The Whangamata Bar is one of New Zealand’s premier surfbreaks. The “Bar” is a world class sand bar surfbreak.. The “Bar” was the first surfbreak to enter New Zealand’s environmental management systems. What we know from this example is that no surfbreak in New Zealand is safe due to this precedent in New Zealand’s environmental law.
The sandbar is at the entrance (tidal ebb delta) to the Whangamata harbour, one of the shallowest of many North Island east coast estuaries. About 1 kilometre inside the Whangamata estuary, a river, the Moana anu anu, joins what is known as the Whangamata estuarine system. At the convergence of the waters of the Whangamata and Moana anu anu, is a shellfish bed of significance to the local Maori tribe, the Hauraki Iwi.
Close to the entrance of the Moana anu anu, in the lee of a road causeway, developers are carving out a marina on intertidal flats. These intertidal flats are completely dry at low tide. The marina basin is a totally artificial hole.
Next the developers need to carve out a 1.5 kilometre canal in sand flats to get access to the channel that will allow boats to reach the open sea. This canal will require constant dredging to maintain this access. The marina and canal construction will take out 157,000 cu metres. The developers have consents to take out 6,000 cu m per year for 35 years, or 210,000cu metres. All up this allows, 367,000 cu meters to be removed, only 1 kilometre from a premier world class sandbar surfbreak.
Surfers maintain that the area where the marina canal is to be constantly dredged is a sand reservoir for the Whangamata Bar.
From the beginning surfers had said the marina idea is not worth the risk to the outstanding wave quality of the Bar. The risk is that it will become a sectioning or a close-out wave instead of the long peeling wave it is currently famous for.
Surfers went into the whole legal argument over the marina unorganised. The surfers that entered the legal process have lost nearly every battle, and come out organised. If the New Zealand legal system would not protect the Whangamata Bar, then is any surfbreak in New Zealand really safe? A decision of the Environment Court in 2002 has become a precedent in New Zealand Case Law. This means that any Court case where a surfbreak is at risk lawyers for the developers can cite the 2002 decision. The Thames Coromandel District Council and the Waikato Regional Council use this decision to ignore Surfbreak Protection’s concerns.
Here is a brief history of the “Bar” (and surfbreaks) within the New Zealand environmental management system.
1997 – Resource Consents hearings are heard by Waikato Regional Council. The Whangamata Board Riders put in a submission opposing consents to marina developers. Consents granted.
1998 – Resource Consents hearings are heard by Thames Coromandel District Council. A longtime Bar surfer and a Whangamata surfboard maker, Paul Shanks, makes a personal submission against the consents, “as it will affect the Bar” – .The Council rejects the Surfer’s argument on the spot. A month later consents are given.
1999 – The Department of Conservation (DoC) appeal both consents. The marina developers approach the then Minister of Conservation Dr Nick Smith who directs the Department to reach a “settlement” with the developers. DoC pulls out of the Case.
1999 – The Hauraki Iwi appeal both Councils consents to the New Zealand Environment Court (NZEC) on the grounds that the Consents will affect the shellfish bed and the Whangamata salt marsh (a freshwater wetland which floods periodically with saltwater on every tidal / moon cycle). This wetland is important to surfers because it acts as a filter for much of the stormwater from the Whangamata township. The marina developers want to fill in the wetland to make it into a carpark.
2000 – The Hauraki Iwi bring an “expert surfer witness” to the NZEC. Paul Shanks introduces surfing and the Whangamata Bar to the NZ legal system. The Environment Court Judge rules that the Regional Council must make retrospective Plans to allow the marina consents to proceed. About surfing, the Judge rules that the argument that removal of 367,000 cu meters of sediment will affect wave quality on the Bar are exaggerated.
This ruling now becomes the precedent of NZ case law, on sand sediment cycles, surfing and what is exaggeration.
2004 – The Waikato Regional Council take 3 years and about $NZ3 million to change the Councils Plans for the marina developers. The Court resumes. The Hauraki Iwi try to bring back the Surfers argument but the Council and marina developers argue that under case law this is an exaggeration.
The Judge rules that the Thames Coromandel District Council must obtain retrospective Roading Consents.
2005 – The District Council issues the retrospective roading consents for the developers and the Court resumes. Again the surfing argument is raised but ignored due to case law. The Court gives the consents. Large coastal consents under NZEMS are recommendations to the Minister of Conservation by the Court. The Minister can turn down the recommendations.
2006 – Surfers now are starting to get organised and begin a campaign to lobby the Minster to reject the recommendations of the New Zealand Environment Court. The campaign goes global and the biggest traffic of emails from all over the world goes into the NZ Parliament. The Minister turns down the marina developers application.
2006 – The marina developers and the Thames Coromandel District Council appeal the Ministers Decision to the New Zealand High Court. Part of their case is that the surfing argument is an exaggeration. The High Court rules the Minister of Conservation should not have turned the marina down. The Minster of the Environment is then handed the final Decision. This Minister mindful of the Surfer campaign writes to the Environment Court and asks for an opinion on the Surfing argument. The Environment Court replies that surfers and their concerns are exaggerated. The Minister makes a compromise and allows the marina to go ahead but it must undertake monitoring of the Bar.
However the required monitoring has no mechanism that if the Bar quality does deteriorate the marina has to shut down dredging.
2008 – Both Councils secretly grant another 9 consents to the marina developers.
A protest camp is set up on site for 20 days in July by Hauraki Iwi and Surfbreak Protection Society asking that the consents are Publicly notified. The Councils and Department of Conservation who own all the land (the marina developers own no land or foreshore) bring in rules to stop access to the Public over an 8-hectare coastal area. This allows the marina to start by putting up a security fence and placing trespass notices on the Whangamata members of the Surfbeak Protection Society Committee. On 1st September the developers bring in the heavy machinery and start carving out the initial 157,000 cu meters of sand and dump it on the wetland.
February 2009. The wetland has been filled in and the marina basin has been partly completed. This wetland historically purified the natural stormwater of much of the Whangamata township and contributed to the excellent water quality at the Bar.
The Marina Society compensatory wetland that the Environment Court asked to be built has failed. The rushes they planted have all died.
It has since been found that the area destroyed contained one of the largest mainland colonies of Oligosoma Moko Skink in New Zealand. The species is considered sparse. They are known to Maori as Mokomoko, and are considered sacred. 10 have been killed and 250 reptiles have been removed (if you are to believe the marina developers). The Whangamata colony was one of only three thriving colonies left on the whole of mainland New Zealand.
The Councils and the Department of Conservation and the Environment Court refuse to investigate how such an important part of New Zealand’s reptilian history has been wiped out without the Councils, DoC and the Environment Court even knowing they were there.
The destruction of a viable Moko Skink habitat and the dying off of the planted wetland gives no confidence that the Marina Society and the Councils are in control of the marina development’s outcomes.