A group of property owners in a tranquil seaside settlement fear they will lose access to their homes as a result of a Crown Treaty settlement with local iwi, writes Jane Phare.
Locals describe it as one of the most beautiful places in Aotearoa. At Whanarua Bay, in the eastern Bay of Plenty, not much happens other than the tide drifting in and out over its rocky foreshore. It is here that generations of iwi, locals and visitors have camped, fished, swum, lived and grown up.
But beneath the tranquility of Whanarua Bay, ripples of tension are developing. The owners of 15 homes and baches along the foreshore fear that, in the future, they will no longer be able to drive down a steep bush-clad road from State Highway 35, access they have used for 40 years.
If the road is closed, the value of their landlocked homes would be gutted and, due to the steepness of the terrain, difficult to access on foot. Some of the beachfront home-owners are getting older, or impaired in some way, and will have difficulty walking up and down a cliff behind their homes. Access by boat is not viable due to the rocky coastline and weather risks.
The land over which the road passes is known as Lot 66, part of the original beachfront subdivision in the late 1950s when the land owner, Romio Wirepa, decided to subdivide and sell sections along the foreshore.
Now, as part of a Treaty of Waitangi settlement with Te Whānau a Apanui iwi, Lot 66 is in the process of being transferred. The land was originally vested in the Ōpōtiki District Council (then county council) at the time of Wirepa’s subdivision and later became a reserve. It is the future of Lot 66, and more importantly access over the road which runs down it, that is causing the tension.
Childhood at Whanarua Bay
Wellington neurologist and long-time Whanarua Bay visitor David Abernethy, 68, was at Edgecumbe primary school when his parents, Nancy and Stewart, took him and his five younger brothers to stay with friends at Whanarua Bay. It was, he says, a “magical place” where his Te Teko schoolteacher parents had camped during their honeymoon in the 1950s.
It was on that family trip during the 60s that the Abernethys saw plans for a beachfront subdivision displayed in Wirepa’s shop further up the hill. They bought a section, camping under canvas on the site until Abernethy’s father Stewart built a concrete block base for a holiday house. His plan was to eventually retire to Whanarua, and the block foundation would allow him to build a second level on top.
But it was not to be. Before the bach’s roof was finished Stewart Abernethy died of undiagnosed appendicitis. David, his oldest son, was 12.
When the six boys reached secondary school age, they were sent to different boarding schools in the North Island but Whanarua Bay was always the place they came home to.
“We used to spend our holidays together at Whanarua Bay so that has particular significance to us.”
And it is still that special place to the family. The house was left to Abernethy, his five brothers and a sister, born after Nancy remarried. It is the place they all meet and holiday together whenever they can.
Childhood memories of the bay are still sharp: clear rock pools alive with sea creatures, blue maomao swimming near the rocks, heating water over a fire in a washing-machine copper, a kerosene fridge that never really worked, powdered milk. Without power or a water supply in the early days, families had to improvise.
“One of the things I’ve learned from that place is a love of the natural world,” Abernethy says. “That’s been passed down to my family.”
Now he and his siblings worry they will have difficulty accessing the house on foot if, in the future, they cannot drive down the road. Already his wife would have difficulty because of a medical issue.
And there are other worries: how to get rid of rubbish, get a septic tank serviced, access for emergency vehicles.
Mark Stringfellow and his wife Diane have retired to the bay after a 40-year connection with what he calls “one of the most beautiful parts of New Zealand”.
They built a new home on the site of the old holiday home in 2008 and have lived there permanently for the past seven years, visited regularly by their daughters and grandchildren.
Whanarua Bay is special, Stringfellow says. “It’s got character, it’s got history.”
Some beachfront families have been there for five generations, coming from the Bay of Plenty, Wellington, Auckland and Hamilton.
The easement that never happened
The beachfront residents say they have no issue with the Treaty settlement but not if they are unable to access their properties in the future. At the moment, they have no guarantee that won’t happen; nor will the council grant an easement over the reserve road before the settlement is finalised, despite indications over the past 20 years that an easement would be established.
Instead a reserve management plan will be established within five years of the Treaty settlement, with Lot 66 jointly administered by the council and the iwi. The future of the road access will be considered as part of that plan.
