Statement of Evidence of Buddy Mikaere

Transcription

1 In the Environment Court Auckland Registry ENV-2016-AKL In the matter of an appeal pursuant to s 120 of the Resource Management Act 1991 Between Tuwharetoa Maori Trust Board Appellant And Waikato Regional Council Respondent And Rotokawa Joint Venture Limited Applicant And Ngati Tahu-Ngati Whaoa Runanga Trust Section 274 Party Statement of Evidence of Buddy Mikaere 1 May 2017 Solicitors: J Campbell J Wilson PO Box 90750, Victoria Street West, Auckland 1142 DX CP24063 T: janette.campbell@mc.co.nz jeremy.wilson@mc.co.nz

2 1 INTRODUCTION Qualifications and experience 1.1 My name is Buddy Mikaere. I am a consultant with over twenty years experience in dealing with cultural issues associated with development proposals. I have undertaken this work on behalf of developers, local government, Government Departments, iwi, hapu and private individuals. 1.2 In terms of involvement with geothermal projects I have been responsible for the identification and consideration of cultural issues for the following projects: (a) (b) (c) (d) (e) (f) (g) (h) Ngawha geothermal application for Top Energy; Kawerau Geothermal bore investigation for Carter Holt Harvey; Contact Energy/Geotherm Ltd Wairakei field extraction resource consents applications for the Waikato Regional Council; Kawerau Geothermal Field resource consents application for Mighty River Power; Volcanic Plateau geothermal project investigation for Genesis Energy; Taheke/Contact Geothermal field project for Taheke 8C Trust; Te Ahi O Mauri Geothermal project, Kawerau for Eastland Energy and the Kawerau A8 Trust; and Ngawha geothermal expansion project for Top Energy. 1.3 I have a commercial background in Human Resources and Industrial Relations with large manufacturing companies in New Zealand and Australia. 1.4 I hold an honours degree in Maori Studies from Canterbury University and have a long list of publications in my specialist field of 19th century race relations. I have lectured in Iwi and Maori history and Treaty of Waitangi issues at Associate Professor Level at Waikato University. I have also been a guest lecturer in these subjects at Auckland, Massey, Victoria, Canterbury, Lincoln and Otago Universities. I have this year begun doctorate studies at Massey University, Albany. 1.5 Immediately before taking up work in the broader RMA field, I was Director of the Waitangi Tribunal for a period of 5 years during which time I had charge of the largest historical research programme ever undertaken in this country. What those five years gave me was a wide network of iwi and hapu contacts within the Maori world; an appreciation of the historical background to many contemporary Maori issues; and, most importantly, an understanding of how traditional Maori conceptual thinking might align with the practicalities of modern life but without losing its integrity. 1.6 During my time at the Tribunal a number of claims concerning Maori and geothermal resources were investigated. These included the Te Arawa representative geothermal resource claims WAI 153 and the Ngawha Geothermal Claim WAI 304. I am therefore familiar with the cultural issues

3 surrounding geothermal resources from the very first serious investigations into the link between such resources and Maori. Purpose and scope of evidence 1.7 I appear here on behalf of the applicant, Rotokawa Joint Venture Limited ( RJV ). 1.8 As explained in other evidence, RJV seeks resource consents to relocate some of its Rotokawa Geothermal Field production from a western reservoir compartment, showing signs of cooling and pressure reduction, to other parts of the reservoir, while concurrently seeking an increase in geothermal fluid take to provide for revised predictions of future enthalpy. Both these field management changes are in line with adaptive management philosophies typically applied to geothermal development and recognised in relevant Waikato Regional Council policy. The granting of the consents by the Regional Council has been appealed by the Tuwharetoa Maori Trust Board ( TMTB ). The grounds for that appeal are set out in their notice of appeal of 14 August Those grounds include matters such as claimed mana whenua and kaitiakitanga over the project area, being Lake Rotokawa Conservation Area (Consent Area 4); Lake Rotokawa itself and the Rotokawa Geothermal Field. TMTB say that Tuwharetoa are linked by whakapapa to their lands and taonga including resources at Rotokawa. This is claimed to be the basis for their mana whenua, kaitiakitanga and rangatiratanga, giving them a right to establish a meaningful and sustainable relationship between whanau, hapu, marae and their taonga tuku iho Furthermore TMTB say there is an intrinsic duty to ensure that the mauri and the physical and spiritual health of the environment in their rohe is maintained, protected and enhanced It is also alleged that there has been a failure to consult with Ngati Hinerau and Ngati Hineure as directly affected parties and the Tuwharetoa Hapu Forum as the entity representing affected hapu who hold prospective ownership rights in the lands affected by the application Also mentioned are alleged procedural errors by the Waikato Regional Council and inadequacies in the AEE, resulting from a failure to properly identify cultural effects because of the non-involvement of the Ngati Hinerau, Ngati Hineure and Tuwharetoa Hapu Forum My evidence addresses all the issues raised by TMTB with a particular emphasis on the mana whenua and kaitiakitanga aspects and their application and relevance to this application. Involvement in the Project 1.14 I have been involved in the project since March this year when I was asked to provide evidence about the cultural matters just described I have read all the available project documentation including the evidence and submissions given at the Commissioner s hearing in I have also visited the Rotokawa site and visited the power generation facilities as well as the nearby

