Marie Brown: Strengthening our last line of defence

Sheps' Park in Blenheim was named following the donation by Lloyd and Joy Shepard of the land to Queen Elizabeth II ...

Sheps' Park in Blenheim was named following the donation by Lloyd and Joy Shepard of the land to Queen Elizabeth II National Trust. The QEII covenant scheme is the most transparent and comprehensive in the country, says Marie Brown.

OPINION: The Environmental Defence Society has released its most recent major report: Last Line of Defence: compliance, monitoring and enforcement of New Zealand's environmental law. The report looks at how environmental laws are enforced in New Zealand. If environmental laws are not enforced they can be broken with impunity.  The report reveals some big problems. 

The Ministry for the Environment is there to provide leadership and guidance to the 78 councils and the others that carry out the operational aspects of enforcement. But the ministry has allocated little resource to this aspect of its work, and this has resulted in 78 different versions of RMA compliance rolling out nationwide. Stronger oversight, coherent national reporting and greater capacity within the ministry are much needed.

Regional authorities demonstrate increasing technical capacity for the compliance function: some boast enforcement teams of more than a dozen staff. Of concern is that political influence on decision-making (including resourcing) still appears widespread. These councils need to more cleanly separate governance and operations to gain credibility. 

District and city councils fare less well, evidently struggling with the demands of the compliance function due to both political involvement and resourcing (these are of course linked). Ten councils have zero staff for compliance monitoring under the RMA and more than 40 have one or fewer people. There simply aren't enough boots on the ground, and many existing officers are poorly trained.

READ MORE: NZ environmental enforcement agencies 'chronically under-resourced' - research

On the Department of Conservation (DoC) estate, the resourcing is just as dire. An enormous regulatory role has been bestowed upon DoC and that aspect of its work – like much of its role – is inadequately funded. A hotshot national compliance team and an excellent in-house training programme are aspects the department can be deservedly proud of, but the devolution of compliance work to the 50 local offices has not yielded good outcomes. Most prosecutions arise from just 5 of those offices and the main groups of prosecutions being taken don't really seem to align with where the more serious offending occurs. DOC understands this, however, and to its credit a significant and transformative programme of work is already underway.

Fish & Game is a statutory entity that has a significant enforcement role under the Wildlife and Conservation Acts – functions it generally carries out with aplomb. It's a different context for Fish & Game from DoC, however; its regulated community is dead keen for the job to be done well, because it helps manage freeriding by those that don't pay for licences. 

The Queen Elizabeth II National Trust also demonstrates an increasing willingness to take a hard line on serious breaches of covenant protection conditions, evidenced by its very successful recent court action against Netherland Holdings. The QEII covenant scheme is the most transparent and comprehensive in the country, and it's good to know all those hectares are in good hands.

Elsewhere on private land, the Ministry for Primary Industries manages sustainable indigenous forestry as one of its many functions. MPI is a very well-resourced regulator across all of its numerous roles. The fisheries saga demonstrates, however, that the inherent conflict between a trade facilitation role and a trade regulation role can result in inappropriate calls being made. 

Out to sea the Environmental Protection Authority grapples with a whole new regulatory regime for the Exclusive Economic Zone. While it's early days, there are signs that some useful groundwork is being done, albeit under-resourced at this stage. Trouble is, a poorly resourced regulator and a small and powerful industry to regulate are the ingredients for regulatory capture. Oil and gas, seabed mining and the likes are all current or future users of the EEZ space, and time will tell how robust the compliance regime will be there.

An opaque corner of environmental regulation lies in Land Information New Zealand (LINZ). Its role is significant and includes all discretionary consenting on Crown pastoral leases (a million-plus hectares of our internationally renowned high country) and the environmental conditions applied to overseas purchase of sensitive land. There's pretty limited frontline resource, little random audit and a lack of transparency in both these regimes. Like many agencies, we recommend far more robust monitoring and reporting to maintain public confidence.

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When we looked across all the agencies above, we expected to find different challenges across all the regimes, but the themes were remarkably similar. There are four key issues.

The first: getting the underlying law right is important. Loads of our environmental laws are out of date – meaning the tools and even the phrasing just don't match modern issues and needs. When law is inefficient, agencies either don't do their job or come up with workarounds. A lot of the problems with our environmental law are well understood, but progress to address the failings has been remarkably slow.

The second key issue is that we need more boots on the ground and the right kind of boots. Compliance officers to some extent are born and not made: it's a technical job and certain personal attributes are essential. It's clear that many current staff don't have those, leading to inefficiencies and mistakes. A stronger focus on building capacity and capability is needed, and this could in part be financed by stronger cost recovery. The burden should be primarily born by the resource users.

Third, independence of decision-making is of concern. Like MPI, many agencies have duelling functions. DoC's partnerships approach is not conducive to being a credible regulator (where popularity is rarely an indicator of success) and many councils seem to be struggling to reconcile their environmental protection and economic development roles. New Zealand has few pure regulators. Are we asking too much, and is it time for a more comprehensive re-look at institutional arrangements? 

Finally, part of the reason politicised decision-making can occur is because the audit and oversight for environmental compliance appears limited. This starts with tracking outcomes and comprehensive reporting and involves an energetic watcher of the watchers. Agencies stepping up and carrying out this role professionally and effectively need to be distinguished from those dragging the chain, and individuals making bad calls must be held to account.

Without these changes, there's a good chance that a swag of the aspirations in our environmental law and policy will never be met, and all the cost and effort associated with policy development will be for nought.

Without a robust compliance regime, compliant members of regulated communities have no incentive to maintain their good behaviour. It's in everyone's interests to ensure laws to protect nature are followed. It's not victimless crime, it's borne by everyone.

The final implication of a weak last line of defence is that the public does not trust regulators who are seen to be failing on this front. Regulators must attract and maintain public support. That is who, after all, they work for.

Dr Marie Brown is a senior researcher with the Environmental Defence Society.

 - The Dominion Post

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