After two years of fighting through the court system, Waiheke community group Save Kennedy Point Inc (SKP) is preparing for its day in court - this time, the High Court. SKP has been fighting a proposed marina at Kennedy Point since Kennedy Point Boatharbour Ltd applied for resource consent in 2016. Auckland Council planning commissioners granted consent for the marina in May 2017.
In 2018 the Environment Court heard SKP’s appeal of the consent, with the court deciding to uphold consent for the marina. Later that year, SKP applied for a rehearing in the Environment Court and made a late application to the High Court to appeal the Environment Court’s decision. The High Court declined that application, saying that the matters raised could be dealt with by the Envi¬ronment Court when it considered the rehearing application.
That hearing was held in September 2019, and last December the Environment Court released its decision declining SKP’s request for a rehearing of its appeal against the consent for the marina. I
n January this year, SKP filed an appeal in the High Court, and in less than three weeks the High Court will hear the case.
SKP’s legal coordinator Sebastian Cassie says this isn’t about a stubborn incorporated society that just won’t give up, but rather an incorporated society that is striving to give a voice to the voiceless, “namely the environment, Waiheke community and mana whenua entities who should have been consulted with and heard, but who have not”.
“It’s very exciting and at the same time it’s really validating that we’ve got this far, and all of the hard work that we’ve done is a testament to the unwavering support that we’ve got from our community and our supporters led by our legal team and SKP committee.”
SKP filed its submission to the High Court last week and Sebastian says the document tells the story of a community and concerns that haven’t been properly heard or listened to.
“When you finish reading SKP’s appeal submission you get a real lump in your throat. You get a sense that a really important Maori entity has been excluded and not listened to throughout the whole marina consent process.”
Sebastian says that SKP thinks the Environment Court, in its haste to make a decision, got things very wrong, not just factually, but more fundamentally.
He says SKP submits that in assessing its rehearing application, the Environment Court applied the wrong test, took into consideration matters it should not have taken into consideration, and didn’t take into consideration matters it should have considered.
A main component of SKP’s case is lack of consultation and engagement with Maori, and SKP sees the High Court as giving more weight to these issues.
“Recently, the High Court has been seen to be stronger on recognising the importance of environmental protection and Treaty of Waitangi principles in decision making. We’re therefore hoping that by going to the High Court it will send that same strong signal back to the Environment Court.”
The Environment Court was set up with protection of the environment as one of its purposes, but “we’ve seen other courts pick up on that protection more strongly”, says Sebastian, giving the example of Kelly Klink’s successful appeal to the High Court against consent for marine dumping off the coast of Aotea Great Barrier. In that case the High Court ordered the Environmental Protection Agency to reconsider how it consulted with mana whenua.
“Given our concerns with the approach taken by the Environment Court, we are hoping that the High Court is going to send a strong message to the Environment Court that its duties are with the environment. Here’s a group saying that our environment and Maori cultural values are under threat.” Sebastian says the Environment Court applied Western principles in considering the case where it should have used Maori principles.
“By making it about Western principles, SKP believes the court took the wrong approach. If we are going to genuinely consult with Maori, we are going to have to do it from Maori viewpoints.” SKP believes that had the views of the Ngati Paoa Trust Board been before Auckland Council planning commissioners at the original application stage, the proposal would not have gone any further.
“Piritahi Marae was consulted on by SKP, and that was included in SKP’s original submission. But their evidence was discounted because they don’t whakapapa to Ngati Paoa and the evidence of the Iwi Trust was given prominence. But if the Trust Board had been consulted, you wouldn’t have had that disconnect. You would have had two Maori entities who represent both Ngati Paoa and the wider Waiheke Maori community in agreement in their opposition to the marina. In that circumstance, we don’t believe the marina would have been granted resource consent.”
SKP believes that Auckland Council could have allowed consultation to occur with the Ngati Paoa Trust Board in early 2017.
“Auckland Council knew in 2009,2014 and 2017 that the Trust Board was saying that it had the RMA mandate. The one entity that could have invited the Trust Board to the table as early as 2017 was Auckland Council. Had that occurred, all of the money and time spent by the Waiheke community fighting this inappropriate project could have been avoided.”
SKP continues to fundraise to pay legal costs.
“SKP believes that both Auckland Council and KPBH have used the threat of cost applications to try and deter SKP from continuing this important battle, but we have persevered despite those threats thanks to the support of our supporters, members and the wider community. As long as we have support, we will continue to fight for what is right,” says Sebastian.
“The fact is that SKP and its supporters, we’re not in it for ourselves, we are forced into the position to stand up for the environment andgivemana whenua a voice, while on the other side sits the developer, whose primary interest is commercial. This appeal before the High Court couldn’t be more critical for Waiheke, our environment and the respect we show to mana whenua and Maori.”* Erin Johnson - Gulf News