Friday 26 August 2005 - Wellington

Media release for immediate use

Environment Court’s dismissal of Solid Energy’s costs application welcomed

The Environment Court today dismissed what Forest and Bird described as an “excessive and intimidatory” application by Solid Energy for costs of $379,342 in the Cypress open cast coal mine case.

Solid Energy had sought to recover $176,682 in legal fees and expenses, and $202,659 in witness costs from the Royal Forest and Bird Protection Society and Buller Conservation Group (BCG) for a two week Court hearing.

“With such a large application, the SOE was trying to punish Forest and Bird and BCG for daring to oppose the mine. This was clearly a strategic law suit against public participation (SLAPP),” Forest and Bird regional field officer, Eugenie Sage said. “Forest and Bird welcomes the Court’s decision to dismiss the application.”

Buller Conservation Group spokesperson, Pete Lusk also welcomed the Court’s decision.

In its decision released today the Environment Court said, “we have determined that this was a case that was properly brought before the Court. It involved fundamental issues under the (Resource Management) Act…. We consider that the case was properly conducted by both Forest and Bird and the Buller Conservation Group (and other parties) and was a proper case for determination by the Court.”

“Solid Energy’s excessive costs application was typical of the SOE’s bullying tactics. In granting consent to the mine in May, the Environment Court clearly said that its preliminary view was that costs were not appropriate, as the case raised serious issues, which were properly bought before the Court and were supported by appropriate expert evidence and submissions.”

“Solid Energy chose to ignore this and proceed with the costs application.”

“Government should rein in this out-of-control SOE and ensure that it implements its Statement of Corporate Intent. One of Solid Energy’s three key objectives is that it will, “exhibit social responsibility having regard to the interests of all stakeholders.” It has failed miserably to meet this objective.”

Ms Sage said the Cypress mine case highlighted the imbalance between what large companies such as Solid Energy, and public interest groups such as Forest and Bird and BCG could spend on Environment Court cases.

“The Ministry for the Environment’s Legal Assistance Fund is invaluable in slightly levelling the playing field. The National Party’s proposals to axe the Fund would make it very difficult for community organisations to bring cases to Court.”
Forest and Bird funded its own case on the Cypress mine. The Buller Conservation Group received a grant from the Fund to help fund expert witnesses and legal counsel.

Forest and Bird estimated its legal and witness costs for the Environment Court hearing as approximately $20,000 (not including staff time).

In a counter-claim lodged after the Solid Energy claim, Forest and Bird and BCG had jointly sought costs of $10,000 from Solid Energy because of unfounded allegations in the SOE’s costs application. The Court also dismissed this application.

background Notes for Media

Strategic Lawsuits Against Public Participation (SLAPPS)

“Strategic Lawsuits Against Public Participation” (SLAPP) were first used in the United States. They are used by corporates to seek to intimidate individuals and community organisations that oppose environmentally damaging activities, and stop them and others from speaking out.

Sharon Beder, author of Global Spin – The corporate assault on environmentalism says for corporates the aim of such legal action is not to win compensation, but “to harass, intimidate and distract their opponents” and discourage them from further activism.[1]

Beder said, “The corporates “win” the court cases when their victims “are no longer able to find the emotional, financial and mental wherewithal to sustain their defense. They (the corporates) win the political battle, even when they lose the court case, if their victim and those associated with them stop speaking out against them.”

SLAPPs have been defined as “a civil court action, which alleges that injury has been caused by the efforts of non-government individuals or organisations to influence government interest on an issue of public interest or concern.”[2]

From a decade long study, two American academics, George Pring and Penelope Canaan, found that SLAPPs are filed by one side of a public, political dispute to punish or prevent opposing points of view.

They often include flimsy charges with little substantive merit and have outrageously large claims of damage. SLAPPs seek to divert the time, energy and resources of the targeted individual or organisation away from their environmental or social activism to defending the legal action.

Most SLAPPs are dismissed by the courts. In the USA 77% of the cases heard by the courts are won by people being sued.

As one United States trial judge has noted:

“The conceptual thread that binds [SLAPPs] is that they are suits without substantial merit that are brought by private interests to “stop citizens from exercising their political rights or to punish them for having done so”…. The longer the litigation can be stretched out, the more litigation that can be churned, the greater the expense that is inflicted and the closer the SLAPP filer moves to success. The purpose of such gamesmanship ranges from simple retribution for past activism to discouraging future activism.”[3]

KEY OBJECTIVES OF SOLID ENERGY

Solid Energy’s principal objective is to maximise shareholder value by generating a sustained long-term return greater than the market cost of capital for businesses with a similar risk profile. This is supported by the following key objectives:
(a) Enhance our reputation as a good employer, retaining skilled, motivated and committed staff and providing:

• Safe working conditions based on best practice health and safety systems and processes.
• Training and development programmes to enhance individual abilities of employees.
• Equal employment opportunities.

(b) Environmental sustainability of operations through an overall environmental objective of ensuring the cumulative result of all the activities we undertake has a positive net effect on the New Zealand environment.

(c) Exhibit social responsibility having regard to the interests of all relevant stakeholders.

From: Solid Energy’s “Statement of Corporate Intent (For Three Years Ending 30 June 2007)”

CYPRESS MINE

In May 2005, the Environment Court granted resource consents for the Cypress open cast mine. Forest and Bird has appealed this decision to the High Court. Appeals to the High Court are on points of law only. That case will be heard in September.

The proposed Cypress coal mine is on the Stockton plateau in the upper Waimangaroa valley. The mine would have a 260 ha footprint comprising two open cast pits, a 60 ha waste rock disposal area, road and associated infrastructure. It would destroy habitat used by 13 threatened species including great spotted kiwi, weka, kaka and Powelliphanta patrickensis. It would destroy 10 % of the snail’s habitat.

The Upper Waimangaroa-Mt William area including the mine site has been described in scientific reports for the Department of Conservation as having “the greatest ecological diversity in the least modified condition, particularly of endemic coal measure communities” of any area on the Denniston and Stockton coal plateau. The report said, “This area is nationally significant as the least modified example of this type of coal measures ecosystem in New Zealand.” (Overmars, F et al (1998) Ngakawau Ecological District Survey Report for Protected Natural Areas Programme, Department of Conservation). Coal measure communities are not well protected in conservation land.

The Cypress case is the first time there has been an opportunity for public scrutiny on new mining on the Stockton plateau. Mining licences for Solid Energy’s Stockton mine were granted under the Coal Mines Act (now repealed) prior to the Resource Management Act with no chance for public comment.

[1] Beder (1997) Global Spin, The corporate assault on environmentalism, Scribe Publications at p 64.

[2] George Pring and Penelope Canaan quoted in Beder (1997) Global Spin, The corporate assault on environmentalism, Scribe Publications at p 64.

[3] Beder (1997) at p64.

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