SKT-424191-12-443-1:phm

BEFORE THE ENVIRONMENT COURT

ENV-2016-AKL-000267

IN THE MATTER of the Resource Management Act 1991 AND IN THE MATTER of an appeal under section 120 of the Act BETWEEN TUWHARETOA MAORI TRUST BOARD Appellant AND WAIKATO REGIONAL COUNCIL Respondent AND ROTOKAWA JOINT VENTURE Applicant AND NGATI TAHU-NGATI WHAOA RUNANGA TRUST Section 274 party

EVIDENCE OF PHILIP HUNTER MITCHELL ON BEHALF OF THE TŪWHARETOA MAORI TRUST BOARD

Dated: 4 June 2017

Westpac House 430 Victoria Street

PO Box 258 DX GP 20031

Hamilton 3240 New Zealand

Ph: (07) 839 4771 Fax: (07) 839 4913

tompkinswake.co.nz

Solicitor: B A Parham Bridget.Parham@tompkinswake.co.nz Counsel: L F Muldowney Lachlan@muldowney.co.nz PO Box 9167, Waikato Mail Centre, Hamilton 021 471 490

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INTRODUCTION

1. My full name is Philip Hunter Mitchell.

2. I have been engaged by the Tūwharetoa Maori Trust Board (“TMTB”) to

provide planning evidence in support of their appeal of a decision of the

Waikato Regional Council (“WRC”) granting resource consents to the

Rotokawa Joint Venture Limited (“the applicant”, or “the joint venture”)

to undertake further development of the Rotokawa Geothermal Field.

3. I was engaged in May 2017 and was not involved in the original Council

hearing, nor the preparation of the appeal document, nor the Court-

assisted mediation.

QUALIFICATIONS AND EXPERIENCE

4. I hold the degrees of Bachelor of Engineering (Hons) and Doctor of

Philosophy, both from the University of Canterbury. I am a Director of

Mitchell Daysh Ltd, an environmental consulting practice with offices in

seven locations around New Zealand. Previously I was a Director of

Mitchell Partnerships Limited, an environmental consultancy I

established in 1997, and which merged with Environmental Management

Services Ltd to form Mitchell Daysh Ltd in the latter part of last year.

Previously I was the Managing Director of Kingett Mitchell & Associates

Ltd, a firm that I co-founded in 1987.

5. I am a past president and a founding executive committee member of the

Resource Management Law Association, a full member of the New

Zealand Planning Institute and in 2015 was a recipient of the New Zealand

Planning Institute’s Distinguished Service Award.

6. I have practiced in the resource management field for the past 30 years

during which time I have had a lead resource management planning role

for many significant projects and planning processes throughout New

Zealand.

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7. I have acted as a Hearings Commissioner on some 35 occasions, many in

the role of Hearing Chair.

8. I was also appointed jointly by the Minister for Canterbury Earthquake

Recovery and the Christchurch City Council as a Hearings Commissioner

for the replacement of the Christchurch City District Plan (the district plan

that is intended to facilitate the rebuilding of Christchurch).

9. My experience in geothermal energy projects includes providing resource

management and planning advice for developments at Ngawha, Poihipi,

Ngatamariki, Kawerau, Wairakei and Reporoa. I have also acted as a

hearings commissioner for resource consent applications for the Ohaahi

power station.

10. I wish to stress that my evidence does not purport to address any matters

relating to the “Maori world view” of these applications, and my evidence

is confined to addressing the applicable RMA planning framework and

the matter of conditions.

EXPERT WITNESS CODE OF CONDUCT

11. I have read and am familiar with the Code of Conduct for Expert

Witnesses contained in the Environment Court Practice Note 2014. I

agree to comply with that Code. Other than where I state that I am

relying on the advice of another person, this evidence is within my area

of expertise and I have not omitted to consider material facts known to

me that might alter or detract from the opinions that I express.

12. In preparing this statement of evidence, I have read and considered:

(a) The evidence and submissions of all parties that appeared at the

Council hearing;

(b) The decision issued by independent hearing commissioners;

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(c) The appeal documentation filed by TMTB, and several subsequent

memoranda filed by counsel;

(d) The evidence filed by the applicant in respect of these

proceedings;

(e) The evidence of Ms Sheryl Roa filed on behalf of the WRC in

respect of these proceedings; and

(f) The evidence of witnesses for TMTB in respect of these

proceedings.

SCOPE AND PURPOSE OF EVIDENCE

13. In my evidence, I will:

(a) Provide a brief summary of the resource consent applications;

(b) Summarise the planning framework within which these

applications are to be assessed, insofar as it relates to the matters

raised in the TMTB appeal;

(c) Explain what I consider to be deficiencies in the resource consent

conditions and propose new conditions which I consider to be

appropriate to address those deficiencies.

EXECUTIVE SUMMARY

14. In simple terms my evidence is intended to help address two questions:

(a) Are additional / amended resource consent conditions necessary

to address the matters raised by TMTB, particularly in terms of

the requirements of sections 6(e) and 7(a) of the Resource

Management Act 1991 (“RMA”)? And

(b) If so, what should the content of those consent conditions be?

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15. In terms of the first question, there are divergent opinions from Mr Pikia

and Mr Mikaere, for the applicant, and Messrs Northcroft, Winitana,

Rameka and Stirling, for TMTB. The applicant’s witnesses assert that

Ngāti Tahu – Ngāti Whaoa have exclusive mana whenua rights over the

Rotokawa geothermal resource and, as such, they are the sole kaitiaki of

that resource. TMTB, on the other hand, are adamant that Tūwharetoa

Hapū have clear ancestral and cultural relationships with the Rotokawa

geothermal resource and, as a result of that, the current consent

conditions need amendment to recognize that relationship and their

obligations as kaitiaki.

16. Resolving that disagreement is not something I can assist the Court with,

other than to note that I am aware of numerous examples, including

several geothermal examples, where more than one tāngata whenua

interest is provided for in resource consent conditions in order to address

the requirements of the RMA, and in particular sections 6(e) and 7(a).