4 surface manifestations (Lake Rotokawa and surrounds) of the underlying geothermal resource I have also undertaken some independent research looking at Maori Land Court minutes, relevant Waitangi Tribunal reports and associated documents and reports containing useful commentary on the Maori cultural/geothermal resource nexus Where needed I have also had access to the various experts (and their evidence) working on this project for RJV and of course relevant company staff. Summary of Evidence 1.18 My evidence is structured as follows: (a) (b) (c) (d) (e) (f) (g) Comments on consultation; Mana whenua and the Rotokawa resource; Kaitiakitanga and the Rotokawa resource; Tuwharetoa Maori Trust Board issues; Ngati Hineure and Ngati Hinerau issues; Compliance with Part 2 matters in particulars Sections 6(e), 7(a) and 8 of the RMA where appropriate or relevant; and Conclusion I find that the cultural matters raised in opposition to this application have no basis in traditional or historical fact. It is quite clear to me that the mana whenua and accompanying kaitiakitanga responsibilities sit quite properly with Ngati Tahu whose mana was recognised by Tuwharetoa hapu nearly 150 years ago and I can find no evidence that that mana was ever relinquished That being the case there is no need to consult any wider than the consultation group identified by RJV and the Regional Council with the slight exception that I do suggest that consultation with TMTB as a courtesy would be sensible From the perspective of my expertise I find no reason to decline the application. Expert Witness Code of Conduct 1.22 I have been provided with a copy of the Code of Conduct for Expert Witnesses contained in the Environment Court s 2014 Practice Note. I have read and agree to comply with that Code. This evidence is within my area of expertise, except where I state that I am relying upon the specified evidence of another person. I have not omitted to consider material facts known to me that might alter or detract from the opinions that I express My evidence should be read in conjunction with that of Mr Jackson, Mr Pikia, Ms Campbell and Miss Hepi-Te Huia.

5 2 CONSULTATION 2.1 The consultation process followed by RJV for the present application is outlined in some detail in section 4 of the evidence of Mr Jackson. His evidence also places the current application consultation effort in the context of earlier consultations in respect of Rotokawa development proposals from It seems to me that the key consultation partner in terms of this application is TMTB although as detailed by Mr Jackson attempts were made to deal with a wider representative group. 2.2 My understanding that the representative group included those consulted with in respect of the 2007 proposals for reasons of continuity. I further note that identification of the correct parties for consultation was undertaken in conjunction with the Regional Council. 2.3 A TMTB Counsel memorandum of 5 April 2017 confirmed at paragraph 9 that TMTB is a representative body for its constituent hapu and on its own Facebook media page TMTB confirms it is a body legislated to administer Ngāti Tūwharetoa assets handed down from our Tūpuna for the benefit of present and future generations of Ngāti Tūwharetoa. The Board operates under the auspices of the Trust Boards Act I would have thought that that was sufficient authorisation for RJV to have a reasonable expectation that in dealing with TMTB it was dealing with the body charged with representing hapu interests. I would suggest that for reasons of courtesy, consultation with TMTB would be sensible but that would be largely on an information basis. 2.5 Finally I note the statements made in the Council Commissioners Decision Report of 20 October 2016 at page 5 where the Commissioners pointed out that Under section 36A of the RMA there was no obligation on the applicant to undertake consultation and that we record that we found the applicant s consultative efforts to be both considered and genuine. 2.6 As far as I can determine the 2007 application proceeded without the same level of opposition from TMTB as the current application and the question to be asked therefore is what has changed? 2.7 As also explained in the evidence of Mr Jackson the change relates to the concurrent (and ongoing) Treaty settlements with the possibility that the Department of Conservation owned Lake Rotokawa and accompanying geothermal area might form part of some future Tuwharetoa settlement. I understand that such an outcome is currently under challenge by Ngati Tahu. 3 MANA WHENUA 3.1 At the heart of this case is a dispute about who holds mana whenua for the Tauhara North land on which the RJV project is located. Ngati Tahu say that the mana whenua is theirs and by marriage links over many generations, also incorporates Ngati Whaoa as explained in the evidence of Miss Hepi-Te Huia. 3.2 The Maori dictionary defines mana whenua as a noun meaning: 1 1 Maori Dictionary mana whenua <maoridictionary.co.nz>.

