Rocky road: The rock in the hill a quarry really, really wants to get out

A quarry company's application for Fast-track consideration could have far-reaching consequences for areas of private land which are supposed to be protected in perpetuity.

The Mangapiko stream sings over rocks as Te Ao o te Rangi Apaapa shares his biggest fear.

In front of him, members of the hapū are gathered, busy learning how to monitor the stream's water quality. Nestled in the hills behind him is his marae's cemetery. Towering over where his tūpuna are buried is the maunga Te Weraiti.

Clouds cloak the top of the mountain, throwing a veil over a contentious quarry which has chewed away at the maunga since the 1950s.

"My biggest fear is the quarry is going to continue for another 300 years if they lift the QEII covenant," he says. "If the covenant was to be lifted, our maunga will disappear."

Standing in the way of the quarry eating away more of the South Waikato mountain is a QEII covenant which protects areas of privately owned land with significant environmental value. Forty-six hectares of native bush is protected by the covenant in perpetuity. But beneath the tree roots lies rock the quarrying company is desperate to mine.

The owner of the quarrying company, J Swap, has repeatedly tried to find ways around the covenant in order to expand the Matamata quarry. It's gone from asking nicely, to informing, to involvement in a proposal for a special law to be written to swap land, and to court several times. To date, each attempt has failed, with one court appeal still to be decided.

Its latest attempt is via the Fast-track Approvals bill, which has been touted as a "one-stop shop" to get infrastructure and development projects moving. The proposed legislation would sit over numerous other acts and would allow activities prohibited under the Resource Management Act or projects which have been rejected by courts to go ahead.

J Swap told MPs considering the bill at the select committee that land currently protected in perpetuity under a QEII covenant should be swept up in the changes the bill proposes.

Adopting this suggestion could have far-reaching implications. The QEII Act purposefully ensures the trust managing these protected parcels of land is an independent body, at arm's length from the government of the day.

Allowing fast-tracked projects to go ahead on QEII covenanted land would be a precedent-setting change, which would cast doubt over around 5000 biodiversity hotspots, undermining one of the few protections some species have.

Approximately 180,000 hectares of private land is protected with a QEII covenant. For species like plants, which have scant legal protection, a QEII covenant is one of the few types of protection available. Another avenue is the Resource Management Act, if a council has identified threatened species.

Expert panels considering fast track applications are instructed to prioritise quick delivery of infrastructure and development projects over the sustainable management considerations of the Resource Management Act. That leaves QEII protection as a last line of defence for environments like Te Weraiti.

To J Swap, there is "no valid reason" why the environmental protections provided by QEII covenants should not be passed over through the Fast-track process, just like all the other existing laws and court decisions.

A significant area of the country is "potentially locked up forever" from commercial development due to QEII covenants, the company's environment manager Dudley Clemens told MPs considering the bill at select committee.

"Aggregates means crushed rock," Clemens told them. "They're used as a construction material for the likes of this regionally significant infrastructure that has been outlined as being a deficit at this point. We can't build any of that infrastructure without products quarried from the ground."

But Apaapa and others from Tangata Marae have many reasons why they see this as a bad idea. Over decades, local people have persistently fought against damage done by the quarry to the ancestral mountain and to streams which start on it. A 1994 petition was sent to Waikato Regional Council calling for the end of pollution to the Mangapiko stream. In 2018, objections were raised to resource consent applications by the company and a Waitangi Tribunal claim was filed in 2023.

Apaapa also submitted to the Fast-track committee. His message was simple. "J Swap quarry has a history of over 50 years of poor environmental standards, desecration of wāhi tapu on Te Weraiti and the contamination of the healing waters which flow from her," he said.

"We will oppose any project that is approved for J Swap. Enough is enough."

The rocky road

J Swap put forward a relationship and engagement specialist to answer RNZ's questions. Stuart Husband of Grassroots Consultancy is a former NZ First candidate for Waikato. Husband says he's been working to build relationships in the community for the past year.

He says J Swap has applied for fast-tracking, even though the company is unsure whether its bid for QEII covenant land to be included in the bill will be successful. "We had to make a timeline, so they made the call to do that."

The rock in the quarry is andesite, a particularly hard type of rock suitable for infrastructure projects such as roading, rails and ports. "We cannot build housing or infrastructure without quarry material, whether we like it or not."