17. My evidence analyses the statutory planning documents (specifically the

Waikato Regional Policy Statement (“RPS”) and Waikato Regional Plan

(“Regional Plan”)) and having done so, I can find no support for the

proposition that any one “Maori interest” can claim to having exclusive

mana whenua rights to the exclusion of other “Maori interests” who also

assert mana whenua and mana tipuna, particularly in the case of Ngāti

Tūwharetoa, whose relationship with the geothermal resources of the

Waikato Region, and the Taupo District in particular, is expressly

recognized in both the RPS and Regional Plan. I expand on this point in

the main body of my evidence.

18. In my opinion, the conditions of consent contained in the independent

commissioner’s decision that relate to “matters Maori”:

(a) Are predicated on the assumption that if one tāngata whenua

party is satisfied with the proposal then that automatically means

any other party’s concerns are also satisfied; and

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(b) Reflect that that party is so closely connected with one of the joint

venture partners for this application. In that regard, I think it

reasonable to conclude that such a party would be exercising

many of its kaitiaki obligations around the joint venture Board

table, rather than requiring those obligations to be incorporated

into consent conditions and have them enforced by the Regional

Council.

19. As a consequence, I do not consider that the consent conditions are

adequate, and it is clear to me, based on the evidence of Messrs

Northcroft, Winitana, Rameka and Stirling, that they fail to address

Tūwharetoa Hapū’s relationship with the Rotokawa geothermal resource

and fail to provide for them to exercise kaitiakitanga, as required by

sections 6(e) and 7(a) of the RMA, respectively.

20. I consider the conditions addressing “matters Maori” to be much less

rigorous than what I would expect to see if a party asserting mana

whenua was not also so closely connected to a consent applicant.

Because TMTB has no ownership interest in the Joint Venture, its

interests can only be addressed by way of consent conditions, and in my

opinion the existing conditions, even if expanded to include TMTB in the

way proposed by Mr Collins and Ms Roa, require considerable

amendment. Details of those amendments are set out in the main body

of my evidence.

THE CONSENT APPLICATIONS

21. The applicant is seeking to cancel 19 of the 21 existing consents for

activities in what are referred to as Areas 1, 2 and 3 of the Rotokawa

geothermal steamfield and replace them with 11 new resource consents

that are the subject of these proceedings.

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22. The details of the applications are included as Attachment 1 to Mr Collins’

evidence. As Mr Collins explains1, and I accept, the following new

consents are being sought:

(a) Two water permits (for production and well testing purposes);

(b) Eight discharge permits (for injection of geothermal fluid, air

discharges, stormwater, condensates, wastewater (sewage),

drilling muds and fluids); and

(c) One land use consent (earthworks and drilling activities).

23. As Mr Collins states2, and I agree: three of the activities are controlled

activities under the Regional Plan; the balance are discretionary activities;

and the proposal is to be “bundled” and assessed overall as a

discretionary activity.

24. There are three main components of the proposal, namely:

(a) To expand the “footprint” of geothermal activities to also

encompass a new area – Area 4 – within the Rotokawa

geothermal steamfield. The land that overlies Area 4 is Crown

Land, administered by the Department of Conservation, that

comprises the Lake Rotokawa Conservation Area, however no

surface structures will be utilised on Area 4.

(b) To increase the abstraction rate of geothermal fluid from 65,000

tonnes per day on average to 75,000 tonnes per day on average.

(c) Rationalise the consents, and extend the expiry date to 2051

being (approximately) 35 years from the date of granting.

25. Mr Collins’ Attachment 1 contains the consent conditions attached to the

Commissioner’s decision. Schedules A – L of that Attachment list the

1 A Collins- Statement of Evidence – para 3.7 2 Ibid – para 3.8

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conditions that are specific to the individual applications, while Schedule

M lists the conditions that apply to all of the consents. It is only the

conditions in Schedule M that are of concern to TMTB and my evidence

on conditions is confined to those in Schedule M.

26. Of concern to TMTB in that regard is that the conditions do not

acknowledge the mana whenua connection of the Tūwharetoa Hapū to

the Rotokawa geothermal resource, nor provide for them to exercise

kaitiakitanga.

27. TMTB does not dispute the technical evidence presented by the joint

venture, and their concern is confined to seeking that their mana is

recognized and for them to be able to exercise kaitiakitanga. As I

understand the TMTB evidence, the omission of any reference to the

Tūwharetoa Hapū in the conditions results in a significant adverse

cultural effect, in that the relationship of the Hapū to the Rotokawa

geothermal resource has been severed and as a result they cannot satisfy

their obligations as kaitiaki. Further, it is my understanding that TMTB is

adamant that it is not possible for Ngāti Tahu – Ngāti Whaoa to exercise

Tūwharetoa Hapū’s kaitiaki functions on their behalf.

RELEVANT PLANNING MATTERS

28. Section 104 of the RMA specifies how these applications are to be

considered. It requires, subject to Part 2, that regard be had to:

(a) Actual and potential effects on the environment;

(b) The relevant provisions of any national and regional RMA

instrument3; and

(c) Any other matter of relevance that is reasonably necessary to

determine the applications.

3 All land use activities under the jurisdiction of the Taupo District Council have been obtained and so District Plan related matters need not be considered.

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PART 2

29. There are two very clear “Part 2” matters in play here, namely sections

6(e) and 7 (a). In light of a recent High Court decision4, I understand that

a decision-maker is not required to consider Part 2 of the RMA beyond its

expression in the relevant statutory planning documents. I understand

that to mean that there is no need to refer back to Part 2 unless there is

invalidity, incomplete coverage or uncertainty of meaning within those

planning documents. I understand there are contrary lines of authority

on this point and that this decision is currently under appeal.

30. I address those provisions in more detail below, and simply state now

that I believe there are comprehensive provisions in the RPS and Regional

Plan addressing section 6(e) and 7(a) matters, and which support TMTB’s

case.

