EVIDENCE OF DAVID TAIPARI

(September 2006)

MAI MOEHAU Kl TAI

TE PUKE O RAKA KEI WAENGANUI

KO TE AROHA Kl UTA

KA RERE TE PUNGA O KAKAROA

E TE PATATERE

NO TE TAUMARU TE WAKA WAIRUA

O HAURAKI

KO TIKAPA TE MOANA

KO MARUTŪĀHU TE KAIHAUTU

TIHEI MAURI ORA

A.           INTRODUCTION

               Background

1.           I am a descendent of Marutūāhu through his five sons and their whakapapa. My principal tribe is Ngāti Maru, however I am of many tribes including Ngāti Awa, Te Patuwai and others.

2.           For this hearing, I refer to my Ngāti Maru whakapapa:

Marutūāhu - Hineurunga (Uri o Pou)

Ngāti Maru : Te Ngakohua - Paretera (Ngāti Maru)

Ngāti Maru : Kahurautao - Hinetera (Ngāti Tamaterā)

Ngāti Maru : Rautao - Ngawhakaangaanga (Nga Marama)

Ngāti Maru : Hape - Paretauhinu (Ngāti Awa / Ngai Te Rangi)

Ngāti Maru : Hauauru - Rangiarua (Ngāti Paoa)

Ngāti Maru : Te Poutu - Manuhera (Ngāti Awa)

Ngāti Maru : Paterangi (Taipari) - Mere Paruru (Ngāti Maru)

Ngāti Maru : Hauauru Taipari - Hiwa (Marutūāhu/Whakatohea) (Hotorene Taipari)

Ngāti Maru : Hauauru Tikapa Taipari (Wirope Hotorene Taipari) - Tawai Meke (Te Patuwai)

Ngāti Maru : Eruini Taipari - Alice Turahira Stewart (Ngāti Maru/Ngāti Awa)

Ngāti Maru : Waata Taipari - Maude Hillman (Marutūāhu/Whakatohea)

3.           I hold a number of positions for my tribes, including:

•                 Chairman - Matai Whetū Marae.

•                 Chairperson - Taipari Whānau.

•                 Committee Member - Ngāti Hauāuru Hapu.

•                 General Manager - Ngāti Maru Rūnanga.

•                 Ngāti Maru Representative - Marutūāhu Working Group

•                 Ngāti Maru Representative - Hauraki Māori Trust Board

•                 Principal Technical Officer for Marutūāhu tāngata whenua representatives on Hauraki Gulf Forum

•                 Ngāti Maru Representative - Matamata Piako District Council Tāngata Whenua Forum

•                 Ngāti Maru Representative - Hauraki District Council Tāngata Whenua Forum

•                 Committee Member - Waikato and Hauraki Police Maori External Advisory Committee.

•                 Committee Member - Thames Hauraki Coromandel Development Group.

4.           I have long been involved with Ngāti Maru affairs, particularly in the last 15 years working to support the whānau, hapu and iwi that I belong to.

Wai 454 and 812

5.           My father Leon, and his tuakana and our rangatira Walter William Eruini Taipari, have entrusted me to speak on these matters as has our whānau being descendents of Ngāti Maru and Marutūāhu and more specifically Taipari tūpuna.

6.           I have also been asked on this occasion to speak for my Ngāti Maru, Ngāti Whanaunga, Ngāti Paoa and Marutūāhu whanaunga of the Majurey Whānau, the descendants of Hoani Nahe.

7.           The Wai 454 and Wai 812 claims have been brought by my Uncles Walter Taipari, Adrian Taipari (Wai 454), and Clive Majurey (Wai 812) on behalf of the Marutūāhu to ensure that the interests of all the Marutūāhu ‘Mai Matakana ki Matakana’ including at Katikati - Te Puna, are recognised.

8.           The descendants of those closely related cousins, Wirope Hotoreni Taipari and Hoani Nahe, continue to work together to protect the mana of Marutūāhu and Pare Hauraki as they did on many occasions in the 1800s, eg, being the tūpuna who forced the Crown in the road rates agreement of 1877 to never levy rates and related taxes against our people and to reserve wāhi tapu. (The fact that the Crown subsequently overrode this agreement by retrospective legislation is another story).

B.           MARUTŪĀHU TREATY CLAIMS

9.           The rohe of the Marutūāhu people is reflected in our tribal sayings, for example:

‘Mai Mahurangi ki Nga Kuri a Wharei’

‘Mai Matakana ki Matakana’

10.         The Treaty claims of the Marutūāhu people encompass more than five Tribunal inquiry districts.

11.         In that part of the Marutūāhu rohe encompassed by the Tauranga Moana Inquiry District (see the maps set out below), the Tribunal’s 2004 Raupatu Report confirmed the customary interests of the Marutūāhu, and the breaches of the Treaty suffered by the Marutūāhu at the hands of the Crown.

[Page 2 - Tauranga Moana Raupatu Report]

[Page 41 - Tauranga Moana Raupatu Report]

12. Included in the Marut ū ahu evidence presented at the Tauranga Moana Raupatu Inquiry hearings in 2001, were customary statements from:

13.         Some relevant extracts from the report include:

[Letter from Waitangi Tribunal to Minister of Māori Affairs - page xv]

“Enclosed is our report Te Raupatu o Tauranaa Moana. It covers raupatu claims to the Waitangi Tribunal in the Tauranga Moana district of the western Bay of Plenty. The claims covered in the report have been filed with the Tribunal on behalf of the various hapu of Ngati Ranginui, Ngai Te Rangi, Ngati Pukenga (or Tawera), Waitaha, and Marutūāhu.” [Emphasis added]

[Page 16]

“1.4.6        Hauraki iwi

... Wai 454 by Walter Taipari on behalf of Marutūāhu; and Wai 812 by Clive Majurey, also on behalf of Marutūāhu. (Marutūāhu is a confederation of the Ngati Tamatera, Ngati Maru, Ngati Paoa, and Ngati Whanaunga iwi.) ... In their evidence and submissions to this inquiry, the Hauraki claimants emphasised Marutūāhu’s rights in Te Puna-Katikati and the role of Hauraki iwi in the Waikato and Tauranga wars.” [Emphasis added]

[Page 28]

“However, Tainui people were later to settle in neighbouring districts and were to play an important role in Tauranga history. These neighbouring Tainui people were tribes of the Marutūāhu confederation in Hauraki to the north, and Ngati Haua and Ngati Raukawa west of the Kaimai Range.”

[Emphasis added]

[Page 40]

“Finally, we discuss several neighbouring groups whose predominant areas of interest lie outside our inquiry boundaries: the Marutūāhu confederation ... Of these groups, only the Marutūāhu confederation is a claimant in this inquiry. As we noted in chapter 1, the confederation is made up of four Hauraki iwi. They have claimed as a group, so we are not required to distinguish between the interests of its constituent tribes. The confederation’s claims concern the Te Puna-Katikati purchase ... We accept that the confederation had interests in the Katikati block and the northern part of the Te Puna block, but we do not believe that its interests excluded other hapu from also having customary rights within any part of those blocks. We consider that the area was a contested zone, an area where the rights of the confederation overlapped with those of Ngai Te Rangi. The extent of each side’s rights was in dispute at 1840, and was still disputed in 1864 when the purchase of the Te Puna-Katikati blocks commenced.”

[Page 43]

“ >The Te Puna-Katikati blocks. Hapu holding substantial interests within the Te Puna-Katikati blocks were ... hapu of the Marutūāhu confederation.” [Emphasis added]

[Pages 177-178]

“First, the Government had to deal with the claims of several non-Ngai Te Rangi groups, including the powerful

Marutūāhu federation of Hauraki, which had a long- standing claim to the western part of Te Puna-Katikati...”.

[Emphasis added]

[Page 199]

“We find that the Crown's purchase of the Te Puna-Katikati blocks, anchored as it was in the consent of a small minority of loyalist Ngai Te Rangi chiefs and subsequently imposed, with compensation, on other Ngai Te Rangi hapu and Ngati Ranginui, Ngati Pukenga, and Marutūāhu, was in defiance of the Treaty promise that Maori land should be alienated to the Crown only with the free and willing consent of its owners.” [Emphasis added]

[Pages 199-200]

“Although there was vigorous debate between the Ngai Te Rangi and Marutūāhu claimants during our hearings, we heard no convincing argument to the effect that the Clarke-Mackay arbitration was wrong or unfair. In the circumstances, we accept that Clarke and Mackay’s decisions and the amounts of monetary compensation that they awarded were fair in relative but not absolute terms. In our view, Marutūāhu had claims only in the narrow Katikati block and in relatively limited portions of the Te Puna block, such as at Ongare. Accordingly, we think that the £2160 that the Hauraki tribes received for their interests was fair in proportion to the £7700 that Ngai Te Rangi received for their much more extensive interests. But, when we consider the reserves awarded alongside the monetary payments, it becomes evident that Ngai Te Rangi, who received virtually all of the 8000 acres of reserves in Te Puna-Katikati, were more generously treated than Hauraki. The only promised awards of reserves to the Hauraki iwi were 75 acres of wahi tapu, which the claimants allege were never actually set aside by the Government. This disparity between the relatively large reserves awarded to the Ngai Te Rangi chiefs and the virtually non-existent reserves awarded to Marutūāhu and the Ngati Ranginui hapu is clear evidence of a failure to treat Maori equally according to their customary rights in Te Puna-Katikati.” [Emphasis added]

[Page 201]

“>The purchase process was coercive in nature for almost all who held customary rights to the blocks - including ... Marutūāhu.” [Emphasis added]

[Page 298-299]

“10.8.1 Hauraki wahi tapu reserves

The purchase deed signed by Ngati Maru and Ngati Tamatera for their interests in the Te Puna-Katikati blocks provided for several wahi tapu reserves, and these were the subject of argument between their counsel and the Crown (see sec 10.4). Neither party was able to find any evidence that the reserves were set aside. The Crown argued that, in view of the lack of evidence, we should not make a finding of any failure to establish the reserves. But if the promised wahi tapu reserves had been set aside, surveyed, and gazetted, evidence of that would surely have been found either among titles held today by Land Information New Zealand or in the New Zealand Gazette, and the reserves would legally exist. Clearly, they do not.

We therefore find that the Crown was in breach of its Treaty obligation to act honourably and in good faith toward its Treaty partner when it failed to provide the reserves promised to Ngati Maru and Ngati Tamatera in the deed of 3 September 1866.” [Emphasis added]

[Page 400]

“The Crown did not adequately take into account the interests of other Maori, especially those of Ngati Ranginui and Marutūāhu, in its purchase process.” [Emphasis added]

[Page 408]

“However, the major interests of two of the groups that appeared before us, Waitaha and Marutūāhu, lie outside the district, and claims lodged on their behalf have been or may be heard by other Tribunals. We therefore recommend that the claims of Marutūāhu iwi within the Tauranga inquiry district which have been upheld in this report (see chs 7,10) be included in negotiations that may arise from the Tribunal’s Hauraki inquiry. We recognise, however, that Marutūāhu may wish to be heard further on the issue of the Crown-licensed Athenree Forest in our stage 2 inquiry, if this takes place.” [Emphasis added]

[Page 409]

“For instance, though two claimant groups sought the ‘return’ of the Crown-licensed Athenree Forest during our inquiry, it is not appropriate for us to make a recommendation on the matter at this point in time. What evidence we have heard suggests that Tauranga and Hauraki Maori shared customary interests in the area to roughly the same extent (see ch 2) and that the Treaty breaches arising from the Crown acquisition of the area affected the two groups in a similar measure (see ch 7).” [Emphasis added]

14.         I acknowledge my uncles and cousins who gave the evidence for Marutūāhu in 2001 that supported these findings.

C.           NGĀTI MARU/MARUTŪĀHU

15.         I also acknowledge those rangatira now gone and their struggles to seek redress for Ngāti Maru, Marutūāhu and Pare Hauraki.

16.         In the Waitangi Tribunal Wai 686 Hauraki Report, the position of the Marutūāhu tribes was discussed:¹

“2.2.2 The Marutuahu invasions

The traditional history of Hauraki is dominated by the invasion and settlement of much of the region by iwi of Tainui origin, collectively known as Marutūāhu.

¹ Pages 39 - 43.

...

By the eighteenth century, they [Marutūāhu] were the most dominant groups in the Hauraki region, including the islands of the gulf.

...

Thus, by the early nineteenth century, Hauraki was occupied by an intricate patchwork of groups, predominantly of Marutūāhu descent, intermingled with groups of earlier occupants. Most of the tribes were intermarried and had complex linkages with each other. Some early hapu had lost their separate identity in the constant process of hapu formation and re-formation. Others retained their pre-Marutūāhu identity and survived independently, even if in somewhat tenuous relationships with the Marutūāhu tribes.” [Footnotes omitted].

