Landfill appeals quashed

Te Rūnanga Ngāti Whātua and Forest & Bird have lost their High Court appeals against the Environment Court’s interim decision in December 2023 that consent for a huge new regional landfill might be granted if Waste Management NZ could resolve certain issues.

In a decision released on December 19, Justice Christian Whata said the appeals concerning the proposed mega-dump on 1000 hectares south of Wellsford, which can only be made on points of law, should be dismissed.

However, he made it clear that it wasn’t a straightforward decision and some aspects were only dismissed because they came after the Environment Court’s interim, rather than final, decision, and so were premature.

“It is only with the benefit of the deep interrogation of the decision, evidence and law, have I been able to reach that conclusion that each of the appeal grounds should be dismissed,” he said.

“The final judgment will nevertheless need to more clearly address how the competing tikanga ā-iwi positions are resolved and the basis upon which a ‘no material harm’ result is achieved, especially in relation to extent of river loss.”

Judge Whata added that the case had been complex and difficult.

“While the appeal grounds have been dismissed, and in some key respects the appeals were premature, there were also public interest aspects to these appeals, with several important areas.”

Landfill opposition group Fight the Tip: Tiaki te Whenua deputy chair Michelle Carmichael said they were saddened by the decision.

“Watching the case and the legal limitations that involved was frustrating,” she said.

“It felt like the burden of proof fell on the parties wanting to protect the environment to without any doubt quantify the extent of negative impacts of the proposal.”

Carmichael said in the group’s view, the legal process went against environmental ideals “through balancing the rights of commercial enterprise to provide offset outcomes and perceived benefits, instead of absolute environmental protections”.

She added that the fact that Judge Whata had said key aspects of the appeals had been premature reinforced their frustration that the Environment Court had issued an interim decision in the first place.

“If that is the case then the Environment Court should not be permitted to cast interim decisions, which then only give the applicant the chance to remedy the failed parts of their proposal, without giving the chance for others to counter-argue that second-chance opportunity,” she said.

“Let’s hope the final Environment Court decision delivers a just outcome for people and the environment.”

Carmichael expressed Fight the Tip’s heartfelt gratitude to Te Rūnanga o Ngāti Whātua and Forest and Bird for appealing to the High Court and said the fact that their concerns were not upheld was “disappointing beyond words”.

The group could not make its own High Court appeal due to lack of funds.

Judge Whata added that because the appeals were dismissed there was no need to resolve an application by Ngāti Manuhiri Settlement Trust to strike out the Ngāti Whātua and Forest & Bird appeals, but if it had been necessary, he would have dismissed it.

Te Rūnanga Ngāti Whātua and Forest & Bird were both contacted for comment but had not responded as Mahurangi Matters went to press.

Anyone wishing to support Fight the Tip’s court fund can donate to bank account 12 3094 0274048 00.