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Geothermal

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IV Geothermal Resources

A          Introduction

The heat provided from geothermal resources can reduce greenhouse gas emissions through electricity generation. New Zealand has taken advantage of these resources and Wairakei was the world’s first wet steam geothermal power station. While geothermal power plants are developing, Maori dispute ownership of the geothermal resource. Further barriers to development are exemplified through the two decade long litigation between Alistair McLachlan and state-owned enterprises over the control of geothermal resources. These conflicts have arguably inhibited sustainable use of geothermal resources. As an assessment of environmental effects is analysed interference with the geothermal resource can result in subsidence, hydrothermal eruptions, problems with reinjection and contaminants. It alters tourism potential, creates odour discharges, fills the landscape with pipes and intrudes on Maori metaphysical forces. Although progress is being made to resolve the ongoing disputes and to overcome adverse environmental effects, these constraints delay the development of geothermal resources for electricity generation in New Zealand.

B          History of Geothermal Resource Development in New Zealand

It is well known that New Zealand’s active geothermal fields are caused by the collision of two tectonic plates. Maori were first to utilise this geothermal resource for cooking, food preservation, washing, bathing, heating, healing, mining, and for medicinal purposes.1 Maori also used the pools for birthing, preparation for burial, burial and ritual killings.2 Maori would “name every hot pool, mud pool, geyser, fissure, and stream” with each assigned a different purpose.3 Hence, some people but not others would have certain rights over certain pools in a complex tapestry of Maori custom.4 .))The Maori words waiariki (chiefly waters or warm water pools), ngawha (boiling water pools), and puia (a geyser or cone-shaped feature) are but an indication of the greater genealogical ancestry that Maori associate with geothermal resources. As such, despite the Crown’s alienation of geothermal Maori customary ownership as a “source of spiritual, physical, and emotional sustenance.”  ((At 1542.))

By 1951 well development was underway at the geothermal field of Wairakei near Taupo to turn geothermal energy into electricity.5 Unlike other geothermal systems, Wairakei is a wet steam system being water dominated so engineers had to devise a system to separate the steam from the geothermal water. The Wairakei station was also sited on the banks of the Waikato River to take advantage of cooling water as well as to enable the discharge of waste water. Notably, several blowouts occurred during construction. On 4 January 1960, a hydrothermal eruption occurred when the casing of a bore broke which caused a crater half an acre in area.6 On the 29 February 1960, a hydrothermal eruption occurred at a different bore when its poorly cemented casing gave way.7The hydrothermal eruption and significant seismic activity that followed created a crater about 20 metres deep and about 70 metres across which has been inactive since 1973.8

Direct use of geothermal energy for heating, by contrast, had established itself from colonisation. In Rotorua, shallow bores to obtain hot water were used for heating homes, tourist accommodation, and hospitals. In nearby Kawerau a mill was built in 1950s to mill the Kaingaroa forest on land acquired from Maori.9 Geothermal energy was to operate the mill, dry the products produced and perhaps generate electricity for the new town.10 Without effective legal controls, unsustainable use of geothermal energy became inevitable. In Rotorua, the Crown delegated control over geothermal bores in the Rotorua City Geothermal Empowering Act 1967 but by 1987 “geothermal activity at Whakarewarewa and Ohinemutu-Tarewa [were] in decline” as a number of geysers had failed and hot springs ceased to flow.11A prohibition on the use of bores within 1.5 kilometre radius around the Pohutu geyser was imposed with all bores to be licensed.12
There has been accelerated growth of geothermal power plants in the last two decades. New Zealand’s second geothermal electric power plant, Ohaaki, was also built on land leased from Maori.13 Modern geothermal plants such as the 1989 Ohaaki power plant are significantly different from Wairakei due a cooling tower and with greater requirements for full reinjection of all geothermal liquids. Further developments occurred in 1996 with the building of the Poihipi power station by Alistair McLachlan and Mercury Energy Ltd.14 Rotokawa was developed in 1997,15 Ngawha in 1998,16 and in 2000 the first Mokai station was built in conjunction with the Tuaropaki Power Company.17 Kawerau has been gradually developed and its largest development occurred in 2008 following extensive negotiations.18 In 2010, Mighty River Power developed Nga Awa Purua in association with Tauhara North No.2 Trust.19 An associated Ngatamariki power plant is also anticipated.20 Te Mihi is to replace the aging Wairakei plant in 2011 with efficient technology21 and in the nearby Tauhara field, Te Huka has been commissioned with an adjoining power plant Tauhara II consented.22

C         Ownership of Geothermal Resources

At common law geothermal resources are incapable of ownership until capture and the rights to geothermal resources run with land ownership. This legal position is amended by s 3 of the Geothermal Energy Act 1953 as carried over in s 354 of the RMA 1991 which states that the sole right to tap and use geothermal energy, falling short of explicitly conferring ownership, is vested in the Crown.23 Under the RMA 1991, geothermal energy is defined as “energy derived or derivable from and produced within the earth by natural heat phenomena; and includes all geothermal water.”24 Geothermal water is defined in that Act as “water heated within the earth by natural phenomena to a temperature of 30 degrees Celsius or more.”25 Where an activity relating to geothermal energy or water is allowed by a regional plan, a proposed regional plan or a resource consent, such will be sufficient authorisation.26 An exception applies where geothermal energy or water is “used in accordance with tikanga Maori for the communal benefit of the tangata whenua of the area and does not have an adverse effect on the environment.”27 It has been held, nonetheless, that when considering a resource consent application, the exception is inapplicable because if the resource consent is granted such an activity is allowed.28

Such reasoning ignores the existing environment in determining whether any resource consent should be granted at all.