Until then, the beachfront group say they are left in limbo, living with the stress of an unknown outcome and unable to sell because of recent changes to their Land Information Memorandum (LIM) reports.
Whanarua Bay beachfront owner Warrick MacDonald was aghast to discover the council had changed the wording of his LIM after the Treaty negotiations began several years ago. When the MacDonald family bought their beachfront property in 2011, the LIM said accessway through the reserve for recreational purposes by car was considered by the council “as acceptable practice and within the council’s authority…”
The LIM also referred to a council sign at the entrance from State Highway 35 warning vehicle weights were restricted to 5000kg.
But the LIM now refers to Lot 66 as “an unconsented road” and says “Council did not arrange for its construction through the reserve nor does the council maintain it as part of its roading network. The council is currently considering a request from the Crown and Te Whānau a Apanui to transfer the ownership of the reserve and other council reserves within the vicinity of this property.”
That LIM change has destroyed the value of the 15 properties, MacDonald says.
“We can’t sell them, we can’t move them, we are absolutely stuck. The value has simply been written off our properties through the council’s action.”
The Whanarua Bay access road was an accepted alternative by the council for more than 40 years, he says.
“And then suddenly, bang, they’re changing the LIM reports. Our beef is with the council and the way they’re handling this. All we want is formalised access to our properties.”
Aware that some of the Te Whānau a Apanui iwi want to close the road to vehicles in the future, the homeowners fear vehicle access could be blocked for good. They say the road is used not only by the beachfront owners, but by Whanarua Bay residents living above on the hill, other locals, iwi and council staff.
The property owners have called on the Government to fix what they claim is a long-standing mistake by the Department of Māori Affairs when the subdivision was surveyed, a mistake they say has divided the community and unfairly pitted them against the Te Whānau a Apanui iwi, a position they don’t want to be in.
Whanarua Bay’s wāhi tapu
On the foreshore is an urupā (burial site), fenced off and signposted some years ago. But it’s not the only wāhi tapu site, the iwi say. There are other sites at Whanarua Bay to consider.
Rikirangi Gage, speaking on behalf of the Te Whānau a Apanui iwi and hapū, told the Herald that Whanarua Bay was a significant site, in particular to the hapū of Te Whānau a Rangi-i-Runga. The hapū had lived at Whanarua Bay since the early period of Māori settlement of Aotearoa and were kaitiaki over the lands, he said.
“There are a number of wāhi tapu in the Whanarua Bay area, including an urupā. The hapū considers Lot 66 to (be) part of the wāhi tapu area. They have long been concerned that wāhi tapu in the area have been declining and negatively impacted because of public access to and use of the area.”
In 1956 Wirepa vested just over 10 hectares of his land in the Māori Trustee to enable the subdivision of the beachfront land. The subdivision, approved by the Department of Māori Affairs for the Māori Trustee, recorded a roadway access to the properties, and the original families say that was the basis on which sections were bought from the plan displayed in Wirepa’s shop.
But Wirepa did not own the land on one side of the proposed access, and the subdivision plan was mistakenly approved by the Crown. Back then locals and beachfront owners gained access through the Whanarua stream and partly over land owned by another local family. But when that family withdrew access over their land in the late 1970s, an alternative access was forged down the bush-clad hill to the beach to which the council did not object.
Details of exactly how the road was built are lost in time, but it was presumably done by one of the beachfront owners. The sealed, single-lane road, now on reserve land, has been maintained by the beachfront group ever since.
The 15 property owners have spent the past 20 years discussing a legal easement over the road with the council. Neither side seemed to regard the matter as pressing because the road over Lot 66 wasn’t causing problems. The council told the Herald that the roadway was in place and the easement was not a priority. Residents say despite the length of time the legal easement was taking, they were reassured by sporadic communication from senior council officers signalling they understood the residents’ concerns and were in favour of formalising an easement.
The Herald has viewed historic documentation from senior council officers which go back to 2002 when the council’s then CEO wrote saying it had long been accepted by the council that property owners needed to use Lot 66 for access from State Highway 35.
“As Chief Executive I can assure you that there has never been any consideration by Council to restrict property owners access through Lot 66. Council appreciates this is as a result of a Maori Trustee mistake in the 1950s.”
