Cooperation not litigation urged to save fairy tern
A $135,000 legal bill to help protect the New Zealand fairy tern has been rejected, with a judge saying groups should have worked together instead.
The Environment Court action came about after a dam was illegally built at Te Arai, on Auckland’s north-east border, one of just four spots in the world where the critically endangered fairy tern breeds.
The dam was stopping the passage of ı¯nanga – fish that are a vital food source for New Zealand’s rarest bird, also known as tara iti.
But responsibility for the illegal dam fell into no man’s land, despite it being built in 2014 by Te Arai North, the developers of the exclusive Tara Iti Golf Course associated with US billionaire Ric Kayne.
The stream borders Auckland Council’s Te rai Point Regional Park but the stream bed is on land owned by Land Information NZ and the banks are owned by the Department of Conservation.
The New Zealand Fairy Tern Charitable Trust applied for an enforcement order against Auckland Council in October 2019, as it was responsible for issuing the dam’s certificate of compliance in 2017.
Judge Jeff Smith acknowledged the situation was critical, but ruled it was inappropriate to make enforcement orders against the council as the regulator.
He urged the council and other parties to work together to remove the dam ‘‘as a matter of the utmost urgency’’.
After further urging by the court in May 2020, the dam was eventually removed by Te Arai North and replaced with a bridge upstream.
But the judge said he could not award the legal costs of $45,400 the charitable trust sought from Auckland Council.
In a recently released ruling, the judge acknowledged the trust had genuine concerns about the dam and its impact on spawning ¯ınanga and the fairy terns, but said costs should lie where they fall.
The council had legal bills of $89,600 and it sought a contribution for half of the costs, effectively cancelling the trust’s claim.
The judge said the application for costs came after a ‘‘long and difficult process’’ and, while the trust’s action against the council was unwarranted, it was motivated to protect one of New Zealand’s rarest species.
The parties should have worked together rather than focus on litigation and blame, he said.
‘‘The money spent on the legal proceedings in this matter would have been better spent on finding an enduring solution to the dam problem at a much earlier stage.’’
Smith urged Auckland Council to form a multi-interest group to improve the habitat for the fairy tern and ¯ınanga of the area, as well as working with Northland Regional Council to help improve nearby Mangawhai Harbour.
The tara iti is this country’s rarest bird – just 40 adults remain.
Once widespread across the North Island and on the eastern South Island, it now breeds at only four sites: Kaipara
Harbour’s Papakanui Spit, Pakiri Beach in north Auckland, Northland’s Waipu¯ sandspit and Mangawhai sandspit next to Te Arai.
The bird has teetered on the brink of extinction since the 1980s despite protection measures by volunteers and the Department of Conservation.
Earlier this month, DOC transferred nine eggs from beach nests to Auckland Zoo for incubation, to help protect them from heavy rain and severe winds.