Mining company Bathurst Coal fined $18k for discharge in 'vulnerable environment'

Thursday, 23 January 2020

The critically endangered Canterbury mudfish.

Mining company Bathurst Coal has been convicted and fined $18,000 for an unauthorised discharge in an area home to a critically endangered native fish.

In his sentencing notes, Judge B Dwyer also criticised Environment Canterbury (ECan) for not providing a proper assessment of the potential impact of the discharge on the Canterbury mudfish.

ECan brought one charge against Bathurst for not meeting the terms of its consent following a January 2018 inspection where officers saw sediment-laden stormwater discharging from part of the Coalgate mine site into Bush Gully Stream.

While the company had consent allowing the discharge of contaminants onto land and a tributary of the stream, it breached three conditions of is consent, including not building a drainage channel or bund to convey stormwater into retention ponds.

Bathurst is a large coal mining company which operates mines in Canterbury, Southland, West Coast and Waikato.

* The coal mine and the endangered mudfish

* Canterbury mudfish might block Bathurst coal mine**

The discharge was not deliberate, but Dwyer said Bathurst's offending involved a 'systemic failure to comply' with the terms of its consent, and it took place in a 'vulnerable environment which is a highly important habitat of a nationally threatened species'.

The Department of Conservation lists the Canterbury mudfish as the most threatened of New Zealand's mudfish species. It is restricted to a small number of streams in Canterbury, including Bush Gully Stream.

Bathurst pled guilty to the charge, and had gone through an alternative justice process with ECan, which involved the company providing funds for stock fencing, sediment control and planting.

In his notes from the November 2019 sentencing, Dwyer said he understood the alternative justice programme would lead to a 'betterment of the mudfish habitat'.

However, in considering what sentence to give the company he said it received 'no credit for past good character' as it had previously been issued with 27 infringement notices.

Bathurst, a majority foreign-owned company, sought to be discharged without conviction, arguing a conviction might affect its ability to get Overseas Investment Office (OIO) approval for future sensitive land purchases. The OIO considers 'good character' as part of its decision-making process.

The 'good character' requirement is an 'ongoing condition of consent holders', according to Bathurst's sentencing submissions.

'If this condition is not complied with, Bathurst could be required to dispose of property'.

A lawyer for the company also said in an affidavit that if Bathurst was convicted he considered the OIO would 'undertake a thorough investigation of the matter and there would be a real risk of Bathurst's good character condition being jeopardised…'.

Dwyer decided to convict the company on the charge under the Resource Management Act, saying 'arguably a further environmental failure/offence on Bathurst's part' should be brought to the attention of the OIO in light of past failures.

He did so 'on the assumption' that conviction 'would not necessarily be fatal to an application to acquire further sensitive land'.

In a decision made on August 29 last year, before the sentencing, the OIO granted Bathurst Coal consent to acquire a 31 hectare property about 2 kilometres from its existing Coalgate coal mine. Eventually, if it gets resource consent, Bathurst plans to extend mining activities onto the new land, extending the life of the mine from 2022 to 2035.