So grave was the situation, New Zealand’s Attorney General, Chris Finlayson, called for a Government Inquiry.
THE INQUIRY, WHICH STARTED LAST OCTOBER , was set up to look at how the Havelock North water supply became contaminated, how this was subsequently addressed and how local and central government agencies responded to the public health threat that occurred as a result of the contamination.
Investigating in two stages, a panel of three was set up comprised of public health specialist Dr Karen Poutasi, professional engineer Anthony Wilson and retired Court of Appeal Judge, the Honourable Lynton Stevens QC, who is chairing the process.
They are due to report back to Finlayson on March 31. Stage one concluded on February 15, with Inquiry counsels assisting (e ectively the sta to the Inquiry) – Nathan Gedye QC and Fionnghuala Cuncannon – presenting their closing submissions to the panel.
Between them they addressed almost 100 “faults, failures or inadequacies” of the main actors in the crisis – Hastings District Council, Hawke’s Bay Regional Council, Hawke’s Bay District Health Board and the Drinking Water Assessors.
It is important to note that these closing submissions from the Inquiry’s own counsel should not be taken as conclusive. Rather, they are one step in the inquiry process for the panel to consider. “We accept that none of the faults or failings to be submitted had a direct or approximate or a substantial causative e ect on the outbreak and the harm fl owing from it,” Gedye said.
The parties involved had the chance to respond in written form, documents which were not available at the time of press.
During the presentations to the panel, Gedye and Cuncannon said some problems were recurrent over years, becoming systematic. Others were simply a lack of willingness of people to be educated on the processes that should have been in place to prevent such an incident.
The panel heard that, at their worst, these faults led to breaches of consent and laws not being followed, all of which led to the 12 August crisis.
HBRC
The regional council was fi rst authority under the microscope during closing submissions by the counsels assisting. Gedye listed for the panel twelve areas where he felt HBRC fell short.
This included the sta failing to educate themselves about the aquifer, especially around the time the HDC’s 10-year water take consent was issued for the Brookvale Road bores in 2008. He said this lack of information seemingly led to poor consent monitoring.
“In 2008 at the consent assessment relating to HDC’s water permit application insu cient information was obtained specifi c to contamination risk,” he said.
“Further the regional council failed to identify the risks arising from the proximity or possible proximity of livestock to the bore fi eld, these bores being mere metres from paddocks and roadside drains.”
Gedye explained that when the consent was issued, the regional council believed it had no responsibility for the protection of drinking water sources.
The council’s monitoring of the water take consent was also called into question, with Gedye submitting that the regional council did not check for compliance with conditions.
“In addition, the regional council reports about monitoring were misleading,” he said. This, the Inquiry heard, led to the council failing to meet section 35 of the Resource Management Act duty to monitor the exercise of consent – which he labelled as a “fundamental” function of the regional authority.
Gedye submitted to the panel that much closer to the August 12 crisis, the regional council failed to take the October 2015 Brookvale bore 3 E. coli contamination event seriously enough and did not exercise its consenting powers.
“As it turned out, there were poor relations between the two councils,” he said, citing evidence that the HBRC’s enforcement role interfered with its willingness to liaise with the district council.
Gedye submitted to the panel that much closer to the August 12 crisis, the regional council failed to take the October 2015 Brookvale bore 3 E. coli contamination event seriously enough and did not exercise its consenting powers.
Moreover, although the council found out about the event through the media it failed to liaise adequately with the Hastings District Council about the event.
“The email approach [to the October event] was very informal, e ective use was not made of the information obtained, it was not transmitted adequately back into other departments of the regional council and basically the regional council didn’t really engage as it should have.
“The regional council was obliged to take appropriate action where necessary in response to monitoring and the implementation of resource consents,” he said.
Gedye said while there was a meeting about the incident the following February, the dialogue was desultory and ine ectual and that there were serious aquifer issues and drinking water issues which may have been relevant under the National Environment Standards that the regional council “simply didn’t pursue”.
“A contrast could be made with the regional council’s reaction to the…August 2016 event, where upon becoming aware of a contamination event at Brookvale [bores] 1 or 2, the regional council deployed massive resources to investigate,” he said.
“It was a potentially serious and signifi cant matter involving an untraced, unknown contamination of the aquifer [yet] there’s a dearth of liaison or correspondence or e ective engagement.”
DHB
In relation to the health authorities, some inter-authority communication issues were raised in regards to the Hawke’s Bay District Health Board by Cuncannon. However, it was the Drinking Water Assessors (DWAs) – o cers who determine compliance with requirements of the drinking water legislation – that Gedye labelled “generally insu ciently probing and insu ciently inquisitive” when it came to monitoring the Hastings district’s drinking water.
DWAs are appointed by the Ministry of Health and for regulatory purposes report to the Director General of Health (through the MoH environmental health manager). But they are employed by DHBs and work alongside relevant DHB sta and, according to DHB, “refer or escalate issues” to DHB’s Medical O cer of Health “if they think some kind of enforcement action may be necessary”. Both Inquiry counsel highlighted the need for more specifi c guidance regarding when such ‘escalation’ should occur.
Gedye said DWA Joanne Lynch’s 2013 report on the adequacy of Hastings City and Havelock North Drinking Water Supply’s Public Health Risk Management Plan was little more than a box tick on risk assessment, whereas “any sort of challenge to that assessment might have led to many enquiries”.
He also noted the DWA’s responses to the “unusually high transgression rate” was inadequate. “The Inquiry has heard of a period of some six years from February 2010 where transgressions occurred and recurred without any holistic review and no satisfactory resolution of the reason for the high rate of transgression.”
