Chapter 2. Environmental governance and management

2.1. National institutions and horizontal co-ordination

Since 2007, when the previous OECD Environmental Performance Review was released, New Zealand has substantially improved horizontal co-ordination on environmental management at the national level. The Natural Resources Sector (NRS) – a grouping of the eight government agencies under nine ministers with natural resource management responsibilities – was created in 2008 to build a coherent and integrated approach to policy making in this field. The NRS agencies are: Ministry for the Environment (MfE); Ministry of Business, Innovation and Employment; Ministry for Primary Industries, with responsibilities for agriculture and fisheries; Land Information New Zealand; Department of Conservation (DOC); Department of Internal Affairs; Ministry of Transport; and Te Puni Kokiri, the public service department advising the government on policies and issues affecting Maori.

The NRS co-ordinates work in several focus areas to align economic development and sustainability goals. These include, for example, issues of freshwater allocation; energy efficiency and use of renewable energy; and urban land management. This unique model of horizontal co-ordination (equally followed in the social sector, security and intelligence, and other areas) has allowed the government to reduce inter-ministerial tensions, pursue a more holistic approach to natural resource management and work towards an integrated customer service perspective in relation to non-government stakeholders and Maori communities. At the same time, there is still a lack of institutional co-ordination on aquaculture, fisheries and marine biodiversity protection, as well as urban development (Chapter 5). This is partly due to the patchy regulatory regime in these domains and lack of clarity in the role of different government agencies (EDS, 2016).

The NRS has several co-ordination mechanisms: the Business Growth Agenda Natural Resources Ministers Group (for ministers, meets monthly), the NRS Leadership Board (for Chief Executives of member agencies, meets quarterly) and the NRS Programme Governance Group (for mid-level management representatives, meets monthly). The NRS Support Unit, housed in the MfE and jointly staffed through secondments from NRS agencies, ensures day‐to-day collaboration across the sector. The Parliamentary Commissioner for the Environment (PCE), who has broad powers to investigate environmental concerns, ensures general oversight of resource management nationwide. The PCE is independent of the government and issues high-quality reports to Parliament.

The MfE has been the principal national policy-making authority on environmental matters since 1986. The DOC is mainly concerned with management of the conservation estate (i.e. protected areas) and issues permits for activities that could potentially harm biodiversity. The Environmental Protection Authority (EPA) was established in 2011 by a special act. The EPA primarily regulates production and use of hazardous substances and new organisms, environmental effects of activities on New Zealand’s continental shelf and transboundary movements of hazardous waste, as well as advises on development proposals of national significance. The EPA’s remit covers a mixture of provisions of different statutes, but is only limited to supporting independent decision makers (such as Boards of Inquiry) in permitting major infrastructure projects under the RMA, which is uncommon for a national environmental regulator.

2.2. Sub-national institutions and vertical co-ordination

There are three types of sub-national (local) authorities: territorial authorities (which include city and district councils); regional councils (which have jurisdiction covering multiple territorial authorities)1 and unitary authorities (which have powers of both a regional council and a territorial authority). There are 11 regional councils, 61 territorial authorities (made up of 11 city councils and 50 district councils) and 6 unitary authorities, together constituting 78 local authorities. While the idea of merging territorial authorities does not have local political support, local councils are interested in achieving economies of scale through sharing services (e.g. waste management) among neighbouring districts.

All local authorities have planning responsibilities, which are closely intertwined with their regulatory powers (Indicator 3.3). Regional councils and unitary authorities have regulatory and enforcement powers for the management of fresh, ground and coastal water; soil conservation; and control of emissions to air, land and water. Territorial and unitary authorities are in charge of land use and have regulatory and enforcement powers in the areas of solid waste management, water supply and wastewater treatment – topics that commonly belong to local authorities’ responsibilities in OECD member countries. Giving effect to the Treaty of Waitangi requires close collaboration between local authorities and Maori communities (iwi/hapu) over specific important natural resources. All local authorities are primarily accountable to their electorates.

The issue of resource capacity of local authorities (particularly smaller councils) is a persistent challenge.2 Environment-related staff numbers have recently been decreasing in all three sub-national authority types: between 2011 and 2013 alone, they dropped by between one-quarter and one-third. In 2012/13, only 20 of 78 local authorities had dedicated environmental inspectors, while 10 councils had dedicated general enforcement officers who prepared sanction decisions. One unitary authority and nine territorial authorities had no compliance monitoring or enforcement staff at all (MfE, 2016a). Although regional councils have comparatively greater capacity assigned to compliance monitoring and enforcement, 80% of all district and city councils believe they lack sufficient human resources to exercise their duties (MfE, 2014). Over a third of local authorities identified monitoring and enforcement as a “significant capability gap” (NZPC, 2016).

