Opinion: Council backs new wahi tapu listing for site in Waikanae

Kāpiti Mayor K Gurunathan.

Weekly column by Kāpiti mayor K Gurunathan.

"To us, it looked the same as any other neighbourhood, with houses and grassed area next to them, which the claimants referred to as the urupa at Tamati Place. This piece of land is owned by the Waikanae Land Company. Ben Ngaia explained: 'Karewarewa today contains housing development but also an area of open space which has not been developed. We have no meaningful way to express our kaitiakitanga to that whenua' … the alienation and inappropriate development of Karewarewa urupa was a major grievance for the iwi."

The above snippet is from the introduction of The Karewarewa Urupa Report of the Waitangi Tribunal. The snippet referred to the site visit of the five tribunal commissioners.

The protection of the urupa was urgent enough for the commissioners to issue an early "pre-publication version" copied with a covering letter on May 25, 2020 to Nanaia Mahuta (Minister of Māori Affairs) and three other relevant ministers related to Treaty matters.

The tribunal pointed out that the land, despite being a historically significant burial site in Waikanae, had not been formally set aside and repeated attempts by local iwi "were continually thwarted by contemporary land laws and policies".

The historical wound goes deep here as the area embraced those fallen during the tribal battle of Kuititanga.

Other prominent ancestors were also buried here including the famed Kahe Te Rauoterangi, the legendary mother who swam across the Kāpiti Island channel with her baby strapped on her back to warn of an impending attack.

The report exposes the systemic use of the law to 'legally' transition the ownership of property. In this case, in 1968, a meeting of landowners was called under the Māori Affairs Act 1953 to vote on a resolution to sell the block to a development company.

The meeting had been advised the block did not include the urupa. Only 13 of the 77 owners were present or by proxy.

"We found that the statutory regime allowed small minorities to sell the land of the majority without their knowledge or consent," noted the tribunal.

The land vested in the Māori trustee was sold in 1968.

The Waikanae Land Company promptly applied to the Horowhenua County Council for a plan change under the Town and Country Planning Act 1953 to remove the 'Māori Cemetery' designation in the district plan. Despite objections by iwi leaders, council revoked the designation.

The subsequent development saw about 350,000 cubic metres of dredged material from nearby wetlands dumped over burial areas and earthworks for roads and houses.

Today, the 20-acre block is half developed with over 35 housing lots. The NPS on Urban Development and the amended Medium Density Residential Standards (MDRS) has created permitted opportunities for significantly greater urban intensification.

The tribunal's early issue of its finding has helped position council's response. In October, last year, councillors supported the inclusion of a plan change for a new wahi tapu listing for Karewarewa Urupa to align it with the findings of the tribunal.

In response to the government direction that the plan changes to entrench the MDRS into all district plans be formally notified by August 20, the council has included in its draft Plan Change 2 the definition of Karewarewa Urupa as a qualifying matter which means it's not subject to the intensification permitted under the MDRS.

This is potentially a significant setback to the private property rights of the Waikanae Land Company which already has two cases on this site before the Environment Court.

While the tribunal has made its findings, as in such cases, it always underpins it with reference to section 4A of the Treaty of Waitangi Act 1975 which states the tribunal may not make any recommendations about the return to Māori ownership of any private land or the acquisition by the Crown of any private land but looks to the parties resolving it via dialogue.

The Waikanae Land Company in its submission to council contends the site is not an urupa based on its own research and should be used for its historic residential-zoned purpose, and disputed aspects of the tribunal's report.

Councillors have supported staff assessment that the tribunal report is robust enough evidence to schedule Karewarewa as a qualifying matter in the draft Plan Change 2 and further noted council's relevant obligations under the RMA to recognise Māori relationship to their wahi tapu.