EVIDENCE OF BENTHAM OHIA

(2 JANUARY 2017)

T L Hovell/Vicki Morrison-Shaw

PO Box 1585

Shortland Street

AUCKLAND 1140

Solicitor on the record Tama Hovell Tama.Hovell@ahmlaw.nz (09) 304 0424

Contact solicitor Vicki Morrison-Shaw Vicki.Morrison-Shaw@ahmlaw.nz (09) 304 0422

BEFORE THE ENVIRONMENT COURT ENV-2016-AKL- 42, 45

AUCKLAND

IN THE MATTER of the Resource Management Act 1991

(RMA or the Act)

AND

IN THE MATTER of an appeal under Section 120 of the Act

BETWEEN NGA POTIKI A TAMAPAHORE TRUST AND

OTHERS

Appellants

AND BAY OF PLENTY REGIONAL COUNCIL

Respondent

AND ASTROLABE COMMUNITY TRUST

Applicant

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INTRODUCTION

1. My name is Bentham Atirau Ohia.

2. I am of direct descent of Nga Potiki and provide this

statement on behalf of Nga Potiki a Tamapahore Trust (“the

Trust’) being the post-settlement governance entity for

Nga Potiki. I am a trustee of the Trust.

3. I have a Diploma in Teaching (Primary/ Maori Immersion), a

Bachelors of Arts (Education & Maori), a Masters in Business

Administration (Executive) and will graduate with a PHD this

year.

4. In terms of my past and current roles:

(a) President of AMO Advancement of Maori

Opportunity (Maori leadership programme 2002 -

present);

(b) Deputy Chair Waikato Tainui College of Research and

Development 2009 – present;

(c) I am the interim CEO for Te Mātāwai;

(d) Owner Director - Puata Hou Limited;

(e) Board Member - Americans for Indian Opportunity

(Albuquerque New Mexico USA)

(f) CEO of Te Wananga o Aotearoa and a staff member

1994-2013

(g) Chair of Te Tauihu o Nga Wananga - the three

Wananga (Aotearoa, Raukawa, Awanuiarangi) 1994

– 2013

(h) Maori Economic Taskforce - NZ Government (2009 -

2011)

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5. I live in Papamoa on Wairakei Avenue where I have lived for

the past 13 years.

6. At the time of the Rena grounding, I, like many of our whanau,

and tribal members of Ngai Te Rangi (Nga Potiki), and Ngati

Pukenga, were deeply affected by the oil spill and other

debris that we experienced.

POSITION OF THE TRUST

7. The Trust has a strong commitment to protecting and

preserving our whenua and moana for future generations. At

the Waitangi Tribunal hearing in 2000, over a five-day hearing

kaumatua gave evidence on the degradation and at times

wholesale destruction of places of cultural importance. The

Ngā Potiki Resource Management Unit was established many

years prior to monitor and advocate on behalf of Ngā Potiki

to protect its interests.

8. The Trust is the appellant, and advancing the kaitiaki position

of hapu and iwi of Motiti, Tauranga Moana, and Maketu in

relation to the Rena wreck.

WHANAUNGATANGA

9. I want to highlight the whanaungatanga relationships

between the iwi and hapu. As iwi and hapu, our tikanga is to

celebrate our hononga (connections). An important part of

our tikanga is equally to protect our whenua, moana and

taonga of our respective rohe. However, for us, it is also

important to highlight the hononga or connections and

whanaungatanga between us and I think it is important to

recognise this in this case, particularly given divisions that have

arisen through the process.

10. We often refer to Te Heke a Rangihouhiri as the event that

brought the Mataatua groups from the eastern Bay of Plenty

to Maketu and eventually to Tauranga.

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11. This migration was initially enabled through the relationship of

Tamapahore and his brothers Tamaururoa and Tamapinaki to

their cousin, Ngakohua (the son of Torohangataringa who

was the sister of Tuwairua, the mother of Tamapahore).

Tuwairua was of Ngati Tapuika and thus Tamapahore was

whanaunga of Tapuika. Tamapahore and his group were

invited by his cousin Ngakohua to live at Owhara pa at

Maketu.

