The precedent-setting ruling could have far-reaching effects for the way courts deal with places of significance to Māori
“We are just a hapū getting in their way,” said the late Ngāti Hē kaumatua Taikato Taikato.
For generations, the Ngāti Hē people of Maungatapu Marae have been trying to get Transpower to remove the transmission lines that hang above their wāhi tapu, Te Pā O Te Ariki.
The recent announcement of plans to move the 3.3km of the 110kV lines was a welcome surprise to the hapū, who had long fought for the lines to be moved away from their marae and other traditional places.
However, relief turned to dismay when it was revealed that the $7 million proposal would see a major new power pole built right outside the marae entrance and kōhanga reo.
“So, what do they propose to do?” said Taikato to an Environment Court hearing on the plans in 2019.
“Move the lines from our backs and put them right in front of our faces.”
In a precedent-setting decision, the High Court has sent Transpower back to the drawing board and upheld Ngāti Hē as the experts in their own cultural heritage.
The Court found that when a hapū says a proposal will negatively impact its cultural values in a certain area, it is not up to the court to decide otherwise.
The decision means that hapū and iwi presenting evidence on their culturally important sites may no longer have to see it dismissed by the court or outside experts.
“It’s like if I offended you, I can’t say I didn’t because that’s not up to me,” says Tauranga Environmental Protection Society chairman Peter McArthur.
"It’s up to you to decide what is offensive to you.”The Tauranga Environmental Protection Society brought the case to the High Court on behalf of Ngāti Hē with whom they have a long-standing relationship as residents of Rangataua Bay.
“Māori have certain rights in their heritage and culture, and it’s for no one else to tell them how to feel about it,” says McArthur.
In response, Transpower says it is focused on maintaining the secure supply of electricity to the growing area and looks forward to working with local hapū to consider other options.
The Transpower lines have been a longstanding grievance for mana whenua since they were first installed by the Ministry of Works in 1958.
Built to connect Tauranga with Mount Maunganui, the lines stretch across Rangataua Bay between Maungatapu marae in the south and Te Ngaio pā at Matapihi in the north.
The lines are supported by poles in the harbour, as well as passing over private homes and the horticultural lands of Ngāi Tūkairangi in Matapihi.
During the initial Environment Court case, Ngāti Hē kaumātua presented evidence on the cultural importance of the Maungatapu marae and kōhanga reo and the adverse effects the new power pole would have on them.
They also presented testimony on the longstanding effects of the existing powerlines on Te Pā O Te Ariki and the Rangataua Harbour.
While Ngāti Hē called for the lines to be removed, they did not want it done at the expense of placing a new pole in front of Maungatapu marae. As the court said, this would be a case of the cure being worse than the disease.
“Transpower have alternative options about the lines and where they can go. No, they want to stretch the lines across the front of our marae,” said Taikato.
A number of the affected sites, including the harbour itself, are protected by planning documents under the Resource Management Act.
These documents call for an assessment of the impact of proposals on the cultural values and heritage of these places, before consents can be granted.
Despite the testimony, the Environment Court granted consents to Transpower. The court found that while Ngāti Hē believed they would be worse off, the evidence showed that the new proposal would be better for all parties.
On appeal, the High Court threw out that ruling finding that it was not up to any court to decide whether the proposal would have an effect on Ngāti Hē’s cultural sites. That decision rested with the hapū and their kaumātua alone.
“The effect of the Court’s decision was to substitute its view of the cultural effects on Ngāti Hē for Ngāti Hē's own view,” wrote Justice Palmer.
“Deciding otherwise is inconsistent with Ngāti Hē’s rangatiratanga, guaranteed to them by art 2 of the Treaty of Waitangi.”
The matter now returns to the Environment Court to consider other alternatives, including Ngāti Hē’s preferred option of routing the powerlines along an existing bridge.
“The short time I have left in this world, I would like this problem solved so my grandchildren do not have to inherit all of this,” Taikato said in evidence shortly before he passed away in 2020.
The fight may not yet be over for Ngāti Hē, but that dream may now be within reach.
