Noah Wineti and PJ Wana consider the recognition of whakapapa-derived decision-making in state legal processes.

Koia tēnei; ko te toroa noho au,

E tangi ana ki tōna kāinga, e mihi ana

This is a fact; I live like the albatross, crying out to its nesting place, and greeting you (in sorrow)

Hei tīmatanga – Introduction

Like the albatross crying out for its home, this proverb of Hāmiora Tumutara Pio captures the enduring sorrow and displacement caused by the confiscation of Ngāti Awa land. The raupatu of the 1860s began a new chapter for Ngāti Awa: one of rebuilding, reclamation, and resilience. Yet the grievances created by the Crown remain alive, and the consequences continue to unfold before Ngāti Awa today. There is, perhaps, nowhere that this is more painfully apparent than in the litigation regarding Ōpihi Whanaungakore, one of Aotearoa’s most ancient resting places. It is here that, just recently, plans to construct a retirement home have been approved.^[1] We intend to use this case to illustrate how state legal processes can be deficient when considering whakapapa-derived decision-making, which is inherent to te ao Māori. As uri of Ngāi Taiwhakaea, the two of us share whakapapa connections to Ōpihi and the tīpuna who rest there. It is this connection that shapes our understanding of the dispute as one of responsibility to the whenua.

Kōrerorero – Discussion

Ōpihi Whanaungakore

Ōpihi Whanaungakore is an urupā located within the sand dunes of the Whakatāne Harbour. Together with the adjoining urupā of Ohuirehe and Utaora, it forms one of the oldest burial grounds in Aotearoa. Ōpihi is the home of many prominent tīpuna of Ngāti Awa, including the founders of Whakatāne and leaders of the Mataatua waka. Every hapū of Ngāti Awa has whakapapa to Ōpihi.

Among the hapū of Ngāti Awa, Ngāi Taiwhakaea II (Taiwhakaea) holds the position of mana whenua of Ōpihi.^[2] Prominent leaders of Taiwhakaea, including our eponymous rangatira, are buried at Ōpihi. As such, Ōpihi is one of the few surviving places where our whakapapa, identity and relationship with our whenua has survived. As expressed by leaders of Taiwhakaea, this whakapapa engenders the responsibility of kaitiakitanga in a way that distinguishes our relationship from other hapū within Ngāti Awa.

This distinction is what frames our analysis. Ōpihi is of great significance to all of Ngāti Awa. However, the processes surrounding its development did not appear to give adequate weight to the particular whakapapa relationship maintained by mana whenua. The Heritage New Zealand process and Te Rūnanga o Ngāti Awa’s (TRONA) later vote to withdraw from litigation are considered as two moments where those responsibilities were not given sufficient force. In that sense, the dispute demonstrates how authority grounded in whakapapa can be undermined by statutory procedure and settlement policy.

Authority in Te Ao Māori

We do not find it necessary to define the nature of authority in te ao Māori. For present purposes, it is enough to recognise that authority over whenua, traditionally, is derived in part through whakapapa.^[3] Whakapapa is the network of relationships that connects people to their tīpuna, whānau and whenua. It places people within a wider order of relationships and helps explain the obligations that arise from those connections.^[4] In relation to whenua, whakapapa can identify who belongs to a place, who carries responsibilities for the whenua, and who has the authority to make decisions in relation to it. These relationships are maintained across generations and continue to inform the exercise of mana and kaitiakitanga in the present. For Ōpihi, this provides the background for understanding why Taiwhakaea’s relationship to the whenua carries particular significance within the wider whakapapa of Ngāti Awa.

Heritage New Zealand

The process adopted by Heritage New Zealand (HNZ) is the first example of this failure to recognise whakapapa-derived decision-making properly. The developer, MMS GP Ltd (MMS), applied for an archaeological authority from HNZ to construct the retirement home.^[5] HNZ considered the expert opinion of the Māori Heritage Council and tāngata whenua as unnecessary in its determination.^[6] Instead, HNZ relied on previous surveys and descriptions to determine the boundaries of the urupū. As a result, HNZ concluded that the proposed development could proceed, and granted MMS approval to develop a retirement village on the Ōpihi block.^[7]

The difficulty with this approach is that the boundaries of Ōpihi were themselves contested. The boundary adopted through the State process was criticised as an “arbitrary colonial line”, raising doubt as to whether survey lines and earlier descriptions can adequately determine the extent of the urupā.^[8] The absence of visible kōiwi was also relied upon in assessing the development area, despite the possibility that remains could lie beneath the surface. Taiwhakaea possess the mātauranga necessary to determine the extent to which the whenua is wāhi tapu, yet that knowledge was not treated as necessary in HNZ’s determination. The process therefore privileged a surveyed understanding of the site over the knowledge held by mana whenua.

