Another battle in the war for Auckland’s SOUL: Ihumātao development challenged in the Environment Court
By Lauren White
NB: this article was written before the outcome of the court case was known, but we consider that it is important to continue drawing attention to this issue.
The development of Special Housing Area 62 (SHA62), also known as Ihumātao, has become the centre of a battle in the Environment Court. However, this court case is only the most recent of a series of battles that local mana whenua and others have been fighting since 2012 to stop the construction of 480 homes by Fletcher Building Limited (Fletcher) on Ihumātao. These battles have taken many forms of the years: protests, land occupation, lobbying state and international actors and legal action. But will this latest legal action be able to finally save Ihumātao from becoming part of Auckland’s urban sprawl?
The importance of Ihumātao
When talking about Ihumātao, people are referring to the property at 545-561 Oruarangi Road in Māngere, Auckland.  It is part of the greater Ihumātao Peninsula, 33 hectares of land that lies between Otuataua Stonefields Historic Reserve (OSHR) and the Manukau Harbour, with the local Makaurau marae and papakainga located nearby.  However, this land is more than just its location.Ihumātao is an important part of Auckland’s and New Zealand’s history. It was one of the first places that Polynesian settlors arrived at around 800-1000 years ago, and its papakainga [ancestral home] has been continuously occupied since their arrival.  This is impressive, as it is one of the only longstanding settlements. This longstanding connection with the land informs the identities of local mana whenua, whose ancestral links to the area make the land even more important to them. The Pukeiti and Otuatau scoria cone volcanoes are both partially situated on this section of land, part of Auckland’s unique field of volcanic activity.  Pukeiti is especially unique. It is one of the smallest scoria cones in the area, and nearby to Pukeiti is one of the entrances to the many lava caves below the volcanoes.  However, what is most unique about these volcanoes is how they were incorporated into the lives of Māori who occupied the land. Māori used the rich volcanic soil to grow kumera and garden on the land, the scoria rocks and gravel were used for construction and extensively in gardens, and the lava caves were used as both burial grounds and to hide from war parties.  Most importantly, Pukeiti is a waahi tapu and sacred place for Māori.  These are just some of the ways that Māori have made the land at Ihumātao part of their cultural practices. The mana whenua and the whenua are inextricably linked.
Moreover, the site is archaeologically important, with many sites that illustrate these cultural practices mentioned above.
The stonefields that the area is known for are the remnants of the Māori villages, and there are other traces of settlments throughout the area.  There are likely more archaeological discoveries to be made, some of which may surface as the land is developed. Right next to Ihumātao is OSHR. This piece of land has been protected by Heritage New Zealand because of its importance to the heritage of Auckland, for the same characteristics that also make Ihumātao unique.  OSHR shares all the cultural, historical, archaeological and geographical characteristics of Ihumātao – they are part of the same landscape.  But the former is protected by the Council, while the latter is marked to be developed. What differentiates the land zoned in SHA62 and Otuataua Reserve? It comes down to the decision of a British surveyor. 11,000 ha of land was confiscated from local iwi for supporting the Kingitanga movement, leaving the mana whenua only owning 0.671 ha.  Subsequently, both blocks of land were owned privately. The only difference is the OSHR land was sold to the Manukau City Council by its private owners, while Ihumātao was not.  There are no meaningful differences between the two areas of land that justify the preservation of one and destructive development of the other. So why is Ihumātao being developed?
The arguments for and against development
There are two opposing positions on the future of Ihumātao: a pro-development stance that believes Ihumātao should be developed to ease the housing crisis, and the pro-preservation stance that seeks to make Ihumātao a historic reserve like the OSHR. The ‘Save Our Unique Landscape’ campaign (SOUL) have been at the forefront of opposition to development. They believe Ihumātao should be preserved for many reasons. One is because of the social implications. SOUL believe that the development would adversely impact the mana whenua who live in the papakainga, because the jump in population will not only have practical effects – such increasing traffic, pollution, and rents – but will also take away the sense of belonging and identity that having a small community brings.  It will reduce mana whenua to a minority in a large neighbourhood. Another argument SOUL raises is that Ihumātao should be preserved because it has many geographic and archaeological features are that are unique to the area.  Already early development has meant pā and gardening sites have been destroyed, and quarrying led to irreparable damage to the Otuataua and Maungataketake mountains.  Developing further would essentially destroy this precious and unique landscape should be destroyed in the name of progress, and could also damage the OSHR.  Once it is gone, it cannot be brought back.
