Indigenous Law Bulletin
High Court of New Zealand
 AP191/02 (Unreported judgment)
Ronald Young J
4 April 2003
by Catherine Iorns
The Kapiti Coast District Council and the National Roads Board were granted a designation for an arterial link road in an increasingly popular seaside residential area. The Environment Court confirmed the designation. This case was an appeal from that decision.
The Takamore Trustees (‘Trustees’) represent local iwi (Maori traditional owners) who do not want the road built through an area identified as waahi tapu (sacred site). This area comprises approximately 360 x 150 metres of the 15 km road corridor. They say the area contains taonga (treasures) and includes a burial area containing koiwi (human bones). The proposed road avoids one burial area that is explicitly declared as a Maori Reservation but the Trustees argue that there are other burial sites in the area in the path of the proposed road. Such areas have been recognised as waahi tapu both in the local District Plan and registered under the Historic Places Act 1993 (NZ) (it is one of only four waahi tapu sites so registered throughout New Zealand).
The Environment Court accepted that the swamps probably contained taonga (houses, meeting houses and canoes) but that these could be removed to another location for protection and would allow passage of the road. The Court did find that human remains were probably interred in the sand dune area, which was largely but not completely avoided by the road. However, the Court found that the evidence offered by the Trustees did not prove that the swampland areas of the waahi tapu contained human remains.  Moreover, if there were any, they were of a different iwi that predated that of the appellants.
In relation to the swampland burials, the Court described the oral evidence offered by Maori elders as ‘cryptic’ and ‘assertive’, ‘sparse’ and ‘general’, rather than being ‘geographically precise’. The Court stated that there was no ‘backup history’ or ‘tradition’ to support the evidence.
The Trustees argued on appeal to the High Court that, inter alia, the Environment Court erred in its treatment of the oral evidence. Furthermore, it did not provide any proper reasons to reject the swampland burial evidence, especially since it had accepted oral evidence of the same nature in relation to other matters.
The High Court upheld the Trustees’ arguments:
It is clear from the evidence quoted that the koumatua [elders] identified koiwi in the wetlands of Takamore area . . . The evidence was the swamp lands ‘have long been the resting place for our ancestors’. It is difficult to see, given we are concerned with an oral history which pre-dates European presence, more specificity is reasonably possible. The area within which the koiwi are said to be buried is geographically well defined. The evidence was cryptic, but this is hardly a reason for rejecting it. Each of the three witnesses gives relevant evidence. Mr Parai gives a rationale for swamp burials (preservation and safety from marauding tribes). There is no evidence identified which the Court accepts to contradict this.
The Court complains about a lack of ‘backup history’ or ‘tradition’. Again, it is difficult to understand what this means. Those in the iwi entrusted with the oral history of the area have given their evidence. Unless they were exposed as incredible or unreliable witnesses, or there was other credible and reliable evidence which contradicted what they had to say, accepted by the Court, how could the Court reject their evidence. The Court complained it was bereft of ‘evidence’ and had ‘assertion’ only of the presence of koiwi. The evidence was given by koumatua based on the oral history of the tribe. What more could be done from their perspective. The fact no European was present with pen and paper to record such burials could hardly be grounds for rejecting the evidence. Nor could the kind of geographical precision apparently sought by the Court be reasonably expected. The claim of burials is within a defined area. To require a precise location of burial in such circumstances before satisfaction with the evidence is to potentially reduce many claims of waahi tapu areas to unproven.
. . . It seems illogical of the [Environment Court] to accept the evidence that taonga were buried in the wetlands and koiwi buried in the sand dunes but rejected the evidence that there were koiwi buried in the swamp when there was no further evidence nor additional geographical precision to justify acceptance.
The bold statement by the [Environment Court that:]
‘We have evidential difficulty insofar as koiwi (human remains) are concerned within the swamp area, because none of the evidence we heard (with the exception of some hearsay evidence concerning the activities of a seer) directly related to swamp burial, even in the times of Muaupoko [other iwi] occupation in the general area’
is simply not true. Mr Te Taku Parai gave evidence in relation to the particular area in the carriageway that the swamp lands had long been the resting home for his ancestors. This the Court described as an assertion rather than evidence. Here, as I have observed, suitably chosen koumatua have given their evidence as part of their oral tradition. If oral history is to be reduced to assertion rather than evidence, then much of the evidence by Maori . . . will be rejected as assertion and not evidence. This is not at all the proper approach to oral history such as this.
Justice Young considered that the rejection of the oral evidence was ‘fundamental to the Takamore Trustees’ case’, and compounded two other errors made which were additional grounds of appeal. He concluded that ‘these errors were material, indeed they were vital’ and ‘[t]hese failures go to the essence of the decision by the Environment Court’. The High Court thus quashed the decision of the Environment Court and sent it back for reconsideration.
Catherine Iorns is a Senior Lecturer at the School of Law at the Victoria University of Wellington.
 Takamore Trustees v Kapiti Coast District Council  HCNZ AP191/02 (Unreported, Young J, 4 April 2003) para 88.
 Ibid, para 77.
 Ibid, para 67.
 Ibid, para 68.
 Ibid, para 77.
 Ibid, para 78.
 Ibid, para 115.
 Ibid, para 117.
 Ibid, para 115.