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 November 7, 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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