EFFECTS ON THE ENVIRONMENT

31. As I have already noted, TMTB has not challenged the technical evidence

called by the joint venture, and their concern is the cultural effect caused

by the current conditions severing their relationship with the geothermal

resource. My understanding of the evidence presented by the other

TMTB witnesses is that such an adverse cultural effect is significant. In a

practical sense that effect cannot be completely avoided, or remedied

and can only be mitigated by the inclusion of appropriate conditions of

consent, the details of which I will address in Section 4 of my evidence.

RELEVANT PLANNING DOCUMENTS

32. Mr Collins sets out the applicable statutory documents in Section 7 of his

evidence, and lists the following as being relevant:

4 Davidson Family Trust v Marlborough District Council [2017] NZHC 52.

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(a) The National Policy Statement for Renewable Electricity

Generation 2011 (“NPS-REG”);

(b) The RPS; and

(c) The Regional Plan.

NPS-REG

33. I agree with Mr Collins that these are the relevant documents, although

my analysis of them focusses not on the broader policy framework that

applies to resource use and environmental management, but rather how

“matters Maori” need to be considered.

34. Dealing firstly with the NPS-REG, I agree with the analysis by Mr Collins5,

except that I consider that clauses d) and e) of Policy C1 (which direct that

“particular regard” be had to “designing measures which allow

operational requirements to complement and provide for mitigation

opportunities” and “adaptive management measures”) are more broadly

framed than indicated in his evidence and as reflected in the proposed

conditions. In particular, in my opinion, these clauses contemplate the

imposition of conditions that, for example, provide for the mitigation of

cultural effects on the Tūwharetoa Hapū and the adaptive management

of those effects (including by way of ongoing monitoring and

consultation).

RPS

35. Mr Collin’s assessment of the RPS6 focusses on the geothermal energy,

resource use and some environmental aspects, but does not address the

tāngata whenua provisions. In my opinion, those provisions are

particularly important in framing how sections 6(e) and 7 (a) matters are

to be addressed.

5 A Collins- Statement of Evidence – paras 7.1 – 7.10 6 Ibid – paras 7.11 – 7.29

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36. First and foremost, Section 1.2 of the “Reader’s Guide” to the RPS “sets

the scene” when it identifies “Issues of significance to iwi authorities”,

and states:

1.2 Issues of significance to iwi authorities Regional policy statements are required to state the resource management issues of significance to iwi authorities. Waikato-Tainui, Maniapoto, Raukawa, Te Arawa, Ngāti Tūwharetoa and Hauraki have worked with Waikato Regional Council to ensure the issues of significance to them are reflected in Chapter 1 and addressed through the objectives, policies and methods in Chapters 3-14. Each of the six issues in Chapter 1 is significant to tāngata whenua.

37. This introductory text to the RPS makes clear the important role that iwi

authorities (and not iwi per se), including Ngāti Tūwharetoa, have had in

formulating the RPS and that the objectives, policies and methods of the

RPS address the issues of significance to those iwi authorities.

38. The RPS identifies 6 issues as being of regional significance7. One of

these, Issue 1.5, addresses the relationship of tāngata whenua with the

environment, and states:

Issue 1.5 Relationship of tāngata whenua with the environment (te

taiao) The relationship tāngata whenua have with the domains of Ranginui and Papatūānuku is of paramount importance and this relationship is being damaged through:

a) activities which degrade the mauri of the environment, including

through cumulative effects;

b) loss of access to, and use and enjoyment of, resources and places;

c) loss or diminishment of the ability of tāngata whenua to be involved in or influence management decisions; and

d) loss of ability to exercise and provide for kaitiakitanga.

39. I note that the RPS uses the term “tāngata whenua” throughout, and

adopts the RMA definition of the term. That definition is:

Tāngata whenua – in relation to a particular area, means the iwi, or Hapū, that hold mana whenua over that area.

7 RPS Part A Chapter 1

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40. That definition and the related definition of “mana whenua” are both

broadly framed, and I am aware of a number of situations where

attempts to narrow the term to allow one iwi interest to claim exclusive

mana whenua over a particular resource have been rejected8.

41. Notwithstanding the definition of “tāngata whenua”, clause c) and, in

particular clause d), are relevant here and serve to reinforce the

importance of section 6(e) and 7(a) matters in resource management

throughout the Waikato Region.

42. The RMA definition of kaitiakitanga is:

kaitiakitanga means the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Maori in relation to natural and physical resources; and includes the ethic of stewardship.

43. The RPS uses different definitions of kaitiaki and kaitiakitanga, as follows:

Kaitiaki – those that safeguard taonga. They are usually people, but have also been known to be spiritual forces. It is not a role of ownership, but one of custodianship. Kaitiakitanga – is exemplified through the practices used by kaitiaki in safeguarding, protecting and caring for resources.

44. The RPS definition of kaitiakitanga makes it clear that it does not arise

from “ownership”. Notwithstanding this, while the Tauhara North No. 2

Trust owns the land currently utilised by the joint venture, the new area

covered by these applications (Area 4) is Crown Land administered by the

Department of Conservation.

45. Objective 3.9 of the RPS is relevant, and I see it as a “scene-setter” in

terms of how sections 6(e) and 7(a) are to be addressed. It states:

3.9 Relationship of tāngata whenua with the environment

The relationship of tāngata whenua with the environment is recognised and provided for, including:

a) the use and enjoyment of natural and physical resources in

accordance with tikanga Māori, including mātauranga Māori; and

b) the role of tāngata whenua as kaitiaki.

8 For example, see Golden Bay Marine Farmers v Tasman DC, EnvC W019/03

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46. Objective 3.17 deals specifically with geothermal resources and states:

3.17 Geothermal Sustainable management of the Regional Geothermal Resource is promoted by: a) ensuring integrated management of geothermal systems; b) allocating some of the geothermal resource for take, use and

discharge in a way that enables current energy needs and the reasonably foreseeable energy needs of future generations to be met, while avoiding, remedying or mitigating significant adverse effects on the Regional Geothermal Resource; and

c) protecting some characteristics of the Regional Geothermal

Resource from significant adverse effects.

