Dispute over extension to family bach on tiny island goes to Māori Land Court

The islet of Motungarara, home to "Rewa's bach" where an injunction was lodged in the Māori Land Court to stop building extensions. Photo / Dick van den Oever

A man who tried to stop extensions to a family bach because he believed it would encroach on the burial site of a whaling ancestor, claims the the Māori Land Court is failing to protect tāonga after his injunction failed.

The idyllic islet of Motungarara - which has never been formally surveyed - is around the size of two rugby fields and sits off Kāpiti Island, at the bottom of the North Island.

It has been the site of human occupation for many years dating back to the Webber family ancestors, whaler George Stubbs who married prominent Ngāti Toa chieftainess, Metapere Te Waipunaahau.

The couple had two children, politician Wiremu Parata, who was born on the island off the Kāpiti Coast, and Hēmi Mātenga.

Their descendants are now the shareholders over four land blocks across Motungarara Island.

In 1838, while fastened to a whale, Australian-born Stubbs drowned off Pukerua Bay along with his crew. Their bodies would later be recovered and buried.

In memorial to Stubbs, a Scottish Cairn - which is no longer there - was erected on Motungarara in his memory.

Former New Zealand politician Wiremu Parata was a member of Parliament through the 1870s. Photo / Alexander Turnbull Library

More than 120 years later, a dwelling known as “Rewa’s bach” was erected on block A1B with many whānau spending time on the island over the years.

In 2021, whānau relationships soured as stakeholders began work on extensions to the bach triggering a request to the Māori Land Court by Christian Webber for a permanent injunction.

Webber would take things further by removing timber posts, filling in post holes, and moving his own shed close to the extension area to prevent building.

Since then, no work has been able to take place on the bach extension.

In his application to the court, Webber listed multiple reasons for stopping the extension including members of the family removing significant trees, blocking access to other owners, and that the location of the extension was “in or close to” the area where George Stubbs was buried.

But Martin and Bonnie Webber, Chris Fabbish, and their supporters disagreed and said Christian Webber had “attempted to impose his will and his way on the island in a disruptive manner”, the decision by Judge Damian Stone said.

Webber responded that he was “simply being kaitiaki of the island”.

The respondents gave evidence that the planned extension was over an area an where old septic tank used to be and there was no sign a burial ground had ever been there/

They also said a septic tank would never have been placed in a wāhi tapu in the first place.

In response to the removal of trees, they told the court they only removed a rotten tree and minor shrubs, standard earthworks other shareholders had done on the island over the years with no issue.

Webber told NZME he had been told over the years by “a few sources” the site was where George Stubbs was memorialised and therefore should be protected.

A cairn is a man-made pile of stones usually as a marker or as a burial mound. Photo / 123rf

“As a youngster, I would wake up on the island with the birds and sunshine singing to me through the trees.

“The law is failing to protect our tāonga and shows how limiting options are,” he said.

Webber claimed the Māori Land Court process was rushed because of a lack of resources and that tīkanga was not properly taken into account.

“Land court bureaucracy wasn’t set up to protect our land. We’re not just talking whenua, we’re talking whenua rangatiratanga. The land court is failing to protect our tāonga and performing in a new language.”

Judge Stone’s decision was in favour of the respondents stating that Webber did not have greater rights over the block of land than other owners, they had not damaged any significant trees, and he accepted the extensions were not on a site of significance.

“Given the relatively modest area of the extension (13sqm...) it is difficult to conceive how the extension could restrict access.

“Indeed, (Christian) has been able to move his own shed since work on the bach commenced, suggesting there is room on the block for him.

“The threshold requirements to grant a permanent injunction... are not satisfied. The application is dismissed.”

He implored the parties to try mediation again.

Webber would continue to fight for the protection of the site and plans to go to the council next, he said.

“Part of our role as tuakana is not just educating our people, but a system that is failing our people. Next up is the council and I’m expecting they won’t be set up to understand us either.

“Failing that, it’s back to the whānau who want to protect our assets.”

Shannon Pitman is a Whangārei based reporter for Open Justice covering courts in the Te Tai Tokerau region. She is of Ngāpuhi/ Ngāti Pūkenga descent and has worked in digital media for the past five years. She joined NZME in 2023.