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Request to the New Zealand Press

Request to the New Zealand Press.

A request to New Zealand’s media from Save the Wairau River Inc. in response to the Monday 14th January 2008, article in the Christchurch Press.


Save the Wairau River Inc., was formed to oppose a TrustPower proposal to divert the major part of the Wairau River’s flow for hydro-generation. The initial hearings were heard before three Marlborough District Council appointed commissioners, chaired by Judge Willy. None of those who submitted against the proposal could, on the strength of the expert testimony presented, credit the Commission’s decision to allow the application. Rarely, can such a one-sided judgment have been passed - but until now, no one has been able to gain any insight as to why this might have happened.
We now have evidence that Judge Willy might have had reason not to act with the scrupulous fairness that his position would demand. (For examples of this injudicious approach to the proceedings, see footnotes below.)

Yesterday’s article in the Christchurch Press revealed Judge Willy’s failure to declare significant conflict of interest.

According to the Press “Company office records show that Willy has held 650,000 shares in Ecodyne Ltd since 1995. Ecodyne, which has 16 million shares, was established “to develop environmentally benign forms of power generation.”” Furthermore the Press reports that “On Friday, he (Willy) informed the Marlborough District Council…..that he believed their was no perceived conflict of interest and he was satisfied he was able to continue as a commissioner.”

This is not the first time that Judge Willy’s performance of his judicial duties has received negative press. The following appeared in the National Business Review” on 29th June 2001 under the title “Rogue judge expected to quit as discontent at performance grows.” Extracts from the article include:

“High Court Justice Grant Hammond found in March that Judge Willy misconducted himself so seriously and unfairly…that he ordered a complete retrial.”
“The misconduct claims…were said by lawyers to be among the most serious known to have been made against a judge…”
“The lawyer said it would be very difficult for Judge Willy to be taken seriously and doubt would be cast over every case he dealt with.”
“High Court judgments …involving Judge Willy show that accusations including bias, unfairness, impatience, brusqueness, scepticism, sarcasm, disruption, irrelevance, irritation, aggression, unprovoked interventions, lack of understanding, prejudice and unevenness over the way he mishandled cases have been levelled at him.”

Despite today’s revelations in the Press, Judge Willy has announced his intention to continue with the next phase of the hearings, due to commence on Monday next week. For obvious reasons, our Society has no confidence in the outcome of any judicial process, past or future, chaired by Judge Willy. However, we have been told that if we are to prevent the continuation of this, what we have come to view as judicial farce, we have to raise around $20,000 to commence legal proceedings and take a High Court injunction. Currently, we have limited financial means all of which are set aside to help us raise the $100,000 we require for an anticipated appeal to the Environment Court.

The law is too expensive and in this case appears to be deeply flawed. At stake is the survival of one of the very few remaining braided river systems in the world. We would appeal to the New Zealand media to come to our assistance and, by researching and publishing further detail on this affair, bring to public attention the full story which we are convinced would, if revealed, demonstrate the hearing has been unfair and Willy’s conflict of interest has tainted the proceedings. That being the case, the decision will need to be revisited afresh and the River may be saved.

In Judge Willy’s findings on the initial hearings on TrustPower’s application, he reached a judgement that the diversion of sixty percent of the median flow from this braided river, thereby reducing it to a single channel for much of the year, would have an effect on its ecology that was “minor or less than minor.” This finding was made in spite of comprehensive expert evidence to the contrary which appears to have been given scant consideration in the decision.

He now claims that the fact that he was the fourth-largest shareholder, with 650,000 shares in Ecodyne Ltd., was of insufficient significance to be worth declaring as a conflict of interest, prior to acceptance of a position to sit in judgment on TrustPower’s resource consent application. A Google search on “Ecodyne TrustPower” comes up with at least five hits indicating an indirect commonality of interest between the two companies. At the very least both these companies clearly have or have had an interest in the energy and electricity sectors.

Whether or not Judge Willy stood to make any money out of any possible, past or future relationship between Ecodyne and TrustPower is of course supremely relevant. However, even if such a connection could not be demonstrated, or even did not exist, could it not reasonably be asked whether his failure to declare the interest on appointment could have exposed Judge Willy to other anxieties that might have affected his judgment? If Judge Willy believed that he ought to have declared his conflict of interest but had failed to do so, and if he believed that TrustPower knew of this failure, then might he not, human nature being what it is, tend to go out of his way in his judgments not to give TrustPower reason to be aggrieved at his performance? (Nor would his anxiety have been unreasonable. It is not improbable that TrustPower, in its dealings with the Chairman of Ecodyne on other renewable energy matters, would have conducted due diligence on associated companies and found Willy’s name as an Ecodyne shareholder at the Registrar of Companies.)

On both his judgment as to the insignificance of a loss of sixty percent of the Wairau’s flow and as to the insignificance of his shareholding in Ecodyne and its potential implications, one would have to question Judge Willy’s ability to form sound and impartial judgments.

His interest in Ecodyne is not Judge Willy’s only conflict of interest. We are told that, on appointment to his chairmanship of the commission, he assured the MDC official responsible that he had no conflicts of interest. However, after his appointment was secured, he informed a pre-hearing meeting of interested parties that he had a “minor” conflict of interest in that he was married to the owner of a large estate drawing water from the Wairau under the MDC’s Southern Valley’s irrigation scheme.

