New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 12 April 2015
in the Management of Petroleum
Although the issue is topical and important, I must emphasise from the outset that I do not propose to comment on the nature of the Maori interest in petroleum that was addressed by the Waitangi Tribunal in its report on petroleum issued in May 2003. This report is still being considered by the Government and consequently it would be inappropriate for me to comment on how the Government should respond to the Tribunal's findings and recommendations.' Rather, I propose to consider Maori participation in the management of petroleum, and the petroleum sector itself. Specifically, I would like to examine opportunities to enhance present arrangements so that Maori can participate more effectively. I will start by describing the current regime, established in 1995, by which the Crown manages petroleum and what arrangements for Maori participation are already in place. I then want to comment on the context for a review of these arrangements, to go on to consider some of the ways in which effective Maori participation is being hampered and to ask what might be done to rectify this. Two issues lie at the heart of this question: the quality of the relationship between the Crown, Maori, and the industry; and resources available to hapu and iwi to participate.
I. THE CURRENT REGIME
Petroleum exploration and mining in New Zealand is governed by the Crown Minerals Act 1991 which sets out how rights in petroleum and
Policy Director, Ministry of Economic Development. The views expressed in this paper are those of the Ministry of Economic Development and do not necessarily represent government policy. The author acknowledges the contributions of Anne Haira and Michael Dreaver in preparing this paper.
Subsequently, on 21 November 2003, the Government announced that it did not agree with key elements of the Waitangi Tribunal's findings on petroleum and will not act on its recommendations: Media Statement, 'Government Response to Waitangi Tribunal's Petroleum Report', Hon Pete Hodgson, Minister of Energy, and Hon Margaret Wilson, Minister in Charge of Treaty of Waitangi Negotiations, 21 Nov 2003. It did not accept the concept of a 'Treaty interest' in petroleum arising from the loss of Maori land before 1937 by means that breached Treaty principles and from the expropriation under the Petroleum Act 1937 without compensation or provision for ongoing royalty payments. The Crown would therefore proceed with the sale of its 11% share in the Kupe gas field: Media Statement, 'Sale of Crown's Stake in Kupe Gas Field to Proceed', Hon Pete Hodgson, Minister of Energy, and Hon Harry Duynhoven, Associate Minister of Energy, 21 Nov 2003.
other Crown-owned minerals are allocated and managed. The Act requires the Minister of Energy to prepare Minerals Programmes to establish policies, procedures and provisions which lead to the efficient allocation of rights to minerals and a fair financial return to the Crown. To this end, the Ministry of Commerce, now the Ministry of Economic Development, began developing a Minerals Programme for Petroleum in the early 1990s. As part of that process, consultation with hapu and iwi took place through a series of regional and national hui. Section 4 of the Crown Minerals Act provides that 'all persons exercising functions and powers under this Act shall have regard to the principles of the Treaty of Waitangi.' Chapter 3 of the Minerals Programme for Petroleum sets out how the Minister of Energy and the Chief Executive of the Ministry of Economic Development will meet this obligation. Present arrangements for meeting this obligation can be considered under four categories: consultation, exclusion of land, access to land, and information distribution and administrative requirements.
Consultation under the Minerals Programme is based on the Treaty principle of informed decision-making. There is a commitment to consult when preparing the Minerals Programme, in preparing permit block offers for petroleum exploration, and when applications for petroleum permits are received that are not part of a block offer.
Exclusion of land is another way in which the Minerals Programme attempts to recognise the principles of the Treaty; by providing that defined areas of land of importance to hapu and iwi may be excluded from petroleum activities. This can occur in two ways. One option is that land may be excluded from the operation of the Minerals Programme —for example, Mount Taranaki and some neighbouring ranges are unavailable for inclusion in petroleum permits. The other option is that an iwi or hapu can request that particular land is not included in a block offer or permit if it is of significance to that particular group. Criteria for considering such requests were formulated in close consultation with Maori when developing the Minerals Programme. They include whether the area is a known wahi tapu site, the uniqueness of the area, and whether any iwi management plans are in place in the area.
