Leaving Treaty Out Of Geothermal Strategy A Breach – Waitangi Tribunal

The Waitangi Tribunal has found the Crown’s decision to
exclude the Treaty from a draft geothermal development
strategy would be a Treaty breach.

The strategy was
developed by the Ministry of Business, Innovation, and
Employment with the aim of doubling New Zealand’s geothermal
energy by 2040.

Minister for Māori Development and
Minister for Māori Crown Relations Tama Potaka, Minister
for RMA Reform Chris Bishop and Minister for Resources Shane
Jones were involved in the draft.

On 7 November, the
Waitangi Tribunal held a discrete hearing on the Crown’s
draft geothermal development strategy ‘From the Ground Up –
A draft strategy to unlock New Zealand’s geothermal
potential’.

It was revealed that in the hearing, Jones
noted an objective to finalise the strategy later this year
for Cabinet approval.

The Waitangi Tribunal said in
its report most of the claimants at the hearing supported
the draft strategy and it was a promising initiative for
Māori economic development.

But the Tribunal noted
the strategy also raised a number of issues, and called on
the Crown to take the time to strengthen the strategy with
Māori, noting specific actions for economic development in
the action plan remained significantly underdone.

The
Tribunal found that protection was not integrated in the
action plan.

“On the specific issue of kaitiakitanga,
the report notes that the Treaty principle of active
protection requires the Crown to actively protect taonga,
and that this is a particularly serious issue in a strategy
designed to double geothermal energy in 15 years.

“The
Tribunal further found that the strategy concerns the
development of geothermal taonga of immense significance to
Māori, the exercise by Māori of tino rangatiratanga and
kaitiakitanga in respect of those taonga, and Crown-Māori
cooperation on a major economic development
platform.

“The Tribunal therefore found that the
Crown’s decision to exclude the Treaty from the strategy
would be a Treaty breach.

“The Tribunal did not
consider this exclusion reasonable when the same Ministry of
Business, Innovation and Employment team and minister
included the Treaty in the Minerals Strategy seven months
earlier.

“In particular, the Tribunal found that the
Treaty partnership, which requires the utmost good faith and
mutual respect of each other’s authority, should be
reflected in any strategy aimed at the Crown and Māori
working together to achieve important
outcomes.”

Another concern raised was that the Crown
incorrectly characterised geothermal taonga in the strategy
as ‘surface features’, such as geysers.

The report
said this would breach the Treaty unless the definition was
corrected, but there was still time to make amendments
before the strategy was finalised.

The Tribunal also
noted few specific opportunities in the strategy for iwi and
hapū as distinct from Māori landowners.

The report
stated the issue of Māori rights and interests, in
particular the question of Māori customary title or
ownership issues, needed to be addressed.

As this
interim report was released part way through the Tribunal’s
hearings, the Tribunal said it was not yet in a position to
make findings on these issues.

The Tribunal welcomed
the Crown’s inclusion of an action to consider the findings
and recommendations of its stage 3 report, when this was
released.

The report said that for time being, the
Crown should engage directly with the groups who hold those
rights.

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