The fact is that geothermal resources are invariably located on, or near, Maori sites of significance.29 Therefore, in three principal reports on the geothermal resources,30  the Waitangi Tribunal has described such resources as a taonga (treasure) over which Maori exercise rangtiratanga (chieftainship). Claimants, consequently, have submitted that the purchase of “all significant geothermal features is suspect.”31 The Crown, according to the Waitangi Tribunal, actively targeted Maori land for geothermal resources for tourism and excluded Maori from rent and royalty payments for the use of the geothermal resource.32  The Waitangi Tribunal explains that the RMA 1991 “continues to fail to accord Maori sufficient priority” for resource consents to develop geothermal resources because “local and regional authorities are not required to act in a manner consistent the principles of the Treaty.”33 This appropriation debars Maori from acting in accordance with their customary rights.34 In order to protect the geothermal resource, Maori have sought declarations that geothermal bores and well-head structures on Maori land are fixtures attached to the land. This appropriation debars Maori from acting in accordance with their customary rights.35 Although the dispute seems never to have been formally resolved,36

if previous geothermal legislation is read so as to not to confer Crown ownership, proprietary estoppel would probably succeed in creating such a right in the absence of explicit wording.

As part of settlement for Treaty of Waitangi breaches, lands with geothermal resources have been recommended to be returned to Maori.37  Like water, settlement has also involved geothermal statutory acknowledgements which recognise the “particular cultural, spiritual, historical, and traditional association with, and use of, the geothermal energy and geothermal water” as specified.38 In some circumstances, consent authorities must forward a summary of resource consent applications to the relevant Maori entity which concerns geothermal energy or geothermal water in that entity’s region.39

It is noteworthy, therefore, that Maori names given to power plants is consistent with Maori cooperation with, and interest in, the development of New Zealand’s geothermal resources.

1          Alistair McLachlan

Where land has been alienated, the subsequent ownership of that land and priority to the underlying geothermal resource has led to “complex and hard-fought litigation.”40 Case law on geothermal resources is dominated with the two decade long “litigation saga” between Contact Energy Ltd (Contact) formerly Electricity Corporation of New Zealand (ECNZ) and the McLachlans in various guises.41 From 1965 Alistair and his wife Ava McLachlan owned a sheep and beef farm near Taupo with a secondary business in growing roses42

along with orchids by making use of the underlying geothermal resources. This farm could be divided into Land A, Land B, and Land C. Land C incorporated what became known as Lots 1 and 2. In the late 1980s the McLachlans decided to build a geothermal power station. The farm was owned by the Waituruturu Trust of which the McLachlans were trustees. The McLachlans needed finance to complete the project so contacted Mercury Network Ltd (Network) which was a wholly owned subsidiary of Mercury Energy Ltd (Vector). Two new companies were formed for the joint venture: Mercury Geotherm Ltd (MGL) (which was owned 67 per cent by Network and 33 per cent by the McLachlans as trustees or beneficially) and Poihipi Land Ltd (PLL) (which is a wholly owned subsidiary of MGL). In essence, the McLachlans transferred all the land to the joint venture (or to the financiers) with Land A being used as the power station site and Land B and Land C leased back to the McLachlans for farming purposes. The lease contained a right of first refusal to buy back the land if it was ever sold.

Litigation between Electricity Corporation of New Zealand (Electricorp or ECNZ) and the McLachlans started in 1989 when Geotherm Energy Ltd (GEL), a company owned by Waituruturu Trust, unsuccessfully challenged ECNZ’s entitlement to draw geothermal water for the Wairakei power station.43 In 1990, GEL applied for taking 44,000 tonnes of geothermal fluid per day for a new power station named Poihipi but was granted only 10,000.44 ECNZ challenged the application because of its interest in the Wairakei field. GEL unsuccessfully applied for disclosure of a ECNZ report.45 Later, GEL’s application for increased take by an interim decision was denied.46   Frustrated, GEL applied to declare the conduct of ECNZ as anti-competitive as a dominant use of a market position.47 GEL claimed ECNZ deterred potential specialist advisors, specialist service providers, customers, financiers, and investors from dealing with GEL. They alleged that ECNZ made baseless statutory applications to hinder GEL’s planning applications and that ECNZ aimed to prevent GEL from using electrical supply authorities. The High Court and the Court of Appeal refused to strike out all of the statement of claim.48 ECNZ responded with applications for security of costs49 and costs50

in relation to GEL’s failure to increase the geothermal take.

