‘A kick in the face for Christmas’ – that’s how Catherine Delahunty, chair of Coromandel Watchdog of Hauraki, describes the news that her group must pay almost $80,000 in costs after losing its bid to stop a toxic waste dump near Waihi.
It’s the week before Christmas and I am trying to buy grandchildren presents that will last and think about food for Friday. It’s the end of a long hard year for many people. Then I get an email from the High Court via our lawyers stating that costs have been awarded against our group Coromandel Watchdog of Hauraki, stemming from the judicial review case we lost against Crown Law and Oceana Gold, a multinational mining company. They want us to pay these well resourced agencies $79,000. These decisions always seem to come out the week before Christmas – not because the judiciary are trying to make us even more stressed, but because they are finishing up work for the year. And what we might feel about the timing just doesn’t matter, we are just citizens fighting for public good and thus invisible as human beings carrying the weight of failed policies to protect the environment.
If I sound bitter it’s based upon 40 years experience of David v Goliath. Goliath ( the High Court judge in this instance) ruled that our case against ministers David Parker and Grant Robertson and Oceana Gold had no public interest value and no public importance. Therefore we should pay costs we simply cannot afford.
There is history with this case which starts with Oceana Gold applying to buy 178 hectares of farm land at Waihi to build a new toxic waste dump and expand their gold mines. As a foreign company, it had to apply to the minister of lands information who at the time was Eugenie Sage. She declined consent, saying the toxic dump was a bad land use which risked future costs, the climate and the community. Oceana Gold sought a judicial review into the decision, and applied again to the government. The new application was taken off the minister of lands information by cabinet and given to Parker and Robertson, who deemed it a great idea which would create jobs. This whole process was a sabotage of Eugenie Sage and ignored the consideration of risks when assessing the national benefit of the project. So Coromandel Watchdog of Hauraki took them to the High Court.
We lost, and now the judge has awarded costs against us on the grounds that there were no public interest issues. We believe there are two vital matters which should have been acknowledged as public interest. The first is that the Overseas Investment Act is all about national benefit but needed clarification as to whether detrimental issues should have been considered. If you buy a car you look at the benefits and you look at the possible risks, that is how judgements are formed. So we wanted the issue of detrimental issues in the assessment of national benefit to be clarified,
Secondly, the Green and Labour government ministers were divided over the detriment issue and made opposing decisions. The public needed clarification. Public interest is the driver for groups of volunteers like ourselves who derive no personal gain from seeking clarity on these matters. As a former MP I know how sloppy our laws often are and how testing them has to be carried out via the courts. I know also that the public interest is something that all courts should consider when looking at the motivation of voluntary groups testing the law. I know that judicial review is a legitimate mechanism for holding ministers to account for their decisions and that we acted seriously and carefully. We paid a small amount to our lawyers who also gave much free time to this case and also believed it was a public interest issue.
Why do the miners want a second toxic waste dump at Waihi? They want to expand via a new open cast pit and underground mine there, and they want to tunnel under DOC land behind Whangamata: the habitat of a taonga species, the rare Archeys frog. They cannot see the value of the land, only the gold. But we will not accept undermining of Coromandel forest, even if DOC has given them access.
As a result of this judgement we face a huge financial challenge which is a drop in the bucket to Crown Law and Oceana Gold. I do not know yet how we will address this challenge, but I do know that we will never give up challenging those who threaten the land and waters and communities with toxic mining. The “jobs versus environment” argument is a tired distortion of the issues. We could create many jobs mining e-waste and stop the desecration of the natural world; it just takes some imagination and state investment. All the rhetoric of “build back better” seems to mean “do more of the same” when it comes to extractive industries.
We are sick of the rhetoric and the punishment we are receiving for questioning the desecration of the country. We are sick of powerful interests being facilitated at the expense of the voiceless natural world. We suggest that government ministers take a look at their “nuclear moment ” and do something real about stopping climate change emissions and toxic industries like gold mining. That would be a real Christmas present.
In the meantime we will carry on defending the beautiful place in which we are privileged to live and we will call on people who love it to support us. The court might rule there is no “public interest” and “public importance” in our legal challenges, but they are clearly not the best judge of what that means. Standing on the right side of history is costly, but doing nothing will cost far more in the long term.