Talk:Ngāti Wai

message: The following extract from The Environment Court judgment W035/2005 (1 Aperira 2005)may be of interest:
These two appeals are against the Council’s decisions about the zoning and identification of land at Pataua South, which is on the coastline east of Whangarei City. The areas of land involved in the appeals overlap, but they are not exactly co-extensive. Mr Harrison’s appeal involves land owned by his family trust (being Pt Lot 1 DP 93517 with an area of some 44ha) and includes a motorcamp, his own home, and land which has been farmed but much of which has now been retired from that purpose, including a substantial area of regenerating indigenous cover. It is part of what is known as Pataua Island but extends further eastward than the Island, to abut the estuary of the Taiharuru River. The Ngatiwai Trust Board’s appeal involves Pataua Island which incorporates the Harrison land, whanau trust owned land, other privately owned land, and land in the DOC estate. The whole area lies between the estuaries of the Pataua and Taiharuru Rivers. We were informed that all or part of the flow of the Taiharuru once ran across the land, making the seaward part of it a true island. That flow has been stopped by causeways, leaving low-lying land which is partly quite dry (but flood-prone), and partly a marshy wetland. So the term Island is a historic rather than currently accurate description for the land to the seaward of the former river flows.
[2]	It is important to appreciate that although the area of the land affected is not great in relative terms, the land is very diverse in form. It ranges from high dunes on the ocean coast, an imposing headland to the south of the Pataua River mouth, the low-lying land already referred to, and the higher country, some with gorse emerging from the former pasture, and more with the regenerating forest cover, against the Taiharuru estuary towards the south. The road into the settlement of Pataua South runs near the western boundary, and a footbridge crosses the Pataua River, giving access to the settlement of Pataua North.
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Issues for the Ngatiwai appeal
[6]	It took some time for the relief actually sought by Ngatiwai to emerge. As refined by Mr Volkerling at the hearing, the Board seeks that Pataua Island be identified in the Plan as a Site of Significance to Maori (SSM). The Board has learned through experience, it says, that the Historic Places Act 1993 does not serve Maori well in terms of protecting sites and culture and it has decided to put more faith in the RMA. Mr Volkerling acknowledges that giving the land SSM status has, as he put it, strings, in the sense of giving activities on it that do not comply with permitted standards a restricted discretionary status. But that, he points out, is not of Ngatiwai’s doing: — it is a tool in the Plan and is there to be used. Somewhat faintly, and as a fall back position if an SSM identification is not thought appropriate, the submission is that Pataua Island be given a notation as a heritage area of significance to Maori. We shall return to a discussion of the Ngatiwai position shortly.
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[14]	The New Zealand Coastal Policy Statement is of course highly important and we need do little more than point to Policy 1.1.1 which provides:
	It is a national priority to preserve the natural character of the coastal environment by:
· Encouraging appropriate subdivision, use or development in areas where the natural character has already been compromised and avoiding sprawling or sporadic subdivision, use or development in the coastal environment;
· Taking into account the potential effects of subdivision, use or development on the values relating to the natural character of the coastal environment, both within and outside the immediate location; and
· Avoiding cumulative effects of subdivision, use and development in the coastal environment.
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The Ngatiwai appeal — planning provisions and discussion
[22]	We begin by saying that there is no doubt that Pataua Island is an area rich in history and significance for Ngatiwai. It contains the site of what once must have been a formidable Pa on the headland at the Pataua River mouth; there are other Pa sites also; there are urupa and other waahi tapu; middens are reasonably common. Mr Hori Parata, who was born there and lives there still, on whanau-owned land next to the Harrison property, told us that the area was once rich in marine and land-based food sources, now much depleted by siltation, drainage, and other development effects. He was able to identify more archaeological sites in the area than appeared on the Archaeological Association records produced by Mr Scott. He pointed out that waahi tapu is a wider concept than a bare site, and lamented the absence of a cultural impact report, or what he regarded as any reasonable consultation, before these proposals were made. (We observe that Mr Harrison strongly disputed the consultation point, but we do not need to make findings about the merits of that to resolve the substantive issue). Mr Parata is also opposed to development leading to higher population densities in the area because of likely impacts on water quality, and the like.