By 1996, the proposed Poihipi power station had been built.51 When Mercury Geotherm Ltd (MGL), a related company, applied for additional resource consents relating to the discharge into the air of contaminants, the Ngati Rauhoto hapu appealed based on inadequate consultation and cultural wellbeing.52 An application to commence the resource consents was denied because MGL “took a commercial risk in deciding to complete the power station before it had secured all the consents necessary for operating it.”53 MGL was successful in obtaining a priority fixture for an appeal hearing.54 Ngati Rauhoto sought to relitigate the granting of the Poihipi power station consent but were estopped from averring that the taking of geothermal fluid had not already been decided.55 Immediately after gaining consents the Poihipi power plant ran into difficulties as the “deep liquid steam  wells did not… provide sufficient steam for the power station.”56

With these problems, Network attempted to appoint receivers in respect of MGL and PLL. The McLachlans successfully applied for an interim injunction to prevent the appointment of receivers57 but an extension was not granted.58  Meanwhile the Wairakei power plant had since changed hands from ECNZ to Contact Energy Ltd (Contact). Contact had applied for the establishment of a binary plant at Wairakei to allow for reinjection. MGL objected because reinjection was to be at a temperature half of that currently being reinjected which was detrimental to the operation of the Poihipi power plant. On the 10 December 1998, Judge Whiting held that Contact’s existing consents allowed for reinjection at any temperature and MGL’s appeal was struck out.59 Consequently, on 11 December 1998 Lawrence Chilcott and Peter Chatfield were appointed as receivers in respect of MGL and PLL.60

The receivers decided to sell Poihipi power plant as well as the leased land to Contact.

The McLachlans retaliated with two simultaneous fronts of litigation. The first set of proceedings involved suing the financiers for contractual, tortious, statutory,61 and equitable causes of action relating to the failure of the joint venture.62 Applications for security for costs,63 discovery,64  and joinder65 followed with an attempt to argue limitation as well as delay as an abuse of process on behalf of the financiers which on appeal was rejected in favour of consolidation.66 The second set of proceedings involved caveats that the

Mclachlans had lodged which alleged that the right of first refusal in the lease had been triggered. In the High Court, the right of refusal was held not to have been triggered as there was merely an invitation of offers67 and what had been “sold” to Contact was an option to purchase when the lease was terminated.68 After determining the areas of the power plant sale and the leased land, Potter J held that accompanying encumbrances over the leased land breached “the leasees’ right of quiet enjoyment.”69 Lots 1 and 2 that had not been transferred from Network to MGL in an administrative slip were corrected with a constructive trust in favour of MGL with an equitable lease in favour of the McLachlans.70 The Court of Appeal redefined the areas subject to the agreements while referring back to the High Court for further consideration the question of whether the right of first refusal had been triggered in relation to Lots 1 and 2.71 The Privy Council dismissed the appeal.72) In terms of Lots 1 and 2, Potter J in the High Court held that there was no triggering of the right of first refusal.73 Contact was held not to be a bona fide purchaser for value.74 Hence in terms of equitable priorities as the conduct of the McLachlans was not disentitling, Contact acquired Lots 1 and 2 subject to the McLachlans equitable lease.75The Court of Appeal rejected the appeal.76

In a deed of settlement signed in 2006, the McLachlans abandoned the damages proceedings against the financiers for appointing receivers and abandoned any further appeal rights in relation to the lease.77 In signing the deed of settlement, the McLachlans transferred all their shares in MGL to Network which under the lease amounted to termination of the lease. In the event of termination, Contact’s option to purchase was activated. Nonetheless, Clause 5 of the deed provided that “the rights and obligations under the Lease shall continue unaffected.”78 In the High Court, Allan J reasoned that when the transfer of shares took place, the lease was terminated and Clause 5 of the deed of settlement could not save the lease. Arguments based on an implied term, rectification, mistake, estoppel, and relief against forfeiture were all rejected. The lease was also held to be void for having an uncertain term.79 The conclusion to this litigation where the right of first refusal did not protect the interests of the McLachlans and the lease of the McLachlans was terminated, serves to demonstate, more than anything else, that Contact retained an illustrious “competitive advantage over the McLachlans.”80

2          Conflict over Resource

This dispute entrenches the “first-in first-served” basis for resource allocation in New Zealand rather than a sustainable allocation. A related case, Geotherm Group Ltd v Waikato Regional Council, provides a potent example.81 After the receivers sold the Poihipi power plant to Contact, the McLachlans decided to use a related company Geotherm Group Ltd (GGL) to apply for another geothermal power station on Tukairangi Road on 29 March 2001. On 30 March 2001, Contact submitted a comprehensive suite of resource consents for renewal. Subsequently, Contact’s resource consents became notifiable prior to GGL’s. GGL’s application then became ready for a hearing prior to Contact’s. Despite the contention that in order to be “served” a hearing date was necessary, Judge Whiting held that for priority “notifiability is the critical step” as hearing dates could oscillate.82 Judge Whiting’s comments are worth repeating:83

In my view, notifiability should the starting point, but not necessarily always the determining factor. [T]he question of priority [should be] underlain by fairness. Having achieved priority, by driving the application [to notification], an applicant cannot then rest on its laurels. If there is an unreasonable delay… [a]nother applicant second in time [may] be able to rely on [s] 21 [of the RMA 1991] and thus jump the queue.