12. The group initially lived alongside Waitaha and Tapuika at

Maketu, however, disagreements eventually emerged and

disputes between the groups ensued. A battle occurred in

which the Mataatua grouping won, but it was in this battle of

Poporohuamea that their ariki Te Rangihouhiri was killed. The

group adopted the name ‘Ngai Te Rangi’ in his honour, and

Tamapahore assumed leadership of this group.

13. To cement peace with Tapuika, Tamapahore’s daughter

Parewaitai married Te Paruhi o Te Rangi of Tapuika. The Ngai

Te Rangi group settled at Maketu, and for many years, they

enjoyed peaceful arrangements. Te Hapu settled on Motiti

Island and there was a close network of both Mataatua

(‘Awa’ people) and Te Arawa (Waitaha / Tapuika) iwi from

Whakatane in the east to Motiti in the west.

14. After some time at Maketu, Kotorerua, the grandson of Te

Rangihouhiri had a dispute with Ngati Ranginui and Waitaha.

The battle of ‘kokowai’ occurred at the pa located on

Mauao. Tamapahore is known to have been less enthused

about the battle. The Ngai Te Rangi grouping eventually

moved to Mauao. Tamapahore and his followers moved to

occupy the area from Papamoa to Maketu, establishing their

pa on the Papamoa hills, and eventually on Mangatawa

maunga, and over the years maintained pa along the

Papamoa sand dunes and Kaituna River.

15. Waitaha held the pa at Maungatapu on the Tauranga

Harbour under the strong leadership of Hikapa. In one

incident, Hikapa killed the brother and nephew of

Tamapahore, which gave the saying ‘Te ika huirua a Hikapa’.

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Some generations later following peace arrangements and

intermarriage, Turapaki, a descendant of Ngai Te Rangi,

Tamapahore and Waitaha, came to be the rangatira of

Maungatapu pa. The group here became known as Ngati

He.

16. There are strong connections between Ngati He, Nga Potiki,

and other Ngai Te Rangi hapu, as well as Waitaha.

17. The descendants of Tamapahore also retained strong links to

Ngati Awa in the Whakatane and Matata areas, to the Te

Arawa groups of Waitaha and Tapuika, and the Ngai Te Rangi

hapu, including Te Whanau a Tauwhao.

18. Over the generations, the links between Nga Potiki, Ngati He,

Te Whanau a Tauwhao, the other hapu of Ngai Te Rangi,

Ngati Pukenga, Waitaha, Tapuika, Ngati Ranginui have

become more interlinked and stronger.

19. This rich tapestry of hapu and iwi continue to live in this area

to this day.

20. Nga Potiki continues to celebrate and recognise our

whakapapa and connection to the various hapu, iwi and

waka of this region.

RELATIONSHIP TO THE MOANA

21. The association with the moana goes back to our whakapapa

connections to Tangaroa, our customs and traditions that

brought us across Te Moana Nui a Kiwa to Aotearoa from

Hawaiiki, and ultimately to our connection with the area in

which we have come to have mana whenua and occupy

and enjoy to sustain our whanau, hapu and iwi to this day.

22. The moana has always been a place of cultural and spiritual

importance to Nga Potiki.

23. Nga Potiki has a strong connection to Te Tahuna o Rangataua

on the Tauranga Harbour, as well as strong connection with

the Papamoa coast, Wairakei stream and extending to the

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Kaituna River. Prior to the Te Tumu battle, Nga Potiki interests

extended to Maketu. However, following Te Tumu, Te Arawa

iwi came to reoccupy Maketu.

24. Nga Potiki’s area of interest is shown in the following map.

25. Nga Potiki rohe along the Papamoa coast is from Parakiri to

Te Tumu. The coastal area is of major importance to Nga

Potiki. It is a place of recreation, living, urupa, mahinga kai,

wāhi tapu, and other customs to this day. This place has been

an important space for our whanau for many generations. I

continue to live at Papamoa and am passing on the traditions

of our tupuna to our next generation. It is an area that we are

proud of and have a strong connection to.

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26. The coastal sand dunes along the Papamoa coast are known

to us as Nga Urupa Katoa. This is a very spiritual area for the

tribe. There are also some very important wāhi tapu that are

links to Motiti and the moana, including Waitahanui Urupa, Te

Houhou wāhi tapu, and Te Tumu and other pa sites along the

Kaituna River.

