Tangata Whenua Issues and the Petroleum Industry

presented by M Christensen, K Littlejohn, R Karu, Russell McVeagh McKenzie Bartleet & Co, Barristers & Solicitors.

at the 1998 New Zealand Petroleum Conference

Abstract

Treaty Claims

Consultation

Tangata Whenua Claims to Petroleum Resources

Summary

Consultation with Tangata Whenua

Legal Principles

Who

Cost

Protocols

Certainty

Maori Expectations

Footnotes

Authors

Abstract

This paper addresses two issues facing the petroleum industry in New Zealand.

Treaty Claims

The status of claims by tangata whenua to offshore and onshore petroleum and other resources is the subject of much uncertainty. Similarly, settlements with various claimants involving a transfer back of land poses a number of issues as to the rights to explore for and exploit petroleum and gas. The paper endeavours to provide those in the industry with practical advice.

Consultation

The obligation to consult with tangata whenua under the Crown Minerals Act and the Resource Management Act is discussed. Recent cases have demonstrated that the failure to properly consider tangata whenua issues and to undertake effective consultation may result in serious delay, and in some cases consent being declined. The paper provides some pointers for the industry.

This section of the paper is in two parts:

1. A brief summary of the legal principles and legal requirements of consultation with tangata whenua. This includes a brief overview of leading Court cases.
2. An examination of the practical side of the consultation process, highlighting potential pitfalls and problems:

• Who should I consult with and how can I be sure I am dealing with the right people?
• How much can I expect consultation to cost?
• What protocols do I need to be aware of?
• When have I satisfied my obligation to consult and how do I get certainty?
• What are the expectations of iwi?

Tangata Whenua Claims to Petroleum Resources

The Crown Minerals Act 1991 (CMA) preserves the Crown's exclusive ownership of all petroleum resources existing in their natural condition in land in New Zealand, whether or not that land has been alienated from the Crown. For the purposes of the CMA, "land" includes the seabed to the 12 nautical mile limit. The CMA effectively restates the Crown's ownership of petroleum and the regulation of its exploration and exploitation as was contained in the Petroleum Act 1937. Unlike that Act however, a licence or permit under the CMA gives no automatic rights of access. Except in the case of some minimum impact activities, therefore, separate access arrangements will need to be entered into between land owner and explorer.

At the time of writing this paper no legal claims had been made by tangata whenua specifically seeking the return of or re-vesting of petroleum resources within New Zealand. Indirectly, however, many extensive claims to the seabed and other land which may contain petroleum resources have been lodged with the Waitangi Tribunal. It is anticipated that claims to rights to petroleum resources will be considered by the relevant courts in due course. How those claims will be dealt with and the remedies available if they are successful will depend directly on the nature of the legal action advanced.

Claims by tangata whenua to such resources may arise in two circumstances:

1. by common law action and/or action based on the explicit incorporation of the principles of the Treaty of Waitangi into New Zealand Acts of parliament; or
2. by actions relying on the Treaty and its principles either heard before the Waitangi Tribunal or negotiated directly between iwi (tribal groups) and the Crown.

Claims before the Courts may be based on the common law doctrine of aboriginal or customary title. This doctrine preserves the traditional practices and association of indigenous peoples with their traditional lands etc insofar as they are reasonable, certain and consistent with the common law and can only be abrogated in consultation with indigenous peoples. Aboriginal title rights may be either akin to ownership or merely a right to use a particular resource in those (usually rare) circumstances where that right has been continually exercised by the indigenous group in question.

For much of New Zealand's history the courts have refused to recognise common law rights based on customary title, arguing that as the Treaty had never been incorporated into New Zealand domestic law its provisions were not binding on the Courts.

In more recent times, however, there has been some judicial comment in this area. The Treaty, it is argued, as an express abrogation of aboriginal rights, thus forms the basis for such claims. As a result, a number of actions have been commenced based on customary title. Of most contemporary note is the litigation presently being pursued in the Maori Land Court in respect of various areas of the seabed in the Marlborough Sounds. In re Marlborough Sounds Foreshore and Seabed the Maori Land Court has determined that it has the jurisdiction to determine underlying title to the seabed and foreshore giving rise to a fiduciary duty by the Crown to not deal with such land contrary to the principles of the Treaty. This interim decision has been appealed by the Crown.

An action may also be bought where an Act of parliament has expressly incorporated a reference to the principles of the Treaty of Waitangi. In such cases, it is arguable that the presumption that the Treaty is not part of New Zealand law is rebutted and its principles become a part of domestic law within the area of the statute concerned.

