Waitangi Tribunal Finds Treaty Exclusion Breaches Crown Obligations

The Waitangi Tribunal has determined that the Crown’s decision to exclude the Treaty from a draft geothermal development strategy constitutes a breach of the Treaty. This finding emerged during a hearing on November 7, 2023, focused on the strategy titled “From the Ground Up – A draft strategy to unlock New Zealand’s geothermal potential,” developed by the Ministry of Business, Innovation, and Employment. The goal of the strategy is to double New Zealand’s geothermal energy output by 2040.

Involved in the draft were key government figures, including the Minister for Māori Development and Minister for Māori Crown Relations, Tama Potaka, Minister for RMA Reform Chris Bishop, and Minister for Resources Shane Jones. During the hearing, Jones indicated an intention to finalize the strategy for Cabinet approval later this year.

The Tribunal’s report highlighted that while many claimants supported the draft strategy, viewing it as a promising initiative for Māori economic development, it also raised significant concerns. The Tribunal urged the Crown to dedicate more time to strengthen the strategy in collaboration with Māori stakeholders. It pointed out that the action plan’s specific initiatives for economic development appeared to be insufficiently detailed.

A critical concern outlined in the report is the lack of integrated protections related to kaitiakitanga, a principle that emphasizes the active protection of Māori treasures, or taonga. The Tribunal underscored the seriousness of this issue, especially given the strategy’s ambition to double geothermal energy production within 15 years. The report stated, “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 also noted that the development of geothermal taonga holds immense significance for Māori, as it relates to their exercise of tino rangatiratanga and kaitiakitanga. Furthermore, it emphasized that the Crown-Māori partnership is essential for achieving meaningful outcomes in this major economic development initiative.

The Tribunal found the Crown’s exclusion of the Treaty from this strategy unjustifiable, particularly in light of the fact that the same Ministry included the Treaty in the Minerals Strategy just seven months earlier. The report stated that the Treaty partnership requires mutual respect and good faith, which should be reflected in strategies aimed at cooperative outcomes between the Crown and Māori.

Another issue raised during the hearing involved the Crown’s characterization of geothermal taonga as “surface features,” such as geysers. The Tribunal warned that this mischaracterization could also breach the Treaty unless corrected. It stressed that there remains time for amendments before the strategy is finalized.

Additionally, the report pointed out the lack of specific opportunities for iwi and hapū, distinct from Māori landowners, within the strategy. It called for a more thorough examination of Māori rights and interests, particularly regarding customary title or ownership. Although this interim report was released midway through the Tribunal’s hearings, it indicated that the Tribunal was not yet positioned to make definitive findings on these issues.

The Tribunal welcomed the Crown’s commitment to consider its findings and recommendations in forthcoming reports. Until then, it advised the Crown to engage directly with the groups holding relevant rights.

In summary, this finding underscores the importance of incorporating the Treaty into significant development strategies to ensure that Māori rights and interests are adequately addressed.