17.         Within Hauraki, the aroha of the Marutūāhu was reflected in tuku whenua to many outside Māori. One such tuku led to the genesis of the special relationship between Te Tawera and Ngāti Maru. This came from the initial provision, to Te Kou o Rehua and subsequent gift, of land to Te Tawera at Ruahine, near Manaia. My tupuna Hotoreni Taipari was one who gifted lands to Te Tawera.

D.          MARUTŪĀHU - TAURANGA MOANA / MATAATUA

18.         There is much evidence showing that the interaction between the peoples of Marutūāhu and Tauranga Moana over the centuries. My uncles gave some of these details at the Tauranga Moana Raupatu Inquiry hearings in 2001.

19.         Our Marutūāhu people have travelled the East Coast from Moehau to Katikati and beyond to Opotiki where along the path we maintained many pa, papa kainga, areas of harvesting and cultivation to sustain our living, and to maintain our interests and those of our allies in the rohe of Marutūāhu.

20.         As was their way, the Crown coerced land agreements² from the Marutūāhu. These areas include Te Aroha to Katikati, Tahawai, Tuapiro, Hikurangi, Ongare and Uretara.

² See, eg, the 1867 report of John Mackay Jr to the Native Minister (“Report by Mr Mackay of the Katikati Purchase and Other Questions Relating to the District of Tauranga - Mackay to Native Minister, 26 June 1867”). Some parts of the report discuss a number of matters relevant to Ngāti Maru and Marutūāhu, eg:

“Natives of the Arawa, Ngātihaua, Ngātitamatera, Ngātimaru, and Ngaiterangi tribes assembled at Te Papa, Tauranga, and the Pirirakau hapu came from the back ranges and also joined the meeting. Some of the latter had not been at Te Papa since the commencement of hostilities.

Evidence of Pitau Williams

21.         At the Tauranga Moana Raupatu Inquiry hearing of our Marutūāhu claims held in October 2001 at Ngahutoitoi Marae, our late cousin Pitau Williams gave evidence for our people. It is of great regret to our people that our whanaunga passed away in April 2005.

22.         I repeat extracts of his evidence that was so influential in achieving the recognition of the Marutūāhu in the Raupatu Report as seen above:

“8. The history of Marutūāhu and Ngati Tamaterā and our connection to Katikati is long and complex.

9.         In his evidence at the Arbitration hearing in 1866, my tupuna Te Moananui sets out in detail the traditional history of Marutūāhu in Katikati-Te Puna. As set out in his korero, Ngāti Tamaterā and Marutūāhu has exercised our mana whenua over our southern boundaries at Katikati for over 13 generations and several centuries. A summary of points from that korero and from the evidence of my koroua regarding the mana whenua and rangatiratanga of Ngāti Tamaterā and the Marutūāhu at Katikati include:

•           The twin sons of Tamatepo (Rauakiuta and Rauakitai) were born there.

The investigation of the various claims was commenced by Mr Clark and myself on the 29th June and lasted until 19th July. The result was as follows - viz:

1 [Discussions regarding Arawa]

...

2 ...[Discussion regarding Ngāti Haua]

The piece at Omokoroa and Purakaunui were reserved for them but this was however much against the wish of the Ngaiterangi, who would rather have seen them receive cash compensation.

...

3      The Ngātimaru made out a claim as first occupiers with the Ngaiterangi of lands in the neighbourhood of Tuapiro and Te Tahawai. They agreed to take five hundred and thirty pounds for their claims. They afterwards combined their interests with that of the Ngātitamatera tribe.

...

Burial ground reserves were made as follows at Pukewhakataratara 50 acres; Te Teira 5 acres; Te Paewai 5 acres; Takaihuihui 5 acres; Ngatukitukiahikawera 5 acres; and Tangitu 5 acres, - or 75 acres in all. The deed was signed by Taraia Ngakuti, Te Moananui Tanumeha, Wiremu Hopihana, Riwai Kiore, Hoterene Taipari, Wirope Hotereni Taipari, and 18 other principal men of the Ngāti Maru and Ngāti Tamaterā tribes.

...

The only objection raised was by some men of Ngāti Maru who had not been at the Tauranga meeting. It was because the summit of the Aroha Mountain was included in the Deed of Session, but on Taraia, and Te Moananui admitting that they had been included in the Katikati arbitration, and also that they had received the sums of £30 and £25 respectively as deposits on it, and my agreeing to pay £15 more than had been arranged at Tauranga, the opposition was withdrawn, and the disputants (Riwai and Morgan Hou) signed the deed. [Emphasis added]

While these comments are the personal opinion / advocacy of Mackay, and there are some things in the report that are not correct, his comments are illustrative of some pakeha views current at the time.

•           The altercation with Tamaterā upon his exodus from Pare Hauraki.

•           The warfare in the 1500s between Marutūāhu and the people of Tauranga Moana with Ranginui who killed Hineurunga.

•           The warfare in 1600s between Marutūāhu and the people of Tauranga Moana who killed Tara.

•           The battle involving Te Kiko and Te Mangapae of Marutūāhu against Tauranga Moana avenging the death of Tara.

•           The battle to rescue Tawhaki by Te Katohau, Te Poporo and Te Tahuri of Moehau, with Ngāti Maru, Ngāti Paoa and Ngāti Whanaunga.

•           Rangitoro of Ngai Te Rangi exhumes the body of the father of Rangitarakea (moko of Tupaea) who was cooked and eaten.

•           The Ngapuhi invasion during the 1820’s saw the evacuation of people along the Eastern seaboard from Tauranga to Whitianga.

•           Takanini Te Moananui exercises rangatiratanga over Ngai Te Rangi in the area in 1823.

•           Te Kihau Te Moananui, uncle of Tanumeha, banishes his nephew Paetuhi to Katikati.

•           Ngāti Hangarau and Pirirakau ask Marutūāhu for rights at Katikati.

•           Taraia agrees, but on conditions.

•           Te Whanake intimidates Paetuhi to not oppose his moves to build kainga.

•           The exhumation of the whanaunga of Taraia, incurring the wrath of Taraia and Ngāti Tamaterā.

•           The sacking of Ongare by Taraia, Takanini, Tukukino, Mokena etc in 1842.

•           Rahui placed at Katikati - Te Puna and beyond by Marutūāhu and agreed to by Ngai Te Rangi. Taraia and Te Moananui name tapu war road “Taraia”. This is, again accepted by Ngai Te Rangi.

•           Discussions are held in 1843 with the Crown concerning the Ongare action.

•           A meeting is held in 1853 with the Crown to discuss land rights of Taraia and his aukati at Katikati.

•           Ngāti Hangarau and Te Whanau o Tauwhao meet with Pukeko and other rangatira of Tamaterā, seeking consent to occupy Te Toki and protect the area and harbour as their kaitiaki.

IMPORTANT UNDERSTANDING OF SOME KEY EVENTS

10.       In the korero of my tupuna and uncles there are some events in respect of which it is helpful to add to, amplify and detail.

Uretura

11.       Tara was killed on the Waiau River by the people of Tauranga Moana. He was taken to Rereatukahia, and at an unnamed tributary his body was dismembered and his raho removed. In recognition of this action, Tauranga Moana named this stream Te Uretara.

12.       To this day, the tikanga is that Uretara signifies the land boundary between Marutūāhu and Tauranga Moana.

Te Whanau o Tauwhao

13.       The background to Te Whanau o Tauwhao arises from the battles involving Pirirakau and Ranghouhiri.

14.       The face of Tauranga Moana went through massive changes as a result of the settling of Tauranga Moana by the “waka invaders”, namely Ngai Te Rangi. During this time of confusion and fear, the old peoples of Ngati Potikitiki and Nga Marama made overtures to many chiefs of Marutūāhu.

15.       One of the results of this was that the peoples of Pirirakau and Te Whanau o Tauwhao were protected by, and intermarried with Marutūāhu. In being provided with a safe haven, these peoples were able to remain in contact with their original places. Also, Marutūāhu had their mana and ahi ka supported by these groups.

Killing of pigs

16.       The return by Te Moananui and Marutūāhu after the Nga Puhi invasions continued our ahi kaa at Katikati. The killing of the pigs of Ngai Te Rangi by my tupuna proved this under tikanga Maori.

AREAS OF SIGNIFICANCE

17.       There are many important wahi tapu and other significant sites of Ngati Tamaterā and Marutūāhu at Katikati / Matakana.

18.       One of the old maps (Map 9 in the historical report of Mr T Walzl) shows Maori names along the “northern Katikati confiscation boundary” at Katikati. These names and sites are important to Ngati Tamaterā and Marutūāhu as follows:

•         Te Aroha Auta - Summit.

•         Kakariki Kaitahi - Significant wahi tapu.

•         Mangahokio - Urupa / spring.

•         Pukekauri - Kaianga.

•         Huruhuru - Taharua kainga (corridor).

•         Te Onewhero - Tapu tapu.

•         Te Whakakahakaha o Rangihau - Pa.

•         Nga Puketuone - Kaianga / tuahu.

•         Waimata - Tapu / tuahu.

•         Onepu - Pa.

•         Te Whare o Tumapere - Kainga.

•         Oteotahi - Urupa.

•         Waingaere - Gardens.

19.       In the Crown legal documentation signed by Ngati Tamaterā and Ngati Maru, several very tapu urupa areas were to be reserved (although ultimately never reserved). Because of the sensitivity of these urupa, our people have always protected their exact location. As such, I am prepared to give a general location as follows:

20.       Another important wahi tapu of Marutūāhu and Katikati is Okeru especially the hapu of Te Hira of Ngati Tamaterā.

21.       Other important areas include:

•          Orokawa (Black Jade) - A tapu tapu. The last area to have trees removed in the area. Several trees were found to have platforms of varying sizes including crossovers still attached within the branches. A koiwi was also found wedged between the branches.

•          Ara Rimu - A place for women only.

•          Opotaka - Spring.

•          Nga Uru Kehua - Lake.

•          Papa Kawau - Swamp.

•          Mata Ingia - Face in the hill.

•          Okauri - Point and tauranga waka.

22.       All these areas show our centuries old ongoing relationship and mana whenua in an around Katikati - Te Puna.

23.       It saddens our people immensely that even with all our associations with Katikati over the centuries, the many of thousands of our dead who lie there; the urupa, tapu, kainga, pa and other sites we established and keep the traditions alive counted for nothing. We are no longer there in a tangible way as the Crown have taken these things away from us and, worse, put others there in our place.

24.       Anyone who thinks that the participation of Te Moananui and our other tupuna with the agreements for the Katikati-Te Puna Blocks (that saw Ngai Te Rangi receive over £7,700 and more than 6,000 acres of reserves and Marutūāhu receiving £2160 only) was evidence of their consent, is sadly mistaken. The reality is that our people faced a choice to take up arms against the Crown, and possibly Ngai Te Rangi, or secure what we could.

25.        It was no choice at all. Further, I make these points:

•          After Ongare, the Crown threatened Tararia with the taking of his land.

•          The only reason the Crown did not take military action against Taraia in 1840 is they knew they did not have the necessary numbers and arms and that the Marutūāhu would destroy any trace of European contact in Hauraki.

•          When Taraia learnt of the moves in the 1860s by the Crown and Ngai Te Rangi to lay a buffer down between Hauraki via the sale of Katikati-Te Puna without regard to Marutūāhu interests, he and other Marutūāhu chiefs threatened warfare again.

•          The Crown then took some notice.

•          After the arbitration, the adverse response by some Ngai Te Rangi towards Marutūāhu was met by the preparations of Te Moananui and others of Ngati Tamaterā, Ngati Maru and Ngati Paoa to take a taua to Katikati.

•          Our traditions are that Crown officials who subsequently met with my ancestor Te Moananui and Taraia made it very clear that Marutūāhu had to relinquish our interests at Katikati-Te Puna, apart from monetary payment, or we would face military invasion.

•          My ancestors were told:

-          We would get no land like Ngai Te Rangi. But not to worry, the land they were to get was a small pittance to that which they were losing by confiscation.

-          Marutūāhu were lucky to get any money as we were losing no land in Hauraki.

•           This was all happening against the background of intense Crown pressure to open our lands for goldmining etc in Hauraki.

•           In the end, that is what those Chiefs were faced with. Try and maintain our land in Hauraki intact and secure what they could.

26.       To the descendants of these warrior chiefs, Taraia, Tukukino and Te Moananui to name a few, it is unbelievable that at Ongare, the very place of the last military engagement between Marutūāhu and Ngai Te Rangi and their enforcement of mana whenua by our people, we received not one piece of land. As shown in the report to Mr Walzl, (Map 47A) and the report of Dame Evelyn Stokes (pages 48-53, “The Allocation of Reserves for Maori in the Tauranga Confiscated Lands” - Vol 1: Wai 215 A5&) all the land that was reserved there went to Ngai te Rangi, indeed the whanaunga of Whanake.

27.       We have no land whatsoever in that part of our ancestral rohe. We have no marae, no kainga, no mahinga kai, no tauranga waka there as the Crown stole them from us.

