Win in Court

Earlier this week we received Justice Wylie's decision dismissing the High Court appeal by the Independent Maori Statutory Board against the decision made by Auckland Councillors to accept the Independent Hearings Panel’s recommendation to remove the ‘Sites and Places of value to Mana Whenua’ overlay from the Auckland Unitary Plan. 

You can read/download the decision here as a PDF.  Our media release calling for the Council to refund cultural impact assessment fees is below.

Media release:

PAYMENTS FOR CULTURAL IMPACT ASSESSMENTS SHOULD BE REFUNDED

10 MARCH 2017
FOR IMMEDIATE RELEASE

Pro-democracy group, Democracy Action, says the High Court's dismissal this week of the appeal by the Independent Maori Statutory Board against the decision by Auckland Councillors to accept the Independent Hearings Panel’s recommendation to remove the ‘Sites and Places of value to Mana Whenua’ from the Unitary Plan, gives every reason for the Council to refund amounts paid for the unnecessary and costly cultural assessments. 
 
Since September 2013 Auckland property owners with one of these purportedly sites of value on or near their properties have had to seek cultural impact assessments (CIAs) from iwi when undertaking more than minor earthworks.
 
“Money paid to iwi for CIAs must be refunded”, says Democracy Action spokesperson, Lee Short.
 
“The Court’s decision is further confirmation that the Council inflicted additional costs and uncertainty on property owners for little or no justification. For many, it meant paying thousands of dollars to iwi representatives for cultural impact assessments, with no safeguards in place to protect the applicant from the risk of exploitation. Now that the process has been abolished, those applicants should be entitled to full reimbursement from Auckland Council”.
 
“The decision from Justice Wylie may also cause problems for the Government, in that it highlights the potential flaws of ‘co-governance’ type arrangements in relation to resource consent approval processes. The Resource Legislation Amendment Bill, which is currently before Parliament, broadens the scope of ‘Iwi Participation Arrangements’ to cover consenting and monitoring. The proposed law would impose on all Councils special rights and privileges for iwi in regards to resource consents."

"The Government should take note of Justice Wylie’s decision and make substantial changes to the Bill if the legal problems experienced by Auckland Council are to be avoided.”
 
“There must be strong safeguards in place to prevent councils from outsourcing consent decisions to unaccountable iwi representatives, with no appeal or review safeguards.”
 
NOTES FOR EDITORS:

Democracy Action Incorporated appeared as one of the interested parties in the Independent Maori Statutory Board’s appeal against Auckland Council’s removal the 3600 Sites and Places of Value to Mana Whenua, and references to cultural landscapes, from the Unitary Plan.
 
Democracy Action submitted that the decision made by Auckland Councillors was lawful and proper, given there was little evidential basis for the initial inclusion of these 3600 sites and the resulting obligations placed on property owners.
 
Between the inclusion of the sites in September 2013 and their removal from the Plan in August 2016, the Council required resource consent applicants with a site of value either on or within 100 metres their property to obtain iwi sign-off on whether an application required a CIA.
 
Auckland Council confirmed at various times that the sites of value were not actually visited during the development of the Unitary Plan, not before it was notified nor during the hearings process. Nor were affected property owners notified. Instead, the Council’s decision to introduce the sites was based on desktop analysis.  By the end of the hearings process 2,213 sites remained. The Council had found many inaccuracies, including over location, the extent of the sites, whether they actually were archaeological sites or just natural features, or whether they were even of value to mana whenua. 
 
In his decision Justice Wylie found that “at best, only some 140 of the 2,213 sites proposed were the subject of specific submissions and evidence from mana whenua, and that only 16 were supported by detailed evidence at the hearing”.

 
ENDS

Media release: Unitary Plan committee delegation risks legal challenge

TUESDAY 2 AUGUST
FOR IMMEDIATE RELEASE

Auckland Council’s decision last Thursday to delegate the first round of decisions relating to the recommendations of the Auckland Unitary Plan Independent Hearings Panel to the Auckland Development Committee is inconsistent with legal advice previously tendered, which advised Councillors of the need to keep ‘an open mind’ in relation to the Unitary Plan, and against consulting with members of the public.

Lee Short, Chairman of Democracy Action, says “The Legal and Risk team at Auckland Council have warned councillors not to engage with their constituents about the Unitary Plan, citing fairness, the need to keep an open mind, and the preservation of the integrity of the public hearings of the Independent Hearings Panel over the last two years. Despite this, the Council has chosen to ignore those considerations by handing over consideration of the Unitary Plan to the Auckland Development Committee, a body which includes two unelected members of the Independent Maori Statutory Board.”

“The Independent Maori Statutory Board fail any test of having an open mind on the Unitary Plan. It even made submissions to the Proposed Auckland Unitary Plan – the very thing Councillors were advised against doing.”

