Ngāti Whātua Ōrākei has won an Environment Court appeal after it sought recognition that it has the dominant iwi relationship with land and water around Westhaven Marina over others in Tāmaki Makaurau.
Justices Laurie Newhook and Michael Doogan and Deputy Environment Commissioner Glenice Paine ruled in favour of Ngāti Whātua Ōrākei.
Deputy chairman Ngarimu Blair welcomed that decision in the case where Rob Enright led the iwi legal team.
“While it has been incredibly disappointing and frustrating to have to seek the acknowledgement of the courts, a process that requires significant resources and time, this is the system we have to work with.
“We hope this outcome stops a process which benefits no one, other than those who are claiming a say in the rohe of other iwi,” Blair said.
The decision outlined the background.
In 2019, Auckland Council’s Eke Panuku Development won a resource consent to expand the marina by extending the northwestern breakwater and causeway via reclamation.
The site was for public open space, a carpark for public and private use and access to new marina berths.
Among the conditions in the consent, Panuku was to invite 19 hapū and iwi to establish a forum.
Ngāti Whātua Ōrākei Whai Māia appealed that consent, challenging the mana whenua engagement conditions, saying it was dominant.
The consent should not treat all 19 iwi and hapū in the same way, it argued.
That would not recognise the particular relationship that the iwi has with Westhaven.
It claimed it should be recognised as having the strongest connection with the area and take a lead role in mana whenua engagement with Panuku.
It did not challenge the consents granted by Auckland Council, but challenged the conditions of those consents.
The court acknowledged the connection of Ngāti Whātua Ōrākei to Westhaven through take raupatu, take tupuna, take tuku whenua, and ahi kā – the pillars that uphold mana whenua for all iwi and hapū.
Ngāti Maru, Ngāi Tai ki Tāmaki, Te Ākitai Waiōhua, Te Patukirikiri and Ngaati Whanaunga opposed Ngāti Whātua Ōrākei having a lead role in mana whenua engagement for the project.
They argued the court should provide for all parties’ relationships with Westhaven, which they submitted should reflect that none were stronger or less than another.
The ruling said Joe Pihema and Ngarimu Blair had provided clear and compelling evidence grounded in tikanga Māori and matauranga Māori that the area around Westhaven forms part of the Ngāti Whātua Ōrākei rohe or heartland.
That is by virtue of take raupatu, consolidated by take tūpuna and strengthened over time by the continuous exercise of ahi kā and mana, the decision said.
The opponents were referred to as s274 parties, a reference to that section of the Resource Management Act.
“We are struck at just how little evidence there is of use and occupation by any of the s274 parties of the lands and waters around Westhaven over the past 200 or more years,” the decision said.
It blamed settlement policies under the Treaty of Waitangi for disputes between the parties.
“From the totality of evidence before us, it appears that the present dispute between the s274 parties and NWŌ [Ngāti Whātua Ōrākei] as to their relative status in Auckland City, including the area adjacent to Westhaven, largely emerged in the late 1990s as a result of tensions arising from the Crown’s Treaty settlement proposals and policies,” it said.
However, it was understandable that the Treaty settlement process in Auckland would lead to tension between hapū and iwi.
Competition for access to a relatively limited pool of Crown lands and assets that are of high value because of their location within Auckland City is one factor, the decision said.
Preservation of tribal identity and mana is another, it said.
Ngāti Whātua Ōrākei chairwoman Marama Royal said the decision was a powerful step forward in changing a process that unnecessarily added additional costs to developments, and fostered tension between neighbouring iwi.
“Our people can look across to Westhaven from our marae, yet we had this situation where other iwi, some whose marae are more than 100km away from the development, were claiming to speak with equal knowledge and understanding around this whenua and the surrounding waterways,” she said.
Anne Gibson has been the Herald‘s property editor for 25 years, written books and covered property extensively here and overseas.