27. Otira, located on the Papamoa coast was a favoured coastal

fishing ground for tamure (snapper). In 1852 Navy Surgeon

John Jollife RN and his party trekked along the Pāpāmoa

where he recorded a large party of Maori hauling ashore a

large fishing net made of flax which is understood to have

been at Otira.

28. The moana out from Otira is also favoured for moki and

tarakihi. There were also battles on the moana. In one

incident, a Nga Potiki party fishing for tarakihi were defeated

and the incident being remembered as ‘patutarakihi’.

29. A large Pohutukawa tree on Mangatawa, which when in

bloom indicated the best time to harvest certain species of

fish. The tree itself provided a land-mark for fishers on the

ocean to locate their position out at sea and fishing spots. The

pohutukawa tree was destroyed by mining in the 1950’s but

Mangatawa remains a land mark from the ocean for our

whanau to this day.

30. Nga Potiki rohe moana extends to and beyond Motiti (but

excludes Motiti coastline). As you get further away from the

Papamoa coast, the hapu of Motiti have stronger interests in

the moana surrounding Motiti, however, there are fishing

grounds in this area that we use and access for our customary

activities.

31. Our whanau continue to rely on this area for our customary

fishing to this day. Those of our whanau who undertake the

fishing to support our marae for tangi and hui have always

referenced Otaiti as a favoured diving and fishing spot. Since

the grounding, our people have not fished from Otaiti due to

the exclusion zone. From discussions with our whanau, there

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is reluctance to fish from Otaiti due to the uncertainty and

stigma associated with the Rena wreck being there.

Rohe moana

32. The Fisheries (Kaimoana Customary Fishing) Regulations 1998

were developed following the passing of the Treaty of

Waitangi (Fisheries Claims) Settlement Act 1992.

33. In 2012 the 3 Iwi of Tauranga Moana Ngai Te Rangi, Ngati

Ranginui and Ngati Pukenga formed the Tauranga Moana

Iwi Customary Fisheries Trust (TMICFT) to appoint Tangata

Kaitiaki and establish a Rohe Moana under the 1998

Regulations.

34. The Rohe Moana included the Tauranga harbour extending

26 kilometres seaward from Kura a Maia and Wairakei

encompassing Tuhua and Motiti Island.

35. After extensive consultation among the hapu of Ngai Te

Rangi, Ngati Ranginui and Ngati Pukenga and other

neighbouring Iwi of Hauraki, Te Arawa and Tainui,

agreement was reached to establish the Rohe Moana which

was gazetted on 20 October 2004 as follows.

36. The boundary from Wairakei extending out to the ocean and

along the eastern side of Motiti is based on accounts of

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historical peace pacts between Ngai Te Rangi and Te Arawa

following a period of conflict.

37. Nga Potiki maintains its interests in the area from Wairakei to

Te Tumu, along with other groups, such as Ngati He, Te

Whanau a Tauwhao, Waitaha and Tapuika. These groups all

share strong whakapapa ties and this area effectively

operates as a buffer zone. Nga Potiki continues to exercise its

kaitiaki responsibilities in this area.

Treaty Settlement & Statutory Acknowledgement

38. The Ngai Te Rangi and Nga Potiki Deed of Settlement records

a coastal statutory acknowledgement for Ngai Te Rangi and

Nga Potiki from Waiorooro to Maketu.

39. In relation to Nga Potiki, the Deed of Settlement records:

“Coastal Statutory Acknowledgement

5.17 The Nga Potiki interest within the coastal statutory

acknowledgement in clause 5.16.3 will be Parakiri

(recorded name Omanu Beach) located on the western

boundary of the Papamoa 2 block to Maketu (as shown on

deed plan OTS-078-13), with the following areas of the

coastal statutory acknowledgement being for the sole

benefit of Nga Potiki:

5.17.1 from Parakiri (Omanu Beach) located on the western

boundary of the Papamoa 2 block to Wairakei; and

5.17.2 from Te Tumu to Maketu.”

