Waiheke Island marina opponents are taking Auckland Council, the Department of Conservation and Kennedy Point Boat Harbour to the High Court next month to try to stop work where the endangered kororā little blue penguin lives and nests.
But Kitt Littlejohn, a marina developer director, said a valid resource consent was held, a conservation management plan was in place for kororā, work was underway and ongoing litigation was frustrating.
Sebastian Cassie, chief executive of SKP [previously Save Kennedy Point] Inc, said a hearing was set down for May 14.
The Ngāti Paoa Trust Board, Huha [Helping You Help Animals] Trust, Earthcare Charitable Trust and World Animal Protection joined SKP in the action.
Justice Jeffery Venning issued a minute saying the council was this month to file documents on the marina's approval and construction management plan. Kennedy Point Boatharbour and DoC were also to file and serve affidavits in response.
Cassie said it was significant that SKP was joined by Waiheke mana whenua representatives as well as animal welfare groups.
"The application seeks to stop work 'til the protection of the kororā colony is guaranteed," Cassie said.
It was protected under the Wildlife Act, listed as an at-risk and in-decline taonga, was the world's smallest penguin and the bay was one of its habitats, he said.
A 186-berth marina and floating carpark the size of about nine Eden Parks was planned, he said.
Littlejohn said work had started weeks ago after the council last decade issued a resource consent.
"SKP might take actions to try to delay construction but at the end of the day, the company has consent and it's going to implement that and build the marina. It will be unfortunate if SKP continues to delay things but there will be a marina," Littlejohn said.
Cassie said no proper penguin monitoring and protection plan or authorisation(s) under the Wildlife Act were in place.
"SKP had no choice but to bring on urgent proceedings to protect the kororā who call Kennedy Point Bay home," he said.
But Littlejohn said: "We are listening to what the community has been telling us about how much they care about the little blue penguin. We also care about them and want to assure everyone that we have and will continue to do everything we can to protect them."
Cassie said: "Protecting our native species must come before any commercial development or interests".
Under the Wildlife Act, any intention to kill or disturb the kororā or their habitat could only be authorised by DoC, with a relevant Wildlife Act authorisation or permit, he said.
Danella Roebeck, Ngāti Paoa Trust Board co-chair, said the urgent court action could have been avoided if the developer had consulted properly with the board.
"Then they would have known that Ngāti Paoa have recently put a rāhui over the moana surrounding Waiheke, which was broken by the developer commencing work.
That rāhui also covered the habitat of the kororā, she said.
"By failing to consult with the board, the developer is in breach of the rāhui placed by the kumātua and kuia of Ngāti Paoa. The board will not sit back and allow Paoa's mana to be trampled on for the wellbeing of our taonga species, including the kororā, which are under threat by this marina development," she said.
Carolyn Press-McKenzie, of Help You Help Animals, said the project would not only disturb and affect the kororā but also their habitat.
"No marina construction work should commence until there is a proper plan in place to protect them and their habitat," she said.
Cassie said a representative of the Royal Forest and Bird Protection Society arranged a meeting earlier this month and many parties involved attended that.
There, it was agreed that no further construction works should be undertaken until a proper penguin monitoring and protection plan was prepared and implemented, Cassie said.
Littlejohn strongly disagreed with that conclusion.
"There was no agreement. Details of that meeting are being played out in affidavits and there are differences about it. We went with an open mind for a talk about the penguins. But penguins were not talked about at all."
Littlejohn cited SKP's recent failure in the Supreme Court, saying that was the highest court in the country and its ruling enabled works to continue.
"I'm surprised SKP are making such claims publicly as this is one of the two issues they are basing their new High Court case on and it has yet to be proved," Littlejohn said of opponents' statements that a penguin plan was not in place.
"No, the company does not have a permit to disturb wildlife, but this is because DoC's position is that it is not possible to grant one. Permits can only be issued to hunt, kill or relocate/handle wildlife and as that was never the company's intention, no permit was required," he said.
He forwarded a letter from DoC's operations manager Katharine Lane to prove that position.
"DoC has determined a Wildlife Act permit is not required at this stage as there is no intent to hunt, kill or relocate the kororā," Lane's letter said.