Chapter 2. Environmental governance and management

New Zealand has significantly strengthened stakeholder collaboration in environmental management and established nationwide environmental requirements in several key areas. However, insufficient human and technical capacity of local authorities, along with remaining regulatory gaps, generate implementation challenges. This chapter analyses New Zealand’s environmental governance system, including horizontal and vertical co-ordination mechanisms. It reviews the regulatory framework for environmental impact assessment and permitting, as well as measures to ensure compliance with environmental law. The chapter also assesses progress in promoting public participation in decision making and access to environmental information, education and justice.

  

1. Introduction

New Zealand’s system of environmental governance is unique in many respects. Although it is a unitary state, the country has largely decentralised regulatory and compliance assurance functions to regional and territorial authorities; national environmental standards and rules cover only a limited number of issues. Most environmental impacts are governed by a single comprehensive piece of legislation – the 1991 Resource Management Act (RMA) – which closely integrates land-use planning and environmental regulation. Uncommonly among OECD member countries, the legislation requires individual activity consents or permits only when the activity is not generally permitted under a local plan or by a national environmental standard or regulation. This system was designed to balance the interests of local development and environmental protection. However, since it has often led to inconsistent policy implementation, establishing a regulatory level playing field has become one of the central government’s priorities.

2. Institutional framework for environmental governance

In New Zealand’s decentralised system of environmental governance, most policy implementation responsibilities are at the regional and local levels. Responsibilities for land-use planning and environmental permitting have, in general, been devolved to the community most closely affected by the use of land and natural resources, in accordance with the RMA. Local authorities identify the environmental risks in their area and develop policy statements and plans (within a defined hierarchy) to regulate activities in response to those threats.

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.

Box 2.1. Multi-level co-ordination between environmental authorities in Sweden

The Swedish Enforcement and Regulations Council (ToFR) is a body for co-operation between Swedish public authorities on regulation and enforcement matters with respect to implementation of the country’s Environmental Code. Established by Parliament, with members appointed by the government, ToFR is chaired by a representative of the Swedish Environmental Protection Agency (EPA) and includes representatives of several other national authorities (e.g. the Chemicals Agency), the Swedish Association of Local Authorities and Regions, two County Administrative Boards and one municipality.

The council’s activities are mainly organised around time-limited projects with participation from various member authorities. Its secretariat regularly holds seminars ontopics of common interest for member authorities, covering inspection planning based on the environmental quality objectives, linkages between environmental management systems and compliance monitoring, enforcement methods, quality of enforcement, etc. These seminars act as forums for discussing common viewpoints and promoting integration between sectors and levels of government.

ToFR maintains an electronic Supervision Guidance Network – a “listserv” open to all civil servants working at the central environmental authorities and in environmental departments of County Administrative Boards. It allows individuals to ask their colleagues questions and e-mail answers to all participants. In addition, the Swedish EPA operates a “legal support service” (help desk) available by telephone for two hours every working day. This service offers advice and interpretation on legal issues. It is used not only by regional and local environmental authorities, but by other stakeholders as well.

Source: Mazur (2011).

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. Setting of regulatory requirements

Three main statutes govern environmental management in New Zealand: the 1991 RMA, the 1996 Hazardous Substances and New Organisms Act (HSNO Act) and the 2012 Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act (EEZ Act).3 The RMA – a remarkably comprehensive piece of environmental legislation – provides a framework for national and regional environmental policy development, as well as regional and local (district) planning and permitting (Box 2.2). Environmental issues are also integrated into many other statutes that incorporate sustainable development ideas and principles. There are some discrepancies across these laws, in particular between RMA provisions and those of the Local Government Act (2002) and the Land Transport Management Act (2003); these create regulatory barriers to sustainable urban development (Chapter 5).

