Environment Court sits in Te Hana

DOME VALLEY LANDFILL

The Environment Court moved to Te Hana’s Te Ao Marama Marea Maori Cultural Centre last week for three days of cultural evidence in the appeal case against a landfill in the Dome Valley. Judges Melinda Dickey and Jeff Smith, commissioners, counsel, media and the public were welcomed onto the centre’s marae with a powhiri on the morning of Monday, April 3, with speeches from kaumatua, a karakia and waiata. The hearing then resumed with evidence from and cross-examination of representatives from hosts Te Rūnanaga o Ngāti Whātua, plus Te Uri o Hau, Ngāti Whātua Orakei, Fight the Tip and Ngāti Manuhiri. This stage of the hearing was due to have been held at Puatahi Marae, near Glorit, but had to be moved due to structural damage from Cyclone Gabrielle. After two days where few members of the public attended, the final day saw around 60 extra visitors at the marae, including a large Ngāti Wai contingent. The three-day session ended with waiata, karakia and speeches from both the court and hosts, expressing gratitude for a successful, cooperative and mutually respectful event. The case continues.

Lengthy court deliberations

One of the hallmarks of the landfill appeals case has been its sheer duration.

Proceedings opened on June 20 last year and, up to Thursday last week, judges, commissioners and counsel representing Waste Management, Auckland Council and the parties appealing against resource consent had spent 46 days sitting.

Head Judge Jeff Smith has regularly reminded all parties that the case can’t go on forever, urging everyone concerned to be a brief as possible.

Last week at Te Hana Te Ao Marama Maori cultural centre was no exception as, once again, the time taken up by various cultural witnesses and their cross examination stretched well beyond what had been allotted.

Several witnesses ended up missing their opportunity to appear in person at the marae and were forced to appear when the case resumed online. Once again, and on several occasions, Judge Smith said the case needed to be concluded and urged counsel to rein themselves and their clients in.

“The time for proceedings has gone well beyond the constraints. We just can’t keep throwing time at this, it has been nearly a year-long hearing now,” he said.

Glavish delivers view on Hoteo

First on the stand at Te Hana was Te Rūnanaga o Ngāti Whātua co-chair Dame Naida Glavish.

In a characteristically spirited performance, she started her court appearance by declaring that she would much rather have sworn her oath on the Treaty of Waitangi instead of the Bible, before telling the court that she had been brought up on – and in – the Hoteo River and explaining its importance.

“I’m the mother of three daughters and two sons, the grandmother of 19 and the great grandmother of 37,” she said. “I have a responsibility to every one of them to stand here today to protect the Hoteo for them and those not yet born.”

She said her grandmothers had taught her “when you see something wrong in front of you, you are duty-bound to correct it. If you don’t, you will become like it”.

“It doesn’t make me popular, but popularity is not something I look for,” she said.

Dame Naida described how the mauri, or life force, of the Hoteo and the Kaipara had already been depleted in her lifetime, with many fish and shellfish species that were once common now rare or extinct.

“The mauri is degraded now. Not only will that continue with Waste Management (WM), it will also degrade the whenua (land).”

When asked about WM’s assertions that the landfill’s effects on the land and environment would be negligible, she appeared incredulous.

“Negligible? How can you dump rubbish on something and say it won’t have an effect? What sort of English language is that? I don’t know how you can do damage and expect there to be no negative response to that. I can’t understand that at all.”

And she said if iwi had been consulted properly, the Dome-Wayby Valley site would not have been chosen.

“If we were asked in the first place, we wouldn’t be in this court today. No mana whenua would have agreed to it at all.”

When asked by Forest & Bird lawyer Peter Anderson if WM’s proposals to install a large pest-proof fence and carry out extensive native planting would reduce adverse effects on the mauri of the Hoteo, Dame Naida said everything had its own mauri – trees, birds, the river and so on – and if even one thing went wrong, everything would struggle.

“I don’t understand how it could reduce an ‘adverse effect’. It will affect whatever’s in that area,” she said. “Having Waste Management there is not going to rejuvenate our river.”

Cost of fighting application takes financial toll

The amount of time, effort and expense involved in dealing with the landfill application had left Ngāti Whātua struggling, the court heard.

Chief executive Alan Riwaka said Ngāti Whātua were not resource management experts and did not have the resources of a large corporate, but at times there were so many emails or questions from WM, he’d felt like he was working for the company.

“This is a massive application,” he said. “It’s been like a rope around our neck for the last four years.

“We’re at well over $500,000 so far, and we’d far rather be building houses for our whanau, for our homeless than front this for all our hapu. This is not something I would wish on anybody.

“Half a million dollars or $700,000 might not be much to Waste Management, but it kills us.”

Riwaka added that Ngāti Whātua would have preferred to sit down with Auckland Council and discuss the wider issue of its waste strategy policy, which aspires to the creation of no more landfills and the use of other technology.

“If their processes were more clear we probably wouldn’t he here,” he said. “Whatever happens, this is going to need to be dealt with by Auckland Council.”

WM lawyer Bal Matheson said the company wouldn’t invest in something that would lose money and it was a corporate that needed to get a return on its investment.

“But it shouldn’t be at our expense,” Riwaka replied. “Waste Management wants to put in a landfill in an area we’re really concerned about and with impacts.”

He said Ngāti Whātua had been prepared to look at other sites with WM, and he had had conversations with the council and the Ministry of Environment about how waste should be managed in future in and around Auckland, but they had led to nothing.

“We feel pretty let down really and it leaves us with the feeling why would we want to get involved,” he said. “We’re really struggling to get justice for our people.”

Judge Smith commented that there appeared to a policy void that the court was being asked to fill.

Riwaka agreed, saying, “We would encourage and participate in any policy development area. We want to get greater certainty that outcomes are adhered to.”

Discussing the Dome

The court spent some considerable time debating exactly what the Dome Valley meant in terms of its location and extent to various parties.

The exchange began when Waste Management counsel Bal Matheson was cross-examining Ngāti Whātua’s Glenn Wilcox on where he believed the Dome Valley and Wayby Valleys began and ended; the proposed landfill site sits somewhere between the two. Wilcox said he learned what areas were called from his tupuna, or grandparents, and korero, or discussion, not from a map. He added that Ngāti Whātua had a binding responsibility to say the Dome Valley was not the right site for a landfill.

Judge Smith said that, as a boy from Whangarei, he had always understood the Dome started at the Hoteo River bridge going south on State Highway 1 and continued through to the top on the hill going down towards Warkworth.

There then followed considerable discussion and looking at maps in a bid to decide exactly where Wayby Valley and the Dome Valley started and finished, though many present agreed with Judge Smith’s belief that the whole area was simply known as the Dome, or Dome Valley. There was also some debate on what parties meant when they referred to the Hoteo – whether it was just the Hoteo River, or its wider catchment area.

Ngāti Whātua, Ngāti Manuhiri and Te Uri o Hau all claim to have interests in, and responsibility for, the land in question, or all or part of the Hoteo catchment.