OFFICIAL Wai 215, S7 Wai 215 Tauranga Moana Inquiry
THE TANGATA WHENUA EXPERIENCE OF ENVIRONMENTAL PLANNING AND MANAGEMENT DEVELOPMENTS (INCLUDING TOWN AND DISTRICT PLANNING) IN THE TAURANGA MOANA INQUIRY DISTRICT SINCE 1991
A STUDY OF ENVIRONMENTAL PLANNING
IN TAURANGA MOANA SINCE 1991
Prepared for
Corban Revell and Waitangi Tribunal
by
Boffa Miskell Limited
September 2006
A STUDY OF ENVIRONMENTAL PLANNING
IN TAURANGA MOANA SINCE 1991
Prepared by:
Level 2 ______116 on Cameron Antoine Coffin Cnr Cameron Road and Wharf Street Senior Cultural Advisor PO Box 13 373 Tauranga 3030, New Zealand Telephone: +64 7 571 5511 Facsimile: +64 7 571 3333 and
Date: 12 September 2006 Reference: T06096_006 Peer review by: Status: Final
______Craig Batchelar
Senior Principal Planner
This document and its content is the property of Boffa Miskell Limited. Any unauthorised employment or reproduction, in full or part is forbidden. WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
1.0 Introduction ...... 1 1.1 Project Brief ...... 1 1.2 Personnel...... 1 1.3 Methodology...... 2 1.4 Literature Review...... 4 1.4.1 Claimant Evidence...... 4 1.4.2 Local Authority and SmartGrowth Literature...... 6 1.4.3 Public Library...... 6 1.4.4 NZ Historic Places Trust...... 6 1.5 Local Authorities within Inquiry ...... 7
2.0 District Plans...... 9 2.1 Development of District Plans ...... 9 2.2 Maori involvement in plan development...... 10 2.3 Key aspects of the district plan relating to Tangata whenua...... 11 2.4 Review of District Plans...... 12
3.0 Zoning ...... 13 3.1 Overview...... 13 3.2 Impact of the zones on Tangata whenua ...... 15 3.3 The relevant zones of the remaining significant areas of Maori land in Tauranga ...... 16 3.4 Motiti Island and Tuhua (Department of Internal Affairs)...... 16
4.0 Other Planning Documents...... 17 4.1 NZ Coastal Policy Statement ...... 17 4.2 Operative Bay of Plenty Regional Policy Statement...... 18 4.3 Regional Coastal Environment Plan...... 21 4.4 New Zealand Historic Places Trust Register ...... 23 4.5 New Zealand Archaeological Association Site Record Scheme...... 24 4.6 Crown sites of significance ...... 25 4.7 Draft Tauranga Harbour Integrated Management Strategy...... 26 4.8 Regional Land Transport Strategy 2004 & Draft Regional Land Transport Strategy 2006...... 26 4.9 Bay of Plenty Regional Waste Strategy June 2004...... 27 4.10 Bay of Plenty Regional Pest Management Strategy 2003-2008...... 27 4.11 Marine Protected Area Policy and Implementation Plan...... 28 4.12 Heritage Strategy ...... 28 4.13 Catchment Plans...... 28
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5.0 Financial and Development Contributions...... 28 5.1 Local Government Regime 1991 ...... 28 5.2 Recent Changes...... 29 5.3 Impact on Tangata whenua...... 29
6.0 Case Study - Matapihi...... 30
7.0 Structures for Engagement with Tangata Whenua...... 33 7.1 Environment Bay of Plenty (Bay of Plenty Regional Council)...... 33 7.2 Tauranga City Council...... 36 7.2.1 Initial relationships...... 36 7.2.2 Communication with Tangata Whenua...... 38 7.2.3 Tauranga Moana Tangata Whenua Collective 2006...... 39 7.2.4 Hapu Protocols ...... 41 7.3 Western Bay of Plenty District Council ...... 41 7.4 SmartGrowth Combined Tangata Whenua Forum ...... 42 7.5 New Zealand Historic Places Trust ...... 44
8.0 Tangata Whenua Response to Resource Management Matters ...... 45 8.1 The role of Iwi Management Plans...... 45 8.2 Other Documents...... 46 8.3 Tangata Whenua legal challenges to resource management matters ...... 47 8.4 Tauranga Maori concerns about intensive residential housing...... 49 8.5 Concerns about Wahi tapu and cultural heritage...... 51 8.6 Concerns about Wastewater and Tauranga Harbour...... 53 8.7 Key Developments and Resource Management Issues...... 64
9.0 Local and Central government Co-ordination...... 65 9.1 Local and Central Government Co-ordination...... 65
10.0 Observations...... 66
11.0 Acknowledgements...... 69
12.0 Bibliography...... 70
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1.0 INTRODUCTION
1.1 Project Brief
The project brief is outlined in the Waitangi Tribunal direction commissioning research dated 28th July 2006. The commission authorises preparation of a research report on behalf of the Tauranga Moana Claimants examining the Tangata whenua experience of environmental planning and management developments (including town and district planning) in the Tauranga Moana inquiry since 1991. The report will include:
a) Developments since 1991 in town and environmental planning, historic places, urban growth, and the management of the harbour and waterways, examining in particular:
o Processes for consultation between local authorities and Maori, and
o Current planning issues relating to Maori land, other resources or waihi tapu
b) Relevant research, expert evidence and court decisions on recent practice under the Resource Management Act 1991 and the Historic Places Act 1993. A document bank or bibliography of published works or decisions should be created where such matters have already been covered adequately by others.
1.2 Personnel
Antoine hails from Ngaiterangi, Ngati Ranginui, and Ngati Raukawa iwi of Tauranga. Antoine is a cultural heritage manager with twelve years experience in resource management, heritage planning, community engagement and facilitation. He has worked in regional and local government, non-government organisations, community groups and academic institutions. Antoine holds qualifications in Environmental Studies, Maori Language, and Strategic Leadership. He has completed a number of university papers in Anthropology and Maori Studies (Waikato University). For a number of years he has been a lecturer at Auckland University’s Master of Planning Practice course.
Other staff members who have assisted in the preparation of this report are Richard Coles and Te Pio Kawe. Richard assisted with the district plan development and zoning, while Te Pio assisted with Tangata whenua engagement structures.
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Richard has a Bachelor of Planning, Massey University and has worked for consent authorities, corporate entities and developers since completing his degree in 1992. He has a sound understanding of environmental legislation and political processes, the functioning of Councils and the legislation they are required to operate under. One of Richard’s strengths is his ability to ‘see the big picture’ especially on strategic issues. His knowledge of the Resource Management Act, other legislation and case law places him in a strong position when assessing proposals, undertaking policy development and mediating/negotiating environmental disputes.
Te Pio is Ngati Ranginui, Ngati Rereahu / Ngati Maniapoto and Nga Puhi. He joined Boffa Miskell Tauranga in August 2002 to work on the development of the “SmartGrowth” strategy. Te Pio is also the chairperson for the SmartGrowth Combined Tangata Whenua Forum that represents the 36 Marae across the sub region. Te Pio has a Bachelor of Business Studies (Property Management and Development) - Massey University.
1.3 Methodology
The scoping of the research was conducted with assistance from Corban Revell and feedback from legal counsel of claimant groups. A list of matters was circulated and agreed to, this forming the core of matters to be reported. These included the following matters:
o An outline of the engagement structures for Tangata whenua
o Details regarding the development of district plans, zoning and the involvement of Tangata whenua
o The role of iwi management plans in district plan development
o Identification of other planning documents
o Details of financial contributions
o Key developments in the inquiry district
o Comments on the extent of central and local government co-ordination
A team meeting was held on 4th August to allocate tasks and confirm reporting structure.
A literature search of Environment Court and Planning Tribunal decisions was conducted. Some 32 cases were identified, however there is some uncertainty as to whether 2 or 3 are within the inquiry area or are relevant. These have been included in the meantime until further information is sought. A summary of the cases is provided to illustrate the main players, particular issues of
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concern and the outcomes. Summaries of the cases are included in appendix 1. A review of Tangata whenua and summaries technical witness briefs of evidence provided a understanding of the coverage of resource management matters since 1991, and indicated there are gaps as already stated by Professor Michael Belgrave’s review of the casebook. A meeting was held with Tauranga City Council management and staff to discuss the report and access to staff and files if required. Tauranga City Council was very helpful and offered to assist the project as appropriate.
Tauranga City Council Policy Library and Public library databases were searched for relevant documents and planning policy. These are noted in the reference section of this report. Documents that were available and deemed important to the inquiry were scanned or copied and added to the document bank.
Following receipt of documents from local authorities a review of Maori engagement structures was conducted. This review focussed on the establishment of engagement process and support structures, the reasons why the structures and processes were established and a summary of how the structures or committees operate. Where available comment is provided on Tangata whenua perspectives of those structures.
Relevant planning documents including transitional plans, district plans, regional plans, policy statement and strategies iwi management plans and other relevant iwi and hapu reports were examined. Many of the documents are substantial and complex, particularly the district and regional plans. In some cases an extrapolative approach was required to meet the tight timeframes of this report commission.
Maps of local authority boundaries pre and post amalgamation in 1989 are included based on data provided by Tauranga City Council. The Department of Internal Affairs was contacted to confirm administration of Motiti Island and Tuhua. This information was made available on the website which includes a copy of the draft environmental management plan for Motiti Island.
Matapihi was used as a case study to highlight some of the generic issues facing Maori in Tauranga developing their remaining lands. The case study used a hypothetical medium sized residential subdivision and identification of strategic and site specific matters that would need to be addressed.
Contact with iwi and hapu representatives confirmed the nature of involvement in resource management matters and key issues for the future. This was cross-referenced with Tangata whenua briefs of evidence provided in the first stage and part of the second stage of hearings as well as signed hapu protocols for those hapu within the Tauranga City Council area.
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The drafting of the report followed the format of key matters identified by claimant counsel and literature. Some reformatting was undertaken to provide a flow to the readability of the report consistent with the Tribunal brief.
Comments were received from legal counsel and incorporated into the final draft. A peer review was conducted by Craig Batchelar, Senior Principal of Boffa Miskell, Tauranga. Mr Batchelar held a management position at Tauranga District Council from 1990 to 1999 and was involved in the development of resource management processes that engaged with Tangata whenua during the 1990s. The peer review comments are included in appendix 3.
Further liaison with Western Bay of Plenty District Council and Tauranga City Council confirmed gaps in district plan development in the 1990s.
A final report was produced with appendices and a document bank in hard copy and disk copies of electronic formats.
The project brief does not request recommendations of the research commission. This report does however make some observations and identified areas that may require further investigation.
1.4 Literature Review
1.4.1 Claimant Evidence Professor Michael Belgrave has provided the Tribunal with a review of the casebook as it relates to resource management matters post 1991. Stokes (A15) and Kahotea (A16, A17) deal with the pre RMA period. Tony Nightingale (A41) examines the inability of planning legislation to recognise specific Maori needs, particularly those of marae, from the Town and Country Planning Act 1953 until some limited recognition in the 1977 legislation. La Rooij provides a useful discussion of planning and its relationship to rating issues (P14). This study includes the use of the marae community zone. There is little evidence of the local authorities’ view of their contemporary or historical relationship with Tauranga iwi, other than a statement on planning from Andrew John Ralph of Tauranga (D4). Willan also considers this for Ngai Te Ahi (F29). Coffin covers the planning tribunal proceedings dealing with Bethlehem (A37 (b)) and there is a brief council comment (D4). These proceedings include evidence from Professor Anne Salmon, which could be of some assistance to this inquiry. McClean discusses illegal reclamations on the Waikareao Estuary (D4). The present situation and the impact of the RMA in Tauranga is a major gap.1
1 Professor Belgrave Review of Casebook.
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The coverage of environmental issues, the RMA, rivers and Tauranga harbour and the protection of historic places are far from comprehensive or up to date.
Most of the reports on water quality were undertaken prior to the RMA coming into effect. Harbour, water quality and fishing are considered by Robert A. McClean, Tauranga Moana: Fisheries, Reclamation, and Foreshores Report (D7). Becca Steven, in their report, Western Bay of Plenty Sewerage: Water Right Study of Bay of Plenty Ocean Foreshore Waters (A20), consider water quality conditions from research undertaken in 1991 as does Bio Researchers, Western Bay of Plenty Sewerage Water Rights Study of Bay Of Plenty Near Shore Ocean Waters: Biological Resources (A21). Neither report was prepared for the tribunal’s inquiry and neither reflects an interest in Maori values as important in reviewing water resources.
Only one report mentions, but does not develop, the issue of geothermal resources (Coffin, A28) while also reviewing Ngati Kahu’s relationship with and use of the Wairoa river and the environmental state of the river as at 1995. Rachael Willan’s Wairoa River report comments on any impact of pollution, fisheries, and hydroelectric development on Maori use and relationship with the river, particularly that of Ngati Kahu (A33). These themes are also developed by Antoine Coffin, Ngati Kahu, Ngati Rangi, and Ngati Pango: Wai 42a (A37 (b)). Robert A McClean reviews The Matakana Island Sewerage Outfall (B4), but this will require updating for more recent developments.
A small number of post-1991 issues are covered, but most of these will still need to be brought up to date. B McCabe, K Ryan and P Blackett (McCabe Environmental Consultants Ltd) Matakana Island Feeder Submarine Cable Laying. Assessment of Environmental Effects (1996, A24) is an environment impact report showing a degree of consultation with Matakana Maori over the proposal. Kay and Bassett provide a small case study on Maori ability to influence the administration of the Bowentown Domain (A46).
Destruction of historic places, and in particular pa sites, is discussed in several reports such as Bassett (A26), Bassett and Kay (A45 and A46), Blackburn (I1) and La Rooij (F2). Two small blocks of land at Huharua (Plummers Point) reserved out of the Katikati Te Puna purchase of 1866, were both sold in the early 20th century, raising issues about loss of access and protection given to pa (Bassett, A45).2
2 Professor Michael Belgrave Review of the Casebook.
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Professor Michael Belgrave has identified gaps in post 1991 resource management matters. The commissioning of this report and another specifically addressing heritage matters will provide further understanding of the current context of Maori involvement in resource management. It is also understood that local authorities will be contributing evidence at the upcoming hearings of the Waitangi Tribunal.
1.4.2 Local Authority and SmartGrowth Literature The Councils have extensive libraries and archives. A search of Tauranga City Council library was conducted and a number of important documents were identified. The Tauranga Urban Growth Strategy Resource Inventory – Features of Significance to the Maori Community (Desmond Kahotea), Papamoa Archaeological Overlay (Desmond Kahotea), Evaluation of Cultural Heritage landscape (Antoine Coffin), a number of archaeological surveys for Papamoa, Bethlehem, Kairua Road and Mount Maunganui reserves (Hopukiore) were identified. A report prepared by Vaughan Payne in 2003 provides an depth review of consent processes at Tauranga District Council.
The Western Bay of Plenty District Council has commissioned a number of important reports that have a bearing on these matters. These include Housing Development in the Western Bay of Plenty, and Consultation with Tangata whenua under the Resource Management Act 1991 – Resource Consents (Antoine Coffin). The Housing report provides some details of challenges in housing as well as the implications of zoning. The Coffin report provides a wide description of consent processes and engagement with Tangata whenua. The Coffin report provides a broad view of consent processes and engagement with Tangata whenua.
1.4.3 Public Library The public library holds a number of historical and recent planning reports. These are limited to publicly notified plan changes and supporting technical documents. Outside of the evidence prepared for the Waitangi Tribunal hearings and iwi strategic documents there is little literature available describing Tangata whenua participation in resource management, local authority processes and issues of concern. Relevant records were scanned and included in the document bank.
1.4.4 NZ Historic Places Trust The New Zealand Historic Places Trust has a Tauranga Office, which holds archaeological authority files, wahi tapu and historic place
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registration files, and the New Zealand Archaeological Association Site Recording Scheme.
No post 1991 publications or reports on Tauranga Western Bay of Plenty heritage resources or the way in which they may be managed in the future were identified.
1.5 Local Authorities within Inquiry
There are currently three local authorities within the inquiry district. These are Tauranga City Council, Western Bay of Plenty District Council and Bay of Plenty Regional Council (Environment Bay of Plenty). The Department of Internal Affairs administers two offshore islands, these being Motiti and Tuhua. The councils were established following council re-organisations in 1989, replacing the former borough, county and city councils. See map 1.
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2.0 DISTRICT PLANS
The current operative district plans for TCC and WBOPDC are:
District Plan Operative date
Tauranga District Plan [Nga ture o te Operative 18th August 2003 Kaunihera a rohe o Tauranga maona]
Tauranga District Plan Coastal hazard Operative 19 February 2005 provisions, Papamoa East)
Western Bay of Plenty District Plan 20 July 2002
2.1 Development of District Plans
Both Councils have followed the First Schedule of the Resource Management Act regarding the preparation of their respective District Plans. In both cases there have been variations to the proposed District Plans.
Process of Adoption of current Tauranga District Plans
Council resolve to prepare proposed 1991/1992 District Plan
Consultation with Key community and 1993-1996 interest groups.
Preparation of Draft Tauranga District 1996 Plan
Submissions & Further submissions 1997
Proposed District Plan Prepared 1997
Proposed District Plan Notified 1997
Variation No 1 - Bethlehem Urban Growth Notified August 1997 Area
Variation No 2 – Rezoning of Land for Notified 1997 Commercial Centre Bethlehem
Variation No 3 – Matapihi Peninsula Notified August 1997
Submissions
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Further Submissions
Hearings
Council Decisions 1998
Appeals Lodged & resolved 1998 - 2003
Variation No 4 – Tree Management Notified April 1999 Review
Variation No 14 – Provisions for Visitor Notified 1999 Accommodation
District Plan Made Operative 18th August 2003
Plan Changes Commence to respond to 2004 - 2006 issues identified through environmental reporting.
Process of Adoption of Current Western Bay of Plenty District Plan
Council resolve to prepare proposed 1992 District Plan
Consultation with Key community and 1992 interest groups.
Proposed Western Bay of Plenty District Notified 1994 Plan
Variation No 1/ Proposed Plan Change No Notified Nov 1997 1 (Rural Subdivision Review)
Hearings and Decisions 1998
Proposed District Plan made operative 20th July 2002
Plan Changes 2 to 36 Various issues including urban growth planning – most are now operative.
2.2 Maori involvement in plan development
Western BOP District Council held public meetings for the district plan in each community ward. Individual consultation meetings were held with each Iwi / hapu group. WBOPDC formed the Maori Forum in the early 1990’s as advisors to Council and to assist in consultation and identifying cultural issues. Concerns raised by Iwi and hapu in the Western Bay of Plenty included:
• The impact of financial contributions
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• Servicing issues and associated costs
Tauranga District Council completed consultation both with Iwi and hapu groups. This included commissioning an Iwi Management Plan by Ngaiterangi iwi as a means of achieving a comprehensive input. Ngati Ranginui were also provided an opportunity to prepare their own plan, however, this was not achieved.
Servicing issues were identified as a constraint to developing their lands. Several Iwi / hapu were also concerned with the proposed land use changes around their marae and papakainga areas. In several areas Council introduced controls to minimise the intensity of development around these areas or retained existing rural zoning. Examples of this include Matapihi where zoning was retained as rural and Bethlehem where setbacks and special density controls were introduced.
2.3 Key aspects of the district plan relating to Tangata whenua
This section provides a summary of the key aspects of each district plan as related to zoning, urbanisation, cultural heritage and papakainga.
Tauranga District Plan
Key Aspect Comment
Zoning Marae (Urban) and Marae (Rural) zones introduced. The distinction related largely to the ability to service the land, although some hapu through Appeals sought to retain rural zoning.
Urbanisation Urbanisation was controlled through the District Plan through subdivision and land use rules for identified Greenfield areas and infill development. Six urban growth areas were identified and these included Bethlehem, Pyes Pa, Ohauiti, Welcome Bay, Papamoa and Pyes Pa West. Urban Growth Areas (UGAs) originated from the Tauranga Urban Growth Strategy 1991. Each area had a Structure Plan prepared that provides a basis for coordinated provision and funding of services.
