Home 
Law
|
|
|
|||||
Unearthing (de)colonial legal relations: mining law in Aotearoa New ZealandEstair Van Wagner and Maria Bargh The structure of relations produced through environmental law affects not only the relationships between different levels of decision makers and between decision makers and constituents but also critically shapes “the subjective relationships of people with each other and with the environment.”[1] In particular, control over people-place relations is a foundational element of colonial power.[2] Therefore, unsettling dominant people-place relations is central to the work of decolonization.[3] Here we examine how the work of shaping people-place relations occurs through law in the context of mineral prospecting, exploration, and extraction in Aotearoa New Zealand. Minerals in Aotearoa New Zealand are regulated by the Crown Minerals Act, 1991 (the CMA). Like other statutes in New Zealand, the CMA recognizes Те Tiriti о Waitangi (the Treaty of Waitangi), signed by the British and Maori in 1840, and therefore the relationship between Maori and the lands and resources governed by the Act. The Treaty relationship continues to play a crucial role in conflicts about land and resources and is central to the practice of decolonization for Maori. However, as we argue, the governance of relationships between people and minerals, as foundational elements of material systems, extend much further to the Maori legal orders developed throughout Aotearoa. The Treaty brought these systems of law and governance into a relationship with British colonial law. However, the CMA fails to recognize and accommodate Maori jurisdiction over territory, including the mineral resources in a particular robe (traditional territory). While Maori must be consulted when the state considers whether to open up lands to mineral exploration, prospecting, or mining, the CMA consultation regime is used to reinscribe the colonial order of people-place relations on the area of a proposed permit. Crown relations to mineral resources are placed at the peak of a hierarchy of interests. Despite the explicit recognition of the Treaty and provision for engagement with inn (tribe) and hapu (sub-tribe), the CMA consultation process undermines the tin о rangatiratanga (self-determination/chiefly authority) protected by the Treaty and the jurisdictional authority over lands and resources flowing from it. We examine the ways in which Maori participation in the CMA process disrupts and contests these relations, and yet why Maori submissions are rarely able to influence the outcome of the block offer process. Below, we explore Maori contestation of colonial people-place relations through a case study of a block offer - the national minerals exploration tendering process - for epithermal gold in the Central North Island of Aotearoa New Zealand. We examine the process through iwi and hapu submissions as well as data from key informant interviews in local and national government. Our case study draws attention to mining not only because it is often a highly impactful, transformative, and often destructive land use, but also because it is raises complex issues about the relationship between law and place. Open pit mining, such as epithermal gold mining, is transformative - a particular place simply no longer exists once the minerals and the land, waters, plants, and animals surrounding and connected to them are removed. For Maori, this does not only have material impacts; Maori legal orders and authority are rooted firmly in particular places and intergenerational and metaphysical relationships of kinship and responsibility with that place.[4] [5] We argue decolonial relations with minerals require the transformation of Crown-Maori relations to meaningfully recognize mana as place-based authority, practiced and upheld by maintenance and care for the complex Maori kinship relations with the physical and metaphysical world. In this way, people- place relations and the place-based laws flowing from these enduring kinship relations will not only be considered by Crown decision makers, they will be a source of jurisdiction for iwi and hapu to fulfil their obligations and responsibilities. Methodology Our approach to this research is informed by Kaupapa Maori methodologies.3 According to authors such as Linda Smith, Fiona Cram, and Graham Smith, who have written extensively about Kaupapa Maori methodologies, the core principles include the following: (a) establishing relationships with Maori as part of the research; (b) maintaining respectful and culturally appropriate behaviours towards participants; and (c) reflecting on the political role that research plays in either protecting the political, economic, and legal status quo or changing it.[6] These principles guided the ways that information was collected and prioritized. While our focus in this research is examining and exposing the structure of state mining law and not a detailed examination of tikanga (Maori system of law) in relation to minerals and land use, our research intentionally foregrounds Maori views. We do so in order to emphasize the need for Indigenous knowledge to be a central consideration in land use and natural resource decision-making. Further, we aim to use our scholarly research to disrupt the status quo and support Maori aspirations and assertions of jurisdiction and tino rangatiratanga with respect to their lands, resources, and legal orders. Core concepts in the Maori worldview The Maori perspectives examined below are based on a particular worldview and system of law (tikanga), which flows from several core concepts: relationships (whanaungatanga), guardianship (manaakitanga/kaitiakitanga), authority (mana), spiritual quality (tapu), and balance (utu). These core concepts assist in understanding the centrality of people-place relations and the genealogical connections between people and the environment. Positive relationships amongst people and between people and landscape features and flora and fauna play a crucial role in maintaining peace and balance.