Court Of Appeal To Intervene In Marina Case

On Friday, 17 July 2020, SKP Inc (SKP), a Waiheke Island based community group, filed an application with the Court of Appeal asking the Court to hear its appeal against a marina planned for Kennedy Point, Waiheke Island.

At the heart of its case is a claim by SKP that Auckland Council provided consent for the marina resource application without hearing from the Ngāti Pāoa Trust Board (Trust Board), the mana whenua representative for Ngāti Pāoa in respect of Resource Management Act matters.

The Trust Board strongly opposes the marina based on its concerns about the likely adverse effects of the proposed marina on Ngāti Pāoa’s cultural values. This includes concerns that the proposed marina site is wāhi tapu as it represents a sacred place to Ngāti Pāoa.

While the case has involved unsuccessful applications and appeals to the Environment Court and the High Court, SKP is now asking the Court of Appeal to intervene in the matter and to order a rehearing so that the Trust Board’s cultural concerns can be properly considered.

SKP Chairperson David Baigent says “In 2014 Auckland Council decided to remove the Trust Board from its mana whenua database. The effect of that was that the Trust Board’s right to be heard was effectively denied to it. For the last 3 years, SKP has been fighting for the Trust Board’s right to be heard, for Ngāti Pāoa’s concerns to be given due consideration by Council and the Courts, and to protect Waiheke Island and the Hauraki Gulf from a marina development that may further destroy our fragile and precious environment. SKP believes taking this important fight to the Court of Appeal is the right thing to do.”

If the Court of Appeal grants leave to SKP for its appeal, SKP is hopeful that the Court will order a rehearing, which will mean the Trust Board will finally have an opportunity to put forward concerns on behalf of Ngāti Pāoa about the potential adverse cultural effects of the marina.

Mrs Danella Roebeck Chairperson for the Trust Board says “Ngāti Pāoa are tangata whenua of Waiheke Island and as such Kaitiaki of the Island. As guardians of Waiheke Island and the sole trustee of the Waiheke station for our iwi members, the Trust Board holds Kaitiakitanga for Ngāti Pāoa and has a duty to protect the cultural values and assets of this important whenua, kātao and wairua. No other entity holds that mana for Waiheke Island. To date, Council and the Courts have failed to give effect to this and the Trust Board will not stand by and allow the Developer and the Courts to disrespect the mana of Pāoa."

"Where the developer wants to put the marina is wahi tapu, it is sacred. We won’t allow our wahi tapu to be desecrated or for Ngāti Pāoa’s cultural values to be stolen from us again. If we allow this developer to come in and just take our foreshore, we won’t have anything left for our future generations, we would be insulting our ancestors who sacrificed so much already. We stand together, side by side with SKP, we’re not asking for much, only that the Council and the Court listen to us and then determine whether the resource consent should be granted. We believe that the resource consent will be declined which is why the Developer is so scared for the Courts to hear from the Trust Board.” says Mrs Roebeck

The Court of Appeal will first have to decide whether to grant SKP leave to appeal. SKP must satisfy the Court that its appeal is of general or public importance or that a miscarriage of justice may occur if the appeal is not heard.

“This case is important to all Māori in Aotearoa, not just Ngāti Pāoa. The right to be heard and to natural justice is something that all iwi should be guaranteed and afforded. If iwi entities are removed from a Council’s mana whenua database, then Council should expect that those iwi may ask to be heard on resource applications that they have previously been excluded from. The principles of the RMA and the Treaty of Waitangi must be given real effect” says Mr Baigent

After receiving any notices of opposition the Court of Appeal will set the matter down for a hearing (in person or on the papers) to determine whether leave is granted. If leave is granted the matter will be timetabled for a substantive hearing of SKP’s appeal points.

“Mana whenua have a right to be heard, they have a right to natural justice - ultimately that and the protection of our environment is what SKP’s appeal is all about. We hope that the Court of Appeal affords the Trust Board that opportunity. For SKP this case is about standing up for what is right, and about standing on the right side of history” says David Baigent