At a recent local government conference he says Minister for Infrastructure and RMA Reform Chris Bishop explained the impact of transporting heavy materials like rocks long distances. "The cost of the material virtually doubles every 30km from the quarry," Husband says.

If the company is constrained to quarrying only in uncovenanted areas, Husband says the quarry will run out of rock for the pipeline of infrastructure projects which is looming. By getting access to the QEII land he estimates another 100 years worth of rock could be quarried.

The company appears supportive of the infrastructure-focused coalition government. J Swap donated $11,000 to NZ First in December 2023, after the coalition government was formed. Prior to the election the Matamata-based company gave $5000 to NZ First's Shane Jones, who was campaigning to win the Northland electorate.

In September 2023 it also donated $3000 to National's New Plymouth candidate David MacLeod. The introduction of the Fast-track Bill formed part of NZ First's coalition agreement. MacLeod was the chair of the Environment Committee hearing submissions into the bill until discrepancies with his donations declaration saw him removed.

Police investigated MacLeod over undeclared donations, but in August decided to take no action against him.

Keeping the perpetuity, in perpetuity

The bid to add QEII covenant land into the Fast-track Approvals Bill is the most recent attempt by the company to obtain the underground rock through a variety of companies associated with the parent company J Swap.

J Swap bought the land in 2009, knowing the covenant was in place.

Once land is protected by a covenant there are two ways new activities can occur on it.

The first way is to apply to the QEII Trust board for permission. If the activity fits with the objectives in the QEII Act - to protect the landscape and biodiversity - the board can grant permission. The second is via the Public Works Act if land is needed for a project such as a motorway, the covenant can be lifted.

A private company wanting to expand a quarry fits neither criteria.

J Swap's request to the QEII Trust to extend the quarry into 42 hectares of the protected land was rejected in 2015. Documents obtained under the Official Information Act (OIA) show J Swap was unhappy with this, and threatened litigation, but at that stage didn't follow through.

The documents show a saga playing out when a new attempt was made in 2016 under the National-led government.

Special legislation was proposed as part of a treaty settlement to gain access to the land by gifting the top of Te Weraiti and the headwaters of the Mangapiko stream to iwi Ngāti Hinerangi, in return for being able to extend the mine into the area protected under the QEII covenant.

An email to the QEII Trust from the government's chief crown treaty negotiator implied agreement wasn't required from the Trust.

"The concept is instead that if the covenant is to be removed, it will be via a separate Act of Parliament and as part of relevant Treaty Settlement legislation. The consent, as such, of the [QEII Trust] board is not being sought," the email said.

The QEII Trust wrote to the then Minister of Conservation Maggie Barry highlighting the trust's concern that making up special laws to strip QEII covenants from land would undermine confidence that land protected by a covenant was protected in perpetuity.

The trust also asked questions of the Office of Treaty Settlements. Among them, had the Crown quantified the likely economic benefit that it would be providing to J Swap if the proposed special legislation was passed?

The special legislation never came to pass, appearing to die a death behind closed doors.

J Swap then acted on its earlier threat of legislation, taking the QEII Trust to court, claiming that as the owner of the land it had the right to quarry without the QEII Trust's consent. It lost the case and subsequent appeal.

J Swap's next step was a judicial review, saying the covenant was faulty as the quarry company was not consulted when it was created, meaning the covenant was void. J Swap lost this case too. The decision on its subsequent appeal has not yet been reached.

The QEII chief executive Dan Coup says the trust has never had a covenant challenged so extensively. "The Swap Group has brought four cases against the QEII over the last eight years."

As well as eating up staff time, the repeated court court cases have cost the organisation. The current tab is $200,000, he says. While some costs were recovered, the full expense of defending the covenant's status has not.

"Defending covenants is something we feel very strongly about. We make an agreement with the landowner at the time the covenant is signed that we will defend the area if it's ever threatened - it would undermine the whole model of the Trust if we didn't then step up and enforce the covenant."

Coup says he would be surprised if J Swap is successful in getting QEII protected land included in the Fast-track Bill. "It would go against the whole purpose of establishing QEII as independent from government to protect private land," he says. Trust in the QEII system would be seriously undermined.

The current court appeal, and the Fast-track Bill appear to be J Swap's last lines of hope.

To date, there is no indication the Fast-track Approvals Act will be changed to include QEII protected land.

