Rotorua Lakes Council pleaded guilty to discharging a dangerous substance from the city's dump. Photo / NZME
The Rotorua Lakes Council has been accused of "sinister and evil" offending by mana whenua who want a public apology and ongoing medical checks for those exposed to waterways contaminated by the council's dump.
However, the council says the effects of its offending have been overemphasised. It says there is no evidence to suggest it caused "measurable adverse affects" on the environment and claims to the contrary are "wrong and misleading".
The arguments were made in the Rotorua District Court yesterday during a sentencing hearing, after the council earlier pleaded guilty to a charge brought by the Bay of Plenty Regional Council under the Resource Management Act of discharging a contaminant, namely stormwater contaminated with leachate, on to or into land in circumstances where it may enter water.
The charge relates to offending on April 6, 2017, and the council faces a maximum fine of $600,000.
The leachate - which was described in court documents as having bacteria equivalent to that of raw sewage - came from the city's dump site and, in a diluted state, entered Tureporepo Stream, which flows into the Puarenga Stream.
Puarenga Stream flows through world-famous tourist attractions at Te Puia and the Whakarewarewa Village, where penny divers dive for coins tossed off a bridge by tourists.
The council was warned repeatedly over eight years about the offending, and was eventually charged by the Bay of Plenty Regional Council in 2017.
The Rotorua Lakes Council has applied to the court for a discharge without conviction, which Judge Jeff Smith is considering as part of the sentencing procedure.
The first part of the hearing got under way yesterday, but was adjourned part-heard.
Victim impact statements were read by three mana whenua (people with rights to land) who engaged in restorative justice with the council.
Puarenga Stream catchment hapū member Peter Staite said he was "deeply disturbed" by unknown long-term impacts of landfill leachate.
He said it was well known that tangata whenua (people of the land) swam in the Puarenga Stream, and the Whakarewarewa bridge was a world-famous tourist attraction.
"Polluting community swimming places is a sinister and cruel act. Unwitting innocent people enjoying their traditional sites is a hereditary right."
He said kaitiaki (guardians) lost heart when officials and the law failed them.
He said health and safety alerts should have been sent out at the slightest breach; instead, the Rotorua Lakes Council offending continued for years, he said.
Follow-up medical surveys and tests on descendants would be a "decent response".
The council's actions caused immeasurable mental anguish for kaitiaki, he said
He feared people who swam in the waterways might develop sicknesses and physical and mental abnormalities.
Iwi had been engaging with the council on a cultural advisory subcommittee relating to waterways, but the council did not table any of the leachate breaches, he said.
"For me, learning the offence details came like a kick in the head ... This offending is sinister and evil."
He said people stopped using Puarenga Stream once word of the pollution got out.
"RDC [the council] has killed a long-held traditional practice in my time, on my watch as kaitiaki of the river. This is disgraceful.
"Rotorua District Council's careless disregard is a silent betrayal on tangata whenua."
Gina Rangi, a council employee, provided an unreserved apology to iwi at a restorative justice hearing.
Staite said it was much appreciated, but a public apology to the people of Rotorua was now in order.
Peka Trust chairwoman Helen Beckett said although there was only one guilty plea in court, it would be foolish to think this was an isolated incident.
She described where her whanau lived as being at the "coalface".
Beckett's whānau had sourced water and kai (food) for generations from Tureporepo and Waihuahuakakahi streams and their contributors, never giving a thought to the possibility the water or kai would be polluted or unsafe for daily use and consumption.
"Until this event, our whanau pumped what we believed was freshwater to our houses for daily use and frequented both awa for bathing and gathering kai.
"What is most heartbreaking, is that our mokopuna have been exposed to this disgusting mess."
She said she believed the ill-health of family members in recent times was in part due to the pollution of the waterways by seepage from the dump.
A switch to the "town water supply" had seen an improvement in whānau health, however, she said the long-term effects of exposure were unknown.
There had been a noticeable drop in food such as freshwater mussel and watercress, she said.
"The ecological damage to these sacred waterways by pollution from the dump is immeasurable."
Wally Lee, of Tūhourangi Ngāti Wahiao, was brought up swimming and penny diving in the Puarenga Stream.
He said he became gravely ill at the age of 14 after a week of being in the stream.
"My father knew immediately I had been swimming in the river and he warned me because it was polluted."
He said the illness was so severe, he had never touched the water since with bare skin.
"This memory was burnt within my consciousness until my adulthood."
Before his koro died In 1997, he told Lee to take up the challenge and fight for the Puarenga Stream.
"It took me 10 years to make a stand and do what is right as my koro had instructed."
Between 2009 and 2012, Lee conducted his own research and did tests of the land and water, and presented them to the district council and regional council.
"I was vilified and ostracised, cast out and bullied by both councils who wanted me to shut up."
However, he said he continued to fight as he believed the Puarenga Stream needed to be closed.
He described it as a lonely road.
"I didn't want to do this, but I needed to protect our tamariki from what they didn't know and were too young to understand.
"Swimming in the Puarenga today has all but ended, and my soul continues to mourn for what we have lost."
He said in the following years he was invited to work alongside the district council and regional council, and it was the result of his and Staite's pressure that led to the district council being charged.
Crown prosecutor Anna McConachy said in her submission there were effects on the environment including ecological and toxicological effects on the affected waterways, as well as adverse cultural impacts on the marae in the area.
She said the leachate that was discharged contained extremely high levels of faecal bacteria, which commonly manifested as gastroenteritis, but other common illnesses included respiratory problems and skin rashes. Serious illnesses could also be attributed such as hepatitis A, campylobacteriosis and salmonellosis.
McConachy said the Crown accepted the offending was not deliberate, but submitted it involved recklessness or a high degree of carelessness.
She said the council was put on notice several times, but it failed to address the problems or put in place adequate safeguards to prevent leachate discharges from entering the water.
She said the Crown acknowledged the offending occurred following a heavy rainfall event. However, she said the council's poor management practices directly contributed to the offending.
She said heavy rainfall was foreseeable and the council had been alerted to this very possibility.
She highlighted a previous leachate discharge from the landfill in 2014 that
resulted in the council being issued an abatement notice and a final warning had followed high-intensity rainfall.
"The Rotorua District Council was squarely on notice and this was an accident waiting to happen."
Despite the council now fixing the problem, she said it should have happened years ago.
Judge Smith said it appeared the landfill was an "old-school system" and he was surprised the regional council didn't take stronger action earlier.
"Neither party seems to have covered themselves in glory over this," Judge Smith said.
McConachy said the regional council did take action over the years and prosecution was a last-ditch attempt.
"It seems in hindsight they could have been prosecuted earlier."
Council lawyer Fraser Wood had a discussion with Judge Smith about the council's level of accountability as the summary of facts did not mention any particular measurable adverse effects on the environment.
Wood said the Crown had overemphasised the effects of the offending and it was "wrong and misleading".
Judge Smith said that by pleading guilty the council had accepted contaminants made their way into the water and it had an adverse effect.
But Wood said the issue was "to what extent there is an adverse effect".
"The council accepts unreservedly the leachate entered the stormwater system. There have been no measurable effects as a consequence of that."
He said the high levels of bacteria described was before it went into the stormwater pond and Tureporepo Stream and subsequently Puarenga Stream.
Wood said that was on top of the discharge occurring at a time when there was the highest rainfall event in 200 years.
"Not only is the environment at the landfill completely saturated, so is the receiving environment and the extent of dilution would have been enormous.
"There is an inference to be drawn that because it overflowed from the stormwater pond B it must have contained a diluted form of leachate and for that reason, the council has accepted responsibility and has pleaded guilty.
"It has to be kept into perspective of what the actual level of discharge was on this particular occasion because ultimately, it has pleaded guilty to a discharge in these circumstances."
Judge Smith said Wood's argument was a standard one but it was never successful, even in Court of Appeal cases.
"If your argument is correct, there can never be a prosecution as long as you are diluting it enough."
Wood's response was that there was no doubt the streams would have contained leachate, but the question was to what extent did it have an adverse effect on the environment.
"Ultimately, the council has to be sentenced on what can be proven."
Judge Smith responded by asking: "Does that apply when your council prosecutes others? That if you show no harm you can't take any action? ... With respect, I am now wondering what you have accepted responsibility for."
Judge Smith said the council seemed to be minimising it and saying "as long as you are discharging in high rain flow it's okay and, with respect, that cannot be correct".
Judge Smith asked Wood if the council accepted responsibility for the contaminant making its way into the stream and did it accept that had adverse effects on the environment.
Wood replied "yes" to both.
Judge Smith said: "Then why are you saying it has no effect?"
Wood replied: "Because the extent of the effect has been overemphasised by the Crown and there's no evidence of any damage to aquatic life, any particular harmful adverse impact other than the cultural dimension and the breach of the resource consent."
'This decision has not been made lightly'.