[7] Through caring relations and guardianship, particular kinds of behaviours to promote sustainability within human and environmental relations are encouraged and reinforced. Authority, or mana, relates not only to the individual authority of people and leaders but also to the authority that particular groups have over specific resources and areas, and therefore the responsibilities they hold. Behaviours in Maori society are also regulated through the concept of tapu or the spiritual element of all things. The concept of utu, or balance, is a key mechanism to ensure the maintenance of relationships. When rules are breached, or a loss or change occurs, there must be an action (utu) to restore the balance.[8] These concepts inform all areas of Maori law, including the use and management of natural resources such as minerals. Ownership and jurisdiction in relation to mineral resources In Western colonial thought, minerals are understood primarily through their ability to be extracted from their surroundings and made useful for humans, without agency or relations to humans or the more-than-human world.[9] However, this view of minerals as primarily “resources” has not always been the dominant understanding of these foundational inorganic elements of the environment. Maori have long-standing relations with minerals, including a history of their use in various areas of Aotearoa.[10] These relations are not preservationist, as minerals have long played key roles in Maori society. However, Maori environmental relations, including those with mineral resources, are embedded in te ao Maori (the Maori worldview), in which the use of and benefit from natural resources results in a “reciprocal obligation to care for those resources, their environment, and even enhance their ‘energy’ (mauri).”[11] Therefore, natural features can be tupuna (ancestors), with mauri of their own that must be respected. The land itself is Papatuanuku, the earth mother, with Ruaumoko, god of earthquakes inside. As Justice Joe Williams of the New Zealand Court of Appeal notes, “the fundamental law of the maintenance of properly tended relationships” serves as the guiding principle of Maori resource management: “No right in resources can be sustained without the right holder maintaining an ongoing relationship with the resource. No relationship; no right.”[12] Maori continue to assert ownership rights and contest the foundations of colonial claims to mineral ownership, including in the case study we discuss below.[13] As Ruckstuhl et al. conclude, the contemporary Maori response to mining is embedded in “a long legacy of ‘constitutional’ struggles and a sustained adherence to traditional values and practices.”[14] In submissions relating to the block offer case study discussed below, several iwi asserted their ownership of minerals. The Tfiwharetoa Maori Trust Board asserted their “customary rights and interests to Nga Opapa [minerals]” in their tribal area.[15] Ngati Rangitihi argued that “the reservation of minerals to the Crown is contrary to the Treaty of Waitangi” and that they believed they have “equal status with the Crown in decision making for mineral allocation and exploitation in their rohe [traditional area].”[16] Indeed, while asserting and acting upon ownership claimed through statutory vesting under the CMA and its predecessors, the Crown acknowledged these questions as unresolved in the required report to the minister, noting this legal uncertainty as one of the primary “risks” of going ahead with the tender process.[17] The Crown has recognized the rights of some Maori groups to specific minerals, such as pounamu (greenstone or jade).[18] However, it is Crown policy not to consider minerals-based remedies for Treaty settlements, and they have also ignored successful claims before the Waitangi Tribunal, such as the claim by Nga Hapu о Nga Ruahine and Ngati Kahungnunu and other interested parties asserting a proprietary right in petroleum resources, and a subsequent inquiry into the management of petroleum under the CMA.[19] Outside of these Tribunal claims, there has been very limited judicial consideration of the CMA framework, likely due to the limited ability to challenge a minerals decision.[20] Maori perspectives on minerals While iwi and hapu have a range of perspectives on mining, there is broad agreement that mineral extraction should be sustainable, maintain the stability of the environment, avoid or mitigate negative impacts, and provide benefits for iwi and hapii.[21] Mineral resources are not easily extricated from the environment in which they are embedded in te ao Maori.[22] This is in recognition of the complex and necessary geological and hydrogeological functions they serve, but also because the natural environments in which minerals are embedded, such as mountains, are tapu (sacred) and deserving of care and respect. For example, Maori legal scholar Jacinta Ruru explains, “Maori interact and care for mountains and resources found on mountain slopes as taonga (treasures). It is an ethic that embodies the historical, spiritual and cultural association with land.”[23] Indeed, Maori environmental management focuses on these broader ecological systems as central to sustaining not only human life, but all parts of the natural and spiritual worlds and future generations. Dame Nganeko Minhinnick notes, “in environmental terms the kaitiaki [guardianship] approach is holistic,” and it provides for “restoration of damaged ecological systems, restoration of ecological harmony, increased usefulness of resources, and reduced risk to present and future generations.”[24] Humans have direct responsibility as kaitiaki of particular places to ensure the mauri (life force) of the land is respected through only sustainable use of resources. Indeed, rnana is directly related to the ability of an individual or community to maintain and enhance mauri of taonga (treasured resources).[25] Therefore, while Maori environmental management does not necessarily result in a prohibition on mining and the use of minerals for human benefit, it does import a different set of values and relationships than the Anglo-colonial worldview in which current mining law is embedded.[26] As the Waitangi Tribunal has noted, “nothing about tino rangatiratanga [self-determination], nor anything in Maori customary law, confers on Maori the right to destroy natural resources.”