6 territorial rights, power from the land, authority over land or territory, jurisdiction over land or territory - power associated with possession and occupation of tribal land. 3.3 For myself I have always used the definition where it relates specifically to people as being the right to speak for the land. Traditional history 3.4 There is no dispute that the project land lies within the wider Te Arawa/Tuwharetoa rohe which is sometimes captured in the phrase: Ko te ihu o te waka kei Maketū, ko te kei o te waka kei Tongariro the prow of Te Arawa waka is at Maketu the stern at Tongariro - being a quick explanation of the rohe. 3.5 As far as I am able to determine Tauhara North and the rohe claimed by Ngati Tahu is on the boundary between the two tribal groupings of Te Arawa and Tuwharetoa. 3.6 The traditional history of the area around Lake Rotokawa is relatively thin. I have reviewed the evidence of Miss Hepi-Te Huia, in which she explains how Ngati Tahu were largely located at Orakei Korako but frequented the Lake Rotokawa area during the late-winter early spring parera or grey duck hunting season. 3.7 She provides details such as how her koroua, Paora Matenga, was killed at Lake Rotokawa in 1867 when his firearm exploded. This led to the establishment of a tapu over the area which stayed in place for five years. I think that the ability to establish and maintain that tapu is a further acknowledgement of Ngati Tahu s mana whenua status. 3.8 She describes how the people of Ngati Tahu established temporary camps there and used the hot water pools for bathing including use for medicinal or healing purposes. There is a nearby Ngati Tahu burial ground. They say other burial places such as caves along the river banks have been lost through the rise in river levels caused by the establishment of hydro projects. 3.9 These historic details are a means of establishing mana whenua. The only element missing is cultivation, something regarded by the 19 th century Native Land Court as being a defining activity in the establishment of ahi kaa long term occupation. But given the nature of the soils around Lake Rotokawa and the acidic environment it is not surprising that cultivation activity was not recorded This historic traditional account of the Ngati Tahu links to Rotokawa is also confirmed in some detail in the evidence of Mr Pikia. The historic record 3.11 Much of the detail explaining the legal links between Ngati Tahu and Rotokawa can be confirmed through the records that dealt with the establishment of the Tauhara North block in particular. I have drawn much of this information from a report prepared by historian Bruce Stirling in September Commissioned by the Crown Forestry Rental Trust and titled Central North Island Inquiry Taupo- Kaingaroa Nineteenth Century Overview Volume 1, it was prepared to assist in

