Court finds Solid Energy noxious, but snails lose
Court finds Solid Energy noxious, but snails fall through legal loophole
FOR IMMEDIATE USE
15th December 2006
PRESS RELEASE | Save Happy Valley Coalition Inc
Summary of judgement below
The Environment Court today ruled that mining the habitat of critically-endangered land snail Powelliphanta "Augustus" is "an action which is noxious, dangerous, offensive or objectionable " and that there is a high risk to the snail's survival in destroying its only known habitat. However, the Court considers that the Resource Management Act does not apply to Coal Mining Licence land, leaving it without jurisdiction to stop the "catastrophic event (which) has now arrived in the form of Solid Energy's bulldozers which will destroy much of the snail's known habitat".
The court found that:
- Powelliphanta "Augustus" is undoubtedly an important addition to the biodiversity of New Zealand
- Destroying the only known habitat is a high risk strategy
- Solid Energy's mining activity is, under section 17 of the Resource Management Act, noxious, dangerous, offensive and objectionable
- But the Coal Mining Licence is an existing privilege, and is not subject to the RMA
"It's a dark and dirty secret that some coal mines operate outside of this country's basic environmental regulations," said Save Happy Valley Coalition Incorporated spokesperson Frances Mountier.
"The Court recognises that Solid Energy made no attempt to amend its mining plans to avoid the snail and makes a mockery of the Minister of Conservation's decision to allow Solid Energy to kill the snails. The Court has indicated that the mining is a catastrophic event for the snails and that the mitigation proposed by Solid Energy is high risk.
"While the court recognises the dire situation these snails are in, a special legal loophole means that it is unable to protect them. An appeal will be lodged against the decision and we hope to have it filed today," said Ms Mountier.
The Powelliphanta "Augustus" snails live on a tiny mountain top site within the Stockton opencast coal mine on the West Coast. Since April, more than fifteen hundred snails have been moved into temporary housing in fridges in Hokitika, or to parts of the Stockton mine, and heavy machinery has started "direct transfer" of the snail habitat.
"It's the irreversibility of destroying our biodiversity that is so tragic in this case. Once you bulldoze their home, you doom the snails to an uncertain future – and highly likely extinction. What's frustrating to us is that that by the time any appeal is heard, we could be arguing over a species that is already functionally extinct," said Ms Mountier.
-More information on Powelliphanta "Augustus" can be found at http://www.savehappyvalley.org.nz/augustus_introduction
-Solid Energy had never applied for resource consent for this area; consequently this is the first decision under the RMA in relation to this matter.
-Earlier this year the Ministers of Conservation and Energy approved plans of state-owned coal miner Solid Energy to mine 94% of the species' remaining habitat.
Summary of Judgement
 There is nothing in the evidence before us which leads us to any conclusion other than that Solid Energy gave no serious consideration to avoidance of the snail habitat in its mining programme.
 To paraphrase Mr Buckingham, Powelliphanta "Augustus" is a small, isolated population at risk from catastrophic events. A catastrophic event has now arrived in the form of Solid Energy's bulldozers which will destroy much of the snail's known habitat.
 … We are convinced by the evidence of Ms Walker and Professor New that in the present state of knowledge translocation is high risk. There is the possibility of failure of the process and that failure will take place in the background of most of the snails' existing habitat having been destroyed along with an unknown number of the snails themselves. We again refer to the provisions of s6(c) RMA and note that the destruction of this significant habitat of a rare native animal appears directly contrary to that provision.
 … It is our considered view that the destruction of a substantial portion of the habitat of the Powelliphanta "Augustus" in a situation which might possibly lead to extinction of that species is an action which is noxious, dangerous, offensive or objectionable to such an extent that it is likely to have an adverse effect on the environment.
 We find however that even if it is accepted that there has been a breach of the conditions of CML 37 150 on the part of Slid Energy, that does not operate to remove the company's mining operation from the regime created by the Coal Mines Act 1979 and bring it under the ambit of the RMA