A High Court appeal against the Mt Messenger bypass project in Taranaki has been told that a hapū group at the heart of the case does not exist.
Tony Pascoe says the Mt Messenger bypass project will be damaging to wildlife and ruin wetlands. Photo: RNZ / Robin Martin
Farmers Tony and Debbie Pascoe and the Poutama Charitable Trust are appealing interim consents granted in the Environment Court for the $200 million project on State Highway 3, Taranaki's main route north.
They argue their rights have not been properly recognised and the bypass will create an environmental disaster in the Mangapēpeke Valley, where the Pascoes farm beef cattle.
The Transport Agency says the route is the least ecologically destructive and will deliver road safety and resilience improvements.
Today the court heard arguments over the admissibility of fresh evidence regarding the existence of Poutama.
The appellants' lawyer, Sue Grey, argued the Environment Court went beyond its scope under the Resource Management Act when it ruled Poutama was not tangata whenua and did not hold mana whenua over the project area.
"It has undermined Poutama's status as a people to be consulted in Resource Management decisions," she said.
Grey said Poutama had not been aware that its very existence would be challenged in the Environment Court and would have prepared appropriately if it had known.
"Native property rights are not to be extinguished by a side wind," she said.
Grey wanted to admit in evidence affidavits from Poutama descendants - drawn from names on an 1884 Native Land Court document - which asserted Poutama did exist as an iwi/hapū group.
Counsel for the Transport Agency, Ngāti Tama, the New Plymouth District Council and the Taranaki Regional Council were opposed to the affidavits being admitted, arguing new evidence was not admissible at the High Court appeal stage.
Paul Beverley, for the agency, said there was a concern recognised in the Environment Court that the Poutama Charitable Trust was involved in an organised campaign to have Poutama status as a hapū/iwi affirmed to enable it to demonstrate it had been recognised by he Crown.
Ngāti Tama counsel Paul Majurey said the Environment Court had the evidence in front of it regarding Poutama's status and its findings did not represent "an error of law [which could be challenged in the High Court] but the fulfilment of its task".
He said the application to have the affidavits admitted was "an attempt to repair its [the trust's] Environment Court case".
Justice Christine Grice said the affidavits would not be admitted as evidence and she would explain her grounds at the case's conclusion.
Beverley went onto considered evidence heard in the Environment Court about Poutama's existence.
He referred to the evidence of Ngāti Tama leader Greg White who said while there were sometimes debates with Ngāti Maniapoto and Ngāti Mutunga over where the northern and southern boundaries off Ngāti Tama's rohe lie there was no dispute that Parininihi, which included all the area affected by the project, lie at the heart of Ngāti Tama country.
White's evidence referred to a report prepared for the iwi by the historian Paul Thomas which found there was no historical record of iwi or hapū called Ngā Hapū o Poutama in the area.
"There's reference to Poutama because Poutama is an ancestral name of Ngāti Tama. There's a reference to Poutama as a place because Poutama is a place as well," Beverley said.
Poutama's claim to be a separate group was not supported by any of the eight Taranaki or Maniapoto in the north, he said.
Beverley said there was a depth of feeling about the competing claims.
"And just if I may point to paragraph 129. What Mr White says there is 'in fact the assertions by Poutama of mana whenua are offensive and derogatory towards Ngāti Tama'."
Beverley acknowledged some people of Māori descent in the area chose to be represented by the Poutama Charitable Trust, but said that they actually had whakapapa connections to Ngāti Tama or Maniapoto.
Tony and Debbie Pascoe. Photo: RNZ / Robin Martin
Debbie Pascoe's claim to kaitiakitanga over the Mangapēpeke Valley was also contentious with White's evidence saying any such claim could only be achieved by whakapapa connection to Ngāti Tama.
He said Debbie Pascoe had whakapapa connections to Ngāti Rahiri, a hapū group south of the project area.
Beverley said the Environment Court had considered the evidence in making its findings and no error of law had been made.
He said the Pascoes' connection to the property and stewardship of the land had been acknowledged in the Environment Court but that was not the same as mana whenua and kaitiakitanga.
Beverley said any issue they had with any compensation offer made to them should the project go ahead could be appealed under the auspices of the Public Works Act.
Ngāti Tama have approved a Transport Agency deal swapping 20 hectares of its land needed for the bypass for a 120-hectare parcel that will give it better access to a block of Treaty settlement land.
The deal also includes a $7.7 million mitigation and compensation payment, and an ongoing pest management scheme.
The Pascoes have been offered two compensation packages: a $176,000 deal that would see them return to their home and what's left of their land after the road goes through, or a $660,000 deal including an 11-hectare parcel of land on Mt Messenger and an unspecified contribution to a new home.
The appeal is due to conclude tomorrow.