28.       The losses of Marutūāhu as a result of the Crown raupatu at Katikati are long standing, immeasurable and the cause of great humiliation. Every time our kaumatua recite our pepeha ‘mai Nga Kuri a Wharei ki Mahurangi’ or ‘mai Matakana ki Matakana’, they face the prospect of people saying they are liars ....

29.       This is the legacy the Crown has left us.” [Emphasis added]

E.           MARUTŪĀHU LANDLESSNESS AND POVERTY - YESTERYEAR AND TODAY

23.         That part of the Marutūāhu rohe encompassed by the Waitangi Tribunal Hauraki Inquiry District (see the map below) was the subject of a four year inquiry, which concluded in 2002. The Tribunal’s Hauraki Report (Wai 686) was released on 24 June 2006.

24.         Three weeks of that inquiry were devoted to the presentation of historical and traditional evidence in support of the many breaches of the Treaty suffered by the Marutūāhu and Patukirikiri I Ngāti Tumutumu at the hands of the Crown.

25.         These claims were supported by the independent historical evidence of:

>            Dr Michael Belgrave / Dr Tracey Tulloch / Dr Grant Young: The Marutūāhu Historical Overview Summary - Volume Six³. (Volume One is the primary report⁴).

>            Dr Grant Young / Dr Michael Belgrave: The Operation of the Native Land Court in Hauraki Summary - Volume Seven⁵. (Volume Two is the primary report⁶).

>            Ms Emma Stevens: Nine Marutūāhu Land Blocks Summary - Volume Eight ⁷ . (Volumes Three and Three-A are the primary reports⁸).

>            Dr Cybele Locke: The Social and Economic Circumstances of the Marutūāhu 1840 to 1860 Summary - Volume Nine⁹. (Volume Four is the primary report¹⁰).

>            Dr Mervyl McPherson / Dr Michael Belgrave: A Socio-Demographic Profile of Marutūāhu and Pare Hauraki Summary - Volume Ten¹¹. (Volume Five is the primary report¹²).

26.         Volumes Four - Five and Nine - Ten of the Marutūāhu Historical reports were very influential in certain of the findings in the Tribunal’s Hauraki Report, and are of direct relevance in the Tauranga Moana Inquiry.

27.          In the Prologue to Part VI of its Hauraki Report (entitled Socio-Economic Impacts of Colonisation on Hauraki Maori), the Tribunal stated:¹³

“We have seen [after 150 years of British colonisation] ... that Hauraki iwi are left with only about 2.6 per cent of the land in the claim area in their possession, and that the Crown conceded in closing submissions that its aggressive land purchasing policy ‘contributed to’ the landlessness of Hauraki iwi. However, Crown counsel has also stated that it is ‘not ... acknowledging that landlessness equated with poverty. The

³     Wai 686, Document V6.

⁴     Wai 686, Document V1.

⁵     Wai 686, Document V7.

⁶     Wai 686, Document V2.

⁷     Wai 686, Document V8.

⁸     Wai 686, Document V3, V3(a).

⁹     Wai 686, Document V9.

¹⁰     Wai 686, Document V4.

¹¹     Wai 686, Document V10.

¹²     Wai 686, Document V5.

¹³    Page 1163.

purchase of Hauraki Maori land was not in itself a determinant of Hauraki Maori economic fortunes.’

...

We are thus obliged to consider the connection between land loss and social and economic outcomes.”

[Emphasis added]

28.         In its consideration of the socio-demographic profile, the Tribunal placed emphasis on the evidence of the Marutūāhu claimants,¹⁴ and made the following statements:¹⁵

“Dr Mervyl McPherson and Dr Michael Belgrave have compiled for the Marutūāhu claimants “A Socio-Demographic Profile of the People of Marutūāhu and Pare Hauraki’, based upon censuses from 1981 to 1996. This includes analysis of a range of demographic factors together with the socio-economic indicators of use of te reo Maori; educational qualifications and school attendance; employment; income distribution; housing tenure and occupancy; access to telephones, the internet, and motor vehicles; incidence of smoking; health disabilities; proportion of solo parents; and crime rates.

Their key demographic findings were that:

...

Less than one in five (19%) of these Hauraki iwi members resides within the Hauraki inquiry District. This means that a large majority of members (81%) live outside the Inquiry District. A similar proportion to those living within the Inquiry District lives in the neighbouring Auckland Regional Council (ARC) area (17%).

Within the Hauraki Inquiry District, Hauraki iwi members make up 3% of the total population and just 15% of the Maori population...

We have some concern about the methodology of the McPherson-Belgrave analysis, because there are many variables and the averaging of data grouped under mesh blocks gives an incomplete picture. Nevertheless, we accept that the indicators of the socio-economic situation of Hauraki Maori show that they are generally disadvantaged, not only in relation to non-Maori in the inquiry district but also in relation to non-Hauraki Maori.”

[Emphasis added and footnotes omitted]

29.         This Marutūāhu evidence led to the following findings by the Tribunal on socio-economic impacts:¹⁶

“We have studied the demographic evidence submitted by claimant witnesses and note that, according to that evidence, of the 10,000 Maori who reported affiliation to Hauraki iwi in 2001, only 19 per cent live in the inquiry district. Moreover, Hauraki iwi members make up only about 15 per cent of the Maori population resident in the inquiry district, and several socio-economic indices show them still to be disadvantaged

¹⁴    See, eg, Section 25.1.2

¹⁵    Pages 1167-1170.

¹⁶    Pages xlv-xlvii.

relative to Maori of other iwi and non-Maori. The evidence supports the claimants’ view that many Hauraki Maori moved out of the district early – from the early twentieth century as well as after the Second World War – and settled in the Waikato and Auckland districts where 67 per cent now reside. We believe their out - migration was largely a consequence of their having insufficient usable land and employment opportunities in Hauraki.

...

The evidence relating to Maori health and housing from the late nineteenth century till after 1945 shows that Hauraki Maori were among the most disadvantaged and needy people in New Zealand.

...

Consideration of these matters is connected to the fact that Hauraki Maori have lost more of their customary land than most iwi. The Crown has argued that there is no necessary connection between land loss and poverty – that a community can possess a great deal of land and still be poor and that much depends on the quality of the land and its resources, and on the acquisition of skills to manage land productively. We accept that this theoretical position has a degree of validity. We accept also that much of Hauraki is too steep to cultivate or carry stock. Nevertheless, there are also rich river valleys and rolling hill country in the south of the district, harbours and islands, which brought early trade and settlement: and a coastline, which today has great value. Why have not Hauraki Maori been enabled to have a greater share of the opportunities that these provide?

...

It was not only that Hauraki Maori lost nearly all their land; it was the manner of losing it that divided and pauperised them. Subsequent owners of the land have benefited significantly from it since.

...

Land loss does not necessarily lead to poverty, but for Hauraki Maori that became the case.

...

The subsequent alienation of such a high proportion of traditional Hauraki lands has deprived Hauraki Maori of their share of the ever increasing community created land value, which the region enjoy. This consequence is in direct contradiction of the objectives and purpose of the Treaty, and the aspirations of those who signed it.

ES.15 Overall Finding

We conclude that Hauraki Maori have been marginalised in their own rohe by the transfer of land and resources to others, including Maori of other iwi.... In this context, we note particularly that:

>            the Crown has conceded that Hauraki iwi lost large areas of land during the raupatu of the 1860s and have received very little compensation, either in land or money;

...

In these matters, and other matters discussed in our report, we find that Treaty principles of dealing fairly with utmost good faith have been breached, that substantial restitution is due, and that the quantum should be settled by prompt negotiation.”

[Emphasis added]

30.         This Marutūāhu evidence was to have the last substantive word in the Hauraki Report:¹⁷

“McPherson and Belgrave go on to refer to the particularly dramatic rise in Maori unemployment in the 1980s, following the Government’s economic restructuring, but also to the signs of improvement in Maori employment statistics in the 1990s. They are reluctant to identify the causes of the improvement but comment ‘It is likely that the declining pace of change after 1993 is a factor’. We consider these comments appropriate. As to historical changes, we accept that it is not possible to be precise as to the relative impact of the Crown’s actions and other factors. We nevertheless consider that the Crown’s land purchase policies undeniably affected Maori socio-economic circumstances and have set out above our reasons for that view.”

[Emphasis added]

F.           CONSEQUENCES OF MARUTŪĀHU LANDLESSNESS AND POVERTY FOR KATIKATI - TE PUNA

31.         These Hauraki Report findings resonate, and find force when combined, with those findings in the Tauranga Moana Raupatu Report confirming the Crown’s Treaty breaches against the Marutūāhu. However, in the Katikati - Te Puna Blocks, the contribution of landlessness to Marutūāhu and Pare Hauraki poverty was more devastating:

>       All Marutūāhu land was taken.

>       There was NO land left for the Marutūāhu.

>       Marutūāhu received no reserves.

>       Marutūāhu were literally wiped off the face of the map.

32.         The Marutūāhu people are still suffering for that today as I will now discuss.

33.         Ms Leanne Boulton has prepared a report entitled A socio-demographic and economic profile of Maori in The Tauranga Inquiry District, 2001

¹⁷ Page 1230.

(August 2006).¹⁸ It comes as no surprise to me that the ultimate conclusion of the report is that this:¹⁹

“ ... 2001 snapshot of the demographic and socio-economic status of Maori in the Tauranga inquiry district indicates that Maori were significantly disadvantaged in comparison with the total population in all the key socio-economic indicators relating to employment, occupation, income, educational qualifications and housing.”

34.         Also, of little surprise are the following demographic assessments in Ms Boulton’s report:

“Hauraki iwi were also relatively under represented for their geographical proximity to the inquiry district...”. [Page 43]

“... the largest proportion of iwi affiliation responses [in the 2001 census] featured Tauranga Moana & Bay of Plenty iwi with Northland & Auckland iwi in second position ...The third largest proportion of responses featured Rotorua & Taupo iwi ... Hauraki Iwi were markedly under represented for their geographical proximity to the inquiry district ... For their geographical distance from the inquiry district South Island & Chatham Island iwi were surprisingly strongly represented in responses from the Tauranga District.” [Pages 45 – 46]

[Emphasis added]

35.         So as for our people in the Hauraki Inquiry district, in the Tauranga Moana Inquiry district:

>       We are disproportionately poor compared to non-Maori.

>       I would not be surprised if we were also poor by comparison to non-Marutūāhu / Pare Hauraki Maori in the Tauranga Inquiry District (as confirmed to be so in the Hauraki Inquiry district).

>       We are demographically under represented in an area in which we have been confirmed to be tāngata whenua.²⁰ Indeed, there are far more non-tāngata whenua Maori in this district, ironically from the ends of the motu - Te Tai Tokerau and Te Waipounamu.

>       Thus, the post World War I diaspora of the Marutūāhu people occurred from the Tauranga Moana Inquiry district, just as it had from the Hauraki Inquiry district.

>       This is not a surprising consequence of the Crown dispossessing us of all our lands around Katikati - Te Puna in the 1860s in circumstances where:

•      There was coercion by the Crown.²¹

¹⁸    Document Wai 215 # S5.

¹⁹    Page 217.

²⁰    See, eg, Map 7 in the Tauranga Moana Raupatu Report.

²¹    Tauranga Moana Raupatu Report, page 201.

•     The land was not alienated with the free and willing consent of the Marutūāhu.²²

•     The virtually non-existent reserves awarded to Marutūāhu was evidence of a failure by the Crown to treat Maori equally according to our customary rights (by comparison to Ngāi Te Rangi).²³

•     The Crown breached its Treaty obligation to act honourably and in good faith towards its Treaty partner when it failed to provide the 75 acres of wāhi tapu reserves promised to Ngāti Maru and Ngāti Tamaterā.²⁴

G. ONGOING WRITING OF MARUTŪĀHU FROM THE MAP

36.         This writing of the Marutūāhu out of the pages of history in Katikati - Te Puna has a number of modern day manifestations which I now discuss.

37.         In his study,²⁵ Mr Antoine Coffin helpfully reviews various RMA policy and plan processes, especially the engagement of tāngata whenua, by the local authorities of Tauranga Moana. A study of this report and the associated document bank shows that the Marutūāhu iwi are not considered to be tāngata whenua of the Tauranga Moana Inquiry District by, at least, the various local authorities.

Local Authority recognition of tāngata whenua

(a)      Consultation

38.         Document 15 of the ‘Coffin Document Bank’ is entitled ‘Background to the Combined Tāngata Whenua Forum.²⁶ That document includes the following statements:

“Section 1 - Terms of Reference SmartGrowth Strategy Section 10.10 Background to the Combined Tangata Whenua Forum

The following paper is a draft summary of the terms of reference for the engagement of Tangata Whenua as a full partner in the on-going governance and implementation of the final SmartGrowth Strategy.

²²            Tauranga Moana Raupatu Report, page 199.

²³ Tauranga Moana Raupatu Report, page 200.