40. The statutory acknowledgement recognises the interests of

Ngai Te Rangi (more specifically Ngati He and Te Whanau a

Tauwhao) as well as Nga Potiki in the area from Wairakei to Te

Tumu. The statutory acknowledgement for the area from Te

Tumu to Maketu recognises the relationship of Nga Potiki with

the Te Arawa hapu of Maketu.

41. The area covered by the statutory acknowledgement is

shown below:

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Takutai Moana application

42. Nga Potiki has had its application for customary marine title

lodged with the Court since the passing of the original

Foreshore and Seabed Act.

43. This application was updated to suit the new Takutai Moana

Act. The key change from the two applications was that the

east and west boundaries were converted to curved lines.

The seaward extent has remained the same. These

applications are attached.

44. The areas encompassed by the applications overlap with

Takutai Moana applications by the hapu of Motiti and share

boundaries with Ngai Te Rangi hapu to the west and Ngati

Whakaue ki Maketu to the east.

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45. Nga Potiki has been in discussions with the Motiti hapu, Ngai

Te Rangi and Ngati Whakaue ki Maketu in relation to these

overlapping areas and boundaries. I discuss this a bit further

below.

Waitahanui

46. Waitahanui is an urupa located on the Papamoa coast.

Today, Waitahanui is part of the land known as Papamoa Pt

2B urupa reserve comprising some 30 acres of sand dune

retained in communal Nga Potiki ownership.

47. Waitahanui is where the remains of Manaia and his war party

washed up following their deaths at sea at the hands of

Ngatoroirangi. Their remains in the form of sun bleached

finger nails gave the name of the battle ‘mai kukutea’. This

became an urupa for Ngā Potiki whanau and has a strong

connection to Motiti, the toka and the Hawaiiki traditions as

our tupuna made their final spiritual journey back to Hawaiiki.

48. During the Rena grounding, our rangatira, Colin Reeder went

down to the urupa anticipating that the same ocean currents

that caused the remains of Manaia to be washed up at

Waitahanui would also bring debris from the M.V. Rena. As

predicted a large shipping container beached at this exact

location. This confirmed the physical and spiritual

connections of Waitahanui with Te Moana Nui a Toi and the

wreck site. However, the dumping of the container and

rotting fish on the urupa was a desecration of this site and was

a very sad event.

49. Some photos of the container are below.

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KAITIAKI RESPONSIBILITIES

50. Nga Potiki has responsibilities of kaitiakitanga in relation to the

Papamoa coast and extending out to area affected by the

Rena wreck.

51. For Nga Potiki, we are very familiar with the impacts of

whakama, and have endured these impacts through the

desecration of our maunga by quarrying, the wastewater

treatment plant on the shores of the Rangataua, the outfall

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pipe that goes through the Waitahanui urupa and discharges

treated waste into Te Moana Nui a Toi, the telecom tower on

Kopukairoa maunga, the water tower above our marae

among many other desecrations of Nga Potiki taonga and

important sites and spiritual landscapes.

52. The impacts of these activities have been physical, emotional,

psychological and spiritual effects due to our connection to

these places. For us, we are connected to the whenua and

moana of this rohe, such that negative impacts on the

environment are felt by our people, and continue for our

future generations.

53. The Rena has posed the most significant threat to our rohe

and taonga. The grounding was a traumatic experience for

our whanau and represents an ongoing threat to our customs,

practices, tikanga, mana and identity. Our connection to our

rohe is steeped in the emotional, psychological and spiritual

bond with our rohe. It has deep sentimental value that is

directly connected to our well-being as a whanau, hapu and

iwi. Unlike western views of the environment, it is not measured

by physical impacts. For us, when we look out towards Otaiti,

we feel the impacts of the grounding and the fact that the

wreckage (paru) has simply been left in the moana.

54. Leaving the wreck not only leaves the physical remains of the

wreck on Otaiti and the seabed of Te Moana Nui a Toi, but it

has a stigma that is directly associated with the oil spill and

environmental pollution and represents an incident which is

offensive to our tikanga and kaitiaki responsibilities, and which

will be left for all future generations to endure.

55. I am aware that there may be some constraints on what the

Court can order. In accordance with our kaitiaki

responsibilities, we seek that the bow of the wreck be

removed from the moana.

