Court to camp-out: Four-year fight to stop Waiheke marina culminates in occupation
Friday, 26 March 2021
Controversial plans for a marina on Waiheke Island have prompted four years of court battles, fights over iwi representation, and a hīkoi to Parliament – now, protesters are taking a last stand on the beach at Kennedy Point, and, as Josephine Franks reports, they are vowing they won't leave.
When the construction started, the occupiers came.
They've dug in for the long haul. Camping chairs line the shore, spindly legs wedged into pebbles and sand. There’s a zero-waste rubbish system, solar showers, tents and kayaks in a palette of primary colours, and gazebos to shelter the steaming pots of kai brought down by locals.
Karla Allies (Ngāti Pāoa, Ngāti Pukenga ki Manaia) and Emily Māia Weiss (Ngāti Pāoa) are among the permanent occupiers determined to stop a marina being built at Waiheke's Kennedy Point. Each day the numbers swell with locals, who visit to show their support.
It's been 20 days and counting.
**READ MORE:
* Construction starts on controversial Waiheke marina despite ongoing court battle
* Battle against controversial Waiheke Island marina plan heads to Supreme Court
* Controversial Waiheke marina passes another hurdle as court rejects extension request
**
“We’re willing to give up anything to support the community and to exert our kaitiakitanga to prevent the marina from being built,” Weiss says.
Out in the bay, a dinghy flying the Tino Rangatiratanga flag looks toy-sized in the shadow of the construction barge and its towering crane. It’s the first sign of life for the 181-berth marina promised for Pūtiki Bay.
Waiheke’s take on The Castle
For almost as long as there’s been a plan for the marina, there’s been Save Kennedy Point (SKP).
Founded in an Onetangi living room in 2017, SKP has taken its fight against the marina through the Environment Court, High Court, Court of Appeal and now the Supreme Court, where it’s waiting on the outcome of a last-ditch appeal.
The fight against the marina is David and Goliath in scope. Or, in the words of SKP’s legal coordinator Sebastian Cassie, it’s “New Zealand’s version of The Castle”.
Like the family in the Australian film trying to save their home from being bulldozed for an airport extension, SKP has been on the back foot in its fight against deep-pocketed developers, Cassie says.
Both arguments are anchored around the same principles. If the house in The Castle is more than bricks and mortar, Kennedy Point is more than shingle and sea.
The environmental and cultural impact of putting a 7.3 hectare marina in the bay would be devastating, the group argues.
‘The Gulf is munted’
SKP chair David Baigent doesn’t mince his words about why the marina isn’t welcome on Waiheke.
“It’s very simple: you concentrate people, and you concentrate boats, and you’re going to create a cesspool.
“The Hauraki Gulf is munted… every report gives a worse picture.”
Six State of Our Gulf reports over 20 years have painted a picture of environmental degradation, troublesome water quality and declining fish stocks.
Karla Allies says it’s great Auckland Council and the Department of Conservation have put out literature saying they want to protect mauri (life force), “but it starts with not destroying it”.
“We really just need to put a brake on damaging practices in the Hauraki Gulf.”
The developers disagree the marina will cause damage. Director of Kennedy Point Boatharbour Ltd Tony Mair says of New Zealand’s 57 marinas, “I've never been to one where it's degraded the area at all”.
Fellow director Kitt Littlejohn says people’s concerns about the environmental impact of the marina come down to a misunderstanding about what a marina is. A marina is a “bunch of inert materials placed into the coastal environment” – it’s the boats that do the harm, he says.
“People go out in them and go fishing, or people go out on them and drop their dirty grey water into the Gulf, or they drop litter.”
Bring them into a marina environment, and you’ve got a lot more control, he says.
As for concerns about lower water quality around marinas, Littlejohn says, that’s largely associated with the copper in antifouling paints used on boats. Kennedy Point marina will require boats to use only very low or no-copper paints.
Local residents are split over the marina. While there are those at the beach every day who vocally oppose it, others like Geoff Wake are all for the development. His house sits above the bay, the view from his kitchen looking out to where the marina will be.
He was won over when the developers took the time to visit him at home and talk through his concerns about parking, noise and light pollution.
“They seem to know potential issues and have a plan in place to mitigate them.”
‘Trampling on tapu’
The environmental issues about the marina can’t be disentangled from cultural concerns.
One of the sticking points for whānau whānui of Waiheke’s Piritahi Marae, which opposes the development, is the marina’s proposal to bury sewage tanks in the seabed.
It’s “inconceivable”, argues Jacqueline Carter (Ngāti Awa, Waitaha, Ngāi Tai, Ngāti Maru, Ngāpuhi, Ngāi Te Rangi, Ngāti Pākehā). “Not just in the fact that we might want to come here and get a kai, but because of the tapu that we are talking about.”
The developers claim the tanks have “zero chance of leakage”, but that does little to change the fact “for most Māori [they are] an absolute no-no,” Carter says.
“The developer can say we’ve done this, this and this … but show me a developer who can say that they will not compromise or trample on tapu, and then I’ll be happy. But I haven’t seen one, and I certainly don’t see one in here.”
The whānau whānui of the marae take their role as kaitiaki seriously.
Whaea Huhana Davis (Ngāti Maniapoto, Ngāti Pāoa, Hauraki whānui), says they only have one agenda: “Guardianship, preservation of our environment, for our island, for our lives, for our future lives - and we’ve never changed”.
The marina would spell suffering for everything in the bay and beyond, she says.
