The Crown Minerals Act 1991 (CMA) was introduced “to promote prospecting for, exploration for, and mining of Crown owned minerals for the benefit of New Zealand.” A series of fundamental questions has emerged as to whether the Act undermines the ability of the Crown and tangata whenua, anchored in Te Tiriti o Waitangi, to operate in a true sense of partnership. Carl Billington takes a closer look.
“Have regard to” Treaty principles
Maria Bargh and Estair Van Wagner write in the book Legal Geography (2020) that the Treaty clause of the CMA is relatively weak compared with comparable statutes – a view supported by the Waitangi Tribunal.
Whereas other statutes require actors to “give effect to” (Conservation Act 1987), “take into account” (Resource Management Act 1991), and avoid “acting inconsistently with” (State Owned Enterprises Act 1986) the principles of the Treaty, the CMA requires that actors only “have regard to” Treaty principles.
Bargh and Wagner argue that this clause “has been narrowly interpreted by courts … as only requiring that a decision maker must give the matter ‘genuine attention and thought’ and that the decision maker ‘is entitled to conclude it is not of sufficient significance … to outweigh other contrary considerations,’”.
Framed this way, the CMA reduces Māori to mere stakeholders whose interests simply need to be considered, rather than Treaty partners at the decision-making table.
The CMA is administered by New Zealand Petroleum and Minerals, a dedicated branch inside MBIE. Guidance on how the Act is to be administered is explained in a set of Minerals Programmes. These programmes also set out the requirements for consultation with iwi and hapū.
Bargh and Wagner comment, “It is the Crown that specifies the matters on which iwi and hapū must be notified and consulted.”
Pushing Māori out
Speaking with Maria Bargh, she adds, “In this way, the CMA essentially pushes the concerns of Māori out of scope, pushing them along the process, to be addressed in the future when the work falls under the Resource Management Act. But by then, core decisions have been made and we’re just tinkering around the edges. Once a permit has been granted under the CMA, history shows its largely inevitable from that point on.”
What this means in practice is that the CMA is essentially assigning mana to those it permits to participate, rather than recognising the mana that tangata whenua already hold independently.
“Underneath all of this is an ongoing assumption of the supremacy of parliament and ‘Cook’s law’ over tikanga Māori, and that flows through the process,” Bargh explains.
“You can almost hear a big sigh at the start of each new submission from Māori. It’s as if to say, ‘Here we go again, we’ll introduce ourselves in case you’re new, we’ve engaged with you previously, on this but we’ll remind you again of the statutory requirements you have with us.’”
“Part of what’s so frustrating for Māori is that we go through this cycle again and again. The Tribunal itself has said that the regime is not consistent with the Treaty and needs to be amended.”
The purpose of the CMA: Promoting prospecting?
A further complicating challenge is the way the purpose of the CMA is articulated, which structurally prejudices Crown agents in favour of commercial interests.
Bargh explains, “It’s been reduced to a transactional interaction with Māori. Nearly every submission from Māori in a recent 2019 review addresses this. The Act has literally been set up to promote the interests of prospectors, that is literally what the purpose says: ‘The purpose of this Act is to promote prospecting, exploration, and mining’.”
This is one of the biggest points of contention and the focus of much feedback in the recent review process. Among the submissions received by MBIE, 57 (approximately one-third of submissions) addressed the current purpose statement directly, with 81 percent of those strongly agreeing that the purpose of the CMA needs to be amended away from an emphasis on promoting mining activity.
“The way the CMA is set up to promote prospecting and mining tilts the process before it starts. It gives Crown agents that instruction immediately. In terms of improvements, the purpose statement is a key place to start,” Bargh adds.
“It makes it difficult for the teams in MBIE to do anything other than approve requests from prospectors. We need to balance the economic and the human outcomes – remove the word ‘promote’ and bring a more balanced focus on longer-term sustainability and dimensions of wellbeing.”
Te Rūnanga o Ngāti Ruanui Trust commented in their submission: “The promotion of mining as an industry is inappropriate for a piece of legislation.”
Among the respondents that felt the purpose of the CMA needed to be amended, just over half of these felt it should include the word “manage” instead of “promote”.
For many Māori, this only adds to the frustration. They feel they are being forced to participate in a process that is not only unable to acknowledge their status as mana whenua but is already pre-determined in favour of commercial interests.
“It’s like we’re forced to participate, even though we don’t agree with the process or the mana it assigns, but it’s a catch-22 if we want to retain any opportunity to influence at all,” Bargh explains.
Institutional memory loss
Another aspect that adds to the problem is the differing views of kaitiakitanga between Māori and the Crown, which is made worse by the constant internal changes within government departments.
Both Bargh and a number of Māori who provided submissions to the 2019 review highlight the challenge of interacting with Crown agencies where there is ongoing, high levels of turnover among staff.
“That means the institutional memory and depth of understanding isn’t there. Māori, however, have long memories – our people have worked on these issues for their iwi and hapū for decades, and that history and context is handed down to their children and grandchildren,” Bargh adds.
A number of respondents describe the frustration of receiving abrupt, transactional emails from junior staff informing iwi that a consultation is open and they have until a set deadline to respond.
“I know it’s not the intention, but it comes across as very rude. When you’re anticipating an equal partnership in the context of ongoing relationship, this is extremely disappointing,” Bargh explains.
“Not only do we have to keep introducing ourselves to new public servants and remind them of their obligations to us and our kaitiaki role, we often don’t even learn about issues until the negotiations are already underway.
“The current CMA process puts the burden on those who seek to protect this country’s resources when the bulk of the burden should be on those seeking to extract them,” Bargh adds.
All of this is entirely consistent with the CMA, but it isn’t partnership.
Suggestions of a way forward together
“If the purpose of the Act was to uphold the Treaty and manage resources for the benefit of all New Zealanders, while also considering the economic, social, environmental, and other outcomes, the whole process would be so different,” Bargh observes.
“Prospectors would be required to show how their proposal will actually create employment and how that will be sustained, rather than just including unsubstantiated estimates. So often they simply bring in their own workforce and there’s no benefit for the community they’re removing resources from.”
In their 2011 report on the CMA, the Waitangi Tribunal noted a range of suggestions for improving partnership engagement with Māori. It included the establishment of regional iwi advisory bodies and making cultural impact assessments integral to the process (on an applicant-pays basis).
Participants in the recent 2019 review added a range of further suggestions that included:
- adding a requirement for permit holders to engage with iwi and hapū
- making culturally based impact assessment reports mandatory
- requiring proof of consultation with iwi from applicants
- having MBIE provide permit holders with iwi contact information.
For iwi, the overall goal is clearly a move towards joint decision making between iwi and the Crown on minerals and oil and gas decisions. However, the above suggestions offer a set of immediate improvements that could be implemented.
As it currently stands, the requirement on the part of prospectors to engage with tangata whenua remains minimal. As Te Korowai o Ngāruahine Trust observed in its submission: “There is no absolute requirement to engage [and] there is no penalty for non-engagement.”
For Bargh and many other iwi representatives, it isn’t about increasing the requirements placed on prospectors to transact more closely with Māori, it’s about shifting from transaction to partnership.
“It’s about joint decision making, co-governance of resources. The current approach is set up to privilege economic outcomes above all else. If we could only change one thing, change the purpose of the Act,” Bargh adds.
While we wait to see the final outcomes of the 2019 review, there seems to be a strong case for change that could help move the CMA much closer to a partnership between tanagata whenua and tangata Tiriti.