In December 2020, the Māori Appellate Court (MAC) handed down its judgment in a case involving Ngāti Paoa, the MAC found that s30 representation orders issued by the Māori Land Court (MLC) are binding on Councils. The Māori Appellate Court went on to find that “as a matter of law” Auckland Council acted unlawfully in failing to comply with a s30 order that granted the Ngāti Paoa Trust Board (the Trust Board) mandate to represent Ngāti Paoa. The finding of the specialist jurisdiction Māori court gave clear guidance to Councils throughout Aotearoa, and sent a strong message as to the “binding” effect of a s30 order on Councils.

That clarity and certainty has been thrown into disarray, following a decision of the High Court in Auckland on Friday, 29 April 2022 by Her Honour Justice Anne Hinton. The High Court case also involving Ngāti Paoa was a Judicial Review in relation to the controversial marina being developed by Kennedy Point Boatharbour Ltd (KPBL) at Pūtiki, Waiheke Island. Contrary to the finding of the MAC, Justice Hinton found that Auckland Council had not acted unreasonably or unlawfully despite Auckland Council’s failure to comply with the s30 Order. Her Honour went on to find that an iwi authority is able to transfer its representation status - although the Trust Board denies ever having transferred its s30 mandate to any other entity.

Chair for the Trust Board, Danella Roebeck says “The Trust Board has always put mana before money. The mana of our iwi and the mana of Ngāti Paoa is what is most important to us. While we are disappointed by the decision of the High Court, we stand tall and proud because that is what our iwi needs right now. It is especially disappointing that a pakeha court didn’t choose to respect and follow the finding of Aotearoa’s Maori specialist court, by also acknowledging Auckland Council’s unlawful conduct. The High Court finding sets a precedent that is less certain and provides less protection for iwi and iwi authorities. Unfortunately, as Māori we are use to getting knocked back and knocked down by pakeha systems that don’t fully understand tikanga. But that has only forced us to be stronger, to keep getting back up and fighting for our iwi and for all Māori”.

The Trust Board, who opposes the Kennedy Point marina development was also seeking an order quashing the marina resource consent which was granted without consultation with the Trust Board. Ngāti Paoa are tangatawhenua of Waiheke Island, and Pūtiki Bay holds special significance for Ngāti Paoa. The Trust Board has prepared a Cultural Values Assessment which details the significant adverse impacts that the marina will have on Ngāti Paoa and Pūtiki Bay.

In her judgment, Justice Hinton acknowledged that “there is no doubt as to the genuineness of the Trust Board’s position. That position, particularly in terms of the opposition to the Kennedy Point marina, is supported by many.”

“Even the Courts have acknowledged this is Aotearoa’s most unwanted and unwelcome marina. If the Developer goes ahead with the marina, we have no doubt that the marina will be cursed, tapu. Without the support and blessing of Ngāti Paoa and the Trust Board, the marina will be another unwelcome invader wrongfully occupying our precious moana. We call on the developer, Kennedy Point Boat Harbour Ltd and Auckland Council to listen to our iwi, and to listen to the people of Waiheke - we do not want this marina, we do not need this marina. Shoo, go away and let our Pūtiki, and tikapa moana rest and let her heal.” says Mrs Roebeck

When asked whether there are any further steps Ngāti Paoa or the community could do to stop the marina from going ahead, Mrs Roebeck response was short and sweet “Māori work in mysterious ways, to borrow from a song, we get knocked down, but we get up again, cause you’re never gonna keep us down”.

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