Arguably the most important reason to preserve Ihumātao is to honour the cultural, historical and spiritual significance of this land to Māori. 
The main actors in SOUL are the mana whenua of Ihumātao, and they have made it clear it is important to them to preserve their culture and heritage.  For Māori, particularly Ihumātao’s mana whenua, their cultural and spiritual practices and identities are intertwined with the land and its features. In the view of those pro-development, i.e. Fletchers, housing intensification and developments are essential for Auckland, with its growing population and increasing house prices. Housing affordability has been a major policy issue over the last few years. The Housing Accords and Special Housing Areas Act 2013 is a manifestation of this concern – its sole purpose is to “enhance housing affordability by facilitating an increase in land and housing supply.”  The fast-tracking of land development through the Act means the Act discriminates against Māori – it leaves little to no room for proper consultation with tangata whenua. Housing affordability’s status as a policy issue makes it a priority for state actors over Māori concerns. Equally, the fact that Ihumātao is private property weighs in favour of development. It is an entrenched Western ideal that an owner has complete control over their private property.  The owner decides what to do with their land, and they have authority even if outside groups think they should act differently. It does not seem to matter that the land was acquired in an unethical way. The Western conception of land is less concerned with cultural, spiritual and ancestral connections to the land, whereas Māori traditionally value the opposite.  In a mindset that is dominated by housing concerns and Western perceptions of land, the cultural, geographical, archaeological and historical significance of Ihumātao is significantly less important than it is for Māori. 
Actions taken around Ihumātao
Prior to 2012, the Manakau City Council were setting up Ihumātao to become a ‘public open space’ as part of their Māngere Gateway project, to preserve the heritage of the area. However, this was overruled in Gavin H Wallace Ltd v Auckland Council, and Ihumātao became a ‘future development zone.’  Auckland Council made Ihumātao Special Housing Area 62 in 2014, and subsequently granted Fletchers consent to develop the land as the new owners in May 2016. Fletchers then needed approval from Heritage New Zealand to modify the archaeological sites at Ihumātao. Their application was denied twice before it was finally approved.  The reluctance on Heritage New Zealand’s part to allow the development was obvious. Fletchers allegedly made threats to sue, which may have swayed the decision.  With all these consents granted, it seems that Ihumātao’s fate is sealed.However, these actions have not been without opposition. SOUL has been actively engaging in non-violent protests against SHA62, refusing to surrender. These have taken the form of an occupation of the OSHR, bringing petitions to the Government, staging a hikoi down Karangahape Road and, most notably lobbying the UN. The UN Declaration on the Rights of Indigenous Peoples emphasises several times, such as in arts 18 and 19, that indigenous groups should be included and consulted when a state makes decisions that affect their rights.  Although the Declaration has no legal authority domestically, New Zealand has supported this declaration and its principles.  SOUL has lobbied the UN thrice and were able to get support from the Committee on the Elimination of Racial Discrimination (CERD). CERD found that the allocation of SHA62 did not seem to include adequate or formal consultation with Māori and called for the Government to revise this decision.  The UN’s position is clear: consent for the development of Ihumātao is incomplete without the inclusion of mana whenua and their voices, because of their ancestral right to the land and their interest in preserving their heritage. However, SOUL is dependent on the Government taking the UN’s advice for this declaration to have any impact on the fate of Ihumātao. Fletchers argue that they have sufficiently consulted with Māori. They claim that by consulting with Te Kawerau Iwi Tribal Authority, they have consulted the only iwi with authority to give their opinions on the development.  There is a question if this consultation is truly free consent – allegedly iwi authorities began to co-operate because they felt that to accept and co-operate with the development was the only way to get any say at all. 
