by Sarah Monod de Froideville and Charles Louisson, Victoria University Wellington
Background of my involvement: A few years ago, I was contracted by Kapiti Coast District Council (KCDC) to be their freshwater ecologist for the Environmental Protection Authority (EPA) Board of Inquiry (BOI) into the Transmission Gully project. KCDC wasn’t opposing they just wanted to ensure the Te Puka and Wainui streams were looked after.
The process went the usual way of these things, we went through the usual pantomime – the applicants consultants trying to ensure the applicants do as little mitigation as possible, and claiming everything would have minor effects while sounding like they really care for the environment.
The BOI report eventually came out and was ok as these things go – the consent conditions seemed as good as I could have hoped for. Given that the proposed stream realignment was so extreme there wasn’t much chance for the aquatic life in the upper stream, but at least the passage to the Wainui catchment would be improved and the current culvert migration barrier would be removed so something positive would come from it.
A few years later when the Transmission Gully work started I was utterly shocked to find that the contractors could, and did, simply go to the Greater Wellington Regional Council (GWRC) and ask to have consent conditions altered and GWRC would sign-off the alteration asked for, without any formal process of going back to the board or anyone including me.
I was angry, not just for the stream itself but also the incredible waste of money and time, the whole laborious expensive process and how it could so easily be sidestepped making the whole thing (BOI) pointless. It seemed an important process had been completely usurped without any input from the EPA or BOI.
Later, still angry, I emailed one of the BOI board members and politely asked if he wanted to catch up for a chat over a coffee. I wanted to know if he was annoyed that all his work had been ignored. His reply was:
Good evening Dr Joy
Thank you for your email and your invitation to meet which I will need to decline.
I have taken some instruction on this and have been advised that as a judicial body a BOI speaks collectively solely through its decisions and can’t otherwise comment or explain.
I took up the matter with the EPA but could get no answer, the same stonewalling David Williams got when researching for this article, when approached officials, that or the glib “we reject any accusation of wrongdoing” standard response.
I mentioned all this above in a lecture I gave to students for Victoria University Environmental Criminologist Sarah Monod-de Froideville. Sarah was really interested in this as a project and eventually she got funding from the Environmental Law Initiative for the study entitled ‘No Bridge Over Troubled Water’ by Sarah and Charles Louisson.
I found the paper intriguing and helped explain what had happened, it seems that GWRC do have the right to sign off these alteration to a BOI decision, which to me is a complete failure of the Legislation and this needs to be fixed.
The Fish ladder
Sarah and Charles found that the decision not to put on the bridges required by the BOI was because NZTA claimed they could put in culverts rather than bridges and mitigate the issues around fish passage.
This fish passage mitigation claim is wrong and had already been litigated – it was the subject of much of the caucusing and debate between me and Boffa-Miskall ecologists. So, this claim by NZTA and the subsequent acceptance by GWRC without any input from me amounts to re-litigation in the absence of anyone involved in the original process.
To make it clear and this is how I explained it in caucusing: a ‘fish ladder’ only mitigates the impact of fish passage obstruction in theory not in practice. My analogy is the blocking Lambton Quay with a 10-metre-high wall and proposing that putting a step ladder on either side would mitigate that blockage for office workers and shoppers in Wellington. This analogy is apt in two ways, the numbers of people moving along Lambton quay is variable, at 3am a ladder might mitigate the barrier when only a few people need access, but not at 8am, in the same way migrating fish arrive in large numbers at certain times. Another point I made in caucusing is that these ladders become chokepoints where predators can pick off migrating fish.
The other important point is sediment movement. The State Highway-1 culvert had for decades blocked downstream sediment transport, and a large amount of material had built-up upstream meaning that the stream disappeared at low flows, travelling through the built-up gravel causing another migration barrier. Thus, the need for bridges, not culverts. All this had been part of my original evidence and why the decision for bridges was accepted by the BOI and why it should not be altered, in secret after the fact.
This debacle has highlighted major failings in the legislation and reveals again the capture of environmental regulators in New Zealand that I have noted before . I am very grateful to Sarah and Charles for their impressive report and I hope that exposing this might lead to change in legislation to ensure there isn’t a repeat.
Here are they Key findings from Sarah and Charles report:
- The missing steel ‘I’ girder bridge was a consequence of discursive violence deployed in the change proposals;
- NZTA deployed manipulative tactics known as techniques of neutralization, to justify proposed changes to conditions with regard to the Wainui perched culvert.
- Consultants Boffa Miskell also utilized techniques of neutralization when justifying a redesign of Te Puka’s bridge.
- Supporting legal violence in decisions made by consent authorities;
- GWRC permitted a change in conditions, against the BoI decision and Resources Management Act (RMA) provisions.
- This violence was enacted under circumstances of inappropriate funding and made possible in a context of ‘organized irresponsibility’ that gives impunity for harms resulting from a collective and cumulative generation of risk;
- The NZ government instructed NZTA to pursue the highway as a Public Private Partnership (PPP), with a low affordability threshold (AT).
- The RMA devolves governance of the environment to local authorities and lacks provisions for appropriate enforcement.
- The trajectory was ‘state sponsored’ insofar as the NZ government either facilitated or was directly responsible for each of the above separate parts.
 “NZTA proposed that they mitigate the culverts rather than replace them, by installing fish ladders. They proposed that fish ladders would not only achieve fish passage but have ‘significant environmental benefits’” page 25 No Bridge Over Troubled Water.
 Joy, M. K., & Canning, A. D. (2021). Shifting baselines and political expediency in New Zealand’s freshwater management. Marine and Freshwater Research, 72(4), 456-461. https://doi.org/10.1071/MF20210