TDC officials are claiming that property I , and many of my neighbours in Mapua and Ruby Bay , is likely to contain contaminated soil hazardous to human health – without a shred of empirical evidence, especially no soil testing. They are also trying to record (and apparently already have recorded ) their claim on a an official legal document , the LIM (Land Information Memorandum), attached to my property as well as adding our properties to a hazardous site register- HAIL- created by the Ministry for the environment (MFE). (The statements about persistent storage and use and likely presence of hazards on in category 10 – our classification – description on the HAIL register are as unscientific and non-evidence based as as the TDC claim – more on the idea of evidence , uncertainty and inference in a later post – but have a look at this other Ministry for the Environment website for “what to do” about managing environmental risks)
After writing to the TDC to protest (see my letter requesting an extension ) I started investigating how to challenge this claim. My first question is about evidence based policy. Shouldn’t a public claim about risks (or safety) to human health associated with my person or my property have to be backed by evidence? quantitative evidence? scientifically obtained evidence? evidence for and evidence against, with reasoned argument in between? based on intelligent balance of probabilities ? We ask (and often require) that claims about health/safety risks be evidenced based from our businesses and as employees. Why not from our local authorities or other government agencies?
For example we require health sector providers and technologies to have at least some evidence to even be able to market their products: Has pharmaceutical ABC or medical procedure XYZ or health provider PQR been tested/investigated for side effects as well as intended effects? Every media outlet and talk back show thrives on questions, and answers, like : Is a glass of Shiraz a day really good for my heart health? Will these vitamins or that over the counter health supplement or that food do what it claims, for my health? Brand X tyres are safe in rainy or icey conditions – are they really? Will that foundation built in 1931 – or 2014 – hold up in the next big earthquake? Exposure to microwaves is hazardous to your health – or not, or maybe? And of course witch hunting , where accusation is itself evidence of guilt still prevails (especially prevails – in the enabling legislation for LIMS – see below). ….Many a bureaucratic career is made on the back of searching for any “evidence” to prove or support a claim about a public safety or health hazard , no matter how thin, rather than via the scientific method which involves also searching for evidence to disprove the claim, then weighing, intelligently, the balance of probabilities before making a decision – including the decision to do nothing until more information is collected .
Claim and counterclaim. Argument and counter argument. Accuser, judge, jury, and executioner. How does one learn the truth, any truths, about claimed risks and risk assessments? In my (our) case, how does one correct inaccurate or misleading information held about you ( or your property/business) by a local authority? Or, from a slightly different angle, what responsibility does the TDC or any council – or the Ministry for the Environment – have to ensure that the information they provide to the media, to the public, in formal documentation is accurate and not misleading?
Let’s start with a LIM- a Land Information Memorandum. A LIM is a document local authorities create and hold – the information that shall/may be on it is specified by Section 44A of the Local Government Official Information and Meetings Act 1987. Before jumping to Section 44A , note that LIMs and the information on it are controlled by this piece of legislation – and this legislation “binds the Crown”. One of the major purposes of this act is to provide for accountability of local government. ie we, through the office of the Ombudsman, and this legislation, can hold the TDC accountable for the information recorded on LIMs . Section 4 reads (highlighting added) :
The purposes of this Act are—
(a) to provide for the availability to the public of official information held by local authorities, and to promote the open and public transaction of business at meetings of local authorities, in order—
(i) to enable more effective participation by the public in the actions and decisions of local authorities;and
(ii) to promote the accountability of local authority members and officials,
—and thereby to enhance respect for the law and to promote good local government in New Zealand:
But the Act (Section 25) also empowers each and every property owner – not through the Ombudsman – to require that a Council correct inaccurate, incomplete and misleading information as well as record the fact that such a request for correction has been made and denied on that piece of official information :
25 Correction of information (1) Every person who is given access under section 23(1) to personal information may, by letter addressed to the local authority,—
(a) request correction of the personal information where the person believes that the information— (i) is inaccurate; or (ii) is incomplete and gives a misleading impression; and
(b) require that a notation be attached to the information indicating the nature of any correction requested but not made.
Accountability? Hmm (Jan 20 2015) – I have been checking up on Ecan – they have a land use register site which ostensibly looks at haxardus activities – BUT to get to theri regiater look what you have to agree to!!