Husband says the company does not want to destroy areas of native bush protected by the QEII covenant. Some of the protected area has been grazed and burnt off in the past, "and has been left to grow gorse and pest plants and a bit of low scrub".

"It's not the beautiful, big standing native bush that exists over the other side. It's not that, it's the areas of gorse and pest plants and rubbish that are sitting on a rock face."

Photographs Husband provided of areas the company wants to quarry show gorse and regenerating native shrubland and forest, which appear to include tōtara, rewarewa, kānuka, cabbage trees, māhoe, mānuka and hangehange. The area has not been measured yet, but Husband estimates it covers two thirds of the covenanted land.

Coup says the covenant was put in place to protect biodiversity and landscape values in perpetuity. This includes the areas where gorse is currently present. "There is some regenerating native bush within the covenant, and we are confident that there are biodiversity values worth protecting."

If J Swap fails in its court appeal and fast-track application, and access is denied, Husband says it is ratepayers and taxpayers who will suffer.

"They will have to go a long way away to get rock to do all these road projects. It just increases cost, it could be in some cases up to tenfold. I guess that's the worst-case scenario for New Zealand."

A show of hands

Should the company be successful in its fast-track application to access the land, people like Apaapa will face many more years of the quarry excavating the maunga.

But Husband says there is now support across the community for the quarry. He has a "fantastic" relationship with Tangata Marae, despite the opposition from Apaapa and whānau to the quarrying. "The marae trust and people in the marae are more than happy with the relationship." He points out Apaapa is not an official spokesperson for the marae.

Mark Douglas is a trustee and environment spokesperson for Tangata Marae. He says Apaapa stands on his own, and is not an official marae spokesperson. Douglas says he has no problems with the quarry. "We have no issues to this date with anything and the water quality has been fine for many of years."

Apaapa says it is correct that he does not hold a position on the marae trust or committee at present. He says he speaks for his family and hapū and is the spokesperson for Te Karanga a te Pūtangi, a water quality project funded through Te Mana o te Wai.

There is a history of opposition to the quarry from numerous quarters though; a 2019 section 42A report from the Waikato Regional Council related to the quarry's application to renew expired resource consents includes submissions from numerous groups.

The Ngāti Hauā Iwi Trust's submission opposed the application in its entirety. The Raukawa Charitable Trust submission said it would not oppose the application on the proviso that several conditions were included, while a submission the WRC identified as being from Tangata Marae and signed by Apaapa opposed the application.

A joint submission from Ngāti Hinerangi Tāwhaki Marae and Te Ōhākī Marae said the preference was for quarrying to stop. If it did not, the submission said the marae wanted to be involved in all future developments and management of the maunga. Dr Morehu McDonald and Hine Thompson Rauwhero submitted for themselves and on behalf of the Ngā Hapū o Ngāti Hinerangi Trust. That submission also opposed the application.

The council approved the consent applications, saying conditions applied to the consents would mitigate issues raised in the submissions. It granted 15-year consents rather than the 35-year consent period J Swap sought. Its consents to discharge stormwater into streams expire in 2034 and will need to be renewed if its fast-track application gives it access to the 46 hectares of covenanted land which open up another century of rock supply.

Aunty Wai

There is a sparkle in Waimatao Smith's eyes as she recalls her childhood at Tangata Marae and time in the Mangapiko stream.

The Mangapiko stream that flows alongside the marae served many purposes, from spiritual and practical, to recreational.

It is thought that when people of the hapū pass away their wairua travels the path of the Mangapiko stream from Te Weraiti to the Waihou and beyond to Hawaiki. The water of the stream was also used for spiritual cleansing, in lifting the state of tapu and restoring a state of noa - safeness and normality.

It was also where clothes were washed, and for the children, it was a place to while away summer hours swimming.

"We loved it because we were able to swim. They loved being together, our parents, washing clothes and chatting up a storm. They would talk about everything and anything and we swam the whole time," Smith says.

The washed clothes would be hung on the fences to dry; she remembers how her mother's laundry was a glistening white. "They only used water from the creek and soap."

Smith is known as Aunty Wai or Nana Wai now and has recently returned to the area. The stream she played in as a child changed during the years she was away.

Some of the water has been diverted for the quarry operation and a build-up of sediment has made the stream shallower.