This is significant because determining the extent of a wāhi tapu cannot be reduced to a technical exercise of drawing boundaries on a map. It also requires consideration of whakapapa, mātauranga and responsibilities that connect mana whenua with the whenua itself. This demonstrates the risk of defining and measuring whenua through frameworks that do not reflect Māori understandings, brought about by treating whakapapa relationships between people and whenua as secondary to existing surveys and archaeological records.

Collective governance or hapū authority

Te Rūnanga o Ngāti Awa initially opposed any development on Ōpihi, appealing the decision in 2021 and 2022.^[9] Both appeals were unsuccessful, and TRONA sought to appeal to the Archaeological Authority.^[10] During adjournment, MMS and TRONA reached an agreement. Under that agreement, MMS may use half of the land identified in the original plans for residential development, while a 300-metre buffer zone will separate the urupā from the retirement village.^[11] The decision-making process imposed on TRONA raises concerns over authority derived in whakapapa. TRONA’s agreement with MMS was determined by a democratic vote among the 23 constituent hapū. Each hapū holds one vote of equal value, and the majority voted to approve the newly agreed boundaries.^[12] As a result, Taiwhakaea, who are mana whenua, staunchly opposed any development and have had their interest subordinated.

The structure and authority of TRONA is derived from the Crown’s settlement policy called “Large Natural Groupings” (LNG).^[13] LNG requires hapū to unify as a collective before engaging in Treaty Settlement negotiations with the Crown. This requirement led to the establishment of TRONA to receive and administer collective redress on behalf of the hapū of Ngāti Awa. Directing the settlement wealth into TRONA (instead of hapū) somewhat reduced the ability of individual hapū to act independently. Ōpihi exposes the consequences of that shift of power. Taiwhakaea continued to carry mana whenua obligations in relation to the urupā, yet TRONA controlled the resources required for litigation. The settlement structure ultimately placed Taiwhakaea in a position where TRONA could subject Taiwhakaea’s authority over Ōpihi to an iwi-wide vote. Taiwhakaea’s dependence on TRONA was therefore not a voluntary surrender of mana whenua, but a consequence of the Crown’s settlement policy.

Ngāi Taiwhakaea’s singular vote further illustrates the Crown’s failure to uphold hapū authority.

Taiwhakaea is originally six hapū that were consolidated together under the name Ngāi Taiwhakaea II to push settlement across the line. Thus, Taiwhakaea are today represented within TRONA as a single unit with one vote. This suggests the power of such democratic mandate was not fully appreciated by hapū at the time of settlement.

Collective representation does not necessarily amount to equal authority in relation to particular whenua. Although all hapū of Ngāti Awa maintain connections to Ōpihi, those relationships are not identical. The Waitangi Tribunal has observed that, while Māori custom may require collective action, it fundamentally favours hapū autonomy.^[14] In this context, an equal voting structure may not fully account for the particular responsibilities held by mana whenua. That leaves a gap between representative mandate and the authority that arises from whakapapa.

Together with the HNZ process, TRONA’s decision-making demonstrates how whakapapa-derived authority can be constrained through different state structures. HNZ raises the question of whose knowledge is recognised, while TRONA raises the question of whose authority is given effect.

State law vs whakapapa decision making

The decision-making process needs to be understood against the backdrop of historical exclusion. For Taiwhakaea, the concern is not just that Ōpihi Whanaungakore has been treated as land capable of development, but that decisions affecting their rohe have long been made without giving sufficient force to their mana whenua relationship. The present dispute therefore sits within a longer history of raupatu and the resulting difficulty of maintaining active presence on the whenua that nevertheless continues to carry whakapapa-based obligations. In this context, the aforementioned limited recognition within the HNZ process created procedural unfairness and had the effect of placing the hapū on the back foot in trying to uphold its responsibilities as kaitiaki.

This demonstrates a broader issue in the way that state law deals with whenua. In the courts and the heritage process, Ōpihi is merely approached through categories such as resource consent, property rights, and submissions. These categories matter because they decide who takes part, which evidence counts, and ultimately what outcomes are available. However, it also narrows down the issue. Once Ōpihi is placed inside those categories, it becomes a question of whether consent was valid, whether the correct procedure was followed, and whether mitigation such as buffer zones or the reduced development area are enough. Here, whakapapa asks a different set of questions. These questions don’t begin by treating whenua as land to be managed, developed, or balanced against other interests. Rather, it begins with relationships. Ōpihi is connected to tīpuna, hapū, iwi, and mokopuna. It is not only whether activity on the land can be authorised, but what obligations are pre-existing. What is owed to those buried there? What do present generations owe to those who will come after them? Who has the authority and responsibility to speak for the place? Can an urupā really be confined to a surveyed boundary?

