In the National Interest - John Tamihere Speech
Hon. John Tamihere
In the National Interest
Speech to the Petroleum Exploration Association, Hotel Intercontinental, Grey St, Wellington, Wednesday, October 15, 1pm
First I would like to offer my thanks to the Petroleum Exploration Association for inviting me to speak, and thank you all attending today.
I'd like to speak first about an issue which I know has been of great interest to the association, the Waitangi Tribunal's Petroleum Report, and talk through the Government's response to that issue with you.
Secondly, I'd like to touch on another fairly contentious topic that has a lot of issues in common with those raised in the debate over the Petroleum Report, and that is the foreshore and seabed debate.
THE PETROLEUM REPORT
I know you will have kept a pretty close watching brief on the petroleum issue, but I'll just recap briefly the facts as I see them.
In May this year the Waitangi Tribunal issued the Petroleum Report into claims by Nga Hapu o Nga Ruahine of Taranaki and Ngati Kahungunu of Hawke's Bay and Wairarapa in relation to their interests in petroleum resources.
Before 1937 land ownership carried with it legal rights to the petroleum in the land, but with the Petroleum Act 1937 the Crown nationalised the petroleum resource, without paying compensation to land owners (be they Maori or non-Maori) and without making provision for the ongoing payment of royalties to them.
The claimants argued that in the 19th Century, and up until 1937, the Crown perpetrated many breaches of the Treaty of Waitangi whereby they lost most of their land, and the petroleum that went with it.
The Waitangi Tribunal agreed that expropriation of pre-existing Maori rights to petroleum arose from a context "riddled with breaches of the Treaty". Most of the land in Taranaki, in particular, had been confiscated.
The tribunal concluded that where legal rights to an important and valuable resource were lost as a direct result of a Treaty breach, a "Treaty interest" is generated. This concept of a "Treaty interest" has not arisen prior to the Tribunal's report, and introduced a whole new concept into the Treaty settlements debate.
It is also interesting to note that while the Tribunal found that Maori have a "Treaty interest" in petroleum, it did not consider petroleum was a taonga or special treasure – and therefore not covered by article two of the Treaty, without the addition of the idea of a "Treaty interest".
The Tribunal stated that when a Treaty interest arises, there follows a right to a remedy, and an obligation by the Crown to negotiate redress for the wrongful loss of the legal right.
The Tribunal considered that the claimants had a Treaty interest in the petroleum resource and were accordingly entitled to redress – redress beyond that to which their historical land loss grievances entitle them.
Furthermore, the Tribunal held that the Crown's view that petroleum assets should be excluded from settlements was a further breach of the Treaty.
The Tribunal recommended that the Crown and affected Maori groups negotiate for the settlement of petroleum grievances, and that the Crown delay selling its stake in the Kupe gas field until a "rational" policy is developed to safeguard Maori interests, or until the petroleum claims are settled.
Government (supported by the Petroleum Exploration
Association) rejected those recommendations, saying that it
was in the national interest to do so.
The Government considers that oil and gas are public assets, held in the public interest.
It must also be remembered that the Waitangi Tribunal's recommendations are just that – recommendations, and they do not place any legal, binding obligation on the Government to implement them. Also, the Tribunal intends to issue a second report in due course, so we have not reached the end of the Tribunal process yet.
While some Maori have criticised the Government's actions in this regard as a further breach of the Treaty, I believe that those actions are actually supported by the Treaty.
Under the Treaty, Maori ceded governance to the Crown, and under article three of the Treaty agreed to equality of treatment. That works both ways: it means we must address historical wrongs, but we must not let the pendulum swing too far and let a correction become an over-correction.
National resources such as petroleum are not on the negotiating table in terms of Treaty settlements.
There are parallels in the Government's response to the Tribunal's report on petroleum, and its response to the foreshore and seabed issue. In both cases, the concept of the public interest has been a central part of the Government's argument.
THE FORESHORE AND SEABED
There has been a lot of misinformation and misunderstanding surrounding the seabed and foreshore debate, but I can sum it up as follows.
The case arose when a group of iwi in the north of the South Island were concerned that their customary interests were not being properly acknowledged in the context of development of marine farming, or aquaculture, in the Marlborough Sounds.
They took their case to the Maori Land Court, asserting customary rights to the foreshore and seabed. The case went through the courts process till the Appeal Court ruled that the Maori Land Court had jurisdiction to hear the iwi claims and investigate the status of the foreshore and seabed.
The Appeal Court didn't rule, as many people seem to mistakenly believe, that Maori own the seabed and foreshore, but the Appeal Court decision nevertheless alarmed many New Zealanders who had assumed that everyone had a right to free and open access to the foreshore and seabed.
The Government responded with a proposed solution to the issue. It proposed that the foreshore and seabed be held in the public domain, but be regulated by the Crown on behalf of all New Zealanders.
The Government also proposed that processes should exist to enable the customary Maori rights of whanau, hapu and iwi in the seabed and foreshore to be identified, acknowledged and protected.
And let's make one thing clear: Maori customary rights to the foreshore and seabed belong to specific groups of Maori; not Maori as a whole, or even at iwi level, but at whanau, whanui and, at most, hapu level.
Nor are they commercial rights – commercial fishing rights were settled in the 1992 Sealords deal. They are the traditional rights such as are practiced by my own whanau, for example rights to take shellfish in our particular area, that are handed down from generation to generation.
So any suggestions that the beaches will be fenced off with barbed wire this summer, and that non-Maori will be kept out, or charged a fee to enjoy a barbecue or a swim, are purely mischievous. That is clearly not an acceptable scenario, and it won’t be happening.
In outlining its position, the Government has stated that it has a responsibility to balance competing interests and demands, and decide how those demands are best brought together in the overall public good. That stance is the same as the stance taken in the Government's response to the petroleum report: the overall public good must be protected.
As you are probably aware, the Government put its proposal to a series of 10 hui around the country (as well as a large number of public meetings, and meetings with various stakeholder groups) and Maori rejected the proposal.
However during those hui, and in discussion that flowed from those hui, a number of alternatives proposals were put forward with the aim of exploring how Maori customary rights can best be recognised and protected.
Right now the Government is working its way through the thousands of submissions it has received on the foreshore and seabed issue, and will come up with a response in due course.
I can see how issues like the seabed and foreshore debate and the petroleum report cause quite a bit of angst among non-Maori. I can understand how sections of our community can be experiencing Treaty fatigue, and the foreshore issue in particular has become a bit of a focus for a lot of the resentments and anxieties that have been simmering away under the surface for quite a while.
But in looking at the Treaty settlements process I think we need to look at how far we have come in the last couple of decades. All the major claims have either been settled, such as in the case of Ngai Tahu and Tainui, as have a large number of smaller settlements. All other claims are locked into the settlement process, and will be resolved as they move through that process, with funding of about $100 million a year going into settlements.
As those significant resources flow into Maori communities – and we need to make sure they do reach our communities, rather than be held in the hands of a few, in the name of the many – I believe Maori will move on to a new stage in the journey.
To do that, we need to move out of grievance mode and move into a more constructive phase. We, as Maori, need to take on greater responsibility on moving things forward, in taking a positive leadership role, inspiring and enabling our people to reach their full potential.
Watch this space, because in the next year we will be seeing some very interesting and positive changes regarding Maori leadership, and the Government's partnership with Maori. I think there will be some very forward-thinking developments over the coming year in that regard, and you will find them every bit as exciting as I do.