Cultural Heritage Council undertook several archaeological surveys and Maori heritage inventories prior to the proposed District Plan being notified. Archaeological sites and sites of significance to Tangata whenua were recorded on Council’s GIS and within the Heritage Register
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within Chapter 16 of the District plan (see Appendix 16A). There were some reservations regarding including all wahi tapu areas and disclosing information regarding these wahi tapu.
Papakainga Papakainga housing was controlled through Marae (urban / rural) zoning.
Western Bay of Plenty District Plan
Key Aspect Comment
Zoning Papakainga zones were retained as a method of providing for growth within papakainga areas. Key issues related to the provision of adequate services and including access. There was a cap on the number of dwellings that could be constructed.
Urbanisation Limited impact resulting from urban growth due to limited extent of land use change. Local government reorganisation had tagged WBOPDC as the “rural” authority and attempted to include all significant future urban land within the Tauranga District boundary.
Cultural Heritage Consultation for urban growth areas. Limited assessment of cultural heritage.
Papakainga Papakainga zones established
In the Tauranga District and Western Bay of Plenty District Plans, one of the constraints to the development of papakainga housing and Maori land is the ability to connect to services and /or comply with the Environment Bay of Plenty On-site Effluent Regional Plan. An associated constraint is the inability to pay for financial contributions if services are available.
2.4 Review of District Plans
The transitional provisions of the Resource Management Act 1991 (Section 377) require District Council’s to review it’s Transition District Plan 10 years after the date it became operative under the Town and Country Planning Act 1977.
Tauranga District Council notified its proposed Tauranga District Plan in 1997. The Western Bay of Plenty notified its Proposed District Plan in 1994. Variation No 1/Plan Change No 1 (branded ‘Fields for the Future’) sought to review the rules relating to rural subdivision as the environmental effects resulting from liberal subdivision rules were considered to be unsustainable.
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The RMA (Section 77) requires a district plan to be reviewed if a Regional Policy Statement is introduced, which renders the District Plan inconsistent with it. A timeframe is normally identified for the District Council to review its plan. There is no specified timeframe (in years) for review of a District Plan as prescribed by the transitional provisions of the Act in Section 377. The Ministry for the Environment did however put pressure on Councils to complete their district plans in a timely manner.
The SmartGrowth Sub regional Growth Study was undertaken for the western Bay of Plenty subregion to promote a collaborative approach to managing growth and providing infrastructure. Both Tauranga District Council and Western Bay of Plenty District Council have introduced Plan Changes to activate growth areas and to modify rules where these are not delivering the anticipated environmental results. Essentially the District Plans in each District are under an ongoing review.
3.0 ZONING
3.1 Overview
Zoning is a planning tool that is used by local authorities to provide certainty with regard to the nature, scale and intensity of activities within a geographic area and control effects on the environment. The Councils of Tauranga and Western Bay have used zoning across their respective districts. The following tables provide a summary of the zones within the Tauranga District Plan and the Western Bay of Plenty District Plan. Comments are provided on the intended activities of each zone.
Tauranga District Plan
Zone Comment
Residential A Zone promotes residential activities but allows home-based businesses of limited scale as a permitted activity. Minimum average lot size is 325m2 per residential unit. Must be connected to reticulated services.
Residential H High-density residential development to a maximum permitted density of 1 lot per 100m2. Special controls apply to high-rise development above 9m in respect to setback from adjoining properties.
Marae (Urban) Similar controls to Residential A – Marae based activities specifically provided for as a permitted activity. General District
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Plan rules still apply.
Rural zone Zone provides for rural farming and horticulture activities. Used at Matapihi and Bethlehem (Wairoa River Valley) to protect cultural significance of ancestral landscape.
Marae (Rural) Similar to Rural zone but allows for up to 10 papakainga houses and/or other residential dwellings as a permitted activity. Not reticulated.
Large Lot Provides for residential development on land that has difficult Residential terrain to develop. Still requires connection to reticulated services. Minimum lot size is 3000m2.
Rural residential Provides for un-serviced residential development on land generally not suitable for residential development. Not serviced with wastewater. Minimum lot size 3000m2. Average lot size 4000m2.
Industrial Business Provides for industrial activities and limits retailing.
Commercial Provides for retailing and other commercial activities. Promotes Business mixed-use development i.e. residential development above ground floor.
Recreation A & B Zone provides for places of assembly, community facilities and associated activities. The definition of places of assembly is broad and includes culture, recreation and leisure activities.
Conservation Promotes enhancement of ecology of areas. Rules severely limit use of conservation zones which include fore dune areas and areas of ecological significance.
Western Bay of Plenty District Plan
Zone Comment
Residential Zone promotes residential activities but allows home-based businesses of limited scale as a permitted activity. Minimum lot size is 350m2 per residential unit. Must be connected to reticulated services.
Rural G & H Provides for principally farming and horticultural activities. Subdivision of land greater than 4ha is permitted subject to an
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age of title restriction. There is also potential to gain subdivision rights through protecting ecological features (Transferable Development Rights).
Use of existing urupa is a permitted activity. Specific provision is made for developing Maori land at a rate of 1 dwelling per 4000m2 as controlled activity. Such would be subject to financial contributions.
The “G” in Rural G stands for “General”. The “H” in Rural H stands for “Harbour”. Rural H has more stringent rules on activities that may affect the harbour environs, but also allows more subdivision opportunity because the roads and other infrastructure offers more capacity.
Industrial Provides for a wide range of industrial activities. Retailing is limited to 100m2 provided it is associated with a permitted activity.
Commercial Provides for general retail activities, commercial services, offices, places of assembly etc. Dwellings are provided for as a controlled activity provided they are secondary to a commercial use.
Residential (Rural These zones are provided specifically for Maori housing and Community) Zone / papakainga zone rules in the rural environment. This is subject Papakainga Zone to a development suitability criteria identified in Chapter 15 of Rules the District plan (See 15.3.5.3 and 15.3.5.5).
General Rules General rules apply to the whole district and where the district planning maps identify important ecological, landscape and heritage features.
3.2 Impact of the zones on Tangata whenua
Several district schemes provided for papakainga housing zones (Marae Community Zones). These have been brought forward into current generation plans often modified to meet identified environmental outcomes and land ownership (Maori vs freehold).
The papakainga zones also provide clear limits to unserviced growth at which point activity classification changes and requires assessment and provision of adequate services. This is a major hurdle for Iwi and hapu groups developing their lands.
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In several instances land has been retained as rural to provided a buffer zone or hold the land for maximum land use opportunity in the future. This accords with the purpose of the Act – to sustainably manage natural and physical resources for future generations.
The rural zone also recognises cultural and lifestyle preferences of communities associated with low-density development. It also provides for primary production, a key economic driver of the Bay of Plenty.
The challenges of the zoning approach to Maori communities is the matching of activities with the intention of the zones. In many cases the papakainga/Marae community zones have reflected short term needs rather than medium to long term needs and aspirations of the community. They may not have considered the land tenure where landowners do not have shares in a block that has been zoned papakainga or marae community zone.
Further comments are included in the housing report for Western Bay of Plenty included in the document bank.
3.3 The relevant zones of the remaining significant areas of Maori land in Tauranga
Maori land in the Inquiry area is made up of predominantly rural zoned land with a small mix of rural residential, residential and conservation. The large land holdings are in Matapihi, Bethlehem, Welcome Bay, Papamoa, Te Puna, and Kaimai. Extensive research has been conducted as part of SmartGrowth, a summary of this was provided by Mr Te Pio Kawe in his brief of evidence during the second stage hearings at Whareroa. The full report “Land Capacity, August 2002, Tauranga District Council” is included in the document bank.
3.4 Motiti Island and Tuhua (Department of Internal Affairs)
The Minister of Local Government acts as the territorial authority for eight offshore islands that are not included in the boundaries of an established local authority. Only three have any significant population and / or permanent buildings and structures. Two of these islands are within the Tauranga Moana Inquiry.
• Mayor (Tuhua) Island - a small, infrequently active volcanic island situated off the Bay of Plenty coast. The island is controlled by the Tuhua Trust Board, which maintains and hires out several buildings and cabins. The island is closed to the public until these buildings and facilities are made safe.
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• Motiti Island - a small settled island with a permanent population of approximately 50 people mostly engaged in farming.
The Resource Management Act 1991 requires all territorial authorities in New Zealand to provide their communities with a District Plan. The Department of Internal Affairs is currently engaged in developing a District Plan for Motiti and Mayor (Tuhua) Islands on behalf of the Minister of Local Government, who has the responsibilities of a territorial authority for those islands.
The Department has contracted Beca Carter Hollings and Ferner Ltd (Beca) to prepare and write the District Plan for Mayor (Tuhua) and Motiti Islands.
Newsletters have been sent to all island residents, Tangata whenua tribal affiliations, and other stakeholders. These newsletters explain what the District Plan is, how it will be prepared and its importance to the residents and the future of the islands. They also provide progress reports
There have been a number of hui and meetings with Tangata whenua representing both islands, and contact from organisations and individuals with interests on the islands. Following the hui and meetings, a draft plan was prepared and presented to Motiti island interests for their comment.
The Mayor (Tuhua) Island draft plan was developed with the assistance of the Tuhua Trust Board.
Following preliminary feedback from interested parties, the Draft Plans for both Islands are now ready for formal public notifications. Before that process starts, interested parties have a further opportunity to view the draft plan and to make suggestions for changes.
A copy of the draft district plan and newsletters is included in the document bank.
4.0 OTHER PLANNING DOCUMENTS
4.1 NZ Coastal Policy Statement
The New Zealand Coastal Policy Statement (NZCPS) was gazetted in May 1994. The NZCPS is a national statement prepared and monitored by the Minister of Conservation under the Resource Management Act 1991. The purpose of the NZCPS is to provide a policy framework that will promote the sustainable management of the natural and physical resources of the coastal environment.
All regional policy statements, regional plans, and district plans cannot be inconsistent with the NZCPS. One of the individual policies within the NZCPS
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addresses the protection of the characteristics of the coastal environment of special value to Tangata whenua including wahi tapu, tauranga waka, mahinga maataitai and taonga raranga.
4.2 Operative Bay of Plenty Regional Policy Statement
The Bay of Plenty Regional Policy Statement (RPS) provides an overview of the resource management issues of the region and policies and methods to achieve integrated management of the natural and physical resources of the whole region under the Resource Management Act. District and regional plans must ‘give effect to’ the RPS. The RPS became operative on 1st December 1999.
The RPS is in two parts; the first provides an overview of the characteristics of the region and the issues at sub regional level. The second part addresses significant issues through objectives, policies and methods.
Environment B·O·P consulted widely with iwi/hapu of the region to secure a comprehensive set of information on matters of resource management significance to them. The majority of iwi were present at a number of hui. From these discussions a report was produced which has formed the basis of this chapter. Some iwi chose to consult directly with Environment B·O·P.
Some detailed matters of significance to iwi authorities are included in the sub regional issue sections. Objectives, policies and methods addressing these issues are included in Part II of the Statement. A schedule listing the specific objectives, policies and methods and the iwi issues they address is included in Appendix C of the Statement.3
Twelve issues papers highlighting the Bay of Plenty Region’s major resources and activities were released. These documents were compiled and released for comment between November 1992 and April 1993. The number of comments, both written and oral, on each paper ranged from 10 to 51.
Issues papers were:
Your Land Our Coast – To Tatou Taku-Tai-Moana
Cultural Heritage Issues Water Issues
Natural Hazards Issues Waste and Hazardous Substances Issues
Transport Issues Air Issues
3 Bay of Plenty Regional Council. Regional Policy Statement. Chapter 4
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Geothermal Issues Energy Issues
Landscape Issues Tourism and Recreation Issues
These documents provided background information on each topic area, discussing the major current issues and outlining potential future issues. They also proposed a range of possible objectives, policies and strategies in relation to the management of these resources4.
Part I of the RPS includes a section on ‘Matters of Significance to Iwi Authorities’.5 This section is based on a paper on Maori environmental management and the Whakatohea Resource Management Plan (1993). This section raises a number of matters related to kaitiakitanga, tino rangatiratanga, decision-making processes, degradation of coastal resources, and the managaement of taiapure and marine reserves.
In Part II, the coastal environment section sets out the issues, objectives and, policies and methods for the coastal marine area. Two issues in this section include:
• Iwi wish to retain their traditional role as kaitiaki and to be actively involved in the management of coastal resources
• Urupa, tauranga waka sites, and other taonga area such as battle sites in the coastal environment, are not always protected
There are extensive references to Tangata whenua throughout the policy statement. Consultation was conducted with Tangata whenua through iwi authorities and tribal runanga, assisted by consultants and the release of an Iwi Resource Management Strategy Resource Planning Kit in February 1992 and culminating in the report Maori Environmental Management in the Bay of Plenty Regional Policy Statement (Nga Tikanga Tiaki i Te Taiao) in May 1993.
In April 2004, Environment BOP notified Plan Change No. 1. This Plan Change introduces heritage criteria to be applied across the Bay of Plenty Region. The purpose of these criteria is to guide identification and assessment of heritage values and places. Five value sets have been developed to address natural character, natural features and landscapes, indigenous vegetation and habitats of indigenous fauna, Maori culture and traditions, and historic heritage.
4 Bay of Plenty Regional Council. Regional Policy Statement. Appendix D 5 Environment BOP. Bay of Plenty Regional Policy Statement. December 1999. p63-72
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Proposed Change No. 1 incorporates into the policy statement policies, methods and criteria for assessing heritage values and places referred to in section 6 of the Resource Management Act 1991, by:
• Amending chapters 1 (introduction), 5 (Resource Management Practice), 15 (Heritage), and Appendix A (Functions of Regional and District Councils under the Act); and • Inserting new Appendices F (criteria for assessing heritage values and places in the Bay of Plenty region) and G (criteria for assessing whether subdivision, use and development, in regard to heritage values and places assessed as warranting protection under section 6 of the Act, is inappropriate).
The value set for Maori culture and traditions includes criterion that recognise the cultural values of places that provide, or once provided, important customary resources to Tangata whenua. Some examples given are:
• Food gathering places
• Rongoa gathering places
• Waiora
• Mahinga kai
• Wahi taonga mahi a ringa
• Taunga ika
• Wetlands, lakes, rivers, streams, punawai, the sea, harbours, inlets, aquifers, ngawha, waiariki, lagoons and other water bodies
The effect of the new policies and methods once the plan change has become operative will be to assess resource consent applications against the criteria and include the new criteria when preparing heritage provisions for inclusion in district and regional plans.6 This provides wide scope for the assessment and recognition of historic and/or current customary activities.
Environment Bay of Plenty publicly notified Proposed Change No. 2 to the Bay of Plenty Regional Policy Statement (Growth Management) on 22 September 2005. The proposed change implements aspects of SmartGrowth, a 50-year Strategy and Implementation Plan for the western Bay of Plenty sub-region.
6 Environment BOP. Proposed Change No.1 to the Bay of Plenty Regional Policy Statement (Heritage Criteria) User Guide. 29 November 2005
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The change involves two main concepts: Urban Limits, and Live, Work and Play. These will be contained in a two new chapters: Chapter 17 called ‘Growth Management’ and Chapter 17A, 'Growth Management in the Western Bay of Plenty'. Chapter 17A includes policies and associated maps that establish urban limits. The proposed Change addresses Maori land and includes the following objective:
“Multiple-owned Maori land is developed and used in a manner that enables Maori to provide for their social, economic and cultural well-being and their heath and safety, while maintaining and enhancing the quality of the environment and safeguarding its mauri. “
Footnote p12 of Plan Change 1
The SmartGrowth Combined Tangata Whenua Forum prepared a submission to the plan change to ensure provision has been made for papakainga outside the urban limits.
4.3 Regional Coastal Environment Plan
The Bay of Plenty Coastal Environment Plan was prepared by Environment BOP (Bay of Plenty Regional Council) and became operative on 12th December 2002.
The purpose of the plan is to enable Environment BOP to promote sustainable management of the natural and physical resources of the Bay of Plenty coastal environment.7 The coastal environment in the context of the plan includes the coastal marine area and the landward edge.
The Resource Management Act 1991 defines the coastal marine area as:
The foreshore and seabed and coastal water and the air space above the water –
(a) Of which the seaward boundary is the outer limits of the territorial sea:
(b) Of which the landward boundary is the line of mean high water springs, except that where that line crosses a river, the landward boundary at that point shall be which ever is the lesser of –
i. One kilometre upstream from the mouth of the river; or
ii. The point upstream that is calculated by multiplying the width of the river mouth by 5.
The Plan includes two volumes. Volume 1 provides background; plan framework, matters of national importance, activities and effects, matters where there is no
7 Bay of Plenty Regional Council. Bay of Plenty Regional Coastal Environment Plan. December 2002. p3
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statutory function, environmental outcomes, rules, and schedules. Volume 2 contains planning maps.
In regards to Tangata whenua matters the RCEP sets out a number of policy directions that may have potential effects. These include:
• Restricted access to protect Maori cultural values.8
• Recognise significance of the coastal environment to Tangata whenua, and to provide for customary uses and management practises relating to the natural and physical resources of the coastal environment, including mahinga mataitai, wahi tapu and taonga raranga, in accordance with tikanga Maori.9
• Recognise the role of Tangata whenua of the Bay of Plenty as kaitiaki of the regions coastal resources, and the right of each iwi to define their own preferences for coastal management within their tribal boundaries.10
• Avoid, remedy or mitigate adverse effects on resources or areas of special spiritual, historical or cultural significance to Tangata whenua. This includes, but is not limited to, those areas and values identified in the maps and fourteenth schedule – areas of significant cultural value.11
• Protect heritage resources within the Bay of Plenty coastal marine area, registered by NZ Historic Places Trust, NZ Archaeological Association Site Recording Scheme, or listed in the Regional Heritage Inventory12 and promote further research into identifying any additional sites or features of heritage value in the coastal marine area.13
8 Bay of Plenty Regional Council. Bay of Plenty Regional Coastal Environment Plan. December 2002. 7.2.3(a) & 7.2.4(d) p36,37) 9 Bay of Plenty Regional Council. Bay of Plenty Regional Coastal Environment Plan. December 2002. 8.2.3(a) p40 10 Bay of Plenty Regional Council. Bay of Plenty Regional Coastal Environment Plan. December 2002. 8.2.3(b), p40
11 Bay of Plenty Regional Council. Bay of Plenty Regional Coastal Environment Plan. December 2002. 8.2.3(c), p40 12 Bay of Plenty Regional Council. Bay of Plenty Regional Coastal Environment Plan. December 2002. 18.2.3(a), p114 13 Bay of Plenty Regional Council. Bay of Plenty Regional Coastal Environment Plan. December 2002. 14.2.4(b), p114
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• The regional council has an advocacy role in sustainable management of coastal fisheries and will consider access, effects of exclusive occupation on fishing opportunities, protection of juvenile fish habitats, avoiding or mitigating any adverse effects on fisheries, important fishery or shellfish habitat, and support for taiapure and mataitai applications.14
• Advocate the establishment of a network of unique and representative marine protected areas in consultation with Tangata whenua and other agencies.15
The Regional Council is currently undertaking investigating provision of Aquaculture Management Areas. Offshore use Maps and an Offshore Science Project are near completion. Potential adoption of AMA’s in the regional coastal plan will have an affect on customary rights through physical occupation of the water and seabed space and the potential exclusion of other activities. This has involved consultation hui in Tauranga.
4.4 New Zealand Historic Places Trust Register
The New Zealand Historic Places Trust maintains the Register of Historic Places, Historic Areas, Wahi Tapu and Wahi Tapu Areas. The register is the national schedule of New Zealand’s treasured heritage places. It is established under the Historic Places Act 1993.