7 the investigation of the Waitangi Tribunal claims pertaining to the wider Volcanic Plateau. An extract from the report is attached to my evidence as Appendix In this detailed report (which in its investigation of the Tauhara block begins immediately prior to the Native Land Court hearings of 1869), the first mana whenua incident mentioned involves a dispute over Rotokawa between Ngati Tahu and Ngati Rauhoto with Poihipi Tukairangi of Ngati Rauhoto not happy about the Court 2 apparently awarding the land to Ngati Tahu. Poihipi said that Ngati Rauhoto were intent on hunting ducks at Rotokawa in the spring despite there being a tapu in place through the death of Paora Matenga. It was observed by government official Captain John Chapman St George 3 who was present at the time, that this would likely lead to a challenge and fight with firearms involved Despite these misgivings, Rotokawa, which lay within what was to become the Tauhara North block, was awarded to Ngati Tahu at a Native Land court hearing in The Stirling report goes on to say 4 : Presumably, Poihipi Tukairangi s reaction was no better to the 1869 decision than it was to what he perceived as the slight on Ngati Rauhoto s mana in St George noted that Rotokawa was still a controversial topic in June 1868, where there were stormy discussions about the land around Rotokawa, although he did note that, at last it was decided to leave it to the court. The hapu involved were, after all, the most pro-government in northern Taupo and had long endorsed the use of government courts to settle their disputes. Nonetheless, St George did observe that feelings ran high: Hohepa [Tamamutu] made a long speech abusing Reweti [Te Kume] for having claimed the land, Reweti answered and in my opinion proved the claim of the Ngati Tahu, he also said that at the last Land Court the Ngati Tutetewha acknowledged the claim of the Ngati Tahu to the land in question, this I know to be a fact as I heard. Hunia Takurua put his understanding of the Ngati Tahu boundary in this area, but was challenged by Paora Hapi for Ngati Tutetawha and Ngati Tu. As a result, St George did not think Hunia had proved his claim. In the end, and despite St George s fears, the many hui and the fierce debates seemed to resolve the issues without bloodshed and without recourse to any government court. By the time Tauhara lands came before the Native Land Court in 1869, a consensus was reached about which hapu would be awarded which block, and who would be the hapu representatives on the titles Poihipi misunderstood what was happening because the Court had not in fact done this. St George was killed in the attack on Te Kooti s forces at Te Porere Redoubt, Rotoaira, on 4 October Beginning at page 431.

8 3.15 The key phrases from the report quoted above are firstly that...the many hui and the fierce debates seemed to resolve the issues.. and..in 1869, a consensus was reached about which hapu would be awarded which block The Tauhara case before the Native Land Court in 1869 was led by Paora Hapimana of Ngati Te Rangiita. He said that the other hapu of Tauhara were Ngati Tutetawha, Ngati Hinerau, Ngati Rauhoto, Ngati Te Uruanga and Ngati Hineure. No investigation of the claims of these hapu was made as Paora Hapimana said that the claimants had divided up the land and sought different titles for each part Tauhara North of 5,000 acres was claimed by Hare Reweti Te Kume for Ngati Tahu, without any record of dispute. Tauhara Middle thought to comprise 100,000 acres was then granted to six individuals as representatives of their various hapu. In the division of the Tauhara Middle Block Ngati Hinerau was represented by Ihakara Kahuao while Ngati Hineure was represented by Maniapoto Te Hina The awards were to be confirmed by a survey of each block within 12 months. Tauhara North was ordered to be inalienable by sale, mortgage, or a lease longer than 21 years. Tauhara Middle was similarly restricted until such time as it was divided up among the hapu to whom it was awarded It is quite clear that by a general consensus the mana whenua for the three Tauhara blocks was decided and agreed in The only challenge to the awarding of the land to Ngati Tahu came in 1897 when an application under the Equitable Owners Act in respect of Tauhara North was submitted by Te Heuheu Tukino 5 among others. Te Heuheu subsequently withdrew his application in favour of Ngati Tahu In my opinion there can be no doubt that the mana whenua over Rotokawa lies with those to whom the land was first granted by the Native Land Court, Ngati Tahu. Any current claims to mana whenua are not supported by the historical record or indeed the actions of tipuna involved at the time. The 1897 action of Te Heuheu Tukino withdrawing his application is in my opinion equivalent to a chiefly approval and acknowledgement of the Ngati Tahu position by the most senior person in Tuwharetoa of the day The 1869 allocation of interests in the Tauhara Block (which all were aware contained Rotokawa) led to Ngati Tahu being confirmed as owners of Tauhara North. That award was agreed and went unchallenged from that time right up to the present day. I think it is reasonable to assume that the above history establishes the Ngati Tahu presence as legitimate in traditional and legal terms Part of the Tauhara Block which included Lake Rotokawa was obtained by the Crown in 1921 ostensibly for sulphur mining purposes. Subsequently the land and lake came under a shared Department of Conservation/Landcorp management regime. I do not think that the present regime changes anything in respect of Ngati Tahu mana whenua over the land. 5 6 Tureiti Te Heuheu Tukino, the fifth paramount chief of Ngati Tuwharetoa. In 1897 he was an Assessor in the Validation Court. Report prepared by David Armstrong for the Tauhara North No 2 Trust Identification of Ngati Tahu Interests in Tauhara North, , 8 May 2015.

