DOC papers released to me, under the OIA, show Meridian deleting key email to pre-empt its release, and slowing down DOC decision-making

So, the Pork Industry Board decides the Official Information Act kind of sucks. Bit like a sow crate, really: not much wriggle room, but they want to try. So then, they write this down, and send it round externally.

In May, I blogged about West Coast hydro power shenanigans, including Meridian’s proposal to dam and flood the Mokihinui river valley. According to DOC:

As far as we have been able to ascertain, the Meridian Energy Mokihinui hydro scheme is the largest scale proposed inundation of public conservation land in New Zealand since the Manapouri scheme … If approved, and constructed, it appears that it will be the largest inundation for hydro electric generation purposes of lands and ecosystems set aside for protection and conservation ever seen in this country.

Meridian wants this badly. Papers released to me, under the Official Information Act (OIA), show them stalling in the face of adversity, and trying to strong-arm DOC’s West Coast conservancy, which doesn’t. It’s legal and political jousting: Meridian’s a tough street fighter. As I wrote here, it has to be.

In April 2008, Meridian sought a concession from DOC as land owner, which it needs as well as the resource consent, granted in April this year. The application wasn’t quite tailored to DOC’s needs. Months passed, as DOC made repeated requests for information and clarification, and started to draft a report.

Then, in December 2008, Meridian asked that it be put on hold in part, while they progressed a land exchange. Meridian would acquire some other bits and pieces of land, give them to DOC, and in return DOC would discharge its responsibilities for the parts of Meridian’s proposal they were unlikely to be able to consent to: the damming and flooding of the gorge.

The remainder of the concession (for transmission lines) limped on. By September 2009, even Meridian’s own project manager started to wonder why it was going ahead: he seemed dismayed to learn DOC was circulating an early first draft.

“I realise we have been very slow … However, how has the first determination report been written with these matters still outstanding?” he wrote, referring to information requested from him a year earlier. And, on being advised he had answered the questions in January: “You’re absolutely right … (it’s been so long I had forgotten I sent it)”.

On November 19, 2009, DOC wrote to him again, to advise their draft conclusions on the land exchange:

The public conservation land sought by way of exchange by Meridian has very high conservation values. The land offered by way of exchange by Meridian although larger in area, has considerably less conservation value than that which Meridian seeks to exchange it for, and [with one exception] the values present on the land offered by way of exchange are well represented on public conservation lands.

It would not enhance the conservation values of land managed by the Department, concluded DOC, or promote the purposes of the Act; therefore, it should be declined. They sought Meridian’s comment, as per standard process.

Meridian was angry:

We agreed you would not provide us with a draft report in the meantime. You have e-mailed it to me anyway, contrary to what we agreed and presumably in error. I have deleted it from our e-mail system. Please do not resend it in the meantime, for the reasons we discussed … For the avoidance of doubt, I confirm that the draft report would, if released to a third party, potentially prejudice Meridian’s commercial position. For that reason, you must not release it to any third party.

This, fired off on email (my emphasis), was repeated in a letter, to which DOC responded on December 10 (again, my emphasis):

I wish to correct your impression that the Department agreed not to forward the draft report to you. This is not the case. You certainly refused to accept it on the basis that you wished to consider further options to acquire additional land and were concerned at the risk of information in the report being released under the Official Information Act … the report was deemed to be ready for release to you as a draft and accordingly forwarded to you. …

In summary, I wish to make it very clear that the Department considers the values within the proposed exchange area to be very high. … In our view, the inundation of this land would result in a total loss of these values. The overall value of the land offered by Meridian is moderate …

DOC signalled its intention in the new year to refer the matter for a statutory decision by their Minister.

On January 27, 2010, Meridian’s lawyers replied:

We begin by saying that due to the matters raised in this letter we assume the application will not be forwarded to the decision maker for a decision. Please advise urgently if this is not the case.