The capacity building Making Good Decisions Programme operated by the Opus Environmental Training Centre trains councillors, community board members and independent commissioners on issue resource consents and making other decisions under the RMA. However, only 38% of regional and territorial councils agree they receive the training and information required to implement new national environmental policies and regulations (NZPC, 2016). New Zealand should make better use of its participation in the Australasian Environmental Law Enforcement and Regulators Network (AELERT), which aims to build relationships between sub-national jurisdictions to facilitate the sharing of information and improve the regulatory compliance capacity of member agencies.

Local Government New Zealand, an association of regional and territorial authorities headed by a National Council, supports co-ordination among local authorities. The Upper North Island Strategic Alliance and the Central New Zealand Alliance gather several neighbouring councils in the respective geographic areas. Together, they support collaboration on economic development, transport, tourism, and water and waste management services. However, these organisations do not promote the harmonisation of environmental policy instruments used by individual authorities.

To ensure vertical co-ordination, the Chief Executives Environment and Economy Forum brings together chief executives of the national NRS agencies and regional councils each quarter to discuss key natural resource management issues and priorities. However, this co‐ordination does not involve district and city councils, which are likely to be in even greater need of national policy implementation guidance. Establishing a co-ordination body following best practices in other OECD member countries (Box 2.1) may facilitate capacity building for local authorities.

Several central government bodies (Ministry for the Environment, Auditor General, Department of Internal Affairs, Ministry of Business Innovation and Employment, and Ministry of Health) oversee local governance functions. The Ministry for the Environment (MfE) oversees local authorities’ environmental management activities. Between 1995 and 2014, it carried out 11 national surveys of local authorities for this purpose. The surveys have now been replaced by the National Monitoring System (NMS). The NMS requires local authorities, the EPA and the MfE itself to provide detailed data each year on the functions, tools and processes for which they are responsible under the Resource Management Act (RMA).

3.1. Evaluation of policies and legislation

Undertaking regulatory impact analysis (RIA) during the development of regulatory proposals has been a formal requirement for all central government agencies since 1998. Among other goals, the Regulatory Impact Statement (RIS) must do the following:

• Assess efficiency and effectiveness of the proposal’s provisions in achieving its objectives.

• Identify other reasonably practicable options for achieving the proposal’s objectives.

• Identify expected benefits and costs (environmental, economic, social and cultural), including preparation of a Business Compliance Cost Statement.

• Assess the risk of acting or not acting if there is uncertain or insufficient information about the subject matter of the provisions.

Also at the central government level, various analytical methods, including cost-benefit-analysis and multi-criteria analysis, are part of the Natural Resource Framework – a system of approaches and tools, intertwined with Maori cultural values, to analyse the interrelationships between people and the environment and to assess policy options.

At the local level, all proposed plans, standards, policy statements and regulations under the RMA are required to undergo an ex ante evaluation and internal government review. The RMA also requires councils to monitor the efficiency and effectiveness of policies, rules and methods in their plans. Indeed, there are positive examples of this practice (e.g. the Auckland Plan foresees comprehensive triennial evaluations of delivery against targets; Chapter 5). However, the ex post policy evaluation remains underdeveloped. The MfE’s new National Monitoring System has substantially improved collection and management of local authorities’ environmental performance data, but includes few outcome indicators (e.g. the rate of non-compliance with resource consents, characterising the effectiveness of policy implementation). While the RMA requires public release of efficiency and effectiveness monitoring results at least every five years, only seven local authorities published such results in 2014/15 (MfE, 2016a). Local authorities may be at different stages of their reporting cycle, but this is still a significant decline from the 36 councils that published performance results in 2012/13 and the 51 that did so in 2010/11 (MfE, 2014). The absence of standard report formats and performance metrics seriously constrains meaningful comparison of performance outcomes across councils or against key indicators (NZCID, 2015). However, the MfE should use this performance information to design targeted capacity building programmes for local authorities.

While surveys and research on plan making and consenting have been carried out, no comprehensive empirical research has been undertaken to analyse the performance of the RMA. Such analysis could help identify remedies to deal with demonstrated implementation problems. A lot of data has been collected, but there has been no systematic evaluation of how well the act has delivered on its objectives (Palmer and Blakeley, 2015).

3.2. Environmental standards

National Environmental Standards (NESs) are regulations issued under the RMA that apply nationally. NESs can prescribe technical standards, methods or other requirements for environmental matters. Each regional, city or district council must enforce the same standard, and amend its policy statements and plans to be consistent with NESs. As the number of NESs is likely to increase in the future, changing all local authority plans may become a cumbersome process. In some circumstances, councils can impose stricter standards than the NES: this has occurred, for example, in several regions with respect to standards for wood burning in households and for discharges from vessels.