The Register is divided into four parts:
• Historic Places include archaeological sites, buildings, trees, cemeteries, gardens, shipwrecks, landscapes and many other types of places • Historic Areas are groups of related historic places such as precincts of buildings and sites. Emphasis is on the significance of the group • Wahi Tapu are places sacred to Maori • Wahi Tapu Areas are groups of wahi tapu. Historic places are further divided into two categories: Category I status is given to places of ‘special or outstanding historical or cultural heritage significance or value’ Category II status to places of ‘historical or cultural heritage significance or value’.
14 Bay of Plenty Regional Council. Bay of Plenty Regional Coastal Environment Plan. December 2002. 21,2,4, p126 15 Bay of Plenty Regional Council. Bay of Plenty Regional Coastal Environment Plan. December 2002. 22.2, p127-128
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Places may be significant because they possess aesthetic, archaeological, architectural, cultural, historical, scientific, social, spiritual, technological or traditional significance or value.
Hard copies of the register are held in regional and area offices. The register also lists any heritage covenants.
The register is considered during the preparation or change of any regional policy statement or plan, and district plan.
In the Western Bay of Plenty District there is one registered wahi tapu area, Kopukairoa (#7514). This maunga was subject to national media attention when a roadway was bulldozed up the side of the maunga and noticed by Tangata whenua.
A formerly registered wahi tapu area is located at Donovan Park, Te Puke named Ohineangaanga wahi tapu area (#7457). This item has been removed from the register awaiting investigation. This practice of removal is usually due to potential challenge from an interested party or insufficient information to withstand a challenge. This wahi tapu are is located outside the Inquiry district.
There are no registered wahi tapu in the Western Bay of Plenty.
In Tauranga City there are 2 registered wahi tapu areas, however no registered wahi tapu. The wahi tapu areas are Kairua Wahi tapu area (#7505), an archeological complex including two pa. This area was registered following a proposal to construct water reservoirs on the site.
The other wahi tapu area is the Papamoa No2 Burial Reserve wahi tapu area (#7499). It includes burial sites and midden. This is noted as a small fraction of the former extensive area from Mount Maunganui to Maketu. This burial reserve was registered following minority owner proposals to have part of the block partitioned and sold for residential development.
4.5 New Zealand Archaeological Association Site Record Scheme
Established in 1958, the New Zealand Archaeological Association (NZAA) Site Recording Scheme is a national system for recording information on archaeological sites. It is a paper-based record system. Many different individuals and organisations provide information to the Site Recording Scheme as their contribution to a co-operative venture. The Site Recording Scheme currently contains over 55,000 records.
A separate file of records is kept for each of twenty filing districts and duplicates of all records are deposited in a Central File. Records may contain plans, section drawings, photographs, artefact drawings, and field notes. There is a computerised
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database of key information (CINZAS - Central Index of New Zealand Archaeological Sites), which serves as an index to the paper records. The Site Recording Scheme is endorsed by the New Zealand Historic Places Trust and the Department of Conservation and has been described in a review (1996) by the Parliamentary Commissioner for the Environment as “a database of major national significance”.
The Site Recording Scheme was established as a special interest database, and its primary use for many years was as a research tool for members of NZAA. Since the advent of the Resource Management Act 1991 (the RMA) and the revised Historic Places Act 1993 (the HPA) there has been greater use of the Scheme in planning and legal issues for site identification, protection and management. Territorial local authorities are one of the principle users of the Scheme in their ongoing land and heritage management and protection roles.
The site records for the study area are located at NZ Historic Places Trust office at Tauranga and managed by the resident file keeper and regional archaeologist.
The Site Record Scheme has no statutory recognition in the Resource Management Act 1991 or Historic Places Act 1993, however, the scheme is mentioned in the Regional Coastal Environment Plan. The archaeological sites from this scheme are currently held by the respective Councils (GIS), however the sites are not included in the district plans or regional plans due to the inaccuracies of the data.
There are currently more than 8,000 recorded sites in the Bay of Plenty. A large number of these sites are located within the inquiry area.16 A number of selected sites have been upgraded recently as part of a national programme to update archaeological records. This update only applies to already recorded sites. Tangata Whenua have had limited involvement in the identification and recording of these sites.
4.6 Crown sites of significance
Independent from the Treaty settlement process, the Crown accepts a responsibility to protect wahi tapu and other sites of historical, spiritual and cultural significance to Maori on surplus Crown land.
The Sites of Significance (SoS) process is administered by Te Puni Kokiri (TPK). This process focuses on the protection of sites of significance on surplus Crown-owned land that is being considered for sale. The process is open to any Maori who can prove an association with the site, irrespective of whether or not they have a Treaty of Waitangi claim. The Sops process complements and works in tandem with the Protection Mechanism.
16 Bay of Plenty Regional Council. Report on the state of the Bay of Plenty environment. 2004. p13
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The aim of the process is to:
• Have the protection in place before the land is transferred out of Crown ownership, and
• Obtain protection for significant sites by using existing statutory and administrative provisions.
The process considers sites that have identifiable boundaries and fall into one of the following categories:
• Burial place
• rua koiwi (burial caves)
• Sacred shrine
• Underwater burial place or cavern
• Waiora or source of water (spring) for healing, or
• Source of water for death rites.17
There is no formal relationship between the Crown sites of significance process and responsibilities under the Resource Management Act and Historic Places Act. Therefore these sites are not recognised in the preparation of district and regional plans.
4.7 Draft Tauranga Harbour Integrated Management Strategy
The Tauranga Harbour Strategy is a non-statutory document that has been prepared by Environment Bay of Plenty. The Strategy is a framework document that identifies the range of planning instruments that in their totality provide for the management of Tauranga Harbour.
4.8 Regional Land Transport Strategy 2004 & Draft Regional Land Transport Strategy 2006
The Bay of Plenty Regional Land Transport Strategy (RLTS) was adopted in September 2004. The RLTS was the first regional land transport strategy to be completed under the new legislative environment of the Land Transport
17 Protection of Maori Interests in Surplus Crown-Owned Land – Information for Crown Agencies: Office of Treaty Settlements. P6-7
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Management Act 2003. The 2004 RLTS had a target to undergo a comprehensive review in mid 2006.
As a matter of interest the terms ‘iwi’ and ‘hapu’ are not mentioned in the document, whilst Maori is once (describing a group which is represented in the Land Transport Committee) and Tangata whenua several times where implementation (projects) need to engage with the Maori community and manage sensitivities in investigating a alternative Tauranga harbour rail bridge.18
There were no Tangata whenua represented on the project team or technical committee, however one Maori representative from outside of Tauranga/Western Bay on the Land Transport Committee.
The draft regional land transport strategy is currently being prepared. It is unclear whether there has been any input from Tangata whenua to the draft or any as planned.
4.9 Bay of Plenty Regional Waste Strategy June 2004
This strategy provides a regional position on managing waste, hazardous substances, hazardous waste and contaminated sites in the Bay of Plenty. Tangata whenua were consulted in the development of the strategy but it is unclear to what level. The strategy makes it clear that the responsibilities of regional waste lie with the co-ordination of regional council and statutory agencies. While Tangata whenua are mentioned in the introductory sections of the strategy, they are not again mentioned or their special relationships.
The exclusion of Tangata whenua perspectives and issues in the strategy is surprising, given the consistent voicing of waste management issues in the development of the SmartGrowth strategy and external forums.
4.10 Bay of Plenty Regional Pest Management Strategy 2003-2008
Prepared under the Biosecurity Act 1993, the Pest Management Strategy replaces the two separate pest animal and pest plant strategies of 1998. This strategy provides for the efficient and effective assessment, management and/or eradication of pest plants and pest animals in the Bay of Plenty region.19
The terms ‘Tangata whenua’ and ‘hapu’ are not mentioned in this document. “Iwi’ is mentioned once in the context of building community partnerships to manage pests. Maori are mentioned in a statutory context recognising the relationship of Maori with ancestral lands, etc.
18 Bay of Plenty Regional land Transport Strategy. 2004. p60 19 Bay of Plenty Regional Pest Management Strategy. 2003. p1
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4.11 Marine Protected Area Policy and Implementation Plan
On 31 January the Government announced the Marine Protected Areas Policy (MPA) and Implementation Plan to realise the NZ Biodiversity Strategy vision of a network of marine protected areas. A project to research, identify and protect marine protected areas has begun with the completion of the project by the end of 2011. This project will have a significant impact on customary activities, uses and practises that relate to shorebirds, sea birds and marine mammals.20
4.12 Heritage Strategy
Between 1993 and 1994 the Tauranga District Council sought to establish a Heritage Management Strategy. This strategy does not appear to have been adopted or progressed.
There is currently no “standalone” heritage strategy for the Tauranga and Western Bay of Plenty with the Councils’ formal policy on heritage currently included as part of the District Plan policy and rules, and the SmartGrowth Strategy.
4.13 Catchment Plans
A number of stormwater catchment plans have been or are being prepared. These have included participation of Tangata whenua and cultural expertise. Plans include Waimapu River Catchment Plan, Wairakei Catchment Plan, and Hull Road/Salisbury Catchment Plan.
5.0 FINANCIAL AND DEVELOPMENT CONTRIBUTIONS
5.1 Local Government Regime 1991
Councils have powers to require rates, and financial or development contributions.
In 1991, financial contributions were a fee charged to applicants under the Resource Management Act for building and resource consents for the impact they would have on infrastructure including the provision of reserves.
Section 108 of the Resource Management Act (RMA) and the District Plan (where provided for) enables a Council to collect financial contributions to avoid, remedy or mitigate the adverse effects of a development. Both the RMA and the district plan can authorise a Council to impose a condition requiring a financial contribution on any resource consent.
20 Department of Conservation. Letter from Henry Weston, Conservator Bay of Plenty to Environment Bay of Plenty. 23 February 2006
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5.2 Recent Changes
The introduction of the Local Government Act brought with it changes to the contributions regime. The contributions can now be determined through development contributions contained in the Long Term Council Community Plan. The RMA policy applied until the LTCCP with policies on development contributions came into operative effect. For the Tauranga City this was 2004. The use of the LGA procedure enabled Tauranga city to significantly increase the amount payable by a development.
At this stage, Western Bay of Plenty District has chosen to retain financial contributions under the RMA.
Development contributions may be required in relation to development if the effect (or cumulative effects) of the development is to require new or additional assets of increased capacity and as a consequence the Council incurs capital expenditure to provide appropriately for network infrastructure, community infrastructure and reserves. In addition the Council requires development contributions to pay, in full or in part, for capital expenditure already incurred by the Council in anticipation of development.
Ngati Kahu had lodged an appeal against the financial contributions in 2004 seeking exception from the proposed contributions included in plan changes 15 and 35 for Bethlehem. The new legislation and subsequent withdrawal of contributions from the Plan Change effectively made the appeal redundant. A member of Pirirakau appealed the Development Impact Fees included in the Western Bay of Plenty District Plan. The Court determined that there was sufficient recognition of Maori special status in the Plan.21
The Tangata Whenua Collective prepared a submission to the Tauranga City LTCCP 2006/2007. The area of concern was the potential barrier to development of Maori multiply-owned land due to the high costs levied against development. The financial and development contributions policy does not appear to have been changed as a result of the submission.
5.3 Impact on Tangata whenua
The most obvious impact of the financial and development contributions is the financial cost and potential land takings.
According to the Tangata Whenua Collective the impact of the development contributions is considered to include the following aspects:
21 Nicholas V Western Bay of Plenty District Council. A93/2000, Judge Bollard, 12 December 2002
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o Development will be unaffordable and result in limited development, or potentially a standstill
o Tauranga Maori land will not contribute to the local economy, social and cultural infrastructure
o Medium to long-term abandonment or alienation of Maori land
o Subsequent social impacts such as loss of resident labour force, loss of connection to turangawaewae, overcrowding, temporary and unconsented dwellings/structures.
6.0 CASE STUDY - MATAPIHI
Background
The Matapihi area is part of the lands confiscated by the Crown in 1865. A process of reallocation of reserves to individuals between 1866 and 1886 facilitated the individualisation of titles and the alienation of land blocks and resources. Community marae and settlement patterns were re-established following the re-allocation of reserves and subject to the many legislative and policy instruments from that time. In response to government interest during the 1970s and 80s to take Maori land and sell for development purposes, Matapihi Maori formed land trusts and established horticultural activities to protect the lands from rating arrears, public works and speculators.22
Ngai Tukairangi has resisted selling their land so they can remain on their ancestral turangawaewae. Matapihi Maori retain 73 % (680acres) of their re-allocated reserves in partitioned and fragmented blocks
In 1997 a variation was considered for Matapihi including the assessment of three options, retain rural zones, introduce new rural residential zone or residential zone. The later two options were rejected by the Matapihi community due to a wish to retain the rural; character, protect culturally significant sites, and concern for harbour pollution. The Operative District Plan reflects this rationale with papakainga zones around the two Marae, Waikari and Hungahungatoroa, and a rural zone for the remainder of Matapihi. Further conservation zones were included to protect the escarpments, effectively creating a building set back zone. The SmartGrowth Strategy has also reinforced this at a sub-regional level and recent changes to the Regional Policy Statement which preclude Matapihi from intensive residential development.
In recent months Ngai Tukairangi and Ngati Tapu have been conducting strategic planning hui to consider the needs of their people into the future including the provision of housing and supporting community infrastructure. The current zoning of much of the lands outside the papakainga restricts the realisation of the long term aspirations of landowners and future generations.
Waikari marae has prepared a concept plan in conjunction with adjoining land blocks. Ngai Tikairangi has initiated a hapu management plan development process to articulate its aspirations for the next
22 Te Kani, Neil. Ngai Tukairangi Hapu Cultural Impact Report. Feb 2006. p18
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fifty years. Both planning processes will identify housing and infrastructure requirements that will be beyond the scope of the current District Plan, and be contrary to some parts of the SmartGrowth Strategy and Regional Policy Statement Plan Change, as it is outside the proposed Urban Limits established to accommodate development to 2051. Tauranga City Council has shown support for the development of hapu and landowner development plans and indicated that appropriate changes to the district plan can follow. The challenge for the hapu of Matapihi will be influencing the SmartGrowth Strategy and Regional Policy Statement to protect future potential of development tom meet cultural preferences. It is noted that the SmartGrowth Strategy is being updated at this time, and will be open for submissions later in 2006.
A hypothetical development
35 residential dwellings on a 4ha block of Maori owned land zoned rural and conservation.
The Tauranga District Plan shows the areas subject to rural zoning. This is supported by the rules in the Plan. This is predominantly the result of plan change proposals in 1997.
Strategic Matters
The Regional Policy Statement Plan Change No. 2 implements the intentions of the Smart Growth Strategy by delineating urban limits. Matapihi is not included in the urban limits.
At a strategic level the SmartGrowth Strategy indicates that intensive residential development is not preferred on Matapihi.
SmartGrowth supports a fundamental shift in growth management from focussing largely on accommodating low-density suburban residential development to supporting compact and balanced live, work and play initiatives.
The strategy identifies urban growth limits and adopts a node-based approach for the purpose of future intensification. This is nodal-based intensification approach is shown on the Sub-Regional Settlement Pattern Map.
The site subject to development proposal falls outside the urban limits defined in SmartGrowth. Due to this there is potential for the proposal to ‘struggle’ against certain policy framework contained in both the SmartGrowth and other relevant planning documents. Of particular relevance to the proposal is the following comment within the SmartGrowth Strategy:
“Areas not designated for residential development ... Several areas have been suggested as potential sites for significant future urban residential development but have not been included for the reasons noted …
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Matapihi: Outside current settlement pattern, culturally significant area, potential harbour impact issues, not favoured in consultation with Tangata Whenua”.23
The exclusion of Matapihi as a future area for urban residential development is a significant constraint for the proposal. The SmartGrowth Strategy - with its extensive research and consultation programme on settlement patterns, infrastructure planning, transport planning, and social and economic implications as a result of such, has a strong influence over policy development at both a Regional and District Council level. An example of this is the introduction of a ‘growth management’ section by way of a plan change to the Regional Policy Statement. This seeks to align urban limits with those identified in SmartGrowth. Planning maps have been produced which identify these proposed urban limits. In referring to Map 18, Matapihi is identified as falling outside the confines of the proposed urban limits.
Whilst the SmartGrowth Strategy and the Regional Policy Statement from an urban limits perspective are not supportive of intensive residential development on the subject site and the provision of supporting services this may change in the medium to long term. The factors that may influence a change would include:
The preparation of an Iwi Management Plan;
Community support and buy in;
Supply and demand throughout the Western Bay of Plenty for commercial and residential land;
Future infrastructure opportunities e.g. Southern Pipeline, railway network, roading developments.
Ngai Tukairangi is currently developing an iwi or hapu management plan for Matapihi. This may be a vehicle for addressing the long-term nature and scale of development and infrastructure provision including this project. The management plan will need to be taken into account with regards to future plan changes as required by the RMA 1991. The preparation of a plan may also be an opportunity to test the community feelings towards this project and in particular settlement patterns, significant areas and impacts upon the harbour environs.
Site Specific Matters
The subject site is zoned Rural in the Tauranga District Plan. This underlying zoning provides for the existing horticultural and agricultural activities to occur as-of-right. In terms of residential development a maximum of two residential units along with ancillary buildings are permitted per lot in the Rural Zone. Any proposed residential development that exceeds two units per site is classified as a Discretionary Activity pursuant to Rule 21.5.
A Conservation Zone covers the escarpment and the riparian margin with the Tauranga harbour along the northern boundary of the site. No buildings or signage are permitted within the confines of this zone. Careful consideration would also need to be given to any landscaping and/or ecological enhancement works given the restrictive nature of the relevant District Plan provisions.
The Regional Land Management Plan, the Proposed Regional Water and Land Plan and the Regional Coastal Environment Plan all contain various provisions that relate to the location of buildings, their setback from the margins of the Tauranga harbour, and the extent to which earthworks incidental to the construction of the proposed retirement village can be undertaken. In preparing site development plans consideration would need to be given to the relevant criteria contained within these planning
23 SmartGrowth Strategy and Implementation Plan, May 2004, Pg 27
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documents to ensure adverse effects on the surrounding environment are avoided, remedied or mitigated to an acceptable standard.
Project Risks
The fact that the subject site is located outside the urban limits identified in both the SmartGrowth Strategy and the Proposed Growth Management Plan Change to the Regional Policy Statement is of particular concern. The key hurdle here is to convince Tauranga City Council and EBOP that whilst there are alternative locations for such a development the establishment of a retirement village on the subject site will have no adverse effects on the strategic planning work undertaken to date – some of which is currently being implemented.
There is a risk as to how the local community may react to the nature and scale of the proposal. The introduction of 200 new residential units – regardless of the fact that they are for retirement purposes – will change the local demographic population significantly. To this effect any such proposal would have to address social, economic and cultural identity issues. Consultation with the local community will be required to ensure the project has community buy-in.
Given the strategic planning that has taken place in the Western Bay of Plenty there is a risk that it will be difficult to convince the consent authorities that adequate infrastructure including services and roading will be able to be made available.
There is a risk that EBOP and Tauranga City Council will be wary of setting a precedent for further development at Matapihi that is inconsistent with the SmartGrowth Strategy. There may be a political influence on this matter. For instance, both Council’s will not want to contradict past decisions that have been made regarding the location of future urban growth areas
Options
Comprehensive Plan Change with supporting section 32 assessment and supporting reports. If approved then necessary consents from Regional Council for discharges and Tauranga City Council for building consents.
Discretionary Resource Consent application to Tauranga City Council and discharge consent applications. Application would include technical reports and evidence of wide consultation.
7.0 STRUCTURES FOR ENGAGEMENT WITH TANGATA WHENUA
The purpose of this section is to provide an outline of regional and local council structures for engaging Tangata whenua.
7.1 Environment Bay of Plenty (Bay of Plenty Regional Council)
Environment BOP has been considered to be a leader in Maori representation since its formation in 1989 culminating in the introduction of Maori constituencies by special legislation in 2001. This legislation established three Maori constituencies and the election in 2004 saw three new Maori constituency councillors elected.