Kai that used to be gathered in the stream, like freshwater crayfish and eels, is not there anymore and sediment clouds the water after heavy rainfall, making visibility for the creatures left living in the stream poor.

Would she wash her clothes in it now? She pauses, grimacing. One day she would like to be able to do that, to sit with family members and kōrero while washing is done, but she is not happy about the quarry.

"I don't like the quarry up there. That has a big toll on our awa. It was our blessing place, to me it was just pure. It's just changed the whole thing, so I will be glad when that quarry goes."

She is one of many in her hapū learning how to monitor the stream for water quality and biodiversity.

Apaapa is dissatisfied with the monitoring previously done by J Swap. "When it rains here, and it does rain a lot here, those [sediment] ponds overflow and flow directly into the Mangapiko stream."

He says J Swap has not always done the monitoring it is supposed to do based on the rules of the resource consents with which it operates.

A Waikato Regional Council report from 2022 shows several breaches. Water samples were required to be taken by J Swap four hours after heavy rainfall, but these were sometimes taken the following day or on two occasions, not at all. Meanwhile, one site that was supposed to be sampled was not, and some required flow meters were not installed.

No enforcement action was taken despite a ranking of "Significant Non-compliance", the worst ranking that can be given.

Apaapa and others from the marae have taken matters into their own hands and embarked on a programme to monitor the water in areas they are able to access. Together with the Raukawa Charitable Trust, they received $548,519.00 through the Ministry of the Environment Te Mana o te Wai Fund, set up to support tangata whenua to participate in the management of freshwater. The funding is to help manage taonga species.

Freshwater ecologist Dr Mike Joy has helped the group develop water testing strategies and says he is seeing more of the citizen science projects like this one launched to monitor environmental conditions.

"When the authorities fail, then the community has to start doing it for them."

He explains it is vitally important to test the water quickly after heavy rain, giving the example of a chemical spill in a river. "You go the next day and you can't find a hint of it because it's all washed away ... you can miss the problem completely. Of course the life in the river won't miss it because they had to breathe it, so they'll be dead."

Joy is perplexed by test results that show aluminium in the water. It is often found in flocculants - a substance added to sediment-laden water to make sediment particles clump and settle to the bottom. J Swap uses a flocculant in its sediment ponds, but says it does not contain aluminium.

The lack of information about the flocculant and the fact J Swap uses a flocculant not approved by the Waikato Regional Council was also flagged in the Council's 2022 report but as "low risk non-compliance".

The discovery of an invisible substance worries Apaapa. "Because we can't see it, we really don't know that it's there or not until we have it tested. So it's affected our people, because we are unsure if it's safe for our children to swim or if we can still drink out of our waterway," he says.

A more visible problem is another cause for concern. Increased sediment can affect biodiversity. This is true of suspended sediment, which J Swap is required to monitor as part of the consent, and of deposited sediment, which is not included in the consent monitoring.

Joy explains the impact of the sediment lingers on after rains end and the stream looks to be running clear. Fine sediment particles trickle into the spaces between the rocks and boulders of the stream bed, depositing itself there and slowly filling gaps. These "interstitial" spaces are where native fish and insects often make their homes.

"It's like going from an apartment building where you have hundreds of people that can live in the apartment, to once you the sediment fills up and you're just - you can only live on the roof. All of that habitat for the invertebrates and the fish has been lost because it's filled up those spaces with fine sediment."

He's seen streams with very little sediment teeming with life, "then you go to a stream next door where there's sediment and there would be a tiny amount".

It is not necessarily a death knell for the stream though. If the source of the sediment stops, the built-up sediment eventually washes away. "You end up with a radically different waterway from the fish and invertebrates view. Suddenly you've got an apartment building to live in, rather than live on the roof."

The overburden

Worry lingers for Apaapa. If the quarry were allowed to quarry the QEII protected land, he has little faith in the company's adherence to meeting environmental conditions and rules, let alone any conditions which might accompany fast-tracked projects.

Some breaches of the current resource consents identified in Waikato Regional Council's 2022 report have not been addressed. Flow meters have not been installed at two sample points as requested and the Environmental Management Plan has not been updated to include methodologies for mātauranga Māori monitoring, although that is noted as being underway. A bond to cover rehabilitation of the quarry which was due 1 August 2022 has still not been finalised two years after the deadline.