As late as 2019 council officers were again working on a draft of the easement after getting an opinion from lawyers, and apologised for the delay. But later that year the group was told that Lot 66 was the subject of a Treaty claim and that work on the easement had stopped as a result of intervention by Te Arawhiti, the Office for Māori Crown Relations to allow for Treaty negotiations with local iwi.
Four years later, the property owners still have no certainty.
A fee of $2000 each a year
In desperation the property owners took the council to court in 2022 claiming the decision to transfer Lot 66 to the joint body without an established easement was a major departure from what had been indicated by the council and that consultation with the property owners was inadequate. But they lost that case. The judge ruled that the council, in resolving to develop the reserve management plan and include the access issue as a focus had kept to its earlier commitments.
Before the court case was heard the property owners received a letter from law firm Kahui Legal with a proposal: that the council grant a right-of-way easement over Lot 66 for a seven-year period and that the 15 property owners pay $2000 a year each for the right to use it.
“This will allow for the Te Whānau a Apanui settlement to come into effect and the completion of the new reserve management plan,” the letter said.
The fees collected over the period would be held in trust until the administering body was formed. The $210,000 fee and interest would be used by the joint body to “maintain the health and wellbeing of the reserve, including wāhi tapu within the reserve”.
The letter also requested that the group acknowledge that Lot 66 and other areas of the reserve specified by the hapu are wāhi tapu, and suggested a letter of apology for bringing the legal action might help to repair damage to the relationship.
But the property owners considered it unfair to be charged an access fee over a mistake by Department of Māori Affairs that should have been corrected. The proposal gave them no certainty that charges would not increase, or access would be denied after seven years, they said.
Earlier this month the Herald asked now-former Minister for Treaty of Waitangi Negotiations Andrew Little if the Crown could assure the property owners that their road access would not be blocked in the future. He would not give an assurance but said the joint body (of Te Whānau a Apanui and Ōpōtiki District Council) would be required to consider access arrangements, including the continued use of the existing road when preparing the first management plan.
Property owners would have the opportunity to make submissions on the development of the reserve management plan that addresses public access over the vehicle route, he said.
Little described the road as not only unofficial but “unlawful”, a description the property owners strongly dispute. Little added that the Crown was naturally aware of the expectations the current users had over access and that remained part of the considerations. He noted Te Whānau a Apanui hapū had been willing to work with property owners to find a solution in the past.
Little would not be drawn on whether the Government would consider compensation to the property owners for the loss of value, or fund an alternative road from State Highway 35 if the road was closed, saying only that the issue would be addressed by the joint body.
“I consider this process must be completed before any alternative arrangements could be considered.”
Asked the same question, the Ōpōtiki District Council replied: “This will be a decision for the council at the time to make.”
David Abernethy wonders why the beachfront owners were not invited to be part of the joint management body for Lot 66.
“It would seem sensible that we were part of a triangle rather than someone who can come along and make a case.”
Little acknowledged there were “strong emotions” on both sides but he believed the joint body would provide an opportunity to find a solution for all parties.
“I encourage the property owners to work constructively and respectfully with the joint body on any process that will address access over the vehicle route.”
But the Whanarua Bay group question if the Government is at risk of breaching its own guide to the settling of iwi grievances which states that Treaty settlements should not create further injustices, and that the Crown seeks to protect the interests of all overlapping groups.
“I’m wondering how our interests are being protected,” MacDonald said.
Next steps
Little confirmed that the deed of settlement between Te Whānau a Apanui and the Crown was initialled last month, signifying that agreement has been reached on a redress package. The next stage was ratification, whereby Te Whānau a Apanui members would have the opportunity to consider the redress package and vote on whether to sign the deed of settlement. Once a deed of settlement was signed, the settlement legislation would be considered by Parliament.
Gage said the property owners and others who are impacted would have their views considered in the joint management plan process.
The main aim was to ensure the ongoing protection of wāhi tapu through appropriate management of the land, he said.
“They (Te Whānau a Rangi-i-Runga) have not suggested that access over the land will be entirely restricted in order for that goal to be achieved. However, the joint administering body will need to consider all relevant views to reach a resolution on the issue.”