In these observations, the analogy of competing equitable priorities displaced by disentitling conduct such as delay discussed in Mercury Geotherm Ltd (in receivership) v McLachlanis representative of a property rights approach to the interpretation of resource allocation.84 Indeed, there is irony that the courts have since replaced priority accorded to notification with the need to be the first to file.85 Technically, GGL was first to file. Drawing upon the McLachlan experience, a strong argument can be put that the “first-in first served” principle of resource allocation under the RMA 1991 is not only environmentally unsustainable86 but is capable of being anti-competitive in breach of the Commerce Act 1986 if wielded unreservedly. The fear of gazumping large projects may in fact lead to large projects abusing the market as the McLachlan litigation demonstrates.87

In order to avoid abusing a market position, the RMA 1991 seeks to coextensively discourage the use of trade competition in appeals.88 Nonetheless, how well the RMA 1991 prevents its use for anti-competitive purposes is debatable even in light of 2009 amendments.89

In the context of geothermal resources, an appeal was sought to be struck out on this ground in Fletcher Challenge Energy Power Generation Ltd v Waikato Regional Council.90 This recognised that an “ulterior motive motivated by trade competition” will often be present due to the value of geothermal resources especially for electricity generation.91 There will always be a “trade advantage” in the activities of competitors.92 Provided any objector confines itself to genuine resource management concerns and avoids acting “merely [in] a guise for opposing [due to] trade competit[ion]”, such concerns are doubtful to an abuse of the courts process if they seem “serious and sensible.”93

 

D         Assessment of Environmental Effects of Geothermal Development

1          Subsidence

 A primary adverse environmental effect when geothermal water is extracted from a geothermal field but not reinjected is the “compaction of the [overlying] porous rock in response to a decline of fluid pressure” which results in subsidence.94 In the Wairakei-Tauhara geothermal system, total subsidence due to the geothermal extraction has exceeded 15 metres at the centre of the Wairakei subsidence bowl.95 This subsidence has been described as “by far the largest in the world caused by geothermal extraction” due to a peak of 25 bars of pressure loss over a total geographical area of approximately 84 square kilometres.96 This geothermal system partly lies under the Taupo township.97 Differential subsidence is truly problematic by effectively warping structures. Buildings, poles, fences, water pipes, drains, manholes, curbs, cables, wells, roads, and footpaths are, thus, prone to growing deterioration.98 About 48 buildings are currently being affected by subsidence.99 In this way, Contact is burdened with a requirement to remediate more than minor damage caused by the Wairakei-Tauhara system.100

2          Hydrothermal Eruptions

 Extraction of geothermal water without reinjection causes a drawdown in geothermal reservoir pressure, inflating the temperature of the remaining geothermal resource, increasing steam activity and thereby fostering a more productive field for electricity generation. In the Tauhara field, the heat rise meant domestic bores increased by up to 60oC during the 1980s although the temperature has since stabilised or declined.101 Steaming ground will increase which when combined with low atmospheric pressure, blockage of a vent, or heavy rainfall after a prolonged dry period may lead to hydrothermal eruptions.102 Such hydrothermal eruptions occurred in the Broadlands Road Thermal Reserve in 1974 and 1981 (the Pony Club eruptions) with a smaller eruption at Spa Park in 1974 and a fairly violent eruption at Alum Lakes in 2001.103 Evidence has also been led of scalding water from cold taps, steaming toilet bowls, hot lawns, and animals falling into fumeroles as a result of Wairakei-Tauhara activities.104 In the event of hydrothermal eruptions, however, such eruptions are expected to be “insignificant and temporary.”105

3          Reinjection

 If reinjection is chosen as preferable to subsidence, a myriad of alternative problems arise. Reinjection will lead to a cooling of the geothermal field lowering production and thereby any electricity generated. If reinjection is targeted in a particular area, quenching can occur where there is a wholesale cooling by saturation leading to a collapse in production from that particular area.106 Reinjection also logically increases reservoir pressure. If high temperature water is returned to the geothermal reservoir, the pressure rise can lead to the boiling liquid entering groundwater giving rise for the potential for hydrothermal eruptions to be triggered.107 Reinjection also involves “a small risk of causing induced seismicity especially around reinjection wells.”108 For the Wairakei power plant, geothermal water was traditionally discharged into the Waikato River.109 As a result cascade users who use the geothermal water from the power plant include a prawn park and tourist infrastructure.110 Thus, the costs of reinjection are uneconomic.111 2006 appeals relating to the geothermal energy sections of a Waikato Regional Council Policy Statement and Proposed Regional Plan requiring full reinjection were dismissed in favour of “integrated and adaptive management” of the geothermal resource.112

4          Contaminants

 Interference with geothermal water through extraction and reinjection may change the concentrations of various contaminants in the geothermal reservoir.113 Geothermal water contains mineral salts, “silica, arsenic, boron, mercury, and hydrogen sulphide.”114 Concentrations vary according to source and when steam is condensed following use in a geothermal power station, there are traditionally high rates of mercury and hydrogen sulphide.115 In Ngawha Geothermal Resource Company Ltd v Northland Regional Council (Ngawha), evidence suggested that before the operation of the geothermal power station, nearby geothermal pools were said to have a healing effect and after children were suffering from skin ailments from bathing.116 Interestingly, an application for adjournment to call medical evidence about the effects of toxic mercury poisoning was declined.117 The Waitangi Tribunal records that “concentrations of chemicals designed to keep the injection pipes clean make [geothermal pools] impossible to utilise.”118