[27] Framing the relations of mining law We also rely on both relational legal theory and legal geography to understand the structure of people-place relations under the CMA. Relational theory scholar Jennifer Nedelsky argues the structuring of relationships is a key, but underexamined, function of law.[28] Extending this analysis to people-place relations exposes the structural work effected through property relations and land use laws.[29] As legal geographer Nick Blomley notes, through law “a set of relations specified as legally consequential are bracketed and detached from entanglements (ethical, practical, ecological, ontological) that are now placed outside the frame.”[30] The use of law to structure and bracket relations is, as Blomley notes, always limited and partial. However, it is also always political because not all parties have equal ability to shape the frame and determine what is in and what is out.[31] Indeed, as Canadian geographer Shiri Pasternak points out, the concept of jurisdiction becomes a critical tool in unpacking the claims at the heart of land and resource disputes in settler colonial contexts. While Indigenous parties bring forward assertions of ownership and governmental authority, the presumption of the Crown’s ownership and jurisdiction over land use and resource development is used to transform their claims to “reflect state frames of recognition.”[32] Further, in the context of land use and natural resource planning, the rationality of technical expertise is often mobilized to justify and enforce prior political decisions about spatial order.[33] The resulting “narratives of necessity” place conceptual limits on the terms of debate about specific land use decisions with important implications for attempts to assert alternative or non-extractive relations with place.[34] In the context of settler colonial nations, this closure has important consequences for Indigenous Peoples whose legal orders arc embedded in worldviews with profoundly different values and principles than settler colonial state law.[35] As legal geographers Carolyn Harrison and Tracey Bedford argue, reliance on technical experts and the resulting instrumental rationality can result in “institutional closure” to the range of value orientations engaged by environmental decisions.[36] Unearthing (de)colonial legal relations 165 Mining and the Treaty relationship Our analysis is also embedded in broader debates about the Treaty partnership between the Crown and Maori. As Maori scholar Margaret Mutu notes, “decolonization in Aotearoa/New Zealand has focused on honouring, upholding, and implementing the treaty.”[37] Notably there are differing interpretations of the Treaty, in part because there are two versions: one in English and one in the Maori language. Most of the Maori signatories signed the Maori language version.[38] Major differences in interpretation arise in part because in the English version, Maori cede sovereignty to the British whereas in the Maori language version, Maori allow the British to set up a government but retain tino rangatiratanga over their lands, villages, resources, and taonga. Both Maori and the Crown recognize the Treaty as a foundational part of the constitutional framework of Aotearoa New Zealand.[39] However, debates about the meanings and status of the Treat)' are ongoing,[40] and the differing interpretations and broad wording of the provisions have led to the development of an evolving set of principles by the Crown, the courts, and the Waitangi Tribunal.[41] In their Report on the Management of the Petroleum Resource, the Tribunal found the following principles to be particularly relevant: partnership, the principle of active protection, and redress.[42] The principle of partnership refers to the nature of the relationship between the Crown and Maori as being one of equal partners who act in good faith. The Tribunal has stated this can be achieved in the most straightforward way by having each partner on the decision-making body.[43] The courts have been less definitive about the relative status of the partners but have nonetheless noted the honour of the Crown requires it act with “the utmost good faith” towards its Treaty partner and to make informed decisions.[44] The principle of active protection indicates that the Crown has a duty to actively protect Maori rights and interests, which tlie courts and the Tribunal have found cannot necessarily be satisfied by consultation alone.[45] Indeed, with respect to petroleum, the Tribunal concluded Treaty-compliant outcomes can only be ensured where all key decision-making processes involve Maori participation of a kind that is appropriate to the decision being made.[46] Further, consultation must be meaningful and the decision maker must have an open mind rather than presenting a fait accompli.[47] The principle of redress suggests “past wrongs give rise to the right of redress” and imposes a positive obligation on the Crown to take steps to remedy breaches. Further, contemporary minerals and resource management should not compound past injustices or breaches.[48] We examine Maori participation under the CMA in the context of these principles. At the same time, we recognize a wider range of sources of law and jurisdiction in relation to the ownership and governance of mineral resources. We view the existing statutory and policy framework as contingent and therefore as having the potential to be disrupted and transformed through the ongoing negotiation of a meaningful partnership and by Maori contestation of dominant people-place relations. As Mason Duric has noted, “at the heart of the Treaty is the promise of a mutually beneficial relationship between Maori and the Crown, a partnership.”[49] At the same time, we follow Maori scholars such as Mutu and Moana Jackson in arguing that decolonization requires remedying Treaty’ breaches and “restoring the balance” between Maori as owners and decision makers, and settlers as guests invited to share in accordance with tikanga, the law of the land.[50] Case study: the 2013 Epithermal Gold Block Offer As noted in the Tribunal’s 2008 Report on Central North Island Claims (CNI): From the evidence before us it is obvious that, to Central North Island Maori, land and resources had (and have) a spiritual and metaphysical significance that often go to the essence of tribal and personal identity. They are also a link with the past that roots people in their environment.