Environmental compliance: The last line of defence

A new report raises serious concerns about the effectiveness of New Zealand’s environmental compliance regimes. In light of the rapid-fire housing development taking place across the country, this doesn’t augur well for environmental quality.

“Consents are going out the door with no anticipation of monitoring in some councils, because there are simply no staff to do it”, noted Dr Marie Brown during a recent address to RMLA members in Auckland in the lead-up to the launch of her latest research, Last Line of Defence: compliance, monitoring and enforcement of New Zealand’s environmental law. “A robust compliance regime is the last line of defence for the public interest in nature, and we need to get it right”.

Put simply, the compliance gap means that environmental law and policies are not likely to achieve their aspirations. Dr Brown’s latest research reveals New Zealand’s environmental compliance, monitoring and enforcement teams to be poorly resourced and challenged by outdated legislation that is not fit-for-purpose. “The current lack of an infringement regime for some regulators means that low-level offending either doesn’t get addressed; or does so at great cost”, notes Dr Brown.

Basic tools such as information databases are often poor quality, or in the Department of Conservation’s case, non-existent. Poor resourcing is made worse by the agencies’ reluctance – or inability –  to cost recover, often resulting in rate payers and tax-payers bearing an unfairly high proportion of the cost of compliance, monitoring and enforcement…with sometimes very little to show for it.

Dr Brown’s research is the product of eight month’s work, including two months of field work, over two hundred interviews, and in-depth analysis of environmental compliance, monitoring and enforcement practice currently underway in the Department of Conservation, Fish & Game, QEII National Trust, Ministry for Primary Industries, the Environment Protection Authority, Ministry for the Environment, councils and Land Information New Zealand.

“Agencies in the main are simply under-resourced to do this often very complex role. There are not enough, if any, people on the ground to carry out compliance, due in part to a reluctance to cost recover”, noted Dr Brown. From an industry perspective, this creates an uneven playing field. “There is no advantage to doing the right thing if those doing the wrong thing are always getting away with it.”

She explains that environmental offending is often deprioritised because it is perceived as being a ‘victimless’ crime. But in fact, everyone loses.

The report raises concerns about the independence of enforcement decision-making in some agencies. “Decisions about whether or not to prosecute a person or a company should not be political, but should be based on facts. There are clear signals that the lines between politics and enforcement are blurred in some organisations.  To address this, there need to be clear and effective policies that guide sound decision-making; and there needs to be robust audit and oversight.

The report contains solutions to address four key issues: ensuring the law is fit for purpose; ensuring agencies have the tools and resources available to do this job; ensuring independence of decision making; and enhancing audit and oversight.  “There is much work to do to strengthen our last line of defence”, she concludes.

RMLA would like to thank Simpson Grierson for hosting the Auckland ‘Last Line of Defence’ Roadshow.

Dr Marie Brown’s latest research can be purchased via EDS at the pre-launch sale price of NZ$20.

The research was funded by the New Zealand Law Foundation, Foundation Footprint and the Ministry for the Environment, with the Roadshow brought to you by RMLA.