Box 2.2. The RMA: Balancing national direction and decentralisation in integrated resource management

Prior to 1991, New Zealand had complex regulation for resource management characterised by process duplication and a plethora of decision-making bodies with high compliance and transaction costs. With its adoption in 1991, the RMA tried to replace this complex landscape with a “one-stop shop” consent (permitting) system. The RMA was intended to install a regulatory regime establishing non-negotiable “bio-physical bottom lines” to ensure development occurred within the capacity of the environment that supported it. Beyond those bottom lines, resource users would be left to make their own decisions.

The RMA’s setup is hierarchical and decentralised, having radically altered the historic resource management responsibilities at all administrative levels. Bottom lines are set at the national level, while regional and territorial authorities implement national directions in the form of National Policy Statements (NPSs), National Environmental Standards (NESs) and regulations. The RMA was designed as a framework (for land, air, freshwater and coastal zone management), not a blueprint. It gave local authorities wide discretion to identify the most efficient means of achieving the act’s purpose and meeting community needs. The following are the current and forthcoming NPSs and NESs:

Under the RMA’s hierarchy, regional and territorial policies and plans must give effect to NPSs (i.e. national objectives and policies) and comply with NESs (i.e. technical rules).

Other national direction priorities include developing regulations on stock exclusion from water bodies, pest control, aquaculture, natural hazards, end-of-life tyres and dam safety, as well as updating the NPS on freshwater management and NESs on air quality soil contaminants and telecommunication facilities.

Source: EDS (2016); MfE (2016b, 2013a).

Over its lifetime, the RMA has been subject to 21 substantive amendments, doubling in size and inevitably losing some of its coherence. The Resource Management Amendment Act 2009 represented the biggest review of the RMA since its inception in 1991. Among other measures, it improved the resource consent process to reduce the cost and time faced by applicants and increased the size of criminal fines for environmental offences (Indicator 4.2). The 2013 RMA amendments further streamlined resource consent applications. The Resource Legislation Amendment Bill 2015 is under consideration in Parliament. Among its aims, the bill seeks to provide more choice over plan making processes and create a more consistent and efficient consent process.

These legislative changes should be seen as part of the trend towards reducing the administrative burden for businesses. The regulatory debate in recent years has largely focused on compliance costs borne by small and medium-sized enterprises (SMEs) and the need to reduce regulatory pressure on them. For example, the Ministry of Business, Innovation and Employment is leading an SME “Good Regulation” project. In addition, a Business Compliance Cost Panel within government looks for ways to relieve the administrative burden; a Small Business Advisory Group represents the SME community in these deliberations. At the same time, both non-governmental organisations (NGOs) and the PCE (2016a) criticise these developments for giving economic development precedence over environmental protection.

Under the RMA, National Policy Statements (NPSs) require regional and territorial authorities to implement certain policy objectives through regional policy statements4 and regional and district plans. However, only four NPSs have been issued over the 25 years since the RMA’s adoption. The government is planning to use this instrument more extensively to strengthen the basis for national environmental policy (Box 2.2).

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
picture

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
picture

 https://doi.org/10.1787/888933459823

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.

Other consent regimes

Under the EEZ Act, the EPA issues consents for environmental impacts of activities on New Zealand’s continental shelf and its Exclusive Economic Zone. Since its establishment in 2011, the EPA has granted four consents for oil and gas extraction and rejected two consent applications for seabed mining due to lack of information on the potential environmental impacts.

In addition, under the HSNO Act, the EPA regulates pesticides, dangerous goods, household chemicals and other dangerous substances, as well as the importation, development, field test and release of new organisms. New Zealand’s chemical safety regulations are different from most other OECD member countries. It has defined a number of group standards, which are descriptions of specific uses and hazard profiles of chemical substances. If a chemical that complies with one of these standards is produced or imported, then its use is authorised. If it does not comply, then the importer or manufacturer has to perform a risk assessment and request an authorisation from the EPA. That way, only chemicals that pose a potential risk have to go through a resource-intensive administrative process. The government is considering proposals to revise this scheme; there is no incentive to review the risks of chemicals that have been on the market for a long time and for which new knowledge is available, unless the government itself initiates a costly procedure to do this.