“New Zealand law prevents bodies or individuals from submitting on planning issues, and then being the decision-maker on the outcome of the plan. That appears to be exactly what the Maori Statutory Board is being allowed to do.”

“The obligations on Councillors not to have pre-determined views must surely also apply to the members of the Maori Statutory Board. Otherwise, it’s one rule for the those democratically elected, and one rule for those who are appointed.”

“Participating in the Council’s decision making process, after making a formal submission on the same issues before the Panel, is highly likely to create a legal risk to the final decisions on the Plan.”

“New Zealand case law has found decision-making by local authorities should be free from bias. By compromising the final decision making process the Council is running the risk of being challenged by way of a judicial review initiated by disgruntled citizens”

“The members of Democracy Action find the Council’s hypocrisy astonishing. Our lawyers are writing to the Council’s Chief Executive, and we are seeking advice in relation to the effect an urgent judicial review would have on the Unitary Plan process.”

“If any decision should rest solely with those democratically elected, it is the Unitary Plan. To not only run roughshod over democracy, but also undermine fair process considerations shows that the Council’s decision making process on the Unitary Plan is fundamentally flawed.”

ENDS

Media release: Common sense prevails in Auckland

THURSDAY 28 JULY
FOR IMMEDIATE RELEASE

Democracy Action is applauding the recommendations of the Independent Hearings Panel to delete Cultural Impact Assessment requirements, and the scheduled “sites of value” from the Auckland Unitary Plan.

"We're pleased to see that the Panel recognises the folly of adopting such a flawed system, a system which was in danger of undermining public support for sites of significant historical and cultural heritage," says Lee Short, Chairman of Democracy Action.

"We were not the only ones who saw the devastating impact these clauses would have on the property rights of Aucklanders. Over a thousand people also submitted against the Cultural Impact Assessment provisions initially. "

“I want to thank all of our supporters, and the people who have worked tirelessly to oppose these proposals,” says Mr Short.

"We're very pleased to see that commonsense has prevailed”.

ENDS

Submissions to PAUP oral hearing

The Democracy Action team have been busy preparing and presenting their submissions against the the Mana Whenua provisions within the Proposed Auckland Unitary Plan.

The documents below should serve as a great resource for people interested in learning more about the implications for Aucklanders of the Mana Whenua provisions, and why they should be opposed.

We believe in protecting heritage sites throughout Auckland, but think that the process adopted by the Council should be amended in a way that would provide more certainty for property owners, iwi and the Council.

Please click on each of the links to read the full documents. 

 

Submission on Mana Whenua sites, Lee Short, 4 June 2015 
This submission provides an overview of the problems associated with Auckland Council’s scheduling of sites that have not been verified and the efforts of Democracy Action to catalogue sites that have been found in ridiculous locations including landfills.

 

Summary of Legal Points, Franks Ogilvie, 4 June 2015
This summary of legal points details how the Sites of Value to Mana Whenua overlay has been incorrectly given immediate effect. The document proceeds to request a declaratory judgment from the Environment Court on the legality of the SVMW overlay, given that there was not adequate consultation with those affected by the changes prior to their implementation.

 

Points Further to Evidence, Franks Ogilvie, 4 June 2015
The document from Franks Ogilvie lays down the case that Auckland Council has acted in contravention to the rule of law in their drafting and implementation of the Proposed Auckland Unitary Plan.

 

Summary of Proposed Amendments to Chapter B, Franks Ogilvie, 20 November 2014
These proposed amendments suggest an alternative to the Cultural Impact Assessment process for Sites of Significance and argues for the removal of Sites of Value from the overlay. This alternative process would ensure greater certainty for property owners, iwi and the Council.

Iwi Claims for Special Treatment over Water

Currently the Government is holding a series of talks with the Iwi Leaders Group, who are demanding proprietary rights to freshwater.

In September 2012 the Maori King Tuheitia Paki called over 1,000 tribal representatives to Ngaruawahia to discuss the ownership and control of New Zealand’s water. He declared, “We have always owned the water”.

More information (NZ Herald)

Maori_King.jpg

Water is a precious public resource, a collective asset that we hold in common. Democracy Action believes that the administration of water must have the public good as its primary aim. All the citizens of New Zealand are stakeholders in this resource, and all citizens should be consulted on its management and allocation. There should be no backroom deals with any sector of the community, whether at the national or regional level.

The control of the freshwater resource should remain in the public domain – in the hands of our democratically elected representatives. No government has the right to secretly transfer management or allocation rights to a selected group – iwi or anyone else.

