17 May 2010

Mokihinui Madness

Claire Browning has done another thoughtful post on the Pundit blog about the roles of Meridian and Solid Energy in seeking permission to respectively dam the Mohikinui River Gorge and remove the habitat of Powelliphanta augusta for the Cypress open cast coal mine

I agree with her conclusion - it is bad government to let an SOE push the envelope of 'balancing the environment and the economy' as far as Meridian has in obtaining resource consents for a dam on a large undammed river within 337 ha of conservation 'stewardship' land.

Claire Browning asks "how does it serve the taxpayer exactly, for Meridian to battle on with Mokihinui consents, in the face of quite clear signals that they would not get the DOC dispensations that they need?"

Yes, having DOC and Meridian funding lawyers and expert witnesses at both the council resource consent hearings and the Environment Court is obviously a waste of money. Particularly, when DOC, as the agent of the landowner, the Crown, has not approved the use of the Mokihinui River Gorge.

I have been wondering for some time (actually since Easter 2003 when I tramped from the Buller River via Lyell to the south Branch of the Mokihinui River and out the gorge, great tramp actually) why DOC has even been bothering to participate in the resource consent process when DOC has a right of veto over the permission to use conservation land for a non-conservation purpose.

So when I read of DOC's intention to appeal the grant of resource consents, I thought I would just ring up the direct dial number of the "Comms" person given on the press release, and ask. To protect his identity, I have made up the name "Mr Spin".

Our conversation went like this.
1. Is DOC appealing the grant of the consent or just the consent conditions?
"Both. DOC does oppose the substance of decision to grant. I can email you the notice of appeal."
2. What is status of Meridian's application for a concession for the dam?
"It is "on hold" at Meridian's request therefore DOC cannot decide it."
3. Does the Conservation Act 1987 provide for applications for concessions to be placed "on hold"?
"Um as far as I am aware yes, DOC cannot process it, its the same as if there were no application."
4. If DOC opposes the proposal, why does it not simply decline application for concession?
"It is my understanding that the department cannot act on the application for concession if the applicant has requested a delay in processing."
5. Do you realise that the Department is being gamed by Meridian?
"Ah ha ha ha. The department has to follow due process in these matters and Meridian is able to choose how it proceeds with its proposal so the department has to proceed via the Environment Court".

"Mr Spin" had completely recovered from appearing slightly wrong footed by my third question, which after brief hesitation he fudged admirably. With his "Ah ha ha" he was now talking in a very superior tone of "you may say that, I couldn't possibly". The DOC Glenorchy staff I worked with as hut warden in the mid 1990s would no doubt regard "Mr Spin" as a "head office shiny-pantsed seat-warmer".

The RMA clearly provides in section 37A for applicants for consents to request a delay in processing. But the Conservation Act 1987, which deals with concessions in sections 17O through to 17ZJ, has no such provisions. The Conservation Act 1987 does not provide for applications for concessions to be placed "on hold".

"Mr Spin" was reflecting the party line, however incorrect it may be. In September 2009, the Hon Tim Groser informed Parliament: "Meridian Energy has requested that part of the application, with respect to the proposed dam footprint and inundation area, be put on hold while the Department of Conservation processes a land exchange application over the same area"

A land swap! Are they joking? If you follow the case law in Buller Electricity Ltd vs the Attorney General High Court case , DOC cannot dispose of or swap land for a non-conservation purpose. There is no chance that Meridian could find a large river equivalent to the Mokihinui River Gorge outside the conservation estate. Wasn't that the point of the allegedly suppressed Landcare report?

Back to Mr Groser. As at October 2009, DOC are still considering Meridian's land swap application .

I am gobsmacked that DOC is allowing Meridian to dictate the timing of the processing of concession application and also it appears the land swap proposal. DOC has let itself be fooled into wasting time and money opposing the Mokihinui dam in a decision-making forum dominated by 'weak sustainability' when it had at all times the statutory decision making power to decline a concession application or a land swap on due to inconsistence with conservation purposes.

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