In addition to the NES for Air Quality (2004), New Zealand has established four more NESs in line with a recommendation of the previous EPR (Box 2.2). While NES development has accelerated since 2008, it is still slow and largely fragmented, depriving the regulatory framework of unequivocal national minimum requirements. In the coming years, the government intends to significantly expand the realm of national direction: priorities include developing NPSs on urban development capacity (Chapter 5) and biodiversity, an NES on plantation forestry and regulations on several other topics (Box 2.2).

The NES for Air Quality is made up of 14 separate, but interlinked, standards that generally follow guidance from the World Health Organization (WHO). These include seven standards banning emissions of significant quantities of toxic air pollutants and five standards for ambient air quality. These standards, implemented through regional air quality plans, include regulatory and promotional measures to address emissions from domestic heating and permitting for industrial emissions; limit values for major industrial sources are usually set by using dispersion modelling.

The NES for Sources of Human Drinking Water applies to source water before it is treated and only when the sources supply water to communities, not individual households. The NPS for Freshwater Management requires regional councils to maintain or improve water quality and to set quality objectives and pollutant input limits by 2025 (or by 2030 if it is not practicable to do so by 2025) for individual water bodies based on considerations of human and ecosystem health. This process is slow, with regional councils using different methodologies for allocating pollution loads among dischargers (Chapter 4). Although the 2007 EPR recommended that New Zealand develop regulatory measures to reduce diffuse water pollution, principally from agriculture, there are no national regulatory nutrient limits, and politically sensitive discussions continue at the regional level on how to set them. Discharges from ships and offshore installations into coastal marine waters in accordance with the RMA.

New Zealand is one of the few OECD member countries without national regulation of hazardous waste management. The EPA regulates transboundary movements of hazardous waste under the 2011 Import and Export (Restrictions) Act. There are no technical standards for hazardous waste landfills, storage or transportation facilities, either. Disposal of hazardous waste is managed through consents by regional councils using several non-regulatory guidelines from the government. There has been no progress in implementing the 2007 EPR recommendation to introduce national regulations for mandatory and comprehensive domestic tracking of hazardous waste transport, treatment and disposal.

3.3. Environmental impact assessment and permitting

Consent regime under the RMA

The system of resource consents integrates environmental impact assessment (which New Zealand calls an assessment of environmental effects, AEE), permitting and land use. Resource consents are a general term that encompasses land use and land subdivision consents, water (abstraction) permits, discharge permits (covering air,5 water and waste) and coastal permits. Over 80% of all resource consents deal with land use and subdivision issues (Figure 2.1).

Figure 2.1. Land-use issues dominate the resource consent regime

Local government authorities issue most of the resource consents. At the national level, the EPA assesses RMA-related applications for a resource consent on matters of national significance, such as major infrastructure projects.6 It recommends to the Minister for the Environment whether the application should be determined by a board of inquiry (established on a case by case basis) or the Environment Court.

Most OECD member countries would define categories of activities requiring a permit in a national or sub-national regulation. New Zealand, conversely, requires a resource consent whenever an intended development or activity is not in accordance with the rules of the relevant authority’s planning document (e.g. a district plan; see Indicator 3.4). Plans, usually through rules, state whether an activity is permitted or whether it requires a resource consent (Box 2.3). Permitted activities may still be subject to conditions such as operating standards, but compliance is rarely monitored. The system was originally intended to reduce the need for authorisations. However, due to the absence of standard requirements for obtaining a consent, the same activities (e.g. effluent discharges from dairy farms) may require a consent in one region, but not in another; this leads to national inconsistency.

Box 2.3. Resource consent requirements under the RMA

Controlled activity: Resource consent is required. The consent authority (council) must grant a consent if the application contains all information necessary to meet the requirements. Conditions may be imposed only for matters specified in an NES or the jurisdiction’s resource management plan.

Restricted discretionary activity: Resource consent is required. The consent authority’s discretion is restricted to matters clearly specified in the jurisdiction’s resource management plan. Where consent is granted, the activity must comply with the requirements, conditions and permissions specified in the relevant documents.

Discretionary activity: Resource consent is required. The consent authority has broad discretion over whether to grant or refuse the consent. If granted, conditions may be included.

Non-complying activity: Resource consent is required and may only be issued if the consent authority is satisfied that adverse effects on the environment from the activity will be minor or not conflict with objectives and policies of the relevant plan.

No resource consent is required for a permitted activity, while an explicitly prohibited activity may not be issued a consent.

Source: NZPC (2016).