47. I accept that this objective facilitates the development of geothermal

resources such as Rotokawa, as do its associated policies. In that regard,

Mr Collins states that Policies 9.1 – 9.3 are the “most relevant ones”.9 I

agree that these policies are important, and accept Mr Collins’

assessment of them. However, Mr Collins has not mentioned Policy 9.8

when he concludes10 that “the proposal is consistent with the RPS’s

Geothermal objective and policies.”

48. Policy 9.8 states:

Policy 9.8 Geothermal characteristics valued by tāngata whenua Recognise and provide for the ahi kā (mana whenua) relationship of tāngata whenua and their role as kaitiaki with the characteristics of particular geothermal systems, fields and geothermal features. Ensure that tāngata whenua identify specific resource management matters of traditional and contemporary cultural significance.

49. The evidence of Messrs Northcroft, Winitana, Rameka and Stirling would

not support the assertion that the proposal is consistent with Policy 9.8

as it does not “recognise and provide for … [Tūwharetoa Hapū’s] role as

kaitiaki”.

50. In my opinion, the explanatory text at the end of the implementation

methods associated with Policy 9.8 supports their evidence. It states:

9 A Collins- Statement of Evidence – para 7.23 – 7.28 10 Ibid – para7.29

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Tāngata whenua with particular interest in geothermal resources include people from Waikato-Tainui, Ngāti Tūwharetoa, Raukawa, Te Arawa, and Hauraki.

51. Policy 4.3 and its associated implementation methods, are also relevant,

and I reproduce them in full below:

Policy 4.3 Tāngata whenua Tāngata whenua are provided appropriate opportunities to express, maintain and enhance the relationship with their rohe through resource management and other local authority processes.

Implementation methods

4.3.1 Strategic partnerships with iwi authorities

Waikato Regional Council will seek to develop strategic and formal partnerships with iwi authorities which should include addressing the following:

a) involvement in regional plan development and review;

b) involvement in resource consent processes; and

c) protocols for information sharing and transfer.

4.3.2 Tāngata whenua involvement

Local authorities should ensure that tāngata whenua have appropriate opportunities to be involved in relevant resource management processes, including:

a) developing and implementing plans and strategies;

b) developing and implementing monitoring and enhancement

programmes;

c) decision making; and

d) by establishing formal arrangements such as joint management agreements or memoranda of understanding or co-management.

4.3.3 Kaitiakitanga

Local authorities should work with tāngata whenua to develop:

a) an understanding of the application of kaitiakitanga;

b) processes and protocols for providing for the practical

expression of kaitiakitanga, which may include:

i) agreeing who should be consulted, when and how; ii) establishing formal arrangements such as joint

management agreements or memoranda of understanding;

iii) tāngata whenua representation on hearings and other council committees;

iv) support for preparation, implementation and review of iwi and Hapū planning documents;

v) establishing an inventory of matters raised by tāngata whenua and best practice responses to reduce duplication of effort; and

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c) protocols for information sharing and transfer including of mātauranga Māori.

4.3.4 Use and enjoyment of resources

In developing relevant resource management processes, including regional and district plans, local authorities should provide for the wellbeing of tāngata whenua by enabling appropriate access to and use and enjoyment of their resources.

52. I note in particular:

(a) Implementation method 4.3.1 b) provides for iwi authorities

(which includes TMTB) to be involved in resource consent

processes – I accept that this has been satisfied in this case in that

TMTB was notified about the application.

(b) Although I accept that Policy 4.3 is a “high level” one, it cannot be

said that the WRC is implementing method 4.3.3, based on the

evidence of Messrs Northcroft, Winitana, Rameka and Stirling.

That evidence suggests that there is very little “understanding of

the application of kaitiakitanga”, insofar as it relates to TMTB. In

particular, the Council’s approach seems to be that if Ngāti Tahu-

Ngāti Whaoa are satisfied that their kaitiaki obligations are being

addressed, then that automatically addresses the Tūwharetoa

Hapū’s kaitiaki responsibilities. That is at odds with TMTB’s

evidence.

Regional Plan

53. I do not repeat, nor specifically address Mr Collins’ assessment of the

Regional Plan11, and instead focus on a number of tāngata whenua

themed aspects.

54. Section 2 of the Regional Plan sets out “matters of significance to iwi”.

Section 2.2.5 specifically addresses matters of significance to Ngāti

Tūwharetoa.

55. The first paragraph of Section 2.2.5 states:

11 Ibid – paras 7.30 – 7.39

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Ngati Tuwharetoa descend from the Te Arawa waka. The rohe of Ngati Tuwharetoa spans the Taupo District encompassing Lake Taupo, the Waikato River, geothermal taonga and the central North Island mountains Ruapehu, Ngauruhoe, Tauhara and Tongariro [emphasis added].

56. That statement reinforces the evidence of Messrs Northcroft, Winitana,

Rameka and Mr Stirling, given that Rotokawa is within the Taupo District

and must be one of the “geothermal taonga” being referred to.

57. Section 2.2.5.1 addresses the “matters of concern to Ngāti Tūwharetoa”

and includes the following:

Kaitiakitanga This issue concerns the responsibility of Ngati Tuwharetoa to undertake their duties of custodianship, stewardship and guardianship over their lands, resources and taonga. The Kaitiaki principle applies in respect of all Tuwharetoa taonga whether in the ownership of Ngati Tuwharetoa or not.

58. This reinforces the RPS definition and makes it clear that “ownership” is

not a prerequisite to exercising kaitiakitanga.

59. Objective 2.3.2 and the associated explanatory text deal with the

uncertainty that can occur when needing to determine who has, and how

to give effect to, kaitiakitanga. The text is reproduced in full below.

