Highlights Symposium on Mori Engagement with Extractive

Industry: Innovative Legal Solutions- Day One

Date: 18 June 2015 To: Roma marae komiti, Ahipara Komiti Takutaimoana and Ahipara hau

kainga From: Catherine Murupaenga-Ikenn (Roma marae Delegate to Te Rnanga o

Te Rarawa; Ahipara Komiti Takutaimoana Member)

PURPOSE

1. This is Part One of my report back to affected hau kainga of Ahipara on my highlights observations of the symposium Mori Engagement with Extractive Industry: Innovative Legal Solutions, held 12-13 June 2015 at Waipapa marae, Auckland (the Symposium).1 This report is made in the context particularly of our campaign to protect our moana from deep sea oil drilling.

2. The Symposium was part of a wider Nga Pae o te Maramatanga research project on Mori and the Extractive Industry (EI).2 Overall, I found the Symposium very useful. There was an impressive line-up of iwi, academic and legal minds that contributed to the hui. In parts, it reinforced information I was already aware of and kaitiaki values I already subscribed to; it provided new information about tactics and strategy to defend our kaitiaki responsibilities, rights and interests; and at other times it exposed the at best ineffectiveness and at worst untrustworthiness, corruption and insanity of the New Zealand Government and /or the petroleum industry and their agendas.

3. The Symposium was videod, and Radio New Zealand also recorded presentations in audio format and interviewed participants for media reporting purposes. Copies of all the presentations will be made available in due course. I provide highlights only below.

1 The Symposium was supported by Ng Pae o te Mramatanga and the New Zealand Law Foundation, and organised in association with the New Zealand Centre for Human Rights Law, Policy and Practice, University of Auckland: see http://www.law.auckland.ac.nz/en/about/events-1/events/events-2015/01/06/symposium-on-maori-engagement-with-extractive-industry--innovati.html. For photos from the Symposium (including commentary on some of the speakers), see https://www.facebook.com/media/set/?set=a.842123259199372.1073741842.128040530607652&type=1. For videos of the presentations at the Symposium (including a video of a seminar on 27 May 2015 which I was unable to attend) see http://mediacentre.maramatanga.ac.nz/content/maori-engagement-nz-extractive-industry-innovative-legal-solutions. 2 For more on the project brief, see http://www.maramatanga.co.nz/project/maori-engagement-nz-s-

extractive-industry-ei-innovative-legal-solutions.

PROF. JAMES ANAYA3 (FORMER UN SPECIAL RAPPORTEUR ON INDIGENOUS RIGHTS)

4. James noted how often EI can cause confrontation with and protests by the affected indigenous peoples and communities. This in turn frequently results in Governments escalating policing of such indigenous peoples activities (including use of the military), in some countries leading to increased incarceration and fatalities. There are a raft of internationally-recognized instruments concerning indigenous peoples rights relating to their lands, territories and natural resources, and which Mori should be regularly referring to when advocating protection of their rights. For example, the UN Declaration on the Rights of Indigenous Peoples (DRIP)4; the International Labour Organization Convention No.169 on Indigenous and Tribal Peoples5 (ILO 169 yet to be ratified by New Zealand); the International Convention on the Elimination of Racial Discrimination6; the International Convention on Civil and Political Rights7; and the International Convention on Economic, Social and Cultural Rights.8 There are also regional instruments within similar legal jurisdictions are part of the international human rights regime, such as the American Declaration of the Rights and Duties of Man,9 the American Convention on Human Rights,10 and others.

5. James covered the UN Guiding Principles on Business and Human Rights and its three pillars.11 He emphasized that while these principles applied generally to human rights, they could be particularized to Mori and all indigenous peoples by overlaying it with the DRIP provisions. See also the International Council on Mining and Metals position statement,12 and James report on Extractive Industries and Indigenous Peoples13 which can also be applied.

