8 July 2005

Solid Energy pressure leads to instruction to mislead court and causes witness to withdraw

The CEO of Landcare Research instructed staff to conceal relevant information from an Environment Court hearing on the proposed Cypress open cast mine after Landcare felt contracts worth hundreds of thousands of dollars with state owned Solid Energy were at risk.

Forest and Bird has asked SOE Minister Paul Swain and Crown Research Institute Minister Steve Maharey to investigate the instructions and the subsequent withdrawal of a Landcare Research scientist from being an expert witness after pressure from Solid Energy.

A Landcare Research wetland ecologist agreed to provide evidence in the recent Environment Court case for Forest and Bird and the Buller Conservation Group (BCG) but subsequently withdrew. Two other Landcare Research scientists with different expertise and working in different centres gave evidence for Solid Energy in the same case.

“Information obtained under the Official Information Act after an Ombudsman’s investigation, shows that Landcare Research staff felt pressured by Solid Energy and were concerned about losing Solid Energy contracts if the CRI provided expert evidence for Forest and Bird as well as Solid Energy,” said Forest and Bird Conservation Manager Kevin Hackwell.

One internal email (12 December 2004) from senior Landcare Research manager, Dr David Choquenot stated:

“SE has gotten wind of this and is understandably keen that we withdraw from the appellants’ side of the case”.

Another scientist on the same day said,

“Solid Energy would be most unhappy for Landcare Research to represent both perspectives”[1].

and advised senior staff of Landcare Research that Solid Energy would be most unhappy and that the longstanding mutually beneficial research relationship between Landcare Research and Solid Energy, as well as contracts worth several hundred thousand dollars, could be adversely affected.

Three days later, following a discussion with Don Elder the CEO of Solid Energy, the CEO of Landcare Research, Dr Andrew Pearce, directed that any employees giving evidence to the Environment Court in this case were not to acknowledge that their colleague giving evidence for Forest and Bird and the BCG was a Landcare Research employee, stating:

“Further to my message yesterday, and a subsequent discussion with Don Elder, CEO of Solid Energy it is imperative that our staff giving evidence do NOT refer to [the scientist] as a Landcare Research employee. Please ensure that everyone associated with this matter takes great care to avoid referring to or acknowledging [the scientist] as a Landcare Research employee in discussion, evidence or conversation….” [2]. [original emphasis]

“Given that the scientist had been employed by the CRI and its predecessor for 32 years, it is extremely difficult to see how staff could have complied with this directive without misleading the Court,” said Mr Hackwell.

“This case highlights the apparent lengths Solid Energy was prepared to go to, to muzzle independent scientific advice and the extent to which Crown Research Institutes are captured by commercial interests,” Mr Hackwell said.

“Solid Energy and the actions of Landcare Research management effectively prevented a Landcare scientist from critically evaluating the mine’s impacts on wetlands and proposed rehabilitation, and presenting this information to the Court,” Mr Hackwell said.

“Forest and Bird understands that it is Landcare Research policy that its expert employees give professional, objective and impartial advice and evidence when engaged in Court proceedings. This policy is in line with the Code of Conduct for Expert Witnesses (Schedule 4 of the High Court Rules). Under these rules there should be no question of Landcare Research staff representing “both ‘perspectives’” or the “appellant’s side of the case.”

“The public needs to be confident that CRIs provide independent scientific advice. Events around the Cypress mine case are disturbing. They show how CRI’s can be influenced by their corporate clients.

“The actions of senior management in Solid Energy and Landcare Research strain the credibility of both organisations.”

Forest and Bird is seeking an assurance from the Minister of State Owned Enterprises that it was inappropriate for Solid Energy to seek to influence Landcare Research about the provision of relevant scientific advice for other parties in an Environment Court case.

Forest and Bird is also seeking an assurance from the Minister of Crown Research Institutes that it is inappropriate for Landcare Research to accede to pressure from clients to make it impossible for staff engaged by other parties to proceedings to present independent expert evidence to Environment Court hearings.

[1] Dr Robyn Simcock internal email 12 December 2004
[2] Email from Andy Pearce, dated 15 December 2004, subject heading: “ URGENT: Re: Environment Court Evidence – Solid Energy’s Cypress Mine”.

Background

Supporting documentation released under the Official Information Act available on request

Notes

Landcare Research management claimed there was conflict of interest to justify their actions. The “Code of Conduct for Expert Witnesses” (Schedule 4 of High Court Rules) means there should be no question of a conflict of interest if scientists from a CRI give evidence for different parties in the same case because expert witnesses do not “represent” or advocate for their clients. The Code states:

“Duty to the Court

1. An expert witness has an overriding duty to assist the Court impartially on relevant matters within the expert’s area of expertise.
2. An expert witness is not an advocate for the party who engages the witness.”

The withdrawal of the Landcare wetland ecologist as a witness for Forest and Bird and Buller Conservation Group meant that the organisations had to engage another wetland ecologist at very short notice.

As the accompanying material indicates it has already been very hard on Dr Peter Johnson (the expert witness who withdrew) as it is. We would therefore appreciate it if you could refrain from referring to him by name if at all possible.

ENDS

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