2.3.2 Objective a) Uncertainty for all parties regarding the relationship

between tangata whenua and resources for which they are Kaitiaki minimised.

Tangata whenua able to give effect to kaitiakitanga

Principal Reasons for Adopting the Objective This chapter has been included in the Plan to give a clear policy framework for how Waikato Regional Council will give effect to its obligations under Part III of the RMA. Section 6(e) of the RMA requires that Council recognises and provides for the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga. Section 7(a) requires Council to have particular regard to kaitiakitanga and s8 requires council to take into account the principles of the Treaty Waitangi. The objective acknowledges the concern expressed in the issues that within the Region there have been no clear processes to define the relationship of tangata whenua with natural and physical resources,

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creating barriers to the successful implementation of Part II of the RMA. A lack of processes has led to uncertainty, unnecessary costs and tangata whenua being hindered giving effect to kaitiakitanga. Reducing the uncertainty for all parties results in a reduction in the costs of the consent process to all involved and an increased ability to tangata whenua to be able to give effect to kaitiakitanga in accordance with s7(a) of the RMA. Kaitiaki refers to tangata whenua who exercise kaitiakitanga which is defined in Part 1 or the RMA as:

“Kaitiakitanga means the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Maori in relation to natural and physical resources; and includes the ethic of stewardship:”

In choosing the terms ‘Kaitiaki’ and ‘Kaitiakitanga’ Council is stating that it will give priority to the concerns of Maori based on their status as tangata whenua and as Kaitiaki, whilst maintaining the ability of Council to consider the concerns of other groups who are not tangata whenua. The phrasing addresses the concerns of tangata whenua who exercise Kaitiakitanga over specific resources, ahead of other Maori submitters to a resource consent who have a relationship that is not based on the present day exercise of kaitiakitanga. This provides certainty to both resource users and tangata whenua as to the status of all parties involved in the process and will ensure that local hapu or whanau are empowered to give real expression to their role as Kaitiaki through the planning and consent process. These terms are also consistent with Part II of RMA.

60. There is nothing in this objective that suggests that only one Maori entity

can exercise kaitiakitanga in respect of a particular resource, although I

accept that who tāngata whenua are for that resource needs to be

determined on a case by case basis.

61. Section 7 of the Regional Plan comprises the “Geothermal Module”.

62. The “Background and explanation” states:

Tangata whenua with particular interest in geothermal energy are people from Waikato-Tainui, Te Arawa, Ngati Tuwharetoa, Ngati Tahu, Ngati Raukawa, Maniapoto and Hauraki.

63. Rule 7.6.1.4, identifies the assessment criteria applicable for “large takes”

in “Development Geothermal Systems”12 and this includes:

The extent to which the cultural values of tangata whenua are recognised including their kaitiaki role with the geothermal resource.

12 See Table 7.1 – which identified Rotokawa as a “development Geothermal System”

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64. The evidence from the TMTB is that the kaitiaki role of the Tūwharetoa

Hapū has not been recognised.

OTHER MATTERS

65. Mr Collins states that there are three relevant Iwi Environmental

Management Plans (“EMP”)13, namely those produced by Ngāti

Tūwharetoa, Ngāti Tahu - Ngāti Whaoa, and Te Arawa. I agree.

66. Mr Collins contrasts the Ngāti Tahu - Ngāti Whaoa EMP with the Ngāti

Tūwharetoa one on the basis of their respective levels of detail14, and

concludes15 (subject to any evidence from TMTB) that the consents

sought are not inconsistent with the three EMPs.

67. There are two points I want to make in this regard. Firstly, I do not

consider that the relative levels of detail in the various EMPs has any

bearing on section 6(e) or 7(a) matters. That said, it is clear from the

Ngāti Tūwharetoa EMP that the management of geothermal resources is

a key issue for the iwi. The fact that the details are non-specific does not

negate from that.

68. My second point, is that failure to recognise the Tūwharetoa Hapū as

kaitiaki, by way of conditions, would directly contravene what is said in

the Ngāti Tūwharetoa EMP.

69. Although not directly relevant to the consideration of these applications,

the Taupo District Plan supports Ngāti Tūwharetoa’s evidence that the

iwi and their Hapū are mana whenua and kaitiaki of Rotokawa. In that

regard, Section 2.2 of the Taupo District Plan states as follows:

2.2 Tangata Whenua of the Taupō District ‘Ko Tongariro te maunga Ko Taupō-nui-a-Tia te moana

13 A Collins – Statement of Evidence – para 8.8 14 Ibid – paras 8.9 – 8.10 15 Ibid – para 8.12

18

Ko Tuwharetoa te Iwi Ko Te Heuheu te Tangata’ ‘Tongariro is the mountain Taupō-nui-a-Tia is the inland sea Tuwharetoa are the people Te Heuheu is the Man’ The above proverb identifies the tribe of Ngati Tuwharetoa who live on the shores of Lake Taupō and in other outlying areas. It was first spoken by Potatau Te Wherowhero, the first Maori King, who came from within the boundaries of the Waikato people. The Ngati Tuwharetoa Iwi and its Hapu are the kaitiaki or guardians of what is now known as the Taupō District, encompassing Lake Taupō-nui-a-Tia, the Waikato River and the Mountains of the central North Island – Ruapehu, Tongariro, Ngauruhoe, Pihanga and Tauhara. [emphasis added]

SUMMARY

70. In my opinion, the TMTB evidence makes it clear that there is a strong

relationship between the Tūwharetoa Hapū and the Rotokawa

geothermal resource.

71. If the Court concurs, then it is equally clear that the currently proposed

resource consent conditions fail to address Tūwharetoa Hapū’s

relationship with that resource, nor do they provide for their kaitiaki

obligations.

72. I note that the relief sought by the TMTB in its appeal was, in effect, that

the consents could not be granted, pending a process of consultation and

an assessment of cultural effects. In my opinion, it is not necessary to do

that and those matters can be addressed by amending and adding to the

existing conditions.

