Oyster farmers take king hit as contamination case fails

The farmers claimed the pollution that closed their oyster operations came from the Kawakawa sewage system. Picture /John Stone

Bay of Islands interests representing nearly 30 per cent of New Zealand's oyster-growing industry now face an uncertain future after the failure of their $12 million High Court claim for compensation against the Far North District Council.

The oysters farmers sued the council during a hearing in Auckland this year claiming loss of income and profits, loss of capital value and general damages for stress and inconvenience after their operations were closed by Northland Health in 2001.

Nine oyster farms in the Waikare Inlet were closed after oysters traced to their farms became contaminated with norovirus.

The virus causes gastroenteritis - stomach, intestinal pain and vomiting - in humans.

The farmers, supported by Northland Federated Farmers, took the council to court claiming discharges of raw and partly treated sewage from the council's Kawakawa sewage system and waste-water ponds had spilled into the Kawakawa River and from there into their oyster farms.

Although the farms were reclassified to restricted or limited oyster harvesting after 2001, the farmers said the reclassification effectively meant their leases were not economically viable to operate.

They said the most likely source of the contamination were the discharges and spills from the council's Kawakawa system, although they did concede the inlet had other possible sources of pollution.

The council argued that water from the Kawakawa River did not enter the inlet beyond a certain point but even if it did, viruses could not survive a 13.5km journey through the river's shallow and winding waters to reach the oyster farms in infectious doses.

In her 80-page decision rejecting the farmers' claim, Justice Helen Winkelmann said the Kawakawa sewage system was a most unlikely source of contamination because of the distance between the treatment plant and the farms. This made it unlikely the virus could survive.

In addition, discharge from the system would be massively diluted by river and tidal waters. She considered there were other, more likely sources.

The council had taken staged steps from 1990 to remedy defects in sewage reticulation in the area and farmers had failed to prove that any discharge from the Kawakawa system caused contamination of their oysters.

Other sources of pollution identified included leaks from failing septic tanks and discharges from boats and yachts at Opua.

The judge said she would not impose a duty of care for the council to meet requirements of third-party statutory bodies, in relation to the Kawakawa system, because the duty would be a shifting one - depending on the minds of the regulatory authority at the time.

"It would also likely impose a disproportionate economic burden upon the community for the benefit of a few," she said.

Marine farmer Alan Tindall, whose 18ha oyster farm is the biggest involved in the claim, did not know of the judge's ruling until told by the Herald yesterday.

He said his farm had been "sitting there" since it was closed in 2001 "and it'll sit there for a damn sight longer now. I haven't had time to think about it but it's a sad situation for New Zealand when it seems district and regional councils can do what they want."

Mr Tindall said he had had to lay off nine people since the closure. "I've got a lot of money tied up there."

Bill Guest of Northland Federated Farmers said the closure had cost 44 jobs, court action had cost about $400,000 and farmers were devastated by the outcome.

"The judge must be on another planet to say there is no claim for a nuisance effect of the sewage system. She said there was no proof but 30 per cent of New Zealand's oyster industry has been decimated."

Mr Guest said the decision would create problems for regional councils taking prosecutions for contamination. "Unless you've got irrefutable proof, you can get away with murder."

The federation would meet its lawyers soon to see if there were grounds for an appeal against the decision. If there were, the claim would be taken further.

Council chief executive Clive Manley said the ruling was a relief but not a cause for celebration.

The council remained concerned for the oyster farmers whose livelihoods continued to be adversely affected by virus risk in the Bay of Islands.

Mr Manley said the court's finding that there was insufficient evidence to link the farmers' contamination problems with the Kawakawa sewage plant was what the council had expected.