Here, state law can have the appearance of recognising Māori interests. But anything that doesn't start with whakapapa ultimately fails to effectively capture it. Processes such as hearings may receive culturally grounded evidence, an authority may consider the effects on Māori, and certain conditions may be imposed to manage the risks. But the process still proceeds on the assumption that development is possible. This effectively sidelines Māori relationships to whenua as mere matters to be raised, considered, reconsidered, weighed against, and possibly mitigated. Instead, an approach based on whakapapa has the opportunity to reverse that order. It would begin with the whenua, and the obligations held by those connected to it. Only then would it ask what, if anything, could properly take place.

This ongoing issue thus shows the difference between procedural recognition and substantive recognition. Through procedural recognition, Māori concerns enter the legal process through submissions and consultations. Substantive recognition would mean that these concerns shape the decision from the beginning. Rather than the issue being whether cultural harm can be managed after development on whenua is proposed, it would be whether the whakapapa of said whenua creates obligations that limits what development can be imagined in the first place. Mitigation is not the same as recognition, even if a reduced development area or buffer may reduce the risk of physical disturbance. Measures such as these might also appear to be a valid compromise within state law, but they do not necessarily resolve the concern being raised. For Taiwhakaea, this issue is whether the wider whenua has been treated with the respect owed to a place that carries its tīpuna, and therefore ongoing kaitiakitanga obligations. Moving the development further away or adding certain conditions does not settle this concern.

The role of TRONA shows the same problem but from a different angle. As previously explained, TRONA is the post-settlement governance entity through which Ngati Awa’s authority is centralised. That makes TRONA visible to the Crown and to the courts. It can therefore negotiate, enter agreements and appear in proceedings, but also withdraw from them.

This is where state law and whakapapa authority fundamentally diverge. An iwi-wide body may have the representative mandate of its members, but the mana whenua carry the direct obligations.

Accordingly, the difficult question is whether that process gave enough weight to the hapū and kaitiaki whose relationship with Ōpihi was most directly engaged. Those with the closest whakapapa responsibilities may experience themselves as sidelined whilst the whakapapa dispute remains unresolved, even as a compromise may resolve the matter for state law. Whakapapa-based obligations don't end when the court makes a final decision or closes a proceeding.

This is not an argument against collective iwi governance, and nor should the dispute be reduced to a simple quarrel between Taiwhakaea and TRONA. The point here is that state law often looks for one authorised Māori voice because it is easier to fit into legal procedure. It wants to know who has the mandate to settle an issue. Conversely, whakapapa may involve iwi-wide connections down to hapū-specific mana whenua responsibilities. But a process that treats those relationships as equal voting interests puts at risk the authority that it claims to represent.

Final thoughts

The ongoing dispute surrounding Ōpihi Whanaungakore ultimately raises a question of authority: who is entitled to make decisions about whenua, and on what basis that authority is recognised.  The process undertaken by HNZ and TRONA’s later decision to withdraw from litigation each demonstrated how whakapapa-derived authority is constrained. In one, the knowledge of mana whenua was given limited force within a statutory process. In the other, particular responsibilities to Ōpihi were filtered through a collective governance structure. Across both, the central issue is how legal processes recognise the relationships from which authority, as understood in te ao Māori, arises. These relationships endure beyond court proceedings. A more meaningful engagement with whakapapa requires decision-making processes that are capable of recognising these enduring relationships when determining who should decide and what responsibilities must be upheld.

Ngā kupu āpiti - Notes

[1] Diane McCarthy “Ōpihi Whanaungakore trustees challenge wāhi tapu development in court” Rotorua Daily Post (online ed, Rotorua, 16 March 2026).

[2] McCarthy, above n 1.

[3] Nēpia Mahuika, “A Brief History of Whakapapa: Māori Approaches to Genealogy” (2019) 3(2) Genealogy 32.

[4] Diane McCarthy and Local Democracy Reporter, “Appeal over one of the oldest burial sites in NZ returns to court” 1News (online ed, New Zealand, 28 January 2026).

[5] McCarthy and Local Democracy Reporter, above n 4.

[6] Diane McCarthy, “Ōpihi decision ‘shadow of colonialism’ – trustees” The Beacon (online ed, Whakatāne, 29 April 2026).

[7] “Ōpihi burial ground appeal – developer and Māori groups to meet out of court” RNZ (online ed, New Zealand, 7 December 2022).

[8] Above n 7.

[9] Te Rūnanga o Ngāti Awa v Whakatāne District Council [2022] NZHC 1587 at [72] per Harland J.

[10] Above n 7.

[11] Above n 7.

[12] Above n 7.

[13] The Office of Treaty Settlements and Takutai Moana: Te Tari Whakatau Healing the Past, Building a Future (Office of Treaty Settlements Healing the Past, Building a Future, August 2025) at 27.

[14] Waitangi Tribunal Pakakohi and Tangahoe Settlement Claim Report (Wai 758, 2000) at 65.

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