Brian Rudman: It's our turn to save volcanic cones for the future

Eighty-eight years old, and until two weeks ago on the shelf and untouched. Now a 1915 act of parliament protecting Auckland's volcanic cones from destruction has been making up for lost time.

Glass-tower lawyers, politicians and embarrassed local government and Transit New Zealand bureaucrats have been poring over the brief four-paragraph act wondering how they missed it and, more importantly, what it means.

The only thing everyone seems united on is it's a major fly in the ointment to the Government road builders' plans to slice State Highway 20 through the side of Mt Roskill.

A clue to the seriousness of the situation is a letter from John Duthie, Auckland City's manager, city planning, dated May 30, to Transit asking, "What action Transit is taking to comply with the requirements of the act".

He was asking this in response to a request to the council from the Volcanic Cones Society that the city "urgently institute injunction proceedings against Transit".

Mr Duthie says that, in response, Transit "have given me a commitment they will absolutely comply with any legislation".

He says Auckland City, which is the administrator of Winstone Park, which incorporates the Roskill cone, will take no action until Transit comes back with its legal advice.

The legal experts, having mislaid the act for 88 years, are now making up for the lost fees they could have earned using it, by claiming it's hard to understand.

Transit chief executive Robin Dunlop tells me the legislation is "unclear" and it is "seeking clarification of the intention of the act".

Mr Duthie says Transit is even considering seeking a declaratory judgment from a High Court judge to explain the law's intent.

If that's the case, they could save a few thousand dollars and come to me and I'll give them the chapter and verse of what the then prime minister, William Massey, said in introducing the bill in Parliament. Read in conjunction with the actual wording of the act, the intent of the lawmakers seems cut and dried.

In his opening remarks, Massey told his fellow parliamentarians the act was aimed at "preventing the destruction of the volcanic hills in and around Auckland city. The volcanic hills in an around the city of Auckland are being destroyed by quarrying operations and the legislation has been framed with a view to preventing their destruction.

"It provides that any excavation on any cone or hill shall only be allowable on leaving a batter of not less than 40 degrees from the top of the quarry to the floor of same ... "

A batter is a mining term referring to the receding upward slope of the outer face of an excavation.

The act itself forbids not just excavations, but also any "quarry, terrace or cutting of any kind" unless the person is "expressly authorised in that behalf by the Governor in Council", which in modern-day terms is the Cabinet, chaired by the Governor-General.

No doubt Transit is more than a little distraught that having all but won an eight-year planning battle to get permission to rape Mt Roskill, it has now been ankle-tapped by a piece of legislation which, though obscure, seems eminently clear and uncomplicated in intention.

Now it faces the prospect of having to persuade a Government which, while pro-roads, will also not want to be seen as the vandals who permitted the destruction of another of Auckland's unique cones.

While Transit waits for its lawyers to conjure up a legal escape hatch, Mr Duthie's advisers don't seem to hold out much hope.

In his letter to Transit he notes that from an initial reading of the act it appears Transit will have to obtain authorisation at Cabinet level.

Following my first piece on the 1915 act, historian Graham Bush came up with a 1928 document called "Auckland's Unique Heritage, 63 wonderful volcanic cones and craters, an appeal to save them".

Published by leading Aucklanders, it records an earlier generation's endeavour to keep alive the spirit reflected in the 1915 act.

I'm happy to say that back in 1928 this august organ was right behind the campaigners, declaring some of the cones "have been shockingly mutilated, some virtually ruined; the rest are more or less menaced by the hand of the spoiler. It will be to Auckland's eternal discredit if this jeopardy is not removed.

"There have been assurances from the Government and from local bodies that the despoiling would cease. It has not ceased."

Calling on public opinion to insist the politicians keep their word, the Herald declared, "to preserve intact, to the utmost limit of possibility, all places of historic and aesthetic value is a threefold duty - to the past, the present and the future".

The generation of 1928 did a good job in saving the mountains from further despoilation on our behalf. Now it's our turn to do that same threefold duty.

With the aid of the 1915 generation's secret weapon.