6. Its important that should indigenous peoples choose to engage, they understand what giving their free, prior and informed consent means regarding EI activity. Companies often promote the fact that theyve obtained indigenous peoples consent, but we must be careful to ensure that the TERMS of such consent are adequate. This requires that consultation and or negotiations are fair (including addressing power/ capacity imbalances); and that the legal and regulatory regimes (including enforcement mechanisms) are sufficient. The standards are all there, but the implementation is variable.

PROF. MARCIA LANGTON14

3 For James bio, see http://jamesanaya.org/site/.

4 See http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.

5 See http://www.ilo.org/indigenous/Conventions/no169/lang--en/index.htm.

6 See http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx.

7 See http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx.

8 See http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx.

9 See http://cidh.oas.org/Basicos/English/Basic2.American%20Declaration.htm.

10 See http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.htm.

11 See video at https://www.youtube.com/watch?v=BCoL6JVZHrA; and document at http://www.reports-and-

materials.org/sites/default/files/reports-and-materials/Ruggie-report-7-Apr-2008.pdf. 12

See http://www.icmm.com/document/5433. 13

See http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session24/Documents/A-HRC-24-41_en.pdf. 14

For video of presentation, see http://mediacentre.maramatanga.ac.nz/content/marcia-langton.

7. Marcia noted how EI market behaviours can affect indigenous peoples in many profound ways, citing the Australian Governments threat to close dozens of aboriginal communities as being related to an iron ore market downturn (which was in turn linked to the drop in Chinese-based construction). Marcia is involved with the Agreements, Treaties and Negotiated Settlements Project, which has established a public searchable database of instruments, case law and other resources useful to indigenous peoples when engaging with EI. There are about 4,000 agreements between aboriginals and EI parties. Many started off poorly designed and therefore of little value to the indigenous peoples. It really came down to how knowledgeable and competent the indigenous peoples negotiators were. This in turn depended on good engagement strategic planning (including having a strong vision of what the affected tangata whenuas holistic wellbeing priorities and bottom lines were), good relationship building skills with the wider community (because there are often Governmental and Non-governmental organizations that can provide complementary assistance), Indigenous peoples need to realize that theyre more than simply stakeholders: theyre rights holders. Companies need a social license from indigenous peoples to operate.

PROF. CIARAN OFAIRCHEALLAIGH

8. Ciaran reinforced that if indigenous peoples want to increase their power in campaigning for what they want, they must mobilize politically beyond just the affected indigenous peoples group, especially if their legal rights are fragile. Negotiated agreements can be very good or very bad for indigenous peoples depending on how well their human rights are integrated into the instrument. There is so much divergence between different agreements even though indigenous peoples negotiating agreements is quite common place these days. The key to producing a fair agreement is being prepared for the negotiations. Ciaran compared and contrasted a number of them to show how varied they can be in terms of meeting acceptable indigenous peoples rights standards and environmental protection. Its important right from the start to (a) have clear objectives, (b) have a unity of purpose and (c) understand the other party (its values, how it ticks, what its needs and interests are, its history).

9. Indigenous peoples should complete comprehensive internal consultations to understand their big picture aspirations (visioning), risks/opportunities including an indigenous peoples-controlled impact assessment. This should happen before substantive engagement with EI companies begins. Companies often dont volunteer information about themselves (or what they know). An often-used format is for companies to have junior officials to do the bulk of negotiating. This usually goes with limited authority to make decisions during the negotiations which can be frustrating. Indigenous peoples have responded by only having their top officials present (e.g. iwi leaders, kuia/kaumtua) when the companies top officials are present. Beware also of being forced into a tight timeframe this usually leads to a bad result for the indigenous peoples.

10. Channels of complementary influence outside of negotiations are also important e.g. direct community action; local politicians, councils; injunction litigation. This is especially useful when the other Government or company party is demonstrating a lack of good faith. Funding agreements should be made at the start so that the other

negotiating party cant put the funding squeeze on indigenous peoples part way through the process. Access to expertise and technical data should also be agreed at the start.