Regardless of express reference or not, however, the Treaty is increasingly becoming seen as a part of the "fabric of New Zealand society" and is becoming a relevant consideration when interpreting all manner of statutes. It may become increasingly difficult therefore for the Crown to continue to assert the "non-incorporation" argument when statutes do not expressly mention the Treaty. Successful claims however will usually only give rise to rights based on fiduciary duties rather than proprietary rights.

Claims based directly on the principles of the Treaty may therefore become more common place and, over time, may provide a more useful and potentially more effective course of action against historical grievances than claims to the Waitangi Tribunal.

The Waitangi Tribunal, as a commission of inquiry established pursuant to the Treaty of Waitangi Act 1975, has the power to inquire into situations where the Crown has acted inconsistently with the principles of the Treaty of Waitangi which have led to prejudice against Maori. Having considered any claim, the Tribunal may then make recommendations to the Crown as to possible means of redressing grievances, as determined. Such recommendations, however, are only binding in the case of land or resources owned by State Owned Enterprises and in all other situations, the findings of the Tribunal are merely persuasive. That is, while the Tribunal may make recommendations which concern private land they cannot compel any action affecting private land. That latter step is within the hands of the Crown to deal with as it considers appropriate.

Despite the relative youth of New Zealand jurisprudence in relation to the issue of customary title, it is generally agreed, given the nature of the common law doctrine, that it would be difficult for tangata whenua to successfully obtain customary title to petroleum resources in New Zealand. This is supported by the express vesting of ownership of such resources in the Crown by virtue of the Petroleum Act 1937 (as continued by the CMA) and also by the nature of the resource sought. That is, it would be difficult for tangata whenua to claim a wide spread awareness of and customary usage of petroleum prior to its vesting in the Crown. However, this fact may not be determinative as the Courts have previously recognised the Crown's fiduciary obligations to iwi in respect of minerals (eg coal), notwithstanding a lack of traditional usage of such minerals. This finding has been based on the concept of possible discoverability and future use which may not be as easy to establish in the case of sub-terranean petroleum resources.

It has been suggested that because the CMA, unlike the Petroleum Act, specifically requires all persons exercising functions and powers under its scheme to have regard to the principles of the Treaty that this may provide Maori groups with a basis for challenging Crown ownership of petroleum resources in the courts. However, given the clear legal effect of the Act it would be difficult to read down the intent of that statute in favour of Maori aboriginal rights under the common law. Therefore, in the absence of a statutory breach (including a failure to have regard to the principles of the Treaty), it is unlikely that Maori would be able to bring a successful claim for aboriginal title to petroleum resources in the courts.

To the extent that Maori rights in petroleum were expropriated by the Crown, a claim could be bought before the Waitangi Tribunal on the grounds that the Crown has breached its treaty obligations. Arguably the taking of petroleum by the Crown under the Petroleum Act 1937, without the consent of Maori land owners or the payment of compensation, is a breach of the Second Article of the Treaty. However, there would only be grounds for a claim where the land is in Maori ownership or the iwi could successfully argue for mineral rights. For those reasons it is difficult for tangata whenua to make a claim to petroleum found under the seabed, and in those situations where the Crown property acquired the interest in the land, no such question of expropriation would arise. The situation may be more difficult to determine however for areas of the foreshore and seabed, the title to which has never been determined.

In any event even if the Tribunal found that the Petroleum Act 1937 was a breach of the treaty, it is possible that any recommendation made by the Tribunal would be of little effect. Maori have placed little value in petroleum in the past and the high risk, high cost nature of the industry means that they would generally be unable to carry out exploration and exploitation of the resource without industry assistance (a position analogous to that of the Crown). As claims before the Tribunal are against the Crown, at most the recommendation will be that the residual property rights of the Crown (ie interest plus royalty) should be vested in the claimant tribe. Such a recommendation would arguably only see the Crown revert a portion of the residual interest in the resource because it would be unlikely to relinquish its administrative role in the petroleum industry.

Summary

It is considered that it would be difficult for tangata whenua to successfully claim customary title to petroleum resources in New Zealand and consequently have those resources returned to them. If the Waitangi Tribunal considered that such resources had been clearly expropriated from tangata whenua in a clear breach of the principles of the Treaty, then it could recommend that those resources be returned. Given the nature of the particular resource, however, it is considered that this is unlikely. In any event, it would be up to the Crown to determine how it would implement any recommendation and in so doing, it would have to bear in mind the existence of rights of exploration and exploitation that it has validly granted. Consequently, any return of an interest in the resource to tangata whenua would likely be only a share of the interest which the Crown presently has.

