MPI orders open to challenge

Orders made by Mycoplasma bovis response officials are open to legal challenge and farmers seeking interim measures while issues are resolved are being urged to pursue legal options.

Driven by concern, Canterbury law firm Tavendale and Partners has put together a dedicated team of agri and dispute resolution lawyers to respond to the “M bovis crisis”.

The lawyers say farmers need every option possible to preserve their livelihoods given the recent explosion in M bovis activity combined with the lack of Primary Industries Ministry transparency and leadership.

A blow-out of infected and at-risk properties, described by ministry officials last week as “game changing for the cattle disease response” has escalated industry concern that cattle are going to slaughter in vain.

The number of infected properties is now 38 with another 77 under restrictions because they are considered highly likely to be infected and 225 under notice of direction.

Almost 1700 properties are tagged as “of interest”. 

But MPI is still forging on with its order to kill 22,000 cattle. Almost half of them, 53.9%, across 18 farms will be culled by today.

MPI told the primary production select committee at Parliament on Thursday developments in the previous six days had been a game-changer in terms of the jump in farm numbers under question and the spread of the disease.

“The spread of the disease has gone totally above all expectations in modelling,” Biosecurity NZ head Roger Smith said.

“Six days ago we had 129 properties under some sort of regulation control – in the last six days we have moved that to 299.”

Testing is ongoing in both the North and South Islands and MPI expects there will be many more infected properties. 

Primary Industries Minister Damien O’Connor told Farmers Weekly on Friday eradication remains the focus but doing it in the short term was now out of the question.

“Short term, it’s not looking possible now but the longer term is still an option.

“There is a lot more possible spread than we can ascertain at this stage.

“It would be dishonest to say we know how many infected animals there are and that we can cull them all immediately.

“We are still identifying farms and getting closer to making a decision on the best direction going forward,” O’Connor said.

Meantime, affected farmers should act quickly if they want to contest MPI orders on movement restriction and the culling of their cattle.

Specialist disputes lawyer Kirsten Maclean said despite orders being directed by a government agency they are still open to challenge by judicial review.

“There is still ability to challenge the policy and farmers can do this as a group or as individuals.

“You can’t unkill cows but applications can be made for urgent preservation of the herd while substantive detail is sought,” Maclean said.

The only real mechanism to challenge a cull or movement restriction order is through the process of judicial review in the High Court.

Challenges would likely be on the grounds of unreasonableness.

An application to judicially review a cull notice can be accompanied by an application to the court that the cull be put on hold pending the court’s decision.

If it can be established that there is an arguable case that a wide-ranging cull order is unnecessary to achieve MPI’s aims of eradication then interim relief might be granted pending analysis of the substantive issues.

One of the considerations of the court in any judicial review is the public interest in eradicating the disease.

“However, we believe there are options open to farmers who wish to challenge aspects of this process,” Maclean said.

The key is to act quickly, agribusiness lawyer Tim Silva said.

For compensation disputes, arbitration is the way to go.

It can include whether to grant compensation at all or a dispute over the amount that should be paid.

Silva said the key benefits of arbitration include the chance to select arbitrators with industry knowledge with the process faster than the court process.

He believes the hard work on compensation is yet to come.

“Based on value at stake very few claims have been processed at this point.

“We are dealing with the chicken feed claims – the real losses of farmers losing their herds is yet to come, that’s when the heavy lifting starts.

“And that is a real concern given how compensations are going so far,” Silva said.

The lawyers encouraged farmers to act quickly on exploring legal options to protect their interim position.

“Farmers under immense pressure and stress looking for the fastest resolution should take the arbitration direction and within reason establish their own process for timely resolution of the dispute.”