Sign In / Register
The multiparty appeal against Waste Management NZ’s (WM) plans for a huge new regional tip, south of Wellsford, has finished until the end of January, but not before judges took participants to task for dragging proceedings out.
Judge Jeff Smith was clearly exasperated when WM said it wanted to produce extra evidence on its site selection process, saying this was just the latest such request being made.
“We’re buried in paper and the email trail is now virtually impossible to follow. It comes in a never-ending stream. How long is it going to take to finish this case?” he said.
The Environment Court hearing opened in June with regular online sessions until mid-August, when the court granted a request from WM to adjourn for site assessment with a “specific cultural lens” that ended up taking more than two months. This meant there was no way the case could be finished this year, as had originally been planned.
“This is all a consequence of parties asking for an adjournment and then exponentially increasing the time needed for the hearing. I was originally told eight weeks, I allowed 10, and now we’re talking another four to five weeks on top of that,” Judge Smith said.
He said he was concerned over how far the court was being asked to accommodate requests.
“I find it quite exceptional that parties are dictating that they’re not available on certain dates. The court reminds parties that we’re not a shop, we’re not open all hours. We have a series of cases coming up, including Pakiri (sand mining) and Warkworth to Wellsford (motorway), the list goes on … they all swamp the court’s ability to deal with it all,” he said.
“There’s a level of unrealism in this and the court is just going to have to decide what we do. The court feels it’s bending over backwards to solve the problems of counsel.”
Judge Melinda Dickey agreed, saying if the various lawyers could not agree on certain dates in the first quarter of next year, the case would have to be adjourned until towards the end of 2023.
“The window is rapidly closing for next year, it’s difficult enough as it is to rearrange fixtures. It would be most helpful if counsel could accommodate those dates from our perspective,” she said.
Dickey suggested that a solution might be for the court to reconvene a week earlier than scheduled, on January 24, during the court’s fixed vacation period. This seemed to spur counsel into action and, after a brief adjournment to discuss the matter, all parties agreed the the court’s suggested first quarter schedule.
Counsel were also criticised for taking too long over supplementary questions and cross-examination, with the judges and commissioners threatening to impose time limits unless they hurried up.
Dickey said such questions should only relate to matters of clarification.
“They should not be an opportunity to relitigate,” she said. “If matters don’t improve, we will take further steps.”
She added that WM lawyers had not held matters up with objections where perhaps they could have and asked all counsel to treat each other with respect.
The case reopens on Monday, January 31.
Experts debate ecological outcomes
The outlook for rare Hochstetter’s frogs, long-tailed bats and ecology in general at the proposed landfill site came under the spotlight during the final sessions this year of the Environment Court hearing.
Ecological experts for Waste Management NZ (WM), Auckland Council and parties appealing against the granting of a resource consent spoke and were questioned at length over their evidence on what effects the development might have, and how those effects might be avoided, mitigated or compensated for.
The court heard that WM had put together a comprehensive package of measures designed to offset any losses of native animals and plants, their habitats and around 14km of streams, including installing a lengthy pest-proof fence and extensive riparian tree planting.
Witnesses for WM said biodiversity offset accounting and biodiversity compensation models had been drawn up that should ensure no net loss of species and, in some instances, there could even be net gains.
As an example, it was considered that relocating the at-risk Hochstetter’s frogs from the landfill site could result in there being more frogs in future than if no development happened and they were left to their own devices.
However, a suggestion that one suitable relocation site might be island reserve Te Hauturu-o-Toi Little Barrier prompted an objection from Manuhiri Kaitiaki Charitable Trust counsel Jason Pou that – not for the first time – there had been a complete lack of consultation with mana whenua.
“This Saturday is the 10-year anniversary of Ngati Manuhiri gifting Hauturu to the people of New Zealand. How come they haven’t been consulted over discussions of Hochstetter’s Frog being relocated there?” he said.
Pou said a study had found there were no Hochstetter’s frogs on Hauturu, therefore they should not be brought onto the island, and by publicly discussing the possibility without having consulted Ngati Manuhiri, the hapu was being painted into a corner.
However, WM counsel Simon Pilkinton later said that following a 2019 report into frogs on Hauturu that recommended translocation, it had also been recommended that the report was shared with Ngati Manuhiri, so he thought they should have been aware.
Pou said it was another case of everyone talking about Ngati Manuhiri, rather than talking to them, and added that WM seeking to avoid adverse impacts on the frogs was different from actually avoiding adverse impacts.
Judge Jeff Smith said it was important to remember that any ecological model was simply a mathematical method of trying to predict what might happen by running numbers through a system, or as one witness put it, was logic rather than evidence.
Cultural, corporate, planning and closing evidence will be heard when the case continues next year.
