Ngati Kahu win battle to protect ancient burial cave

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Last week Ngati Kahu finally secured legal protection of Te Ana o Taite, their ancient burial cave on Karikari peninsula in the Far North.

In two comprehensive wins to Ngati Kahu in the High Court in Whangarei against Carrington Farms Ltd, Carrington Estate Ltd, and Far North District Council, resource consents to subdivide and build houses on the cave were quashed. The High Court also issued a declaration which confirmed that a 2001 out of court settlement agreement not to build on the site was legally binding on both Carrington Farms and the Far North District Council

BACKGROUND

For more than a decade, Te Whanau Moana and Te Rorohuri, the hapu of Ngati Kahu with mana whenua on Karikari Peninsula, have fought to protect Te Ana o Taite (the large and ancient burial cave of Taite and other tupuna) against development. In 1999 they asked all the other hapu of Ngati Kahu for support.

The ensuing battle soon assumed David and Goliath proportions as Te Runanga-a-Iwi o Ngati Kahu, the body mandated to represent whanau, hapu and marae of Ngati Kahu, went up against both the Far North District Council and Paul Kelly, the offshore billionaire behind Carrington.

Over the years the Runanga has had to use much of its operational budget, as well as rely on hapu members mortgaging their homes, and on koha from various Ngati Kahu marae to fund a raft of objections and appeals necessitated by Carringtons and Councils refusal to stick to the terms of an out of court settlement agreement reached in 2001 between them, the Runanga and the Environmental Defence Society (EDS). That agreement specifies no development within a perimeter of 800 metres from the high water mark which includes the cave. Te Whanau Moana kaumatua had made it very clear to Mr Kelly that he could never build on or use Te Ana o Taite.

But in 2007, six years after signing the agreement, and without notifying the Runanga or EDS, Carrington sought and was granted a non-notified consent by the Council to build 12 houses right on top of the burial cave.

However in 2009, when Carrington applied to subdivide the site into 12 lots in order to facilitate their sale at a later date, Council finally notified Ngati Kahu of what was going on. Only then did the Runanga learn of the earlier non-notified consent to build the 12 houses. To make matters worse, it also discovered that Carrington had secured an order from the Historic Places Trust allowing the destruction of any archaeological finds during development. The Trust failed to consult Ngati Kahu, work started and damage to Te Ana o Taite took its toll on Te Whanau Moana and Te Rorohuri.

In the first of a series of objections and appeals, the Runanga immediately opposed the subdivision application because it clearly breached the 2001 out of court settlement agreement. However Council claimed the agreement wasnt legally binding on it or Carrington and that, having already granted Carrington consent to build the 12 houses, it had no option but to also allow the subdivision.

The Runanga then appealed to the Environment Court who expressed sympathy for Ngati Kahu but agreed with the views of the Council and Carrington.

The Runanga then appealed in the High Court.

Although hugely taxing, the commitment and belief has finally paid off. In the first of two decisions released last week, Judge J White found that the 2001 out of court settlement agreement is legally binding.

Judge White also ruled that Carrington was wrong to have sidestepped the agreement by first getting non-notified consent in 2007 from the Council to build on the burial cave, and then getting notified consent in 2009 to subdivide the land for later sale. He also found that Council was wrong to have allowed both applications to proceed separately, and he ruled that Council should have notified the Runanga of both applications. But even more importantly, he ruled that under the 2001 out of court agreement, neither application should have proceeded let alone been granted.

In his second decision the Judge found that the Environment Court was wrong to reject Ngati Kahus appeal against both consents, as it had incorrectly assumed that the 2001 out of court agreement between the parties was not legally binding.

During the hearing the Council and Carrington had argued that, even if it found the 2001 agreement were legally binding, the High Court could not quash the consents that had already been granted. Carrington also argued that Ngati Kahu should have lodged appeals with the Environment and High Courts at the same time.

In his decisions, Judge White rejected both those arguments. He noted that the Runanga was not wealthy enough to mount concurrent appeals, and nor was it legally obliged to do so. He ruled that both consents were quashed, and directed that if Carrington resubmits them, Council is to consider them together. He reminded Council and Carrington that they are legally bound by the 2001 out of court agreement they signed up to. And finally he ruled that the Runanga can seek costs against both Carrington and Council.

Te Runanga-a-Iwi o Ngati Kahu are cautiously happy with the result. They are deeply grateful for the support provided over many years by their legal advisors and their unshakable belief that New Zealand law does protect wahi tapu, the sacred sites of Maori. But most appreciated of all is the sacrifice of those who mortgaged their homes and donated funds to fight the Council and Carrington.

The Runanga discussed the decisions at length in their hui on Saturday and hope that Mayor Wayne Brown and Paul Kelly will now work with the hapu to protect Te Ana o Taite. They also hope no further money will need to be spent by them or the ratepayers in the fight to protect the ana.

However Te Whanau Moana and Te Rorohuri are adamant they will never abrogate their rights and responsibilities as mana whenua to protect Te Ana o Taite.

Contacts:

Professor Margaret Mutu, 09 9237465 or 027 241 9650
Chairperson, Te Runanga-a-Iwi o Ngati Kahu

Anahera Herbert-Graves, 09 408 3012 or 0276960930
CEO, Te Runanga-a-Iwi o Ngati Kahu

http://www.ngatikahu.iwi.nz

2 COMMENTS

  1. The High Court ruling made only a passing reference to “Te Ana O Taitehe” its correct name. The said ana could not be found by either litigant in spite of a thorough search by archeologists. Nevertheless the Runanga produced a map showing it extended for at least a half a kilometer. This map was based on hearsay and a 100 degree wave of Dr. Mutu’s hand. The map went deep into the gum fields where my whanau and many others over the years dug gum. This activity was never restricted by any sacred sites on the block. Some years ago the Historic Places Trust asked the iwi to register these places. The only one registered then by elders was Kere above Takapu the current cemetary. Those of us of the hapu Te Rorohuri who once owned the said land of Carrington Farms have watched the Runanga steal our mana whenua. As a founder of that Runanga it was never intended that the member maraes should lose their tino rangatiratanga to that body. Now we find other marae interfering. This is causing a volatile situation amongst those who work there and their whanau.

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