The RMA explicitly provides for certain existing land uses that were lawfully established to continue without need for additional authorisation. Local councils are reluctant to challenge existing use rights even when they have legal grounds to do so, which results in inherent favouring of incumbent users of resources (EDS, 2016). Permitted activities and existing uses contribute to cumulative environmental impacts that are not always well accounted for (Brown, 2016).

In 2014/15, over 40 000 consent applications were processed, which is higher than in 2012/13, but still significantly lower than in the 2000s (Figure 2.2). The decrease in applications may be linked to overall economic performance, but could also reflect changes in regional plans to allow more permitted activities. Where an industrial activity requires consents of the same type from both territorial and regional councils, the RMA allows these consents to be bundled together and determined at a joint hearing.

Every resource consent application must include an AEE, which contains a plan to avoid, mitigate or remedy the identified risks and adverse impacts. The scope of the AEE does not depend on the size of the potential impact, contrary to practice in many other OECD member countries. In addition to the MfE’s 2006 guidance on how to prepare and evaluate an AEE, some councils have issued standards for AEEs, and in 2015 the Environmental Institute of Australia and New Zealand released voluntary guidance on ecological impact assessment for New Zealand. However, many of these documents do not provide sufficient depth and detail; where they do, they recommend assessment tools that may be too costly and time-consuming for the scale of many activities (Brown, 2016).

Figure 2.2. The total number of resource consent applications is declining

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Approvals are frequently provided with conditions attached (Box 2.3), including, where warranted, monitoring of impacts. There is no system for cross-media integration of discharge permits for air, water and waste, as in many other OECD member countries. For discharge permits, the regional authority may impose the “best practicable option” test for mitigation measures (Reeves, 2015). However, unlike the criterion of best available techniques in EU countries, this test does not require cross-media, process-oriented solutions to minimise impact. Permit conditions may be bound to comply with other requirements, such as a water conservation order (for water bodies in their natural state) granted by a special tribunal appointed by the Minister for the Environment. Overall, there is a lack of national-level regulatory guidance on setting conditions in resource consents and permits, which often makes such conditions unclear and difficult to enforce (Brown, 2016).

The maximum term of discharge permits is 35 years. Long-term consents can and often do include review conditions to allow consent holders to keep up with the pace of change in technology that may help minimise environmental impacts. However, it is advisable to limit the validity of permits to eight to ten years or require their periodic review, as is commonly done in EU member states.

Applications for resource consents may be either publicly notified (involving broad public participation), limited-notified (with notices sent only to directly affected parties) or non-notified. The share of notified consents has been declining steadily in recent years and accounts for only 4% of the total (primarily for large development projects). In 2014/15, 56% of district councils did not notify any of the resource consents that they processed (MfE, 2016a). According to the 2009 amendments to the RMA, councils are no longer required to publicly notify a resource consent application if the potential environmental impacts are minor. This considerably limits public participation in the AEE and permitting processes, contrary to the dominant practice in OECD member countries and the OECD Council recommendation on the matter.7 This issue could be addressed by introducing activity-size or impact-based thresholds above which AEE should be fully fledged and subject to mandatory public participation; smaller activities could undergo simplified AEE without notification.

Many businesses complain about the complexity and length of the consent application process. In fact, 96% of new resource consents were processed within the statutory time limits of up to 60 working days for an application process without a public hearing in 2014/15 (MfE, 2016a); less than 1% of consent decisions are appealed to the Environment Court. However, the Rules Reduction Taskforce recently singled out the RMA as the piece of legislation imposing the highest administrative burden on businesses: it accounts for 32% of all administrative applications in New Zealand (DIA, 2015), which is natural considering its vast scope. Still, to address these concerns, the Resource Legislation Amendment Bill 2015 would, among other measures, introduce a new fast-tracked process (with a ten-day limit) for simple applications and impose certain restrictions on public notification and appeals.

3.4. Land-use planning and strategic environmental assessment

The RMA establishes a hierarchy of planning documents with split responsibility between the central government and local authorities. All lower-tier RMA documents are required to be consistent with higher-tier documents. Land use is regulated by district plans, which in some regions are complemented by regional spatial strategies. Regional councils must consider how Maori values apply to regional and local circumstances as part of their planning process. There are also separate regimes for managing state-owned land (8% of the total land area), overseen by Land Information New Zealand. Regional coastal plans manage activities in coastal marine areas. However, there is no spatial planning for marine areas, with the exception of an ongoing “Sea Change” pilot project in the Hauraki Gulf (www.seachange.org.nz).