Consultation with Tangata Whenua

Consultation with tangata whenua will be required when undertaking minimum impact activities in relation to Maori land or obtaining access arrangements with Maori landowners under the CMA. Similarly, when exploration or mining activities require consents under the Resource Management Act 1991 (RMA) (eg water permits, discharge permits) the consultation requirements under that statute will apply. Although there is no specific obligation on the part of any applicant to consult directly with tangata whenua under the RMA, recent cases highlight the need to engage in active consultation in order to avoid serious objections and delay, particularly where a proposal may affect the matters referred to in s6(e) (Waahi tapu/sacred places) and 7(a) (Kaitiakitanga/Guardianship) of the RMA.

Moreover, the Environment Court has shown some sympathy for tangata whenua where waahi tapu and other significant matters of cultural concern are at risk because of a proposed development.

There are several practical steps that can be taken to minimise the potential for serious objection to a proposal including:

• Knowing who to contact and how to contact them;
• Demonstrating empathy for the concerns of the tangata whenua;
• Engaging in proactive consultation, for example meeting at a time and a place that is suitable to tangata whenua, and a preparedness to meet the costs of tangata whenua etc; and
• Demonstrate an awareness of tangata whenua issues; being aware of the types of mechanisms that are available to remedy, avoid etc adverse effects on matters of concern to tangata whenua.

Legal Principles

It will be of no surprise that there remains some considerable uncertainty in terms of requirements to consult with tangata whenua.

The case law to date assists only in a very general way. The following observations have been made:¹

• There is no clear positive obligation upon any applicant to consult directly with tangata whenua. However, the Courts clearly recommend that some consultation be undertaken by an applicant prior to the lodging of their application.
• Consultation should normally be more meaningful than just sending out information to various iwi about an application. It should be more than mere "notification". It should be proportionate to the extent and likely effect of a particular proposal.
• There is no obligation to consult for as long as it takes to reach a consensus, but consultation should be undertaken for a reasonable time in the spirit of goodwill and open-mindedness so that all planning options are carefully considered. There must be opportunities for adequate expression and consultation of views before decisions are made. There should be sufficient information to enable the consulted to be adequately informed so as to be able to make intelligent and useful responses and the party carrying out the consultation must keep its mind open and be ready to change and even start afresh, although it is entitled to have a working plan already in mind.
• The Environment Court will not engage in determining whether or not a particular tribal group or other Maori body is the appropriately mandated body for consultation. Nor is it for the consent authority to decide which of the competing tribes or other iwi groups is entitled to represent the area subject to an application. Failure to consult with iwi or marae groups that were not known to either the Council or the applicant is acceptable.
• Finally, where sites of Maori significance are involved, for example waahi tapu, genuine attempts must be made to address the protection of those waahi tapu and other significant sites. In order to be properly informed about sites of cultural significance, genuine and appropriate consultation must take place.

These general observations leave ambiguity for many undertaking consultation. Some key issues of concern include:

• Who should I consult with, and how can I be sure that I am dealing with the right people?
• How much will consultation cost?
• What sort of protocols do I have to follow?
• What can I do to get some certainty?
• Finally, what are the expectations of tangata whenua?

Who

The "who" question remains one of the most difficult questions to answer. Maori society is not easily divided into identifiable units for the purposes of consultation. Different groups will claim to exercise authority or manawhenua over the same areas. Some groups will insist on being treated as "tangata whenua" with exclusive authority to engage in consultation.

At times it may be frustrating to deal with and understand this dynamic. But the reality is that the issue for many Maori is not simply one of controlling environmental effects - it is also about recognition of mana and in this context Kaitiakitanga or guardianship status.

One useful rule to remember is that it is not for any applicant to determine which individual, whanau (family), hapu (subtribe), or iwi or group of iwi necessarily exercises manawhenua, unless the status of the group remains unchallenged.

Therefore, it is important to be as inclusive as possible in terms of consultation. This means extending an invitation to all local Maori representatives (and sometimes non-local Maori representatives) to consult - whether they be a small group or one of the emerging, now well known tribal organisations such as Tainui in the Waikato or Ngai Tahu (sometimes known as Kai Tahu) in the South Island.

The local and regional authorities will normally have a register of tangata whenua groups who actively engage in consultation with various developers within their jurisdiction. At times they (the authorities) may express a preference for who should be consulted with. This may be useful, but it is important to remember that under the RMA any Maori group can object to a development and therefore it does not pay to consult exclusively with one particular group merely on the advice of the authorities.