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Since that time the Local Government Act 2002 and other legislative changes have sought to increase the effectiveness and consistency of Maori representation, engagement, participation and decision making in Local Government processes.
The Maori Regional Representation Committee (MRRC) was established in 1993. The current MRRC is a standing committee responsible for providing Tangata Whenua input into council policy development and implementation decisions. The purpose of the committee is to consider governance issues relating to the principles of the Treaty of Waitangi and Council’s legislative obligations to Maori.
The MRRC is a very large committee with 19 tribal member appointments, in addition the 3 Maori constituency members, and 3 generally elected members and the chairperson attends - a total of 26 members.
MRRC East 1 nominee of Te Runanga o Ngati Awa 1 nominee of Tuhoe Waikaremoana Maori Trust Board 1 nominee of Te Whakatohea Maori Trust Board 1 nominee of Ngati Manawa 1 nominee of Te Whanau a Te Ehutu Iwi Authority 1 nominee of Te Runanga o Te Whanau Tribal Authority Kohi Maori constituency member Eastern Bay of Plenty general constituency member MRRC South 3 nominees of Te Arawa Kaumatua Council (aka Kaumatua Forum) 1 nominee of Te Arawa Federation of Maori Authorities (FoMA) 1 nominee of Te Arawa Maori Trust Board 1 nominee of Tuwharetoa Maori Trust Board Okurei Maori constituency member Rotorua general constituency member MRRC West 2 nominees of Ngaiterangi iwi Incorporated 2 nominees of Ngati Ranginui Iwi Society 2 nominees of Ngati Pukenga Iwi Mauao Maori constituency member Tauranga or Western Bay of Plenty constituency member Council Chairman Number of 26 members
Membership of MRRC (as at March 2006)
As at March 2006, the Maori membership of the MRRC appears to include nominated individuals from 11 waka and iwi tribal governance structures loosely based on the geography of Maori constituencies.
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Evolution of Council’s Maori Representation Forum Prepared in May 2006 by Resource Planner Maori Policy
Regional Committees
Stage 1 East South West The three regional committees 1993 (iwi area committees) met three times per year and then collectively (JMRRC) once a Joint MRRC (JMMRC) year. Advisory Committee East - Eastern BOP Area South - Te Arawa Area Strategic Policy West - Tauranga Area Committee of Council Council = decision maker Council
Maori MSC established in 1998. Standing Stage 2 Council MSC to make MRRC Committee 1998 (MSC) recommendations from the MRRC to Council.
Stage 3 MSC superceded. MRRC Council MRRC upgraded to a 2004 Committee of Council.
2004 - Three Maori Councillors elected
Present MRRC Members: M Chairman C 19 Iwi Nominees Stage 4 3 Maori Elected Councillors MRRC Council M 2006 C 3 Generally Elected Councillors M Total 26. C MC = Maori Councillors
Future of the M R R C?
M Stage 5 C MRRC Review being MRRC Review undertaken by Boffa 2006 Council M Miskell Consultants Iwi Committee? C Runanga Maori Committee? May 2006. M C
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7.2 Tauranga City Council
7.2.1 Initial relationships In the early 1990’s, no formal Council policy existed for tangata whenua engagement. The methods used were largely determined by individual staff on an issue by issue basis.
A Maori Consultative committee existed at the time, this committee having a focus on wastewater issues. The tauranga Moana Maori Trust Board was at the time the only pan tribal group organised and meeting regularly.
Administrative policies were established to address the consultation requirements of the RMA for resource consents and plan preparation. This process was channelled through Iwi, who provided feedback on behalf of hapu. Council were reluctant to deal directly with hapu as a point of contact because of the perceived complexity and uncertainty of standing and capacity.
Consultation with Iwi was undertaken as part of the Tauranga Urban Growth Strategy policy work in 1991. This Strategy was implemented through a major Plan Change in 1992. Aspects of the Plan Change as it applied at Bethlehem were opposed by Ngati Kahu on the basis of inadequate effects assessment and consultation. Ngati Kahu successfully appealed to the Environment Court and stopped the plan change proposals to urbanise land around their marae and along the Wairoa River Valley.
A number of roading projects affected the Kopurererua River Valley. The local hapu, Ngaitamarawaho played an important role in influencing Council in changing its engagement practises from pan tribal or iwi based to hapu based engagement and participation. Route P was a defining event for the developing relationships with hapu.
An important outcome from these cases was the recognition of hapu as treaty partners, and that for resource management issues; Council could not necessarily limit its consultation process to Iwi. The need for Rangitira to Rangitira consultation was also identified as significant, with senior management and elected members taking an increasing role in the process.
In the mid 1990’s, Ngaiterangi Iwi were commissioned by the City to prepare an Iwi Management Plan as a background document for the District Plan Review. This was successfully completed. The Plan process was lead by Iwi with discrete input by hapu.
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Council sought to engage Ngati Ranginui Iwi in a similar Iwi Management Planning process.
During the mid 1990’s a formal relationship was established with the Ngati Ranginui hapu collective named Te Paenohotahitanga o Ranginui a Hei, namely Ngati Kahu, Ngati Hangarau, Ngai Tamarawaho, Ngati Ruahine and Ngati He. The formal agreement, which was referred to as the “Kawenata” or covenant was signed by hapu representatives, Ngati Ranginui Iwi Society and the respective mayors of Tauranga and Western Bay District Councils. The hapu collective sought to address common issues facing the hapu such as the development of hapu management plans. This agreement lapsed into obscurity following lack of progress on significant projects.
Following the failure of the hapu collective, a dedicated Maori position was established to progress relationships with hapu and iwi.
Communication with Tangata whenua was then initiated through Te Kaunihera Kaumatua (Kaumatua Council) established at the Bay of Plenty Polytechnic in 1997/98, primarily to address tertiary education issues at the Poike campus.
The initial council framework used to work with the Maori community and tangata whenua was based on community partnerships to recognise treaty responsibilities and develop an effective way forward of working together.
Prior to the formation of the Tauranga Moana Tangata whenua Collective many of the current members were responding to resource consent applications on an individual basis. The majority of these people were volunteers who worked independently.
A formal policy on consultation was adopted by Council that recognised hapu as the relevant point of contact. This was highly controversial at the time and was a source of conflict between tangata whenua, Council and developers due limited levels of awareness and understanding of participants.
It is notable that the initiative for this hui came partly from the early work of the SmartGrowth project, having recognised that long term growth issues could not be addressed adequately without an effective input from Tangata Whenua at hapu level. Tauranga City had no established mechanism to achieve this effectively.
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7.2.2 Communication with Tangata Whenua Tauranga City Council invited Hapu and Iwi representatives to an Iwi liaison hui to discuss how to facilitate and improve their relationships with Tangata whenua in February 2000. Tangata whenua were asked to participate in the annual planning process to identify and address their local authority issues.
Tauranga District Council 2000/01 Annual Plan Hearings - 6 June 2000. Ten (10) Hapu and Iwi submitters made a collective submission to the Tauranga District Council 2000/01 annual plan hearings (Copy of the submission is attached in document bank). The joint submission focused on the statutory responsibilities of the Council under the Resource Management Act 1991 (RMA) in managing the natural and physical resources in Tauranga Moana and the recognition of the Tangata Whenua as being separate a separate status from other interest groups in the community. The concept of the “Tangata Whenua Collective” was born out of this submission process and the effort of Hapu and Iwi to support one another.
The main submission proposal was to investigate further opportunities for Iwi and Hapu of improving and establishing effective working relationships that would enable both parties to meet their respective responsibilities i.e. kawanatanga and kaitiakitanga. With this in mind, the submission made a request for funding to establish a “working party” to investigate the options of developing a partnership relationship between Tangata whenua and Council. All of the Hapu and Iwi submitters supported this approach and the council responded by providing a grant to $10,000.
An interim Tangata Whenua Working Party of six (6) representatives were appointed on 6th September 2000 to discuss the terms of reference for establishing a new structure to facilitate a partnership between Tangata Whenua and Council to resolve resource management issues.
For the next three months (September to December 2000) the working party would determine and develop a structure for tangata whenua (hapu and Iwi representatives) to meet with Tauranga District Council to resolve generic local government issues. It was envisage that the new structure would be in place by January 2001 and take over from the Interim working party.
A special meeting of the Tauranga District Council on 21st December 2000 established the Tangata Whenua / Tauranga District Council Forum. The membership and numbers of the committee have changed
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over time that reflect the triennium changes and the capacity of the Tangata Whenua Collective.
The current membership of the committee includes two (2) kaumatua and four (4) elected members from the Tangata Whenua Collective who meet with four councillors, and the mayor to forge an ongoing, effective and meaningful partnership between the Council and Tangata Whenua. The committee meets on a six (6) week rotation with venues alternating between the council chambers and a local Marae.
The role of the Committee is to provide strategic leadership and advice to the Council, Tangata whenua, Maori and the wider community in respect of environmental, social, economic and cultural outcomes relating to Tangata whenua. The committee minutes are confirmed at the full council meeting and the council will discuss any recommendations from the Tangata whenua / TCC Committee.
7.2.3 Tauranga Moana Tangata Whenua Collective 2006. The Tauranga Moana Tangata Whenua Collective is an independent group that is representative of the following 15 hapu and Iwi entities from within the following Tauranga City Council areas:
Broad Area of Iwi / Hapu Iwi / Hapu Broad Area of interest interest
Maungatapu / Ngati Ranginui Iwi Tauranga City Ngati He Welcome Bay
Mount Ngaiterangi Iwi Maunganui/ Ngai Tukairangi Whareroa / Matapihi Papamoa
Ngati Pukenga Iwi Welcome Bay Ngati Kuku Whareroa / Matapihi
Ngati Kahu Wairoa Ngati Tapu Matapihi / Otamataha
Papamoa/Welcome Ngati Hangarau Peterehema Nga Potiki Bay
Papamoa East / Te Ngai Tamarawaho Huria Waitaha-a-Hei Puke
Ngati Ruahine Waimapu Tapuika Te Puke
Ngai Te Ahi Hairini
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(Ref: TCC Takawaenga Unit Fact Sheet - Tauranga Moana Tangata Whenua Collective 003a4a5.004)
The member first signed off the Tauranga Moana Tangata Whenua Collective Charter Document on 21st March through to 5 April 2002 (included in document bank) to:
1. Provide a Tangata whenua forum for Tangata whenua within the Tauranga City Council (“TCC”) area to discuss and debate their local authority concerns and allow the collective to implement initiatives to advance and protect the interests of Tangata Whenua;
2. Provide an opportunity for TCC and Tangata Whenua to discuss and develop Council concepts, procedures, policies and projects that will impact on Tangata Whenua.”
The above iwi and hapu entities appoint a mandated representative and alternant(s) to represent their views on local body resource management issues in the TCC area. The term of the membership is three years and coincides with the triennial local body elections or if a member leaves their respective organisations.
The members meet twice a month, firstly in the Ngati Ranginui Iwi Inc Board Room n the McLean Street Building to discuss tangata whenua resource management issues. The second monthly is a TCC workshop that focuses on council projects, reports and policies that may required Hapu and or Iwi input or comment.
This provides for a two-way process where Tangata whenua are able to discuss their own issues independently and then to raise them through the TCC workshop and or the TW TCC Standing Committee.
Tangata whenua issues are addressed through a range of options determined by the appropriate level of engagement i.e. governance, management or operations:
Governance:
• The Tangata Whenua / TCC Committee;
• Meeting or correspondence with the Mayor;
• SmartGrowth Implementation Committee;
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Management:
• Meeting or correspondence with the Mayor;
• Meeting or correspondence with the chief executive officer;
Operations:
• TCC Workshop with the Collective;
• Collective member(s) on a TCC project team;
• Liaison with staff in the Takawaenga unit;
• Liaison with the TCC contract manager;
Other tools used by Tangata Whenua include
• Submissions processes;
• SmartGrowth Combined Tangata Whenua Forum;
The Tauranga Moana Tangata Whenua Collective is currently investigating the establishment of a separate legal entity and structure to represent the memberships interests on resource management matters.
7.2.4 Hapu Protocols Ten (10) hapu signed their inaugural hapu protocols on 23 July 2004 in the TCC chamber. A hapu protocol provides an opportunity for hapu to identify and describe their customary rights and relationships with their people, the natural environment and sites and places of significance in Tauranga Moana. These items are described and discussed in the addendum to the protocol.
In signing the protocol Tauranga City Council agree that they will recognise and have regard to the rights and relationship of each hapu in carrying out the functions of a territorial authority.
7.3 Western Bay of Plenty District Council
The Western Bay of Plenty District Council in collaboration with Tangata whenua set up the Western Bay of Plenty District Council Maori Forum in 1991. The purpose of the Maori Forum was to involve Iwi representatives in Council issues pertaining to Maori Communities in the region. The Maori Forum can receive, review and make recommendations upon all matters or issues that affect Maori within the Western Bay of Plenty District Council district.
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In 1999 the Council commissioned a report on consultation during the resource consent process. This report is included in the document bank.24
The current Forum is made up of the following representatives from both Council and Tangata Whenua:
Mayor Graeme Weld Western Bay of Plenty District Council Councilor Norm Bruning (deputy Western Bay of Plenty District Council chair) Councilor Sam Dunlop Western Bay of Plenty District Council Councilor Margaret Murray-Beange Western Bay of Plenty District Council Councilor Lorna Treloar Western Bay of Plenty District Council Councilor Ross Goudie Western Bay of Plenty District Council Councilor Michael Jones Western Bay of Plenty District Council Mr Peter Motutere (Chairperson) Tauranga Moana Trust Board Mr Maru Tapsell Ngati Whakaue ki Maketu Ms Tohuripeka Te Whata Ngati Makino Mr Huriwaka Rewa Ngati Whakahemo Mr Nuia Kokiri Tapuika Iwi Authority Mr Riko Ahomiro Waitaha Ms Valmai Ohia Gates Ngati Pukenga Mr Anthony Paraire Ngaiterangi Mr Alfred McCausland Ngati Ranginui Ms Te Karehana Wicks Ngaitamawhariua Te Whanau o Tauwhao ki Otawhiwhi
7.4 SmartGrowth Combined Tangata Whenua Forum
Tangata Whenua representation on the Joint Subregional Committee (i.e. The SmartGrowth Strategy Committee) was sort from the Tauranga District Council and the Western Bay of Plenty District Council Maori Forum.
24 Coffin, Antoine. Consultation with Tangata whenua – Resource Consents, Resource Management Act 1991. June 2000.
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The SmartGrowth Combined Tangata Whenua Forum is a formal body was established in 2002 to support the development of the SmartGrowth Strategy and Implementation Plan. After meeting with the Tauranga Moana Tangata Whenua Collective and the Western Bay of Plenty District Maori Forum it was decided to call one meeting for both groups. These meeting would be known as the SmartGrowth Combined Tangata whenua Forum.
The reasons for calling one meeting was to ensure tangata whenua were informed and received SmartGrowth information and reports at the same time and each group were able to hear and exchange ideas face to face.
Combined TW Forum (SmartGrowth) Hapu & Hapu & Iwi Iwi
Western BOP Tauranga City Combined District Council – Tangata Council - Tauranga Whenua Forum Maori Forum Moana Tangata Whenua Collective SmartGrowth Implementation Committee
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7.5 New Zealand Historic Places Trust
The New Zealand Historic Places Trust is a Crown entity with a bi-cultural governance and management structure. The Trust has a established Maori Council with Crown appointed iwi representatives.
The Trust has a Maori Heritage Team with dedicated full time and part time Maori staff deployed regionally.
Communication with Tangata whenua is through applications for authority processes and registration projects.
There are currently no formal relationships with Tangata whenua of the Tauranga Inquiry.
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8.0 TANGATA WHENUA RESPONSE TO RESOURCE MANAGEMENT MATTERS
8.1 The role of Iwi Management Plans
The Resource Management Act 1991 is the primary legislation giving weight to iwi management plans. The Act states that regional and local authorities must take into account any relevant planning document recognised by an iwi authority and lodged with the council, to the extent that its content has a bearing on resource management issues of the region or district when preparing or changing a regional policy statement, regional plan or district plan.25
The term ‘iwi management plan’ is widely used however other descriptions such as resource management plan, iwi environment plan, iwi planning document, tribal policy statement, strategic plan, development plan, protocols are also appropriate. This is certainly the case within the inquiry area where iwi and hapu have prepared plans and had them recognized by an iwi authority. The current iwi management plans identified in the inquiry area are listed below:
Name of Plan Date Status
Ngaiterangi Iwi Management 1995 Reviewed in 1997 Plan Voices, Ko te tirotirohia a Ngati Dec 1997 Input into Tauranga District Ranginui prepared by Keni Strategic Plan (Vision 20/20) Piahana Ngati Pukenga he m@takite. April 2000 Operative
Nga korero whakahiahia o Dec 1997 Input into Tauranga District Ngaiterangi me Ngati Pukenga Strategic Plan (Vision 20/20) Pirirakau hapu Environmental 2004 Operative management Plan Ngati Kahu 1998 Supported section 32 report for Bethlehem Planning Study Ngapotiki Resource Incomplete MFE funded, was not Management Plan completed Te Paenohotahitanga o Ranginui Incomplete TDC funded, was not a Hei (Hapu Collective) Plan completed
25 Resource Management Act 1991 section 61, 2A(a), section 66, 2A(a), section 74, 2A(a)
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Waitaka me Tapuika April 1993 Input into RPS. Not operative.
The above table shows that the iwi Ngaiterangi, Ngati Ranginui and Ngati Pukenga have taken a proactive role in strategic policy input since at least 1995. The development of management plans and reporting on strategic issues for the respective iwi to the Tauranga District Strategic Plan was a significant event. The impact of this input appears to have been lost due to a number of successive strategic documents, the SmartGrowth Strategy and Tauranga Tomorrow.
Of these plans two have been incorporated into operative plans. These are the Ngaiterangi Iwi Management Plan (1995) and the Ngati Kahu evaluation of a heritage landscape (1998). The Ngaiterangi Plan has also influenced regional documents with many of the sites of significance being scheduled in the regional coastal plan. The Ngati Kahu work is strictly speaking not a hapu management plan but rather a supporting document to a section 32 report that was incorporated directly into the Tauranga District Plan as part of the Bethlehem Variation. Once the district plan became operative the Ngati Kahu work became redundant.
8.2 Other Documents
A Marae Sightlines Report was prepared in December 2003 as part of the SmartGrowth project. The purpose was to review the visual setting, values and landscape context on thirty six marae throughout the Western Bay of Plenty. The report also identifies the significant landscape and visual values. The report concluded that protecting visual access and linkages to the ancestral landscape is critical to the cultural well-being of tangata whenua. The sense of belonging and turangawaewae is dependant on the quality of the visual of the surrounding landscape.
The report made a number of recommendations that include:
• Protecting middle ground ridgelines from modification by residential development
• Investigating an ancestral landscape awareness and education program with planners, developers and landscape designers on useful methods of interpreting ancestral landscape values;
• Review the manner in which papakainga development impacts on foreground and middle ground views from marae view locations;
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• Require specific considerations of significant visual values described as heritage landscape in future Residential A and Rural Residential consents, and
• SmartGrowth promote the protection of ancestral view shafts from marae, papakainga and future settlement areas through establishing an appropriate range of objectives, policies and planning tools.
One of the effective ways Tangata whenua are influencing planning processes under the RMA and HPA is the preparation of cultural impact assessments.
Cultural impact assessments are a method of providing assessment of Part II matters of Resource Management Act 1991 that are particularly relevant to Maori. They are often a record of the nature and scope of consultation as well. Cultural impact assessments are also known as cultural assessments, assessment of cultural effects, heritage report, and Maori values assessment. Cultural impact assessments should not be confused with iwi management plans and other iwi policy documents.
Cultural Impact assessments may also form part of a section 11 or 12 authority to modify, damage or destroy an archaeological site under the Historic Places Act 1993.
