Forest and Bird takes legal action over penguins at Waiheke marina site

Wednesday, 27 April 2022

It’s a year since Kennedy Point marina construction started and the Protect Pūtiki group was formed. (First published March 9, 2022)

Forest and Bird is taking legal action against the Department of Conservation over kororā, little blue penguins, on Waiheke Island.

In March, DOC granted the Kennedy Point Marina developers authority under the Wildlife Act to capture and relocate kororā found during work on the rock breakwater where they nest.

Forest and Bird has applied to the High Court for a judicial review of DOC’s approval of the Wildlife Permit, and for a stop-work notice while the review is carried out.

The environmental group argues authority should not have been granted, and the construction work puts the welfare of kororā at risk.

A penguin recuperates at the Native Bird Rescue on Waiheke Island.

* March of the penguins: Waiheke marina developers can move kororā, DOC says

* Protecting Pūtiki: The ongoing fight to stop Waiheke's Kennedy Point marina

Nicola Toki, Forest and Bird chief executive, said photos, videos and eyewitness accounts from the construction site show large boulders being removed near burrows, “among other actions that are disturbing the resident kororā”.

Experts and witnesses outlined “significant disturbance” to kororā, which Forest and Bird said supported its case that the authority should not have been granted.

The construction site at Kennedy Point, one year on from when building work started.

“Our primary concern is the welfare of these penguins”, Toki said.

Kennedy Point Marina director Kitt Littlejohn said the birds’ welfare was also a concern for the developers.

“All works are being undertaken in accordance with the robust procedures in our Kororā Construction Monitoring and Management Plan to ensure adverse effects on the kororā are avoided.

“Our expert ecologists have been monitoring the kororā for well over a year now and have detected no disturbance effects from construction on them.”

He said the company was taking legal advice on the application.

DOC was criticised by Conservation Minister Kiri Allan shortly after it granted the Wildlife Permit for giving her advice that was not “fulsome or adequate” about the kororā.

The advice led Allan to instruct DOC to keep a closer eye on construction work, with a promise DOC staff would be present on site for the remainder of work on the rock wall.

A penguin that was found injured at Pūtiki Bay and brought to Native Bird Rescue to recover.

Protect Pūtiki, the group of environmentalists, locals and mana whenua opposing the marina, said it strongly supported Forest and Bird’s legal action.

The group has been observing the wildlife in the bay, and said its members had witnessed “reckless removal of boulders, the spilling of concrete and other chemicals into the bay, sediment clouds, the blocking of access for penguins to their burrows by buoys and silt curtains, harmful and excessive noise of machinery, and many other acts of disturbance to kororā”.

“We are hopeful this legal action will see an immediate stop-work at Pūtiki Bay.”

At the time of approving the authority, DOC said doing so was in the best interests of kororā welfare and would ensure their physical safety.

If the authority was not granted, the works would have required ‘passive eviction’ where the developer would need to wait for the kororā to move out of the way as rocks were removed. This was considered to be a bigger risk to the birds.

Protect Pūtiki said it was “shocked” at this justification, calling DOC’s actions “irresponsible and deeply concerning”.

The developers say the work affects a very small area of the rock breakwater wall at Kennedy Point and is taking place outside the breeding and moulting season. This means kororā are less vulnerable to disturbance and unlikely to be confined to their burrows.

The developers’ ecologist Dr Leigh Bull is on-site during work that could impact the kororā and is the person allowed to handle the birds and release them further along the breakwater.

Forest and Bird said the plight of the kororā on Waiheke highlights a bigger issue – the “urgent” need for an overhaul of the Wildlife Act.

“At nearly 70 years old, [it] is no longer fit-for-purpose,” Toki said.

“Reformed conservation laws must have nature at their heart and provide strong protection for our taonga species.”

Last year, the Green Party said the current law did not go far enough to protect the kororā.

Eugenie Sage, conservation spokesperson for the Green Party, told Stuff there was a “glaring hole” in the Wildlife Act because it does not cover protected species being disturbed – only physically moved or harmed.