|
|
Home
| Databases
| WorldLII
| Search
| Feedback
New Zealand Journal of Environmental Law |
![[AustLII]](/images/tiny-austlii.gif)
New Zealand Journal of Environmental LawLast Updated: 14 May 2024
271
Resource Sharing for “Good”:
Navigating Best Practice Approaches for Resource Use
Amy Whetu, James Whetu,
Dr Kate Bromfield and Kiri Crossland*
Aotearoa New Zealand’s energy profile is significantly weighted towards renewable energy. Finding and enabling access to additional renewable energy sources that promise to proffer the increased energy use we will require in a low carbon future, however, still remains a priority. Enabling this access without further degrading waterways and landscapes, and without compromising cultural values and identity, is one of a number of a challenges in Aotearoa New Zealand. Exploring what is “good” resource sharing and navigating best- practice approaches is explored in this article. This is the driver behind a number of research projects, including the five-year Endeavour- funded “Economic Opportunities and Environmental Implications for Energy Extraction from Gas Hydrates”, “HYDEE” research project. HYDEE sees researchers currently exploring energy production from gas hydrates naturally occurring beneath the seafloor. The scientific exploration and analysis around whether this is a plausible option for energy extraction is being undertaken alongside research into how Māori 1 might be engaged in future processes that recognise and provide
*The authors each contributed in some capacity to the Endeavour-funded project “HYDEE: Gas Hydrates: Economic Opportunities and Environmental Implications” during its five-year timeframe. Amy Whetu, The Stream Ltd, and James Whetu, Whetu Consultancy Group. Email: amy.whetu@thestream.nz.
1 “Māori” in this context refers to and includes natural groupings or organisations that represent Māori as the indigenous people of Aotearoa New Zealand. This includes iwi (tribe), hapū (sub-tribe), whānau (family), mana whenua (people with territorial or historical connection with a specific area, which also means the right of those people to manage a particular area of land), tangata whenua (people of a
for the impacts and opportunities in the use of gas hydrates. This article explores lessons from Aotearoa New Zealand and other indigenous nations, in relation to access to or preservation of resources and what approaches best suit the management of emerging resource use.
1. INTRODUCTION
The name of the Endeavour-funded project, “HYDEE: Gas Hydrates: Economic Opportunities and Environmental Implications”, in itself poses the quintessential dilemma of the ages. Does the use of this resource provide greater economic benefit for humankind than the losses or impacts of that use pose to the environment? Although this is an appropriate question, considering what weight should be given to cultural values in gas hydrates and its ecosystem, and the impacts from access to, extraction and use of the resource on those values, is a critical component of finding solutions that can seek to address both the impacts and opportunities.
With this in mind, alongside the recent Supreme Court decision in the case of Trans-Tasman Resources (TTR),2 prioritising finding ways to enhance the role and relationships of Māori within their takiwā3 should be a paramount decision-making factor for resource users and potential projects. The TTR case was a marine consent proposal to extract minerals from the Taranaki seabed located within the exclusive economic zone; the decision represents a turning point for recognition of Māori rights and interests in the marine environment where there is a stronger consideration of kaitiakitanga and highlights tikanga- based connections between tangata whenua and te taiao.4 Additionally, in the TTR case, the Supreme Court Justices also indicated that the Decision-Making Committee (DMC) of the Environmental Protection Authority (EPA) failed to take the precautionary principle into account, and further indicated that economic considerations should be taken into account “only at the margins” or not at all,5 paving the way for the argument that environmental or cultural impacts should have equal or greater weight in decision-making.
specific place), kaitiaki (guardians and caretakers of the environment), Te Tiriti partners with the Crown, and business/commercial operators representing any of the former groupings. Given the context of the discussion and the likely future use of the resource, the natural grouping of interest should be identified by Māori as and where appropriate.
5 Trans-Tasman Resources, above n 2, at 259.
1.1 The HYDEE Project
The project seeks to explore the potential location, volume and access to a new energy resource, as well as consideration of its use, control and management through governance.
