The Tribunal found despite evidence presented to it that oil and gas seepage was known of, and used, in pre-colonial times, it was not sufficient to show that these resources are taonga as protected by article 2 of the Treaty. In any case, the Tribunal found it is unnecessary to resolve the issue of whether petroleum is a taonga, as the Crown accepted at the outset of the hearing that there was a Mâori customary interest in petroleum that went with ownership of land:
There is a good argument for a collective Mäori interest (hapû/iwi) in petroleum prior to the confiscations of the 1860s, Crown purchases and the granting of land titles through the Native Land Court and subsequent alienations commencing in the 19th Century. The Crown also accepted that the Mâori customary interest in petroleum included a right to exploit the resource for economic gain:
It is accepted that had ownership of land by iwi and hapû persisted it is difficult to see why pre 1937 there would not have been a right to benefit from exploitation of the petroleum resource. The Tribunal accepts the rationale for the nationalisation of petroleum, affected by the 1937 Act. But it says the way it was done with no compensation for the loss of property rights, or provision for the payment of royalties from exploitation of petroleum resources was a breach of the Treaty.
Furthermore, the Tribunal found that little land remained in Mâori hands by 1937, and that much of it was lost from Mâori ownership by means which breached the Treaty. The Tribunal stated that, "where legal rights to an important and valuable resource are lost or extinguished as a direct result of Treaty breach, an interest of another kind is generated.
The Tribunal refers to this as a 'Treaty interest', and says such a 'Treaty interest was created in favour of Mâori for the loss of legal title to petroleum. The Tribunal concluded that the loss by Mâori of legal rights to petroleum obliged the Crown to negotiate redress.
The Tribunal says any settlement negotiated over Mâori rights to petroleum should be additional to any other treaty settlements.
As a result of its findings, the Tribunal recommends:
The Crown and affected Mâori groups negotiate for the settlement of petroleum grievances; and that the Crown withhold from sale its 11% interest in the Kupe petroleum mining license until a rational policy has been developed to safeguard Mâori interests, or until the petroleum claims are settled.
The Tribunal did not support the Crown's view that petroleum-assets (royalties and the Kupe license interest) ought to be excluded from settlements. The Crown's remaining petroleum assets ought to be on the table in any settlement negotiations with affected claimants. The conclusion in this regard has general application, but applies with particular force in the case of Taranaki.
The Tribunal has reported on these matters now after receiving a letter from the Associate Minister of Energy Mr. Duynhoven in early May 2003 indicating the Government's intention to sell the Crown's interests in the Kupe license.
The Tribunal will report on the remaining issues raised by the claims, concerning the regulation and management of the petroleum resource since 1937, in a further report.
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