There is often duplication of efforts in developing city/district, unitary and regional plans (MfE, 2013a). Each document is distinct, typically goes through a separate planning process and may contain different provisions to those of even adjacent jurisdictions. The Environment Court has to resolve quite a few inconsistencies between regional and district plans. To address this issue, the Resource Legislation Amendment Bill 2015 proposes a national planning template to reduce “unnecessary variation” between council plans. It would also expand the MfE’s right to give direction to councils in land-use planning matters, which will contribute to greater nationwide consistency of environmental planning.

Private interests and environmental protection priorities are generally addressed at the local or regional level through often cumbersome and costly planning processes that take many years (Chapter 5). District and regional plans assign different statuses to development activities. The accompanying rules depend on the potential impact of activities on the environment, including biodiversity. Rules usually include restrictions on the clearing of vegetation, as well as damming and diversion of waterways; limits on fertiliser application; requirements for erosion control; and other land-use controls to minimise potential environmental harm. However, there is broad recognition that these planning instruments fail to address cumulative environmental impacts and long-term consequences of human development on the environment (Brown, 2016).

Under the Resource Legislation Amendment Bill 2015, councils can formally ask the Minister for the Environment for a streamlined plan-making process that would suit local circumstances. At the end of such a process (aimed primarily at facilitating housing development, see Chapter 5), the minister must approve or decline the council’s proposed plan change. That decision could not be appealed; this proposed change has been criticised as opening the door to administrative abuse (PCE, 2016a). The bill also envisages a collaborative planning process, which would encourage greater public engagement at an early stage (with the resulting plan decisions exempt from appeal); however, there are no incentives for councils to choose this process over the streamlined one. While restricting judicial control for a collaborative process seems justified, doing so for an administrative approval would deprive the public of any oversight and recourse options. The PCE recommended limiting and better defining the types of plan changes that may undergo the streamlined process.

All regulations and plans are subject to an evaluation of alternatives, assessment of costs and benefits (including environmental and social costs) and public review as part of regulatory impact analysis (Indicator 3.1). However, there is no systematic evaluation of significant and cumulative effects on the environment of every proposed plan or programme. A requirement to consider environmental and sustainability issues is part of several statutes, including those related to transport planning. Practical implementation, however, is challenging (Box 2.4).

There are particular issues with the integration of biodiversity protection into land-use planning. The 2007 EPR recommended that New Zealand fully reflect nature conservation objectives in land-use and coastal plans. In 2011, the government held consultations for a proposed NPS for Indigenous Biodiversity. However, this NPS did not pass into law because of opposition from private landowners; they considered the policy for identifying sites for biodiversity protection to be disproportionately restrictive (Brown, 2016). The government is looking to establish a collaborative group of stakeholders to work through key issues of biodiversity management and protection on private land in view of preparing a draft NPS on biodiversity by the end of 2018.

4.1. Environmental inspections

Local authorities must carry out inspections to monitor compliance with resource consent conditions and their impact on the environment. In 2014/15, compliance monitoring covered 58 449 of 97 210 resource consents that required monitoring according to their conditions. This is a fairly high compliance monitoring rate (60%) by international standards. However, a significant share (20.7%) were found to be non-compliant (MfE, 2016a).

Most local authorities have developed monitoring and enforcement strategies and conduct proactive compliance monitoring of resource consents. However, only 16% aim to monitor all resource consents they issue. Less than 5% of local authorities, due to limited staff resources, do not routinely monitor compliance with consents and only act in response to complaints about related offences (MfE, 2014). Few local authorities had a database for recording compliance monitoring information (MfE, 2016a).

A small, but growing, share of local authorities has adopted a risk-based approach to compliance monitoring. They set priorities based on factors such as compliance history and the number and complexity of consent conditions, which corresponds to good international practices in this domain. The Regional Sector Strategic Compliance Framework recommends benchmarking of monitoring frequencies against other regional and unitary authorities once every three years to ensure a consistent approach to inspections nationwide (CESIG, 2016). However, only 10% of local councils use electronic systems to schedule and track monitoring and enforcement; the same percentage of local authorities co-ordinate compliance monitoring of resource and building consents to avoid duplication of effort (e.g. by having a building inspector verify compliance with both for minor activities) (MfE, 2014). The MfE needs to do more to explain the benefits of risk-based targeting and other resource-efficient inspection practices to local authorities.

4.2. Enforcement tools

The RMA provides for punitive (infringement notice, prosecution) and directive (abatement notice, enforcement order) enforcement tools. Infringement notices are mostly imposed for non-compliance with abatement notices that had been issued earlier and ordered specific corrective actions. Infringement notices may carry an administrative fine of up to NZD 1 000 (about USD 700). Local authorities may also ask the Environment Court for an enforcement order to cease an activity or prescribe actions to prevent or remediate environmental damage.