11. The key to a successful result is leadership. While hard to define, you know if youve got good leadership or if its absent. Whether conflict will arise isnt the issue, because EI situations inherently tend to produce conflict, so thats unavoidable. The important thing is how its managed (goes back to leadership). Sometimes, its best for indigenous peoples to avoid engagement altogether with third parties until the indigenous peoples themselves are clear on what they want. Neither should it be assumed that reaching an agreement is the default position.

PROF. SALEEM H. ALI

12. Saleem reminded everyone that the role of academics isnt just to criticize bad behaviour, but to acknowledge good behaviour as well. He talked on the concept of Social license which, unlike regulatory regimes based on concrete legal rights and obligations, is more about intangible social, cultural, environmental, economic and other wellbeing values of wider society or an affected group in society.15

PROF. MARGARET MUTU16

13. Margaret reminded us that the principles of the Treaty of Waitangi arent legitimate because (1) theyre not based on Te Tiriti o Waitangi (Te Tiriti), and (2) Mori had no meaningful influence over their development and creation. On the other hand, the DRIP (a minimum standard which indigenous peoples were involved in drafting) is a complementary instrument that elaborates on Te Tiriti. For this reason, the National Iwi Chairs Forum (ICF) has established a DRIP Monitoring mechanism. The Government has been extremely hostile towards calls to fully implement the DRIP, and our Monitoring Mechanism will report on the Governments compliance in this regard in July. In addition, the ICF has established an independent Constitutional Working Group (CWG) also known as Matike Mai Aotearoa17. Over the next month or so CWG convenor, Moana Jackson, is expected to release findings from our constitutional transformation work with our whnau, hap, iwi.

14. Regarding EI, Ngti Kahu took years to clarify what it, as an iwi, wanted. They realized theres many kinds of mining, but that Ngti Kahus default position would be no minining and beyond that the hap decide on a case-by-case basis. But the Government ignores Mori opposition in any event. The Government makes full use of its divide and conquer tactic against Mori as well.

15

For the video of his presentation, see http://mediacentre.maramatanga.ac.nz/content/professor-saleem-ali. He referred to the Ernst & Young report, The Top 10 Risks and opportunities in 2013 and Beyond at http://www.ey.com/Publication/vwLUAssets/Business_Pulse_-_top_10_risks_and_opportunities/$FILE/Business%20pulse%202013.pdf. 16

For the video of her presentation, see http://mediacentre.maramatanga.ac.nz/content/professor-margaret-mutu-ng%C4%81ti-kahu-kaitiakitanga. 17

See http://www.converge.org.nz/pma/iwi.htm.

MARIA BARTLETT18

15. Ngi Tahu has no iwi position on mining. It depends from hap to hap. Scrapping over the RMA and EPA/EEZ applications takes up incredible amounts of iwi resources, and Territorial Authorities fragmented structures makes iwis job to effectively advocate and respond a real challenge (Maria later respond to a question from the floor that Councils plans sometimes dont even cover EI activity, so the iwi has to back-fill that vacuum to enable them to engage meaningfully on the subject with Councils). Ngi Tahu doesnt engage comprehensively in the block offer process because its a waste of time (the Government just ignores us anyway). But we do send the Government the references in our Deed of Settlement about EI, and we do seek to build better relationships with the likes of industry groups such as PEPANZ and Straterra.

NEW ZEALAND PETROLEUM AND MINERALS

16. Mahanga Maru spoke about19 NZPMs iwi consultation obligations as set out in the Governments Petroleum and Minerals Program.20 He said that NZPM promoted Ngati Ruanuis Best Practice Guidelines for Engagement with Mori21 to extractive industry companies.

