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Pūtiki Bay protesters lose injunction challenge: Waiheke Island marina developer wins
February 24, 2022
The High Court has rejected a challenge to interim injunction orders granted against Waiheke Island’s Pūtiki Bay anti-marina protesters last year, refusing to overturn its ruling.
In a new decision out on Wednesday, the marinadeveloper represented by McVeagh Fleming’s Craig Andrews and Dylan Pine has succeeded in its defence of injunctions it won against 32 protesters who tried to stop the construction project from proceeding.
In November, the marina development business headed by Tony Mair asked the court for the injections after ongoing, aggravated trespass activity by protesters. The business won that case.
Their action in the construction zone put them, company personnel, contractors and the public in danger, Kennedy Point Boatharbour argued.
The court said the company had an arguable entitlement to exclude people from that active construction areas to ensure public health and safety.
Construction of the marina continues but temporary structures in the bay mark the ongoing presence of protesters.
Justice Wylie granted Kennedy Point Boatharbour’s application for interim injunctions against the protesters which said there was “an urgent need” to act because pandemic restrictions were being relaxed.
Affidavits were presented saying protesters were planning action so the developer wanted to head that off in advance.
Mair and Kitt Littlejohn’s business went to court via McVeagh Fleming to win “without notice” injunctions to restrain 30 named defendants and two partially named defendants from trespassing within 20m of parts of the coastal marine area where it is building
Unhappy with the ruling, the protesters went to the High Court at Auckland last month to argue for leave to bring a case against the orders.
The Protect Pūtiki Ngāti Poa-led group expressed strong dissatisfaction with the injunctions and vowed to overturn them because, they said, they were illegal.
But now Justice Ian Gault has refused to overturn Justice Ed Wylie’s November decision.
David Bullock for the 12th defendant Megan Manuka argued against the decision in a hearing on January 19.
In a high-profile move, the protest group had proceeded that morning en masse from the ferry terminal on Quay St to the court on Waterloo Quadrant.
Bullock focused on instances of Kennedy Point Boatharbour’s conduct, which he argued contributed to the escalation of the protests. He cited the developer’s breaches of health and safety and its overreach in asserting its legal rights.
Protester Emily Māia Weiss had her heru – a traditional and sacred Māori hair comb – knocked from her hair and removed by police, he said. This was a breach of tapu and a cultural and customary infringement.
“Another protester was injured and another had a seizure,” the new decision said.
Weiss, a relative of Manuka, believed as a kaitiaki of Tangaroa that a spiritual and cultural cleansing was required. She performed a karakia on the rock wall and swam out into the area of the bay. She was trespassed, Bullock said.
Events were cited in June and July where a protester was swimming to the buoys surrounding the active construction zone. A boat controlled by Kennedy Point Boatharbour’s agents drove into those buoys, pushing them and water into her. She ended up on the inside of the buoys where a boat was driven at her, hitting and injuring her, Bullock told the judge.
He said there were Te Tiriti o Waitangi and tikanga Māori issues at play and that Kennedy Point was aware of them. The judge accepted such issues were indeed relevant.
But the business filed affidavits challenging the characterisation of those incidents.
The judge said even with some video evidence, he could not resolve factual disputes about individual incidents nor draw any inferences about the conduct or intentions of those involved.
Justice Gault said standing bank and considering each of the issues, he considered that overall justice favoured maintaining the interim orders which appropriately balanced Kennedy Point Boatharbour’s rights and the rights of defendants and others to engage in lawful protest in a public place and exercise the rights of mana whenua in Pūtiki Bay.
He, therefore, dismissed Bullock’s application from his client Manuka to set aside the orders.