The resources in consideration in this context are gas hydrates.6 A potentially beneficial resource, but currently its extraction is purely theoretical in Aotearoa. Its potential extraction and use necessitates consideration in a number of areas, including:
This article focuses on the last bullet, and considers approaches from other similar contexts and their applicability when considering the use of gas hydrates as a resource and how this might be done in a way that ensures impacts and opportunities are shared in an equitable way7 in Aotearoa New Zealand.
2. PARTNERSHIP OR SHARED GOVERNANCE ARE A GIVEN
Early, open and honest engagement with a view to partnership is a critical component of future resource use in Aotearoa New Zealand. It is no longer possible to consider use of a natural resource without understanding the Māori
perspective on the impacts of its use, development, and allocation/subdivision. Ascertaining this context and the likely impacts and their extent is not possible without engaging with Māori. Doing so with the intent of working in partnership is not only becoming more common but is an expectation by Māori in many instances.Models that reflect a true partnership in Aotearoa New Zealand are naturally ones where governance of a resource is shared. This type of arrangement in itself creates a starting point of shared values and interests, shared objectives and shared responsibility. By default it also creates and enables the pursuit of mutual benefits and reciprocity.
With a starting point of co-governance, there are governance and manage- ment examples used elsewhere that are suitable for considering in this and other theoretical resource use. To this end, the first stage of this research project included a review to identify examples of innovation where indigenous groups have led, and/or participated in, shared governance or management of, or directly benefit from, the sharing of resources. In addition to examples in Aotearoa New Zealand, case studies from Russia, Norway, Canada and the United States were reviewed to provide examples of indigenous governance structures that prioritise indigenous participation in natural resource management and governance and/or promote the advancement of indigenous people in the commercialisation of natural resources. Many of these reflected partnership and governance models that included indigenous leadership, but these were not always as advanced as some of the leading models in Aotearoa. Some did not result in the advancement of indigenous peoples in these regions, nor result in improved outcomes for the environment. Key learnings from some of these models are identified where their adoption in part or adapted is likely to contribute to more positive outcomes for Māori.
3. LEGAL PERSONHOOD MODEL
The concept of governance of an environmental body, being or resource has been provided for through the legal personhood model on multiple occasions including here in Aotearoa. It is a model which in theory is intended to have decision-makers see the resource as a living being, and decisions regarding its wellbeing made with this focus.
3.1 Case Studies
The concept of giving legal personhood to nature was first seen in 2008 in Ecuador, where all nature has the right to exist and flourish. The concept of legal personhood has also been used in India, Australia, New Zealand, Bolivia
and the USA. Legal personhood gives natural entities the right to sue or be sued, enter contracts and own property.8 Most of the models which give legal personhood to natural entities involve guardianship or stewardship, with many models based on indigenous worldviews. Here we discuss three examples found in Aotearoa New Zealand and Australia.
In Aotearoa New Zealand, the concept of giving legal personhood to nature is exemplified by the legal recognition of the Whanganui River as a person. In 2017, the Whanganui River was given legal personhood status, including the space from the mountains to the sea and all physical and spiritual elements of the river. Te Pou Tupua, the “human face” of the river, is made up of representatives elected by the Whanganui River iwi and the Crown, and is supported by an advisory committee, Te Karewao. A strategy group, Te Kōpuka nā Te Awa Tupua, was also formed to develop a document to identify issues in the management of the river and recommend methods to address them.9 The legal personhood status of the Whanganui River has been praised as recognising a Māori worldview within the legal framework, though it is limited by the Western legal system and parameters enabled through this Western framework.10
Te Urewera, the homeland of Ngāi Tūhoe, was previously managed as a national park by the Department of Conservation before the enactment of Te Urewera Act 2014, which gave the area legal personhood status. The Act arose from the Ngāi Tūhoe settlement signed in 2013 and was part of the redress for excluding Ngāi Tūhoe from their homeland and denying them the right to govern the area. Te Urewera Board, made up of five iwi representatives and four Crown representatives, is responsible for preparing and maintaining management plans, by-laws, consents, rāhui11 and advocating on behalf of Te Urewera. Both the legal personhood of the Whanganui River and Te Urewera are examples of how Māori worldviews can be incorporated into the Western legal framework in Aotearoa New Zealand.
