A few years ago, I wrote a blog about what it means to be a Moa Pointer. As much as I waxed lyrically about the “best sunset spot in town” and our amazing, if often endangered natural taonga, I have to highlight my prescience when writing these words: “It is important to note that not going through the fast-tracked board of inquiry process is an admission that they know they would fail. Going through the more protracted Environment Court hearings has nothing to do with a ‘more open and transparent process’ and everything with buying themselves time and bleeding the opponents dry due to the high costs associated with fighting a project like this through the Court. It also means many more years of this existential threat hanging over our heads, which is stressful in many ways – emotionally, financially and physically.”
Why is this so prescient and what has being a Moa Pointer got to do with the Environment Court?
Well, as we found out in yet another court hearing yesterday, this damned process will likely drag on for at least another 1.5 years – a total of 4 years since the airport first lodged its consent application – before we even start hearing evidence! Damned, even by Judge Dwyer who wryly said that the “road to hell is paved with good intentions” when commenting on his decision to grant extensions of the case to the airport in the past. He also said that “There will be no satisfactory outcome when a final decision on the Wellington Airport extension resource consent is released” – meaning that either the airport, or the community will be upset with his decision to strike out (or not) the application.
To be honest, I am not so sure that that is indeed the case. Even though the airport argued against our motion to strike out – displaying the usual arrogance and contempt for the affected environment, residents and communities fighting to preserve this special place in Lyall Bay – it certainly did not put much effort into proving it was serious, or why they needed to continue with this farce for another couple of years. In fact, the laziness with which they approached this hearing was made abundantly clear when they provided only one “technical” affidavit saying all their reports based on data collected in 2014 were still “tickety-boo” (as Judge Dwyer joked). This came from a planner based in Dunedin who neither had any of the technical expertise to comment on the highly technical 5000 pages of report data, nor much, if any knowledge of the local environment in Lyall Bay – and the many changes that happened here since 2014.
What was worse was that the airport’s counsel took it upon herself to ask to strike out the local resident’s affidavits, “because they are just opinions (of 3 residents with expertise in marine ecology and anthropogenic impact assessments, local planning issues, and surf impacts) and over exaggerate their prejudice”. She also thought it wise to quip that we “didn’t have to waste our time talking to the media or writing blogs, all you had to do was read the monthly updates from the airport.” As Radio NZ pointed out, this dismissive comment drew heckles from us Guardians in the audience. And rightfully so.
Our wonderful and brilliant lawyer James Gardner-Hopkins, who is also a magnificent dresser btw!, steered clear of any such direct barbs against “his friends” in the opposing counsel. In fact, he even helped argue their case when Judge Dwyer made it clear that the court took any potential issue for new residents and affected parties not being able to partake in the court case (as submissions for s274 parties had already closed over a year ago), very, very seriously. Unfortunately, there is a provision in the Act, as James highlighted, that means that new affected parties can become new s274 submitters. Fortunately for us (but not for the airport and the court’s admin system), this means that every Wellingtonian living along the long traffic route proposed for transporting infill and rubble, for several years, every 2 minutes, night and day would now be eligible to add their name to the list of parties who want to be heard by the court.
The airport’s counsel, immediately scoffed at the notion that many new s274 submitters would clog the court process up further (we say: Bring it ON!). It also said it would be “easy” to provide updates to ALL 25+ technical reports (by their authors or, actual technical experts) within 2 months of receiving consent from the Civil Aviation Authority Director General (DG). Seeing it took them many, many years to provide these, largely half-baked reports based on very limited data (because Cook Strait is just too tempestuous to enable easy data collection), and that they have not once actually provided any information, including the “monthly” updates required by court, on time, all this posturing sounded a lot like “fake news”.
