Advocates for rare bird take dam fight to court

Advocates for New Zealand's rarest bird are taking Auckland Council to court over their enforcement of an illegally-built dam

The fight over a dam built on public land by an exclusive golf course developer is going to the Environment Court.

The New Zealand Fairy Tern Charitable Trust is taking Auckland Council to the Environment Court seeking an enforcement order to remove the dam.

The trust says the dam blocks the passage of fish, reducing food for critically endangered fairy terns which nest in the area and only feed on small, live fish.

It’s estimated 36 fairy terns remain. Last year the birds experienced their worst breeding season in years, with only two chicks surviving. 

At times half of the entire New Zealand population of the birds used the Te Arai stream mouth to feed and teach young birds how to fish for themselves. They had also been seen fishing in lakes connected to the stream.

The trust says in recent years there has been no successful breeding in the area. A food shortage, exacerbated by clearing of mangroves in the Mangawhai Harbour, is one theory discussed.

Trust convener Heather Rogan said the group has been trying for years to get the dam lowered to the level it was in before being altered by the golf club developers.

The current legal action has eventuated due to frustration.

“Nothing else has worked.”

Rogan won’t comment on the specifics of the court case for legal reasons, however, earlier this year she told Newsroom’s David Williams:

“These guys have been allowed to get away with just putting a dam in on public land, in the middle of a reserve. And they’ve just got away with it; it’s just appalling.”

With the breeding season approaching, the trust wants the dam lowered to a point which allows fish passage.

From ford to weir to dam.

The Tara Iti golf course is named after the Māori name for fairy tern. It's owned by American billionaire Ric Kayne and is classed as one of the top golf courses in the world. Membership is by invitation only with fees rumoured to be in the six-figure range.

At one point the golf club developer Te Arai North did own the land the dam is on, but as part of a deal allowing it to build 46 homes, it gave 197 hectares of land to the Auckland Council to be used as a public park.

By the time the land with the stream was made public land in 2015, Te Arai North already had consent to take water from the stream for use in its golf course development.

A ford had existed on the stream for many years. It was just enough to allow vehicles to cross the stream when the water level was low.

An affidavit from local trapper Reg Whale describes the ford as being created by foresters by “dumping several loads of a metal of coarse grade into the stream bed” to prevent vehicles from sinking into the mud.

There were a few rocks, of around 30cm, but the ford didn’t obstruct the flow of water or stop fish from travelling up or down the stream.

After the golf club developer became involved the ford went through two makeovers.

Changes started occurring in 2014 when more rocks were added to the ford. Photo: Sioux Plowman

The locals noticed some changes to the ford when the land was owned by Te Arai North. More rocks were added, sand bags appeared, then the sand bags were replaced with larger rocks.

“That gradually reduced the flow through and over the rocks, which I call a weir.”

Changes, caught by locals on camera, continued even after the land was not owned by the developer.

“I’m not sure when the structure reached the status of a dam, but it was certainly in place by the winter of 2016.”

Diggers added large boulders, rock walls were constructed along the stream banks, the stream was narrowed, and the once modest ford grew considerably in height - illegally - into a dam.

In 2016, when the land was public land significant work was done by Te Arai North and a dam was constructed. Photo: Affidavit of Sioux Plowman

In Whale’s opinion: “Fish had no chance of going over or through those rocks.”

His affidavit says whitebait and mullet were observed “congregating at the base of the dam looking for a way forward and unable to combat the force of water to go upstream to breeding grounds”.

He speculates the ford was transformed into a dam for two reasons. Low stream levels in summer months may have made it hard to draw off the consented amount of water in summer. Also, high tides could wash salt water into the stream. 

In March 2017 Auckland Council told Te Arai North the unauthorised work had to be removed and two abatement notices were issued. However, over the following months there was an about face and the council gave a certificate of compliance.

Initially the certificate said the dam had to be reduced to the height it was in 2013, later this was changed to “permitted level”. The council appears to be satisfied this has occurred.

The trust is not satisfied.

The dam in 2019. Conservationists worry fish will not be able to get upstream to spawn. Photo: Affidavit of Sioux Plowman

The trust’s application to the Environment Court asks for an enforcement order to return the dam structure to 2013 levels, remove rock walls placed along stream banks, and to replant the banks.

The trust says the construction of the damn and the rock walls breach the Resource Management Act and do not comply with rules set out in the Auckland Unitary Plan.

Why the council?

Auckland Council has opposed the trust's application for an enforcement order saying it’s not the right entity to bring before the court. Instead, it suggests Te Arai North or the Department of Conservation should be the respondent.

The reasoning is if the trust wins the case, it’s Te Arai North that will need to complete work to return the dam to its 2013 ford-like height.

It also points out the marginal strip of land bordering the stream (and the stream bed) is technically Crown land, so it lacks access rights to carry out works.

The trust has previously approached the Conservation Minister Eugenie Sage about the dam. In a letter she responded it was a matter for Auckland Council, not LINZ or DoC.

The hearing is set to be held early October.

Read more:

Exclusive golf club’s ironic bogey

NZ’s rarest bird on the brink

The fence the billionaire built

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