²⁴ Tauranga Moana Raupatu Report, page 299.

²⁵ The tangata whenua experience of environmental planning and management developments (including town and district planning) in the Tauranga Moana inquiry district since 1991 (September 2006) - Document Wai 215 # S7.

²⁶ Document Wai 215 #S7(a).

These terms of reference have been developed via discussions with the Combined Tangata Whenua Forum (CTWF) in March and April of 2004.

Section 2 - Combined Tangata Whenua Forum (CTWF)

The CTWF was an integral partner throughout the development of the SmartGrowth strategies and actions. The CTWF will continue on with this partnering relationship during the implementation of the strategy.

Tangata Whenua have a strong understanding of the growth management issues within the western Bay of Plenty sub region.

...

Section 3 - Tangata Whenua Representation

The CTWF is open to all Iwi and hapu within the western Bay of Plenty sub-region. Tangata Whenua be represented in either one or both of the following Local Authority forum:

The Tauranga Moana Tangata Whenua Collective or

The Western Bay of Plenty District Council Maori Forum.

The following is a list of the current members of the respective forum as at April 2004. Some Iwi and Hapu are represented in both forums because their traditional boundaries extend across both local authorities.

39.         As can be seen, the Marutūāhu have not been included in this tāngata whenua forum.

40.         Document 26 of the ‘Coffin Document Bank’ is entitled “Environment Bay of Plenty Treaty of Waitangi Toolbox”.²⁷ That document includes the following statements:

“Chapter 8: Nga Iwi A-Rohe - Regional Tribes

The Bay of Plenty region has 36 tribes (iwi) whose lands are either wholly or partly within the regional boundaries. All claim allegiance to one of five (5) waka as follows

²⁷ Document Wai 215 # S7(a).

Chapter 9: He Pitopito Korero A-Iwi- Brief Tribal Resumes

The following profiles present a very brief description of the tribes (iwi) cited in the previous chapter. Readers requiring a more detailed account are invited to contact the iwi representatives directly.

Pare Hauraki is the collective term for all the hapu/iwi resident in and around the Hauraki peninsula. A small part of their territory touches the Bay of Plenty region around Waihi Beach. The relevant hapu/iwi is Ngati Tamatera. Generic contact is to Hauraki Maori Trust Board, 41 Belmont Road (P O Box 33), Paeroa, Telephone 07 862 7521 whereas Ngati Tamatera contact is Te Runanga a Iwi o Ngati Tamatera, P O Box 23, Paeroa, Tel. 07 862 6079.

Chapter 10: Nga Komiti Takawaenga A-Iwi - Iwi Liaison Committees

The Bay of Plenty Regional Council (Environment Bay-of-Plenty) has, after very detailed consultation with iwi of our region, established and continues to maintain three (3) Maori Regional Representation Committees (“MRRCs”), namely MRRC East, MRRC South and MRRC West. By general consensus all committees have agreed to conduct their business at combined hui held quarterly and chaired by Council chairperson.

Current (April 2004) membership of MRRCs as determined by iwi organisations and council follows:

Chapter 11: Komiti Turanga Maori - Maori Standing Committee

In 1998 council established our Maori Standing Committee as the vehicle to allow our iwi liaison committees to report directly

to council. Prior to that time the iwi liaison committees reported to council via the Resource Planning Standing Committee.

Each MRRC nominates two (2) of its current iwi members to the Maori Standing Committee of council and this committee reports to full council upon all important matters discussed.

Current (April 2004) membership of the committee comprises

Chairman: J M Cronin (Council Chairman)

Council Nominees: Councillors R Michie, J S Pringle, E Elder, B D Riesterer

11.1   Iwi Nominees

11.2    Role of Committee

•     Plan, strategy, policy development input to all areas of Council activities.

•     Review and comment on statutory legislative changes within prescribed timelines.

•     Provide advice on developments from central point – advocacy of public.

Promote political advocacy to fulfil iwi and community expectations.

Monitor all statutory processes of Environment Bay of Plenty.

•     Actively promote MRRC issues/resolutions to Environment Bay of Plenty.

•     Support all or any iwi initiatives of mutual benefit to council and iwi.

•     Recommend and promote appointment of commissioners consultants etc by council.

•     Support and promote iwi planning documents for council recognition.

Ensure issues pertaining to iwi are referred back to MRRCs.

•     Establish and continually review communications between council and iwi groups.

•     Determine and define tangata whenua policies for council enlightenment.

Encourage iwi input into forms/statutory plans etc. of Environment Bay-of-Plenty.

•     Provide effective advocacy for hapu/iwi matters/affairs/issues if requested by hapu/iwi groups.

•     Define broad MRRC aspirations into practical detail form.

•     Make formal recommendations to council on council activities.

•     Define functional relationship to other councils or other government agencies.

•     Establish procedural benchmarks for hearings etc.

•     Determine appropriate and consistent council policies for addressing iwi concerns.

•     Scrutinise appointment criteria to iwi representation on Council.”

41.         Again, the Marutūāhu are not recognised as tāngata whenua in the Tauranga Moana Inquiry district. At best, we belong “around Waihi Beach”.

42.         This is in stark contrast to other councils who have established tāngata whenua fora which include the Marutūāhu, for example, Auckland City Council, Matamata - Piako District Council and Hauraki District Council. Thames Coromandel District Council are in the process of formulating such a forum.

(b)          Statutory instruments

43.         The significant status of statutory instruments under the Resource Management Act 1991 is well known.²⁸ Here is a summary of some examples of Marutūāhu recognition in various statutory instruments:

>            WAIKATO REGION²⁹

“2 Matters of Significance to Maori

2.2   Iwi in the Waikato Region

2.2.1  The Iwi of Hauraki

...

Iwi of Hauraki descended from the Tainui waka are collectively known as the Marutūāhu Confederation and comprise Ngāti Maru, Ngāti Whanaunga, Ngāti Tamaterā and Ngati Pāoa. The rohe of Marutūāhu stretches from Matakana, near Tauranga in the South to Matakana, near Leigh in the North.

Known by the iwi of Hauraki as Te Tara o te Whai’ or ‘the barb of the stingray’, the Coromandel Peninsula extends northwards supported by the calm waters of Tikapa Moana on the west and the tumultuous seascape of Te Tai Tamawahine on the east. It is also referred to as a waka, which extends from Moehau in the north to Te Aroha in the south, whose ribs are the rivers that flow from the mountains and empty into the estuaries and harbours below. The ancient traditions serve to illustrate the importance of the coast to Hauraki and the manner in which its features took on personifications of great reverence.

...

2.2.1.2   Recognition

Environment Waikato recognises and acknowledges that the iwi of Hauraki are tāngata whenua of the Coromandel Peninsula and Hauraki area, and recognises and acknowledges that the physical, spiritual, cultural, social and economic well-being of the iwi of Hauraki is dependent upon the well-being of their resources and upon their ability

²⁸                 See, eg section 104 of the RMA.

²⁹                 An extract from the Waikato Regional Coastal Plan.

to perform their Kaitiaki role within their rohe.” [Emphasis added].

>           AUCKLAND REGION

“Tikapa Moana[is] recognised by Tāngata Whenua... for the Hauraki Gulf.”³⁰

“While tāngata whenua have no single name for the [Hauraki] Gulf, the names Tikapa Moana... are recognised as referring to the Gulf.”³¹

[Emphasis added]

>           AUCKLAND CITY³²

“The Council need not serve a copy of any application for earthworks greater than 1 metre in depth below ground level within the Limited Earthworks Corridor on any party other than tāngata whenua.

Advisory note: the tāngata whenua who have been involved in the identification of the Limited Earthworks Corridor comprise Ngāti Paoa, Ngāti Maru, Ngāti Whanaunga and Ngāti Tamatera.”[Emphasis added]

>            THAMES COROMANDEL DISTRICT³³

“1. ... any disturbance of earth / soil that result in the movement of more than 1m³ of each / soil in any 12 month period, but not including normal household gardening activities, installing fence posts, or other typical agricultural activities that do not involve the removal or replacement of earth / soil ... within 5 metres of an SPS [sites of Special Significance] is a restricted discretionary activity.

2.         Council’s discretion is restricted to:

(a) Any effect on the relationship of and their culture and traditions with their ancestral land, water, sites, waahi tapu and other taonga.

...

(c) consultation undertaken with Ngāti Maru

3.         The Council need not serve a copy of any application for disturbance of earth / soil within an SPS or within 5 metres of an SPS on any party other than Ngāti Maru.

Advice Note: If there is any doubt as to whether any proposed disturbance of soil is within an SPS or within 5 metres of an SPS, the person proposing to undertake such works shall consult with Ngāti Maru in that regard.” [Emphasis added]

44.         Again, in stark contrast, the Marutūāhu people are invisible within the RMA statutory instruments for those parts of the Bay of Plenty Region

³⁰                 An extract from Section 6.1 of the Auckland Regional Plan: Coastal.

³¹ Clause (3), Preamble to Hauraki Gulf Marine Park Act 2000.

³² An extract from Plan Change No 149 to the Auckland City District Plan (Isthmus Section).

³³ An extract from the Structure Plan for Thames from the Thames Coromandel District Council.

and Western Bay of Plenty District found within the Tauranga Moana Inquiry District.

(c)          Resource consents

45.          I now provide some examples of the results of RMA processes that have recognised the place of Ngāti Maru / Marutūāhu in various regions and districts:

AUCKLAND CITY

>            Ngāti Maru appeal successful in preventing new house construction on the slopes of Pukerautao (Mt St Johns), Auckland. (Attachment 1)

>            Ngāti Maru appeal at Sylvia Park, Auckland successful in having district plan changed to include wāhi tapu provisions governing earthworks activities. (Attachment 2)

WAIKATO REGION

>            Ngāti Maru appeal against Waikato Regional Plan successful in achieving insertion of an ‘implementation method’ governing the discharge of human-based sewage effluent. (Attachment 3)

>            Ngāti Maru appeal against Waikato Regional Plan successful in having the wāhi tapu regime amended so that regional council activities must cease on the identification of wāhi tapu. (Attachment 4)

>            Ngāti Maru appeal against Waikato Regional Plan successful in achieving insertion of rules requiring notification to tāngata whenua of vegetation clearance in catchments draining into Coromandel Peninsula estuaries. (Attachment 5)

>            Ngāti Maru submissions against new Transit NZ Kopu Bridge successful in achieving insertion of comprehensive conditions protecting the interests of the Marutūāhu iwi, including a requirement for Transit to produce a tāngata whenua Mitigation Plan “identifying tangible measures to mitigate any significant

adverse effects of the new bridge on the cultural and traditional relationship of Ngāti Maru, Ngāti Whanaunga, Ngāti Tamaterā and Ngāti Pāoa with their ancestral waters, wāhi tapu and taonga in and of the Waihou River”. (Attachment 6)

>            Ngāti Maru appeal successful in preventing ship sinking at Mercury Bay. (Attachment 7)

THAMES COROMANDEL DISTRICT COUNCIL

>            Ngāti Maru submission against subdivision at Totara successful in achieving subdivision controls protective of wāhi tapu, and agreement for joint Ngāti Maru - Council ownership of new reserve (including ‘no rates’ agreement). (Attachment 8)

>            Ngāti Maru appeal against subdivision at Opoutere successful in having conditions imposed requiring joint Ngāti Maru - Consent Holder report prior to subdivision certificates being issued. (Attachment 9)

>            Ngāti Maru appeal against subdivision at Pauanui successful in having conditions imposed governing native bush planting in consultation with Ngāti Maru. (Attachment 10)

>            Ngāti Maru appeal against Housing Corporation subdivision at Thames successful in having conditions imposed governing wāhi tapu discoveries in consultation with Ngāti Maru. (Attachment 11)

>            Ngāti Maru appeal against Thames Coromandel District Plan successful in imposing development controls at Totara Valley, for example earthworks controls on restricted discretionary activities where Council’s discretion on granting any consent involves considering “any effect on the relationship of Ngāti Maru and their culture and traditions with their ancestral land, water, sites, wāhi tapu and other taonga”. (Attachment 12)

46.         Yet again, we have no similar experiences under the RMA in Katikati - Te Puna. This is direct result of our complete landlessness in this part of the Marutūāhu rohe. Had we retained some land here, our track record in protecting our wāhi tapu etc shows we would have been enabled to uphold our responsibilities as kaitiaki.

47.         That we have been denied from doing so is a direct result of those Crown breaches of the Treaty against the Marutūāhu recognised in the Tauranga Moana Raupatu Report. I believe this is in itself a fresh Treaty breach.

H.          THE FUTURE

48.         As noted, the Waitangi Tribunal has produced two reports³⁴ covering part of the Marutūāhu rohe. However, there is much ground still to cover:

>            This second inquiry for Tauranga Moana - presently underway (two hearing weeks having been completed).

>            The Mahurangi and Gulf Islands Inquiry District - currently at the preliminary stages of case management.