The fact that a major shareholding in Ecodyne is judged to represent so insignificant a conflict of interest that it is not worth declaring, begs the question “Just how serious might be the conflict that was worth declaring?” Is it, for instance, TrustPower that provides the 3+ megawatts of electricity required just to prime the Southern Valleys scheme’s pipes – and at what price? Furthermore, one cannot help but wonder if there might be other conflicts of interest, which have, as yet, not seen the light of day?

In light of the questions raised by the Christchurch Press investigation, everything in relation to this application and its process to date, has to be called into question. How can anyone in opposition to TrustPower’s application, have any confidence in a fair hearing under these circumstances? Real and perceived conflicts must be avoided if a hearing is to be properly conducted and the public to have confidence in the outcome.


Under the Resource Management Act (S.34(7)) the Marlborough District Council has the authority to withdraw the delegation of decision making from the commissioners. with immediate effect. We doubt that the Council will have the courage to make this necessary move without further encouragement from the media and its public. We need your help.

Thank you..


Hugh Steadman, Chairman,
Save the Wairau River Inc.
Blenheim
16/01/08.


Footnotes:
Some, but by no means all examples of the way in which decisions, in the first round of hearings, were reached.

1. Mr Fraser, a long established Marlborough valuer, was called by a property owner, whose property was affected by the proposed scheme, to give evidence as to the adverse effect it would have on the value of their property. TrustPower called in a valuer form the North Island. Judge Willy dismissed Mr Fraser’s opinion as “having no more value than that of a layman.”
2. Neil Deans is the Manager of the Marlborough/Nelson Fish and Game Council. He is an acknowledged expert in his field of freshwater ecology and is employed by F &G to advocate for the protection of freshwater habitat. In his report Judge Willy called Deans “biased” even though he was doing no more than his duties demanded. The same adjective was not used to describe TrustPower’s witness offering expert opinion in the same field.
3. Another expert witness, Ian Jowett, was misquoted by Judge Willy in his report. Jowett had testified that there “would be some effects” if flows were lowered to the extent proposed. Willy reports his evidence as having stated that the effects would be “less then minor.”
4. Save the Wairau River Inc., presented the Commission with a brief, initial report, which it had paid to have produced by the Climate Change Unit of the University of Waikato. This predicted that the inflows from the Wairau’s downstream tributaries could be expected to decrease and become warmer over the next thirty and more years. Save the Wairau submitted that the Waikato evidence provided grounds for arguing that as a precaution, before any decision could be reached on minimum flow regimes, a full climate change computer modelling exercise should be conducted by an institution such as the UK’s Hadley Institute. In Judge Willy’s report, there was no mention of this submission nor, indeed, of climate change. On the contrary, to counter the anxiety of some submitters that a rise in water temperature might inhibit trout’s ability to spawn, Judge Willy’s report refers to the ameliorative effect of “the inflow of cooler water from tributaries..”
5. Many submitters against TrustPower’s proposal were landowners living beneath TrustPower’s proposed canal and having spillways crossing their land. The hearing took place at a site approximately ten kilometres from these properties. However, despite invitations to do so, the Commission never took the opportunity to make a site visit to any of the properties that were to be affected by its decision.
6. One of the key components of the hearing was the fate of the Black-Fronted Tern, an endangered New Zealand native bird that nests on the braids in the river. The TrustPower application jeopardises one of its five remaining breeding sites. Dr Rachel Keedwell was an expert witness called by Forest and Bird. Judge Willy appears to have enjoyed diminishing her and confused her apparent lack of confidence with a lack of competence. Evidence, which the panel relied on as absolute from the Applicant’s experts on Avifauna, has since been contradicted more in line with the concerns raised by Dr Keedwell.

Predation

178
Willy. Of course the agreement of a limited number of experts is not binding on us, but we would need a very good reason to depart from it. One such reason might have been Dr Keedwell’s evidence given with the code of conduct in mind that very expensive predator control work on the Eglington and Tasman Rivers was not having any significant effect in enhancing bird survival rates.

180
Willy. Contrary to this we have the evidence of Dr Sanders. He has impressive experience both within and outside NZ. He has reviewed the evidence of all relevant witnesses on the question of predator control and chaired the panel of experts referred to above.

191
Willy. It seems that the only person who disagreed that the figures presented tend to show that population densities of terns is not related to river low flows was Dr Keedwell

192
Willy. We therefore find that we cannot give weight to Dr Keedwell’s dissent on this aspect of the caucusing, but must give weight to the consensus reached by the other experts present.

193.
Willy. For the reasons expressed above we are satisfied that the scheme as mitigated, and subject to the proposed predator control and BFT monitoring provision contained in draft Conditions RBA1-RBA14, will have less than minor effect.

Yet Dr Sanders, who received glowing praise by Willy as an expert bar none, has completely contradicted his position and essentially supported the position taken by Dr Keedwell in a subsequent presentation of evidence on behalf of Meridien Energy. Dr Mark Sanders concluded from research on the Waitaki River River "That predator control was not a reliable method of protecting black fronted tern eggs or their chicks."

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