Summary
This decision is one of three appeals against a decision to grant water-related resource consents to Genesis to enable the hydro-electric Tongariro Power Development Scheme (“TPD”) to continue operating. This related to the water bodies from the headwaters of the Whang’hu, Whanganui and Moawhango Rivers into Lake Taupo and then into the Waikato River. The core of this case concerns the effect on Māori and their culture and their views on maintaining the ecology and water quality of the rivers and such considerations under the RMA. The decision recognizes that the effect of the diversion on Tikanga Maori has both a spiritual and physical dimension. Although the actual decision regarding the term of consents was later reversed in Genesis Power Ltd v Manawatu-Wanganui Regional Council 2006, this early decision contains an in-depth and important discussion around the connection of Māori to these rivers. From paragraph [85], the decision discusses Te Awa Tupua and similar principles Te Awa Tupua Act has now implemented, despite this decision pre-dating the Te Awa Tupua Act 2017. The Court found that the most damaging effect of both diversions on Maori has been on the wairua or spirituality of the people. To take away part of the river (for example the water or river shingle) is to take away part of the iwi. At paragraph [55] “…The effect of the diversion on Tikanga Maori has both a spiritual and physical dimension. The spiritual dimension underlies the genealogical and ancestral ties of the people to their river and tributaries, from their ancestral mountains to the ocean. This includes such concepts as mana, mauri, kaitiaki and tapu. These spiritual concepts are linked to and interrelated with such physical concepts as the form and ecology of the river, which affect important cultural pursuits such as fishing.” The Court had to balance the significant effects the TPD has had on Maori against the contribution the scheme makes to the production of electricity nationally. The Court found that Maori interests could be accommodated for by reducing the term of consents from 35 years to 10 years, however, this decision was appealed and reversed by the 2006 decision.