Other useful guides are:

• Maori Land Court - there are 6 regional Maori Land Courts. The Maori Land Court has an extensive database regarding the interests of tangata whenua in the various regions.
• Waitangi Tribunal - the Waitangi Tribunal keeps a register of all claims. A useful starting point for consultation is to determine whether or not a particular Maori group has a claim which may affect the proposed area for development. While Treaty claims may not, according to the Environment Court, be directly relevant for RMA purposes, it is likely that such claims will be an important focal point for local Maori.

The staff at the Maori Land Court and at the Waitangi Tribunal are normally very helpful in terms of identifying local Maori who have an interest in the area affected by the proposed development.

Te Puni Kokiri is another organisation with extensive information on tangata whenua groups. However, there may be some reluctance by this organisation to release information because of the Privacy Act/Official Information Act considerations.

In our experience, no potential resource user can afford to overlook the opportunity to build strong relationships with tangata whenua. Increasing recognition of Maori concerns coupled with the growth of well resourced tribal corporations has created a climate in this field, the benefits of which are best attained, for both sides, by a partnership based firmly on mutual respect.

Cost

One of the other realities under the RMA is that consultation with tangata whenua will cost, particularly when more than one group purports to be representative of tangata whenua.

In recent times, particularly with respect to Maori groups in the Auckland region, consultation has been undertaken on a fee for service basis. This may involve the rendering of an invoice for, among other things:

• Mileage.
• Meeting time (for example time spent fee per hour).
• Hui fee - normally for food and venue.

Other fees may relate to:

• Providing a report (either historical or cultural), particularly in terms of culturally significant places; and
• Drafting of an agreement on protocols and/or management plans.

Where waahi tapu may need to be identified, there may be also a request to use cultural markers and this could involve a fee for carvings, etc.

At times there may appear to be an obvious commercialism to RMA consultation. In this regard applicants need to be realistic. First, there needs to be an understanding that many (but not all) Maori organisations do not have significant resources for consultation. Second, the perception of many Maori/tangata whenua is that development of any significant size can afford to carry the cost of consultation.

Some useful tips in this context include:

• Be upfront about costs - do not wait for the invoice and then simply complain about it;
• Be commercially aware - many tangata whenua groups are looking to participate in commercial opportunity; and
• Without threatening the process of consultation, bargain for an appropriate fee. Relevant factors include:

1. the nature of the project - for example, exploration is at the bottom end of the scale in terms of environmental effects and therefore the level of consultation should reflect this; and
2. the type of consultation required - identify whether, for example, extensive hui are required or whether meetings with one, two or a small group of representatives is sufficient;

Remember, however, that while there may be a commercial element to consultation, the potential impact on matters of cultural significance should be the focus of your attention. Consultation is about information sharing. At the end of the day appropriate information sharing could save an inordinate amount of expense by avoiding lengthy RMA litigation.

Protocols

Consultation will take place in many ways and in many phases. While first contact will be by way of letter and/or telephone call, inevitably there will need to be a person to person, face to face meeting. Any project of more than minor size will likely involve hui with a marae or iwi committee at the particular marae of the tangata whenua.

There are no hard and fast rules or protocols that apply to every marae throughout the country. The traditions, kawa (protocols) or tikanga (law/lore) customs will vary according to the region and indeed according to the particular history and customs of the tangata whenua.

Some fairly common themes or points to remember include:

• Any significant meeting at a marae will involve you and any other person in your group to being called onto the marae. The formality of this procedure will again vary according to the marae and, when in doubt, you should seek some assistance from one of the tangata whenua as to their particular protocols or from the appropriate Council Iwi liaison officer.
• Once called on to the marae, there will usually be an exchange of speeches. This may involve tangata whenua giving you some history of their marae, hapu and iwi. It will be your opportunity to introduce yourself and the purpose of the hui. Again, the formality of this particular process will depend on the marae in question.
• You will then normally adjourn to the meeting house to commence the hui proper. It is customary practice of many marae to commence any discussion of significance with a prayer or karakia.
• Prior to entering the meeting house or in the meeting house, you will hongi with the tangata whenua. This is a very important part of the greeting.

While most New Zealanders are exposed to these protocols, they are often misunderstood. One of the primary reasons for the protocols, particularly the hongi, is to remove the tapu of the visitor. It is inappropriate for any person to enter a marae without going through these protocols and without having this tapu removed.

Again when in doubt, speak to one of the local tangata whenua or a person with some specialist knowledge in this area, about the local protocols.

Certainty

Tangata whenua will very rarely openly support development by third parties. Normally, the best that can be achieved out of the consultation process is an agreement that tangata whenua will not object to the proposal.

It has become common practice to develop memoranda of understanding or cultural management plans which directly address the key concerns of tangata whenua. The nature of these understandings or plans will depend on a number of factors including:

• The scale of the proposal.
• The phase of development.
• The likelihood of future development.
• The possibility of a commercial relationship.