Two other reports of significance were Nga Taonga Tuku Iho, investigating an appropriate framework for identification, assessment and protection of Maori cultural heritage resources of significance to Tangata Whenua of the western Bay of Plenty sub-region and a series of cultural mapping that included supplementary top down and bottom up reports. A copy of the Taonga tuku iho report and literature review are included in the document bank.
8.3 Tangata Whenua legal challenges to resource management matters
As already mentioned there have been some 32 appeals to the Planning Tribunal/Environment Court since 1991. This section reviews the cases and provides some findings. This section identified the main Tangata whenua groups involved, the issues of concern for Tangata whenua and the outcomes of the cases. Where there are trends or common findings these have been identified.
The Tangata whenua group most frequently appealing to the environment court is Ngapotiki. Some ten appeals have been identified and consistently involve applications for archaeological sites being destroyed, modified or damaged, wahi tapu or land designations. On many occasions the appeals have been struck out, dismissed or unsuccessful, usually due to late filing of the appeal and no evidence being filed.
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Since 1993 Ngati Kahu of Wairoa/Bethlehem have progressed at least four cases concerned with urbanisation of Bethlehem and the cost of financial contributions. The 1993 case was the most successful, however, since that time late filing and little evidence have had limited positive outcomes. Briefs of evidence from the 1993 case have been filed with the Tribunal supporting the “Changes in a Maori Community” (Coffin, 1997).
Like Ngati Kahu, Ngati Hangarau have appealed, concerned for the impact of urbanisation on the Maori community. Their opposition was withdrawn following agreement being reached.
Pirirakau have pursued 2 appeals relating to the development of areas near the mouth of the Wairoa River. The concerns of Pirirakau related to areas of traditional significance. One case was deferred until further evidence could be provided and the other proceeded with minor conditions. Another case, brought by an individual member of Pirirakau sort to challenge the development impact fees of Western Bay of Plenty District Council. This case was unsuccessful as the Court deemed that there was sufficient Maori recognition in the District Plan.
Other appeals of note included Ngaiterangi concern for the height of two high rise buildings at Mount Maunganui and the visual effects on Mauao. The development proceeded with conditions. Te Whanau o Tauwhao in Bowentown were challenged regarding a drain being used on their lands by Western Bay of Plenty District Council. There does not appear to have been a definitive answer on this subject.
Ngati Te Wai (Tuapiro) and Ngati Ruahine (Waimapu) members have been appealed regarding developing Maori land without consents. For the Ngati Ruahine member a consent order was issued but costs awarded against him. For the Ngati Te Wai members a prohibitary injunction was issued.
Ngai Tuwhiwhia of Matakana Island appealed the sewerage pipeline. This appeal was filed late and struck out.
Waitaha and a number of other hapu have appealed developments that involved archaeological sites and wahi tapu and have achieved limited success in protecting some sites.
The SmartGrowth Combined Tangata Whenua Forum has recently appealed the Regional Policy Statement Plan Change no. 1 on a narrow matter regarding use of the word ‘assert’ rather than the preferred ‘determine’ in a policy associated with cultural values and relationships of Tangata whenua with ancestral taonga. This case is yet to be heard.
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The interesting findings from reviewing appeals since 1991 is that only two hapu and one individual from the Inquiry District have appealed the provisions of the district plans. All the other hapu and iwi have been involved in specific developments or consents. Only one appeal has been lodged regarding a regional plan or policy and this has been recently. Another finding is that many appeals have been filed late and many have not been supported by evidence. This would indicate that Tangata whenua are either not aware of the requirements of filing appeals, do not have access to legal representation and lack professional expertise or support. Anecdotal evidence suggests a combination of all three.
The common issues of concern in the appeals are the potential effects on archaeological sites/wahi tapu, effects of urbanisation, development of Maori land including development and financial contributions, and stormwater/wastewater discharges.
Summaries of the cases are included in the appendices.
8.4 Tauranga Maori concerns about intensive residential housing
In 1993 Ngati Kahu appealed against the decision of Tauranga District Council to urbanise areas of Bethlehem. Following the Planning Tribunal decision in favour of Ngati Kahu, the Council embarked on a comprehensive Bethlehem Study and subsequent plan change. During this process Ngati Kahu was commissioned to prepare an evaluation of the cultural heritage landscape with intentions to include report recommendations and findings in the Tauranga District Plan.26 Section 5 and 16 A (Heritage), provides evidence of this inclusion with some 11 sites are listed in the heritage schedules of the plan. Other sections which include references to Ngati Kahu can be found in sections 19, 21 and 23 of the District Plan.
In 1997 Tauranga District Council investigated the options for Matapihi. The Maori community strongly favoured the retaining of the rural character, and protecting culturally significant sites. These matter were reflected in the retention of rural zoning effectively limiting residential development and promoting rural/horticultural activities.
During the Bethlehem planning study the lands around Ngati Hangarau, Peterehema Marae were discussed at length. The hapu representatives at the time sought to gain a residential zoning that would accommodate the wish of families to build on their lands. Local non-Maori residents on lands also wishing to subdivide their rural lands supported this wish. Subsequently the
26 Tauranga District Plan. 1999 and subsequent amended version Tauranga District Plan 11/03/2006
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District Plan was changed to reflect this position. Leadership changes within the hapu following incorporation of the changes resulted in an Ngati Hangarau appeal to the Environment Court. This appeal resulted in a special landscaping provision for the southern boundary of the Ngati Hangarau Rural marae Community Zone. The provision provides for a 2 metre wide mixed vegetation strip.27
More recently Ngati Hangarau have appealed a residential subdivision on former multiply owned Maori land that was sold in the 1980s. This land was zoned residential. The matter was resolved through an out of court settlement.
The intensive development of Papamoa has received consistent and strong opposition from Tangata whenua individuals and resource management representatives. Residential zoning in this area had been in place since the 1970s. Recent plan changes reflect strategic policies and political support for further residential growth in these areas, potentially to Te Tumu. Maori landowners and hapu representatives of Ngapotiki have provided evidence to this effect during the Waitangi Tribunal Stage 1 and 2 hearings.
In the Western Bay, Tangata whenua concerns have been accommodated through inclusion of sites of significance in the heritage schedules and the use of papakainga/marae zones for housing.
The Tangata whenua concerns for wastewater disposal from the Omokoroa settlement have been the subject of some Waitangi Tribunal reports. The issues remains that the intensive residential development of Omokoroa is not supported by wastewater infrastructure that meets acceptable environmental standards and best practise. A pipeline is currently being constructed from Omokoroa to Chapel Street, Tauranga. Various iwi and hapu have been involved in consultations. It is understood that this project will affect a number of hapu between Omokoroa and Tauranga City including Te Pirirakau, Ngati Kahu, Ngati Hangarau and Ngai Tamarawaho. This matter is not included in the operative district plans, as it has been progressed as a stand-alone consent with supporting easements.
The matter of input into district plans was identified by the Tangata whenua collective as one of 12 priority issues to be addressed over the next ten years (from 2006).28
27 Tauranga District Plan. Chapter 19, Section 19.3.1.2(d) 28 submission of the Tangata whenua collective to the Tauranga City LTCCP. April 2006
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8.5 Concerns about Wahi tapu and cultural heritage
Tangata whenua have consistently raised the concern for wahi tapu and sites of significance during the Tauranga Moana inquiry hearings. Tangata whenua of the inquiry district have been proactive identifying sites, particularly as part of the research supporting Treaty of Waitangi Claims. This work has had flow on benefits in planning. Examples of this are the Ngati Kahu evaluation of the cultural heritage landscape based on historical research for the claims. This work influenced the development of the Tauranga District Plan with many of the sites of significance included in the District Plan heritage schedules. Another example is the cultural impact assessments being prepared by hapu and iwi based on Treaty claim research. These documents have a an influence on decisions regarding the scale and design of development.
The heritage management processes of the RMA and HPA have been reviewed several times since 1991, including Parliamentary Commissioner for the Environment (PCE) in 1996 and the Department of Conservation review of historic heritage. A recent review increased heritage to a matter of national importance.
At a local level, Ngati Kahu initiated on 12 August 1996, a hui to address cultural heritage management for archaeological sites and areas. The hui was timely following the PCE report and the destruction of a number of important pa in the Tauranga area through subdivision. At that time a Ngamarama pa was under threat, Koutunui pa at Athenree. The hui included representatives from territorial authorities, NZ Historic Places Trust, NZ Archaeological Association, Department of Conservation, and Tangata whenua iwi and hapu representatives. The primary goal of the hui was to workshop standards and criteria for the management of archaeological sites, referred to as “cultural heritage sites” by Tangata whenua. The principle themes of the hui were:
• The present standards for territorial authorities and NZ Historic Places Trust
• The reasons for cultural heritage destruction through planning processes
• Problems with heritage management
The present standards theme highlighted the lack of peer review within territorial authorities, focus on individual sites and a reliance on archaeological values. In regards to consultation with Tangata whenua there was a lack of scrutiny, and consultation was usually conducted very late in the consent process. It was found that there was no requirement for qualifications and experienced professionals. Cultural impacts were not required and conducted at the discretion of the resource consent applicant.
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The destruction of cultural heritage through the planning process started with a lack of available information (identification, assessment and value) and got worse with the passive role of statutory agencies and Tangata whenua. This included an absence of standards, minimal notification, lack of expertise and knowledge.
The problems with cultural heritage management included the slow and sporadic upgrading of heritage information, relaxed identification and assessment criteria, low level of resources and political commitment, absence of wahi tapu registration, and an emphasis on scientific values.
Archaeological resource management suffered from a lack of available information, no peer review, lack of definable categories, no information on context, ranking system, and destruction is necessary for information.
From a cultural perspective there was an acknowledgement that Tangata whenua had little information available due to limited identification and assessment to date, that the responsibility for advocating the protection of sites remains with Tangata whenua, there was a lack of expertise, and no funding as most work is done voluntarily.
The hui was constructive for all parties, however, the implementation of standards and criteria for the protection and management of Tangata whenua cultural heritage at a local level was able to be achieved, in part due to the Draft Western Bay of Plenty District Plan and Tauranga District Plan being in final stages of release for submissions.29
Since that time Tauranga District Plan has incorporated heritage rules that trigger requirements for cultural assessments and consultation with Tangata whenua. The recent Plan Change 44 Wairakei and Plan Change 36/41 Tauriko have provided for heritage during the plan change rather than focusing on the implementation process (resource consent stage).
In Tauranga Moana there is still a gap between the legislative weight placed on heritage, the strong policy direction of the Regional Policy Statement, Coastal Plan and SmartGrowth Strategy and the actual identification, recording and assessment of Maori heritage. There is still no integrated management strategy and comprehensive and accurate inventory of Maori heritage for planning purposes.
29 Coffin, Antoine. Evaluation of the Cultural Heritage Landscape. Te Awa o Wairoa/Ngati Kahu. Prepared for Ngati Kahu Resource Centre and Tauranga District Council. 1997. pp34-37
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Some statistics for the destruction of cultural heritage sites is included in the Tauranga City State of the Environment report contained in the document bank.
8.6 Concerns about Wastewater and Tauranga Harbour
The following section provides a chronology of Tauranga Maori responses to wastewater discharges into the Tauranga harbour and ocean.
Tauranga Maori prepared two petitions before 1991, these being a Maori Petition 1928 of 150 Tauranga Maori to Sir Maui Pomare (Minister of Health) regarding septic tank overflows into the harbour, and Tauranga Maori Petition 1969 where the Mt Maunganui Borough Council proposed to discharge treated effluent from Mount Maunganui’s sewerage treatment ponds at Te Maunga. A petition was organised by the Tauranga Maori Executive Council and signed by 348 persons.
Despite Maori opposition, the Regional Water Board granted the Mount Maunganui Borough Council permission to discharge treated waste from oxidation ponds into Tauranga harbour at Welcome Bay. This right was granted on a temporary basis, on the understanding that a sea outfall would be installed. Some Tauranga Maori appeared before the water right hearing and did formally object to the discharge into the Tauranga harbour.
Following the introduction of the Trey of Waitangi Act 1975, Tauranga Maori used the claims process with good effect. In 1977 the Housing Corporation at Tauranga proposed to discharge sewage collected from 15 state houses into Welcome Bay. On 13 April 1977 the Tauranga Executive of Maori Committees wrote to the Tribunal, stating that they objected to the proposed sewage discharge, and requesting the Tribunal to consider the matter. A formal claim was received on 13 June 1977.
The claimants asserted that shellfish which they habitually collected in the area, titiko and kuharu, would be adversely affected by the proposed discharge. They also stated that Rangataua has traditionally been an important place for local Maori in historical and spiritual terms and that any discharge would be incompatible with this tradition.
On 10 August 1977 the claimants' counsel wrote to the Tribunal asking to withdraw the claim. Letters subsequently received by the Tribunal from the Housing Corporation show that the Corporation abandoned the sewage discharge plan and the water right obtained for it. An alternative scheme was adopted, where sewage from the houses was collected in a tank, which was regularly pumped out at the expense of the Corporation and disposed of within the Tauranga City's existing sewage disposal system. The Tribunal was
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informed that these houses are now connected to the City sewage reticulation scheme.
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Maori Consultative Committee 1990
In the late 1980s there was a concerted effort to increase the capacity of existing systems of Chapel Street and Mount Maunganui plants. Whilst the public support for the 1993 project was very strong, a wider Maori view was gaining favour in society. The summary report of submissions and meetings reported to Council (Dialogue Consultants Tauranga Sewerage Study, Public Participation, Dec 1990) confirmed this feeling.
Criticisms were made of the engineering view focussed on minimisation of cost and environmental impact. Some people argued for a wider view acknowledging Maori cultural and spiritual values and community concerns for broader resource/environmental issues. Maori considered that the Options as presented in the Consultants’ report made no acknowledgement of the Maori objection to discharge into water. Recognising the constraints on irrigation and other land disposal methods in the district, Maori advocated passing treated effluent through a wetland as a practical solution. Both Maori and Pakeha alike voiced concerns that Council recognise the community’s responsibilities to future generations, and for environmental protection. This was sometimes expressed in treating the effluent to the highest standard possible irrespective of how or where it was subsequently discharged or used.30
The Maori Consultative Committee, under the umbrella of the Tauranga Moana District Maori Council, was delegated the task of dealing with issues associated with the Tauranga Area Sewerage Study. In December 1990 an informal meeting was held between the Sewerage Liaison Committee and the Maori Consultative Committee to explore Maori cultural and spiritual views on the sewerage options. It was indicated at the outset of the meeting that none of the options presented in the Consultants’ Report made any acknowledgement of Maori values related to water and that, as such, they were all unacceptable. A preference was expressed for land disposal, but it was recognised that there were limitations and handicaps in terms of Matakana. While irrigation on to land was a preferred solution, it was accepted that Matakana was unacceptable from a hydrological perspective. Concern was expressed about seepage of effluent from the Te Maunga oxidation ponds into Rangataua Bay, polluting the fish and shellfish. This related to the major concern to avoid contamination of the fisheries resources (including shellfish) in the harbour. Doubts were also raised about whether the wastewater would be treated properly and potential bacterial effects that would be harmful to the ocean, water-based recreation and beach amenity. Opposition was expressed to chemical disinfection (by chlorination) as this was seen to be harmful to marine life. Concern was also
30 1993 Wastewater Discharge Consent Process background Paper for PSG. PMG November 2003. P4
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expressed about risk from natural disasters such as earthquakes and the impacts on the oxidation ponds.
It was indicated that if, as it appears that Council is “locked into Te Maunga”, then any discharge must be of an acceptable form. The Whangarei City Scheme was cited as an example where wetlands had been added to the treatment scheme after consultation with the Maori community. It was proposed that the Council adopt the use of wetlands to act as a buffer and provide a natural form of treatment before discharge to the ocean. The preference identified was that the discharge be passed through a natural watercourse, but it was acknowledged that it was unlikely that this would be implemented and that they would have to accept the discharge through the existing outfall. Support for the wetland concept was given as it was seen to be a natural process. It was suggested that as much land as possible be purchased to use as park, greenbelt and for the study of wildlife. It was strongly emphasised that if the wetlands were adopted at Te Maunga they would need to be sealed off from the Upper Tauranga Harbour and that the effluent must be treated to an appropriate standard before it entered the wetlands. The view was expressed that the Council should continue to monitor technology to ensure that it has the best available treatment and that the study was not to be seen as the finish, but rather as part of an on-going process. In effect, the Council was on notice that if appropriate technology became available to treat all effluent naturally to the highest standard then it should be adopted. 31
Wai 47 Ngati Pukenga Land Claim
William Ohia (deceased), on behalf of Ngati Pukenga, claims that the Crown has failed to protect their usage, control and management of the Tauranga Harbour and the ‘use, control and management of their shell and other fisheries with the Tauranga harbour.” Also:
The failure of the Crown contrary to Article II of the Treaty to protect the claimant iwi and hapu in the use, control and management of their coastal fisheries which extend along the shore line from Maketu Bar to Whangamata to a distance of 100 miles off shore at right angles from that shore line.32
31 1993 Wastewater Discharge Consent Process background Paper for PSG. PMG November 2003. P5-6 32 Statement of Claim. Wai 47
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Wai 228 Matakana Island Claim
This claim was lodged by Christine Taiawa Kuka-McGlynn on behalf of, and as a member of Ngaterangi and Ngati Ranginui iwi in 1991 and concerns loss of lands on Matakana Island. In 1994 the claimant filed an additional statement of claim stating the following matters of prejudice:
A) the continued unlawful discharge of untreated sewerage in the Eastern Coastal Waters off Matakana Island;
B) that for the past 17 years this position has been allowed and continues to be allowed by the local regional and council authorities;
• That any future grants of a permit to discharge contravenes the minimum standards required under the Resource Management Act 1991;
• And are inconsistent with the terms and principles under section 2 of the Treaty of Waitangi Act 1975, and;
• That the present discharge of untreated sewerage via the Katikati Pipeline to the Matakana Island outfall of traditional kai-moana resources, contravenes Article II of the International Covenant on Health, Social and Cultural Rights of the Commission for Human Rights.
The Tribunal is asked to recommend that:
• No further discharge take place forthwith;
• That the Regional and Council Authorities concerned be advised not to issue any further Permits or Discharge Rights allowing the present situation on Matakana Island to continue….
Wai 540 Ngaiterangi Land Claims
The Ngaiterangi lands claim alleges that the Crown has breached the principles of the Treaty of Waitangi when it acquired the bed of Tauranga Harbour and estuaries, and discharged sewerage into the harbour. Also the “claimants have been denied full exercise of customary and common law rights and title to land waters, fisheries and other taonga of Tauranga harbour”, and the “Crown has failed to recognise the kaitiakitanga over the Tauranga Harbour and Coastal Islands.”33
33 Statement of Claim, Wai 540, 1.1a
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Wai 645 Tauranga Moana Maori Trust Board Act Claim
The Claimants allege that the government has failed to recognise Article II rights under the Treaty of Waitangi (which included fisheries) and the Trust Board seeks “governance of the Tauranga Harbour, coastal waters, fresh water- ways, maunga korero, nga ngahere and other taonga which are of cultural, spiritual and historical significance to Maori.34
Ngaiterangi Iwi Resource Management Plan 1995
This plan makes a number of policy statements relevant to wastewater disposal in Tauranga and the application area. Under the heading 2.6 Coastal Foreshore Ngaiterangi considers the coastal foreshore bounding Te Moananui a Toi extremely significant. Reasons for this include access to customary fishing grounds and shellfish harvestings beds, the location of numerous urupa (burial grounds), battle sites, mahinga kai (food gathering areas), and seasonal occupation sites. Ngaiterangi specifically states that the current practise of discharging effluent and wastes across the coastal foreshore and into Te Moananui a Toi is offensive and must be discontinued.