17. I challenged Mahanga about Statoils lack of proper consultation with affected tangata whenua, and remarked that Statoils annual iwi engagement report and our reality of their iwi engagement were like night and day. I asked how, beyond one iwi engagement report annually, the Government holds oil companies to account for their non-compliance. All Mahanga did was to parrot back to me that the law was really clear about oil companies obligations to report annually on iwi engagement, and that if tangata whenua had complaints, we should contact the oil company. He later added that NZPM does its best to talk with the iwi concerned. I thought this was a curious response, because NZPM knows the difficulties Ive had with working with Statoil (ref my email record). So either Mahangas staff are not advising him fully about these difficulties, or Mahanga knows, but doesnt care enough to help us find solutions. Another participant queried Mahanga about an agreement that NZ hadnt signed (I missed the name of that instrument, but will investigate into it) which obliged states to compensate affected (indigenous peoples, or communities?) in relation to extracted natural resources. Mahanga simply replied that the regulations define the parameters of NZs obligations, but that he was having an ongoing conversation with companies about their engagement with affected Mori. Another rhetorical answer which seemed to typify the passive aggressive nature of the beast were dealing with.

ENVIRONMENTAL PROTECTION AUTHORITY

18

For the video of her presentation, see http://mediacentre.maramatanga.ac.nz/content/maria-bartlett-ng%C4%81i-tahu-extractive-industry. 19

See the video of his presentation at http://mediacentre.maramatanga.ac.nz/content/mahanga-maru. 20

See http://www.complianceonline.com/articlefiles/New_Zealand_Minerals_Programme_for_Petroleum_2005_Amendement_PIT_Removal_2012.pdf. 21

See http://issuu.com/sarah-leerangi/docs/best_practice_guidelines_for_engage/1.

18. Kerry Prendergast (EPA Chair) referred to the EPA engagement principles, and its He Whetu Marama strategy22 and a report (I didnt catch the name, but I speculate it was Productivity Commissions from 2014) which finds that New Zealand regulators often have to work with out of date legislation, quality checks are under strain, and regulatory workers need better training and development. In other words, regulatory institutions are not keeping pace with the threat.23 That aside, Kerry mentioned that in this report a case study was done on the EPA which was hailed it as exemplar in terms of Mori engagement. The hui Facilitator asked a question about whether there was a fair balance of Mori power to influence the systems and structures in place to protect Mori interests. Kerry acknowledged that Mori have capacity issues, but suggested that Mori need to train their young people to respond to all this (What, WHAT??!). This caused a gentleman in the audience to comment that Mori are asked to join all these workshops, consultation groups, make submissions on all these policy issues, and we do it all voluntarily often with our own resources. This is not sustainable or fair. Another person chimed in that its the Crowns responsibility to ENABLE Mori to participate in good faith consultation (i.e. not to externalize that cost on to Mori). Kerry later added that she felt the Mori elders were doing all the work.

19. Maui Solomon (who was on the legal Team which successfully challenged the Chatham Rock Phosphate application) asked NZPM and the EPA presenters if they knew of any pressure from industry interests to make it easier to approve their applications.24 Kerry replied that she wasnt aware of any formal push, but Mahanga replied No comment. Doesnt exactly engender confidence, NZPM!25

20. The Facilitator observed that Mori often must prove sufficient interest before their concerns may be taken into account by Agencies like the EPA, but that this criteria is a formidable threshold for Mori to meet. We were also told of the Mori and Mining (2013) resource by Jacinta Ruru.26

PETROLEUM EXPLORATION AND PRODUCTION ASSOCIATION OF NEW ZEALAND

21. The best moment of Cameron Madgwicks (PEPANZ) presentation was right at the start, where he said he had (believe it or not) a deep social justice interest. But, for me, it all was a slippery slope downhill from there. He volunteered info that hed grown up in a household and a community that centred around the fossil fuel industry. He said PEPANZ couldnt change NZ laws and regulations the extractive industry regime. But

