Iwi have made it clear they will not be participating in the "desecration" of their sacred, ancestral lands.
At the final day of the hearing into the granting of a resource consent for a residential subdivision next to an ancient urupa in Whakatāne, tangata whenua were adamant they would not take part in any accidental discovery protocol if koiwi (bones) were found during development – to do so would sever their whakapapa to the land and make a mockery of their role as kaitiaki, they said.
Tangata whenua are trying to stop Whakatane District Council from granting consent for 240 residential sections and a 250-unit retirement village on land they consider to be wahi tapu and adjacent to the ancient coastal urupa Opihi Whanaungakore, which is still in use today.
The council sold the land for subdivision to developer MMS GP Limited for almost $8 million in 2017 with an agreement that 10 of the 40 hectares of the Opihi Block on Bunyan Rd would be reserved for a retirement village.
The development lot itself is 27ha.
On Wednesday, independent commissioners Rob van Voorthuysen and Rauru Kirikiri heard from a representative from Ngai Taiwhakaea, a hapu of Ngāti Awa, before hearing right of reply from the council and the developer.
Ngai Taiwhakaea representative Caroline Takotohiwi told the commissioners the only mitigation the hapu would accept was for the consent to be declined.
She said the hapu would decline to participate in any cultural mitigation actions, such as having input into or participating in an accidental discovery protocol or performing karakia, with the developer as to do so would betray the whenua and the hapu's tipuna.
"The land belongs to us and we belong to it," Takotohiwi said.
"This is culturally sensitive land, to develop it is to dishonour and disrespect the whenua and our tikanga. Why should we set the protocols? Why should we accommodate council and the developer?"
Takotohiwi suggested the developer sell the land back to iwi. This statement was met with low, angry, murmurings from those at the back of the marae.
"The land is stolen, give it back," they said.
Takotohiwi said despite the development not yet going ahead the whenua had already been desecrated and disrespected. The whenua is currently a popular spot for dog walkers and there were multiple dirt bike tracks criss-crossing the sand dunes.
The nearby Orini Stream had also been polluted through dumping of the toxic Pentachlorophenol timber preservative.
Takotohiwi said the site was extremely important to Ngāti Awa hapu and in the past warriors would stand on the hill, near where the Whakatane Coastguard Building is today, to keep watch over the whenua.
"There were severe consequences for trespassing," she said.
"The entire area is wahi tapu, the whole area is an urupa. Our people referred to it as the 'Twilight Zone'. This development threatens our relationship to the land."
On the two previous days of the hearing, the commissioners heard from the Opihi Whanaungakore trustees and Te Runanga o Ngāti Awa.
Trustees outlined the importance of the ancient site and some of the rituals, which are still performed.
Trustee Rapata Kopae is involved in modern burials at the site and said bodies could be ferried by waka to the urupa from the Whakatāne heads. The only karakia that could be performed there was an ancient, traditional one.
He said in the past gravediggers would need to be naked to comply with the wahi tapu, however, a small section of the urupa was made whakanoa (neutral) in 2010 and this allowed gravediggers to wear clothes and for women and children to attend.
The majority of the urupa is still wahi tapu.
Te Runanga o Ngāti Awa manager Michal Akurangi also gave evidence to the hearing. She said the development of land within the Ngāti Awa rohe had affected the iwi's ability to access historical food gathering and cultural heritage sites.
She said the runanga did not believe residential zoning was appropriate for the land, that earthworks would result in the land and all it contained being destroyed and that any accidental discovery protocol for human remains would oblige generations of Ngāti Awa people to participate in the destruction of their land.
Following iwi submitters, counsel for the council and the developer were given right of reply.
Lawyer Andrew Green for the council said the council was open to discussions with tangata whenua to address their concerns around motorbikes and dog walkers through bylaws and had arranged height restrictions on buildings in the area so there would not be any views into the urupa from the surrounding homes.
He said the new fence that would be installed, and the 25m land buffer would prevent most people from entering the urupa and the council had made every effort to engage with respective hapu.
Planner Craig Batchelar suggested that if iwi did not want to engage in any cultural protocols the developer could engage someone from within the rohe to take on that monitoring role.