He said the DWAs were not inquiring enough about the transgressions, their reporting on them was too ad hoc and were too easily satisfi ed by HDC explanations.
“There was a pattern in the evidence of HDC seeking to justify the transgressions by things such as higher rate of sampling and backfl ow issues.
“The DWAs fell short of the required standard by being too easily satisfi ed by small picture responses. They failed to be concerned enough about it.”
HDC
The counsels assisting spent more time on HDC than any other party, listing no less than 52 “failings” of the organisation charged with delivering safe drinking water to its community. Not all are addressed here.
Gedye told the panel that he found fault with the council not retaining a level of ownership of its Water Safety Plan, which he said “is fundamental and drives much else, there was a general failure to recognise the level of risk attaching to contamination”.
He said that beyond this, HDC had no system for complying with the water take consent’s condition 21 (requirements regarding the build and upkeep of the bores), something he noted the DWA repeatedly pointed out when they said there was no inspection and maintenance plan or programme. “HDC acknowledged the need to put the inspection and maintenance programme in the [asset management] Hansen System; the DWAs had repeatedly pointed out the need to do that.”
Not only did the council not do this, sta failed to inform the DWAs that it had not been done, despite the fact that all other water assets were in the system, except the bores themselves.
Gedye noted “a governance or management failure in this connection. A failure of reporting and accountability. The district council as a body has legal duties to carry out all of these things.”
Another fault listed by Gedye was that HDC failed to obtain a ‘secure’ classifi cation. That is, the HDC failed to meet criteria to ensure its water was free from surface infl uences, with a bore head demonstrated to provide protection from contamination … something Gedye said it should have done by the end of 2014.
“You have heard evidence how the classifi cation of ‘secure’ was no more than a grandfathered continuation of HDC’s own categorisation and that the DWAs never actu- ally classifi ed this supply as secure,” he said.
“HDC was not justified in assuming that the water was secure. It had repeated references to the aquifer being likely unconfi ned or at best semi-confined.
It should be noted that the first time a drinking water assessor advised this water source was not secure was after the August 2016 outbreak, and that the HDC was taking steps to obtain a secure rating prior to the outbreak.
The counsels assisting spent more time on HDC than any other party, listing no less than 52 “failings” of the organisation charged with delivering safe drinking water to its community.
That being said, however, Gedye put forward that this failing was not “just a mere technicality”, it was something that was required by law.
Cuncannon tackled the more immediate issues surrounding the August 12 crisis – the authority’s immediate handling of the crisis.
She submitted that the HDC was not proactive enough in its response to a phone call from DWA Joanne Lynch at noon on August 12, a phone call that she said was described as unusual and exceptional.
“This was not a customer ringing to complain because their doctor had said it might be the water,” she said.
“This was a DWA who’d never made a phone call like this before and that’s why it required a degree of urgency and a degree of inquisitiveness which in my submission was not the way it was received.”
She submitted that if the call was treated with urgency, then the chlorine contractors would have been contacted before the 2pm meeting that was held to discuss the issue.
Cuncannon also found fault with the council’s failure to have a single and effective contingency plan, as required – one that the council had been working on since 2008 in one form or another. She said that despite the events of August 12, “we still do not have a contingency plan in place that is effective”.
Cuncannon said as the crisis unfolded there was a lack of transparency in communications and that the desire to assure the community that their water was safe was not in fact accurately refl ecting the information available to the council at that time in terms of the water testing results that it was receiving.
“There should have been a clear and direct discussion with the district health board as to who was doing what on August 12,” she said.
“Given there was no written contingency plan with tasks and delegations, it was even more important that there was a very direct discussion about who was doing what. And in my submission it was ultimately HDC’s responsibility to ensure that this happened.”
Another communications fault presented to the panel was that the council failed to have at the very least a list of its vulnerable constituents – the elderly, schools, cafes – meaning that they were not contacted directly as soon as they should have been about the outbreak.
“The Ministry of Education only [found] out about the crisis via Facebook on the Saturday afternoon, and only called formally on the Sunday,” she said.
The boiled water notice also came too late and, Cuncannon said, was poorly worded. “It did not tell people to boil water, it urged them to do so. Given the important public health message that a boil water notice has it should have been as directive and clear as possible.”
Moreover, she said the HDC was too reliant on social media in getting the message out.
“As I have already said, there was no proper communication plan for the boil water notice and we heard from Ms McKay [HDC’s marketing and communication manager] that, essentially, the plan was an undocumented scattergun approach,” she said.
“In my submission, that broader approach would have been appropriate that Friday night and, as I have already said, we have heard from Ms McKay that there is still no written communications plan in place.”
Cuncannon said it was the HDC’s responsibility, as the water supplier, to take the lead on the situation as it unfolded: “…any failure by the DWAs or DHB is no excuse in respect of HDC. They are the water supplier,” she said. “It is for them to understand their network. It is for them to consider whether or not a boil water notice is appropriate and this situation has shown, in my submission, the importance of having a water safety plan and having sta aware of the risks and being prepared to ask the right questions and understand the answers they are getting.
“In my submission, the primary responsibility, no matter who decides to take the lead role for a particular incident, the ultimate responsibility must always be with the water supplier.”
Following the conclusion of stage two of the inquiry – which will deal with systematic issues and lessons to be learned – the panel is set to submit its fi nding to the Government on March 31.
All parties have ‘lawyered up’, with HBRC’s counsel for the Inquiry, Mai Chen (pictured with HBRC chief exec Andrew Newman) already receiving $400k