Listed Land Use Register
The information provided is derived from Environment Canterbury’s Listed Land Use Register and is made available to you under the Local Government Official Information and Meetings Act 1987 and in accordance with Environment Canterbury’s Contaminated Land Information Management Strategy (ECan 2009). Environment Canterbury has not verified the accuracy or completeness of this information.
Listed Land Use Register Statement:
The Listed Land Use Register statement summarises information held in Environment Canterbury’s records about land where hazardous activities are known to have occurred or are currently occurring in Canterbury. Environment Canterbury has not verified the accuracy or completeness of this information. If a hazardous activity is not known to be associated with a piece of land this will be indicated in the statement.
Generic and Long-term Site Management Plan documents:
Residential land owners can obtain a site management plan from the Listed Land Use Register if they know or suspect their property is contaminated. The site management plans cover small scale soil disturbances which do not require authorisation from the district council. Scenarios covered include excavations, landscaping, gardening (vegetables and ornamentals) and where children may come in direct contact with or eat soil.
Exclusion of Liability
By accessing and using any information, documents, or tools contained within this site you (the customer) acknowledge and agree that Environment Canterbury:
- Makes no warranty or representation:
- a. Regarding the reliability, accuracy or completeness of the information provided or the level of contamination (if any) at the relevant site; or
- b. That the site to which the information relates is suitable or otherwise for any particular purpose;
- Expressly disclaims and is not responsible to you or any other person for any and all liability for any loss, cost, damage or expense, suffered or incurred by any person as a result of use, reference to, or reliance on any information provided or any documents or tools used.
- Is not liable for any falsified or inaccurate information provided by the customer or any other person for the purpose of obtaining a statement or site management plan from the Listed Land Use Register.
Back to the LIM legislation. Section44 A part 2 lists a number of things – the relevant one for me/us is 2a (emphasis added – and for further reference note the adjective “likely ” that modifies presence- ) :
The matters which shall be included in that memorandum are—
(a)information identifying each (if any) special feature or characteristic of the land concerned, including but not limited to potential erosion, avulsion, falling debris, subsidence, slippage, alluvion, or inundation, or likely presence of hazardous contaminants, being a feature or characteristic that—
(i)is known to the territorial authority; but
(ii)is not apparent from the district scheme under the Town and Country Planning Act 1977 or a district plan under the Resource Management Act 1991
That term “likely” turns out to be VERY important , as discussed on the Ministry for the Environment’s (MFE) website Crown Law Advice to the Ministry for the Environment – Potential Contamination by Horticultural Soils about putting – or not – imprecise actual soil testing information about likely risks on horticultural land onto LIMS for 5000 homes in Auckland . In my next post I’ll discuss this case, and it’s relevance for our case, in detail. Happily, the lawyers here have some great common sense , not just about the LIM issue but about the nature of communicating with the public about uncertainties – totally ignored by the TDC it seems) . For now, take heart- the sound legal advice that the Ministry of the Environment provides for Councils about NOT putting information on contamination on LIMS was based on actual soil testing , how much more so will it apply when there is no soil sampling evidence at all – only a single digital photograph ?
BUT….It is also rather disturbing to read in section 44A part 5 :
In the absence of proof to the contrary, a land information memorandum shall be sufficient evidence of the correctness, as at the date of its issue, of any information included in it pursuant to subsection (2).
I think this statement can be read two ways. On the negative side – it seems to be saying : whatever is written on the LIM is assumed to be gospel truth unless there is proof to the contrary. (There is no mention of what constitutes proof nor who actually has to provide (and pay for) this “proof to the contrary” ). On the positive side, it suggests that BEFORE something is stated on a LIM there needs to be a substantial burden of proof/evidence because others will be acting on the basis of the truthfulness and accuracy of what is on the LIM. The Privacy Act clause 7 is pretty specific here: “An agency that holds personal information shall, if so requested by the individual concerned or on its own initiative, take such steps (if any) to correct that information as are, in the circumstances, reasonable to ensure that, having regard to the purposes for which the information may lawfully be used, the information is accurate, up to date, complete, and not misleading.” There appears to be a great deal of messy case law and legal opinon applying to Councils who misrepresent factual information on LIMS. I’m reading through a lengthy piece of written legal advice to Local Government Authorities about this just now on the issue of reclassifying zonal hazards . But TDC needs to tread carefully here. As spider man Peter Parker – or originally Voltaire -says “with great power comes great responsibility” .
I don’t like the idea of having to resort to legal representation. But I also don’t like to be subjected to public claims about my property that are not evidence based.