The Tauranga District Council shall develop and implement a 5 year plan to cease the piping of effluent across Maori land, the Papamoa foreshore and discharging into the ocean, in favour of a land based disposal system.35
Under the heading 3.3.1 desecration of sites of cultural significance the plan identifies some of the matters of concern for Ngapotiki hapu. These are:
• Quarrying of Maungamana (the pa of Ngapotiki’s eponymous ancestor Tamapahore)
• Use of the pa for a water reservoir
• The location of the effluent treatment ponds
• Piping and pumping of effluent across ancient burial grounds and battle sites at Papamoa
• Dumping of untreated septic tank effluent on land at Kairua
34 Statement of Claim Wai 645 35 Ngaiterangi Iwi Resource Management Plan. Te Runanga o Ngaiterangi. 1995.
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The policy statement on these issues goes further than that in 2.6 Coastal Foreshore with the following.
Resource management policies and practises will avoid desecration of sites of cultural significance to the hapu of Ngaiterangi. Where desecration of sites is currently occurring through permitted resource activities without the agreement of the hapu, strategies must be developed to redress those violations…. ….The Tauranga District Council must develop a medium term plan for the relocation of the effluent treatment ponds at Te Tahuna o Rangataua; the effluent holding ponds at Te Maunga, the piping and pumping of effluent across the burial grounds at Papamoa and the discharge of effluent into the sea, in favour of alternative land based treatment and disposal methods…. ….Consents for the dumping of raw septic tank effluent will not be approved without the consent of all owners of land immediately adjoining the proposed dumping sites.36 Under the heading 3.3.4 the plan provides some restoration and maintenance programmes for Te Tahuna o Rangataua (Rangataua Harbour). These include a regular beach re-sanding programme, regular removal of rubbish, native vegetation restoration and maintenance including pohutakawa. A walkway is not supported by the plan.
Fiscal Envelope Hui 1997
In 1997, National Government Ministers and Officials met with Tauranga Maori to discuss the fiscal envelope proposals. Tohunga and Tauranga leader Hohua Tutengaehe described the Tauranga situation to Minister of the National Government at the Fiscal Envelope Hui at Huria Marae, Tauranga.
“The waterways, harbour and the seacoast, were the refrigerator of the iwi of Tauranga Moana, all polluted by mill discharge, logging, body waste. Just imagine me coming into your house and using your fridge for a toilet. That’s how we view the sea and our waterways. What then is an alternative?”37.
36 Ngaiterangi Iwi Resource Management Plan. Te Runanga o Ngaiterangi. 1995. 37 Hohua Tutengaehe. Fiscal Envelope Hui, Huria Marae. 20.5.1997
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Wai 717 Ngapotiki hapu claims
The sewage treatment plant was viewed by Nga Potiki as hazardous to health and as posing serious environmental health issues. Water based treatment of sewage is also viewed as culturally offensive.
There’s no titiko’s, there’s no crabs and of course on this side you have the sewage ponds and they can’t tell me that nothing ever seeped into the harbour. When they first set up the sewage ponds they actually set them up in the harbour, with the kind of stopbank around each one. Now I don’t know what happened in Spring tide but we used to find a lot of toilet paper and stuff in the harbour further down. At present there doesn’t seem to be any hope of getting anything, you might get financial thing, but you know how long is that going to last? And who’s going to get it? You know to the value of the rock that was taken out of the quarry, they can’t put a price on it. They can’t put a price on it. They say the wharf area there, I don’t know what price they have got on it? That for me is a very sore point and of course the sewage ponds and all that. There was a guarantee from the powers that be that there won’t be any leakage from the ponds, but I’d like to know where we got that lettuce from. It was an unknown thing before. I don’t like what has happened anyway. Water is an important cultural concept linked to well-being, balance and health. Water based disposal methods for sewage have also been challenged by other Maori communities.38
Wai 215 The Use Control and Management of Tauranga Harbour and its Estuaries
In response to a number of claims the Waitangi Tribunal commissioned a report on the use, control and management of Tauranga Harbour and its estuaries. The resulting 1997 report was a collaboration of authors from four Tauranga iwi and hapu – Ngaiterangi, Ngati Ranginui, Ngati Pukenga and Ngapotiki.
38 Socio-Economic Impact Report for Nga Potiki. International Research Institute for Maori & Indigenous Education. Crown Forestry Rental Trust. Wai 717. 1999. pages 26-27
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With regard to effluent the report states:
discharging effluent into Te Marae o Tangaroa is to violate tapu. It constitutes a fundamental transgression which evokes an instinctive and culturally embedded abhorrence.39
A number of informants are quoted including Avy Gardiner:
The integrity of Rangataua, as a source of spiritual and physical cleansing, has been undermined because of the continual threats posed, in particular, by pollutants, siltation and seepage from the Oxidation Ponds at Te Maunga.40
Ngati Pukenga - He matakite (Vision 20/20)
In this policy document Ngati Pukenga provides a clear statement regarding the importance of Rangataua and the effects of the oxidation ponds.
The Rangataua estuarine basin is probably the single most significant feature that binds the hapu that surrounds it. The various hapu fortunes are intrinsically tied to Rangataua. The importance of Rangataua to the Rangataua hapu must not be under-estimated. Rangataua is the major source of our collective identity. Rangataua is regaled in oratory, and verse from one part of Aotearoa to another. The management and protection of this resource must be protected at all costs. The oxidation ponds at Ti manag (Te maunga) must be removed. This argument is not new in origin, but has been pursued by our elders since the ponds were first established.41
In terms of solutions the document provides some broad direction.
• The protection of the environment generally in the spirit of sustainability
• The protection of traditional and contemporary food and taonga resources
• Not to allow the further desecration of the environment in the pursuit of financial gain
• The protection of Ngati Pukenga waahi tapu
39 Fisher, Piahana, Black, Ohia. Issues Concerning the Use, Control and Management of Tauranga Harbour and its Estuaries. March 1997. p59 40 Fisher, Piahana, Black, Ohia. Issues Concerning the Use, Control and Management of tauranga Harbour and its Estuaries. March 1997. p60 41 Ngati Pukenga, he matakite (Vision 20/20), p24
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• The rezoning of areas to ensure no more pressure comes on to the remnants of Ngaati Pukenga resources that they might be preserved in perpetuity
• The protection of Rangataua and Waitao as spiritual and physical symbols of identity, and as a source of food resources from time immemorial
• The protection of physical features of tribal identity and pride42
SmarthGrowth 50 Year Strategy and Implementation Plan - 2004
In 2004 the Tangata Whenua Forum responded formally to the Smart Growth Strategy for the Western Bay of Plenty. SmartGrowth proposed continuation of the status quo approach to wastewater management, but with targets aimed at reducing water use and improving discharge quality. The Forum expressed very strong opposition to the current wastewater regime.
The Combined Tangata Whenua Forum is vehemently opposed to the continued use of water to transport, treat and dispose of human waste in their rohe. The recommendations that future infrastructure continue to rely on conventional centralised water-born sewerage systems is not supported by the Forum. These current systems are not sustainable from a Tangata Whenua position. The impact of wastewater and stormwater outputs on the Mauri of the environment, Hapu and Iwi, Society and the Individual are major concerns for Tangata Whenua. A sustainable urban water infrastructure system needs to be developed and operated in harmony with natural water cycles and water catchments as a holistic management code of practise. These approaches therefore need to:
5.1. The introduction of stepped or stretched targets for wastewater streams
5.2. Maintain sufficient water flow to support ecosystems
5.3. Increase water use efficiency and decrease wastage
5.4. Reduce or eliminate wastewater flow
5.5. Reduce or eliminate stormwater flow
42 Ngati Pukenga, he matakite (Vision 20/20), p29
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5.6. Tangata Whenua advocates the investigation of the viability of alternative sanitation systems that focus on the potential solutions of composting toilet technology.
6. The maintenance and protection of traditional food resources from the impacts of growth in the subregional harbours is of paramount importance to Tangata Whenua.43
Tauranga Wastewater Consents Project Steering Group 2003
A project steering group was formed to provide governance for the Tauranga Wastewater consents project. Tangata Whenua representatives were appointed to the project steering group. During the work of the project steering group, Ngapotiki expressed strong opposition to the wastewater Treatment Plant at Te Maunga. Ngapotiki wanted the following: • 100 % discharge to land • treatment at source • decentralisation • no more hook ons
• removal of the oxidation ponds and the restoration of the area to its natural state While significant gains were made in respect to conditions of consent including establishment of a fund for water monitoring, a committee with Tangata whenua representation and improvements to the plant performance, the consent with conditions was granted to Tauranga City for 35 years.
At the time of this report, a current wastewater project is the Southern Pipeline, a major wastewater interceptor that will carry untreated wastewater from Maleme St (Southern Tauranga) to Te Maunga for treatment. This project is currently in the preferred options stage involving intensive consultation with hapu, iwi and Maori land owners potentially affected by the route. This project is included in the SmartGrowth Strategy and does not require a plan change.
Tauranga Maori have historically used political avenues to address concerns of wastewater entering important water bodies such as harbours and rivers. Since 1990 Tauranga Maori have been proactive at a number of levels - governance, planning, advocacy and implementation. Whilst a lot of gains have been made to remove wastewater discharges from the Tauranga Harbour and rivers, the treated wastewater of Tauranga is still entering another water body, Te Moananui a Toi te Huatahi (Bay of Plenty).
43 10.9. Tangata Whenua Response to the SmartGrowth Strategy and Implementation Plan, May 2004. p174
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8.7 Key Developments and Resource Management Issues
For this section a number of documents were reviewed including cultural impact assessments prepared by Tangata whenua hapu and iwi for various infrastructure projects, iwi and hapu policy and planning documents, tribunal evidence, the protocols of Tauranga City Council and phone contact with a number of hapu and iwi representatives.
The purpose of the review was to identify the key developments in Tauranga since 1991 and the most common issues.
The key developments since 1991 from a Tangata whenua perspective have been:
o Southern Pipeline (2005-current)
o Tauriko Business Estate (2004-current)
o Omokoroa Pipeline (currently under construction)
o Kopukairua roadway
o Papamoa urbanisation (archaeological sites/wahi tapu/Maori land)
o Quarries
o Kairua Road Water Towers (not constructed)
o Matakana Island Sewerage pipeline (not constructed)
o Drain at Otawhiwhi
o Wairoa River marina (not developed)
o Route K and P works including expressway (Kopurererua Valley)
o Twin Towers extension
o Tauranga Marina
o Tauranga Harbour Bridge
o BOP Fertilizer Works
o Access to Maungatapu foreshore
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The most common resource management issues were:
o Retention of Maori land and housing development for whanau
o The cost of development impact fees, financial contributions and rates
o Impact of urbanisation including infrastructure on Maori land
o Kaitiakitanga of harbours and rivers
o Impact of previous public works
o Protection of wahi tapu, wahi tupuna and taonga (including archaeological sites)
o Relationships with traditional sites including access
o Protection and enhancement of kaimoana (customary fisheries)
o Water quality and cultural values to water
o Consultation and participation in consent processes
o Development of iwi and hapu management plans
The above list of issues will come as no surprise to people working in the area of Maori resource management. Of note is the lack of reference to the need to be involved in district plan and regional plan review. Only one group identified district plan review as an issue, this being the Tauranga Moana Tangata Whenua Collective, however, it was not identified as a priority. The other issues not represented here include resourcing capacity and capability, Maori land development (wider than housing), and education and awareness.
9.0 LOCAL AND CENTRAL GOVERNMENT CO-ORDINATION
9.1 Local and Central Government Co-ordination
This review has not sourced any documentation that provides an overview of the co-ordination or integration of local and central government agencies dealing with planning issues affecting Tangata whenua. The SmartGrowth Strategy would likely be the standout-planning tool, which provides a co- ordinated approach to managing growth of the Western Bay of Plenty subregion.
At a local level and for specific issues a number of strategies have sought to promote integrated management roles of central and local government
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agencies. Such strategies include the Wairoa River Strategy, Civil Defence Emergency Plan, Land Transport Strategy and SmartGrowth Strategy.
Government agencies such as Ministry for the Environment, Te Puni Kokiri, Department of Internal Affairs and the Local Government New Zealand have produced a number of publications that provide technical and supporting information for Tangata whenua and local government participating more effectively in resource management activities.
10.0 OBSERVATIONS
This section provides some observations regarding the Tauranga Maori experience in resource management since 1991.
The Tangata whenua experience of resource management in Tauranga Moana since 1991 is one of reactionary participation in the activities of others. The Tangata whenua promotion of protection, conservation and environmental enhancement have often come into conflict with development and use of natural and physical resources. The development of iwi and hapu management plans to date illustrates this point where the focus has been on protection and very little on development and use.
The District Plans provide recognition of Maori communities wishing to live on ancestral lands, particularly around marae. The papakainga/marae community zones are a tool that has been used since at least the 1970s in Tauranga/Western Bay. They may require some further work to reflect the sophisticated and more diverse needs of Maori communities including housing.
There are large number of statutory and non-statutory documents managing aspects of the natural and physical environment. There have been varying degrees of Tangata whenua participation in the development of those documents and this is reflected in the varying levels of detail addressing Maori issues.
The financial contribution policies of the Councils are based on a user pays system, that is contributing to the costs of infrastructure and community facilities. This system is of concern to Tangata whenua and has been raised in a number of forums and statutory processes.
There are engagement structures for Tangata whenua in place at a regional, subregional and district level. These have been borne out of responsibilities of Councils under the RMA1991 and strengthened by the recent Local Government Act 2002. Tauranga City Council has established and maintain a complex and well resourced multi-level engagement model that can be considered best practise in New Zealand. However the Western Bay of Plenty is in the infancy of developing a similar level of engagement. It is likely that the level of development and growth occurring in
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Tauranga City has influenced this. Many iwi and hapu representatives are participating in decision-making processes or at least engagement processes of Councils.
Tangata whenua have engaged in resource management processes predominantly at the implementation stages. With the exception of Ngati Kahu and Ngati Hangarau at Bethlehem there has been little participation of hapu and iwi in the preparation of the district plans and subsequent variations and changes. The poor success at the Environment Court is an area for concern where late filing and lack of professional technical evidence is not achieving positive outcomes for Tangata whenua.
Tangata whenua of the inquiry district have in general focussed resources (time and money) in the implementation processes of the Resource Management Act, in particular resource consents. This is further emphasised by the low number of references/appeals with regard to Plan reviews and changes. The resource consent area appears to be relevant and practical for iwi and hapu. The recent changes to the Resource Management Act 1991 36A to provide clarity over the duty to consult does not appear to have made changes in implementation practise, however this may be due to the level of planning policy already in place supporting consultation as best practice.
An integrated and sustainable system of identifying, recording, assessing and recognising heritage including Maori heritage is not currently in place. There is currently no stand-alone heritage strategy in the Tauranga City and Western Bay of Plenty District.
There are currently no dedicated fulltime professional staff within iwi and hapu organisations addressing resource management and environmental matters within the Tauranga inquiry district. Tangata whenua practitioners are generally working at a hapu and whanau level and addressing matters relevant at that level on a voluntary or project basis.
There is currently no national mandating process or structure for iwi and/or hapu resource management representatives and units. As such there is no formal national, regional or district funding structure to ensure iwi and hapu resource management practitioners are participating at a level that will achieve environmental outcomes that would be consistent with the intent of the Resource Management Act 1991 and Historic Places Act 1993.
Further investigation should be undertaken to identify options for the sustainable deployment of skilled and experienced Tangata whenua practitioners (including resourcing, capability development). Such options may consider the role of future post settlement governance structures, stand alone resource management unit(s) and local authority partnership arrangements.
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Critical Resource Management Issues for Tangata whenua
Participation and engagement:
• Maintenance of engagement processes
• Improvements in capability and capacity
• Multi level participation in plan and policy development
Resource Management priorities:
• Community development planning
• Water quality and customary fisheries
• Relationships with ancestral landscape
• Heritage Strategy
• Protection of places and areas of significance.
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11.0 ACKNOWLEDGEMENTS
The authors of this report would like to thank staff of Tauranga City Council, Western Bay of Plenty District Council, Environment Bay of Plenty and Tangata whenua representatives for their input and access to records.
Tena koutou katoa.
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12.0 BIBLIOGRAPHY
Iwi Management Plans and relevant policy documents (Tauranga/Western Bay of Plenty)
Ngati Pukenga, he matakite (Vision 20/20)
Ngaiterangi Iwi Resource Management Plan. 1995.
Ngaiterangi. Nga korero Whakahiahia o Ngati Pukenga me Ngaiterangi. 1997
Ko te tirotiro a mua a Ngati Ranginui. Prepared for Tauranga District Council 20/20 Vision. 1997
Ngai Tamarawaho Kopurererua Valley Concept Plan. Boffa Miskell.
Nga Taonga Tuku Iho. Te Pirirakau Hapu Environmental management Plan. Prepared by Pirirakau Incorporated Society. October 2004
Fisher, A. Mount Maunganui & Papamoa Coastal Reserves; Main Beach; Hopukiore & Waikorire Reserves. Iwi Issues Report. Ngaiterangi. 1995.
Nga Aukati o Waitaha me Tapuika. 1993
Other iwi and hapu Policy documents
Tukairangi Orchard Trust. Strategic Plan
Waikari Marae Development Plan. June 2006
Ngati Kahu. Tangata Whenua Heritage Management Strategy Hui, Ngati Ranginui, Ngaiterangi, Ngati Pukenga – Tauranga. 1996.
Waitangi Tribunal Evidence
Briefs of Evidence to Waitangi Tribunal. Ngai Tukairangi, Wai 215. December 2000.
Antoine Coffin. Changes in a Maori Community. Wai 215 A76. 1997.
Waitangi Tribunal. Te Raupatu o Tauranga Moana. Wai 215. 2004.
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Stokes, Evelyn. Stories of Tauranga Moana
Stokes, Evelyn. Te Raupatu o Tauranga Moana. Volume 2:Documents relating to tribal history. Confiscation and reallocation of Tauranga Lands. University of Waikato. 1992
Tauranga District Council. Heritage Management. Issues and options for Tauranga District.
Stokes, Evelyn. The Impact of Urban Growth – Tauranga Moana. 1980
Dr Giselle Brynes. A preliminary report on the use, control, and management of the Tauranga Harbour. Wai 215
Bassett, Heather. Aspects of the urbanisation of Maungatapu and Hairini, Tauranga. July 1996.
Fisher, Piahana, Black & Ohia. Issues concerning the use, control and management of Tauranga harbour and its estuaries. March 1997.
Mahaki Ellis. Statement of evidence to Stage 2 hearings of Waitangi Tribunal. 2006
Brief of Evidence of Mahaki Ellis on behalf of Ngai Tukairangi and Ngai te rangi. Wai 215#I16, wai 540#A10.
Des Kahotea’s Western Bay of Plenty Urban Development Strategy Study (A15),
Cultural Impact Assessments
Neil Te Kani. Ngai Tukairangi Hapu Cultural Impact Report. Prepared for Southern Pipeline Project, Tauranga City Council. February 2005.
Coffin, Antoine & Taite, Huriana & Ngapotiki Resource Management Unit. Draft Tangata Whenua Cultural Impact Assessment. Prepared for the Tauranga City Council Wastewater Treatment Project Steering Group. October 2004
Boffa Miskell Ltd. Social-Cultural Impact Assessment for the development of housing for Ngai Tukairangi whanau on multiply owned Maori land at Matapihi, Tauranga. March 2006
Boffa Miskell Ltd. Cultural Impact Assessment – Proposed water pipeline, Hukitawa- Waikorire, Mount Maunganui. April 2006
Boffa Miskell Ltd. (Confidential) Ngai Tukairangi Cultural and Environmental Assessment – Matapihi. August 2006
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Te Runanga o Ngai Tamarawaho. Cultural Heritage Management Plan for Tauriko Business Estate. May 2005
Cultural Heritage Inventories and Databases
New Zealand Historic Places Trust Register of Historic Places, Historic Area, Wahi Tapu and Wahi Tapu Areas.
New Zealand Archaeological Association Site Record Scheme. Tauranga Office of NZ Historic Places Trust.