Please see below links to a selection of articles regarding this issue:

Maori in freshwater bid, The Sunday Star Times, April 12th 2015
Doesn't water come from the sky? Hon. Judith Collins, MP for Pakuranga, April 11th 2015
New Zealand First opposes special privileges over water rights, Rt. Hon. Winston Peters, April 14 2015
Race-based water rights a step closer, Dr. Muriel Newman, New Zealand Centre for Political Research, 19 April 2015
Water yours mine or nobody's, Judge Anthony Willy, New Zealand Centre for Political Research, 19 April 2015
David Round: Questions of water rights and ownership, BreakingViews.co.nz, 21 April 2015
Mike Butler: Key delegates water give-away, BreakingViews.co.nz, 12 April 2015

Site of the week 2

ID#3172, Waiuku

The mana whenua provisions don’t just affect sites in downtown Auckland.

One of our eagle-eyed volunteers has tracked down ID#3172, which is right in the middle of a new housing development.

ID#3172

Our volunteer documents: 

“The GPS coordinates lead me to a site that is on a fairly new sub-division (private land). It is within maybe 5m of a section that already has a new house on it, along with a number of long term existing houses. The section the site is on has no building activity on it yet. There has been some reshaping of the land as part of the sub-division work. There were no plaques, monuments or cultural artifacts nearby.”

Given that Bob Jones needed to consult 13 iwi just to replace a window, we can only imagine the lengths these property owners will have to go to.

Do you know of any other housing developments affected or delayed by the presence of a site of significance to mana whenua? Email us what you know.

Site of the week 3

ID#205, East Tamaki

Protected dump

Our volunteer documents:

“The site is on top of the hill that is the former Greenmount municipal landfill that is being remediated by Auckland Council and will become a park with sweeping views. The area is a huge 54ha, bounded by Harris, Smales and Springs Rds. It was bequeathed by the late Mrs SJ Lushington, to be set aside for public recreation purposes. But Manukau City Council used it as a scoria quarry and then a dump instead. It was taken over by an entity of the former Auckland Regional Council. Dumping stopped in 2005. Remediation deposits of up to 1.5million cubic metres of fill are being laid to meet “a final contour level”.

According to a council hearing report (under the RMA, dated July 23, 2014), it has two sites of Maori archaeological origin (sites 206 and 3056), being the former Matanginui Pa site, and a midden near the northern boundary. Judging by the enormous filling activities over decades, it seems unlikely there is any surviving physical signs or features of the pa.”

Remember that thanks to the mana whenua provisions, any earthworks in proximity to a site of significance or value to mana whenua will now need to be checked off with iwi! (For more information click here)

Apparently the Council consider a rubbish dump worthy of protecting!

Site of the week 1

Site of the Week

ID#2028, Mount Eden

The mana whenua provisions don’t just affect homes and businesses, but also community sports groups.

One of our volunteers took the time to track down site #2028, which is nestled somewhere on, in or below the Auckland Table Tennis Association building in the Withiel Thomas Park, as the map shows.

Auckland Table Tennis

Our volunteer got up close to see if there was anything significant.

Volunteer photo

His report:

“The site appears to be situated on top of the Auckland Table Tennis Association building, which does not appear to be of any cultural significance. The Table Tennis building is sisutated within the Withiel Thomas Park. The park was donated to Auckland by Professor Withiel Thomas in 1890. Professor Thomas was a geologist, biologist and educationalist from Cheshire, England. He is known for his early research into the life cycle of the sheep liver fluke. There is no indication that he was Maori or regarded as being mana whenua.”

Community sports groups are usually run on a pretty tight budget. We can only imagine how they would fare if they had to pay mana whenua groups just in order to do rennovations.

Do you know of any other sports or community groups impacted by the presence of a site of significance to mana whenua? Please get in touch.

Mana Whenua site map

Below is a map of a number of sites that Democracy Action's army of volunteers have been busy documenting.

Sites with red markers have been completed, whereas green markers indicate that they are free to investigate.

If you would like to join our ranks of volunteers to assist Democracy Action with the documenting of these sites, or have another skill that can help us with this campaign, please click here.

Email tool launched

We’ve launched an online tool for Aucklanders and other concerned New Zealanders to tell Len Brown and the Council what they think of the radical Mana Whenua provisions that affect up to 18,000 Auckland property owners.

We think that concerned citizens need a way to make their voices heard by the Council’s decision-makers.

The response we have received so far has been fantastic with our supporters having already sent several thousand emails to Auckland’s representatives.

These Mana Whenua provisions have not gone through the standard submission process and infringe on every Aucklander’s basic property rights. They establish a significant financial burden on property owners and provide another obstacle on future land development.

If you disagree with these imposed requirements that mean consent from 13 iwi is required for things as rudimentary as replacing a window, click here to email Len Brown, the councillors and your local board members.

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