[23]	In advancing submissions in support of the Ngatiwai position Mr Volkerling drew a distinction between a site of cultural significance, and a cultural landscape, which is, he suggests, how Pataua Island should be viewed. The UNESCO/ICOMOS Expert Group, World Heritage Convention Operations Guidelines, February 1995 defines cultural landscapes as being:
	. . . the combined works of nature and of man and are illustrative of the evolution of human society and settlement over time, under the influence of the physical constraints and/or opportunities presented by their natural environment and of successive social, economic and cultural forces, both external and internal.
	The concept has been discussed in the decision of Crichton v Queenstown-Lakes DC (W12/99): — see para [36] of that decision. There was reference, with at least implicit approval, to an extract from the International Charter for the Conservation and Restoration of Monuments and Sites (the Venice Charter) which reads:
	The concept of an historic monument embraces not only the single architectural work but also the urban or rural setting in which is found the evidence of a particular civilisation, a significant development or an historic event. This applies not only to great works of art but also to more modest works of the past which have acquired cultural significance with the passing of time.
	The decision then continues at para [38] with reference to New Zealand’s ICOMOS Charter for the Conservation of Places of Cultural Heritage Value, which was created in the spirit of the Venice Charter. Paragraph 6 of the General Principles of the New Zealand Charter, under the heading Setting reads (in full):
	The historical setting of a place should be conserved with the place itself. If the historical setting no longer exists, construction of a setting based on physical and documentary evidence should be the aim. The extent of the appropriate setting may be affected by constraints other than heritage value.
[24]	So, in the abstract, the value of preserving a landscape context for individual sites is recognised and has some attraction. It fits readily enough into the criteria for assessing landscapes discussed in Pigeon Bay Aquaculture Ltd v Canterbury RC [1999] NZRMA 209, as modified in Wakatipu Environmental Society v Queenstown-Lakes DC [2000] NZRMA 59. The question is whether it is appropriate to attempt to do so in any given situation and, if so, whether the mechanisms exist to do so. We turn to look at the Plan mechanisms now.
[25]	Any such discussion must be set against the background of the Act’s principles. Section 6(e) makes it a matter of national importance to recognise and provide for:
	The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.
	Similarly, s 7 requires us to have particular regard to Kaitiakitanga — the cultural obligation of tangata whenua to exercise guardianship and stewardship over areas of land within their rohe, or district. Section 8 of course requires account to be taken of the principles of the Treaty.
[26]	Policy 6.4.2 of the Plan provides:
	To ensure that land use, subdivision and development does not adversely affect Sites of Significance to Maori, or other taonga, identified in the District Plan or Hapu Environmental Management Plans.
	And that is supported by 50.4iii (matter for control) (Subdivision — Countryside and Coastal-Countryside):
	The location of proposed allotment boundaries, building areas and access ways or right-of-ways so as to avoid sites of historic and cultural heritage including Sites of Significance to Maori.
[27]	Chapter 43 of the Plan contains the Rules relating to Sites of Significance to Maori. Activity on such a Site is permitted if it does not result in any physical disturbance or modification, or if the work (excluding modification of any part of the site) will protect or enhance the cultural and spiritual values of the site. If the activity is not permitted, discretion is restricted to: effects on sites; the extent to which individual elements of the site are affected; measures taken to protect the site, having regard to customs and values of the tangata whenua and the advice of the Kaitiaki: measures to restore any site to its former state after completion of the work, having regard to tikanga Maori and the advice of Kaitiaki. (See the Table at 43.3).
[28]	The Council’s decision on the request to identify the whole of Pataua Island as an SSM (a course opposed by Mr Harrison) was:
	The area of land in Maori ownership, the DOC reserve and the Pa site identified on Mr Harrison’s property will be identified as a new Site of Significance to Maori on the Planning Maps. This will provide a middle ground position between the submissions of Ngatiwai and Mr Harrison. It is unreasonable to restrict activities over Mr Harrison’s entire property, when he has had an archaeological study done to confirm the presence or absence of archaeological sites.
	At the beginning of the appeal hearing, the Council’s stance was that it took no position for or against Ngatiwai’s appeal, and was content to abide the Court’s decision on it. Having heard the evidence as it emerged, the Council has reservations about the SSM, and believes that Ngatiwai’s aspirations could be met with a lesser level of notation.