>            The South Auckland Inquiry District and Central Auckland Inquiry District - no case management underway and therefore some years away from hearings. Although, the Tribunal is currently considering applications from Marutūāhu and others for an urgent hearing into the Crown - Ngāti Whātua Agreement in Principle over Central Auckland.

49.         Parallel to these processes is upcoming negotiations with the Crown for the settlement of the Treaty of Waitangi claims of the people of Marutūāhu and Pare Hauraki.

50.         The Crown is currently considering two applications for mandate recognition:

>            The first completed mandate application was from the Marutūāhu Working Group (lodged in December 2005). This

³⁴ Wai 215 Tauranga Moana Raupatu Report and the Wai 686 Hauraki Report.

followed many consultative hui around the motu at which there was overwhelming support for recognition of a Marutūāhu Treaty negotiations mandate.

>            The second completed mandate application was from the Hauraki Māori Trust Board in April 2006. The ‘make up’ of this proposal involves a structure exercising 14 votes:

>            12 votes from each of the members of HMTB.

>            1 vote each from two other individual representatives.

51.         As at the time of writing this evidence, the Crown has not made a decision on its recognition of a Treaty mandate for the people of Marutūāhu and Pare Hauraki. Given the usual lag time between mandate recognition and agreeing terms of negotiation, it is likely that negotiations will not commence until 2007.

52.         In the meantime, should the Tribunal in this inquiry be persuaded to exercise its remedies powers over any Crown owned assets, for example the Athenree Forest in respect of which the Tribunal has confirmed the interests of the Marutūāhu, the Crown’s decision as to mandate recognition in Hauraki would no doubt be relevant in identifying the recipient body. However, in respect of Katikati - Te Puna, it is to be remembered that the Waitangi Tribunal has upheld the customary interests of the Marutūāhu tribes. Accordingly, the only appropriate body for any such return is a Marutūāhu body.

D TAIPARI ATTACHMENT 1

BEFORE THE ENVIRONMENT COURT

Environment Judge D F G Sheppard sitting alone under section 279 of the Act IN CHAMBERS at Auckland on 22 January 2001.

CONSENT ORDER

HAVING CONSIDERED the notice of appeal and the memorandum of counsel lodged on behalf of the parties THIS COURT ORDERS BY CONSENT that the appeal be allowed and the applicant’s resource consent to construct a dwelling at 5/14 Warborough Avenue, Epsom is cancelled.

There is no order for costs.

DFG Sheppard,

Environment Judge

BEFORE THE ENVIRONMENT COURT

RMA No. 235/99

MEMORANDUM OF COUNSEL IN SUPPORT OF DRAFT CONSENT ORDER

MAY IT PLEASE YOUR HONOUR

1.               The appeal concerns a decision of the Council to grant resource consent to a dwelling on a site at 5/14 Warborough Avenue, Epsom.

2.               The appellant appealed this decision on or about 14 April 1999.

3.               The appellant, respondent and applicant have agreed that, subject to the Environment Court’s approval, this appeal can be allowed by consent.

4.               The Council has purchased the property at 5/14 Warborough Avenue from the applicant. The Council has agreed to exchange the property with the Department of Conservation for the land known as the St Georges Reserve under section 13 of the Reserves Act 1977. This agreement recognises the cultural significance of the property at 5/14 Warborough Avenue to Ngati Maru and other Maori, and will ensure that the land is in future managed as part of the Mt St John Domain.

5.               The parties respectfully request that the Environment Court allow this appeal and cancel the applicant’s resource consent.

6.               A related appeal was lodged by the Mt St John Preservation Society (RMA 234/99). This appeal was withdrawn following the Council's decision to purchase the property.

7.               There are no other parties who have indicated that they have an interest in this matter under sections 271A or 274 of the Act.

8.               No party seeks costs.

DATED this 8th day of January 2001

P F Majurey

Counsel for the appellant

D A Kirkpatrick

Counsel for the respondent

M L S Cooper

Counsel for the applicant

D TAIPARI

ATTACHMENT 2

AUCKLAND CITY DISTRICT PLAN

(Isthmus Section, Operative 1999)

Plan Change under Section 73 of the Resource Management Act 1991

PLAN CHANGE: PLAN MODIFICATION NO. 149

Operative date: 10/9/2004                                                                                             File No. 311/209149

With regard to G14-15 Concept Plan – Sylvia Park Business Centre (Appendix B to the Planning Maps):

•             Add a new paragraph to the end of the Explanation to read:

“The ‘Limited Earthworks Corridor’ (shown in Diagram G14-15(4)) identifies an area of spiritual and cultural importance to tangata whenua. In recognition of the importance of this area, specific controls are incorporated applying to earthworks of a depth greater than 1 metre below ground level as at 29 January 1999. It is recognised that some piling or service earthworks requiring resource consents may be necessary within the Corridor.”

•             Add a new plan G14-15(4) Limited Earthworks Corridor in the form attached.

•             Delete the final listed permitted activity in Area A (Part A of the Concept Plan provisions), which currently reads “Earthworks involving the removal or deposition of up to 1,000 m³ of fill from or on to the site.”

•             Delete the final listed permitted activity in Area B (Part A of the Concept Plan provisions), which currently reads “Earthworks involving the removal or deposition of up to 1,000 m³ of fill from or on to the site.”

•             Add a new restricted controlled activity for Areas A and B (Part A of the Concept Plan) being:

“Earthworks greater than 1 metre in depth below ground level within the Limited Earthworks Corridor. For the purposes of this rule ‘ground level’ shall be defined as the reduced levels on the site as recorded on Tse Group Limited site survey plans referenced Project No. 5019-01-102/1, 102/2 and 102/3 dated 29 January 1999 and held by the Council on the Plan Change file. The Limited Earthworks Corridor comprises a corridor of land 5 metres in width centred on the line shown on Diagram G14-15(4). Note: See Part E below regarding service of any application.”

•             Delete the final listed restricted controlled activity in Areas A and B (Part A of the Concept Plan provisions), which currently reads “Earthworks involving the removal or deposition of more than 1,000 m³ of fill from or on to the site.”

•             Amend Rule 12(a) in Part B - Development Controls of the Concept Plan provisions (Exceptions) so that it reads:

“The rules relating to earthworks as set out in Part 4A of the Plan apply to this site, subject to the additional controls applying to the Limited Earthworks Corridor as shown on Diagram G14-15(4).”

•             Delete Rule 15 in Part B - Development Controls of the Concept Plan provisions (Additional Controls for Earthworks).

•             Replace Rule 2 of Part D – Criteria for Assessing Applications for Resource Consent with the following:

“Earthworks greater than 1 metre in depth below ground level within the Limited Earthworks Corridor as a Restricted Controlled Activity:

Discretion is restricted to and applications will be assessed in terms of any effect on the relationship of tangata whenua and their culture and traditions with wahi tapu on the site, especially wahi whenua and wahi pito.

Conditions may be imposed on consents with regard to any means of avoiding remedying or mitigating any adverse effects of the works on the relationship of tangata whenua and their culture and traditions with wahi tapu on the site especially wahi whenua and wahi pito, and may include but will not be limited to the following matters:

•      A requirement to notify the Council and tangata whenua before any earthworks commence;

•      Supervision of works by a Council appointed archaeologist and tangata whenua representative(s);

•      Control of the manner in which earthworks are undertaken (e.g.: hand digging as opposed to mechanical digging);

•      Limits on the duration of the works;

•      Controls aimed at minimising the physical extent of the works; and

•      Controls aimed at locating the works in a way which minimises their effect on wahi tapu.

Note: See Part E below regarding service of any application.”

•             Add a new Part E “Resource Consent Application Notification and Service” to the Concept Plan provisions reading as follows:

“The Council need not serve a copy of any application for earthworks greater than 1 metre in depth below ground level within the Limited Earthworks Corridor on any party other than tangata whenua.

Advisory note: the tangata whenua who have been involved in the identification of the Limited Earthworks Corridor comprise Ngati Paoa, Ngati Maru, Ngati Whanaunga and Ngati Tamatera.”

Amend the final bullet point of paragraph 4.3.2.5 of the District Plan to read:

“Any activity identified as a restricted controlled activity in other parts of the Plan except earthworks greater than 1 metre in depth below ground level within the Limited Earthworks Corridor in the Sylvia Park Business 8 zone (G14-15 Concept Plan).”

D TAIPARI

ATTACHMENT 3

BEFORE THE ENVIRONMENT COURT

Environment Judge RG Whiting            (sitting alone under section 279 of the Act)

IN CHAMBERS at AUCKLAND

CONSENT ORDER

HAVING CONSIDERED the reference and the memorandum submitted on behalf of the parties THIS COURT HEREBY ORDERS BY CONSENT that the appeal be allowed to the extent that the Respondent is directed to modify Implementation Method 2.3.4.19 of the Proposed Waikato Regional Plan to read:

“2.3.4.19 Discharge of Human-based Sewage Effluents

Environment Waikato recognises the cultural offence of discharge of human-based sewage effluent directly into water and will require the investigation and assessment of land-disposal options against other alternatives. If such investigation and assessment establishes that land-disposal is not practicable and/or affordable Environment Waikato will encourage options involving a land-based treatment component. “

This Order resolves the paragraph headed “CHAPTER TWO – MATTERS OF SIGNIFICANCE TO MAORI” of part 4 of RMA 1171/01 by Ngati Maru Iwi Authority in its entirety. The outstanding parts of RMA 1171/01 are reserved for future determination.

This Order finalises the wording of Implementation Method 2.3.4.19.

There is no order for payment of costs.

DATED at AUCKLAND this 27th day of June 2005

R G Whiting

Environment Judge

D TAIPARI

ATTACHMENT 4

BEFORE THE ENVIRONMENT COURT

Environment Court Judge Whiting, sitting alone pursuant to section 279 of the Act

IN CHAMBERS at Auckland on 28 June 2004

CONSENT ORDER

HAVING CONSIDERED the references and the memorandum submitted on behalf of the parties THIS COURT HEREBY ORDERS BY CONSENT that

the above references be allowed to the extent that the respondent is directed to modify:

1.        Module 1 – “Approaches to Resource Management”;

2.         Method 2.3.4.22;

3.         The twenty-second paragraph of the “Explanation and Principal Reasons for Adopting Methods 2.3.4.1 - 2.3.4.25”;

4.         The following forty-one Rules:

in accordance with the annexure to this order.

The Parts of the References Resolved

For the avoidance of doubt, the Court records that this order resolves the following parts of the following six references:

RMA 1126/01 Waikato District Council:

a)         Paragraphs 5.1 to 5.3; and

b)         Paragraph 6.78(c)(iii) except insofar as it relates to the seven rules listed below as being reserved; and

c)         Those parts of paragraphs 6.76 and 6.77 that relate to the relief sought in 6.78(c)(iii).

RMA 1137/01 Transit New Zealand : Those parts of the following that relate to the way in which the proposed Waikato Regional Plan addresses the relationship of Maori and their culture and traditions with their waahi tapu and other taonga:

a)         Paragraphs 5.4.14 and 5.4.15;

b)         Paragraph 6.2.3; and

c)         Paragraph 6.2.4.

RMA 1165/01 Carter Holt Harvey Limited:

a) Part 16, appealing Section 5.1.5 except in so far as it appeals condition (h) (suspended solids).

RMA 1166/01 Fletcher Challenge Forests Limited:

a)         That section of the reference headed “ Submission re (LS - 93 and 1-101/99) ” inclusive of the “ Relief Sought ”.

RMA 1168/01 Waihi Gold Company Limited:

a)         Paragraph 4.2 in its entirety.

RMA 1171/01 Ngati Maru Iwi Authority : All those parts of the reference entitled:

a)         “ Water Module ” except that part which appeals Rules 3.5.7.4 to 3.5.7.6 (on-site sewage discharges);

b)         “ River and Lake Bed Module ” except that part which appeals Rules 4.2.8.1 and 4.2.8.2 (bridges) and Rules 4.2.9.1 to 4.2.9.3 (culverts); and

c)         “ Land and Soil Module”.

Matters Reserved for Future Determination

The remaining parts of the above references which do not relate to the provisions of the proposed plan that are the subject of this order are reserved for future determination.

The wording of Rule 4.3.7.3 is determined in its entirety. The wording of the other forty rules listed in paragraph 4 above is determined to the following extent:

a)         Insofar as the Rule addresses the relationship of tangata whenua and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga; and

b)         As to the status of the activity;

and is otherwise reserved.

For the avoidance of doubt, it is recorded that the following five Rules are not the subject of this order notwithstanding that they contain provisions relating to the relationship of tangata whenua and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga, and their wording is reserved for future determination:

There is no order for payment of costs.

R Gordon Whiting

Environment Judge

ANNEXURE TO CONSENT ORDER

1.        Insert the following Section 1.6:

1.6 Responsibilities of Resource Users Under The RMA

Section 1.2 of the Plan sets out Council’s enabling approach to resource management. A key element of this approach is a substantial increase in the number of activities that are to be permitted without the need for a resource consent.