[51] The 2013 Epithermal Gold Block Offer was proposed over a large area in the Central North Island of Aotearoa New Zealand, primarily in the Bay of Plenty area.32 The original proposed area encompassed the rohe of several iwi (Те Arawa, Ngati Awa, Ngati Rangi, Ngati Ranginui, Tuhoe, Ngati Tuwharetoa, Ngati Maniapoto, Tainui) and cut across areas governed by several local authorities, including the Bay of Plenty' Regional Council. Approximately 31.5% of the Bay of Plenty' area is land owned by Maori entities and held in Maori land title and general title.33 The area has been the subject of 16 Waitangi Tribunal historical inquiries into breaches of the Treaty', including the Central North Island Report,[52] [53] [54] [55] and eight major Treaty Settlements, with approximately another 10 being negotiated.33 These include the major forestry settlement, the Central North Island Iwi Collective Crown Forest Settlement in 2008, and the Те Arawa Lakes Settlement in 2006, which established the first iwi-Council co-governance model for a natural resource in New Zealand.[56] [57] As one local council noted, “the Treaty' settlement landscape is a significant feature of our region.”5/ According to the Crown, the Block Offer area was selected “to take account of geology and prospectivity'” in a “prime region for epithermal gold and silver deposits.”[58] In 2008, the Tribunal released their findings in their inquiry into breaches in the Central North Island. They concluded the Crown had failed to protect the tino rangatiratanga of Central North Island iwi and hapu, actively undermining Maori legal and governance systems.[59] The Tribunal also made important findings in relation to the loss of control over resources, particularly geothermal resources. This is notable in the context of the 2013 Block Offer because the gold deposits located in the area are produced by heat at shallow depths in relationship to hot springs and volcanic features.[60] These types of gold deposit are referred to in the mining industry as “bonanza” deposits because they can be very rich and easy to extract.[61] As noted by the Tribunal, these geothermal features are taonga, including the subsurface elements of the Taupo Volcanic Zone.[62] They were “struck” by “the exercise of authority over geothermal resources that has remained unbroken for hundreds of years.” Therefore, the gold being offered up for exploration is in direct relationship with, and even constituted by, the geothermal systems at the heart of Maori kinship relations in the CNI, and therefore tino rangatiratanga and “onerous” kaitiaki responsibilities and obligations. As the tribunal noted, the legal relationships with geothermal resources are based on intense associations with the resources, an extensive accumulated knowledge of its behaviour, and the varying characteristics of different surface and subsurface manifestations - as with every other aspect of Maori knowledge of the natural world with which they claimed a close relationship.[63] The 2013 Block Offer process Affected iwi and hapu were notified of the proposed offer area in March 2013 with approximately two months of consultation following the initial notifications. There were 15 iwi and hapu submissions, as well as seven from councils. Maori submitters overwhelmingly rejected the proposed offer area, with all submitters noting significant concerns about the proposals. The Те Arawa Coalition[64] held several meetings with New Zealand Petroleum and Minerals officials and the Minister of Energy and Resources and Minister of Maori Development. Tc Arawa hapu also held separate hui (gathering) in and around Rotorua, including a Hui on Mining at Kearoa marae, Horohoro in June and a hui-a-iwi. The Те Arawa hui-a-iwi passed a resolution stating that they “do not support epithermal gold mining in the Те Arawa rohe.”[65] Most of the iwi and hapu submissions requested their entire rohe or significant areas be excluded from the Block Offer.[66] If all of these exclusions had been granted, there would have been no Block Offer area at all. In addition, several iwi and councils requested specific sites be excluded.[67] Opposition to the offer area was firmly rooted in an understanding of Maori holding a level of jurisdiction over land and over the specific resource. This was expressed both in written submissions and at face-to-face meetings.68 Following from the recommendations of the Results of Consultation Report to the Minister, the tender proceeded.69 In May 2014, a five-year permit was granted to Silver City Ltd.70 for a 33 km2 area in the Central North Island. By 2016, Silver City had quietly relinquished their permit.71 The structure of mineral relations in Aotearoa Nexv Zealand Sources of law Iwi and hapu rely on a range of sources of law and jurisdiction beyond the CMA. These include tikanga and inherent jurisdictions such as mana whenua and kaitia- kitanga; Treaty settlements and statutory acknowledgements; Agreements with the Crown about particular places; Accords with the Crown; Waitangi Tribunal reports; and instruments under the CMA and the Resource Management Act 1991, such as iwi management plans or official plans.72 The primary source for the majority of iwi and hapu submitters was tikanga and the assertion of their