AMENDMENTS TO CONSENT CONDITIONS

73. I acknowledge that both Mr Collins and Ms Roa have suggested that the

conditions of consent be amended to require the final Annual Report and

Annual Peer Review Panel Report be made available to TMTB at the time

they become publicly available.

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74. In my opinion, that is of very limited utility, given that the reports would

already be in the public domain at the time they were required to be

provided.

75. In the event that the Court is satisfied that the Tūwharetoa Hapū are

mana whenua and are kaitiaki of Rotokawa, then the conditions of

consent require substantial modification to address that. I say that

because the currently proposed conditions reflect the fact that as a joint

venture partner, the Tauhara North No. 2 Trust would be exercising many

of Ngāti Tahu – Ngāti Whaoa’s kaitiaki obligations around the joint

venture Board table, rather than requiring those obligations to be

incorporated into consent conditions and have them enforced by the

Regional Council.

76. I have been involved in a large number of projects where section 6(e) and

7(a) matters have been to the fore. Based on those experiences, I have

developed the following conditions that I understand would be

acceptable to the TMTB and its constituent hapū. I set those conditions

out in Attachment 1, noting that the base text (in black) represents the

current version of conditions in Schedule M, with my changes being

shown in redline / strikeout format.

77. The key changes I have made comprise:

(a) Including an Advice Note explaining that the TMTB has been

specified in the conditions, rather than the individual Tūwharetoa

Hapū, for efficiency reasons so that the Consent Holder has one

point of contact for liaising with Tūwharetoa Hapū. However, it is

the individual Tūwharetoa Hapū who assert (non-exclusive) mana

whenua and kaitiakitanga over the Rotokawa geothermal

resource, and in giving effect to the conditions, the TMTB will be

representing the interests of, and consulting with the constituent

Hapū.

20

(b) Providing for “kaitiaki” and “community consultation” matters

separately as, in my opinion they are two entirely different

matters.

(c) Allowing for tāngata whenua to appoint Kaitiaki Advisors to assist

with the implementation of kaitiaki obligations.

(d) Providing for an on-going consultative process via way of a

“Tāngata Whenua Consultation Group”, with a series of defined

purposes.

(e) Providing for implementation of a “Cultural Indicators Monitoring

Plan”.

RESPONSE TO OTHER EVIDENCE

78. To the extent I need to, I believe that I have responded to the matters

raised by other witnesses in Sections 3 and 4 above.

SUMMARY AND CONCLUSION

79. My evidence analyses the statutory planning documents (specifically the

RPS and Regional Plan) and having done so, I can find no support for the

proposition that any one “Maori interest” can claim to having exclusive

mana whenua rights to the exclusion of other “Maori interests” who also

assert mana whenua, particularly in the case of Ngāti Tūwharetoa, whose

relationship with the geothermal resources of the Waikato Region, and

the Taupo District in particular, is expressly recognized in both the RPS

and Regional Plan.

80. In my opinion, the conditions of consent contained in the independent

commissioner’s decision that relate to “matters Maori”:

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(a) Are predicated on the assumption that if one tāngata whenua

party is satisfied with the proposal then that automatically means

any other party’s concerns are also satisfied; and

(b) Reflect that that party is so closely affiliated to one of the joint

venture partners for this application. In that regard, I think it

reasonable to conclude that such a party would be exercising

many of its kaitiaki obligations around the joint venture Board

table, rather than requiring those obligations to be incorporated

into consent conditions and have them enforced by the Reginal

Council.

81. As a consequence, I do not consider that the consent conditions are

adequate, and it is clear to me, based on the evidence of Messrs

Northcroft, Winitana, Rameka and Stirling, that they fail to address

Tūwharetoa Hapū’s relationship with the Rotokawa geothermal resource

and fail to provide for them to exercise kaitiakitanga, as required by

sections 6(e) and 7(a) of the RMA, respectively.

82. I consider the conditions addressing “matters Maori” to be much less

rigorous than what I would expect to see if a party asserting mana

whenua was not also so closely affiliated with a consent applicant.

Because TMTB has no ownership interest in the Joint Venture, its

interests can only be addressed by way of consent conditions, and in my

opinion the existing conditions, even if expanded to include TMTB in the

way proposed by Mr Collins and Ms Roa, require considerable

amendment. Details of those amendments are set out in Attachment 1.

Dr Philip Mitchell 4 June 2017

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ATTACHMENT 1

PROPOSED AMENDMENTS TO CONDITIONS

23

PROPOSED REVISIONS TO SCHEDULE M (relevant text only shown here)

1. PEER REVIEW PANEL

1.8 The Peer Review Panel shall review the DRAFT Annual Report to be provided in October

each year by the Consent Holder under General Condition 3.12 and, within two months of

receipt of the Annual Report, shall hold an Annual Peer Review Panel Meeting with the

Consent Holder and the Waikato Regional Council. An invitation to attend the Annual Peer

Review Panel Meeting shall also be provided to Ngati Tahu-Ngati Whaoa Runanga Trust and

Tūwharetoa Maori Trust Board.

Advice Note:

These conditions make reference to the Tūwharetoa Maori Trust Board in a number of

places. The Tūwharetoa Maori Trust Board has been specified in the conditions, rather than

the individual Tūwharetoa Hapū, solely for efficiency reasons in order that the Consent

Holder has one point of contact for liaising with Tūwharetoa Hapū. However, it is the

individual Tūwharetoa Hapū who assert (non-exclusive) mana whenua and kaitiakitanga

over the Rotokawa geothermal resource, and in giving effect to the conditions, the

Tūwharetoa Maori Trust Board will be representing the interests of, and consulting with

the following constituent Hapū:

• Ngati Hineure,

• Ngati Hinerau,

• Ngati Te Urunga,

• Ngati Tutemohuta,

• Ngati Rauhoto, and

• Ngati Tutetawha.

