The view was given by Kā Rūnaka witness Mike Dreaver during the panel’s opening hearing at Ōtākou Marae yesterday.
Kā Rūnaka is the four runanga collectively objecting to the mine.
It says lack of consultation by Santana is in breach of the Treaty of Waitangi settlement requirements. It also has environmental and cultural concerns.
However, Santana argued consultation had occurred and a "respectful chiefly relationship" had been developed with Kā Rūnaka. The focus was to "develop mutually beneficial arrangements to address Kā Rūnaka concerns".
In response to panel chairman Matthew Muir, KC, Mr Dreaver stressed any proposed solution, such as a bond or a fund, could be a "lipstick on a pig".
"The horse has bolted ... it is very difficult when things have gone so far down the process before engagement starts."
It was "difficult to back-pedal", he said.
In written submissions to the panel earlier this month, Santana argued it consulted Kā Rūnaka and provided a list of correspondence and meeting dates. It also claimed Kā Rūnaka demanded $180 million if the mine went ahead, an allegation Kā Rūnaka denies.
In yesterday’s hearing, Mr Dreaver said "emails and to-ings and fro-ings ... doesn’t necessarily mean meaningful respect for the party you are dealing with. It is great to record these things, but what you don’t see [is the] conversations or quality or substance of the engagement".
Mr Muir asked Kā Rūnaka’s legal counsel, Nicole Buxeda and Mike Holm, if the Kā Rūnaka felt the panel should halt its hearings because Kā Rūnaka was arguing that Santana’s failure to consult had breached Section 7 of the Fast-track Approvals Act.
The section requires compliance with "obligations arising under existing Treaty settlements" for a project to be considered.
Kā Rūnaka had articulated various cultural objections to the proposal, Mr Muir said. "Does this mean the panel must not inquire behind that, and Section 7 is engaged, and that is the end of the matter?"
Ms Buxeda replied "fundamentally, yes".
However, she also said Kā Rūnaka wanted the panel to consider the project under Section 85 of the Act, which outlines various reasons to decline approval, including adverse impacts outweighing regional or national benefits.
Mr Holm said the mine’s adverse environmental and cultural effects were "well out of proportion" to economic gains.
Mr Muir said that, upon being appointed as chairman of the panel in February, he had considered whether a Section 7 argument should be regarded as an issue to be dealt with through the courts "independently and first up ...".
He now understood Kā Rūnaka was saying Section 7 must be considered as a standalone argument, but it was not seeking for it to be ruled upon as a preliminary point; rather, it wanted the panel to move into a Section 85 analysis "heavily weighted by the severe adverse impacts that culturally this application raises".
The panel heard from other Kā Rūnaka experts — in ecology, landscape and mining — who outlined concerns about long-term impacts of an industrial-scale, open-pit mine in an area with high conservation and landscape value.
The witnesses stressed that poor consultation included gaps in information provided by Santana, particularly about how the site would be managed post-closure.
Santana chairman Peter Cook, chief executive Damian Spring and lawyer Joshua Leckie all responded, arguing consultation had occurred and engagement was ongoing.
Mr Cook said a "respectful, chiefly relationship" had been developed with Kā Rūnaka and the focus was to "develop mutually beneficial arrangements to address Kā Rūnaka concerns".
Mr Leckie said Santana did not agree with Kā Rūnaka views on Treaty settlement breach.
Fast-track panel member Gina Sweetman raised the issue of Santana’s application being lodged before a final cultural impact statement was ready.
In response to Mr Muir asking Santana if that decision had been premature, Mr Spring said that, with hindsight, that might be so, but his firm had been "happy" with the way things were progressing.
Mr Muir said the panel would retire to consider the legal questions. It was "highly likely" a "very senior" counsel assistant would be appointed.
There could be questions in writing or panel hearings focused on legal matters, he said.
In a statement after the hearing, Kā Rūnaka said it was not saying the mine "could never be consented. We say that Santana’s failure to consult seriously and competently has made the current application incapable of consent".
"They received our feedback, lodged unchanged, and now propose to resolve fundamental issues within a process that cannot remedy deficiencies of this scale."