Administrative enforcement

The use of administrative enforcement tools is rather limited. In 2014/15, 3 667 enforcement actions were taken, corresponding to 30% of non-compliance cases (MfE, 2016a). Local authorities most commonly use abatement notices (52% of enforcement cases in 2014/15), while almost never using enforcement orders. The issuance of infringement notices, used primarily by regional councils and unitary authorities, represented 39% of enforcement cases in 2014/15. Across all enforcement tools, district and city councils account for only 23% of all environmental enforcement actions in New Zealand. In 2014/15, 14 territorial authorities did not undertake any formal enforcement action (MfE, 2016a) due both to lack of enforcement resources and the unwillingness of local councils to put too much pressure on business actors.

One example of the limited use of administrative enforcement tools is the response by Environment Canterbury (exercising the functions of the regional council) to complaints about pollution of waterways by livestock. It took enforcement actions in response to only 15 of 382 complaints in 2011-15, issuing infringement notices in just 6 cases (Fish & Game New Zealand, 2016). Other evidence (Brown et al., 2013) confirms that compliance assurance is weakest in the agricultural sector.

Over two-thirds of enforcement cases are related to land-use issues, while about one‐quarter are connected to discharge of contaminants to land (Figure 2.3). One key compliance issue is that consent holders regard a consent simply as an operating licence and either do not understand or disregard its conditions (MfE, 2014).

Figure 2.3. Enforcement efforts are focused on land use and soil contamination

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Enforcement actions depend on factors such as the seriousness of the breach, the attitude and past compliance record of the offender, and whether the violation was deliberate. All regional councils, half of unitary authorities and 43% of territorial authorities have written policies on appropriate enforcement decision making. Still, some local councils are concerned about consistency of enforcement for different activities within their respective jurisdictions; a few even use enforcement decision groups to evaluate recommendations from enforcement officers (MfE, 2014). To improve nationwide consistency of compliance assurance, national templates could be used for resource consents, and national guidance could be issued on targeting of compliance monitoring (as in the Netherlands) and on criteria for using different enforcement tools (as in Sweden) (Mazur, 2011).

4.3. Environmental liability and remediation

The RMA establishes strict liability (independent of fault) by stating that “every person has a duty to avoid, remedy, or mitigate any adverse effect on the environment arising from an activity carried out by or on behalf of that person, whether or not the activity is in accordance with a rule in a plan [or] resource consent”. The liability regime does not cover pollution that occurred before the RMA came into effect in 1991.

The liability regime is implemented through abatement notices or court-issued enforcement orders that impose remediation actions on the responsible party. New Zealand uses innovative financial security instruments such as bonds and mitigation trusts to ensure environmental remediation and restoration of ecosystems related to potential future damage (Box 2.5). Many insurance companies in New Zealand offer premises pollution liability insurance, as well as comparable insurance for contractors. These policies cover liability resulting from gradual, as well as accidental, pollution. Insurance policies generally cover traditional liability (bodily injury, property damage, etc.), as well as remediation costs related to damage to the environment. However, unlike in most OECD member countries, the government has no way to recover costs from responsible parties if it takes a remediation action itself.

The NES for Assessing and Managing Contaminants in Soil to Protect Human Health (2012) sets soil contamination standards and provides for the identification and remediation of contaminated land. Regional councils and unitary authorities investigate land to identify and monitor contamination. Territorial authorities are in charge of preventing or mitigating any adverse effects of the development or use of contaminated land. While management or remediation works are underway at dozens of sites, the time, effort and expertise required for these activities appear to substantially exceed the capacity of territorial authorities (MfE, 2014).

New Zealand does not have the means to enforce liability with respect to past (pre‐1991) contamination of land or water bodies, or to damage to ecosystems and biodiversity. The 2007 EPR recommended that New Zealand clarify liability arrangements for the remediation of contaminated sites and develop financing mechanisms that apply the polluter pays principle as fully as possible. Under the existing arrangement, liability rests with the current landowner, who in theory can identify the actual responsible party and sue it in court.

In practice, the responsible party seldom pays for remediation. The Contaminated Sites Remediation Fund (CSRF) administered by the MfE provides NZD 2.63 million in annual budgetary funding to regional councils and unitary authorities to address sites that pose a risk to human health and the environment. Regional councils and unitary authorities apply for funding to the MfE on behalf of landowners that are seeking financial assistance to remediate their contaminated sites. Based on these applications, the MfE prioritises funding to sites that pose the greatest risk to human health and the environment through the CSRF Priority List of ten confirmed contaminated sites (updated bi-annually) that pose a significant risk to human health and the environment. As of 2013, there were almost 20 000 sites with potential land contamination, including many with historic arsenic and heavy metal contamination from abandoned gold mines and pesticide contamination of old horticultural land.

