"Why is Envirowaste Here?"

This question was posed by Judge Smith several times on Monday. He asked David Kirkpatrick – legal counsel for Envirowaste Services Ltd – “I want to know why you are here….”

He went on, “these are dangerous waters for a trade competitor….”

First, a little legislative background. The Resource Management Act was changed a year and a half ago by an unusual provision of the Resource Management (Simplifying and Streamlining) Amendment Act 2009. This provision was put in to deal with what has been known as “SuperMarket Wars”. Parliament did not want the RMA (or the Environment Court) to be the place where trade competition wars were fought.

The bits of the new RMA that are of interest go like this:

308A Identification of trade competitors and surrogates
In this Part,—
(a) person A means a person who is a trade competitor of person B:
(b) person B means the person of whom person A is a trade competitor:
(c) person C means a person who has knowingly received, is knowingly receiving, or may knowingly receive direct or indirect help from person A to bring an appeal or be a party to an appeal against a decision under this Act in favour of person B.

So. You get the picture. In this situation, we might say that Person B is Fletchers/Winstone Aggregates, Person A might be Envirowaste Services Ltd (ESL), and Person C might be anyone else who might appeal or be a s.274 party to the appeal (like Watercare). The law goes on….

308 B Limit on making submissions
(1) Subsection (2) applies when person A wants to make a submission under section 96 about an application by person B.
(2) Person A may make the submission only if directly affected by an effect of the activity to which the application relates, that—
(a) adversely affects the environment; and
(b) does not relate to trade competition or the effects of trade competition.
(3) Failure to comply with the limits on submissions set in section 149E or 149O or clause 6(4) or 29(1B) of Schedule 1 is a contravention of this Part.

This is where it gets interesting and intriguing. And this is what Judge Smith was concerned about, as David Kirkpatrick swung into action for ESL. What makes this intriguing is that there are three related applications at issue for the Environment Court – two were applied for before August 2009, and the application to discharge contaminants to water was made after August 2009 (ie after s.308 came into force), and was referred directly to the Environment Court.

So ESL cannot fall foul of this new law in regard to part of the hearing, but it could, potentially, in regard to the part that deals with discharges to water. The rest of the RMA law relating to s.308 (Act not to be used to oppose trade competitors), is fairly draconian. Costs can be sought in the High Court if the Environment Court declares Person A contravened the Act, and matters can be brought to court up to 6 years after the alleged contravention. All a bit of worry for an organisation like ESL, or anyone else caught by these provisions for that matter.

In its legal submissions ESL said this on Monday morning:

7.1 ESL is a large national waste management company. Serving the Auckland region it operates the Hampton Downs Sanitary landfill and the Greenmount Closed landfill at which it is soon to complete final cover works through the placement of fill. ESL acknowledges (and has done so from the start), that as a consequence of these particular commercial activities it is a trade competitor of WA, who operates the cleanfill and fill operations at Wiri North and Puketutu Island (former quarries)….

7.3 ….ESL denies that its participation in these proceedings raises issues of trade competition…. ESL is concerned trhat consents for “cleanfill” should not be granted where what is to occur is not a cleanfill…

7.6 ….ESL is concerned: to ensure the integrity of the regional planning framework for the management of landfills, and in particular cleanfills. In doing so, it simply wishes to maintain the level of the “playing field” being used by solid waste disposers in the Auckland region….

7.7 ….if, due to locational advantages or technical superiority, a more profitable landfill can be set up, then that is the market at work. But, this has to be on the proviso that they can also maintain the accepted level of environmental protection for such activities….

I will stop this blog about here – so it is manageable. But before I do so, I will record other related events that occurred at the hearing.

As Mr Kirkpatrick came to the end of his opening submissions for ESL, Judge Smith intervened. He appeared concerned that ESL’s expert witnesses might not be independent. Kirkpatrick noted that that issue or concern could be levelled at almost any expert witness in an Environment Court hearing. (I note here that someone pays the bills of all expert witnesses, and there is always the cynical view, but understandeable view, that he who pays the bill calls the tune…).

Judge Smith agreed with Kirkpatrick's comment saying, “yes, and it’s an issue the Court is not happy with…”

Judge Smith continued that he believed it appropriate to exclude ESL’s witnesses from the court, so they could not hear what was being said, or what questions were asked of other ESL expert witnesses cross examined before it was their turn.

Judge Smith also ruled that ESL witnesses should not discuss the matter with each other outside Court.

This was a dramatic day.