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The Environment Court has ruled that a weir installed by developer Te Arai North Limited (TANL) threatens the food source of New Zealand’s most endangered bird species, despite repeated denials by TANL.
TANL has long denied that a weir it installed across Te Arai stream, originally to facilitate the extraction of water for the exclusive Tara Iti golf course, adversely affected the survival of the New Zealand fairy tern.
But the New Zealand Fairy Tern Charitable Trust maintains the weir restricts the passage of fish, particularly inanga, upstream. This, in turn, risks wiping out the fairy tern which depend on the fish for food.
There are estimated to be less than 40 fairy terns in existence.
In August, TANL spokesperson David Lewis told Mahurangi Matters that the weir was equipped with a fish passage structure that allowed fish to pass upstream and Auckland Council ecologists verified that the structure was working.
But following a hearing on the matter last month, the Environment Court concluded the fish passage was inadequate, saying that the water velocities and drops involved exceeded maximum thresholds.
“The court doubts that the fish passage that has been provided has ever been sufficient to allow the passage of inanga,” the court said in its decision.
“We conclude that the current weir prevents the passage of fish.”
The court hearing was convened after the NZ Fairy Tern Charitable Trust sought an enforcement order against Council to remove the “dam structure” and restore the stream bed to its condition prior to September 2013.
Council opposed the order on the basis that it was primarily a regulator and any enforcement action should be directed towards TANL or Land Information New Zealand (LINZ), which owns the stream bed, or the Department of Conservation (DOC), that administers the land through which the stream runs.
The court ruled that it was inappropriate to make an enforcement order against Council to remove the weir. Nevertheless, it recommended that Council, TANL, LINZ and DOC seek to resolve the issue “as a matter of the utmost urgency”.
“Given that two of these parties are government departments, it is perhaps surprising that they have not done so to date,” the court said.
However, the court disagreed with the Fairy Tern Trust that the weir should be summarily removed, saying the sudden lowering of the water level upstream may create harmful impacts.
“We consider that some caution should be taken in re-establishing the previous hydrology of this area,” the court said.
It suggested that Council should take a “holistic look” at the water catchment to enhance the habitat for inanga and the fairy tern.
The court ruled that relevant parties should submit their response to the court’s findings by November 29.
Council manager for regulatory compliance Steve Pearce says Council is reviewing the court’s decision in order to “understand its implications and decide on next steps”.
TANL spokesperson David Lewis says TANL has always been prepared to lower the structure to improve fish passage and has communicated this to the Environment Court.
However, he says TANL has just received advice that, as fairy tern are currently nesting nearby, any physical works in the stream should be avoided at present.
“TANL will be talking to Council and other agencies on the best way forward,” he says.