9 4 KAITIAKITANGA 4.1 Kaitiakitanga is normally referred to as stewardship or guardianship of land and resources belonging to the mana whenua. In terms of section 7(a) of Part 2 of the RMA, the term has become shorthand for the obligatory care by mana whenua of the rohe environment for present and future generations. 4.2 In my experience the main factors for determining who holds the kaitiaki responsibility for a particular resource or for a particular area of the rohe are land ownership and mana whenua. In this instance both these roles are filled by Ngati Tahu as represented by the Tauhara North 2B Trust. 4.3 In the contemporary Maori world there are instances where an iwi group such as the TMTB might assume a representative role for say, ocean fisheries, which is sometimes described as being a kaitiaki role but always at the local level it is the hapu or mana whenua group who hold that responsibility. Kaitiaki permits issues under the Customary Fisheries Takutai Moana legislation, for example, are always administered at the local level. 4.4 It might also be argued that in a similar fashion iwi can hold a kaitiaki role in respect of an underlying geothermal resource but that could only be in the absence of an identified hapu or mana whenua group. Again that is not the case here. 5 TMTB ISSUES 5.1 There is no challenge to the technical aspects of the application by TMTB. However it is alleged that the grant of consents gives rise to adverse cultural effects and is in breach of Part 2 sections 6(e) and section Section 6(e) requires recognition and provision for the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga as a matter of national importance. Counsel for TMTB, in the memorandum of 5 April 2017, has amended section 6(e) by the insertion of the word relevant before Maori. 5.3 As explained earlier in my evidence, through traditional occupation and use, and as confirmed by the Native Land Court in 1869, and as reconfirmed by the paramount Tuwharetoa chief Tukino Te Heuheu in 1897, Ngati Tahu are the mana whenua for Rotokawa. Ngati Tahu s contemporary interests are represented by the Tauhara North 2B Trust. Subsequently, for this project, that Trust is the relevant Maori group, whose culture and traditions should be recognised and provided for in order for the project to be compliant with section 6(e) of the RMA. 5.4 My understanding is that Ngati Tahu is completely satisfied that the grant of consents has recognised and provided for their relationship. On the basis of the historical evidence alone from nearly 150-years ago there is therefore no need or reason to similarly provide for TMTB and the hapu they represent. 5.5 It follows that there is accordingly no need to amend the conditions of consent in a manner that achieves the purpose of the RMA as required by TMTB.

10 6 NGATI HINERAU AND NGATI HINEURE 6.1 At the Commissioners hearing, evidence was given on behalf of these two hapu by Mr Mark Ross. Mr Ross, representing the two hapu, said that his position derived from a respect for the taonga as a whole and he queried the sustainability of the management of the Rotokawa field raising matters such as ground subsidence and the potential for impacts on geothermal surface features. In addition he also queried the continued access to the Lake Rotokawa Conservation Area to gather material and minerals for medicinal purposes and also sought an involvement in the ongoing management of the geothermal resource and Conservation Area at all levels in a meaningful role. 6.2 The sustainable management, ground subsidence and potential impacts on geothermal surface features are dealt with elsewhere in the expert evidence. My understanding is that, provided the usual courtesies are observed, RJV has no objection to access to the Conservation Area through its property on the same terms that the Department of Conservation has provided access. 6.3 Any on-going management role needs to have some kind of basis either through land ownership or mana whenua/kaitiaki obligations. As shown earlier in my evidence no such basis exists for other hapu groups outside of Ngati Tahu. 7 COMPLIANCE WITH PART 2 MATTERS 7.1 The mana whenua/kaitiaki group being partners in the Rotokawa Joint Venture makes compliance with sections 6(e), 7(a) and 8 of Part 2 of the RMA a relatively straightforward matter. 7.2 My examination of the proposed consent conditions together with my understanding of the co-operative relationship between the Joint Venture partners means that I am happy that there is proper compliance with these sections of the Act. 8 CONCLUSION 8.1 In terms of the matters that I was asked to consider in the preparation of this statement I am satisfied that the cultural issues raised by the appellants are not supported by the readily available traditional and historical evidence. There is therefore no reason to decline the application or impose additional conditions. This is because there is no traditional relationship in terms of RMA Part 2 sections 6(e) and 7(a) on the part of any of the Tuwharetoa entities now claiming such links to the Rotokawa land or geothermal resource. Buddy Mikaere

11 Appendix 1 Extract from Bruce Stirling Report