The current case in the Environment Court
In their latest play for Ihumātao’s future, SOUL have taken their battle to the Environment Court. The 23rd of July 2018 marked the beginning of a three-day long hearing where Pania Newton, SOUL and others appealed against Heritage New Zealand and their decision to grant Fletcher Buildings consent to develop Ihumātao. SOUL’s tactic was surprising – they set out to use the Wallace decision that began this whole process against Fletchers and Heritage New Zealand.  The Environment Court did order that the Auckland Council District Plan had to be amended to include a “further structure planning process” that would identify more significant characteristics of the land – including archaeological, cultural and historic features. However, this process never eventuated.  The absence of this structure plan could undermine the Heritage New Zealand decision, if the process is defined as an ‘appropriate institutional support [or] resource,’ because the approval of an application is dependent on Fletchers having access to such documents.  SOUL believe that this theoretical structure plan would give Ihumātao a fighting chance against the overwhelming pressure to develop – when development of Crater Hill was proposed, the comprehensive structure plan gave the Environment Court reason to stop the work. As of the date of writing, the decision of the Environment Court has not yet been released, and there is no indication of which direction the Court is leaning. The fate of Ihumātao is uncertain. There is always a chance for appeal, but it is likely if SOUL lose this case, Ihumātao will be in a precarious position. SOUL have put up a great fight to protect the heritage of the Ihumātao Peninsula, but the state, whether in the Courts or in Government, should stand beside and work with tangata whenua, in the spirit of Te Tiriti O Waitangi.
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Featured image source: https://givealittle.co.nz/cause/protectihumatao.
 Leigh A. McGregor, “Oruarangi Special Housing Area and Qualified Development decisions” (18 May 2016) Auckland Council, at 1.
 At 5-8.
 Ilmars Gravis, Károly Németh and Jonathan N. Procter "The Role of Cultural and Indigenous Values in Geosite Evaluations on a Quaternary Monogenetic Volcanic Landscape at Ihumātao, Auckland Volcanic Field, New Zealand" (2017) 9 Geoheritage 373 at 383-384.
 Gravis, above n 3, at 385.
 At 387.
 At 382.
 At 383-384.
 SOUL, “The significance of Ihumaatao” (9 September 2018) Protect Ihumaatao <www.protectIhumātao.com>.
 Gravis, above n 3, at 383-384.
 McGregor, above n 1, at 31.
 At 8-9.
 At 383.
 SOUL, above n 8.
 McGregor, above n 1, at 8-10.
 SOUL, “A struggle without end” (9 September 2018) Protect Ihumaatao <www.protectIhumātao.com>.
 SOUL, above n 8.
 McGregor, above n 3, at 377.
 “Struggle”, above n 15.
 SOUL, above n 8.
 SOUL, “Save our unique landscape” (9 September 2018) Protect Ihumaatao <www.protectIhumātao.com>.
 As above n 3 at 385.
 Housing Accords and Special Housing Areas Act 2013, s 4.
 Gravis, above n 3, at 389.
 At 389.
 At 387.
 Heritage New Zealand Pouhere Taonga Act 2014, s 45(1).
 Teuila Futai “New life in fight for historic Auckland land” (27 January 2018) Newsroom <www.newsroom.co.nz>.
 Futai, above n 29.
 Leonie Hayden “Bringing the fight for Ihumātao to K Road” (7 December 2017) the Spinoff <www.thespinoff.co.nz>.
 United Nations Declaration on the Rights of Indigenous Peoples, arts 18-19.
 (20 April 2010) 662 NZPD 10229.
 Committee on the Elimination of Racial Discrimination “Concluding observations on the combined twenty-first and twenty-second periodic reports of New Zealand” (22 September 2017) United Nations <www.un.org> at 18-19.
 “Te Karere” (16 February 2018) Television New Zealand <tvnz.co.nz> at 8:37.
 Futai, above n 29.
 Janice King and Environment Court of New Zealand “Notice of Hearing” (13 February 2018) Environment Court of New Zealand <www.environmentcourt.govt.nz>.
 Teuila Fuatai “Last chance to save historic stonefields zone” (23 July 2018) Newsroom <www.newsroom.co.nz>.
 Gavin H Wallace Ltd v Auckland Council, above n 26.
 “Last chance”, above n 38.
 Heritage New Zealand Pouhere Taonga Act, s 45(2)(a).
 “Last chance”, above n 38.