Court: Pay up or give up Pakiri fight

By SIMON COLLINS

Pakiri Beach dissident Greg McDonald has lost his legal battle against a proposal to extract up to 2 million cubic metres of sand from just off the beach unless he pays $14,000 in security for costs.

Mr McDonald, a member of the local Ngati Wai tribe, lodged an application with the High Court in April for a judicial review of Conservation Minister Chris Carter's decision to grant a 20-year extraction permit to sand excavator Kaipara Ltd.

Sand from Pakiri Beach will be used to redevelop Kohimarama Beach in Auckland.

But Justice Geoffrey Venning has ordered Mr McDonald to pay $14,000 security for costs by July 18 and has given Kaipara leave to apply for the case to be dismissed if the money is not paid.

In a judgment dated June 13, he said: "While Mr McDonald has genuinely held beliefs, his application for judicial review and appeal have little, if any, prospect of success."

Mr McDonald applied for legal aid when he lodged the application for a review, but the judge said it appeared from correspondence he had seen that the Legal Services Board had decided there was little merit in the appeal.

He said the court "is always reluctant to shut out a genuine plaintiff from having their case heard".

But in this case, Mr McDonald had presented his case to the Auckland Regional Council and to the Environment Court at an initial hearing in November 2001.

An appeal was heard by the High Court in November 2002.

His lawyer, Olinda Woodroffe, argued last week that the court had treated the Ngati Wai Trust Board as if it spoke for all Maori parties affected by the sand mining proposal, without referring the issue of representation to the Maori Land Court.

She confirmed that Mr McDonald would not be able to pay court costs if he lost the case.

But Justice Venning said the Environment Court found that, while the trust board did not have authority to negotiate on Mr McDonald's behalf, it did "reflect the consensus of those with mana whenua and mana moana [authority] in the area".

"Given the passages referred to in the decision, that would be a particularly difficult finding to overturn on appeal," Judge Venning said.

Mr McDonald said yesterday the case should be reopened after the Court of Appeal ruled this week that the Maori Land Court was able to hear Maori claims over customary title to the seabed and foreshore.

"Why should a Maori like me have to pay security of costs for them taking away my cultural heritage?" he asked.

"All I'm trying to do is to protect my iwi and make sure consultation takes place."

The Ngati Wai Trust Board originally objected to the sand-mining proposal but withdrew after accepting an offer from Kaipara in 2001 to pay it 50c for every cu m of sand extracted - a total of up to $1 million.

Kaipara's lawyer, Kitt Littlejohn, told the High Court in April that the Pakiri sand-mining permit Mr Carter granted on February 19 was the only one with enough scope to provide for the Auckland City Council's planned $6 million replenishment of Kohimarama Beach.

The story so far

* 1998: Ngati Wai object to plans to take 2 million cu m of sand from the seabed off Pakiri Beach over 35 years.

* 2001: The tribe drops its objection one day before the hearing in return for royalties worth up to $1 million - but dissident Greg McDonald fights on.

* January 2003: The Environment Court rejects Mr McDonald's appeal.

* April 2003: Mr McDonald goes to the High Court to stop the plan.

* June 2003: The High Court turns down his application, unless he provides $14,000 as security for costs.