Waiheke marina campaigners at little blue penguin site challenge the Supreme Court: 'You made a mistake'

Friday, 30 April 2021

Save Kennedy Point and Whānau of Piritahi Marae are campaigning to stop the construction of a marina at Kennedy Point on Waiheke Island.

Campaigners against a marina on Waiheke Island say there’s a “glaringly obvious” mistake in the Supreme Court’s dismissal of their appeal.

Save Kennedy Point (SKP) has filed a recall application with the aim of getting New Zealand’s highest court to admit the alleged error.

It wants the Supreme Court to overturn the High Court ruling and allow SKP to go back to the Environment Court to challenge the basis of the Auckland Council consent.

The fresh court action hinges on the Supreme Court’s finding that SKP has always had the opportunity to present evidence about the cultural impacts of the marina, and did not do so.

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But, that’s a “fundamental error”, SKP chief executive Sebastian Cassie said.

He said SKP called “considerable” cultural evidence when the case was before the Environment Court in 2017, but it was dismissed.

At the time, the court considered Ngāti Pāoa to be “unequivocally” in support of the marina, and so took the view considering further evidence was not necessary, Cassie said.

The construction barge arrived in March, the first sign of life for the 181-berth marina.

“There’s a lot of iwi and Māori who took the time to put together really strong evidence in their opposition to the marina, who were never given the courtesy of having that evidence considered, analysed and assessed.”

It’s now clear Ngāti Pāoa is not unequivocally for the marina. While one entity, the Ngāti Pāoa Iwi Trust, gave the developers the green light, the Ngāti Pāoa Trust Board was not consulted – and is firmly opposed to the plans on the grounds the area is wāhi tapu.

Co-chair Danella Roebeck said when the Supreme Court dismissed SKP’s appeal, it “stifled” the Trust Board. The Trust Board had lodged an intervener application to SKP’s case which will not be heard unless this final appeal is successful.

The Trust Board has compiled a Cultural Values Assessment which it wants the courts to consider.

Protectors have been occupying the beach since the first signs of construction in March.

“We’re saying we need to be heard in order for a proper decision to be made,” Roebeck said.

The Supreme Court reiterated what the Māori Appellate Court found in December 2020, which was that Auckland Council was wrong not to notify the Trust Board of the developers’ marina proposal.

The finding notes, “the Trust Board should have been notified of the resource consent application but was not.

“Instead, the Council notified the Iwi Trust and engaged with that body in relation to the application.”

Roebeck was dissatisfied this didn’t change the outcome.

“Auckland Council has been told […] what they've done is wrong – but where does that leave us?”

Meanwhile, the marina developers say work is moving “at pace” off-site.

Construction at Kennedy Point itself is on pause until a High Court application concerning the protection of penguins is heard in May.

Environmental and wildlife groups joined SKP’s court action after concerns were raised over the resident kororā, or little blue penguins, living in the rock breakwater at Pūtiki Bay.

Kennedy Point Marina director Kitt Littlejohn said the company has engaged a penguin expert and was ready to take her guidance to ensure the birds were protected throughout construction.

That could mean putting work off for a year if a penguin protection plan isn’t in place in time for the short window when the kororā aren’t nesting or moulting.

But Littlejohn said even if they have to delay work on the wharf, it wouldn’t seriously derail their 24-month timeline for constructing the marina.

He said the developers had always been “more than happy” with the penguin protection plan they had in place.

They agreed to further consultation to prove to concerned parties they had the penguins’ interests at heart, and to ensure there wasn’t any further guidance they were missing, he said.

“As the wave of social media started to unload on us, we were very much in the spotlight.”

Kennedy Point Marina will be given the opportunity to put forward submissions to the Supreme Court before the case is considered.