In the CNI report, the Tribunal concluded the Crown must “actively protect the exercise of rangatiratanga (including customary law and values) in environmental and resource management, not reduce the duty of active protection merely to taking these relationships and values into account.”[71] However, in the 2013 Block Offer process, the Crown relied solely on the CMA and its instruments as the source of legal authority. No reference was made to tikanga or to relevant Tribunal reports as guiding the process or as relevant in the analysis post-consultation. State mining law in New Zealand is divided between allocative functions under the CMA and the governance of environmental and social effects under the Resource Management Act 1991. These functions were intentionally severed when sweeping law reform brought the majority of environmental and planning law under the RMA in 1991. Notably, minerals are the only resource singled out in this way from the integrated approach under the broad environmental planning RMA. As the first step, the allocation permitting process provides the Crown critical chronological power to determine when the process begins and when and how other parties must engage and respond. For Maori, this chronological power indicates the hierarchy of relations. The Crown’s relations are positioned as primary. State law is the relevant legal framework, and iwi and hapti are submitters who must fit into its frame to make claims cognizable. Maori relations with place and the mineral resource at stake are subordinated to the primary statutory purpose and “balanced” against a variety of other Crown-determined factors in determining when exploration and extraction will take place.[72] This balancing act is also expressly structured by the CMA to prioritize the extraction of minerals. As Ministry officials told us, “We’ve got our hands tied because of our legislation.”[73] The Tribunal, including in both the Central North Island Report and the Report on the Management of Petroleum, has noted the potential for Maori to be prejudiced by such balancing exercises.[74] Indeed, former National Manager Scfton Darby, who led the 2013 Block Offer process, characterized the role of the Ministry as “cheerleading instead of regulating” the mining industry.[75] The purpose of the CMA When the Crown Minerals Bill was before Parliament in 1991, the Minister of Energy dismissed opposition to mining.[76] The government’s position was that sustainable management of mineral resources was “more likely to be achieved through ensuring there are as few barriers as possible to invest in exploration” and “with as few Government interventions as possible.”[8] Opposition members opposed the Bill, characterizing it as prioritizing development.[78] A purpose clause was inserted by the 2013 reforms, which defines the purpose as the promotion of “prospecting for, exploration for, and mining of Crown owned minerals for the benefit of New Zealand.”[79] The scheme presumes extraction to be in the public benefit rather than initiating an inquiry into whether or how it will, or will not, be of benefit in the particular circumstances. A proposed development therefore goes forward from an initial stage with “rights” to engage in this presumptively beneficial activity regardless of the impact it may have, which are to be dealt with at a later stage under the RMA consent process. Despite evidence to the contrary, particularly in relation to gold and silver mining, there is no opportunity' to contest the presumption of investment and employment benefits in the CMA process.[80] The presumptive benefit clearly outweighs even the Treaty relationship at the core of New Zealand law, despite strong criticism of the Ministry’s failure to undertake a cost benefit analysis of mining activity and the “absolutely fantastical” numbers to describe the contribution of the mining sector to the economy.[81] While iwi submitters called for the inclusion of Maori interests directly in the purpose clause during the most recent CMA reform processes in 2013, the government rejected these calls.[82] Understanding Treaty relations: the section 4 Treaty clause The Treaty relationship was a central element of iwi and hapu submissions, particularly the concept of partnership. Ngati Tuwharetoa noted Treaty partnership “would require Crown and Ngati Tuwharetoa to make decisions together in respect of whether licences ought to be granted within our area of interest and on what conditions.”[83] Ngati Rangitihi asserted “equal status with the Crown in decision making for mineral allocation and exploitation in their rohe.”[84] This conception of the partnership is consistent with the findings of the Central North Island Report.[85] The Crown’s view of the Treaty relationship under the CMA is set out in the stand-alone Treaty clause in section 4. It requires anyone exercising functions under the Crown Minerals Act, 1991 to “have regard” to the principles of the Treaty ofWaitangi. Given that there are no general requirements for public consultation in the Act, this suggests Maori views will be of particular significance in minerals decisions. However, not only is the CMA clause a weak Treaty clause, but it clearly positions Treaty relations as peripheral to the promotional purposes of the Act. Maori members and others noted the weakness of the Treaty clause during debate when the Act was first introduced, noting that the minerals bill was not consistent with the Maori engagement and sustainability objectives set out in the companion RMA bill and was weaker than other statutes.[86] The Tribunal recommended the Treaty clause be revised to be “at least” the level of the Conservation Act 1987 and the State-Owned Enterprises Act 1986.[20] These statutes respectively require the Crown to administer and interpret the respective Acts so as to “give effect to the principles of the Treaty” or state the Act cannot be interpreted to “permit the Crown to act in a manner that is inconsistent with the principles of the Treaty.”[88] The courts have interpreted the phrase “have regard to” conservatively in the context of other statutes, such as the RMA: The tribunal may not ignore the statement. It must be given genuine attention and thought, and such weight as the tribunal considers appropriate. But having done that the tribunal is entitled to conclude it is not of sufficient significance either alone or together with other matters to outweigh other contrary considerations which it must take into account in accordance with its statutory function.[89] In this context, it is clear the wording of the CM A Treaty clause requires iwi or hapu views to be weighed against other matters rather than considered in their own right, and certainly not given effect to. The facilitative purpose clause works in tandem with the weak Treaty clause to uphold colonial people-place relations. As a result, the 2013 Block Offer Report on Consultation concluded the Те Arawa request for the exclusion of their rohe - about half the tender area - was not in the public interest as it “would substantively restrict the Crown’s ability to manage its mineral assets in the region.”