If geothermal water is irrigated onto land, increased contaminants in plants and animals will directly affect humans.119 If geothermal water is reinjected into deep aquifers where such geothermal water has the potential to rise and infiltrate shallower freshwater aquifers, the same affliction will occur. If geothermal water is discharged into waterways such as rivers, a broader range of adverse environmental effects will be noticed. As the Wairakei power plant discharges into the Waikato River, the concentrations of mercury, hydrogen sulphide, and arsenic as well as temperature exceed natural levels.120 Therefore, “the current discharge has adversely affected fish populations downstream of the discharge.”121 Hamilton and Auckland use the Waikato River as a water supply but such geothermal discharges are remedied by the treatment systems.122 Hence, disposal of the geothermal wastewater through reinjection to avoid contamination is typically an environmental necessity.123 In addition, there are progressively tighter environmental controls through resource consent conditions to avoid contamination of the Waikato River.124

5          Geothermal Features and Tourism

 Regardless of reinjection, extracting energy from geothermal water will have an adverse effect on the temperature of geothermal features and tourism. The Waitangi Tribunal reports that many taonga geothermal features “have been irreparably destroyed or degraded” with a loss of cultural and spiritual association.125 Many geothermal features have dried up or are no longer active.126 In Wairakei, “the geothermal field is now a geothermal field without geysers.”127 Modern geothermal power plants such as the Ngawha power plant in Northland are, however, designed to ensure that there are not “any measurable effects on” and “no significant changes” to geothermal features.128 This can be achieved by setback zones and maintenance of geothermal reservoir pressure.129 In this context, Judge Sheppard in Contact Energy Ltd v Waikato Regional Council describes the flow on effects to tourism appeal as a derivative adverse environmental effect and not as an adverse environmental effect in itself.130 With respect, the meaning of “effect” and “environment” are not so confined.  The word “environment” includes the need to look to the economic environment and “effect” includes effects of low probability but high potential impact.131 Such a construction fits with the requirement to consider sustainable management of economic wellbeing.132

6          Air Discharges and Landscape

 Two related adverse environmental effects include air discharges and landscape effects. In relation to the landscape, geothermal power plants inevitably involve a physical power station, well pads, switchyard, cooling towers, separator stations and extensive pipelines which provide an industrial visual effect.133 Such intrusions can be mitigated with earth bunds, extensive group plantings, locating the site of the power station away from populated areas, and adopting regressive colours matched to the surroundings.134 Plumes from the cooling towers can, of course, have a visual intrusion on outstanding natural features such as hills and mountains of significance which may need mitigation.135 Those plumes or air discharges involve three main gases of concern: carbon dioxide, mercury and hydrogen sulphide. Discharges of carbon dioxide are generally insignificant.136 Mercury discharges are consistent with local background concentrations.137 Hydrogen sulphide, by contrast, has a “rotten egg” odour.138  Although unlikely to cause health effects,139 odour will be noticeable in the immediate vicinity.140 Ongoing ambient air monitoring is typically necessary.141

7          Maori

 Remedying metaphysical environmental effects presents perhaps the greatest challenge. With extensive mythology and legends as to the geothermal resource with taniwhas (spirits) detailed in Waitangi Tribunal reports, Maori association with geothermal resources is ubiquitous and if excluded from consultation, Maori will systematically object. One legend sees geothermal waters as the womb of Mother Earth as the source of human life itself.142 In Ngawha, cultural evidence recorded that the relevant taniwha (Takauere) lives in an underground lake but scientific evidence could not reveal its presence.143 Therefore, the Environment Court found that it did not have jurisdiction to rule on such matters as the RMA 1991 governed proceedings.144 While Round agrees,145 the RMA 1991 would seem to require accommodation of beliefs in sustainable management. It is arguable that the question is of balancing beliefs with development rather than declaring such beliefs as being non-justiciable. Development itself is incorporated into Maori customary practices due to the need to regulate the temperature of geothermal resources for different purposes.146

 

E          Conclusion

New Zealand’s active geothermal fields enable renewable electricity generation and reduce greenhouse gas emissions. The development of such resources like the Wairakei geothermal power station has been met with calls that there is Maori customary ownership over geothermal resources. These rights over ownership merge into disputes over land ownership which is revealed in the Alistair McLachlan litigation. This can result in the unsustainable exclusion of others from the use of geothermal resources. Assessments of environmental effects expose that use of geothermal resources can cause subsidence and hydrothermal eruptions where there is a lack of or increase in reinjection, create contaminants including odour, crisscross the landscape with pipes, harm tourism, and interfere with Maori metaphysical wellbeing. The development of geothermal resources is continuing despite restrictions which appear to burden development with delay due to continuing conflicts.

