea1 and Ngai Tahu have been successful in their claims for ownership of pounamu. As

46 M Jackson, `Panic on the Beach', Mana Magazine, Issue 53, Aug 2003 66.

  1. D Henare, 'Carrying the burden of arguing the Treaty' at 121 & 127 in R Capper, A Brown & W Ihimaera Vision Aotearoa.• Kaupapa New Zealand (Wellington: Bridget Williams Books, 1994).
  2. This refers to the government's intention to legislate to exclude the Maori Land Court from having the ability to determine the status of the New Zealand foreshore after the five judges of the Court of Appeal all agreed that the Maori Land Court did have the jurisdiction to do so: Ngati Apa v Attorney General [2003] NZCA 117; [2003] 3 NZLR 643.


For further discussion regarding Maori pursuit for justice following Crown breaches of the Treaty sec R Walker, Ka Whawhai Tonu Matou — Struggle Without End (Auckland: Penguin, 1990).
Mahuta v Attorney-General [1989] NZCA 175; [1989] 2 NZLR 513.

has been previously stated, the Waitangi Tribunal is yet to report on the Hauraki claims which include claims for gold. There is no doubt that Maori will continue in their claims for ownership of resources such as petroleum and other minerals. And while Maori continue pursuing claims to petroleum there will remain a cloud of uncertainty in the industry as to ownership of resources. Industry should continue to be concerned with Maori claims which until addressed will continue to leave industry with a feeling of uneasiness. Overseas corporations have certainty when indigenous peoples have a stake in the resource because they know their operations will not be destabilised by wranglings over ownership of the resource.51 One could say that the government is creating certainty by dismissing Maori claims to petroleum ownership or compensation for petroleum rights taken by the Crown. However, this does not offer any certainty while Maori still feel a sense of injustice. The position was put by Rangiheua who observed:

If the Government is to attract investors, then it has two options. One is to dispose of all the Maori claims so that the Government can present itself as having utterly unfettered rights to inshore and offshore mining. And the other option is to come to terms with Maori so that there is an amicable, stable arrangement, which gives the investors no cause for alarm.

Given the potential of the courts to make nonsense of Option One, you'd assume that Option Two is the only one worth pursuing.5

Maori will continue to utilise the Tribunal, the courts, and international forums.53 Given the Crown's resistance to acknowledging Maori ownership of resources, and to acknowledging that Maori have the right to compensation for petroleum rights they have lost, Maori appear to be left with few options but to return to the courts. Rangiheua stated:

If the Government won't budge, then that's an invitation to Maori to do what they did when the Government was uncooperative over broadcasting, fisheries and radio spectrum. That is, go to court.54

Maori will continue to lobby government and the Maori MPs to seek change in policy as well as constitutional change. As Shane Jones put it `we're entering a new chapter of the treaty settlement phase ... pressure is. going to increase, not decrease. These issues need to be dealt with.'55 It

51 Hemi, supra note 29 at 60.
52 T Rangiheuea, 'Time to Talk', Mana Magazine, Issue 52, June-July 2003 61.

  1. For an international law perspective of the petroleum issues see the article by Erueti in this volume,

54 Rangiheuea, supra note 52 at 61.
55 T Watkins, 'Oil report sparks warnings' Daily News, 22 May 2003.

took over 155 years from the signing of the Treaty of Waitangi for Tainui to reach a settlement of their claims. While Maori would hope it will not take that long for Maori claims to petroleum to be settled, I think that one day Maori will obtain a petroleum interest. Moana Jackson frequently uses a phrase when referring to whether Maori will ever achieve constitutional change in New Zealand/Aotearoa, and the same can be said in terms of changes to ownership of resources. 'It won't happen overnight, but it will happen.'

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback