Strictly Courtroom
Vernon Rive . 2/09/2010 3:55:56 p.m.
Niagara Sawmilling Company was charged with a number of offences relating to the discharge of dust from sawing and processing timber on its premises. On the evidence, it was held that some of the dust resulted from the operation of a "Cyclone" dust collector. Niagara had installed the equipment on the expectation that it would contain the dust. But despite what it considered was its best and reasonable efforts, in fact it did not do so. One of the other main causes of dust discharge was from wind blowing material off-site.
The lawyer for Niagara acknowledged that dust - being a contaminant under the RMA - had escaped from the site. However, he argued that it was not being "discharged" by Niagara, because (in relation to the cyclone dust) Niagara had taken all reasonable steps to contain it, and at the time of the discharges, was not aware that dust was escaping. In relation to wind-borne dust, he argued that the wind (a factor outside of the control of Niagara) had caused the discharge, not Niagara, and so it was not liable under the Act.
As judges sometimes put it, those were quite 'bold' submissions. Judge Borthwick predictably rejected both arguments. She held that the relevant offences were strict liability, and can be committed with no element of intention. Equally, there is no obligation on the prosecution to establish that a person needed to foresee, or be aware of discharges, before they are liable.
Pointedly, she agreed with the lawyer for the Council that Niagara's lawyer's intended defence "appears to be a new or hybrid defence incorporating elements of section 341". She held that this was not available, nor could such a defence be identified from previous case law, including McKnight v Biogas [1994] 2 NZLR 664 (HC) and URS New Zealand Limited v Auckland Regional Council, Environment Court, Judge McElrea, 25 May 2010, CIV-2008-004-013603.
Tough for Niagara? Well, maybe. It had purchased and installed the equipment in good faith, expecting that it would do the job. But these sorts of laws can't really work any other way if they are to be effective, and create the right incentives to avoid environmental harm. And the consequences of the "it wasn't us, it was the wind" argument succeeding are really too far reaching and scary to even consider...
Update: At sentencing on 15 November 2010, Judge Borthwick imposed a fine of $60,000 against Niagara, and made enforcement orders requiring an air quality consultant to be engaged to prepare an air quality management plan addressing staff training and implementation of measures to avoid further breaches.
By Vernon Rive on 2/09/2010 3:55:56 p.m. | Comments (1) | Print |
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