A three-year dispute between a couple wanting to build a house and a hapū that said the site was culturally significant has ended with a dream dashed and a hope crushed.
The dispute revolved around a 1.7 hectare property at Te Puna, a semi-rural area near Tauranga.
For Pirirākau, which is a hapū of Ngati Ranginui iwi, this area is part of a wider area of some 100ha, known as Tahataharoa.
Tahatahora is of high cultural significance to the hapū and iwi because it was the resting place of paramount chief Tutereinga. His exact burial site was not known, and Pirirākau consider the entire area wāhi tapu (sacred).
A large tract of land including Tahatahora was confiscated by the Crown in 1864. Since then, the area has been subdivided as general land and used for various kinds of farming.
In November 2021, Chrissina Fotheringhame and Todd Ward bought the 1.7 hectare property on Lochhead Road, with the intention of building a house.
In recent years, many rural residential properties in the area have been developed, and the couple’s property has houses on all sides of it.
There are numerous archaeological sites recorded in the area, including on properties to the east and to the south of the property.
When a digger was used for earthwork on the couple’s property in January 2022, a previously unrecorded pre-European Māori occupation site was uncovered.
Environment manager for Pirirākau Tribal Authority Incorporated Carlton Bidois noticed the earthworks, visited the site, and asked for work to stop until an archaeological assessment could be carried out.
The couple engaged archaeologist Brigid Gallagher to complete a report. She found crop storage pits, ovens, post holes (representing above ground structures) and shell deposits, and the site was recorded with the New Zealand Archaeological Association.
In April 2022, the couple (under their Ward Family Trust) applied for archaeological authority from Heritage New Zealand Pouhere Taonga (HNZPT).
An archaeological authority must be acquired by anyone planning to undertake work when there is cause to suspect a recorded or unrecorded archaeological site may be affected.
The Māori Heritage Council, which assists HNZPT in developing and reflecting a bicultural view in the exercise of its powers, recommended that the application be granted, and in May 2022 HNZPT granted authority to undertake earthworks, subject to various conditions.
The following month Pirirākau appealed HNZPT’s decision to grant the application to the Environment Court.
A year later, in June last year, a hearing and a site visit were undertaken by Chief Environment Court Judge David Kirkpatrick and two environment commissioners.
HNZPT’s senior archaeologist for the area Dr Rachel Darmody told the court the property did not have rare archaeological value, and the pits and other items found there were typical of a pre-European Māori undefended occupation site, commonly found within 1km of the Tauranga Harbour margins.
Her opinion was that, overall, the archaeological values of the site did not warrant preservation in-situ.
HNZPT said the site did not have lasting value in its own right based on the archaeological values, but it should be fully researched, documented and recorded, and it did have the potential for the recovery of information contributing to an understanding of the settlement and past use of the area.
Bidois disagreed. He told the court that Pirirākau viewed Tahataharoa as a living tupuna (ancestor) that was essential to the mauri (life force) of the hapū, and without knowing where paramount chief Tutereinga was buried, all of the area was wāhi tapu (sacred).
He said it was part of tikanga not to demarcate the burial site of Tutereinga as the whole site was treated with the importance that the burial site of Tutereinga deserved, and “one should not take the risk that Tutereinga is buried there or otherwise treat that risk with contempt”.
Pirirākau hapū was not opposed to development, but “any development that involved the wanton destruction of cultural heritage must be opposed,” Bidois said.
The hapū wanted the archaeological site to be recovered, preserved and protected.
In a decision issued in September this year - 15 months after the hearing - the judge and commissioners said the situation “highlights the tension inherent in treating historical and cultural heritage values together in a single assessment matter or criterion”.
They noted that the Heritage New Zealand Pouhere Taonga Act required consideration of all relevant cultural values, knowledge and disciplines, which did not presuppose that any physical form was required.
The judge and commissioners said that some archaeology had been found on the site and granting the authority would result in the destruction of those physical manifestations, but noted “the actual burial site of Tutereinga could be on the property or it could be somewhere else in Tahataharoa which has an approximate area of 90-150ha”.
They said they must weigh the interests relating to protection and development.
The Family Trust was concerned that if an authority was not granted, it would be prevented from the reasonable use of the property for the lawful purpose of a house.
“Both the [Family] Trust and Pirirākau hāve interests which are directly affected, in diametrically differing ways, by the decision of HNZPT and will be affected similarly by our decision,” the judge and commissioners said.
They accepted that the site was of significance to Pirirākau, but said it was one of several factors they had to consider, including the extent of existing development in the vicinity of the site.
“Ultimately, the extent of the subject site within the extent of Tahataharoa leads us to determine that the grant of an authority is appropriate in this case,” they ruled.
They confirmed HNZPT’s granting of the authority, with a requirement that an Archaeological Investigation Strategy to be prepared by an approved archaeologist, approved by HNZPT and provided to Pirirākau.
The couple told Stuff that, despite the ruling, they were now unlikely to live on the property.
“It was a stunning property with views over the harbour, Ferguson Park and Mount Maunganui but for us, the dream has well and truly gone,” Fotheringhame said.
“While we are happy with the outcome, the whole process has come at a huge financial and emotional cost to our family,” she said.
“While we were successful in court, we have no right of recourse for our financial loss. All we have gained is the ability to proceed under the authority that was granted to us in May 2022,” she said.
“We are now moving forward with the archaeological investigation as per the authority but at this point it is likely we will place the property on the market once the house site and landscaping is complete – it is probably the best way forward for us”.
Bidois told Stuff he had no regrets about appealing the authority.
“The court’s decision was disappointing but understandable from my perspective, given what the court had in front of it,” he said.
“It was another gross failure of the system to protect our hapū’s most significant cultural site. How can it be that Heritage New Zealand cannot champion the protection of our most significant cultural heritage site?
He said Heritage New Zealand’s purpose was to protect and preserve the country’s history and “the granting of an authority that would see the destruction of significant cultural heritage does not seem like a good practice to me”.
“Too much of New Zealand’s history is damaged and destroyed. Sites that are protected and preserved are like hen’s teeth,” he said.
Bidois said the consideration of what was culturally significant to Māori was not given sufficient weight in Heritage New Zealand’s assessments.
Heritage NZ was contacted for comment.
- Stuff