A highly controversial dump in the Dome Valley north of Auckland can go ahead, despite huge Māori and Pākehā opposition and a defeat for and dissenting view from the environment panel's chair
The rare frogs will be moved. The endangered long-tailed bats will adapt. Neighbours won't smell, see or hear too much. The disappearance of 14km of stream beds will be managed. State Highway 1 will cope with the extra 760 large truck movements a day.
And local Māori?
They had painstakingly outlined the effects, both in the spiritual and physical worlds in Te Ao Māori, of a new giant landfill on their lands, streams and the Kaipara Harbour.
But such "intangible cultural" effects could not overwhelm the Resource Management Act, the National Policy Statement on freshwater, the Auckland Unitary Plan, Auckland Council's officials and four men sitting in judgment.
An independent planning panel for Auckland Council has approved a 60-hectare landfill for a farm and bush site in the Dome Valley just south of Wellsford to take Auckland city's waste for the next 35 years.
Law over lore. The tangible over the intangible.
The decision sets aside what it acknowledged was "profound" evidence from mana whenua, including Dame Naida Glavish who grew up near the Hōteo stream that the dump will border, of the risks to the spiritual values of the site and their inter-relationship with the physical values in Māori belief.
A council expert who recommended the dump be approved later accepted at the hearing that there would be intangible adverse cultural effects, and "only mana whenua can speak to mana whenua values".
Those opposed to the dump have indicated they are likely to appeal the panel's finding to the Environment Court to stop the landfill being built on the farm valley and polluting their waterways.
The independent panel had heard or read 981 submissions. Ten were in support of the dump, 958 against, 12 neutral and one indeterminate.
Those 10, with the application from multinational Waste Management Ltd and carrying backing from Auckland Council officials, overwhelmed the tide of opposition from local landowners, iwi, conservationists, marae and a vocal protest group, Fight the Tip.
But one voice, that of the independent panel's chair, Sheena Tepania, was not convinced. In an unusual move for such a panel, the chair was outvoted 4-1 by Alan Watson, Wayne Donovan, David Mead and Michael Parsonson.
She did not let her view die quietly.
The panel's approval of the new dump, at Wayby Valley between Wellsford and Warkworth, was detailed in a 145-page ruling. It said the effects of the landfill on the 14km of streams which would be eradicated, on the Hochstetter's Frog, the bats, fish and other freshwater creatures, and the sundry negatives of noise, smell, truck traffic, dust and disruption could all be sufficiently mitigated by its 400 approval conditions.
Tepania's dissent was a full 45 pages in its own right and highlighted her fundamental disagreement that cultural values of the local mana whenua, Ngāti Manuhiri and Ngāti Whātua and those they represent, had been properly taken into account under the law.
Essentially, the panel accepted the dump's effect on Māori cultural values would be more than minor, and was real, but said its 'balanced' view under the Auckland Unitary Plan did not lead it to refuse the Waste Management application "in light of the interrelationship of matters that we have been presented with through Te Ao Maori".
Its ruling outlined the mana whenua objection to allowing the dump and its impacts on the Hōteo river catchment ultimately leading towards the Kaipara Harbour:
"Ngāti Manuhiri and Ngāti Whātua contend that the placement of a landfill within the landscape as described by them is a 'scar on Papatūānuku' and will result in their diminished relationship with the land, weakened mana, a significant burden for them and future generations, an inability to exercise kaitiakitanga and manaakitanga, bringing shame on mana whenua."
The decision quoted them as saying: “Furthermore, there would be no amount of offset that could replace this area of significance to mana whenua – reforming our awa will remove the ... mauri and the wairua forever a permanent loss...” This position was supported in submissions and evidence at the hearing by Ngāti Whātua Ōrākei, Te Uri o Hau Settlement Trust, Te Aroha Pā Marae, Ōtakanini Haranui Marae, Puatahi Marae, Tinopai Resource Management Unit, Ngā Maunga Whakahii o Kaipara Development Trust and Te Ohu Kaimoana.
Waste Management, the panel said, relied on its Māori adviser, Bill Kapea "a Ngāti Rango kaumatua, RMA hearings commissioner and advisor on matauranga Māori, who was engaged by Waste Management from early 2018, to provide expert advice and assistance on cultural matters".
"He considered that the views of mana whenua stemmed largely from misinformation and a misunderstanding of the application and its actual effects. He stated while there would be some adverse effects, especially on the streams to be reclaimed for the landfill, 'some adverse effects are inevitable'.