By enabling previously restricted activities, this plan places a greater emphasis on the duty of resource users to ensure that they comply with the rules in the Plan. It is Environment Waikato’s expectation that persons undertaking any activity that is permitted or otherwise restricted by any of the rules in this Plan will comply fully with conditions or restrictions imposed. In particular:

a)   It is the responsibility of any person undertaking a permitted activity or any activity that is otherwise restricted to ensure that they are aware of the conditions or requirements of the rules and carry out those activities in accordance with them.

b)   Persons undertaking activities should, in the event of any uncertainty regarding the status of the activity or the meaning of conditions, contact Environment Waikato staff for advice. On application under s139 of the Resource Management Act, 1991, Council may issue certificates of compliance for permitted activities.

c)   Where an activity may affect a waahi tapu site, local hapu or iwi should be contacted. Environment Waikato can provide contact details. Territorial authorities may also be a source of advice. If a waahi tapu site is identified by tangata whenua to Environment Waikato, permitted activity conditions require that the activity ceases. Environment Waikato will follow the process as described in Method 2.3.4.22 and will advise in writing the basis on which the activity can be recommenced.

d)   Persons undertaking any activity under this Plan should also check the requirements of the relevant district plan.

2.         Delete the existing Method 2.3.4.22 and substitute the following:

Method 2.3.4.22 Process To Be Followed Where Waahi Tapu Sites Are Identified During Exercise of Permitted Activities

Where a waahi tapu site is identified during a permitted activity or resource consent Environment Waikato will, without undue delay, consider the following prior to granting approval for the activity to continue:

a.   Ascertain tangata whenua interests and values (including metaphysical values), after appropriate consultation with tangata whenua who are kaitiaki for that site

b.   the resource user’s interests

c.   any archaeological, historical or scientific evidence

d.   the purpose and principles of the RMA, the Hauraki Gulf Marine Park Act, the Pouakani Claims Settlement Act 2000 or other relevant legislation

3.         Delete the 22^nd paragraph under the heading: Explanation and Principal Reasons for Adopting Methods 2.3.4.1 - 2.3.4.25 and insert the following:

Method 2.3.4.22 clarifies the process that will be followed when Environment Waikato is made aware that an activity is adversely affecting previously unidentified or unknown waahi tapu sites. The process provides for tangata whenua, the Historic Places Trust and the landowner to be consulted before the activity is able to recommence. Wherever possible this process will work in conjunction with similar processes that exist under the Historic Places Act. Once Environment Waikato has completed this process, Environment Waikato will advise the resource user in writing setting out the basis on which works may recommence.

4.     Insert in Rule 3.5.10.1 the following conditions:

g)   The activity shall not disturb any archaeological site or waahi tapu as identified at the date of notification of this Plan, in any district plan, in the NZ Archaeological Association’s Site Recording Scheme, or by the Historic Places Trust except where Historic Places Trust approval has been obtained

h)   In the event of any waahi tapu that is not subject to condition g) being identified by the Waikato Regional Council to the person undertaking the activity, the activity shall cease insofar as it may affect the waahi tapu. The activity shall not be recommenced without the approval of the Waikato Regional Council.

And insert the following:

Advisory Note:

•     Where a waahi tapu site is identified whilst undertaking the activity, the process that Environment Waikato will follow in order to implement condition h) is set out in Section 2.3.4.22 of this Plan.

5.         In Rule 3.6.4.4 delete the existing condition h) and substitute the following:

h) In the event of any waahi tapu that is not subject to condition g) being identified by the Waikato Regional Council to the person undertaking the activity, the activity shall cease insofar as it may affect the waahi tapu. The activity shall not be recommenced without the approval of the Waikato Regional Council.

And insert the following under the heading Advisory Notes:

•     Where a waahi tapu site is identified whilst undertaking the activity, the process that Environment Waikato will follow in order to implement condition h) is set out in Section 2.3.4.22 of this Plan.

In Rule 3.6.4.5 delete the existing condition j) and substitute the following:

•     Where a waahi tapu site is identified whilst undertaking the activity, the process that Environment Waikato will follow in order to implement condition e) is set out in Section 2.3.4.22 of this Plan.

10.       In Rule 3.6.4.9 delete the existing standard and term e) and substitute the following:

e)    In the event of any waahi tapu that is not subject to standard and term d) being identified by the Waikato Regional Council to the person undertaking the activity, the activity shall cease insofar as it may affect the waahi tapu. The activity shall not be recommenced without the approval of the Waikato Regional Council.

Delete the existing paragraph (iv) in the matters over which the Council reserves control, insert the following three paragraphs and consequentially renumber the remaining paragraphs (v) to (x) as (vii) to (xii):

iv)   Effects on any waahi tapu or other taonga from the activity.

v)   Effects on the relationship of tangata whenua and their culture and traditions with the site and any waahi tapu or other taonga affected by the activity.

vi)   Effects on the ability of tangata whenua to exercise their kaitiaki role in respect of any waahi tapu or other taonga affected by the activity.

Insert the following under the heading Advisory Notes.

•     Where a waahi tapu site is identified whilst undertaking the activity, the process that Environment Waikato will follow in order to implement condition e) is set out in Section 2.3.4.22 of this Plan.

•     The imposition of consent conditions under matters iv), v) and vi) shall take into account the policy direction provided in Policies 1 and 2 in Sections 2.3.3 in addition to specific policies in this chapter of the Plan.

11.       In Rule 3.6.4.10 delete the existing paragraph (xiv) in the matters over which the Council reserves control, insert the following three paragraphs and consequentially renumber the existing paragraphs (xv) and (xvi) as (xvii) and (xviii):

xiv.  Effects on any waahi tapu or other taonga from the activity.

xv.  Effects on the relationship of tangata whenua and their culture and traditions with the site and any waahi tapu or other taonga affected by the activity.

xvi. Effects on the ability of tangata whenua to exercise their kaitiaki role in respect of any waahi tapu or other taonga affected by the activity.

Insert the following under the heading Advisory Notes.

•     The imposition of consent conditions under matters xiv, xv and xvi shall take into account the policy direction provided in Policies 1 and 2 in Sections 2.3.3 in addition to specific policies in this chapter of the Plan.

In Rule 3.6.4.11 delete the existing standard and term g) and substitute the following:

D TAIPARI

ATTACHMENT 5

As appeals against plans and policy statements were known prior to 1 August 2003.

BEFORE THE ENVIRONMENT COURT

Environment Judge R G Whiting (sitting alone under section 279 of the Act)

In Chambers at Auckland

CONSENT ORDER

HAVING CONSIDERED the references and the memorandum submitted on behalf of the parties and having confirmed that all persons who had given notice of an interest in these references under sections 271A or 274 of the Resource Management Act² have signed the memorandum setting out the relief sought or have advised that Court that they do not have an interest in those parts of the references hereby resolved THIS COURT HEREBY ORDERS, by consent, that the appeals be allowed to the extent that the respondent is directed to modify its proposed Waikato Regional Plan as follows:

1.        Amend the definitions of the following terms in the Glossary of Terms to read as set out in Annexure “1” to this Order:

•     Activity area

²             References to section 271A & 274 also relate to the Act prior to the 2003 Resource Management Amendment Act.

•     High risk erosion area

•      Planted production forest

•     Soil disturbance

•     Vegetation clearance.

2.        Insert the definitions of the following terms in the Glossary of Terms of the proposed Waikato Regional Plan as set out in Annexure “1” to this Order:

•     Soil cultivation

•     Solid measure.

3.        Amend Rules 5.1.4.11 to 5.1.4.17 and Section 5.1.5 to read as set out in Annexure “2” to this Order.

THIS ORDER determines all parts of the above six references except the following parts, which are on hold pending the notification of the water allocation variation to the proposed Waikato Regional Plan:

a)     RMA 1121/01 New Zealand Vegetable and Potato Growers' Federation Incorporated Parts 4.1, 4.2, 4.3 and 4.4;

b)      RMA 1133/01 Federated Farmers of New Zealand Incorporated Parts 6 and 7;

c)    RMA 1165/01 Carter Holt Harvey Limited / Matariki Forests (as successor to Carter Holt Harvey Limited) paragraph 22; and

d)    RMA 1196/01 Environmental Futures Incorporated paragraph 12.

5.1.4.16 Controlled Activity Rule – Vegetation Clearance in Catchments Draining into Coromandel Peninsula Estuaries

Vegetation Clearance exceeding 50 hectares per annum on slopes greater than 20 degrees within the catchments of the Coromandel, Whangapoua, Whitianga, Tairua, Wharekawa, Whangamata, Manaia, Colville Bay, Waikawau, Purangi, and Otahu estuaries and any associated deposition of slash into or onto the beds of rivers and any subsequent discharge of contaminants into water or air is a controlled activity (requiring resource consent) subject to the standards and terms in Section 5.1.5.

Waikato Regional Council reserves control over the matters that are specified in Section 5.1.6.

Notification:

(a)   Notice of applications for vegetation clearance of planted production forest will be served only on hapu and iwi of the area where the activity is to occur.

(b)   Notice of applications for vegetation clearance other than clearance of planted production forest will be served on hapu and iwi of the area where the activity is to occur and on all adversely affected persons.

Limited notification to such hapu and iwi is to enable consideration as to whether the activity adversely affects their relationship as tangata whenua with their ancestral sites, waahi tapu or other taonga. Environment Waikato can provide contact details of hapu or iwi for the relevant area.

Advisory Notes:

a)      Information requirements to enable the assessment of any application under this rule are set out in Section 8.1.4.1 of this Plan. In addition, assessment shall also take into account the matters identified in Policy 2 of Section 5.1.3.

b)      For vegetation clearance by way of burning also refer to Section 6.1.12 of this Plan.

c)      For the vegetation clearance by way of spraying agrichemicals also refer to Section 6.2.4 of this Plan.

D TAIPARI

ATTACHMENT 6

RECOMMENDATIONS AND DECISIONS OF JOINT HEARING COMMITTEE PURSUANT TO SECTIONS 168A(3) AND 105 OF THE ACT

HEARING at Thames on 2 and 3 September 2002 and 15 November 2002 by JOINT HEARING COMMITTEE established pursuant to section 102 of the Act comprising:

Simon Berry (Chair)

Graham Tuohey

Alan Watson

1.        INTRODUCTION AND PRELIMINARY MATTERS

Procedural background

1.1         On 21 February 2002, Transit New Zealand (“Transit”), by its agents Beca Carter Hollings and Ferner Limited (“Beca”), lodged notices of requirements (NOR) with the Thames-Coromandel District Council TCDC and Hauraki District Council (“HDC”) and resource consent applications with the Waikato Regional Council (Environment

Waikato) (“EW”) for authorisations required under the Resource Management Act 1991 (“RMA”) in connection with the Kopu Bridge Replacement Project (“the Project”).

1.2        Transit gave notice to TCDC of a requirement for an alteration to an existing designation under section 181 of the RMA and for a new designation under section 168 of the RMA. The NOR was stated to be for:

“(a) An alteration of a section of the existing State highway 25 designation between Orongo Road and State highway 26 (Ngati Maru Highway), Kopu, including that section over the Waihou River.

(b)       A new designation as road to provide access to the local road network from the altered highway.

This Notice of Requirement more particularly relates to that section of the realignment of State highways 25 and 26 within the Thames Coromandel District, being between the centre of the Waihou River and State Highway 26 (Ngati Maru Highway). This is identified in the designation plans for the project accompanying the Notices of Requirement (Part I of the Report).

The alteration to the existing State highway 6 and 26 designations and the new designation are referred to in this Notice of Requirement as “the designation” (except where otherwise specified). The proposed work will be known as the “Kopu Bridge Replacement Project”.

The purpose of the alteration to designation is for the construction of a road to be operated as a State highway.

The purpose of the new designation is to provide access to the local road network from the altered highway. ”

1.3        Transit gave notice to the HDC of a requirement for an alteration to an existing designation under section 181 of the RMA. The NOR requirement was stated to be for:

“(a) An alteration of a section of the existing State highway 25 designation between Orongo Road and State highway 26, Kopu, including that section over the Waihou River.

The Notice of Requirement more particularly relates to that section of the realignment of State highway 25 located within Hauraki District, being between the centre point of the Waihou River and Orongo Road. This is identified in the designation plans for the project accompanying the Notices of Requirement (Part I of the Report).

The alteration to the existing State highway 25 designation is referred to in this Notice of Requirement as “the designation” (except where otherwise specified). The proposed works will be known as the “Kopu Bridge Replacement Project”.

The purpose of the alteration to designation is for the construction of a road to be operated as a State highway.”

1.4        Transit has also applied to EW for a number of resource consents required in connection with the Project. The applications are listed below, with their activity status under the Waikato Transitional Regional Plan and the Proposed Regional Plan respectively shown in brackets.