In Victoria, Australia water is a scarce resource and is allocated through a trading system where water rights can be bought or sold. In 2013, all the water bodies in Victoria were granted rights as legal persons, allowing them to buy and sell water rights. This personhood is represented by the Victorian Environmental Water Holder, a body corporate which aims to maintain and improve water quality and the environment through holding and managing water rights.12 Having and holding these rights enables water to be held, unused in times where the water body is at risk of overuse or where quality is challenged. While this model does not have strong indigenous provisions it is possible to adapt a similar model for a terrestrial water body, including the ocean.
3.2 Key Learning
The legal personhood model is newer to resource management and emerged from an understanding that environmental heritage was not being adequately protected, and that if a new regime was not developed, the resource would not be intergenerationally available.
While it is not yet possible to see whether the use of the personhood model is effective in managing a resource, protecting it and ensuring mutual benefits are derived from its use where this exists, it provides a different barometer for decision-making, holding the health and wellbeing of the resource as paramount.
Observing how effective this model is at achieving environmental outcomes for the resource it protects will be a critical factor in determining its ongoing use for protection and governance.
4. CO-GOVERNANCE
New Zealand has a leading example of co-governance in the arrangements for governing the Waikato River.
4.1 Case Study
The Waikato River is the longest river in New Zealand. It has a length of 425 km from Lake Taupō to the Tasman Sea at Port Waikato. The headwaters of the Waikato River start at Mt Ruapehu, and the river then passes through Lake Taupō, Huka Falls, Cambridge, Hamilton, Ngāruawāhia, Huntly, emerging at Port Waikato, Te Pūaha. The catchment area of the Waikato River is 14,456 km. The Waikato River settlement aimed to enhance the relationship between the Crown and Waikato-Tainui. Under the settlement the Crown and Waikato- Tainui share a commitment to act to protect the integrity of the settlement and to act in a manner that is consistent with and achieves co-management of the Waikato River. The Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 brought the Vision and Strategy for the Waikato River/Te Ture Whaimana o Te Awa o Waikato into effect, and established the Waikato River Authority (WRA) to support the implementation of the vision. The Authority is granted statutory functions and powers to enable their ability to achieve their purpose, with co-management fundamental to the Deed of Settlement. The Authority operates in an advisory role alongside the Waikato Regional Council in decision-making around the river, allocation and use, with 50/50 representation by iwi and the Crown. The Authority is also the trustee of the Waikato River Clean-Up Trust, which receives and manages settlement funding to clean up the river and its catchment. While the WRA maintains specific functions in relation to the river, territorial authorities maintain key regulatory decision-making functions.
4.2 Key Learning
After more than 12 years of co-governance arrangements for the Waikato River the operationalisation of the funding mechanism of the settlement is clearly in action. The result is a large pool of money that has been set aside specifically for the benefit of enhancing the wellbeing of the river. This is ground-breaking, and the way that funding is allocated on a project-by-project basis, with the expectation that project partners will contribute in kind or co-funding, results in even greater focus and direction of resources into increasing the health and wellbeing of the river. With a review of the settlement and Vision and Strategy currently being undertaken, and the 2010–2019 River Report Card being produced, there is now clear benchmarking to enable the measurement and identification of any increase in the health and wellbeing of the river into the future.
5. ECONOMIC BENEFITS AND RESOURCE REVENUE SHARING
The concept of sharing resources or royalties from the extraction of those resources, as occurs overseas, is not yet fully explored or adopted in principle in Aotearoa. Internationally, this concept sees indigenous groups benefitting alongside their territorial governments where resources are mined or extracted.
