Editorial: Carter must step aside on marina

Opinion

Chris Carter does not seem to understand the magnitude of the High Court ruling against his decision to veto a multimillion-dollar marina at Whangamata. The Conservation Minister is acting as though it is business as usual while he ponders an appeal against the decision. It is nothing of the sort. The circumstances should prompt Mr Carter to hand over reconsideration of his marina verdict to another minister. They should also ensure the Environment Court's view on the development is quickly confirmed.

The decision of that independent tribunal court was reached with due consideration after exhaustive and costly hearings. During that process, all sides were given the opportunity to present their arguments, and to cross-examine those of their opponents.

Finally, the court found the merits of a project pursued by the Whangamata Marina Society for 14 years, at a cost of $1.3 million, outweighed the concerns of local iwi and surfers.

That finding should have ended matters. The minister's purview should have extended no further than ensuring that the marina's final shape conformed to the Environment Court's terms and conditions. But Mr Carter elected to use his power under the Resource Management Act to veto the court's recommendation, and reject the society's proposed resource consents. He cited concerns about the marina's effect on a saltmarsh and Maori access to shellfish beds - even though both have been considered and discounted by the court.

Mr Carter's error, in the eyes of Justice John Fogarty, did not lie in the exercise of his discretion. That, however unfairly, is reserved in the Resource Management Act, just as tends to be the case in other areas where politicians fear unpopular decision-making.

Where Mr Carter erred was in the realm of procedure. Straying from the Environment Court report, he reconsidered evidence not put at its hearing, a power he does not have. A meeting with surfers and iwi on January 30 to hear their objections to the marina should not have taken place. The judge noted: "It is not the function of the minister to hear witnesses and test the quality of the evidence and submissions marshalled in support of the relevant criteria."

Justice Fogarty also found that Mr Carter appeared to have "closed his mind" against the marina by March 1, even though his department's briefing was not delivered to him until the next day. Surprisingly, the judge did not rule that another minister should be given the job of reconsidering the veto. "The errors identified can be corrected," he said. As Mr Carter's statements after the High Court decision suggest he does not appreciate the gravity of his transgression, this may be an extremely charitable viewpoint.

It is tempting to ponder the minister's motives. Was he keen to prove to iwi that their interests could be protected under foreshore and seabed law? If so, that was irrelevant to the merits of the marina project. Whatever the case, Justice Fogarty's decision is a welcome clipping of ministerial wings. Arbitrary decision-making of the type demonstrated by Mr Carter makes nonsense of the public forum and considered rulings of independent tribunals such as the Environment Court.

It is also an injustice to those who place their faith in the process. In the case of the marina, the applicants stood to have wasted considerable time, energy and money. Justice Fogarty's ruling clears the way for that wrong to be righted. Mr Carter's position is now compromised. Another minister should be appointed to reconsider his veto - and to approve the Environment Court's decision.