Environment Court shuts down Pākiri sand mining appeal

A sand mining company’s attempt to overrule a decision allowing it to keep dredging the coastline north of Auckland has been refused by the Environment Court.

Sand mining has taken place at Pākiri Beach between Leigh and Mangawhai since the 1940s, providing high-quality sand for concrete production.

Its advocates have long argued there is plenty of sand and that supply is essential to meet Auckland’s growing demand for concrete.

Opponents argue sand mining wrecks the dunes, unfairly affects mana whenua, destroys the seabed and puts a wide variety of wildlife, including rare fairy terns, at risk.

The practice hit its first major stumbling block in 2022 after an Auckland Council panel rejected a resource consent application filed by the dredging company McCallum Bros.

In a 124-page decision, commissioners said it had failed to supply evidence that sand mining, which has been going on for decades along that stretch of coast, didn’t harm the seabed, the beach, and marine and bird life. 

That first decision related to what is called the far-shore section of the coast, at 25 metres to 40 metres depth off the beach.

It was followed by a ban on in-shore mining, 5-10 metres deep, and the approval of sand mining in the mid-shore, 15-25 metres deep, under tightened conditions. The mid-shore application was abandoned in 2023.

The company had been accused of straying outside of the permitted area and of taking more sand from the seabed than was allowed – and the council’s independent resource consent panel said there was evidence of breaches of McCallum’s permits and council inaction.

McCallum Bros appealed these resource consent findings to the Environment Court, and in 2023 was granted temporary consent to continue some dredging awaiting completion of the court process.

A 162-page judgment issued last week, led by Environment Court Judge Jeff Smith, threw out McCallum Bros’ appeal, endorsing the overall position of the council’s commissioners.

The Environment Court process was carried out over six weeks (seven including a dismissed bid to strike out evidence) and included appearances from 11 groups, including iwi, community and environmental NGO groups.

The judge’s conclusion said there were “clear benefits” from the continued extraction of sand from Pākiri, but the demand for high-quality sand didn’t outweigh environmental concerns.

“These economic benefits to Auckland and to McCallum Bros and others have occurred at a direct cost to mana whenua and the embayment itself,” the judgment said.

Lack of information

Pākiri sand is considered to be high quality, requiring less cement in the mix than other options. Kaipara is the likely alternative, but increased take from the West Coast isn’t a sure thing.

Judge Smith said the immediate difficulty for the Auckland Council commissioners and the Environment Court was the lack of proper information. “The earlier consents had conditions requiring information on the environment and the effects of dredging, but that produced to us was patchy, inconclusive, and as to shore effect incorrect.”

As well as uncertainty about the impact on the shore, the impact of dredging in the deeper water could affect species such as stony coral.

“In the absence of ecological information, the Applicant relies on grab samples over a small proportion of the total area and studies to be undertaken prior to extraction commencing. We cannot form any view as to the level of risks involved in the absence of sufficient information.

“More fundamentally, the Court is not satisfied that the effects can be appropriately managed. This is deep water with limited prospects of avoidance of damage if species or biological communities exist.”

The impact on mana whenua Ngāti Manuhiri and other residents was also considered, alongside wider degradation of the Hauraki Gulf.

McCallum Bros has 20 working days to file and appeal, which would be heard in the High Court. The temporary consent to mine sand will stand if action is continued.

Forest and Bird senior environmental lawyer May Downing, who appeared on behalf of the NGO, told Newsroom Pākiri was in an area of the Hauraki Gulf where there had been a lot of scientific concern about environmental degradation, including habitats and spawning grounds for fisheries.

“The environmental significance is that it will allow this area to recuperate to some extent. It has been an area that’s been dredged since the 1940s, so to have the consent refused is a massive win for conservation in the area.

“Forest and Bird was heartened to see the Court wasn’t prepared to take a suck-it-and-see approach with the off-shore section.”

Downing said there was also concern about the impact ongoing sand mining would have on New Zealand Fairy Tern Tara Iti, a critically endangered bird species.

Participation

“The interesting thing about this case is the sheer breadth and variety of participants. We do have quite a strong cluster of conservation groups, a strong mana whenua presence, and a lot of local residents,” Downing said.

Gary Taylor, chief executive of Environmental Defence Society, which also appeared in the case, said the case illustrated the value of an independent judicial body. “Considering the science through expert evidence on cross-examination and reaching a decision based on that.

“That’s the antithesis of what we’re looking at in the fast-track process where the assessment will be very superficial. Environmental considerations will be relegated below development imperatives and in the end, ministers will be making decisions.”

McCallum Bros didn’t respond to a request for comment.

Auckland Council declined to comment.