5.1 Case Studies
In New Zealand, Māori rights and interests have been acknowledged and are reflected in the management of a number of resources across the country, including pounamu (greenstone), and geothermal resources. Many Māori assert that Te Tiriti o Waitangi guarantees Māori rights to control their taonga — including natural resources, and this has been the rationale behind multiple claims to the Waitangi Tribunal. The Crown continues to assert the right to manage these resources as a national asset on behalf of all New Zealanders.13 The resulting outcome continues to be that each natural resource is considered on a case-by-case basis, either through settlement processes and resulting legislation or through project-based agreements. One of the biggest impacting factors surrounds the ownership of the land within the rohe where exploration occurs or where the natural resources exist. In many cases historical issues around land tenure inhibit or limit the ability for Māori to meaningfully participate in the management and ownership discussions around such resources.
An example of where land ownership has enabled participation, ownership discussions and resulting royalties from an asset’s use is that of geothermal resources. Māori play a key role in many geothermal projects within New Zealand. This is enabled through their ownership of land which provides access to some of the best geothermal resources in the world. A number of ownership models exist including:
Another example in New Zealand includes the return of the taonga15 pounamu (greenstone) in its entirety to Ngāi Tahu. Ngāi Tahu are the legal guardians and kaitiaki of the resource, which means they are entirely respon- sible for the preservation and management of the sustainable extraction of all pounamu within their rohe.16 Each Papatipu Rūnanga negotiates directly with permit holders around any royalties received from discoveries by permit holders.17 These royalties are not shared with the government, as Ngāi Tahu has full ownership of the resource under their settlement and subsequent vesting legislation.Other examples of exploring iwi ownership of resources have occurred (Waikato-Tainui and Coalcorp) but without achieving outcomes akin to royalties or fully acknowledging iwi rights and interests in minerals and other natural resources.
International examples of royalties regimes in natural resource management can also provide lessons for gas hydrate resource use and exploration in New Zealand.
Government Resource Revenue Sharing (GRRS) agreements are viewed as any formal agreement between a national or sub-national government and a First Nations community where revenues generated from natural resource extraction or use are received by the government with a portion agreed to be shared with the First Nation partner.18
Across jurisdictions the revenues that governments may receive from exploration or mining can include royalties, mineral taxes and rents. Public discourse around mineral development in Canada has seen GRRS agree- ments become increasingly prevalent. Their purpose is to ensure that First Nations communities benefit from projects in tangible ways further than the opportunities available to them in participating in the sector or working alongside the companies who operate the projects.19 There are clear mechanisms
enable increased ownership within the projects and future projects that result over time. K McLoughlin, A Campbell and G Ussher “The Nga Awa Purua Geothermal Project, Rotokawa, New Zealand” (Proceedings World Geothermal Congress 2010, Bali, Indonesia, 25–29 April 2010).
available between government and First Nations, as well as industry and First Nations, neither of which cancel the other out or relieve the other party of their obligations to work with First Nations communities for their benefit.20
The Great Bear Rainforest in British Columbia is an example of indigenous voices being included in collaborative resource management solutions. The Coast Funds programme, which consists of a $120 million endowment for conservation and economic development, is co-governed by First Nations and the provincial government and is an example of a collaborative and adaptive management framework for terrestrial and marine environments.21 The conservation fund is used for projects that protect and manage ecosystems, while the economic development fund is used to create sustainable business initiatives and build economic capacities in First Nations territories.22 The programme is based on the concept of ecosystems-based management, which includes ecological values, cultural values, and human wellbeing.
5.2 Key Lessons
This part of the article focuses on two different ways indigenous groups are benefiting from resource use. The New Zealand examples are of direct benefit sharing of resources, while the international examples show co-governed funds, where indigenous groups share decision-making around allocation of funds designated as a result of resource extraction or use. While the New Zealand examples are preferable as the role in ownership reflects tino rangatiratanga23 and direct influence over resource use, extraction and management, the latter also provides either alternative or additional approaches to ensure benefit sharing within indigenous communities.
