Critically-endangered fairy tern at risk from illegal dam in Mangawhai

Monday, 9 December 2019

No one wants to claim ownership for the illegal dam, threatening a critically endangered native bird.

An Environment Court judge says he is 'surprised' no action has been taken to rectify an illegally-constructed dam, which is further threatening an already critically-endangered native bird.

The fairy tern/tara iti, the country's rarest native bird species, has fewer than 37 individuals remaining, limited to a handful of areas between Whangārei and Auckland.

The New Zealand Fairy Tern Charitable Trust said it was extremely concerned about the impact the dam would have on the fish population in Mangawhai stream, which the fairy tern relies on to survive.

The trust has applied for an enforcement order against Auckland Council.

The 37 remaining fairy terns are under even more threat - this time from an illegal dam constructed in a Mangawhai stream.

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Two government agencies and a leading conservation authority have not done anything about the dam, which has been threatening the last 37 fairy terns since 2014.

In a recent judgment, the Environment Court acknowledged the situation was now critical, but also said it was inappropriate to make enforcement orders against the council.

Judge Jeff Smith said he found it 'simply puzzling' Auckland Council was the only agency to have an enforcement order.

The dam in Te Arai stream is stopping fish from swimming upstream to breeding grounds.

The park is owned by Auckland Council; the banks of the stream by the Department of Conservation; and the stream bed by Land and Information New Zealand (LINZ).

The dam was constructed in Mangawhai's Te Arai Stream in 2014 by Te Arai North, the developers of the exclusive Tara Iti golf course associated with US billionaire Ric Kayne.

The Environment Court has labelled the situation critical.

No permission was sought for the dam's construction.

None of the parties want to take responsibility for the stream and therefore confusion surrounds who should remove it.

Judge Smith has now enforced a deadline by which all relevant parties must provide an update to the Environment Court.

'It is not our place to dictate to parties how they might proceed,' the decision states.

'Given the critical nature of the fairy tern population … we are surprised that none of these departments have taken action.

'There has been no formal monitoring undertaken by either the council, DOC, Healthy Waters Auckland and LINZ, all of whom clearly have an interest not only in the ecology of this area but in the success of the wetland planting above the weir,' the decision states.

The court was concerned the relevant Government departments and the council had not acted sooner to investigate or devise appropriate solutions.

To be compliant with the Auckland Unitary Plan, the weir cannot prevent the passage of fish, in this case particularly inanga.

However, the court concluded the dam did in fact prevent fish travelling upstream to their spawning grounds above the weir, leaving them unable to breed.

No fish means no food for the fairy tern to eat.

Auckland Council's Steve Pearce confirmed the court declined orders that required it to remove the structure, and was unable to make orders against any other organisation.

'The court agreed that Auckland Council's only involvement in the Te Arai weir has been to perform regulatory functions,' Pearce said.

'However, it did express concerns … and requested compliance issues be urgently addressed.'

The Environment Court recommends the council and the other bodies seek to resolve this issue as a matter of urgency.

'Given that two of these parties are Government departments, it is perhaps surprising that they have not done so to date.'

LINZ in particular had the power to take action urgently and the court noted the removal of such structures was permitted, provided the relevant standards were met.

'The matter has now become critical,' the decision stated.

Pearce said a developer had since filed a proposal, which set out how it planned to address the matter.

Auckland Council, Department of Conservation and Land Information New Zealand (LINZ) addressed the court by order of the judge on November 29.

A pre-hearing conference is set for December 11.