A spokesperson for the council says enforcement is influenced by the level of non-compliance. "The non-compliances are graded as low risk non-compliances and of a technical nature, and the consent holder is tasked with actively working towards achieving compliance."

Husband seems unconcerned about the remaining breaches of the resource consent.

"There might be a couple of admin issues outstanding, but all in all, pretty much everything has been done." He says the bond for rehabilitation has been lodged and documentation about the flocculent the quarry uses has been provided to the council.

He says two independent ecological assessments have been completed on the waterways with good results, showing there have been minimal effects from the quarry. "The results show a really positive health of the stream."

But it is not just resource consent breaches which bother Apaapa. There have been examples of a disregard of rules in the past. The company has dumped waste from the quarrying operation on Gordon Park Scenic Reserve.

A paper trail obtained via the Official Information Act shows the Department of Conservation held reservations about the company's attitude once the illegal dumping of overburden - unwanted dirt and rocks from quarrying - was discovered covering a strip of public conservation land.

"Of concern, was a section of Scenic Reserve that had already been used as an overburden site ... [Redacted name] openly admitted that he was aware this piece of land was scenic reserve and that it was being used without permission. [Redacted name] attempted to down play the situation by claiming that the ecological impacts of the activity were less than animal grazing which was taking place a few metres away.

"Although no GPS data was collected, maps were available and [redacted name] was happy to point out the Scenic Reserve areas that he was knowingly operating in."

At one point, the department felt it was being deceived by a consulting company J Swap had contracted to apply for retrospective permission for the dumping. The consultancy provided outdated maps failing to show the full extent of the waste's encroachment onto the scenic reserve to the department. "Given they were a consulting firm and would most likely have access to the latest digital mapping, we felt that we were being intentionally misled."

Husband says the land used was not conservation land and had no native bush or conservation value. "It's access like a paper road to a conservation block, and it's actually just sheep farm paddock at the moment."

He says the work being done is to make it more favourable for grazing.

"The works that are being done, earthworks, part of recontouring and rehabilitation, basically just to put it back in the grass seed for the sheep farm. So that's pretty much all to make it more favourable for grazing use."

He was unable to say why the company had put quarrying waste on the land without seeking permission in the first place.

J Swap retroactively applied to the Department of Conservation for a concession to leave the waste on the reserve. Throughout the process it stressed it was a priority for it to avoid any course of action where its late bid for permission was publicly notified.

The OIA documents from the Department of Conservation allude to issues at two other quarry sites run by companies associated with J Swap. One site in Tauranga was given an ultimatum to remove mining from DoC-managed land, and another in Katikati was subject to a compliance investigation.

The Department of Conservation eventually gave J Swap permission to dump the overburden on the scenic reserve through a process that did not require public notification.

During heavy rains, sediment from the overburden site enters another stream important to the hapū of the area. The Pūtangi stream is home to a taonga species, the world's only freshwater limpet which glows in the dark. The species only survives in North Island streams where the water quality is good.

When the rain is heavy muddy water flows from a culvert into the stream. He worries if waste from the sediment ponds is also dumped in the overburden then the water flowing off it could include flocculant.

"If no-one is there to monitor it, we have no idea what the limits are to be set to protect the life of the Pūtangi or the bioluminescent limpets."

Husband says no sediment pond waste is included in the overburden.

What is Apaapa's best-case scenario?

"To have the quarry stop, allow her to regenerate, allow us to look after her and be kaitiaki of that process and then to all the manu [birds and winged creatures] to return so our next generation and our mokos can hear the dawn chorus on our maunga."

When man disappears, the land remains, he says.

"But we don't want it to go the other way, where our land disappears and there's only the quarry left."

For J Swap, Husband says the best outcome is "a great community outcome, where everyone walks forward together and there's a strong long term relationship with iwi and hapū and local landowners in the area".

J Swap's best-case scenario could involve a precedent-setting change for protected land.

"Fast track consent has been applied for, it will be far better for J Swap to be in the room, and they would be happier to be in a room with QEII and to be able to talk this stuff through and mediate an outcome that's good for everyone, and if it involves the Crown, it involves the Crown as well."

The QEII Trust's Dan Coup says the point of having the QEII Trust independent of government is to make sure protection is enduring, and not subject to political whim.

"We know there would be a huge number of our covenanters aghast at the idea that their wishes for their own land could now be overturned by some future legal or political decision."