4.4. Promotion of compliance and green practices

While the central government uses a number of tools to encourage good environmental performance, local authorities are only starting to give compliance promotion the attention it deserves. Government promotion of compliance can reduce costs for businesses by allowing them to achieve and maintain compliance as efficiently as possible. It may also reduce regulatory costs by increasing the efficiency of compliance monitoring and enforcement. Compliance promotion is particularly effective when targeted at the SME community.

Green certification and awards

The number of companies operating in New Zealand certified to the ISO 14001 Environmental Management System (EMS) standard has doubled since 2007 (Figure 2.4). Enviro-Mark Solutions Ltd., a government-owned research institute, has programmes for environmental and energy/carbon certification of both company management and products. Still, with 294 ISO 14001 certificates in 2014, certification levels remain very low. For comparison, Estonia (which has less than a third of New Zealand’s population) had 492 such certificates in 2014 and Ireland (which has roughly the same population as New Zealand and a large agricultural sector) had 666. The main reasons for low environmental certification levels are absence of demand for it in Chinese and other Asian markets where many New Zealand companies export, but also lack of regulatory incentives (e.g. in terms of inspection frequency) for EMS-certified companies. The government can do more to promote EMS certification: certified operators may be eligible for less prescriptive permits (as in the Netherlands), less onerous reporting requirements (in Italy and Slovakia), reduced penalties in case of non-compliance (in the United States and Austria) or lower permit fees (in the United Kingdom) (Mazur, 2012).

Figure 2.4. More businesses adopt environmental management systems

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Several corporate environmental responsibility awards promote green business practices. The Green Ribbon Awards administered by the MfE recognise outstanding contributions by individuals, organisations, businesses and communities to protecting and enhancing New Zealand’s environment. The Energy Efficiency and Conservation Authority (EECA) Awards are given to organisations and individuals who have demonstrated excellence and innovation in energy efficiency or renewable energy projects. Most regional councils run their own environmental award programmes.

5.1. Public participation in environmental decision making

The government is legally required to consult the public on changes to legislation by inviting submissions of any interested persons on the content of draft laws. There are also public consultation provisions for most secondary (subordinate) legislation.

District and regional planning processes allow the public significant participation rights. A local council must publish a notice on the proposed policy statement or plan or changes to an existing one in newspapers, on its website and/or by sending affected persons information directly. Any person can make a written submission, and a hearing should be held upon request. A person who made a submission and is unhappy with the decision may appeal to the Environment Court. The role of the public is much more limited in the consent determination process (the requirement for their notification has been scaled back through the 2009 and 2013 RMA amendments); it is assumed that consultations on the plan providing justification for consents were comprehensive (Indicator 3.3). However, the RMA amendments proposed in 2015 would limit notification of plan changes by giving enhanced review and approval powers to the Minister for the Environment (Indicator 3.4).

Specific provisions in the legislation refer to mandatory consultations with the Maori people. Natural Resources Sector agencies are required to work with Maori communities (iwi/hapu) to implement principles of the Treaty of Waitangi through relationship agreements or formal settlements. Three-quarters of local councils have entered into 117 iwi/hapu agreements, including joint management agreements (MfE, 2016a). Maori groups were involved in the development of the 2014 NPS for Freshwater Management (Fox and Bretton, 2014). In addition, iwi/hapu management plans must be taken into account in preparing or changing regional and district plans: 190 iwi/hapu plans have been lodged with local authorities throughout New Zealand. More than half of local authorities make explicit budgetary commitments to Maori participation in resource management planning (MfE, 2016a).

Almost every local authority routinely determines within the consent evaluation process whether the proposed activity affects local Maori people (tangata whenua); many local authorities established Maori standing or advisory committees (Fox and Bretton, 2014). Almost a third of local authorities involve Maori in compliance monitoring activities, especially in cases where the resource consent included a specific provision for Maori participation (MfE, 2014).

The Land and Water Forum (LAWF) established in 2009 brings together a range of industry groups, environmental and recreational NGOs, iwi, scientists and other organisations with a stake in freshwater and land management. The 54 member organisations are joined by active observers from local and central governments. The LAWF aims to develop a shared vision among all those with an interest in water through stakeholder-led collaboration. It has been instrumental in the development of the NPS for Freshwater Management and continues to play an important role in this domain, having produced four reports with 218 recommendations as of early 2016 (Chapter 4). However, several NGOs have criticised the LAWF’s decision making as biased towards agricultural interests.8

The MfE has published a number of guides to ensure effective participation in resource management processes at the local and regional levels. The MfE also administers the Community Environment Fund (CEF), which encourages community participation in environmental initiatives. The CEF provides NZD 10 000 to NZD 300 000 to local initiatives that help reduce GHG emissions, protect biodiversity and improve freshwater management, coastal management, air quality, etc.