[90] Instead of responding substantively to assertions of jurisdiction and equal partnership by multiple submitters, the Crown reiterated ownership, allocation decision-making, and royalties are not subject to negotiation.[91] Even a request for a permit condition requiring “proactive engagement” was denied as “unenforceable” because of “iwi and hapu who may choose not to engage.”[92] This, the report concluded, unacceptably “takes decision making authority out of the hands of the Crown and places it in the hands of iwi.” These examples demonstrate how through the consultation process, the Crown fixes the conception of the Treaty partnership in accordance with their presumptive jurisdiction rather than in relation to Maori perspectives and laws. These are structurally excluded from decision-making under the CMA by the consultation process itself. The Minerals Programmes: the consultation policy The content of the section 4 duty is contained in the mandatory policy instruments, the Minerals Programmes developed by the minister.[93] They arc the central mandatory instruments created by the Act to provide the details of the management regime for allocation decisions and guide the significant discretionary power under the Act.[94] The Programmes emphasize two interrelated aspects of the Treaty clause: consultation and exclusion requests. Through the Programmes, the Treaty principles are effectively narrowed down to a duty to consult, an approach directly rejected by the Tribunal in the Central North Island Report and the Report on the Management of the Petroleum Resource.[95] [96] Consultation The current Programme requires consultation where an iwi’s or hapu’s rohe includes some or all of the permit area or an iwi or hapti will be “directly affected.”[97] Consultation principles include acting reasonably and in good faith, making informed decisions, including being informed of the Maori perspective and tikanga, and having regard to Treaty principles.[98] The Programme requires meaningful consultation, which includes a number of commitments: “early consultation” to inform of “any Treaty implications or any other matters about which iwi and hapti may wish to express their views”; ensuring sufficient information to make informed decisions and to participate; providing enough time; and ensuring that Crown decision makers will have “an open mind on the views received” and give these views “full and genuine consideration.” This definition is consistent with the jurisprudence on consultation more broadly.[99] The Programme maintains this form of consultation is flexible and mentions face-to-face meetings and hui. However, Ministry officials told us they were “simply unable” to undertake these types of consultation with all iwi and hapti despite acknowledging, “each group for the most part prefers to meet face to face, and us come up to the rohe, and that by far is probably our preference as well.”[100] Therefore, staff must determine whom they are going to engage with most deeply, and consequently, with whom they will not. Consistent with the purpose of the Act, to promote and facilitate extraction, Ministry officials advised us, “we would probably be more likely to want to sit down with a group who is both willing to negotiate and there are parameters to reach some sort of outcome.” Iwi and hapti submitters and councils both criticized the consultation process.[99] Ngati Rangiwewehi noted: “The receipt and acknowledgement of 7 advice letters from the Ministry must not in any way be regarded as an appropriate consultation process from our perspective.”[102] The consultation section of the Programme notes the Ministry has also entered into specific Accords or protocols with iwi or hapu and that these set out how the Crown will engage with them. These instruments are intended to guide how consultation and engagement will occur with the Ministry. The Accords were noted in submissions as recognizing the mana of the signatories. However, Ministry officials told us, “the reality is the accords aren’t binding.” In their view, the meaning of the Accords is explanatory: “Listen, the Crown Mineral Act is messy and it’s hard to interpret so here’s how it affects you directly. The main thing is, here is how we are going to communicate with you.”[100] The Ministerial officials told us Statutory Acknowledgements and Deeds of Recognition did not affect their process because they deal with environmental matters, which they consider not to fall under the CMA. These are included in Treaty settlements to acknowledge areas or sites with which iwi have a special relationship and were cited by many submitters as recognizing their mana and kaitiaki responsibilities. This narrow interpretation of the importance of Crown Acknowledgements to the Treaty relationship compounds the effects of the weak Treaty and facilitative purpose clauses described above to further shift Maori relationships with land outside the minerals framework. Exclusions and conditions Part of the consultation regime under the Programmes is the opportunity' for iwi or hapu to request the exclusion of “defined areas of land of particular importance to the mana of the iwi or hapu.”[104] Schedule 3 of the Programme contains a list of “land that is significant to iwi” to be excluded from the operation of the Programme or not to be included in any permit at the request of an iwi or hapu. However, the Programme also provides for requests during the consultation relating to a block offer or permitting process.[105] The Tribunal found iwi and hapu continually engage in this process in good faith.[106] In 2013, the Programmes were amended to provide for iwi and hapu to request conditions on the proposed activity' in addition to requesting exclusion. While according to the Ministry report the amendment was made in response to iwi submissions during the reform process, it clearly shifts the emphasis from the ability of iwi and hapu to engage with underlying questions about whether mining activity should occur, to a managerial approach focused on how mining will occur in a particular place. Conditions are more consistent with the facilitative statutory purpose. Indeed, while we did not see the submission requesting the change, we might query whether the difficulty in having areas excluded in the past influenced the request for alternative measures.