Supreme Court rejects last-ditch appeal by opponents to Waiheke marina
Wednesday, 5 May 2021
Campaigners against Waiheke’s Kennedy Point marina have had their last-ditch appeal to the Supreme Court rejected.
The campaigners challenged New Zealand’s highest court on the grounds it had made a mistake when it rejected their bid to appeal the marina consent granted by the High Court.
Save Kennedy Point (SKP) campaigners said the court had made a “glaringly obvious” error by saying they had always had the chance to bring forward cultural evidence. They said they had done so, and had the evidence dismissed.
In the court’s judgement issued on Wednesday, it acknowledged a partial error, accepting SKP had called evidence from representatives of Waiheke’s Piritahi Marae on harmful cultural effects.
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* Kennedy Point campaigners lose Supreme Court battle to stop Waiheke marina
* Protesters protecting Kennedy Point penguins say they are left with 'no choice'
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But it declined SKP leave to appeal on the grounds there was no “new and important” evidence to be heard by the courts.
SKP chief executive Sebastian Cassie said it was an “incredibly frustrating” decision based on what he called another “very obvious error”.
There are two grounds for seeking a rehearing, he said – one is having new and important evidence, and the other is a change in circumstances that may have affected the other.
The Supreme Court had “essentially conflated” the two, he said.
“What SKP has argued all along in the change of circumstances is that if you put the Trust Board in the picture […] back in 2017 then we don't need new and important evidence, what we need is evidence that was before the court to be analysed and considered.”
SKP has been fighting alongside mana whenua representatives Ngāti Pāoa Trust Board to have the Trust Board’s cultural values assessment considered. Only one Ngāti Pāoa entity, the Ngāti Pāoa Iwi Trust, was consulted in the early stages, but the courts have since found Auckland Council was wrong not to have directed the developers to talk to both bodies.
Cassie said it was frustrating to have this error acknowledged by both the Māori Appellate Court and the Supreme Court, but for nothing to come of it.
“It's so disappointing and demoralising when you're told the errors you're pointing out are right but the outcome that would normally follow doesn't.”
He said SKP would meet with the community and its legal team to decide on its next steps, but its confidence in the justice system had been dented by the latest setback.
Kennedy Point Marina project director Tony Mair said the project has met all consent requirements.
“We have had our position further validated by last week’s Supreme Court ruling and now again by today’s confirmation of that ruling.
“We have the full support of our growing number of berth holders as well as a large number of Waiheke residents.”
A further application about the protection of the kororā, or little blue penguins, at Kennedy Point, is set to be heard by the High Court in May.
Meanwhile, Ngā Uri o Ngāti Paoa (descendants of Ngāti Paoa), have vowed to continue their occupation of the beach indefinitely. The protectors have been at the site since the first signs of construction almost two months ago.