Wednesday, 10 May 2017

All guns firing in Hawkes Bay

The Havelock North Drinking Water Inquiry has released its Stage 1 report and Inquiry Chair Hon Lyn Stevens QC has severely criticised just about everybody.

I will be interested to see what reaction the report gets. The mainstream media are only looking for someone to blame and will be disappointed. Hastings District Council Mayor Lawrence Yule has ruled out resigning while Hawkes Bay Regional Council Chair Rex Graham outright rejects some of the findings related to his council. But my first reading of the summary suggests at least one of the targets could seek a judicial review (there doesn't seem to be any step in the process where the core participants can respond to the report before it is finalised). The conclusions are very strong and may be too strong. The conclusions also tend towards criticism of the individual parties with no thought to the systemic weaknesses that allowed the outbreak to occur.

At the risk of over-simplification the Key Findings can be summarised as:

1. Hastings District Council drew contaminated groundwater up through its bore and distributed it to the town of Havelock North
2. The water was contaminated because the confining aquifer was way less secure than everyone had previously believed
3. All parties followed the rules in a strictly legal sense
4. But everyone was also too complacent and should have exercised a greater duty of care. Had they done so it would have been possible to avoid the outbreak.

The main point that the targets of Stevens' wrath will pick up on is "The failings, most notably by the Regional Council and the District Council, did not directly cause the outbreak" [Key Findings [10](d)]. Arguments over this report will probably centre on whether each party's actions and inactions were reasonable at the time and within the context of the perceived risks of the system and the assigned responsibilities under the new regulatory framework.

The Inquiry has had the luxury of 40/40 focused hindsight but the staff of the the councils couldn't ever focus 100% on this one scheme. Any judicial review would be asked to consider whether decisions (and inactions) taken by the councils leading up to the outbreak were reasonable in the context in which they were made. To be fair the Inquiry has mounted a strong argument that the warning signs were there from as early as 1998. And it is certainly the case that we can't really pass judgement on the report based purely on the overview. The detail in the review will be vital to understanding the conclusions.

But the findings do feel lop-sided. The Inquiry seems to have missed an opportunity to comment on the regulatory framework. The Terms of Reference of the Inquiry allow them to recommend changes to statute or regulation but there don't seem to be any findings related to the working environment the 2008 changes to statute created. 

One simple example is s. 69ZL (1)(g) of the Health Act 1956. This section defines the role of the Drinking Water Assessor inter alia as verifying the adequacy of water safety plans. What this section says is that once a DWA has approved a Water Safety Plan it is, by legal definition, adequate. It's pretty obvious to me that the highest priority for a district council is to get a Water Safety Plan approved regardless of content (especially given the $200,000 fine they would face for not having one). And if Hastings District Council had a current Water Safety Plan in place at the time of the outbreak it was, by statutory definition, an adequate plan. Clearly this is not a great piece of regulation but we apparently are unlikely to hear any criticism of it.