[29]	There apparently is an issue about the alienation of the Pataua Island land from Maori ownership. That is the subject of a claim before the Waitangi Tribunal. There are also current claims, relating to intellectual property which might have at least indirect effects on Pataua Island. We are conscious of Objective 6.3.3 of the Plan:
	In the implementation of this plan no action will be taken which will knowingly exacerbate registered treaty claims.
	There was discussion at the hearing about exacerbate being an apt word in the context. In the sense that grievances should not knowingly be made worse by the actions of central or local government, it probably is apt. A requirement not to knowingly prejudice the effective settlement of a claim would in any event arise under the general Treaty obligation to act in the utmost good faith. There is no suggestion that any of this land is subject to a possible mandatory direction for return to tangata whenua by the Tribunal (eg under the Treaty of Waitangi (State Enterprises) Act 1988), so the possibility of subdivision and sale of some of it will not exacerbate, or prejudice, the claim in that sense.
[30]	Returning to the SSM issue, there was a suggestion that the term site might not be wide enough to encompass a landscape, and that the SSM mechanism was designed to deal with specifically identifiable places such as a pa, an urupa, or something similar. The Plan itself does not define site, nor does the Act. The Concise Oxford defines it as . . . an area of ground on which something is located . . . a place where a particular event or activity is occurring or has occurred. That suggests that the more restricted meaning is to be preferred: — that a site is one identifiable place with a single focus rather than a wide area covering a number of individually identifiable places. The extract we have already quoted from the Council’s decision on Ngatiwai’s submission seems to accept that the wider meaning is open, although there is no indication that the definition point was ever considered, or even raised.
[31]	The narrower meaning seems to accord better with the Plan’s emphasis on identification before the SSM mechanism is used, and the less rigorous process for notation as a heritage area. The use of the term area is, again, in contrast with site, an indication that it is intended to deal with broadly defined expanses, rather than focussed, individual notations. So we arrive at the conclusion that the SSM mechanism, as presently in the Plan, is not an appropriate one for giving that level of protection to a whole landscape, as opposed to individually defined sites.
[32]	As an aside on the issue of cultural or heritage landscapes, we could mention that chance lead us to the Bannockburn Heritage Landscape Study published by the Department of Conservation. This was a trial of a newly developed interdisciplinary methodology of the analysis of, and reporting on, a landscape with many features and layers. We mention it because it is an example of the depth of study and analysis which needs to be done to thoroughly understand an entire landscape in cultural or heritage terms. As a matter of interest, we also observe that, as a working definition, it defines heritage landscape as . . . a landscape, or network of sites, which has heritage significance to communities, tangata whenua, and/or the nation. That rather coincides with our own view, although we do not, of course, rely upon it. The Bannockburn Study is available on the Department’s website at www.doc.govt.nz.
[33]	In the process of weighing competing values, the placement of a restriction, if not prohibition, on development over such a large piece of privately owned land (which is what would follow from the SSM identification) is one we should take only if supported by the most compelling evidence. Here, the evidence about individual sites is strong, and undisputed, and there are mechanisms available to protect them or at least to mitigate effects on them (see Policy 6.4.2 and Matter for Control 50.4 iii referred to in para [26], for instance). But we are not convinced that we should go so far as to identify the whole of Pataua Island as an SSM, even if such a course was available.
Summary of conclusions
[34]	We have made this decision an interim one in the expectation that the parties will confer about what we have said about the Council’s revised proposals for provisions to support the Concept Development Plan for the Harrison land, (including the survey of the boundary between areas 3 and 4). A final set can then be lodged with the Court for approval.
[35]	We do not accept that the whole of Pataua Island should be identified as a Site of Significance to Maori. But it would inform future decisions about this area (indeed it is probably essential to give effect to the Plan provisions mentioned in para [26] for example) to have a thorough cultural and heritage assessment of it. That probably need not be as elaborate as the Bannockburn Study we have mentioned, but there is plainly information and knowledge about the area which could be assembled, as part of giving effect to Chapter 6 of the Proposed Plan. The requirement to do so should be incorporated into the Concept Plan. It may well be that as further knowledge comes to light, identification of areas as Sites of Significance to Maori can be justified. In the meantime, the area can plainly be regarded as a . . . heritage area of significance to Maori in terms of Method 6.5.1 of the Proposed Plan.
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Robin Patterson 00:40, 28 Apr 2005 (UTC)

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