[107] The Ministry officials wre spoke to confirmed the emphasis on conditions rather than exclusion when describing a typical follow up conversation with submitting iwi and hapu: “Help us out here. What would be acceptable to you? Are there specific conditions you are looking for? Or are there specific areas that are really, really important to you?”[100] Requests for exclusion or conditions require reasons for the exclusion or conditions including why the area is important to the mana of iwi and hapu; whether it is a known wahi tapu site; what makes the area unique; whether the area has been recognized as important through Treaty claims and settlements, and objections under other legislation; relevant Treaty claims and the potential to “impede the prospect of redress of grievances”; Marine and Coastal Area (Takutai Moana) Act 2011 rights or interests; and exclusions specified in iwi management plans. However, as the Tribunal noted, the minister relies on the Ministry officials for expertise in making exclusion decisions, not on Maori elders or other experts on local tikanga.[109] The Programme does provide considerations in addition to the reasons of the iwi and hapu.[110] These include Maori interests in the foreshore and seabed,[111] existing legislative protections, viability concerns, and “the size of the area and the value of the potential resource affected if the area is excluded.” The Act explicitly requires the minister to balance existing and recognized iwi and hapu Treaty interests against potential or theoretical benefits. One Ministry official reflected on the need to balance iwi and hapu concerns with their mandate and the shift away from exclusion requests, particularly large- scale exclusion, towards very site specific restrictions and minor restrictions like iw'i monitoring or notification: I think over the time I have been here I have seen the dialogue move from, “No, we hate mining, go away, and this is all really too culturally significant,” and when we front up and say, “Look that is really hard for us to just categorically say no because there are other factors and our Act says we have to facilitate development, help us out here guys, we really want to understand this.”[100] In the view of one official, more positive outcomes have emerged from a dialogue about how rather than «/exploration, prospecting, or extraction will occur. In their view, the “best case-scenario is when we get the iwi group speaking directly with the permit holder and they work through their concerns together.”[8] However, in this way, the Crown’s Treaty responsibilities are outsourced to private entities and are no longer governed by the formal legal relations guiding the Treaty' partnership. Rather, they rely on the willingness and capacity' of private actors going beyond the minimum requirements of exercising their statutory rights. As one Ministry official put it, “really good permit holders will say, ‘Cool, come and help us monitor this’, or ‘Come out onsite with me and show me the areas that we need to avoid.’”[8] While some such arrangements could be conditions of the permit, the Ministry officials we spoke to implied that much of this relationship building would be voluntary on the part of industry and their role was as a “matchmaker” rather than an enforcement authority. Iwi and hapu submitters expressed strong concern about the iwi engagement reporting requirements for industry because there is no requirement for iwi input to the annual report and no means for iwi to verify or contest proponent data provided to the Ministry.[115] Despite the guidance in the Programme, decisions on exclusion or conditions requests remain highly subjective. The Tribunal specifically noted the lack of transparency in the process in relation to petroleum.[116] The minister retains discretion to exclude lands or to reject such a request either at the Programme level or during a permit or block offer process. As one Ministry official told us: the struggle that we deal with every day is the fact that we have a sense in terms of when something is important, where it should be excluded, but there’s no actual number of weighting that has been created through the legislation.[100] In 2011, the Tribunal also noted the very limited success of exclusion requests.[118] In the 2013 Block Offer, the entire area of the tender was subject to requests for exclusion by iwi and hapu. However, the post-consultation report states just two exclusion requests were received from iwi and hapu. Submissions of outright opposition to the tender where not characterized or considered as requests to exclude as they “were not based on protecting sites of significance but broader issues around the Crown’s management of the Crown minerals estate.” Similarly submissions alleging the process was a breach of the Treaty were dismissed, as they did not request specific “parcels of land be excluded due to importance to mana.” However, even requests with very specific details were denied on the grounds they “lacked due specificity.” The requirement for specificity not only imposes spatial limits on exclusions; with respect to wahi tapu sites, it requires iwi to share sensitive and undisclosed information. Ngati Raukawa specifically noted that they found it offensive to be asked to disclose these sites.[119] In the case study, the only requests for exclusion granted after the consultation process were two requests for small areas by local councils, both with low or no prospectivity.[120] Notably, unlike iwi and hapu, councils have no statutory right to consultation or to request exclusions and are only consulted as a matter of internal policy. Waikato and Bay of Plenty Regional Councils also unsuccessfully sought the removal of significant and geothermal resources protected under current planning instruments. As the report noted: “some of the most prospective areas are located over, in, and around geothermal systems.”