Supreme Court dismisses Brook Valley group's appeal over poison drop

Tuesday, 21 May 2019

A community group's bid to take its appeal against the legality of the Brook Waimarama Sanctuary poison drops to the country's highest court has failed.

The Brook Valley Community Group had taken its case against the 2017 brodifacoum poison drops in the Nelson sanctuary to the High Court and Court of Appeal.

After both found against it, the group sought leave to appeal to the Supreme Court.

But in a decision on Tuesday the Supreme Court denied the application, as well as the group's bid for a greater discount of the $71,500 in costs awarded against it.

Chief Justice Helen Winkelmann said the society's main argument was fact specific and did not raise a matter of public importance justifying a further appeal.

**READ MORE:

* Supreme Court asked to hear poison drop case from Nelson

* Brook Valley Community Group lose appeal against poison drop

* High Court orders Brook Valley anti-poison group to pay $70,000 in costs**

'The aerial drop has now taken place and we are told no further drops are planned, so the proposed appeal would have little practical impact.' 

The Brook Valley group argued that the poison drop at the sanctuary proceeded under 'unlawful and invalid' regulations. The brodifacoum drop to kill predators and pests in the sanctuary took place in 2017 under Resource Management (Exemptions) Regulations which came into effect earlier that year.

According to section 15 of the Resource Management Act (RMA), contaminants including poisons cannot be discharged onto land or water without resource consent or through national environmental standards or other regulations. 

The group also argued that even if the new exempting regulations were valid, the sanctuary trust still needed resource consent under section 13 of the RMA that banned deposits of substances on a river bed.

Both of these cases were lost at the High Court and the Court of Appeals.

Winkelmann said both the lower courts were satisfied for different reasons that section 15 and section 13 were not meant to 'capture the same action twice' and necessitate resource consent as well as exemption.

'We also do not consider there is sufficient prospect of success for the argument that duplicative consents must be sought from the same consent authority for precisely the same activity to justify a further appeal.'

The community group also sought to appeal the discount on the costs the group had been ordered to pay by the High Court in 2017.

They were ordered to pay $26,411.14 to Brook Waimarama Sanctuary Trust, $23,789.98 to the Minister for the Environment and $21,460.05 to Nelson City Council. A 10 per cent 'public interest' discount was applied to the costs awarded to the Minister for the Environment and to the NCC, but not to the trust costs.

Winkelmann also dismissed this appeal, saying that the question 'may involve a matter of public interest' but that this was 'not an appropriate case to address that issue'.

'The determination of a discount of ten per cent was fact-specific and there is no appearance of a miscarriage in the way the Court of Appeal addressed the issue. We understand the costs have not been paid in any event.'

The Supreme Court ordered a further $4,500 in costs against the group to be divided evenly between the NCC, Minster for the Environment, and the trust.

On the Brook Valley group's Facebook page, its lawyer Sue Grey was quoted as saying the Supreme Court decision was 'unbelievable'.

The group said a special meeting of the society would be needed 'to resolve our new position'.