Given that ownership of the land around the resource plays a direct role and often inhibits Māori from formally being part of the ownership discussions, considering other effective examples of establishing benefit-sharing models is a useful approach.
Similar structures could be established in Aotearoa to benefit Māori24 who have traditionally occupied areas of interest. This would not replace a more extensive governance structure but would complement it to ensure that Māori are able to benefit from the commercialisation of resources by others in their rohe. Equally, it could be used to work with Māori businesses in the community for tendering or other procurement purposes to ensure a multiplicity of benefits for Māori from works within the region.Most importantly when looking at investment or partnerships for developing projects and business models that rely on resource use, a first principle in New Zealand should be to consider Māori as investors. This enables active participation and decision-making as kaitiaki, putting Māori in the driver’s seat to consider their own cultural values and relationships with te taiao, and enabling them to choose their own pathways to establishing appropriate methods of utilising resources within their rohe wherever possible, if at all.
6. WHAT NOT TO DO — LEARNING FROM OTHERS’ MISTAKES
While we can learn from the successes of others, equally critical learning can come from negative outcomes. During the international review, a number of these were highlighted where access to resources was pursued without consideration of the rights and interests of, and the impacts on, the indigenous peoples in the area.
6.1 Case Study
The Dakota Access Pipeline (DAPL) is an underground oil pipeline in the United States that has faced resistance from indigenous communities and environmentalists since 2016. The pipeline passes through land with a complex colonial history, including the Standing Rock Sioux reservation and unceded land with ancestral connections to the tribe. The tribe has raised concerns about the potential impact of the pipeline on their drinking water and hunting and fishing rights.25 There have been conflicting reports about the level of consultation with the tribe by Energy Transfer Partners, the company
responsible for the pipeline’s construction. In 2017, the tribe sued the company, alleging that it failed to meet its obligations to consult with the tribe under the National Heritage Protection Act. In 2018, the District Court for Columbia found that the company had made several attempts to make contact with the tribe, which went unanswered.26 In the same year, the DAPL was completed and began operating, despite continued protests and legal challenges from the tribe and others.
6.2 Key Lessons
The DAPL highlights the importance of high-quality, transparent communi- cation between developers and indigenous communities. Close examination shows that while consultation did occur, the parties disagreed on whether the consultation was adequate. The DAPL provides an example of a worst-case scenario for consultation on a large-scale project. Multiple examples of similar experiences (albeit on a smaller scale) have gained considerable profile across Aotearoa too in recent times, such as at Pukeiāhua in the Waikato and Pūtiki Bay on Waiheke Island.
7. FOUR STEPS TOWARDS BEST PRACTICE
In considering a best-practice approach to investigating projects that include the use of natural resources, there are a number of ways that cultural considerations can be prioritised when considering resource use, especially management of emerging resources such as gas hydrates and its ecosystem. In other words, help us move closer along the spectrum of “good” and result in equitable outcomes. It is most important to note that the TTR decision clearly indicates that tikanga- based connections and rights and interests between tangata whenua and te taiao are existing interests that must be considered. Exploring new and emerging ways to acknowledge these rights and interests can only be achieved through continued dialogue and inclusion in proposed natural resource projects.
Identifying ways that Māori can be engaged at all levels in the use, develop- ment, allocation/subdivision, and management of natural resources is key. This can be as owners or project partners, through shared governance, as contractors within implementation of the operations, and as knowledge-holders and kaitiaki. The engagement searches for solutions that can evenly distribute both
the impacts and opportunities with transitioning to a low carbon future. These include:
Building these layers of inclusive planning and incorporation of cultural values and mātauranga Māori throughout will enable an approach that is more likely to achieve outcomes for all parties.
Insisting upon using the trio of social, environmental and economic goals as a yardstick for measuring impact and as a design tool for developing fit- for-purpose resource use and governance models will ensure the embedding of intergenerational outcomes. In addition to the returns, the improved environmental outcomes and indigenous empowerment are all things that should be goals of any future resource development opportunity — no one at the expense of another.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/NZJlEnvLaw/2022/13.html