[121] When we spoke with local council officials, this disregard for the “robust” policies resulting from their lengthy public consultative process, including significant work developing relationships with iwi and hapu, was a clear source of frustration. One interviewee noted, New Zealand Petroleum and Minerals think “they have a preeminent right over any other legislation.”[122] Our interviewees were not only concerned with poor planning outcomes that may result but also the potential for the minerals process to undermine the extensive relationship building work they had undertaken in response to both Treaty settlements and past conflicts and challenges.[123] Indeed, the Tribunal raised a cautionary note about this possibility in relation to petroleum.[106] The limited success of exclusion requests is not surprising in the context of a facilitative regime aimed at promoting one particular activity, and one narrow view of relations with land. As one Ministry official noted, “unfortunately there is only so much we can do.” In their view, the statutory scheme results in “a really strong development focus and really clear criteria.”[100] It is, however, nonetheless concerning in the context of the Treaty relationship. It is particularly troubling amid moves towards partnership models in other natural resource contexts.[126] While there remains much work to be done to improve and enforce Maori engagement and jurisdiction under the RMA and Conservation Act, as Ruckstuhl et al. argue, “the Treaty-based partnership approach . . . has much to offer as a process for engaging in meaningful dialogue with Maori communities to assess the impacts of mining.”[127] In addition to exclusion requests, a number of submissions raised environmental concerns such as toxic damage, loss of habitat and resources, health impacts, and water contamination and usage.[128] Indeed, Ministry officials told us approximately 80% of the concerns raised in CM A consultations are environmental in nature. They told us while environmental effects “create context,” they cannot actually weigh these issues in assessing exclusions or conditions.[100] However, the 2013 Block Offer submissions demonstrate this characterization relies on a fundamental mischaracterization of the role people-place relations in the Maori worldview and legal order. A majority referenced kaitiaki relationships and obligations, including duties to both ancestors and future generations. By narrowly construing these assertions of tikanga processes and relations as ‘environmental issues’, the Crown is able to make an important jurisdictional move. They can exclude not only Maori perspectives, but the very basis of Maori legal and political authority and identity: the relationships of Maori with their land and resources. As the Tribunal noted in the CNI Report: from the evidence before us it is obvious that, to Central North Island Maori, land and resources had (and have) a spiritual and metaphysical significance that often go to the essence of tribal and personal identity. They are also a link with the past that roots people in their environment.[130] Conclusion While creative and landmark settlements are being made in relation to freshwater and protected areas to recognize Maori relations with place, the mining regime continues to attempt to exclude the basis of such relations with minerals and mining sites. Despite close to three decades of Maori participation in the CMA process, clear findings that the processes breached the Treaty, and clear recommendations for improvement from the Tribunal, our case study demonstrates little has changed to ensure Maori jurisdiction in relation to onshore mineral resources in Aotearoa New Zealand. Through the jurisdictional division between the Crown’s allocative functions and environmental decisions under the RMA, CMA decision makers lawfully exclude not only the majority of concerns expressed by iwi and hapti, but the very foundations of their interest in and responsibility to their territory. The Tribunal made concrete suggestions about realizing partnership between the Crown and Maori with respect to the petroleum resource, including comanagement models, commissioning cultural impact reports, resourcing Maori bodies to engage in the process, and the creation of local Maori boards to evaluate permit applications and Ministerial decisions, as well as to provide advice.[131] None of these suggestions have been taken up with respect to minerals - petroleum or otherwise. Indeed, the failure of the minerals regime in this regard was a pressing concern for the interviewees we spoke to at the Council level, where much of the day-to-day work of building and realizing partnerships is undertaken.[132] Implementing the Tribunal’s suggestions would go a long way to address some of the most pressing concerns about the CMA Block Offer process. We would go further. We agree with Erueti and Pietras who note attention to kaitiakitanga and Treaty principles at the exclusion of tino rangatiratanga fails to address the concerns ofiwi and hapu, as demonstrated in our case study. In the 2013 Block Offer, the Crown used kaitiakitanga as a shield, both by claiming its own kaitiaki responsibilities as a kind of public interest obligation and by transforming the laws of Maori people-place relations into “environmental concerns” rather than assertions of jurisdiction. As Tomas argues, full recognition of Treaty partnership requires changes to the “internal structure of the state to overtly recognize Maori as a political. Treaty-based, entity at both local and national levels.”[133] According to Tomas, while the structures for Maori decision-making and autonomy emerging from Treaty settlements are important, they are not enough. “There must be corresponding acknowledgment from the government that their own actions are constrained and that they cannot unilaterally take away Maori rights without Maori consent.”[134] Decolonizing mining law, and natural resource law more broadly, requires a restructuring of people-place relations, one which upholds Maori people-place relations as a source of legal relationships and obligations rather than simply one of many factors to be balanced in a broad and defined public interest.
|
|||||
| << | CONTENTS | >> |
|---|
|
Related topics |
