EQC settlement agreements suppress complaints and critical public comment

Christchurch earthquake shop window cracked by Matt Taylor
A Christchurch shop window. Matt Taylor

The Earthquake Commission is using contracts containing broad confidentiality clauses in an attempt to avoid future legal proceedings, complaints, and critical public comment from disgruntled homeowners, a document publicly available on the Arbitrators’ and Mediators’ Institute of New Zealand’s EQC Mediation Service website shows.

The pro forma agreement is used when disputes heard by the EQC Mediation Service are settled, however similar clauses are included in settlement agreements presented for claimants to sign when they are not represented by a lawyer and have not elected to mediate their dispute.

The clauses include an agreement that the claimant will not “commence any proceedings in New Zealand or elsewhere which in any way arise out of or relate to the Dispute, against EQC or any of its related persons, servants, employees or agents or against any other person”.

Claimants agree to “not make any complaint in relation to the Dispute to any professional, governmental or other body about the conduct of EQC or any of its related persons, servants, employees or agents or against any other person and to withdraw any complaint already made”.

EQC has been the subject of hundreds of complaints to the Office of the Ombudsman and the Privacy Commissioner. Experts EQC has engaged have also been the subject of complaints. Labour’s Minister Responsible for the Earthquake Commission, Megan Woods, has said she wants “a royal commission of inquiry into defective earthquake repairs”. Overseas royal commissions have had to address the issue of obtaining evidence which would otherwise be shielded by confidentiality agreements.

An additional clause prohibits claimants from making “any public comment critical of EQC or any of its related persons, servants, employees or agents or against any other person in respect of any matters which in any way arise out of or relate to the Dispute”. This clause would prevent disgruntled homeowners from talking about their experiences on TV, at a public meeting, or on Facebook.

“No further proceedings” clauses may be appropriate when parties have received legal advice, but clauses relating to complaints and public comment seem like bullying behaviour from a government agency trying to hide their mistakes.

The full document is embedded below.

Christchurch Regeneration Minister refuses to release document from December Cathedral meeting

ChristChurch cathedral

The new Minister supporting Greater Christchurch Regeneration, Hon Nicky Wagner, has refused to release the contents of a document tabled at a 21 December 2016 meeting between Crown negotiators and Church Property Trustee representatives.

Entire pages of the document, embedded below, were redacted under the obligation of confidence and negotiation sections of the Official Information Act.

The Minister recently released various cabinet documents in relation to the Cathedral stalemate, including a 13 December 2016 cabinet paper presented by previous Minister Gerry Brownlee a week before the meeting. It recommended the approval of a $10 million payment toward the Cathedral reinstatement and a $15 million credit facility. In a Stuff article Minister Brownlee said that the offer was made in December, but diocesan chancellor Jeremy Johnson said no binding offer had been received.

 

Image credit: Robert Young (CC BY 2.0)

MBIE’s Chief Engineer on a reduced standard of earthquake repairs in Canterbury

Earthquake damaged buildingThe Ministry of Business, Innovation & Employment has released a 2013 briefing to the Minister of Housing Hon Dr Nick Smith written by their Chief Engineer.

The Minister asked about a reduced standard of repair for older properties “particularly in the context of Housing New Zealand [properties]”, however the Ministry’s response is still illuminating:

  • There is no reference to the Earthquake Commission Act 1993 and the standard of repair required by the Act.
  • Although a building may have been damaged, the Ministry provided a list of scenarios where “no repair is required”.
  • Minimising cost and avoiding obtaining engineering advice for individual properties were primary considerations of the Ministry.
  • The Minister was concerned with avoiding “excessive” money and time spent on earthquake recovery.

The full document is embedded below.

Red Zone Secrets

Here is something I don’t get. If it is safe for demolition workers to go through the contents of earthquaked buildings before/while/after they’re demolished, why is it not safe for the occupiers?

“Safes found during demolition – there had been only half a dozen – were either opened under police or security firm supervision, or, if they were attached to concrete, dumped.”

Why is this even necessary? Is it that hard to work out that a safe found in the rubble of building X maybe belongs to someone occupying building X? Could we build on that and guess that someone occupying building X would be able to open the safe themselves, without force, even if it is attached to concrete?

ConfidentialScarier, is that computers and files containing confidential information, in this case mental health records are 1) being “thrown out” at all and 2) if they are “water-damaged”, which doesn’t fly with me, aren’t being disposed of securely.

“The items she was most concerned about included files and computer hard drives containing personal information. Securities House, a seven-level building in Gloucester St near Latimer Square, was demolished by March Construction and Shilton and Brown in May. It housed at least nine mental health agencies.

Tenants, tipped off about the demolition, managed to stop a truck leaving the site in the rain and divert it to an empty section where the contents were tipped.

Tenants then spent the next two days retrieving files from the rubbish. The files had been in locked metal cabinets which had been emptied.

Office manager Mark Petrie said he had contacted a project manager at the time of the demolition to be told no chance existed for any records or personal effects to be salvaged.

He was told all records were water-damaged and filing cabinets rusted.

A former Shilton and Brown worker who worked on the Securities House demolition told The Press workers were told to throw files, many of which appeared to him to be in good order, in the rubbish.”

Where have some files gone? Who knows.

“Canterbury Muscular Dystrophy Association office manager Eris Le Compte, whose office was on the first floor of Community House, said she had gone to look for the 230 personal medical files she had in her office.”

Hopefully other businesses are doing better, because it’s not just a couple of buildings in the red zone that are housing sensitive information.

CERA feigns ignorance. Clearly some demolition contractors have no idea what they’re doing (or every idea of what they’re doing). If CERA has no knowledge of specific cases of important belongings going missing inside the red zone they’re obviously not doing a very good job.

“A CERA spokeswoman said CERA regularly and actively engaged with contractors who had a clear understanding of their obligations within contracts and the law.

‘We have no knowledge of the specific cases you refer to and we can’t comment on whether any allegations of loss of goods within the CBD Red Zone are attributed to contractors’ staff or some other person,’ the spokeswoman said.”

What’s been going on inside the red zone raises a number of issues businesses need to be planning for. After an event like the Canterbury Earthquake, how effective will locks, safes, and filing cabinets be at protecting valuable and confidential information through demolition and when 930+ people are left roaming in and around your building for a significant period of time?

Image credit: Jeremy Keith