Nga Whenua tuturu mo tangata whenua. Cultural Heritage Overlay. Prepared for Smart Growth. 2002.
Coster, John & Johnston, Gabrielle. Rangataua Archaeological Site Survey. A report prepared for the New Zealand Historic Places Trust. 1977
Kahotea, Desmond. Tauranga Urban Growth Cultural Resource Inventory. Prepared for Tauranga District Council. 1992
Kahotea, Desmond. Tangata Whenua Literature Review. January 2003
Desmond Kahotea’s archaeological overlay for Papamoa.
Nga Taonga Tuku Iho o nga tipuna mai nga Kuriawharei ki Otamarakau Maori (Cultural Heritage report. Prepared by SmartGrowth Tangata Whenua Project Team. August 2003
Planning Tribunal/Environment Court Cases
Ngati Kahu v Tauranga District Council [1994] NZRMA 481.
Setter Developments Ltd v Tauranga District Council (A104/95, Judge Bollard, 9 November 1995).
Berkett v Minister of Local Government (A103/95, Judge Bollard presiding; Dr AH Hackett, Mr IG MacIntyre, 10 November 1995) – Motiti Island
Western Bay of Plenty District Council v Bryan (NP586/96, Judge Thomas, 29 October 1996); (1997) 3 ELRNZ 16.
Berkett v Minister of Local Government (A6/97, Judge Bollard, 23 January 1997). – Motiti Island
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Bethlehem Centre Ltd v Tauranga District Council (A128/97, Judge Bollard, 30 October 1997).
Bay of Plenty Regional Council v Waaka (A150/97, Judge Bollard, 23 December 1997).
White v Western Bay of Plenty District Council (A100/98, Judge Bollard, 19 August 1998).
White v Bay of Plenty Regional Council (A129/98, Judge Bollard, 9 November 1998).
Mangatawa Inc v Tauranga District Council (A23/99, Judge Bollard, 2 March 1999).
Ngati Hangarau v Tauranga District Council (A21/99, Judge Bollard, 2 March 1999).
Ngati Kahu Hapu v Tauranga District Council (A22/99, Judge Bollard, 2 March 1999).
Te Whata v Western Bay of Plenty District Council (AP15/99, Chambers J, 13 September 1999).
Fulton Hogan Ltd v Western Bay of Plenty District Council (A108/99, Judge Bollard, 28 September 1999).
Bay of Plenty Speedway Associaton Inc v Tauranga District Council (A152/99, Judge Bollard, 20 December 1999).
Nicholas v Western Bay of Plenty District Council (A93/2000, Judge Bollard, 19 January 2000).
Fulton Hogan Ltd v Bay of Plenty Regional Council and Western Bay of Plenty District Council (A106/2002, Judge Bollard, 10 May 2002).
Asco Trust Ltd v Tauranga District Council (A251/2002, Judge Bollard, 12 December 2002).
Asco Trust Ltd v The Tauranga District Council (A218/2002, Judge Bollard, 6 November 2002).
Heybridge Developments Ltd v Western Bay of Plenty District Council (A231/2002, Judge Bollard, 21 November 2002).
Fulton Hogan Ltd v Bay of Plenty Regional Council (A031/2003, Judge Bollard, 5 March 2003).
Wood v Tauranga District Council (A053/2003, Judge Bollard, 14 April 2003).
Thompson and Flavell and Ors v Western Bay of Plenty District Council (Statement of Agreed Facts as between Appellant and Respondent, 5 May 2004)
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Falwasser v Tauranga City Council (A083/2004, Judge Bollard, 18 June 2004).
Tuhakaraina v Pouhere Taonga (New Zealand Historic Places Trust) (A0121/2004, Judge Bollard, 9 September 2004).
Thompson and Flavell v Western Bay of Plenty District Council (A106/05, Judge Smith, 3 February 2005).
Tuhakaraina v Pouhere Taonga (New Zealand Historic Places Trust) (A020/2005, Judge Bollard, 14 February 2005).
Papamoa Junction Ltd v Pouhere Taonga (New Zealand Historic Places Trust) (A056/05, Judge Bollard, 4 April 2005).
Western Bay of Plenty District Council v Te Whaiti (A128/05, Judge Smith, 4 August 2005).
Ngati Kahu v Tauranga City Council (A197/05, Judge Bollard, 6 December 2005).
Thomas v Bay of Plenty Regional Council (A023/06, 24 February 2006). – Plan Change No. 1 to RPS (Heritage Criteria)
Statutory Plans and Policy Documents
Bay of Plenty Regional Council (Environment BOP)
Bay of Plenty Regional Policy Statement. Dec 1999
Plan Change No.1 (Heritage Criteria)
Plan Change No.2 (Urban Limits)
Bay of Plenty Regional Council. Regional Coastal Environment Plan. July 2003
On Site Effluent Treatment Regional Plan. Dec 1996 (new plan has been produced, 2006)
Bay of Plenty Regional Air Plan. July 2000
Bay of Plenty Regional Land Management Plan. Feb 2002
Bay of Plenty Regional Land Transport Strategy
Regional Passenger Transport Plan. May 2001
Waste Management Plan. October 2001
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Bay of Plenty Regional Council Erosion Protection Works for Tauranga Harbour. 2001 (Dr. Jeremy Gibb)
Tauranga Harbour Report. Dr. Jeremy Gibb
Esplanades Network report
Storm surge report. 1991
Draft Tauranga Harbour Integrated Management Strategy.
Western Bay of Plenty Subregion
Smart Growth 50 Year Strategy and implementation Plan. May 2004.
Tangata Whenua Response to the SmartGrowth Strategy and Implementation Plan. May 2004
Policy on Sub-regional parks
Tauranga Region Transportation Study. September 1997
Tauranga
Tauranga District Plan. 18 August 2003
Proposed variation No.3 Matapihi Peninsula. August 1997 (File #6491-3.1)
The Leisure Strategy
Walking and Cycling Strategy
Code of Practice for development (currently under review)
Urban Design Strategy
(Draft) Arts and Culture Strategy
Tauranga District Council. Harbour shore erosion. 1994 (Terry Healy)
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Housing Reports
Western Bay of Plenty District Maori Forum. Development of Housing on Multiple- Owned Maori land in the Western Bay of Plenty. 2005.
Housing New Zealand. Housing Market Report December 2005.
M.Cobeldick and M. Evans. Composting Toilet Performance in New Zealand Urban Environments. 2005.
Engineering and Geotechnical work
Mahi Maioro Professionals. The Sustainable Evaluation of the provision of urban Infrastructure Alternatives using the Tangata Whenua mauri Model within the SmartGrowth Subregion. July 2003.
Land Capacity and Capability studies
Tauranga District Council. Land capacity. August 2002
Landcare Research (NZ) ltd, Hamilton. Land versatility and land capability interpretations for the WBOP Subregion. July 2002
Rolleston, Hemi. Housing Needs Assessment – Mahiwahine, Matapihi. 2006
Ecological reports and assessments
Wildlands Consultants Ltd. Identification of ecological constraints to development in the Western Bay of Plenty. February 2003
Landscape Assessments
Boffa Miskell ltd. Landscapes and Natural Features. August 2002
Bay of Plenty Regional Council, Landscape Assessment of the Coastal Environment, September 1993
Marae Sightlines. Kaahuia Consultancy. September 2003
Planning Studies and reports
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Tauranga District Council. Bethlehem Planning Study: A Report for Tauranga District Council. Prepared by Russell De Luca. 1996
Background report. Matapihi Peninsula. Planning Study and section 32 Assessment. 1997
Cultural values
Waiora, Waimaori, Waikino, Waimate, waitai. Maori perceptions of water in the environment. Centre for Maori Studies and Research, University of Waikato. 1984
Hapu and Iwi interest areas (maps) – Tauranga City boundaries. Tauranga City Council. Sept 2003.
Coffin. Consultation with Tangata whenua – resource consents. Prepared for Western Bay of Plenty District Council. June 2003.
Boffa Miskell Ltd. A review of Tauranga District Council’s resource consent process. March 2003.
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Appendices
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Appendix 1 Summary of Planning Tribunal and Environment Court cases
Ngati Kahu v TDC 20/9/94
Change to transitional district plan to implement residential aspects of urban growth strategy for Tga relating to proposed residential development of Bethlehem
Council released policy based on Tga Urban Growth Study recommending increase in number of households planned for Bethlehem to 2450
Draft change released for public comment in Oct '92. In Dec '92 change publicly notified
Following a hearing, council proceeded with change acceding in part to submissions by Ngati Kahu
Ngati Kahu sought restoration of previous rural zoning in Bethlehem contending that the proposed development would jeopardize its community and that council failed to comply with s 32 RMA and did not adequately consult with tangata whenua prior to the notification of the change
HELD: would be advantageous if council could produce a single document embracing the material relied on and the reasoning leading to the promulgation of a change
Steps taken by council fell short of compliance with duties under s 32. Nov '91 policy adopted largely on market driven footing
Council obliged to consult with hapu affected by urban growth strategy in plan change prior to public notification of change. Consultation required to be undertaken in good faith and to the degree sufficient for it to be said that the council had familiarized itself as to the nature and substance of Ngati Kahu's interests and concerns
Consultation need not result in consensus.
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Settler Developments Ltd v TDC 9/9/95
Appeal from decision of TDC refusing consent to application by Settler Developments (SDL) to erect a comprehensive development over 27.5 m in height at Marine Parade Mt Maunganui
Proposal considered contrary to s 6(b) RMA as additional height of building will result in buildings that visually dominate and detract from prominence of natural features (Mauao, the isthmus, Mt Drury, Moturiki, Motuotau)
Proposal considered contrary to s 6(e) as additional height considered by tangata whenua to detract from the visual appearance and attraction of Mauao as Mauao has a special significance for the iwi of Tga moana and is regarded as waahi tapu
Considered by tangata whenua that the high rise development in the vicinity of Mauao to the extent proposed would have an adverse effect on the aunga and threaten its mana and mauri. Also contended that inadequate consultation with the appropriate Maori interests
Opposition to the planning application arose from the Ngaiterangi Iwi Society Inc. Following discussions with the executive officer, however, the objection was withdrawn. The Iwi then reversed its decision, but after the date when submissions to the application had closed. Evidence given by Kihi Ngati and A Fisher
HELD: development to go ahead with conditions
Considered that efforts to consult were reasonable in the circumstances and that council adequately informed in relation to mana and mauri of Mauao being affected by height of 2 towers. On the basis of the towers being limited to no more than 2 extra storeys, it was agreed that "Mauao will not only retain its dominance and pre- eminence but that the comparative size of the towers will simply serve to underline and reinforce the greater hand of nature".
Western Bay of Plenty District Council v Bryan (1997) 3 ELRNZ 16, 29/10/96
Application by WBOPDC against Motu Bryan and Brian Nepia for injunction restraining building work on a property at Surtees Rd, Katikati, comprising a block of Maori freehold land (Parish of Tahawai Lots 18C and 18I block)
Building on property without application for consents
Defendants contend that plaintiff Council has no jurisdiction to regulate building on land because its Maori land and any efforts by plaintiff to try and regulate building on the land are an interference with his rights, particularly under the Treaty, but also as a matter of customary law and interference of rights on customary land
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Court satisfied that it has jurisdiction to deal with Maori land because the Building Act applies to Maori land
Appropriate that prohibitory injunction be issued. This is clearly to ensure the performance of a public duty, as this is a public regulatory Act that applies to all and it is in the interests of all that it be applied in a general way.
Bethlehem Centre Ltd v TDC 30/10/97
Decision as costs
This appeal concerns an application by Bethlehem Centre Ltd (BCL) for a resource consent to construct a small shopping centre
Case called at same time as a reference to the Court on a plan change affecting BCL's property the subject of current appeal
Ct was invited to make a consent order on the plan change reference and, after some enquiry and discussion (involving a tangata whenua group) the proceedings were disposed of with an order being made by consent between the principal parties and with no other person or body opposing.
BOP Regional Council v Waaka 23/12/97
Enforcement order variation
Record of terms of interim agreement and adjournment of part-heard hearings
Order allowing Lance Waaka to deposit cleanfill on Poike 12 block and Poike 3B No5 Block subject to certain conditions.
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
White v WBOPDC 19/8/98
Order striking out proceedings
Appellant (Mr White) did not comply with directions of court including payment of filing fee and accordingly proceedings struck out.
White v Bay of Plenty Regional Council 9/11/98
Decision on motion to strike out appeal
Motion by WBOPDC to strike out appeal by Mr JJR White as Chairman of Te Uretureture Charitable Trust.
The appeal seeks to challenge decision of EBOP granting discharge and coastal permits to WBOPDC to discharge primary and tertiary treated effluent from a land based treatment facility into the Pacific Ocean off Matakana Island via an existing pipeline and a new pipeline connecting the treatment site to the existing pipeline.
Application for discharge permit and all further permits were publicly notified.
Neither Mr White nor the Trust lodged a submission in relation to the discharge permit and coastal permit applications.
Mr White did lodge submission with WBOPDC in response to notification of designation proposal.
Appeal proceedings in issue intended to be against decision of EBOP on discharge and coastal permit applications.
Appeal lodged 3 months out of time. Appeal not served on BRC.
Delay in filing appeal not accepted . Also White did not lodge submission therefore there was no standing to lodge the appeal.
Accordingly appeal struck out.
BOP Regional Council v Waaka 20/1/99
Decision as to costs
Costs awarded and payable by Lance Waaka
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Ngati Hangarau v TDC 2/3/99
Record of determination of Waiver application
Waiver application as to late filing and service of a reference concerning the Tga proposed district plan, and a cross-application by parties represented by Mr Smith.
Discussions between parties representatives had resulted in withdrawal of opposition on basis that Ngati Hangarau agree to amend reference
Waiver granted on that basis.
Ngati Kahu hapu v TDC 2/3/99
Record of determination of Waiver application
Waiver application as to late filing fee and service of reference concerning proposed Tga District plan, and motion to disallow application and dismiss reference.
Discussions between parties representatives resulted in withdrawal of opposition.
Withdrawal on basis that Ngati Kahu agree not to pursue matters raised in paras 6(a) and 6(c) of notice of reference.
Ngati Kahu not seeking to challenge Residential A Zoning proposed to east of plateau Bethlehem Rd, nor seeking to overturn zoning allocated to "plateau lands", but that various policy and objective provisions of the zone relating to maintenance and protection of amenities were sought to be bolstered and improved upon in order to guard against adverse effects of subdivision and development in the area.
Waiver granted on basis that reference be amended
Mangatawa Inc v TDC 2/3/99
Record of determination of application for waiver as to late filing fee and service of a reference in re respondent's proposed district plan.
Reference relates to designations in re certain land owned by Mangatawa Incorporation and designated water reservoir purposes by the respondent in proposed plan.
Waiver granted
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Te Whata v WBOPDC 13/9/99 (High Court)
Reserved judgment
Rates on Maori land in multiple ownership
Council obtained judgment by default against ratepayer who then applied to have judgment set aside but was unsuccessful. Dist. Ct judge held that rates payable and no defence. This view challenged on appeal.
Whether Mr Te Whata was an "occupier" for the purpose of qualifying for rates remission under Rating powers Act 1988.
Appeal allowed
Fulton Hogan Ltd v WBOPDC 28/9/99
Application for stay of abatement notice
Application for declarations in re claimed existing use right. FHL claim such right exists in re its quarry at Poplar Lane, Papamoa.
Argument arisen between FHL and WBOPDC over continuing right to carry on blasting.
Concern by tangata whenua interests (including Waitaha, Tapuika, Ngati Whakaue, Ngati Pikiao, Nga Potiki) as to taonga in the general area surrounding quarry and the object is to ensure integrity of those taonga wont be adversely affected by continued quarry operations.
Bay of Plenty Speedway Association Inc v TDC 20/12/99
Appeal against decision declining consent to establish and operate a new speedway facility at Te Maunga.
Nga Potiki initially involved in appeal proceedings in opposition to the application but withdrew its opposition, having agreed to a negotiated proposed consent order. The proposed order also satisfied concerns of other parties including Council, Transit NZ, Magatawa Papamoa Blks Inc, Mrs K Atvars representing various Te Maunga residents and others.
Continued opposition was evinced by T Faulkner representing Ngai Tukairangi.
Mr Faulkner's case founded on contention that area warrants waahi tapu recognition.
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Evidence re waahi tapu given by D Kahotea indicating that subject site located in general vicinity of various sites of significance, but that proposal would not actually encroach upon any of then.
HELD: subject site does not bear significance to tangata whenua as part of a wider area that their ancestors occupied and fought for.
Also, on the basis of the conditions contained in the order consented to by Nga Potiki and others, it was held that the requirements of the RMA in re s6(e), s 7(a) and s 8 will be satisfactorily recognised, provided for and taken into account. Provision re archaeological artefacts also noted.
The order and conditions as submitted by consent will suffice to ensure that the act's purpose is met and any adverse effects on the environment beyond the site will be suitably mitigated and controlled.
Nicholas v WBOPDC 19/1/00
Interim decision
Winterbourne Trust represented by P Nicholas sought to challenge applicability of variation to Proposed District plan relating to development impact fees provisions in particular circumstances. Relief sought that DIFs not be charged "on Maori land in the Ngati Ranginui Tribal area".
Trust of the view that Ngati Ranginui's historic contribution should be recognised and provided for in the variation
Also contended that DIFs should not be chargeable when any part of the land in question is sought to be developed by or on behalf of persons connected with Ngati Ranginui. Ngati Ranginui have contributed significantly to the development and settlement of the district.
Council contends that Proposed plan already gives special rights to Maori to put multiple housing on their rural land, papkainga zone also provided for. Council also has ability to reduce or waive and DIF that would otherwise be charged in order to avoid or mitigate an identified detriment to the wider community – this will provide flexibility for Council to address specific concerns raised by the Trust.
Court endorsed council's approach in formulating the plan. Court concluded that the rules (16.3.1.2 and 16.3.1.3(d) are appropriate means for the council to consider and determine concerns of the kind raised by the Trust – that is, in the light of individual cases and surrounding circumstances. However, the court suggested an amendment to rule 16.3.1.2 to ensure that the rule could be invoked without argument.
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Duncan v NZ Historic Places Trust 13/3/01
Issue: appeal rights
Application by respondent (NZHPT) for order that appeal by Matire Duncan and others (of Nga Potiki) be struck out
Appeal concerned an authority granted by NZHPT in Nov 2000 to Lysaght consultants Ltd (LCL) on behalf of Seacrest Resort Ltd (SRL) to modify or damage part of archaeological sights at 250 Papamoa Beach Rd, subject to various conditions.
Archaeological sight destroyed before appeal heard. Appeal lodged in time and duly served.
Issue: whether an HPA appeal may be rendered purposeless in effect and liable to being struck out if the grantee of an authority to modify or damage or destroy and archaeological site chooses to move in quickly and carry out the modification or destruction in the absence of a stay having been formally ordered.
Court felt that such a position incompatible with Parliament's intent in reference to appeals. The intention of the legislature is that the right should be something real and not susceptible to negation on such footing as indicated.
NZHPT contention that subject matter of appeal had been rendered redundant not accepted by court.
Powers available to court in hearing and determining appeal under RMA available for appeal under HPA.
Fulton Hogan Ltd v BOP RC and WBOPDC 10/5/02
Appeals against proposal of FHL to extend existing quarry operation at end of Poplar Lane, Papamoa Hills.
Intended future works would involve expanding excavations further up the valley area – a proposition which has produced notable opposition from certain tangata whenua interest.
FHL claims lawfully entitled to continue quarrying without need to apply for land use consent as an existing use right is said to subsist having acquired the interest and land use entitlement of the quarry’s former owner.
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
This assertion challenged by appellants as effects of continuing activity would not remain the same or similar in character, intensity or scale.
Following consultative discussions and negotiations with tangata whenua interests FHL came to an agreed position with the Ng Potiki Resource Management Unit, with a memorandum of understanding having been arrived at between Ng potiki and FHL.
