The Ministry for Culture and Heritage acted unreasonably by not consulting more widely before it formed a preference on where the Erebus memorial should go, the chief ombudsman says.
Chief Ombudsman Peter Boshier has released his opinion of the ministry's early consultation following complaints by Māori and community members.
The long-awaited but controversial memorial is located in Dove-Myer Robinson Park in Auckland's Parnell.
There is concern about a historic pōhutukawa tree - Te Hā - which is believed to be under threat by construction works at the site.
The memorial is intended to remember the 257 people killed in the 1979 Air New Zealand crash at Mt Erebus in Antarctica.
"My view is that the ministry should have consulted the wider local community and all Tāmaki Makaurau iwi comprising the mana whenua before advising on a preference for any site in Auckland," Boshier said.
"To not do so is surprising given the Crown's partnership obligations under Te Tiriti/Treaty of Waitangi and obligations at an international level to consult with indigenous peoples.
"This lack of consultation has denied wider community and Māori involvement in considering a range of possible locations for the national memorial. Some members of the local community and iwi still have a sense of grievance over this failure.
"This might reasonably be seen as tainting the memorial if no further steps are taken to resolve this before construction begins."
Consultation on the selection of the preferred site had been limited to the victims' families and those involved in the recovery, Boshier said.
He felt wider community and mana whenua input was essential when information from the family survey was available in August, 2018.
However, Boshier said the ministry had not acted unreasonably when it came to Te Hā. The ministry had relied on the advice of mana whenua Ngāti Whātua Ōrākei about the impact construction would have on the mana and mauri of the tree.
He said the ministry had not relied on a single arborist's report and had shown it was willing to make changes to the layout of the memorial in order to reduce the risk to the tree.
Boshier also said he could not say the ministry's preference to use Dove-Myer Robinson Park as the site of the memorial was wrong.
"If an Auckland-wide community and mana whenua iwi consultation had been held, it is conceivable that DMRP would still have been chosen, though it is also conceivable that a different site would have been," he noted.
"What the lack of consultation has done is deny the opportunity for wider community and iwi Māori involvement in considering a range of possible sites and prevented the general acceptance of DMRP as indisputably the best site for the memorial, because it was never publicly tested on a comparative basis against other possibilities."
Boshier noted while there is "significant disagreement" with the choice of the park, there is also "considerable support" for it from some mana whenua and some families of Erebus victims.
Bernadette Cavanagh, chief executive of the ministry, said its officials are considering Boshier's report and his recommendation.
She said the ministry would respond to Boshier as quickly as possible.
"While the process the ministry undertook followed practice established over decades, we appreciate the Ombudsman's comments and will take these into account in the future."
Cavanagh also said ministry officials had already commenced dialogue with opponents of the memorial.
"I remain confident that correct and proper processes have been followed to select the National Erebus Memorial design, and that the environmental, cultural and heritage values of the park will be properly respected and protected,” she said.
"The findings announced today indicate that construction of the memorial can, and should, continue. This will be welcomed by the families and friends of those who lost loved ones. After more than 42 years since the Erebus tragedy, it is time for construction of this important national memorial to proceed.”
Boshier also felt:
- MCH acted unreasonably in failing to reply in October 2019 to correspondence about a resource consent for the memorial
- MCH did not act unreasonably in the design process it undertook for the memorial
- MCH did not deliberately mislead Ngāti Whātua Ōrākei or Waitematā Local Board members as to the level of support from Erebus family members for a memorial sited in the park.
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