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Ki Waitotara Incorporation Lands

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Ki Waitotara Incorporation Lands [OFFICIAL] 4F mrt A Report Commissioned by the Waitangi Tribunal for the Taranaki Claim (Wai 143) concernIng. THE McKEE OILFIELD By Ben White November 1995 Any conclusions drawn or opinions expressed are those of the author McKee Oilfield Claim - Interim Report 1 The Author My name is Ben White. After graduating from Canterbury University in 1992 with a degree in New Zealand history, I completed a Masters degree in resource management from Lincoln University. As a part of this program I took honours level papers in New Zealand history and Maori Studies. My dissertation, completed in 1994, examined tensions between western environmental and recreational values, and Treaty-based rights. On the commencement of my employment with the Waitangi Tribunal Division in April this year, I was commissioned to produce reports on this claim and others within the Taranaki consolidated claim that involve natural resources. 2 Introduction Otaraua hapu of Te Ati A wa claim that they were not consulted when the McKee oil field was developed in the late 1970s and early 1980s, and that the field is sited on Parininihi ki Waitotara Incorporation lands. Mention of this claim was first made by Aila Taylor in the course of the fourth hearing of the Taranaki claim at Owae Marae in 1991. 1 Subsequently the " consultation aspect of the claim has been included in the Amended Statement of Claim ofNga [wi 0 Taranaki {Wai 143).2 On beginning work on this claim, it soon became apparent that my findings would be largely contingent upon the outcome of the claim to the actual ownership of the petroleum resource 1 Oral evidence of Aila Taylor, fourth hearing Wai 143, Owae Marae, 9 April 1991, Tape 4a (ref 376), Waitangi Tribunal Division Wellington 2 At 15.79, the statement of claim reads: "That Otaraua hapu were not consulted adequately before drilling of the McKee oilfield." Amended statement ofclaim ofNga Iwi 0 Taranaki, DRAFT, Waitangi Tribunal Record of Proceedings, Wai 143, 1.7(b), 28 April 1994, section 15.79, p 52 1 in Taranaki.3 Essentially the issue is that if Maori are granted a legal interest in the resource, the failure to be consulted under the previous ownership regime would be somewhat irrelevant. It was therefore decided to cease work on the McKee oilfield claim until such time as the issue of ownership was considered by the Tribunal. Therefore this report stands only as a preliminary one representing the findings of the current author to date, based on approximately three weeks of research. The Tribunal was of the opinion that sufficient material had been uncovered to justify the writing of a preliminary report, with the proviso that more comprehensive research may be undertaken after a decision had been made as to the ownership of the petroleum resource. While the statement of claim clearly implies Otaraua hapu were the group that the Crown should have consulted, an important consideration is whom in fact should have been party to any consultation the Crown undertook at the time the McKee field was developed. Certainly within Te Ati Awa there seems to be differences in opinion as to which hapu traditionally had rights to the lands above the oilfield.4 Irrespective of which hapu have rights to these lands, there are complex issues surrounding the current tenurial status of the blocks in question. As will be discussed below, the lands, originally part of the West Coast Settlement Reserves, have since 1976 been held in fee simple by the Parininihi ki Waitotara Incorporation. Being a pan­ iwi entity, the Incorporation cannot be seen as being representative of the interests of any specific group claiming tangata whenua status in relation to particular lands. However, any consultation undertaken by the Crown in relation to the McKee development, would have in all likelihood been with either the Incorporation as the legal owners of the lands or the lessees as the occupiers of those lands, and not the hapu with ancestral ties to the land. This claim therefore necessarily involves the wider issue of the way the West Coast Settlement Reserves have been managed by successive governments so as to give rise to this situation.5 3 ibid, 10.4 and 10.5, p 31 4 Personal Communication, Grant Knuckey, Member of Te Ati Awa Tribal Council, 22 June 1995 SThis issue is already the subject of two reports submitted to the Waitangi Tribunal, namely H Riseborough, Background Papers: West Coast Settlement Reserves, Waitangi Tribunal Record of Documents for Taranaki Claim, Wai 143, A2(iii); and J Ford The Administration of the West Coast 2 Given the situation with regard to title to the lands in question, in this report I will speak not of any particular hapu of T e Ati A wa, but instead of the 'Maori owners'. After briefly outlining the history of the McKee development, the report then examines the legislative context of petroleum exploration and mining. From this discussion it is evident that no landowners enjoyed any substantive rights to be consulted. In the context of legislation governing the environmental effects of petroleum mining, discussed in the next section, it is argued that the situation is somewhat different and Maori landowners may have enjoyed some rights to have their values considered in the decision making process and to perhaps be consulted. The report then examines the legal status of the lands in question in terms of how that impacts upon any rights Maori may have had to be consulted. 