  1. Waitangi Tribunal He Maunga Rongo: The Report on Central North Island Claims Stage 1 Volume 4 (2nded, Wai 1200, 2008) at 1478; See also: Evelyn Stokes The Legacy of Ngatoroirangi: Maori Customary Use of Geothermal Resources (University of Waikato, Hamilton, 2000). []
  2. At 1478. []
  3. At 1476. []
  4. At 1478. []
  5. Martin, above n 25, at 259 []
  6. Richard Bolton and others “Dramatic Incidents during Drilling at Wairakei Geothermal Field” (2009) 38 Geothermics 40 at 41 []
  7. At 43-44. []
  8. At 46 []
  9. Waitangi Tribunal Central North Island, above n 214, at 1619-1620; Geothermal Energy Act 1953; Tasman Pulp and Paper Company Enabling Act 1954. []
  10. At 1619. []
  11. At 1622. []
  12. At 1622; Rotorua Geothermal Users Association v Minister of Energy HC  Wellington CP543/86, 13 May 1987; Wharepaina Thermal Club (Inc) v Minister of Energy & Attorney-General HC Hamilton M181/87, 5 November 1987. []
  13. Martin, above n 25, at 265; Evelyn Stokes Ohaaki: A Power Station on Maori Land (University of Waikato, Hamilton, 2004). []
  14. Brian White “An Update on Geothermal Energy in New Zealand” (2006) New Zealand Geothermal Association <www.nzgeothermal.org.nz> at 6. []
  15. At 7. []
  16. At 9. []
  17. Colin Harvey and others “2005-2010 New Zealand Country Update” (April 2010) New Zealand Geothermal Association <www.nzgeothermal.org.nz> at 4 []
  18. Brian White “Upcoming Geothermal Energy Development in New Zealand” (October 2008) New Zealand Geothermal Association <www.nzgeothermal.org.nz> at 8. []
  19. At 8. []
  20. Harvey, above n 231, at 4. []
  21. White, above n 232, at 6. []
  22. Final Report and Decision of the Board of Inquiry into the Tauhara II Geothermal Development Project (10 December 2010) at [35]. []
  23. RMA 1991, s 354; Geothermal Energy Act 1953, s 3. []
  24. RMA 1991, s 2, definition of “geothermal energy”. []
  25. RMA 1991, s 2, definition of “geothermal water”. []
  26. RMA 1991, s 14(3)(a). []
  27. RMA 1991, s 14(3)(c). []
  28. Contact Energy v Waikato Regional Council EnvC Auckland A4/2000, 24 January 2000 at [107]-[108]. []
  29. See generally: Richard Boast “Geothermal Resources in New Zealand: A Legal History” (1995) 6 Canterbury LR 1; Shane Heremaia “Maori Ownership of Geothermal Resources and the Resource Management Act 1991: The Rotoma Geothermal Field” (1995) 1(5) NZELR 109; Andrea Tunks “Kaitiakitanga – The Ngawha Geothermal Resource” (1994) 1(4) NZELR 84; Katherine Luketina “The Waikato Regional Geothermal Resource” Waikato Regional Council (21 March 2012) <www.waikatoregion.govt.nz>. []
  30. Waitangi Tribunal Ngawha Geothermal Resource Report (Wai 304, 1993); Waitangi Tribunal Preliminary Report on the Te Arawa Representative Geothermal Claims (Wai 153, 1993); Waitangi Tribunal Central North Island, above n 214. []
  31. Waitangi Tribunal Central North Island, above n 214, at 1594. []
  32. At 1636; Martin de Jong “A Heated Affair: Ownership and Exploitation of New Zealand’s Geothermal Resources” (July 1991) 7 Terra Nova 44 at 45. []
  33. Waitangi Tribunal Central North Island, above n 214, at 1591. []
  34. At 1634. []
  35. Re Tuaropaki E Block (1994) 66 Taupo MB 156, 13 July 1994; “Tuaropaki E Block” (Aug 1994) Maori LR 3; See also RMA 1991, s 354; Geothermal Energy Regulations 1961, reg 34. []
  36. In Re Tuaropaki E Geothermal Test Wells and the Attorney-General (1994) 1 Waiariki Appeal MB 24 (1 AP []
  37. Waitangi Tribunal Ngawha, above n 244, at 151. []
  38. Ngati Tuwharetoa (Bay of Plenty) Claims Settlement Act 2005, s 46; Affiliate Te Arawa Iwi and Hapu Claims Settlement Act 2008, s 36 []
  39. Ngati Tuwharetoa (Bay of Plenty) Claims Settlement Act 2005, s 51; Affiliate Te Arawa Iwi and Hapu Claims Settlement Act 2008, s 41 []
  40. McLachlan v Mercury Geotherm Ltd (in receivership) (2006) 7 NZCPR 135 (PC) at [3]. []
  41. McLachlan v Mercury Geotherm Ltd (in receivership) CA 117/05, 4 December 2006 at [1] []
  42. Geothermal Produce New Zealand Ltd v Goldie Applicators Ltd HC Rotorua A26/81, 17 February 1983; Attorney-General v Geothermal Produce New Zealand Ltd [1987] 2 NZLR 348 (CA). []