1.5         The designation requirements and resource consent applications were supported by a single document, prepared by Beca, entitled “State Highway 25 Kopu Bridge Replacement - Scheme Assessment Report and Assessment of Environmental Effects” dated February 2002. The objectives of the project were set out in the NORs (see Section 2 of this decision report).

Amendment to NORs

1.6         During the hearing Transit formally requested an amendment to the width of the designation over the Waihou River by increasing the width of the designation from 10.4 to 15 metres. This amendment is reflected in the two plans attached to this decision report (being Sheets 2 and 3 of the Drawing No. 4100689 - C -101 Rev OA dated 11 November 2002).

Submissions

1.7        The TCDC and HDC NORs and the resource consent applications to EW were publicly notified on 30 April 2002 with submissions closing on 28 May 2002 (TCDC) and 30 May 2002 (HDC).

1.8        The TCDC NOR was the subject of 32 submissions (two of which were lodged late). These are summarised in the hearing report prepared in relation to the TCDC requirement by Mr Bruce Baker. Thirteen of these submissions supported or conditionally supported the project. Eighteen submissions opposed the project. Of those, the majority were concerned about the possible effects of the project on flooding in the Kirikiri Stream catchment.

1.9         The HDC NOR was the subject of 8 submissions. These are summarised in the report prepared in relation to the HDC requirement by Ms Gillian Cockerell of Meritec. Six of these were supportive but sought that conditions be imposed. The other two (both lodged by Ngati Maru Runanga) opposed the project on the basis of inadequate consultation and as being contrary to the RMA.

1.10      Ten submissions were lodged with EW in relation to the resource consent applications (one late). These submissions are addressed in the hearing report prepared by Ms Warnock. Nine of the submissions supported or conditionally supported the project.

Conditions:

General Conditions

1)    The bridge authorised by this consent shall be constructed and maintained in general accordance with:

a)   The application for this resource consent; and

b)   The document titled “Report, State Highway 25 Kopu Bridge replacement investigation: Scheme Assessment Report and Assessment of Environmental Effects” prepared for Transit New Zealand by Beca Carter Hollings and Ferner Limited, February 2002;

c)   The letter “Kopu Bridge Replacement Further Information Requests” from Beca Carter Hollings and Ferner Limited, dated 12 April 2002; and

d)   The letter “Kopu Bridge Replacement” from Beca Carter Hollings and Ferner Limited, dated 20 April 2002”,

subject to the conditions of this resource consent.

2)    The consent holder shall ensure contractors are made aware of the conditions of this resource consent and ensure compliance with those conditions.

3)    The consent holder shall appoint a representative prior to the exercise of this resource consent that shall be the Waikato Regional Council’s principal contact person in regard to matters relating to this resource consent, for the duration of the construction works. The consent holder shall inform the Waikato Regional Council of the representative’s name and how they can be contacted at least two weeks before the commencement of activities authorised by this resource consent. Should that person change during the term of the construction works, the consent holder shall immediately inform the Waikato Regional Council and shall also give written notice to the Waikato Regional Council of the new representative’s name and how they can be contacted.

4)    The consent holder shall inform the Waikato Regional Council in writing, at least two weeks prior to construction works commencing, of the start date of the works authorised by this resource consent.

5)    The consent holder shall pay to the Waikato Regional Council any administrative charge fixed in accordance with section 36 of the Resource Management Act 1991, or any charge prescribed in accordance with regulations made under section 360 of the Resource Management Act.

Investigative Drilling

6)    Prior to the detailed design process the investigative drilling works shall be carried out under the supervision of a suitably qualified and experienced geotechnical engineer.

7)    The consent holder shall inform the Waikato Regional Council in writing, at least two weeks prior to the commencement of investigative drilling, of the start date of these investigations.

8)   When analysis of the bore samples is complete, the consent holder shall return the cores to the Waihou River in the vicinity of the drilling site.

The consent holder shall advise the Marutuahu Forum of the outcomes of the geotechnical drilling investigations and their implications for the detailed design process for the Kopu Bridge replacement.

River Works and Navigation Safety

9)    Prior to the commencement of any investigative drilling or construction works in the River, the consent holder shall develop a River Works and Navigation Management Plan. This plan shall be approved by the Programme Manager of the Resource Use Group of the Waikato Regional Council, prior to any works authorised by this consent commencing. Any changes to the plan shall not be implemented until they are approved by a Programme Manager of the Resource Use Group of the Waikato Regional Council.

The River Works and Navigation Management Plan shall address, but may not be limited to, the following:

a)    Navigational access through the existing Kopu Bridge;

b)    Navigational safety in the vicinity of bridge construction works; and

c)    Signage for river traffic in the vicinity of construction works.

Protection of tangata whenua interests

10) The consent holder shall, to the satisfaction of the Chief Executive of the Waikato Regional Council (or delegated officer), minimise the disturbance of sites of spiritual or cultural significance to the tangata whenua.

11) The consent holder shall advise the Environmental Manager of Ngati Maru Runanga and Ngati Whaunanga Incorporated Society in writing at least 10 working days prior to any work commencing, of the start date of the works authorised by this resource consent. Ngati Maru Runanga and Ngati Whaunanga Incorporated Society shall be advised in writing so that it can undertake inspections and appropriate rites prior to commencement of investigations.

12) In the event that any archaeological sites, remains, artefacts, taonga or koiwi are unearthed, dislodged, uncovered or otherwise found or discovered during these investigations (“the discovery”), the Consent Holder shall advise the Environmental

Manager of Ngati Maru Runanga and Ngati Whanaunga Incorporated Society in writing within one day (“Notice of the Discovery”).

13) In the event of any discovery, the works shall cease immediately and the Consent Holder shall notify Ngati Maru Runanga, Ngati Whanaunga Incorporated Society and the Waikato Regional Council within one working day. Works may recommence when advised to do so by the Waikato Regional Council. Such advice shall be given after the Waikato Regional Council has considered:

a)    Interests and values of Marutuahu iwi;

b)    The consent holder’s interests;

c)    The interests of the public generally; and

d)    Any archaeological or scientific evidence.

The NZ Police, Coroner, and Historic Places Trust shall also be contacted as appropriate, and the work shall not recommence in the affected area until any necessary statutory authorisations or consents have been obtained.

14) Notwithstanding section 125 of the RMA 1991, investigative drilling activities shall be exercised as soon as practicable in order to minimise the duration of the adverse effects on the significant cultural and spiritual relationship between Ngati Maru, Ngati Whaunanga, Ngati Tamatera and Ngati Paoa and the Waihou River.

Tangata Whenua Mitigation Plan

15) Prior to the completion of the final design of the Project and/or its application to Transfund for funding, the Consent Holder shall provide for the approval of the Chief Executive of Environment Waikato with a proposed Tangata Whenua Mitigation Plan.

The Tangata Whenua Mitigation Plan shall include the following matters:

a)   A summary of the consultation undertaken with Ngāti Maru Runanga and any agreements reached between the parties.

b)    Identification of tangible measures to mitigate any significant adverse environmental effects identified during consultation for the new bridge on the cultural and traditional relationship of Ngāti Maru, Ngāti Whanaunga, Ngāti Tamatera and Ngāti Pāoa with their ancestral waters, wāhi tapu and taonga in and of the Waihou River.

c)    Identification of tangible measures to involve Ngāti Maru, Ngāti Whanaunga, Ngāti Tamatera and Ngāti Pāoa in the exercise of guardianship (kaitiakitanga) over the Waihou River.

16) The Tangata Whenua Mitigation Plan to be approved by Environment Waikato shall include the measures set out in condition 15 above and, in any event, such measures shall:

a)    Recognise and provide for the matter of national importance set out in section 6(e) of the RMA.

b)    Have particular regard for kaitiakitanga.

c)    Take into account the principles of the Treaty of Waitangi.

17) Construction activities for the new bridge and associated works shall not commence without the prior written approval of the Tangata Whenua Mitigation Plan by the Chief Executive of Environment Waikato (or delegated officer).

Construction Issues

18) The construction works shall be carried out under the supervision of a suitably qualified and experienced geotechnical engineer.

19) There shall be no unnecessary disturbance of the riverbed associated with the works subject to this consent.

20)  There shall be no conspicuous discharge of contaminants (eg. oil, diesel, petrol, effluent) to the Waihou River as a result of the exercise of this resource consent.

21)  Prior to entering the land occupied by the Waikato Regional Council, or any other affected landowners and lessees, the consent holder shall consult the occupier to discuss arrangements regarding access, fencing, stock management, site restoration, and any other related matters. There shall be no obstruction of access to the Kopu South floodgate as a result of the exercise of this consent.

22)  Coffer dams constructed in association with the exercise of this resource consent shall be temporary in nature and shall be constructed of material suitable for the intended use. On completion of the works, the consent holder shall ensure that all such structures are removed from the river bed. Construction and removal of these structures shall be undertaken without the requirement for machinery to enter the river bed and shall be undertaken in a manner so as to minimise any increase in sediment levels that result from these works.

23)  The piers of the bridge shall be constructed in the same alignment as the existing “Kopu Bridge” across the Waihou River. The piers shall be designed and constructed such that the effects on the waterway are no more than minor.

Use of machinery

24) All machinery used on the site for the construction and maintenance activities authorised by this consent shall be operated in a manner that ensures that spillages of fuel, oil and similar contaminants are minimised, particularly during refuelling and machinery servicing and maintenance. Refuelling and lubrication activities shall be carried out away from any waterbody such that any spillage can be contained so it does not enter any waterbody. Site fuel storage tanks shall be appropriately bunded to ensure containment of any leakage that may occur.

25) The consent holder shall ensure that machinery is operated in a manner that minimises vegetation disturbance outside of the immediate work area.

Bank erosion protection

26) The consent holder shall ensure that where sections of the river bank become exposed by construction activities, appropriate erosion protection measures (for example erosion protection cloth), that ensure the stability of the bank and that are visually in keeping with the river bank environment, shall be installed as soon as practicable. Such erosion protection measures shall be inspected on a regular basis (at least monthly during construction and six monthly following construction) during the construction period, and for two years following completion of construction.

D TAIPARI

ATTACHMENT 7

BEFORE THE ENVIRONMENT COURT

Environment Judge R J Bollard (presiding)

Environment Commissioner F Easdale

HEARING at THAMES on 21, 22 & 23 March 2000

COUNSEL

L J Newhook and R A Makgill for appellant

K G Parker for respondent

P F Majurey for Ngati Maru Iwi Authority

DECISION

Introduction

[1] The appellant, In Tandem Marine Enhancement Limited (“In Tandem” or “the company”), appeals from a decision of the Waikato Regional Council (“Environment Waikato” or “the Council”) under which the Council via its hearing committee refused an application by In Tandem to place up to three ships on the seabed of Mercury Bay adjacent to the Te Whanganui-A-Hei Marine Reserve as underwater diving attractions coupled with marine life enhancement over time in and about the sunken vessels. To enable the proposal to be completed successfully the

(a)           to provide for—

(i)           the historic, traditional, cultural, and spiritual relationship of the tangata whenua of the Gulf with the Gulf and its islands; and

(ii)          the social, economic, recreational, and cultural well-being of people and communities:

(b)           to use the resources of the Gulf by the people and communities of the Gulf and New Zealand for economic activities and recreation:

(c)           to maintain the soil, air, water, and ecosystems of the Gulf.

8. Management of Hauraki Gulf—

To recognise the national significance of the Hauraki Gulf, its islands, and catchments, the objectives of the management of the Hauraki Gulf, its islands, and catchments are —

(a)           the protection, and where appropriate, the enhancement of the life-supporting capacity of the environment of the Hauraki Gulf, its islands, and catchments:

(b)           the protection and, where appropriate, the enhancement of the natural, historic, and physical resources of the Hauraki Gulf its islands, and catchments:

(c)           the protection and, where appropriate, the enhancement of those natural, historic, and physical resources (including kaimoana) of the Hauraki Gulf, its islands, and catchments with which tangata whenua have an historic, traditional, cultural and spiritual relationship:

(d)           the protection of the cultural and historic associations of people and communities in and around the Hauraki Gulf with its natural, historic, and physical resources:

(e)           the maintenance and, where appropriate, the enhancement of the contribution of the natural, historic, and physical resources of the Hauraki Gulf, its islands, and catchments to the social and economic well-being of the people and communities of the Hauraki Gulf and New Zealand:

(f)            the maintenance and, where appropriate, the enhancement of the natural, historic, and physical resources of the Hauraki Gulf, its islands, and catchments, which contribute to the recreation and enjoyment of the Hauraki Gulf for the people and communities of the Hauraki Gulf and New Zealand.