"He acknowledged that no one wanted a landfill and accepted the cultural sensitivity of the whenua but was confident that these effects could be appropriately managed through cultural engagement and consent conditions. In this, he distinguished between an activity that might not be culturally appropriate (i.e. landfills in general) versus activities that could, subject to appropriate design and mitigation, be culturally acceptable."
Waste Management's resource management consultant, Emma Brabant of Tonkin & Taylor, said the mana whenua fears were misplaced. The panel's judgment quotes her:
"'On the contrary, in my opinion, the evidence has demonstrated that there is no risk of the kinds of physical adverse effects on the Hōteo Awa and Kaipara Moana eventuating that mana whenua identified they have significant concerns about.
"She considered these fears have likely been driven out of a lack of understanding around the technical aspects of the proposal, which she considered was understandable due to the volume and complexity of information. However, she considered that a lack of understanding cannot then result in a proposal having significant adverse cultural effects."
However panel chair Sheena Tepania, an accredited independent hearings commissioner, rejected that thinking.
In her detailed response to the Waste Management application, and rebuttal of the majority of the panel's views on issues technical and cultural, Tepania accepted the concerns of mana whenua and the risk of high-impact negative effects from the landfill at that site as enough to turn down the dump.
She said the panel had a duty to note that Te Awa Hōteo and Kaipara Moana were “seen not just as physical resources but as entities in their own right — as ancestors, gods, whānau — that iwi have an obligation to care for and protect”.
Technical experts who appeared at the hearing had acknowledged they had not assessed cultural effects through a cultural framework and this was required by law.
While Waste Management had submitted any finding on cultural or spiritual effects had to be based on an evidential physical effect from the landfill, Tepania disagreed. "That form of inquiry is not a cultural one and would not be appropriate where the evidential findings on 'physical effects' are based on assessments by the relevant technical experts".
She wrote: "I consider the viewpoint of mana whenua was consistent and coherent and their widely held belief is that the landfill is another stressor on this already vulnerable environment, the placement of a landfill in this environment essentially ‘tipping the scales’, further diminishing their relationship with the area and preventing them, in their mana whakahaere roles, from being able to exercise kaitiakitanga and practise their culture and traditions in a way that is consistent with tikanga and their own mana motuhake."
Tepania pointed out that offering to liaise with mana whenua over the landfill would not be a realistic condition to place on Waste Management. "I do not accept that the mitigation being offered by Waste Management is either appropriate or sufficient to address what has been identified as significant adverse cultural effects. The establishment of a Kaitiaki forum that Ngāti Manuhiri and Ngāti Whatua have already indicated they do not want and will not participate in, cannot be considered mitigation."
She found the application did not meet the requirements of the Treaty of Waitangi and Waste Management had not shown the landfill had to occur at the Wayby Valley site.
* Jean Bell of RNZ reports: Fight the Tip protest group's Māori liaison and executive member Mikaera Miru had expected the tip to be approved. He said Māori had not been listened to for 180 years and this decision showed that "nothing had changed".
But this time, Māori and Pākehā were standing side by side. "This is going to be a colossal fight with the Crown ... we have a challenge ahead of us."
Ngāti Manuhiri chair Mook Hohneck was disappointed with the decision, which would see the landfill located near waterways significant to the iwi, such as the Hōteo River which runs into the Kaipara Harbour. "It's a real issue to us. It's going to take a significant kōrero for us to decide our next action."
Fight the Tip executive member Michelle Carmichael said she was "totally gutted". "We had so much opposition against this application, 1000 submitters against it. If we couldn't stop this through that system, what other community in the country has a chance at preventing a risk to their environment," she said.
She said Fight The Tip would appeal the decision and hold a public meeting later this week.
Waste Management said it was pleased with the decision and that the landfill was critically required to handle Auckland's rubbish.
Auckland Council resource consents general manager Ian Smallburn said he understood the long awaited news would not be the outcome many have been hoping for. "We would like to reassure iwi, submitters and the community that their views and concerns were heard and taken on board by the independent commissioners who have made this decision," he said.
"These extensive conditions [in the approval] were the direct result of hearing the valid concerns put forward and ensuring these concerns were appropriately addressed."
Those seeking to challenge the decision (which is here in full) have until July 5 to file an appeal with the Environment Court.