  43. Special Tribunal of the Waikato Catchment Board v Electricity Corporation of New Zealand Ltd HC Hamilton M7/89, 9 March 1989; Waikato Catchment Board (Special Tribunal) v Electricity Corporation of New Zealand [1989] 2 NZLR 22 (CA). []
  44. Geotherm Energy Ltd v Waikato Regional Council PT Auckland A22/90, 9 May 1990 at 2. []
  45. At 14 []
  46. Geotherm Energy Ltd  v Waikato Regional Council PT Hamilton A58/91, 16 July 1991 []
  47. Geotherm Energy Ltd v Electricity Corporation of New Zealand Ltd HC Auckland CL101/90, 5 June 1991; Geotherm Energy Ltd v Electricity Corporation of New Zealand Ltd [1992] 2 NZLR 641 (CA). []
  48. Geotherm Energy Ltd v Electricity Corporation of New Zealand Ltd HC Auckland CL101/90, 5 June 1991; Geotherm Energy Ltd v Electricity Corporation of New Zealand Ltd [1992] 2 NZLR 641 (CA). []
  49. Geotherm Energy Ltd v Waikato Regional Council [1994] NZRMA 139 (PT); Geotherm Exports NZ Ltd v Waikato Regional Council PT Hamilton A50/94, 23 June 1994 []
  50. Geotherm Energy Ltd v Waikato Regional Council PT Auckland A34/94, 10 May 1994 []
  51. McLachlan v Mercury Geotherm Ltd (in receivership) (2006) 7 NZCPR 135 (PC) at [10]. []
  52. Ngati Rauhoto Land Rights Committee v Waikato Regional Council EnvC Auckland A7/97, 28 January 1997 at 4. []
  53. At 6. []
  54. Ngati Rauhoto Land Rights Committee v Waikato Regional Council EnvC Auckland A33/97, 6 March 1997 []
  55. Ngati Rauhoto Land Rights Committee v Waikato Regional Council EnvC Auckland A065/97, 19 May 1997 at 9. []
  56. McLachlan v MEL Network Ltd HC Auckland CIV-1998-404-510, 9 December 2004 at [11]. []
  57. McLachlan v Mercury Network Ltd HC Auckland CP476/98, 16 November 1998. []
  58. McLachlan v Mercury Network Ltd HC Auckland CP476/98, 9 December 1998 []
  59. Mercury Geotherm Ltd v Waikato Regional Council EnvC Auckland A144/98, 10 December 1998 []
  60. McLachlan v Mercury Geotherm Ltd (in receivership) (2006) 7 NZCPR 135 (PC) at [10]. []
  61. Companies Act 1993, s 174. []
  62. McLachlan v MEL Network Ltd HC Auckland CIV-1998-404-510, 9 December 2004 at [44]. []
  63. McLachlan v MEL Network Ltd HC Auckland CP476/98, 1 February 2002; McLachlan v MEL Network Ltd (2002) 16 PRNZ 747; McLachlan v MEL Network Ltd CA158/05, 28 February 2006 []
  64. McLachlan v MEL Network Ltd HC Auckland CIV-1998-404-253, 22 September 2006 []
  65. McLachlan v MEL Network Ltd HC Auckland CIV-1998-404-510, 9 December 2004. []
  66. McLachlan v Vector Ltd HC Auckland 2004-404-7053, 7 July 2005; McLachlan v Vector Ltd CA157/05, 28 February 2006 []
  67. Mercury Geotherm Ltd (in receivership) v McLachlan HC Auckland M129-IM00, 14 June 2002 at [61]. []
  68. At [63]. []
  69. At [157]. []
  70. At [152]. []
  71. McLachlan v Mercury Geotherm Ltd (in receivership) CA142/02, 28 August 2003 at [92]. []
  72. McLachlan v Mercury Geotherm Ltd (in receivership) (2006) 7 NZCPR 135 (PC []
  73. Mercury Geotherm Ltd (in receivership) v McLachlan [2006] 1 NZLR 258 (HC) at [109]. []
  74. At [408]. []
  75. McLachlan v Mercury Geotherm Ltd (in receivership) CA 117/05, 4 December 2006 at [43] and [67]. []
  76. McLachlan v Mercury Geotherm Ltd (in receivership) CA 117/05, 4 December 2006 at [43] and [67]. []
  77. Chilcott v McLachlan HC Auckland CIV-2007-404-2796, 22 December 2009 at [30]. []
  78. At [30]. []
  79. At [108]-[112]; Compare: Property Law Act 2007, s 212. []
  80. Mercury Geotherm Ltd (in receivership) v McLachlan [2006] 1 NZLR 258 (HC) at [317]. []
  81. Geotherm Group Ltd v Waikato Regional Council (2003) 9 ELRNZ 75 (EnvC); Geotherm Group Ltd v Waikato Regional Council [2004] NZRMA 1 (HC). []
  82. Geotherm Group Ltd v Waikato Regional Council (2003) 9 ELRNZ 75 (EnvC) at [40]. []
  83. At [47]. []
  84. Mercury Geotherm Ltd (in receivership) v McLachlan [2006] 1 NZLR 258 (HC). []
  85. Central Plains Water Trust v Ngai Tahu Properties Ltd [2008] NZRMA 200 (CA). []
  86. Brunette, above n 94. []
  87. Central Plains Water Trust v Ngai Tahu Properties Ltd [2008] NZRMA 200 (CA) at [95]. []
  88. RMA 1991, ss 308A-308I. []
  89. Fletcher Challenge Energy Power Generation Limited v Waikato Regional Council EnvC Auckland A 109/98, 2 September 1998. []
  90. Fletcher Challenge Energy Power Generation Limited v Waikato Regional Council EnvC Auckland A 109/98, 2 September 1998. []