Evaluation

[24] Much play was made in the cases for Environment Waikato and Ngati Maru over In Tandem’s desire to have exclusive occupation rights in relation to the water

column. It was claimed that such a situation would, by degree, mean assigning too great a body of water for the proposed activity, to the detriment of other users of those coastal waters that surround and include the water column. For Ngati Maru it was contended that the interests of members of Ngati Maru Iwi as tangata whenua would be impacted upon, with an unacceptable diminution of freedom of use of the coastal area for customary fishing, coupled with infringement or undermining of the role of kaitiakitanga (as defined in the RMA) in reference to ancestral waters that are highly treasured as such.

[25]      No appearance was made on behalf of Ngati Hei, a local iwi again representative of the tangata whenua. We gathered that In Tandem had reached consensus or come to an accommodation with Ngati Hei. Be that as it may, we are satisfied that the tangata whenua of the area include members of Ngati Maru, and that the position taken by Ngati Maru in opposing the proposal was genuine and sincere.

[26]      For the Council, Mr Parker alluded to marine farming cases where the general public may still gain access for fishing and other purposes without interfering with the consent holder’s interest in relation to the marine farming activity itself. He contended that the present case involves an important departure in terms of general sharing of the use of, and access to, the coastal marine area - a departure highlighted, not only by marine fanning examples, but by other cases involving the sinking of vessels. He pointed, in particular, to the recent decision of this Court in Te Komiti Taiao O Ngati Awa and Anor v Bay of Plenty Regional Council (Decision A138/99) regarding the sinking of the comparatively small vessel “Taioma” south-east of Motiti Island in the Bay of Plenty. In that case the applicant was a charitable body that sought consent to sink the vessel as a focal point of underwater interest. No question of an exclusive zone around the vessel was raised. Furthermore, the appellant body representative of tangata whenua in that case reached agreement with the applicant over a proposed consent order, whereas in the present instance Ngati Maru remain firmly opposed.

[27]      We were impressed with evidence called on In Tandem’s behalf from Mr J Straith, President of the Artificial Reef Society of British Columbia in Canada. It was evident that he had considerable experience in organising and arranging the placement and operation of artificial reefs through the sinking of disused vessels in Canadian coastal waters. He summarised the Canadian approach to artificial reef creation in these words:

support and encouragement of economic and recreational opportunities, as well as possible forms of conditions tendered by counsel should consent be granted, we consider that this location, falling as it does within the area specially recognised and provided for under the Hauraki Gulf Marine Park Act 2000 and opposed by Ngati Maru, ought not to be endorsed for the proposed activity.

[32]      Consent is sought to establish control over the water column which, as a matter of degree, we adjudge to be of significance. Such consent is sought within coastal waters where freedom of passage and enjoyment by the public at large are commensurately important, particularly during holiday periods of the year when resorts such as Whitianga and Hahei are heavily patronised by locals and visitors alike. For those members of the public who choose to pursue diving as a means of recreation, plentiful opportunity already exists within the natural coastal environment of the area, recognised and supported by existing diving operators who offer excursions.

[33]      As regards Ngati Manx’s opposition to the proposal, that is not a factor that on its own account is to be interpreted as effectively giving rise to a right of veto. On that score we need do no more than mention the well-known authority of Minhinnick [1998] NZRMA 113; 3 ELRNZ 511 (C A). But while we by no means approach our assessment of Ngati Maru’s case on such a basis, the concerns advanced from that party’s perspective gather strength and significance in our view in the light of the legislative and other sources earlier alluded to bearing on the relationship of Maori with the coastal waters concerned, and having regard to the extent of the water column at issue within those waters.

[34]      Understandably, In Tandem seeks consent for the maximum term allowable (35 years). Yet, the sinking, once undertaken, would not be reversible without major effort and expense. In other words, the “reef mass” once created would realistically have to remain in situ for a century or more. On the one hand, the marine environment surrounding the reef may in itself be beneficial for decades to come. But the presence of the reef at the selected location would have to be accepted, whatever consequential effects might flow from that in relation to future coastal water activities. Put simply, sustainability in the long term is an issue of concern, bearing in mind that even now this is not a “low profile” coastal marine area, given the competing interests and resource management perspectives evidenced by this appeal.

[35]      Such a commercially-based project, while carrying laudable attributes, obviously requires very careful forward planning, involving due liaison with regulatory bodies, public interest groups and, of course, the tangata whenua. In Tandem, in mounting its appeal, made a concerted effort in this regard, but, despite that, we find ourselves in agreement with the concerns raised for the opposing parties centred on In Tandem’s need to control the 6.6 ha water column in order to establish and promote its intended operation safely and successfully.

[36]      We do not overlook the difficulties inherent in marrying the timing of availability of a suitable vessel with steps involved in pursuing RMA processes along lines above - particularly if a short-lived opportunity should suddenly arise to obtain a vessel of special significance or background, whether on account of its name, its sailing history, or other circumstances surrounding it. Even so, those difficulties cannot be permitted to outweigh other considerations in reference to the RMA’s purpose and intent under Part II of the Act and relevant planning instruments.

Determination

[37]      Having considered those matters to which regard must be had under s.104(1) of the RMA (affording Part II due primacy), we conclude that the appeal should be dismissed. On the issue of costs, we observe that the appeal was seriously promoted and was of a nature that warranted further hearing at appeal level. Tentatively, therefore, it may well be that costs should lie where they fall. If, notwithstanding, any party seeks costs, a memorandum may be filed and served within 10 working days, the party or parties from whom costs are sought having a similar period in which to respond.

DATED at AUCKLAND this 10th day of May 2000.

For the Court,

R J Bollard

Environment Judge

D TAIPARI

ATTACHMENT 8

CERTIFICATE OF TITLE UNDER LAND TRANSFER ACT 1952

This Certificate dated the 20th day of October Two Thousand under the seal of the Registrar-General of Land, New Zealand, for the Land Registration District of South Auckland.

WITNESSETH that TOTARA PALMS LIMITED

Is sealed of an estate in fee simple (subject to such reservations, instructions, encumbrances and interests, as are notified by memorial endorsed thereon) in the land hereinafter described @@@ on the plan hereon, by the several @@@ a little more or less, that is @@@. All that parcel of land containing 2961 square metres, more or less being LOT 32 DEPOSITED PLAN 989145

Registrar-General of Land

B657440. Transfer to Ngati Maru Ki Hauraki Incorporated and Thames-Coromandel District Council – @@@ at @@@

for RGL

JOINT OWNERSHIP OF LOT 32 TOTARA PALMS SUBDIVISION

THIS DEED made the 18th day of April 2001

BETWEEN NGATI MARU KI HAURAKI INCORPORATED (hereinafter called “NGATI MARU”) of the one part

AND THAMES-COROMANDEL DISTRICT COUNCIL (hereinafter called “TCDC”) of the other part

WHEREAS

The parties agree that Ngati Maru will not be liable for any rates or outgoings as a result of being joint owner of that land contained in Certificate of Title 70C/840 (South Auckland land registry) being Lot 32 on DP S.89145 of the Totara Palms subdivision, Totara (“the Land”). TCDC shall indemnify and keep indemnified Ngati Maru from and against all claims for rates and outgoings whatsoever as a result of being a joint owner of the Land.

IN WITNESS WHEREOF these presents have been executed the day and year hereinbefore written.

THE COMMON SEAL of NGATI MARU KI HAURAKI INCORPORATED

was hereunto affised-Mbthe Dresence of:

THE COMMON SEAL of THE THAMES-COROMANDEL DISTRICT COUNCIL;

was hereunto affixed in the presence of:

D TAIPARI ATTACHMENT 9

BEFORE THE ENVIRONMENT COURT

Environment Judge R J Bollard sitting alone pursuant to s279 of the Act

IN CHAMBERS at Auckland

CONSENT ORDER

HAVING CONSIDERED the appellant’s notice of appeal, the memoranda of the parties, AND UPON HEARING from the parties either in person or through counsel THIS COURT HEREBY ORDERS BY CONSENT that the following condition he included in resource consent 20010120.

“C. That prior to the issuing of any section 224(c) certificate for the subdivision, the consent holder shall forward to the Council (Manager, Regulatory Services) a report, prepared jointly between Ngati Maru and the consent Holder which is signed by the consent holder (or their agent) and the Environmental Manager - Te Runanga O Ngati Maru Inc, that details the consultation (including any outcomes) with Ngati Maru”.

DATED this 21st day of May, 2003.

R J Bollard
Environment Judge

D TAIPARI
ATTACHMENT 10

IN THE ENVIRONMENT COURT

CONSENT ORDER

His Honour Judge Bollard sitting alone pursuant to Section 279 of the Act IN CHAMBERS at Auckland on the 14^th day of March 2001

UPON READING the notice of appeal filed herein and the memorandum signed by the parties, THIS COURT HEREBY ORDERS BY CONSENT that the appeal be allowed in the manner and to the extent that the resource consent granted by the respondent be amended by:

1.   Inserting the words “...after it has consulted with the Environmental Manager of Ngati Maru...” into the condition (3)(e) as follows:

“3. That except for a maximum house site area of 400m² and reasonable provision for vehicular access thereto, the area of native bush identified for protection within proposed Lots 1-5 be defined on the survey plan of subdivision, the boundaries of such areas to be to the satisfaction of the Manager, Environmental Planning.

That a memorandum of encumbrance be registered against the title of Lots 1-5 to the effect that the owner(s) of Lots 1-5 shall on a continuing basis take all

reasonable steps to preserve and protect the native bush growing in the area referred in the forgoing condition and in particular the respective landowners shall:

...(e) in the event of loss or destruction for any reason of the existing native bush or part of it, where Council is satisfied that the loss or destruction is due to a breach of clauses of this condition, replant the area lost or destroyed with such native trees, shrubs or plants as the Council, after it has consulted with the Environmental Manager of Ngati Maru , may prescribe.”

2.          There is no order as to costs.

DATED at AUCKLAND this 14th day of March 2001.

R J Bollard

Environment Judge

D TAIPARI

ATTACHMENT 11

BEFORE THE ENVIRONMENT COURT

Environment Judge R J Bollard sitting alone pursuant to section 279 of the Act

IN CHAMBERS at Auckland

CONSENT ORDER

HAVING CONSIDERED the appellant’s notice of appeal, and the memorandum submitted on behalf of the parties, THIS COURT ORDERS BY CONSENT that:

1.         The appeal is allowed by granting subdivision consent to create an additional lot on part Allotment 667-668 and part allotment 670-671 Pukerahu Block, being land located at 704 Mount Pleasant Road, Thames (“the Property”) (“Subdivision Consent”) and land use consent to construct 12 residential dwellings on the Property “Land Use Consent”), subject to the amended conditions set out in the Schedule to this Order.

2.         There is no order as to costs.

DATED this 20th day of January, 2005.

R J Bollard

Environment Judge

SCHEDULE

Subdivision/Land use Consent - 704 Mount Pleasant Road

1.         Amend condition 7 of the Subdivision Consent and condition 2 of the Land Use Consent by making the changes highlighted below:

“Should any archaeological sites, remains, artefacts, taonga or koiwi be unearthed, dislodged, uncovered or otherwise found or discovered on the site, work shall cease immediately, the area shall be secured and any uncovered material shall remain untouched. The consent holder shall advise representatives of the local iwi Ngati Maru, the New Zealand Historic Places Trust and the Thames Coromandel District Council within 48 hours. Any artefacts will be removed in accordance with appropriate iwi Ngati Maru protocols and any legal requirements of the Historic Places Act 1993, which will be implemented prior to work recommencing in the location of the site.”

D TAIPARI

ATTACHMENT 12

PROPOSED DISTRICT PLAN DECISIONS VERSION 29 September 1999

(h) Insert a new Structure Plan into Section 345 “Thames Area” as follows:

345.6      Totara Valley

The land identified in the attached map labeled “Totara Valley Structure Plan Map – Sites of Special Significance” (map indicative only), is zoned “Housing Zone” and the rules in the Plan which apply to that zone shall apply to subdivision and development of the identified land, subject to the following additional rules:

1.             Notwithstanding Section 410 of the District Plan, any disturbance of earth / soil that result in the movement of more than @@@ of earth / soil in any 12 month period, but not including normal household gardening activities, installing fence posts, or other typical agricultural activities that do not include the removal or replacement of earth / soil, either

(a)           Within a “site of special significance” identified on the attached map labeled “Totara Valley Structure Plan Map - Sites of Special Significances” [“SPS”]; or

(b)           Within 3 metres of an SPS:

is a restricted discretionary activity

2.             Councils discretion is restricted to:

(a)           Any effect on the relationship of Ngati Maru and their culture and traditions with their ancestral land, water, sites waahi tapu and other taompa.

(b)           The volume of disturbance of soil

(c)           consideration undertaken with Ngati Maru

(d)           the surveying and identification of the “identified sites of significance”

3.             The Council need not serve a copy of any application for disturbance of earth / soil within SPS or within 5 metres of SPS on any party other than Ngati Maru

Advice Note: If there is any doubt as to any proposed disturbance of soil is within on SPS or within 5 metres of an SPS, the portion proposing to undertake such works shall consult with Ngati Maru in that regard.”