Environment judges Jeff Smith and David Cauldwell have released their judgment from a hearing held in Whakatāne on February 10 and 11 in which Ōpihi Whanaungakore trustees appealed the authority.
During that hearing the trustees’ lawyer, Max Harris, pointed out errors in the way Heritage New Zealand – Pouhere Taonga (HNZPT) made the decision to grant the authority. He sought a reversal or remittance of the authority back to the Māori Heritage Council.
Ōpihi Whanaungakore trustee Hemi Hirime stated that the 22.6-hectare urupā boundary with the Whakatāne District Council-owned development site was “an arbitrary colonial line” and the urupā extended west along Bunyan Rd, past where residential development had already taken place.
Hemi Hireme takes the witness stand in the Environment Court with the support of fellow trustee Rapata Kopae.
He wanted the Māori Heritage Council to hear the case.
The judgment agreed Heritage NZ’s decision had been “deeply flawed” and had not complied with the statutory requirements of legislation or the organisation’s own internal criteria.
Heritage NZ failed to consider the opposition from Te Rūnanga o Ngāti Awa, Ngāi Taiwhakaea and the trustees.
A report said these parties approved the application but the judgment decided they had clearly been opposed to it.
Heritage NZ had also determined that the expert opinion of the Māori Heritage Council was not necessary, when its own criteria made it clear that it was.
However, the judgment stopped short of reversing or remitting the authority.
The authority would be modified for a reduced area, with amended conditions “to be finalised between the parties”.
A new proposal from developers MMS GP shows a reduced Archeological Authority area outlined in blue, compared to the original (red broken lines). A maximum of three beach access paths is marked to the north and a proposed offset wetland to the south in yellow, and an indicative stormwater detention area (in green) to the east. Image / Supplied
During the hearing, the developer, MMS GP, had provided a revised proposal to reduce the size of the site to be developed which included a 300-metre buffer zone between the legally recognised urupā reserve and the development.
The revised development area would take up less than half of the 26.9ha site.
“By protecting the eastern end of the spit, this increases the apparent footprint of Ōpihi Whanaungakore,” the judgment said.
The proposal was a compromise the developers had made during their previous mediations with Te Rūnanga o Ngāti Awa, which had since withdrawn from the appeal.
As Ngāi Taiwhakaea had been a party to the rūnanga’s appeal, the hapū had been unable to testify at the hearing, but has voiced continued opposition to the proposal and has said it is intending to initiate a judicial review of the Heritage NZ decision.
“The court deciding not to return the application to HNZPT for consideration by the Māori Heritage Council, and then granting a modified authority, was extremely disappointing,” Hireme said.
“Our appeal was based on the trustees being ignored by HNZPT. The court found that, in 2022 when the Archaeological Authority was granted and the appeals filed, the rūnanga and Ngāi Taiwhakaea were also ignored. All we wanted was to be heard. It is what the law provides, and that is what we have been denied.”
“Māori tikanga considers undisturbed land to be tapu [sacred/forbidden] until the appropriate ceremonies are held to make it noa [ordinary].
“The court has decided that the land is already noa. This is the danger of not listening to the Māori parties concerned and not seeking expert Māori opinion. It is the haunting shadow of colonialism – non-Māori determining Māori cultural futures.”
A timeline has been developed for new conditions for the authority to be mediated between all parties within 90 days of the judgment being released. At that time the panel will decide whether a further hearing is required.
The court found it “may be appropriate” for the appellants to apply for costs against Heritage NZ.
It would reserve any decision on this until the final decision on wording of the authority was issued.
Whakatāne District Council chief executive Steven Perdia said the council was legally bound by an Agreement for Sale and Purchase signed in 2017, which requires the land sale to proceed and access to be provided to enable development to commence.
“The court’s decision does not change those obligations.”
Heritage NZ did not wish to comment until it had reviewed the decision.
– LDR is local body journalism co-funded by RNZ and NZ On Air.