Assuming resource consent was granted, in the national interest DOC’s Minister might, according to Meridian, want to be in a position to be able to agree to a land exchange; there were also alleged flaws in DOC’s logic. DOC replied:

We acknowledge you have asked that putting the report to the decision maker be deferred. We consider however, that once the report is complete, it should be referred to the decision maker for a decision. We do not agree that the report needs to await the outcome of the resource consent applications; that might be years if there are appeals and in any event, the statutory tests under the [Conservation Act] and the [Resource Management Act] are quite different. We consider that delaying the decision on a matter which is ready for the decision, even at the applicant’s request, does not make for good decision making. … Thus the Department’s intention is to complete the draft report and forward it to the decision maker for consideration…. The Department’s view in this case is that the land Meridian proposes to acquire through the proposed exchange, has significant values. These values are such that the land needs to be retained as pubic conservation land … simply adding more and more land to the equation is unlikely to warrant a change of view.

On March 3, kicking it up another notch, Meridian CEO Tim Lusk wrote to DOC’s West Coast conservator:

The comments … appear out of step with the current Government’s position that the Department should focus on working more closely alongside businesses. The Department has even taken the step of establishing a new commercial unit, which according to the Director-General Al Morrison, is partially “a response, to the possibility of more energy-generation projects on the conservation estate” … Initiatives such as this are encouraging; however Meridian’s experience is that these initiatives are not being put into action at the conservancy level. … I reiterate our request that the Department does not forward the draft report on to the Minister …

DOC proceeded, their latest iteration of the draft report dated March 29 noting an apparent mistaken belief by Meridian “that an exchange can occur eventually, it is simply a question of what needs to be offered to achieve it,” whereas the values of the Mokihinui are such that it is most unlikely ever to be suitable for exchange.

On April 9, following what one imagines must have been a free and frank personal exchange, Meridian requested “that our application for land exchange be put on hold until further notice (as has been done with our concession application)”. On May 10, both the concession and land exchange applications were formally withdrawn.

It was one part of a new collaborative (“without prejudice”) approach, which also saw a joint application to the Environment Court to put the appeal on hold, until discussions had been completed and the Minister of Conservation had made her decisions. Though of course, the applications having been withdrawn, there would be nothing on which to decide in the meantime, pending fresh applications.

The Court declined. The appeals will proceed.

When “it becomes widely known that the parties to the appeal are jointly seeking that the appeal be placed on hold while Conservation Act issues are progressed … there will be those who erroneously read into that some kind of inappropriate collusion,” noted Meridian’s lawyer. Reading between the lines, DOC’s position on the land exchange has not changed.

Also, gallingly: “We would like to note that this proposal is of the highest priority for Meridian and, accordingly, we will allocate all resources necessary to progress this without delay”.

A DOC email of June 30 says it will abide the court’s decision, and thinks the proposed timetable allows good opportunity for discussions over the next several months. Sources tell me that Meridian, resisted by other parties to the appeal including DOC, are asking the court to delay the timetable.

Comments (3)

by Simon on August 06, 2010
Simon

Claire, I am happy to be the first to congratulate you on your excellent investigation work into Meridian's malevolent Mokihinui River activities. I am not surprised at their tactics in setting their RMA lawyers on DOC and giving them lectures on how to run their own processes. I saw similar tactics when I worked for Ecan. Polite, professional but unequivocally about power (political, not the energy sort!). A senior partner in RMA law would politely as anything directly call you (or your supervisor), and request that they (a partner + associate + junior) meet you and your supervisor and your section manager and make some 'helpful procedural suggestions' conveniently set out in a legal submission that included lots of statutory interpretation and case law. Meridian did that once or twice about the process for the farmer water takes under the Waitaki River allocation plan.  As well as for the North Bank Tunnel Concept. Funnily enough, Meridian's hydro consents, which were only recently lodged, went to hearing way before all the irrigators applications, most of which had been lodged way before Project Aqua or the Waitaki River Water Allocation Plan process of 2003-2004.

 

I sense a "heads we win, tails DOC loses" approach being applied in their response to DOC providing Meridian their draft report. Meridian's lawyers would crucify DOC for a breach of natural justice if they did not get advance notice of a potentially adverse finding. But they would have been so polite if the 'draft for their comment' report had been in their favour. It's my understanding that providing a draft for comment satifies a requirement for natural justice, but it is certainly not meant to allow withdrawal from the process or additional submissions of new arguments or requests for DOC's official information to suddenly become outside the scope of the OIA.

I was not impressed with DOC's previous stance of agreeing to an ill-defined  'hold' on the concession and land swap applications. But in this case I am pleasantly surprised to see DOC West Coast standing their (conservation) ground.

 

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