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RESPONSES TO APPLICANT EVIDENCE

Iwi interests

56. At paragraph 4.15, Dr Kahotea comments on Nga Potiki

stating:

“4.15 Nga Potiki have no land interests on Motiti but they have

maintained coastline interests at Papamoa which gives them a

statutory interest in the wider moana as recorded in their deed of

settlement. This is a contemporary interests from the way the Crown

provides the recognition or interest areas in settlement legislation.

This does not amount to Nga Potiki having an ancestral relationship

with Otaiti. Nga Potiki did not have customary ownership of Otaiti or

the other reefs surrounding Motiti.”

57. Nga Potiki do not have land on Motiti and acknowledge the

Motiti hapu as the mana whenua there. Dr Kahotea dismisses

the statutory interests and instruments of Nga Potiki on the

basis that it is a contemporary instrument, and appears to

base his position on ‘customary ownership’ of Otaiti or the

other reefs. I am not sure what is meant by ‘customary

ownership’. This appears to confuse tikanga principles with

modern principles of ownership. As Nga Potiki, we continue

to occupy the lands and waters in accordance with our

customs and tikanga of whakapapa, mana, tapu,

whanaunga, and kaitiakitanga that we have inherited from

our tupuna. It is through these customs and tikanga that these

modern instruments are derived and recognise our interests,

firstly along the Papamoa coast, and extending out to the

waters of Otaiti and the affected part of Te Moana Nui a Toi.

Within this, we expressly recognise the mana whenua of Ngai

Te Hapu / Te Patuwai and Te Whanau a Tauwhao in respect

of Motiti. In relation to the moana and fishing grounds, there

are overlapping interests that we are in discussions with them

to resolve.

58. These modern instruments support the customary interests of

the different groups in this area. They have been the outcome

of years of work and efforts on the part of many different

rangatira, hapu and iwi. These instruments are important to

understanding the cultural landscape and the people, hapu

and iwi of the area. I am aware that statutory

15

acknowledgements incorporate interests which are less than

mana whenua, such as historical interests, but the rohe

moana map is more closely aligned to customary rights based

on ahi ka, mana whenua, mana moana and kaitiakitanga. It

is therefore disappointing that these instruments have been

dismissed.

59. I am also aware that Ngai Te Hapu / Te Patuwai have not yet

had the same opportunities throughout the Treaty settlement

process. As such, we of Nga Potiki are mindful of ensuring that

Ngai Te Hapu / Te Patuwai, their mana and rangatiratanga,

and their unique way of life based on Motiti island and the

surrounding moana is recognised and respected.

60. As I noted above, we have been in discussions with Ngai Te

Hapu / Te Patuwai, Te Whanau a Tauwhao, and other iwi and

hapu on these matters and even discussing areas of exclusive

and/or shared rights and responsibilities in the waters

extending out from the Papamoa coast and the overlap with

the waters surrounding Motiti Island. I am aware that Ngai Te

Rangi / Te Whanau a Tauwhao and other hapu are preparing

applications in order to work through the overlapping

interests. At the time of writing this evidence, we are early in

this process and there is not yet any outcome. Howver, an

important point in my view is that these discussions continue

the customs and tikanga that have been handed down to us

by our tupuna in accordance with our tikanga.

Withdrawal of some groups

61. The evidence for the applicant suggests that iwi and hapu

groups withdrew from the process because they were happy

with leaving the wreck on Otaiti. This is not the case.

62. Following the commissioners’ decision, a number of the iwi

and hapu groups had discussions to understand what the

decision meant and what the next steps should be, including

ourselves, Te Patuwai, Te Whanau a Tauwhao, Ngai Te Rangi,

Ngati Pukenga, Ngai Te Hapu, and Ngati Whakaue ki Maketu.

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63. The advice was that the commissioners found that they did

not have power to order the removal of the wreck. Since this

point, many groups were questioning the need to continue

through the process. We attended the mediation and further

meetings, which were draining further energy and resources.

The mana whenua issues that have been part of the process

have also been extremely stressful for our whanau and have

been draining a lot of energy for our whanau who were at the

forefront of the process. I am aware that some groups simply

withdrew without agreeing any measures that may help them

address the ongoing effects of leaving the Rena on Otaiti.