The types of matters of memoranda of understanding or cultural management plans address include:

• Operational procedures/protocols dealing with the discovery of waahi tapu, koiwi (bones), taonga, other archaeological finds of importance to Maori. This may also involve having a copy of the operational procedures on the site at all times.
• The demarcation of culturally important sites with markers approved by tangata whenua. These are sometimes referred to as rahui. Normally such rahui signify that the relevant area should not be disturbed.
• Establishment of a fund for the purpose of assisting iwi/Maori in identification of taonga on site and where possible the removal of those taonga from the development site.
• Responsibility for contacting appropriate representatives of Maori upon the discovery of any material/matter of importance to Maori.
• Blessing ceremonies, particularly with respect to areas that are considered to be waahi tapu.

While arriving at a memorandum of understanding or agreeing to a cultural management plan will not necessarily achieve absolute certainty of outcome, it provides a base upon which to make an application for resource consent and possibly avoid substantial opposition. At the very least, the exercise provides the developer with an opportunity to identify the issues of concern to Maori and how to address those concerns.

Some mistakes to avoid include:

• Do not accept that a particular group has an exclusive right to represent tangata whenua unless you are certain that they do.
• Even if you accept that they represent tangata whenua, do not limit your ability to consult with other Maori groups.
• Avoid generalities. For example, if the object is to protect waahi tapu, avoid, where possible, bland reference to sites of cultural heritage. Avoiding such generality may in turn avoid a potential for future confusion as to the scope of any agreement.
• One of the difficulties in this context is that sites of a sensitive nature may not be identified by tangata whenua for cultural reasons. Discussion in this area will have to be handled carefully. It requires a certain amount of trust. Focus on remedies, for example seek input as to how tangata whenua believe the adverse effects can be avoided. It may be that identification will not be necessary.

Maori Expectations

Memorandum of understanding and cultural management plans can only go so far. In recent times, several Maori groups have complained that such agreements or plans rarely provide any practical benefit to Maori. In this regard, Maori groups are looking for practical involvement in the protection of matters of concern to them. For example:

• Many Maori want to be involved in the monitoring exercise, whether it be in terms of working with archaeologists or overseeing the implementation of mitigation measures.
• When there is any problem, for example when taonga are unearthed, they wish to be consulted immediately and involved directly in any handling of those taonga at the outset.
• Often, there will be a request to have the practical measures incorporated in the resource consent via a condition of consent. This may also involve timetabling of the steps needed to give practical effect to these measures.
• This may also involve some commitment in terms of funding to give effect to those measures.
• Often, a review clause will be sought to enable both parties to come together at the end of the specified period to discuss how matters of cultural significance have been dealt with and how the practical measures have or have not been successful.

It will be obvious that this sort of detail and the sort of "practical measures" needed will vary according to the project, and in particular for the very large developments, including significant mining developments, such procedures and processes will need to be considered.

Finally, in this context, it is important to realise that there may be occasions where you cannot reach agreement with tangata whenua and there is little point trying to force the issue. It will be a difficult judgment to make, but there will be times where, having completed consultation, you will have to simply push on with the resource consent application, taking into account as best you can matters of concern to Maori.

Footnotes

1 See for example: Quarantine Wastes (NZ) Limited v Waste Resources Limited, High Court, Auckland CP 306/93,

2 March 1994; Rural Management Limited v Banks Peninsula District Court (1994) NZRMA 412 (Environment Court).

Authors

Mark Christensen BA(Hons), LLB(Hons)(Otago) was admitted to the bar in 1984 and specialises in environmental and resource management law, with an emphasis on minerals, waste management, air and water discharges, energy and mining, environmental auditing, hazardous substances and biotechnology. Previously, he was employed by the World Conservation Union in Bonn.

Kitt Littlejohn LLB, BA (Canterbury) was admitted to the bar in 1993 and is a Senior Solicitor in the environmental resource management team at Russell McVeagh McKenzie Bartleet and Co. He is involved in all aspects of resource management including statutory planning, resource consents, advising in environmental liabilities, consultation and natural resource projects.

Russell C. Karu BA,LLB (Hauraki-Tainui, Waikato-Tainui, Ngati Tara Tokanui Tawhakii) is a senior Solicitor in Russell McVeagh's Maori Legal Group and Environment and Resource Management Group in Auckland. Russell has extensive experience in Treaty of Waitangi litigation, Maori Land Law and public law and policy. Russell Graduated with a BA and LLB from Waikato University Law School, he has been accepted into Harvard Law School to complete an LLM and will travel to America in July.

Last modified: 27 Sept 2002