3 Background to the McKee Oilfield Taranaki is the only region in New Zealand that has petroleum in commercially significant quantities. In his 1911 monograph Oil Fields o/New Zealand, JD Henry states that Taranaki Maori knew of the existence of petroleum in their rohe prior to European colonisation. In this regard he presents two narratives that account for the presence of petroleum in Taranaki. 6 Exploration for oil by Pakeha began in 1865 at Moturoa, the site of New Plymouth's present day harbour. A year later oil was recovered in payable quantities from a well at this site.7 Exploration activity continued on a small scale until a legislative regime more favourable to international investors was established with the passing of the Petroleum Act in 1937. Settlement Reserves in Taranaki by the Public/Native/Maori Trustees, 1876-1976, DRAFT. Further, the current author has been commissioned to undertake further research concerning opposition to leaseholders' perpetual right of renewal, and the circumstances surrounding the amalgamation of titles to the reserves and their eventual incorporation in 1976. 6 JD Henry, Oil Fields a/New Zealand London, Bradbury, Agnew and Company, 1911, p 9 7 ibid, pp 9-12 3 In 1978 the Crown-owned Petroleum Corporation of New Zealand (petrocorp) was awarded a prospecting license covering almost all of the Taranaki peninsula. 8 Exploratory drilling under this license between 1979 and 1982 led to the discovery of the McKee oilfield. The field lies below a 28 km2 area of land located 14 km southeast of Waitara (see map 1). In 1983 a mining license for the McKee field was granted to Petrocorp for a 20 year period. Production of gas and oil began in 1984 and continues to the present day.9 It appears that over 70 percent of the 31 production wellheads are located on lands held by the Parininihi ki Waitotara Incorporation (see map 2),10 and that these lands are currently leased by Pakeha farmers. The investigations of the present author suggest that little if any consultation with the Maori owners was attempted by either the Crown or by others exercising powers under either the Petroleum Act or the legislation governing the environmental effects of petroleum exploration or mining. \. 8 Geosearch, Petroleum Resources in New Zealand, Resource Information Report 10, Wellington, Ministry of Commerce, 1991, p 9 9 ibid, pp 15-16 10 After obtaining coordinates for the wellheads from the Energy and Natural Resources Division of the Ministry of Commerce (Appendix 1), these were plotted onto a cadastral map. Title searches were then conducted, and the blocks held by Parininihi ki Waitotara Incorporation upon which wellheads were located, identified. 4 ·"""""W"'"''''"'''' State Highways 30 km 20 mi Map I Location of McKee oilfield 5 3 km I 2 miles Waitara Skm \ Tikorangi 2km I I I I I I I I McKee oilfield production station I • Well-heads I !f'{;%;iH\i/i;! Current PKW leasehold land I PKW leasehold land at time first licence -...I ! issued for McKee field. 1978 - now freehold L....__ --1 _ McKee oil field Roads Map 2 Approximate locations of wellheads and production station for McKee oilfield 6 4 Legislation pertaining to petroleum exploration and mining as it relates to the McKee development With the passing of the Petroleum Act in 1937, New Zealand's petroleum resources were nationalised and processes set in place for the management of the country's petroleum industry. Remaining in force up until the passing of the Crown Minerals Act in 1991, it was under the Petroleum Act that the McKee development took place.ll Vesting the ownership of petroleum in the Crown meant that rights in the surface and subsurface were separated. This constituted the modification by statute of the common law principle 'Cujus est solum, ejus est usque ad caelem et ad in/eros', which holds that the owner of the surface also owns all that is above and below that piece of land.12 Prior to 1937, therefore, the ownership of petroleum was determined solely by the ownership of the land from which it was extracted. 13 Given its significance as a strategic resource, the government desired that all impediments to the exploration and extraction of petroleum be ameliorated in order to encourage international petroleum interests to invest in New Zealand's fledgling industryY In the debate following the Bill's first reading in the House of Representatives on November 16 1937, the Minister of Mines Patrick Webb, stated that the overriding intention of the legislation was that " ...barriers restricting systematic prospecting for oil might be removed.
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