He said reports could be sent to tangata whenua and the door would remain open if they decided they would like to engage.
Counsel for the developer Vanessa Hamm said if iwi did not wish to take up a cultural monitoring role there was a standardised Bay of Plenty Regional Council archaeological strategy in place and tangata whenua would be notified if koiwi were uncovered.
Despite this, the developer remained open to working with iwi to develop a protocol.
She said while the block had been subject to occupation and grazing there was no certainty that any archaeological sites would be uncovered.
Some had raised concerns that Pākehā law would be considered above Māori lore, however Hamm said the developer had gone to great lengths to accommodate tangata whenua concerns.
She said an example of this was the large land buffer, a commitment to maintain the buffer and provide habitat for native skinks for at least the next five years and an agreement of building heights.
"The applicant has engaged with tangata whenua and these are real, tangible outcomes of that," Hamm said.
"That is integration of the law and lore."
The two commissioners have reserved their decision.
How the Opihi Block came to be sold to developers:
The Opihi Block is part of an important coastal zone of Ngati Awa occupation, resource use, wahi tapu and other significant sites. It served as the "cultural capital" of Ngati Awa from the arrival of the Mataatua waka.
1866: The Crown confiscates 245,000 acres of Ngati Awa land.
1867: Special Commissioner J.A. Wilson returns 77,870 acres of the confiscated land to Ngati Awa. This includes the Opihi Block. Other land is given to various iwi as a reward for their military service. The Crown keeps 80,000 acres. The Crown's land includes the flat land where the Whakatane township is today. As a result, hapu are moved from their traditional land to the western bank of the river.
1907: The long coastal spit containing the Opihi Block is subdivided amongst Ngati Hokopu, Ngati Wharepaia, Ngai Taiwhakaea and Nga Tapiki. The largest subdivision, called Lot 28B, includes the Opihi Block and is awarded to 228 owners.
1908: Lot 28B is further subdivided and is used for winter grazing of stock.
1917: Various sections of Lot 28B begin to be sold.
1935: An application is made by Emere Apanui, Anahera Patara and Riini Hetaraka to the Waiariki District Maori Land Board to summon a meeting of owners to consider sale of the land to local farmer's son, Herbert Carter. Before an application is considered, a partition is arranged to divide the block into eastern and western sections. The urupa land is separated from the larger block and the western section of the block is then owned by Ngai Taiwhakaea and the eastern section is owned by Ngati Hokopu. The Ngati Hokopu section includes the Opihi Block. Lot 28B1B is then sold to Herbert Carter for £1 per acre. Some owners of the block are motivated to sell due to financial hardship.
1941: Herbert Carter subdivides and sells some of the lot.
1942: Herbert Carter dies in the Western Desert during World War II and ownership of the block passes to his mother, Mary Carter.
1944: Mary Carter sells the land to N.C. Jensen for £1300. N.C. Jenson sells the land to Whakatane farmer Christopher Nunn for £1850.
1951: Christopher Nunn sells the land to the Whakatane Board Mills for £1500. It offers the land up as grazing lease.
1956-1968: The Whakatane Borough Council buys the Opihi Block in two parts in 1956 and 1986. In 1956 the council runs a sewerage line across the bed of the Whakatane River and through the land to deposit sewage on the beach. It starts investigating buying the remaining land in 1963 for the purposes of effluent ponds instead of discharging raw sewage on the beach. It pays the board mills $15,780 for the land.
1973: The Whakatane District Plan shows the Opihi Block as designated for a possible sewage treatment plant. The adjacent urupa is labelled as a Native Burial Reserve. The same year the borough council receives a report that the nature of the sandhills will make construction of a plant too difficult, that the site is too small to meet future population growth and there is interest in residential development on the coastal spit.
1975: The land designation is changed from rural to residential. The land is leased for grazing until 1997.
2016: Environment Court dismisses hapu appeal against the proposed subdivision of the Opihi Block.
2017: The Whakatane District Council sells the Opihi Block to developers for $8 million with an agreement a retirement village will be included in the development.
- Historian Heather Bassett 2015 report for Whakatane District Council