22

See http://www.epa.govt.nz/Publications/EPA_He_Whetu_Marama.pdf. 23

See http://www.productivity.govt.nz/inquiry-content/1788?stage=4. 24

E.g. amendment to Exclusive Economic Zone Act, s61 re the precautionary principle see http://www.legislation.govt.nz/act/public/2012/0072/latest/DLM4464017.html. 25 Note that the managing director of Chatham Rock Phosphate, Chris Castle, has decided enough is enough and is reportedly incensed by the EPA report on the Chatham Rock Phosphate decision (see http://www.stuff.co.nz/business/opinion-analysis/10436122/Politics-of-mining-keep-digging. The article goes on to say that Ministers are also understood to be taking a close interest, in particular the micro-managing Economic Development Minister, Steven Joyce). Straterra in February 2015 then publicly supported this view,

saying The [EEZ] legislation has major flaws which must be amended if we are to see responsible mining projects being developed. (see http://www.straterra.co.nz/news-and-issues/media/eez-act-needs-fixing-after-decline-of-chatham-rock-phosphate-seabed-mining-application/). So I think we can anticipate what the industrys next move is: if they dont like something, they lobby politicians to change the law to suit their pathological development agendas. 26

Downloadable from https://ourarchive.otago.ac.nz/handle/10523/4362.

what they do is three things. First (and he was at pains to point this out), PEPANZ doesnt lobby: rather, they advocate for conditions that make their business successful (that sounded to me like semantics. I wondered what was the difference, really?). Second, he said PEPANZ works on communications to address misinformation; Third, PEPANZ provides services and benefits to their members. He acknowledged that fossil fuels contribute to climate change, but that it wont happen overnight, and we must be realistic about the time it takes to transition to a lower carbon economy and a cleaner future.

22. I challenged him on several points. Firstly, that oil companies cant change the law is patently untrue, as it is common knowledge that Government Ministers Steven Joyce and Simon Bridges had met with oil giant Shell to thrash out a back-room deal to criminalise protesting at sea i.e. a law change.27 And we already knew that the industry was planning to change the EEZ law to make it easier to get natural resource extraction permits (like Chathams Rock Phosphate).

23. Secondly, I mentioned that Id forwarded PEPANZs Seismic Survey pamphlet28 to a number of scientific experts in my networks, and they criticized the accuracy of the information presented. One marine mammal scientist working for DOC said29 PEPANZ has a vested interest in presenting a particular view of the effects of this activity, so should not be taken as the whole truth. In short, he found PEPANZs lack of context in their PR info often adds to the confusion, it doesnt help clarify it.30

STRATERRA

24. Bernie Napp of Straterra (the collective voice for the NZ minerals and mining sector, from small firms to large enterprises) said he was grateful for all the different perspectives presented so far at the Symposium because they had brought him up to speed on so many issues and concerns. But this caused me to wonder, as one so involved in the industry, how could all these issues be unknown to him? Surely someone in his position should have a broader grasp of the issues? It just made him look nave and out of touch.

25. I reminded the hui that there were already Pacific people who were seeking residency in New Zealand as climate change refugees because their islands were becoming uninhabitable due to rising ocean levels.31 This is the massive inconvenience they were suffering due to climate change: so I asked both PEPANZ and Straterra presenters whether they truly considered the inconvenience to industry of transitioning with greater urgency to a renewable energy powered economy more significant than the inconvenience of losing your island home? Basically, I said that my people dont trust the oil industry. We think the continued drive to drill for oil, especially in deep water, is insanity.

27

See http://www.greenpeace.org/new-zealand/en/blog/oil-slick-politics/blog/45476/. 28

see http://www.seismicsurvey.co.nz/. 29

18 December 2014. 30

I didnt have the email record handy for me to quote from, but for example, re PEPANZs view that there were no known effects of petroleum exploration activities on these dolphins, my DOC contact pointed out that this is because nobody has specifically studied this topic! And regarding PEPANZs data on how loud is a seismic survey can be, my DoC contact said that he found all of PEPANZs comparisons lacking. 31

See http://www.radionz.co.nz/news/national/265002/climate-refugee-takes-fight-to-supreme-court.

DAY ONE ENDS