“Mauri connects all things. If the environment is sick then we are sick, even if we can’t register that.”
They’re clustered around a thick pōhutukawa branch that curves down to the pebbles, providing a perch for beach-goers and oysters. Further down the bay, two women and a bounding Labrador take their entry to the sea in big strides, quick to break its mirrored surface.
As they come up gasping, Paora Toi Te Rangiuaia (Ngāti Porou), also of the marae, gestures in their direction: “These ladies here, I don’t know how they’d feel about swimming in a marina area. It’s 7.3 hectares, that’s huge.”
For Whaea Kathryn Ngapo (Ngāpuhi, Ngāti Porou, Ngāti Pāoa, Hauraki whānui), the potential negative impacts of the marina make the choice of location significant.
Ngapo was one of the first marae representatives to join the fight against the marina and was deputy chair of SKP until 2018.
The historical significance of Pūtiki Bay is often overlooked, she says. It’s surrounded by pā sites that date back to the landing of Te Arawa waka, which stopped there for rest and repairs in the 14th century.
“We don't have any stone buildings and things that have been there for centuries. We just have the places where stuff happened, the archaeological footprint of them.
“I really resent the fact that something that should be a taonga to Māori people wasn't treated as such.”
Ngāti Pāoa: Who’s consulting who
Ngāti Pāoa is one of seven iwi who claim mana whenua customary and historical interests of Waiheke Island. The iwi is involved but it hasn't been smooth sailing.
Representation of the iwi has been contentious since the Ngāti Pāoa Iwi Trust was set up in 2013 as a post-settlement governance entity (PSGE).
Prior to that, the Ngāti Pāoa Trust Board held a mandate over issues of resource management and local governance, by dint of a 2009 Māori Land Court order.
It was the Iwi Trust the developers consulted, and the Iwi Trust that gave it the green light.
But the Trust Board maintains it should have been consulted. It opposes the marina and has lodged an intervener application to SKP’s Supreme Court action in the hope of having its position heard.
Trustee Danella Roebeck (Ngāti Pāoa) and husband Dave Roebeck, who does not whakapapa to Ngāti Pāoa but is the board’s principal officer, are against the marina on cultural grounds.
The area is wāhi tapu, Danella says: “If it’s wāhi tapu it’s sacred, you don’t interfere with it.”
The first they knew of the proposed marina was a news story in 2018, just before the Environment Court approved the plans.
They put the blame at Auckland Council’s door.
A ruling from the Māori Appellate Court in December 2020 lent weight to that, noting: “As a matter of law, Auckland Council was wrong to engage the Iwi Trust as if it were the representative of the iwi,” knowing as it did of the 2009 order.
The 2009 order was brought to an end in 2018, and another line in the sand was drawn last weekend with the signing of Ngāti Pāoa’s deed of settlement with the Crown.
But at the time of consultation, the 2009 order was still in place. And while court judgements have noted the Trust Board was legally inoperative at times, seeking it out was made difficult because Auckland Council had taken the board off its mana whenua database.
Even when Whaea Kathryn Ngapo went looking for the Trust Board – knowing they’d existed at some point – the council’s website just pointed to the Iwi Trust.
“I have my issues with the developer, [but] I think Auckland [Council] has really let us down and that makes me feel angry,” she says.
Auckland Council declined to comment, citing the ongoing legal proceedings.
The Roebecks say that if the Trust Board had been consulted, the development would never have gone ahead.
The Iwi Trust’s initial support for the marina has been further complicated by the fact people who worked with the developers no longer sit on the board.
The new trustees declined an interview. However, vice-chair Tania Tarawa said in a brief statement about construction starting, the Trust was “deeply concerned with the situation unfolding at Kennedy Point”.
The Iwi Trust was not aware a karakia had been performed to mark the start of construction, which the developers said was led by a Ngāti Pāoa kaumatua. The developers maintain they have always appropriately engaged with mana whenua.
Tarawa said the Trust is reviewing all the contractual arrangements undertaken by the previous board, including the marina development. It will determine its position after seeking feedback from iwi members, she said.
For whānau of the marae, opposing the development when it had the support of the Iwi Trust wasn’t easy, Carter says. While some whānau of the marae whakapapa to Ngāti Pāoa, and the marae was built with the iwi’s permission, it is not a tribal marae.
Maikara Ropata (Ngāpuhi, Ngāti Raukawa, Ngāti Toa Rangatira), also of the marae, says despite the difference of opinion, she understands why mana whenua who support the development might do so.
“I just feel that they had lost so much, maybe [they felt] it was time to receive something back.”
Community kaupapa
The people gathering on the beach are there for a multitude of reasons: there are the boaties who don’t want to lose a bay to moorings, schoolchildren who don’t want to give up their swimming spot, environmentalists worried for the health of the Gulf.
Occupier Emily Māia Weiss says the kaupapa of protecting the moana is shared among people who come to it from different experiences. The occupation has the full backing of the Trust Board, she says.
“While this is Ngāti Pāoa-led, it’s been a huge communal effort.”
For the old battle hands, the momentum started building around the corner at Matiatia, where campaigners successfully saw off a bid to put in a marina next to the passenger ferry terminal.
When they had to rally again, they were tired, and bank accounts were drained.
SKP has shelled out about $1 million so far, and it’s also being pursued for legal costs by Auckland Council.
The court battle may soon reach its conclusion, but Weiss says the occupiers are determined that won’t spell the end.
She adds: The right to protest and protect is “inherent to all of us, no matter what the courts rule or decide”.