The consent application was made in the name of the RW & MC Gale Family Trust. Robbie and Michelle Gale are the managing directors of the civil construction company Tūpore Infrastructure.
The proposed quarry, on property currently in pasture and owned privately by a third party, is next to a site that processes gravel extracted from the braided Ngaruroro River.
That processing site is operated by another of the Tūpore companies.
There is another quarry, the Winstone Quarry at Roys Hill, upstream on the other side of the river.
Quarry would be 130m from river
At its closest point, the northern boundary of the proposed quarry would be about 130m away from the river.
This map showing the location of a proposed quarry near Hastings was included in the decision of the Marekakaho Quarry Expert Consenting Panel.
The trust’s lawyers told the High Court that the quarry is needed to meet an “urgent demand” for aggregate in Hawke’s Bay, particularly in the recovery and rebuild projects following Cyclone Gabrielle in 2023.
However, mana whenua – Māori with historical and cultural connections to the area – have expressed deep concerns about the impact of the quarry on the surrounding environment and “cultural landscape” of the site.
Quarry proposal reduced in size
In response to these and other expressed environmental concerns about the quarry, which would sit above an important aquifer, the trust significantly reduced the scope of its proposal while the panel was considering its application.
The total amount of aggregate to be extracted was reduced from 3.06m cu m to 2.1m, and the maximum depth of the eastern extraction area was raised from 30m below ground level to 23m.
The panel then issued the consent in what it called a “finely balanced” decision.
However, the Māori social services agency Te Taiwhenua o Heretaunga, representing hapū of Heretaunga Tamatea, appealed the panel’s decision to grant the consent to the High Court.
Te Taiwhenua said the panel failed to identify and correctly apply a statutory direction in the Covid-19 Recovery (Fast-track Consenting) Act 2020, which obliged the panel to act in accordance with the principles of the Treaty of Waitangi when it granted the consent.
High Court Justice Andru Isac found in its favour, saying the panel had failed to properly identify or analyse the relevant principles of the Treaty of Waitangi when coming to its decision.
“There is no real attempt to grapple with the true effect of the proposal on mana whenua, or how the conditions imposed met the requirements of the Treaty,” he said.
“What the panel was required to do in the present case was identify the relevant Treaty principles, identify any aspects of the proposal that were not consistent with those principles, and explain, even if briefly, why mitigation or off-setting matters … were sufficient to meet the bottom line of the treaty provision.”
Justice Andru Isac said the panel’s approach was wrong as a matter of law. Photo / NZME
Justice Isac said because the panel’s approach was wrong as a matter of law, he would set aside its decision to grant the consent.
“The application for consent … is remitted to the panel for reconsideration in light of this judgment,” he said.
Mana whenua had said that the quarry site was close to burial caves and had been the scene of an inter-hapu battle.
There were also concerns that the quarry posed a risk of “puncturing” the Heretaunga aquifer, or contaminating the aquifer recharge, and that the use of the land would undermine flood mitigation measures.
The panel considered the application under the Covid-19 Recovery (Fast-track Consenting) Act 2020, which had a “sunset clause” which meant that it could not consider any applications made after July 8, 2023.
The quarry application was referred to the panel on June 12, 2023.
Ric Stevens spent many years working for the former New Zealand Press Association news agency, including as a political reporter at Parliament, before holding senior positions at various daily newspapers. He joined NZME’s Open Justice team in 2022 and is based in Hawke’s Bay.