Access to land is controlled by provisions in the Act which provide special protection for Maori land over and above other land. For example, prior to undertaking minimum impact activities, in addition to the requirement to give ten working days notice of entry, a permit holder must make reasonable efforts to consult with Maori land owners and must
give notice to the local iwi authority. Where the land is wahi tapu, the consent of the owners must be obtained prior to entry.
Information distribution and administrative requirements are also dealt with by the Minerals Programme. It provides that the Ministry may distribute relevant information to hapu and iwi on an ongoing basis. There is also a requirement to maintain an up-to-date contact list for consultation purposes.
In recent years, the Ministry has also entered into protocols with a number of hapu and iwi as part of Treaty settlement packages. These protocols set out how the Ministry intends to consult and interact with particular hapu and iwi on an ongoing basis. Some departments, including the Ministry of Economic Development, have also indicated their willingness to enter into broader strategic alliances with particular hapu and iwi as part of an ongoing post-settlement relationship.
II. THE CONTEXT FOR REVIEW
Returning to the context for this discussion, the immediate driver is that under the Crown Minerals Act the Minister of Energy is required to review and replace the Minerals Programme for Petroleum within ten years of it coming into force, that is by 1 January 2005. But a review of Maori involvement under the Programme is timely for other reasons, including the forthcoming release of the second part of the Waitangi Tribunal's report. In the hearings before the Waitangi Tribunal, a number of groups questioned the adequacy of current provisions for Maori participation in decision-making. In addition, submissions noted the lack of Maori participation in the petroleum industry and associated economic activity. These concerns have also been voiced in resource consent hearings and in the course of Treaty settlement negotiations. As Treaty claims are settled, the attention of many hapu and iwi is shifting from questions of redress to those of governance and economic development. Increasingly, Maori are calling for a greater role in the management of natural resources. The government also wants to increase Maori participation in decision-making processes and foster Maori economic development more generally. The Ministry of Economic Development, for its part, is committed to taking a pro-active and facilitative approach to these ends.
I should also note that the Waitangi Tribunal has indicated that it intends to release a second report focussing on the nature of the regulatory framework for petroleum since 1937, including opportunities for Maori
participation in the management of the resource. Obviously, it will be very helpful if this report is to hand within the statutory period in which we must consider a replacement Minerals Programme.
III. ISSUES AFFECTING MAORI PARTICIPATION
There is a range of factors hampering Maori participation in decision-making. There is much work to be done within government on improving our own responsiveness and ability to engage. There is a need to develop a better understanding of Maori aspirations. To date, the level of response by hapu and iwi to government approaches has also been low. At a practical level, the 'ownership' issue has tended to dominate Maori attention. Some hapu and iwi have been occupied with other priorities such as Treaty settlement negotiations. Others may have simply lacked the capacity or resources to respond. The information provided to tangata whenua when they are consulted may also not have allowed them to have constructive input into decision-making. This could be due to the amount and/or nature of the information provided, the form in which it is provided, and the time provided for a response.
IV. IMPROVING MAORI PARTICIPATION IN DECISION-MAKING
A number of enhancements to present decision-making arrangements could be considered to allow Maori to participate more effectively. These include:
A number of different mechanisms are available to advance these options, including:
Many of these mechanisms would have resource implications. However, there is a range of existing government programmes that could be utilised such as the capacity-building programme operated by Te Puni Kokiri.
V. MAORI PARTICIPATION IN THE PETROLEUM SECTOR
Increasing Maori participation in the petroleum sector itself is a separate question from that of Maori participation in Minerals Programme procedures, and it is also distinct from issues of ownership. We plan to develop a better understanding of the reasons holding back a higher level of participation by talking with hapu and iwi and with firms such as Swift Energy and Westech who are already active in providing assistance through training and scholarship schemes. A more pro-active and facilitative approach, however, could include:
Mechanisms to advance these options include:
Our thinking on how best to achieve Maori participation in the Minerals Programme is still very much at the preliminary stage, and we have not commenced a dialogue with Maori. We hope to engage on these issues over the next six months or so. Irrespective of the government's consideration of the Waitangi Tribunal's report on the nature of the Maori interest in petroleum, the exercise I have described presents a good opportunity to enhance the ongoing relationship between Crown and Maori in an important area.