2. KAITIAKITANGA AND COMMUNITY

Advice Note:

2.A The consent holder shall provide and/or facilitate opportunities for Ngati Tahu-Ngati

Whaoa Runanga Trust and Tūwharetoa Hapū to exercise kaitiakitanga, participate in the

Annual Report and Annual Peer Review Panel Meeting processes, including opportunities

to;

a) Investigate and understand the cultural effects of the activities authorised by the

Consents;

b) Exercise kaitiakitanga with respect to the Rotokawa geothermal resource;

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c) review the DRAFT Annual Report;

d) attend Annual Peer Review Panel Meetings;

e) pose questions and seek clarification on aspects of the DRAFT Annual Report,

f) either prior to or during Annual Peer Review Panel Meetings; and

g) listen to, and participate in, Annual Peer Review Panel Meeting discussion regarding;

i) any concerns or questions Ngati Tahu-Ngati Whaoa Runanga Trust and

Tūwharetoa Maori Trust Board haves raised (or raises);

ii) the sustainability of the Rotokawa geothermal resource; and

iii) the Consent Holder’s compliance with The Consents.

Kaitiakitanga

2.B The Consent Holder shall invite the Ngati Tahu-Ngati Whaoa Runanga Trust and

Tūwharetoa Maori Trust Board to each appoint (and once appointed, from time to time,

replace) a Kaitiaki Advisor to undertake the tasks set out in these conditions.

2.C Where a Kaitiaki Advisor is not appointed by either Ngati Tahu-Ngati Whaoa Runanga Trust

or Tūwharetoa Maori Trust Board within six months of the commencement of these

consents or where at any time the appointed Kaitiaki Advisor is unable, for whatever

reason, to undertake their tasks as set out in these conditions, the Consent Holder’s

obligations in respect of the matters to be addressed by that particular Kaitiaki Advisor,

shall cease until such time as a Kaitiaki Advisor is able to fulfil the required tasks. For the

avoidance of doubt, the Consent Holder’s obligations in respect of matters to be addressed

by an appointed Kaitiaki Advisor are not affected by this condition.

2.D The Consent Holder shall provide a monthly verbal report (either in person or by telephone)

to the Kaitiaki Advisor. The report shall address major events or changes in the past month

and any major events or changes planned for the coming month (including in respect to

changes in production and/or reinjection/injection on any well).

2.E The Consent Holder shall fund the reasonable costs of the Kaitiaki Advisors up to a

maximum sum of $X,000 per annum, adjusted annually for inflation.

Tangata Whenua Consultation

2.F Within three months of the commencement of the Consents, the Consent Holder shall

invite tangata whenua representatives from Ngati Tahu-Ngati Whaoa Runanga Trust, and

Tūwharetoa Maori Trust Board to participate in a Rotokawa Geothermal Resource “Tangata

Whenua Consultation Group” (“TWCG”).

25

a) The purpose of the TWCG shall be to facilitate consultation between the TWCG and

the Consent Holder, and provide a coordinated approach to:

i) Discuss the design of the monitoring programmes, including the incorporation

of appropriate matters of importance to the TWCG.

ii) Identify and implement methods to involve tangata whenua in the ongoing

monitoring programme and the receipt of information, especially, but not

limited to, any non-compliance with the conditions of this consent.

iii) Discuss the results of monitoring programmes.

iv) To make recommendations to the Consent Holder and/or the Consent

Authority on appropriate changes to the physical and biological monitoring

framework in order to address cultural aspects of resource utilisation and any

ecological monitoring required.

b) The Consent Holder shall, in complying with the reporting requirements of this

consent to the Consent Authority, or when monitoring or research activities are being

planned, or when results are to be submitted in accordance with the Consents, invite

the TWCG to a meeting to discuss any matter and share this information prior to

submitting the information to the Consent Authority. The information shall be

provided to the TWCG sufficiently in advance of the meeting so that the TWCG has

time to review and consider it.

c) Notwithstanding clause b) of this condition the Consent Holder shall, at least once

every six months, invite representatives of the Consent Authority and the TWCG to a

meeting to discuss any matter relating to the exercise and monitoring of the

Consents. At this time the Consent Holder shall provide information on matters

relating to the exercise and monitoring of this consent and the proposed work

programme for the following 12 months.

d) The Consent Holder shall keep minutes of the meetings held in accordance with

clause b) and c) of this condition and shall forward them to all attendees and the

Consent Authority within ten working days.

e) The meetings required by clauses b) and c) of this condition need not occur if the

TWCG notifies the Consent Holder (in respect of clause b) and c)) and the Consent

Authority (in respect of clause c)) that the meeting is not required.

f) The Consent Holder shall fund the reasonable costs of a geothermal expert,

commissioned by the TWCG, up to a maximum sum of $Y,000 per annum, adjusted

annually for inflation.

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g) The Consent Holder shall provide final copies of the reports prepared in accordance

with the conditions of the Consents to the TWCG concurrently with them being

submitted to the Consent Authority.

2.G The Consent Holder shall forward a copy of the final Annual Report and the Annual Peer

Review Panel Report to the following;

(a) Ngati Tahu – Ngati Whaoa Runanga Trust

(b) The Tūwharetoa Maori Trust Board

The final Annual Report shall be circulated at the same time the Consent Holder provides it

to the Waikato Regional Council.

2.X COMMUNITY

2.1X The Consent Holder shall forward a copy of the final Annual Report and the Annual Peer

Review Panel Report to the following;

(a) Ngati Tahu – Ngati Whaoa Runanga Trust

(ba) Taupo District Council

(cb) Department of Conservation

(dc) Wairakei Pastoral Limited

The final Annual Report shall be circulated at the same time the Consent Holder provides it

to the Waikato Regional Council.

2.2X The Consent Holder shall meet with the Department of Conservation on an annual basis.

The purpose of the meeting shall be to present and discuss the Annual Report and solicit

feedback on development-related matters. Minutes from the meeting shall be recorded

and forwarded to WRC and the Peer Review Panel within 3 weeks of the meeting.