  91. At [38]. []
  92. At [38]. []
  93. At [32]. []
  94. Geotherm Group Ltd v Waikato Regional Council EnvC Auckland A47/2006, 13 April 2006 at [140]. []
  95. At [152]. []
  96. At [145]-[151]. []
  97. Rotokawa Joint Venture Ltd v Waikato Regional Council EnvC Auckland A 41/2007, 18 May 2007 at [41]. []
  98. Contact Energy Ltd v Waikato Regional Council EnvC Auckland A 4/2000, 24 January 2000 at [171]-[172]. []
  99. Rotokawa Joint Venture Ltd v Waikato Regional Council EnvC Auckland A 41/2007, 18 May 2007 at [254]. []
  100. At [424]. []
  101. Contact Energy Ltd v Waikato Regional Council EnvC Auckland A 4/2000, 24 January 2000 at [155]. []
  102. At [157]. []
  103. Final Report and Decision of the Board of Inquiry into the Tauhara II Geothermal Development Project (10 December 2010) at [249]; Geotherm Group Ltd v Waikato Regional Council EnvC Auckland A 47/2006, 13 April 2006 at [209]. []
  104. Geotherm Group Ltd v Waikato Regional Council EnvC Auckland A 47/2006, 13 April 2006 at [174]. []
  105. Contact Energy Ltd v Waikato Regional Council EnvC Auckland A 4/2000, 24 January 2000 at [247]. []
  106. Geotherm Group Ltd v Waikato Regional Council EnvC Auckland A 47/2006, 13 April 2006 at [138]. []
  107. At [218]. []
  108. Contact Energy Ltd v Waikato Regional Council EnvC Auckland A 4/2000, 24 January 2000 at [241]. []
  109. Geotherm Group Ltd v Waikato Regional Council EnvC Auckland A 47/2006, 13 April 2006 at [244]. []
  110. Rotokawa Joint Venture Ltd v Waikato Regional Council EnvC Auckland A 41/2007, 18 May 2007 at [421]. []
  111. Geotherm Group Ltd v Waikato Regional Council EnvC Auckland A 47/2006, 13 April 2006 at [249]. []
  112. At [337]. []
  113. Contact Energy Ltd v Waikato Regional Council EnvC Auckland A 4/2000, 24 January 2000 at [158] –[159]. []
  114. Geotherm Group Ltd v Waikato Regional Council EnvC Auckland A 47/2006, 13 April 2006 at [223]. []
  115. At [223]. []
  116. Ngawha Geothermal Resource Company Ltd v Northland Regional Council EnvC Auckland A 117/2006, 30 August 2006 at [67]. []
  117. Ngawha Geothermal Resource Company Ltd v Northland Regional Council EnvC Auckland A 92/2006, 7 July 2006 at [3]; Ngawha Geothermal Resource Company Ltd v Northland Regional Council EnvC Auckland A 117/2006, 30 August 2006 at [65]. []
  118. Waitangi Tribunal Central North Island, above n 214 at 1616. []
  119. Geotherm Group Ltd v Waikato Regional Council EnvC Auckland A 47/2006, 13 April 2006 at [237]. []
  120. Rotokawa Joint Venture Ltd v Waikato Regional Council EnvC Auckland A 41/2007, 18 May 2007 at [52]. []
  121. Geotherm Group Ltd v Waikato Regional Council EnvC Auckland A 47/2006, 13 April 2006 at [231]. []
  122. At [226]. []
  123. At [238]-[239]. []
  124. Rotokawa Joint Venture Ltd v Waikato Regional Council EnvC Auckland A 41/2007, 18 May 2007 at [52]; Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. []
  125. Waitangi Tribunal Central North Island, above n 214 at 1601. []
  126. At 1617. []
  127. At 1614. []
  128. Ngawha Geothermal Resource Company Ltd v Northland Regional Council EnvC Auckland A 117/2006, 30 August 2006 at [27]. []
  129. At [27]. []
  130. Contact Energy Ltd v Waikato Regional Council EnvC Auckland A 4/2000, 24 January 2000 at [263]. []
  131. RMA 1991, ss 2-3. []
  132. RMA 1991, s 5. []
  133. Final Report and Decision of the Board of Inquiry into the Tauhara II Geothermal Development Project (10 December 2010) at [264]. []
  134. At [267]. []
  135. At [265]. []
  136. Final Report and Decision of the Board of Inquiry Te Mihi Geothermal Power Station Proposal (3 September 2008) at [175]. []
  137. At [175]. []
  138. At [171]. []
  139. Final Report and Decision of the Board of Inquiry into the Tauhara II Geothermal Development Project (10 December 2010) at [296]. []
  140. At [294]-[295]. []
  141. [1]At [301]. []
  142. Waitangi Tribunal Ngawha, above n 244, at 16. []
  143. Ngawha Geothermal Resource Company Ltd v Northland Regional Council EnvC Auckland A 117/2006, 30 August 2006 at [60]-[62]. []
  144. At [68]. []
  145. David Round “Here be Dragons” (2005) 11 Otago L Rev 31 at 51. []
  146. Waitangi Tribunal Central North Island, above n 214 at 1528. []