5.2. Access to environmental information

An Environmental Reporting Framework was developed via the Environment Domain Plan 2013, which described over 150 initiatives to improve and manage environmental statistics (Statistics NZ, MfE, DOC, 2013). A pilot air domain report was published in 2014, followed by a first comprehensive Environment Aotearoa report in October 2015.

The Environmental Reporting Act (2015) provides a legal framework for national-level reporting in New Zealand. It requires the MfE and Statistics New Zealand to produce “synthesis reports” on the state of the environment every three years, as well as report every six months on one of the five environmental domains (air, climate, freshwater, land and marine issues). In this way, at least one “domain report” is published every three years for each domain. The adoption of this act addresses the 2007 EPR recommendation to expand the availability of quantitative environmental quality indicators. In response to recommendations by the PCE, Statistics New Zealand has developed a “Good Practice Guide” (not published at the time of writing) for preparing state of the environment reports (PCE, 2016b). However, the reporting framework suffers from insufficient data quality and lack of “response” indicators (that would characterise government actions to address environmental problems).

The MfE has partnered with local authorities to take forward the Environmental Monitoring and Reporting (EMaR) initiative, which aims to improve the collection, collation, publication and reuse of New Zealand’s environmental data. EMaR is also engaging regional councils to develop and implement National Environmental Monitoring Standards and to improve the quality of environmental information at the national and regional levels. In 2014/15, only 22 local authorities (including as few as 7 territorial authorities) monitored the state of the environment in their jurisdiction; 42 local authorities did so in 2010/11 (MfE, 2016a). The shortage of reliable and nationally uniform data is particularly acute in such key environmental policy areas as waste management and biodiversity protection.

The government has improved public access to environmental information through the Government Open Access and Licensing framework (NZGOAL). The Land, Air, Water Aotearoa (LAWA) data portal publishes freshwater and coastal water information and scientific data. It plans to publish more data on air quality, land, biodiversity and marine issues. However, unlike all other OECD member countries, New Zealand neither has a Pollutant Release and Transfer Register (PRTR)9 nor plans to develop one. Establishing such a register would provide the public with access to a database of industrial releases to air, water and soil, and of waste transported to treatment and disposal sites.

5.3. Access to justice

The Environment Court is a single national court with permanent locations in Wellington, Auckland and Christchurch. Environment judges from the three main centres go on circuit to other locations as needed. Most of the court’s workload is generated by appeals brought against decisions of local authorities involving regional and district plans, as well as resource consents. The Environment Court jurisprudence also demonstrates an increasing sophistication in taking into account Maori interests in environmental matters (Fox and Bretton, 2014). All Environment Court decisions are published online.

The government actively helps civil society access judicial remedies. The Environmental Legal Assistance (ELA) Fund provides Maori groups, community organisations and other NGOs with financial assistance to defend public interests in resource management cases at the Environment Court, as well as at boards of inquiry (Indicator 3.3). The ELA Fund reimburses the costs of legal representatives and expert witnesses to help prepare, mediate and present the group’s case. Since May 2013, it has also been available to fund appeals to the Environment Court and board of inquiry proceedings. The ELA Fund has an annual budget of NZD 600 000 and offers grants of up to NZD 50 000 per group, per application, for any one case. However, ELAF is not available to individuals.

5.4. Environmental education

Over the last decade, New Zealand has made further progress in promoting environmental education and incorporating sustainability into the national school curriculum, as recommended by the 2007 EPR. The Ministry of Education’s guidelines for environmental education in schools help teachers identify opportunities within the existing national curriculum statements to plan and provide education in, about and for the environment. The ministry also supports a professional development programme for teachers and many learning-outside-the-classroom projects. A range of programmes run by community groups and environment centres support child and adult sustainability skills education under the MfE’s Community Environment Fund and the Department of Conservation’s Community Fund. Furthermore, the DOC, MfE and Ministry of Education are jointly developing a national strategy for Environmental Education for Sustainability.

The national Enviroschools and Te Aho Tu Roa (for Maori-speaking communities) programmes actively promote voluntary engagement of schools in a “whole school” approach to environmental education; these programmes are co-funded by the MfE, local authorities, local trusts and schools. Since its launch as a national programme in 2001, Enviroschools has continued to grow and expand. To date, over a third of schools and early childhood centres have joined the Enviroschools programme – nearly 1 000 educational establishments covering 250 000 pupils. According to a 2014 nationwide survey of Enviroschools (Enviroschools, 2015), most of them actively engage in actions for water quality and conservation (75% of the schools), waste minimisation plans and actions (99%) and energy projects, including actions for sustainable transport and energy conservation actions (69%).