2.3X The Consent Holder shall forward to Wairakei Pastoral Limited a copy of the Reservoir

Model Review required pursuant to General Condition 3.10 of The Consents.

3. SYSTEM MANAGEMENT PLAN, MODELLING AND ANNUAL REPORTING

3.12 The Consent Holder shall produce an DRAFT Annual Report by the end of October each year

that describes the state of the Rotokawa Geothermal System using new resource and

monitoring information collected during the course of the preceding financial year (i.e. from

July to June). The report shall be provided to the Waikato Regional Council, and Ngati Tahu-

27

Ngati Whaoa Runanga Trust, the TWCG and Tūwharetoa Maori Trust Board. The report shall

be to the satisfaction of the Waikato Regional Council and shall contain at least the

following information:

(a) Generation information from the Rotokawa Power Stations operated by the Consent

Holder including:

(i) Annual generation (GWh).

(ii) Station availability (%).

(b) Production information from all wells operated by the Consent Holder including:

(i) Field layout changes and well outages.

(ii) Summary of annual and daily fluid production including:

• Annual and daily total mass take of fluid from reservoir (tonnes).

• Annual and daily total energy extracted from reservoir (petajoules /

terajoules).

(iii) Critical analysis of production well chemistry data collected.

(c) Information on reinjection within the Rotokawa Geothermal System including:

(i) Description of reinjection operations, depths and locations.

(ii) Summary of annual and daily fluid reinjection volumes to the reservoir (tonnes)

and depth range.

(iii) Summary of reinjection flows (t/hr), temperatures and well head pressures

(bar g).

(iv) Summarised results of any tracer testing undertaken.

(d) Other well information including:

(i) Summary and critical analysis of data (e.g. downhole pressures) collected from

monitor wells.

(ii) Summary and critical analysis of data (water levels) collected from groundwater

monitor wells.

(e) Summary of well drilling activities, well workovers and well abandonments.

(f) Comparison of trends in reservoir pressure, temperature and fluid state with

predictions in the previous report of the Reservoir model.

(g) Summary of seismic data collected.

(h) Update (if any) on the reservoir model including any future predictions made.

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(i) Summary of any other surveys or interpretive reports conducted in accordance with

the Monitoring Programme or as directed by Waikato Regional Council pursuant to

General Condition 5.3.

(j) Summary of levelling data collected.

(k) Planned drilling and major maintenance activities for the following year.

(l) Summary of any complaints received by the Consent Holder and actions undertaken

with respect to them.

(m) Planned changes to the Monitoring Programme.

3.13 The Annual Report required by Condition 3.12 shall be provided to the TWCG in draft form,

not less than four weeks prior to it being submitted to the Waikato Regional Council. The

final Annual Report submitted to the Council under Condition 3.12 shall incorporate any

feedback received from the TWCG (including identifying and explaining any matters of

disagreement).

5. RESOURCE MONITORING

5.4A In addition to undertaking the Monitoring Programme described in Schedule TWO of The

Consents, the Consent Holder shall undertake a Cultural Indicators Monitoring Plan in

conjunction with the Monitoring Programme to supplement the scientific information

collected pursuant to Schedule TWO, by also monitoring various indicators of the cultural

effects of the activities authorised by the Consents (“Cultural Indicators”) in order that the

Consent Holder and the Council understand the cultural effects of the activities authorised

by the Consents, including how any cultural effects may change over time. The Consent

Holder shall:

(a) Within six months of the commencement of this consent, and following consultation

with and having regard to the advice of the Kaitiaki Advisors appointed pursuant to

Condition 2.1, submit to the Council for approval a Cultural Indicators Monitoring

Plan, prepared in accordance with this condition. The Consent Holder shall include

any comments from the Kaitiaki Advisors in its submission of the Cultural Indicators

Monitoring Plan to the Council, along with an explanation of where and why any

comments have not been incorporated into the Plan;

(b) Invite the Kaitiaki Advisors to assist in the implementation of the Cultural Indicators

Monitoring Plan and, provided that invitation is accepted, involve the Kaitiaki

Advisors in its implementation to the extent practicable;

(c) Implement the Cultural Indicators Monitoring Plan developed in accordance with this

condition. Pipeline construction or well drilling activities in or under Consent Area 4

29

or an increase in the volume of fluid abstracted pursuant to the Consents shall not

commence until such time as the Cultural Indicators Monitoring Plan has been

approved;

The Cultural Indicators referred to in this condition shall be capable of being objectively

defined and assessed. They may include, but are not limited to, assessing changes in the

characteristics of surface vegetation or surface manifestations of the Rotokawa geothermal

resource, the health of culturally significant flora and/or fauna, and the health of waterways

in the vicinity of the Rotokawa geothermal resource.

5.4B The reporting associated with the Cultural Indicators Monitoring Plan (including provision

of the Plan to the Council in accordance with Condition 5.4A(a)) shall be provided to the

TWCG in draft form, not less than four weeks prior to it being submitted to the Council.

Final reporting to the Council shall incorporate any feedback received from the TWCG

(including identifying and explaining any matters of disagreement) and be provided to the

Council at the same times as the Annual Report is provided in accordance with Condition

3.12.

5.5 The Consent Holder may, at any time, propose to the Waikato Regional Council changes to

the Monitoring Programme. An alteration in the Monitoring Programme described in

Schedule TWO may be approved by the Waikato Regional Council if, after taking advice

from the Peer Review Panel and the TWCG, in its view the Monitoring Programme is no

longer appropriate or necessary but requires an increase or decrease in the type, frequency

and location of any part of the Monitoring Programme. Any proposal to change the

Monitoring Programme shall incorporate any feedback received from the TWCG regarding

the changes (including identifying and explaining any matters of disagreement) and be

provided to the Council at the same time as other monitoring results are provided in

accordance with Condition 3.12.