They withdrew based on principle that they do not agree with

the wreck remaining there.

64. We have remained in contact with many groups noting that

the appeals still allow the issues to be considered by the Court,

as well as measures to address the impacts of leaving the

wreck on all affected iwi and hapu.

RENA ENGAGEMENT

65. The grounding of the Rena wreck had significant effects on

many iwi and hapu of the region and the dumping of the

Rena on Otaiti will have major effects for all tangata whenua

of this area. Leaving the wreck on Otaiti represents a failure

to uphold our kaitiaki responsibilities to the moana and we are

very concerned about how this is going to impact on our

future generations. Going to the Papamoa coast and looking

out, we know that the moana has been polluted and

compromised by the dumping of the Rena wreck on Otaiti.

For our fishing people going out on the moana, the feeling is

the same. As kaitiaki, we have failed to protect the mauri and

tapu of Tangaroa and important taonga.

66. At the outset, all iwi and hapu of the region were unanimous

that removal of the wreck was right by our kaitiaki

responsibilities.

67. Unfortunately, in the lead up to the commissioners hearing,

some groups entered into agreements to support the Rena

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applicant in leaving the wreck in the moana, and to oppose

the positions of the Motiti hapu and other groups closely

aligned to and having kaitiaki responsibilities in respect of this

area. The applicant advanced a position that Ngati Makino

and the groups they represented had stronger interests than

Tauranga Moana iwi. This has created a lot of tension and

confrontation between the various iwi and hapu. There is no

secret about the historical conflicts in this area and that it is an

unstable area in relation to overlapping mana whenua and

mana moana interests, and Nga Potiki is very much in

amongst the different iwi and hapu interests in this area.

68. This is therefore something that has become a real and serious

issue.

69. We are hopeful that in coming together through this appeal

hearing, that we can remedy some of the tension and provide

a platform for going forward with a more positive framework.

70. The applicant has put forward conditions which continue to

elevate particular groups above others in circumstances

where this does not accord with tikanga or is unnecessary. If

these conditions are confirmed, I consider this will cause

ongoing and long term issues amongst the iwi and hapu that

I consider should be avoided. We have not seen any of the

agreements entered into, but it is also understood that

particular groups have agreed conditions or particular

monitoring rights at Otaiti. This may have some groups going

into the rohe of others which could cause further issues. There

has been mistrust built between some of the communities that

is unhealthy and will cause ongoing issues. In my view, there

is a need for the iwi to come together to discuss the

overlapping interests and develop a framework that properly

reflects the nature of relationships and effects from

abandoning the Rena wreck.

THOUGHTS FOR WAY FORWARD

71. Nga Potiki has sought full removal of the wreck in accordance

with our kaitiaki responsibilities. Given the findings of the

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commissioners, Nga Potiki seeks the removal of the bow

section of the wreck and maintains this position.

72. The applicant has put forward mitigation measures to address

the effects of leaving the wreck. In my view, the process to

date has not lent itself to finding a way forward that reflects

the relationships and effects on different iwi. Some groups

have simply withdrawn from the process despite the

acknowledgement by the commissioners that there are

significant adverse cultural effects from abandoning the

wreck on Otaiti. From my observation, this process has been

an extremely difficult and consuming process and I can

understand the decisions of groups to withdraw. We have felt

it important to maintain this appeal to allow the issues to be

fully considered by an independent panel.

73. I consider the best approach would be to provide a space for

the various iwi and hapu groups to come together and come

up with a framework for addressing the relationships to Otaiti

and the associated moana and agreeing what rights and

responsibilities arise from this. Other than to a limited extent in

the mediation, this has not occurred through this process.

74. The applicant has put forward conditions to fund projects and

programs to help address the cultural and spiritual effects.

However, these conditions have been based on an incorrect

assessment of iwi and hapu relationships and effects from

leaving the Rena wreck. If the Court orders that the wreck

cannot be removed, Nga Potiki considers conditions should

be put in place that recognises the relationships and impacts

on all the affected iwi and hapu.

Bentham Ohia

January 2017