However negotiations proved unsuccessful with other tangata whenua interests and the remaining appeals proceeded (ng uri o Tamapahore, Ngati Whakaue, Ngati Pikiao, Tapuika, Ngati Rangiwewehi, Waitaha a Hei).
Various archaeological sites lie within 3 of the 7 operational stages of the quarry and various other sites lying just outside.
Consent was obtained from HPT to modify or destroy one of the sites and an appeal was also lodged against this.
Court concluded that quarry has been source of employment in area since ‘50s, quarry economically viable and output has increased incrementally, extension of quarry would assist in addressing scarcity of aggregate resources in BOP and in the absence of Maori cultural and spiritual concerns pertaining to the site the proposal would accord with the RMAs purpose and would warrant consent.
HELD: Court found in favour of FHL’s proposal, subject to modifications – ie exclusion of adjacent valley area and protection of identified archaeological sites to be excluded from quarrying. This “will serve appropriately to recognise and provide for relevant nationally important values under s 6(e)”…we have also paid particular regard to s 7(a), s 8, including the principle of active protection and the need for frank and open interaction.
Ascot Trust Ltd v TDC 6/11/02
Proposed lot subdivision of rurally-zoned farmland at Oropi Rd. Originally 40 lots planned but later reduced.
Consent originally declined due to significant adverse effects on rural character of locality, effects on interests of tangata whenua not adequately resolved, no landscape characteristics of site that distinguish it from other rural sites, cumulative adverse effects.
Court concluded on basis of unchallenged evidence that subdivision land of limited productive value, and, subject to resolution of certain issues, the proposal is merited and supportable under district plan and RMA purpose and principles.
No further mention of Tangata whenua interests
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Heybridge Developments Ltd v WBOPDC 21/11/2002
HDL sought consent to subdivide over 44ha of low-lying coastal land at Lochhead Rd, Te Puna. The site abuts Tga harbour and lies adjacent to mouth of Wairoa river. HDL owns land under freehold title.
14 lots proposed.
WBOPDC declined consent at first instance. Proposal found to run counter to Maori values and concerns. Also impact over time on ecological values and coastal hazards risk.
Critical issue - spiritual and cultural concerns of Pirirakau hapu.
Existence of site of cultural significance – an ancient pa with middens.
Following ongoing consultation with DOC, local iwi and council HDL introduced various amendments to proposal including vesting of seaward side of esplanade strip in management structure (funded by HDL) controlled by local iwi and Pirirakau could exercise kaitiakitanga and carry on traditional food and flax gathering and camping.
Pirirakau sought that land remain in rural state, without allowing the works in HDL’s proposal to occur.
HELD: although the way the case unfolded basically involved the spiritual and cultural concerns of Pirirakau, those concerns cannot be viewed in isolation of wider environmental considerations.
The subject land is undoubtedly ancestral land and due recognition and provision needs to afforded to Pirirakau’s position and interest in the context of s 6(e), also s 8.
Court offered no firm view given the “inchoate state of the evidence”. Further consents were also required from the regional council, these had not been applied for yet.
The Court felt that those applications needed to be made and further evidence heard before coming to a firm decision and determining how Pirirakau’s interests could be recognised and provided for.
Asco Trust Ltd v TDC 12/12/02
(see decision above of 6/11/02)
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Consent conditions imposed including provision for consultation with Ngati Ruahine on various matters including landscape planting, unearthing of archaeological sites or koiwi, copies of development plans.
Fulton Hogan Ltd v BOPRC 5/3/03
Final Decision
Further consent conditions including providing for consultation with tangata whenua (Waitaha) on certain matters including earthworks, waahi tapu
Wood v TDC 14/4/03
Woods and O’Connors subdividing land adjacent to Ngati Hangarau land.
Woods raised objection to matters in order proposed by consent between Ngati Hangarau and Council.
Wood did not seek to challenge planning merits and indicated recognition and support of Ngati Hangarau’s special position as tangata whenua. Wood’s concern lay in a perceived delay in the timing of services to enable subdivision to occur on his and wife’s property. Wood claimed that the ability to subdivide would be postponed or setback in time by endorsing the proposed order on Ngati Hangarau’s reference. This was claimed because urban services would not require to be provided through the Ngati Hangarau land for some time.
HELD: Wood and O’Connor land would not be affected.
No apparent tangata whenua involvement
Tuhakaraina v NZHPT 3/5/04
Decision on application by appellants for waiver in respect of late service
Landsdale Developments Ltd applicant to HPT for authority to modify or destroy 2 recorded archaeological midden sites.
Appeal by Ng Potiki served out of time – 5 day delay.
HELD: In absence of evidence on Landsdale’s behalf indicating additional circumstances giving rise to prejudice, such prejudice as arises from 5 days delay in service is not such as to warrant rejecting the waiver application. Waiver granted.
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Falwasser v TCC 18/6/04
Challenge of designation proposals of respondents.
Challenge re notice of requirement (NOR) issued by TCC as to proposed arterial route extension of Sandhurst Dr, off Maranui St (Papamoa beach Rd). The extension would run largely through undeveloped residentially-zoned land owned by Mr F James who supports the designation. One of the factors over which the Council is able to exercise its discretion, in imposing consents to subdivide, is that of traffic effects liable to occur consequent on subdivision.
Mr James’ land was formerly in the ownership of interests connected with the appellants, Mrs K Falwasser and Mrs C Kakau (the whanau).
The road widening designation necessitates moving the dwelling house of the whanau further to the rear of the whanau’s site, with resultant loss of amenity relative to the size.
Whanau contended that respondents (esp Transit), have failed to adequately recognise and provide for the whanau’s deep-seated links with their site, and to consider alternatives for siting the interchange at a location that would avoid the property. Also that consultation inadequate.
No evidence called for whanau nor were any of respondent’s witnesses cross- examined.
Whanau asserted that, having previously disposed of their interests in the Jame’s block and agreeing to sell adjacent 2 sections to Transit, the dwelling house represents the whanau’s last ancestral land holding, and, as such, carries deeply felt cultural and traditional links.
HELD: Were there a suitable option available for avoiding the whanau’s site that option would have been preferred, given the whanau’s position and the Act’s provisions under ss 6(e), 7(a) and 8. However, having reviewed all the various options discussed and presented in evidence, and for the reasons Transit’s conclusion that the present option is clearly superior to any other, the designation should be upheld, subject to conditions designed to recognise and provide for, and duly take account of, relevant matters pertaining to the statutory provisions mentioned.
Conditions imposed requiring consultation with whanau in re cultural and spiritual interests of whanau, impact on whanau, landscape and visual mitigation, endeavouring to find other suitable ancestral land for the whanau in exchange.
Consultation also required with Ng Potiki re archaeological/cultural mitigation.
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Tuhakaraina v Pouhere Taonga (NZHPT) 9/9/04 (this is the case from the BRM Gazette)
Appeal lodged by Ng Potiki RMU seeking to overturn decision by NZHPT in favour of Landsdale development Ltd (LDL) regarding an archaeological site.
LDL applied to NZHPT under HPA for authority to damage, modify or destroy 2 shell middens.
Approval granted and Ng Potiki appealed.
LDL had been granted subdivision consent in 1999 to create 280 residential lots. The consent included conditions designed to protect archaeological sites having cultural significance and required consultation and certain steps to be taken in re archaeological sites/discoveries.
LDL then applied to HPA for authority to modify, damage etc.
Midden site had already been damaged and preservation was not warranted.
Appeal declined.
Thompson v Flavell v WBOPDC 3/2/05
Application to rezone rural land (near the Wairoa river mouth in the WBOP) for industrial use.
Privately promoted challenge adopted by council but eventually refused.
Area was once an important food source for local hapu, particularly for Pirirakau, and is bounded by several important landmarks, particularly Pukewhanake.
Pirirakau opposed to application on grounds of lack of consultation and potential interference with Te Hakao and Pukewhanake.
However it became clear that positive provision for the interests of Pirirakau could be made by enhancing the former wetland area on the site.
HELD: having identified the need for industrial land within the district, the promoter of the proposed change has balanced the benefits with the mitigated effects of the proposal. Objective to ensure development within Te Puna industrial Business Zone is compatible with the amenity values of the rural environment of the neighbourhood. The zoning is most appropriate for this land.
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Tuhakaraina v Pouhere Taonga (NZHPT) 14/2/05
Decision on strike out application
Application by Papamoa Junction Ltd (PJL) that appeal by RS Tuhakaraina and H Cooper on behalf of Ng Potiki be struck out as serving no realistically useful purpose.
Authority had previously been granted to PJL by HPT
That authority had been exercised before the time for lodging an appeal had expired and before appeal lodged.
PJL moved that the appeal be struck out as the court is in no position to reverse HPT’s decision or otherwise grant the relief the appellants seek.
HELD: Court satisfied that proceedings have no prospect of success in re the relief sought and strike out application must succeed.
Papamoa Junction Ltd v Pouhere Taonga (NZHPT) 4/4/05
Interim decision
Appeal by PJL seeking to overturn decision by NZHPT refusing to consent to destroy part of archaeological site.
The site lies within a much larger area that has recently been subdivided by PJL.
Area of particular note because of its state of archaeological preservation, its history – it is located at a point where major controversy existed between Te Arawa and Ngaiterangi (battle of Te Tumu). Another factor of historical importance, currently underlying claims before the Waitangi Tribunal, is the imposition of the confiscation boundary by the Crown in 1860s.
Historical evidence given by T McCausland of Waitaha.
HELD: While there is no evidence that the specific area in contention is unique or contains objects of particular value, we consider that its importance as part of a larger landscape is significant. Weighing all evidence heard as to the historical and cultural value of the portion of the site that lies within the company’s land we are satisfied that that portion is historically and culturally significant.
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Discussion on allowing PJL to destroy other sites outside this specific area to enable development of their land. Also would be desirable id the Treaty Settlement blocks could acquire the protected part of the land.
Ct reserved ability to settle final conditions of consent
Thompson v Flavell and Ors v WBOPDC 5/5/04
Statement of agreed facts.
WBOPDC v Te Whaiti 4/8/05
WBOPDC seeking enforcement order against owners of Maori land block at Pio Shores near Bowentown.
Orders sought to remove concrete plug poured down culvert pipe and to remove weeds from stormwater/cutting drain crossing the block
Application made pursuant to s 314(1)(da) of the Act on basis that such order is necessary to avoid, remedy or mitigate any actual or likely adverse effect on the environment relating to the land the respondents own.
Claims of sovereignty not within jurisdiction of Envmt Ct.
Owners made claims of sovereignty and asserted that Envmt Ct had no jurisdiction over Maori land.
Envmt Ct has jurisdiction for enforcement purposes.
Contended that drain established by council without approval of landowners which was subject of ongoing dispute.
HELD: issue of ownership f drain not critical to determination of application for enforcement order.
NO evidence establishing risk to properties, subdivision or pumping station - even in extreme rainfall.
No firm conclusions that any likely adverse effects to the Maori land block.
No sufficient evidence to satisfy the court that there are currently or likely to be adverse effects from the continuing partial blockage of the culvert in its current state.
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Ct not prepared to make order. However Ct did order that no party undertake any further works in re the culvert.
Ngati Kahu v TCC 6/12/05
Decision as to costs
Appeal originally lodged 12//7/04 but withdrawn 18/10/05.
Appeal sought exemption for Ngati Kahu from proposed financial contributions for development in west Bethlehem area. Such contributions were part of Plan changes 15 and 35 relating to new urban growth area incorporating Ngati Kahu land.
Proceedings discontinued as relevant provisions of the plan changes were withdrawn by TCC. Financial contribution provisions withdrawn as were no longer needed, in as much as the Council had adopted a development contributions policy under the Local Govt Act 2002.
Ngati Kahu seek costs award of $500.
HELD: Although Ngati Kahu’s appeal became redundant, the course the council pursued under the LGA was open to it at law and was not unreasonable. Costs should lie where they fall.
Nga Potiki Authority v NZHPT 31/6/06
Nga Potiki appeals against decision of NZHPT granting consent to TCC and Min Education to destroy 2 archaeological midden sites.
Respondents sought that appeal be struck out as evidence given for Nga Potiki did not suffice to raise a need on behalf of respondents to present evidence in response.
HELD: no question that Nga Potiki are entitled to bring appeals from decisions of the NZHPT. However, in doing so, the appellant does need to bring evidence to bear on the particular sites at issue. In this case the appellant has failed to do that.
Appeal dismissed.
Ng Potiki Authority v NZHPT
Decision as to costs
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
HELD: After reflecting on Ng Potiki’s motivation in bringing the appeal, founded on the hapu’s sincerely held concerns over loss of heritage we propose that costs should lie where they fall.
Thomas v BOP RC 24/2/06
BOPRC proposed change to regional policy statement dealing with heritage issues.
Mr Thomas lodged appeal seeking that the change be totally rejected following a disallowance of a submission which he made to the regional Council regarding the change. Also lodged application for waiver/directions.
Council in turn lodged application to have appeal struck out as it fails to raise justifiable issues, or is otherwise materially defective on the grounds advanced and relief sought, or Thompson be required to file further and better particulars.
HELD: no waiver granted to widen grounds or scope of present appeal.
Thomas to file further and better particulars (within ambit of appeal as lodged) of those specific provisions of proposed change
The certain matters relating to the nature of Mr Thomas’ concerns pertaining to this appeal did not lie within the ambit of this court’s jurisdiction.
SmartGrowth Combined Tangata Whenua Forum v Bay of Plenty Regional Council (to be heard)
BOPRC proposed change to regional policy statement dealing with heritage issues.
SGCTWF wish to have the word ‘assert’ replaced with ‘determine’ when identifying the relationship Maori have with their ancestral landscape.
Case yet to be heard.
Parties have met to discuss.
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Appendix 2 Local Authority Engagement with Maori
Name TAURANGA CITY COUNCIL (TCC)
Description Maori Representation at Governance
Maori Standing committee with 3 Tangata Whenua members appointed by Tangata Whenua Collective.
Nominated Tangata Whenua members on all significant Council projects (Project Steering Groups) and projects of interest to tangata whenua (Steering Groups and Committees) e.g. Mauao Steering Group, Urban Design Working Group
Relationships with Maori Community
Fostered through formal relationships (hapu protocols) and projects
Dedicated Maori unit in Council addressing relationships, policy and supporting governance structures
Maori Participation in decision-making processes
Tangata Whenua Collective (Tauranga hapu representatives) meet twice a month to have input into all major projects and activities of Council
Tangata Whenua Collective members on Combined SmartGrowth Tangata Whenua Forum
Consultation with tangata whenua regarding Council projects including resource consents
Good Points Multi level relationships and structural arrangements for participation
Robust and comprehensive policy and support mechanisms
High level of resourcing
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Name WESTERN BAY OF PLENTY DISTRICT COUNCIL
Description Maori Representation at Governance
Maori Forum made up of iwi representatives and council members.
Relationships with Maori Community
Council staff individually addressing relationships, policy and supporting participation.
Maori Participation in decision-making processes
SmartGrowth Combined Tangata Whenua Forum meets at Council regularly.
Consultation with tangata whenua regarding Council projects including resource consents.
Good Points Well established Maori Forum
Use of other forums (SmartGrowth)
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Name BAY OF PLENTY REGIONAL COUNCIL (ENVIRONMENT BAY OF PLENTY)
Description Maori Representation at Governance
Three elected Maori constituency members established through Bay of Plenty Regional Council (Maori Constituency) Empowering Act 2001
Maori Committee with iwi/waka appointments.
A number of joint management regimes that involve the relevant iwi and hapu.
Relationships with Maori Community
Project based relationships and interaction with Maori committee members.
Use of media for communicating with Maori community
Maori Participation in decision-making processes
In-house guidelines on consultation with iwi have been produced for staff, along with an iwi database. Consultation for consents and plan changes.
Fulltime dedicated Maori policy unit.
Good Points Statutory acknowledgement of Maori at governance level
Dedicated Maori Unit
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Appendix 3 Peer Review
Auckland Fax: 64 9 359 5300 Tauranga Fax: 64 7 571 3333 P O Box 91250 P O Box 13373 Level 3, IBM Centre Level 2, 116 on Cameron 82 Wyndham Street Cnr Cameron Road & Wharf Tel: 64 9 358 2526 Street Memorandum Tel: 64 7 571 5511
Wellington Fax: 64 4 384 3089 Christchurch Fax: 64 3 365 7539 P O Box 11340 P O Box 110 Level 9, Hewlett Packard Level 6, Brannigans Building Building 86 Gloucester Street 186-190 Willis Street Tel: 64 3 366 8891 Tel: 64 4 385 9315
Attention: Antoine Coffin Company: BML Date: 12 September 2006 From: Craig Batchelar THE TANGATA WHENUA EXPERIENCE OF ENVIRONMENTAL PLANNING AND Message Ref: MANAGEMENT DEVELOPMENTS (INCLUDING TOWN AND DISTRICT PLANNING) IN THE TAURANGA MOANA INQUIRY DISTRICT SINCE 1991. Project No: T06090
You have asked me to Peer Review the above document.
It is an impressive comprehensive piece of work, Antoine.
I agree with the overall observation that TW have not addressed effort to the planning policy arena enough, being too focussed on the immediate development issues, and also being ill equipped to deal with the bigger processes in some cases.
In section 7 you try to make a point about over focus on development rather than plan making. I don’t think it’s quite there as the list is only of developments, not plans, so it’s a circular argument.
The work Pio did on Nga Taonga Tuku Iho provided a model for promoting engagement of tangata whenua in the most effective areas of influence on outcomes. I think it needs to be mentioned as a significant piece of work. The genesis of this form me came from Des Kahotea, and goes way back to the time of the Ngati Kahu appeals. He was always advocating to the need to focus on policy not consents. This has been successful in recent times, with heritage issues now being addressed in urban form decisions and structure planning, rather than individual resource consents in Tauranga (ref Tauriko and Wairakei) .
APPENDICES WAITANGI TRIBUNAL A STUDY OF ENVIRONMENTAL PLANNING IN TAURANGA MOANA SINCE 1991
Des also promoted considering resource protection and management together. This is one thing that could be identified more clearly in the report. It is a key issue that Tangata whenua have their own growth and development issues to address. The focus on “resource protection” is understandable in the face of growth pressure, but “resource development’ also needs to be on the agenda. The comments made about financial contributions are part of this issue. Smartgrowth pulled out some stats on TW growth that made some people take notice and realise that in the long term there are real issues brewing on capacity of resources (land and services for housing, access to kaimoana, marae capacity, health and old age care etc). It’s that understanding and vision needed to do good hapu planning.
Specific Points:
These are shown on a track change copy of your report.
• Corrected reference to my role in Tauranga City Council • Included reference to Ngaiterangi IMP • Added comment on Rural H and Rural G Zone in WBOPDC • Reference to origins of UGAs and Structure Planning • Reference to WBOPDC as rural authority under LGA reforms. • Reference to RPS Change and provision for Maori land • Recognition that there is a heritage policy, but it is in the District Plan and also SmartGrowth (“Nga Taonga Tuku Iho” has been adopted in concept) • Suggested amendments to comments on Development Contributions to improve readability. • Matapihi pre 1989 reforms was in Tauranga County, not Mount Borough. I comment on how the proposals at Matapihi are not consistent with 50 year urban limit and noted that the Strategy is being reviewed now and will be open to submissions later in 2006. • The Matapihi case study does not really make illustrate point about the impact of DIFs on achievability. The $25,000 fees – where are they derived from? The Ngati Kahu example is more informative. • Added some comments on the early 1990s procedures and protocols development. • Identify sources of initiative for Iwi Liaison Hui • Refer to Smartgrowth Implementation committee makeup. • Refer to Nga Taonga Tuku Iho and Vaughan Paynes work on mapping culturally significant areas – these were important. • Outline what the SmartGrowth position on Wastewater is, relative to collective opposition.
Craig Batchelar Senior Principal
APPENDICES