5 September 2012

A decision by the Otago Regional Council not to take part in the restorative justice process has been called "mean-spirited" and "short-sighted" by lawyers for the two companies it was prosecuting.

The charges came after Thompsons Creek was discoloured by sedimentation on August 20 and 22, 2011, after City Forests' contractor, Chunky's Contracting, began logging in a plantation off Reservoir Rd. The sedimentation entered the salmon hatchery's tanks and killed about 5700 hatchlings and two 1-year-old salmon.

At the companies' sentencing in the Dunedin District Court yesterday, Environment Court Judge Jeff Smith suggested restorative justice might be the best way to deal with a situation where one local body was essentially prosecuting another.

"Ratepayers' money might be spent more wisely through restorative justice."

He did not want to see a Canterbury-type situation developing in Dunedin where councils sued each other, he said.

"I'm trying to find a way for councils to resolve issues when they do have them."

However, the regional council turned down the offer, with its counsel, Nathan Laws, saying while the council had followed the use of restorative justice in environmental matters, it was too late in the process to do so with this case.

"Its view is it may prolong the matter unnecessarily."

The regional council had not treated City Forests any differently than any other company, he said.

Chunky's counsel, Werner Van Harselaar, said it was "mean-spirited" of the council to turn the idea down as it would have great benefit to the community.

"It could have very positive outcomes."

City Forests counsel Michael Parker, who had applied for the company to be discharged without conviction, said restorative justice would only prolong things beneficially and it was "short-sighted" of the regional council to turn it down.

"It is a lost opportunity."

Judge Smith said the council had chosen the "cheaper outcome but not necessarily the best outcome".

He believed the process would have been of benefit as the outcome would have probably been more in keeping with the community's expectations "given the area is owned by a council company".

As it required the agreement of all parties, Judge Smith said he had no option but to progress with sentencing the two companies.

The sedimentation had come from a vehicle crossing area across Thompsons Creek but heavy weather had caused it to be overtopped and sediments were carried downstream into Otago Harbour, he said.

Chunky's Contracting then endeavoured to alleviate the problem, causing a second discharge.

The hatchery was affected by the first discharge, but not the second, as it shut off its intake.

As a result of the incident, City Forests supplied it with fresh water and covered the costs of pumping. It also became its sponsor, while Chunky's Contracting contributed $3000.

"The hatchery has been compensated."

While the area often experienced high sedimentation loads in bad weather, the sedimentation in this case lasted longer, he said.

The effect on the hatchery was smaller than it might appear, given it had 17,000 fry on site, Judge Smith said.

While Chunky's Contracting was primarily responsible for the breach, he noted City Forests had a supervisory role and was aware of the susceptibility of the area and had obligations to check the work regularly.

Both companies should have put siltation traps in place as soon as the weather deteriorated.

"It may not have avoided what happened, but it would have significantly reduced the quantity and length of time of the discharge."

Chunky's Contracting offered to pay the hatchery $5000.

On one charge of disturbing a river bed, City Forests was fined $7500, with costs of $143.75 analyst's fees, $113 solicitor's fees, $103.60 photocopying and $132.89 court costs. It was convicted and discharged on three other related charges.

Chunky's Contracting was fined $15,750 and ordered to pay $143.75 analyst's fees, $132.89 court costs, $103 photocopying costs and $113 solicitor's fee. It was also convicted and discharged on three other related charges and ordered to pay on each charge $113 solicitor's fees and $132.89 court costs.

Judge Smith ordered 90% of each of the fines be paid to the Otago Regional Council.

Otago Daily Times - Wed, 5 Sep 2012