It was really heartening to hear Judge Dwyer finally refer to the “Elephant in the Room” (climate change, what else?), which the airport in its infinite wisdom managed to ignore almost entirely in the whole 5000 pages of “technical evidence”. Seeing their counsel said that the economic evidence was probably the most important evidence for the process – despite it being no more than a cost-benefit analysis, largely decried by independent experts, and based on less science than voodoo or astrology – it bears noting (as the Judge did), that nowhere in their reports do they show any realistic impacts on costing for a project that, at their own admission, is likely not going to be built until 2030-35. Do they really think that international air traffic to Wellington will not be affected by global measures to combat runaway climate change? Yet nowhere in their costings or engineering models and reports did they account for the massive changes we can expect to happen over the coming decade.
In addition, our political leaders – even in our Council led by the “Big 8 ideas” Mayor Lester – certainly do not seem to have quite the same appetite to throw hundreds of millions (having so far already wasted around 13+ million dollars) of rate- and taxpayer dollars at a multi-national corporation which is already responsible for 25% of this hopeful “Low Carbon Capital’s” greenhouse gas emissions. We do not believe that the new Council, after next year’s elections in which this will surely become a topic of interest, will want to entangle the already hugely complex and contested Ngauranga to Airport transport corridor with the airport’s rubble trucks clogging up any improvements. Indeed, the Council was conspicuous by its absence at the strike out hearing.
We believe the airport should have to re-apply for consent once the safety issue is finally addressed – and there is a good chance:
- the DG will need to undertake a rule change, which could take years;
- the DG will disagree with the airport that its short RESA is perfectly safe and move in line with international obligations and the Supreme Court decision; and
- even if he does agree with the airport, that there will be another judicial review (the last one took over 3 years and ended up with a loss in the Supreme Court for the airport).
Either way, the chances for them to get the unopposed go-ahead on a short RESA in May 2019 is close to nil.
It was really quite offensive for the airport’s counsel (and also the Judge, by contesting that the airport would simply “just apply again, in June right after the DG decision”) to dismiss the continued stress to our communities as “an exaggeration”. Yes, this Damocles Sword will hang over our heads until the airport and its surrounding access routes (and our homes) are under water, but there is a huge difference between being forced into years of court litigation vs just watching the airport’s latest chicaneries, closely. It is very costly to retain counsel, even if it is just to monitor the airport’s infrequent and insufficient reports (and sometimes we have to pay our counsel to try and get more information from the Ombudsman). It was very costly to find experts and get them to read the technical reports. It will be more costly to bring them up-to-scratch years later and ask them to comment on updated reports. There definitely is such a thing as litigation fatigue, and Judge Dwyer agreed with James on that. The longer a court process is dragged out, the more likely it is for the community to give up, to move away, to sell, or even die. And this seems to be what the airport wants – outlive us all by drowning the opposition in endless litigation.
In contrast a fresh application, if it has to happen, will provide a rejuvenated process, with all the publicity that comes with it, will mean new submitters and opponents will find out about the updated facts, we can look afresh at what has changed over the last 5+ years (socially, politically, economically, environmentally), we can start having transparent, public discussions about the need for such an extension, anew. Otherwise, all we get is a notice in the newspaper that new submitters can join the living dead, aka the stale court proceedings, which will have already dragged on for almost half a decade by then.
Enough is enough! We have played by the rules, paid a very heavy price and tried to do everything that is right to follow good process. The airport has never repaid us, or the court, with the remotest courtesy to do so as well. Their continued cries of victimhood (whilst denying the real victims as such) because it was all so “unforeseen” are a cruel joke. This entire debacle is 100% the airport’s fault: had they waited until the judicial review over the safety issues was completed, this court process would never yet have started.
We would have had 4 years of peace, not have had to waste tens of thousands of dollars on lawyers and experts, not having to use our precious spare time to pour over thousands of pages of (now outdated) technical data, squabble with politicians and be attacked and smeared in the media as NIMBYs and sell-outs… all of which at great personal costs. The only victims here are the South Coast community and its users, not the airport, and not the politicians who threw millions of ratepayer dollars at Infratil and Singapore Airlines, with nothing to show but a dying white elephant.