The DOC reviews applications (with compulsory AEE) and issues permits for activities involving the use of public conservation land and waters other than for personal recreation purposes.

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).

Box 2.4. Challenges of integrating environmental considerations into transport planning

Transport policies and plans in New Zealand are developed through a combination of national, regional and local processes. The regional land transport strategy (RLTS), for example, provides guidance on the transport development in a region for the next 30 years. The process of developing an RLTS is not explicitly defined, but the Land Transportation Management Act (2003) aims to achieve sustainable land transport by avoiding, “to the extent reasonable in the circumstances”, adverse effects on the environment and taking into account the views of affected communities.

The incorporation of environmental and sustainability principles into transport planning and decision making has been challenging. The main barriers include:

  • limited use of environmental data

  • insufficient development and analysis of different transport options

  • limited explicit consideration of environmental impacts of different transport options

  • heavy focus of monitoring on intended outcomes, often at the expense of wider environmental consequences

  • lack of external integration with other (non-transport) regional and national policies

  • difficulties engaging a wide group of stakeholders.

Source: McGimpsey and Morgan (2013).

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. Compliance assurance

The 2007 EPR recommended that New Zealand strengthen compliance with environmental conditions set in resource consents and permits through increased inspection and enforcement. While the enforcement tools have been strengthened, local authorities still lack resources to monitor and enforce compliance adequately (Indicator 2.2); this contributes to relatively high non-compliance with environmental requirements. Compliance promotion is underused by local authorities. The lack of national guidance on compliance assurance (compliance promotion, monitoring and enforcement) not only reduces opportunities for councils to focus on compliance priorities, but also exposes their inconsistent practices to criticism from the regulated community. To address this problem, regional councils have established a Compliance and Enforcement Special Interest Group. It has produced a Regional Sector Strategic Compliance Framework 2016-18 (CESIG, 2016) that encourages the risk-based approach to compliance promotion and monitoring, and peer review across regional councils.

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
picture

 https://doi.org/10.1787/888933459834

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).

Criminal enforcement

Prosecutions are undertaken for the most serious offences. The Resource Management Amendment Act 2009 raised the maximum fine for convictions under the RMA from NZD 200 000 (for both companies and individuals) to NZD 300 000 for individuals and NZD 600 000 for companies (with an additional daily fine for a continuing offence). This amendment intended to improve the deterrent effect of enforcement and compliance mechanisms under the act. In the three years following the 2009 amendments, the average criminal fine imposed increased slightly to NZD 28 800, but in individual cases fines seldom exceed NZD 100 000 (MfE, 2013b).

Local authorities have direct prosecutorial powers under the RMA. In 2012/13, regional councils approved 60 prosecutions, 37 of which related to discharge of contaminants to land; unitary authorities approved 20 prosecutions. Territorial authorities use prosecutions more rarely than regional councils (24 cases), with most related to land use (MfE, 2014). The cost and time associated with prosecution strains local councils’ already limited resources.

Courts take into account a number of factors in sentencing offenders under the RMA. They base decisions on the precedent of the Court of Appeals case Machinery Movers Ltd. vs. Auckland Regional Council (1994), including the deliberateness of the offence, the offender’s corporate environmental policies and compliance record (Price, 2003). The vast majority of court decisions on RMA-related cases result in convictions. Regional councils achieve the highest conviction rate as they have the greatest capacity to properly prepare such criminal enforcement cases.

The EPA has enforcement powers with respect to the HSNO Act, the EEZ Act, the Climate Change Response Act (2002) and the Ozone Layer Protection Act (1996). Its prosecution policy sets out guidelines and standards to be followed by EPA staff when deciding whether to prosecute, and in conducting prosecutions (EPA, 2014).

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.

Box 2.5. Using innovative financial security instruments

In accordance with the RMA, bonds may be required where compliance will likely take a long time to demonstrate (e.g. in replanting affected vegetation) or where there is significant risk to the community. Bonds may be relatively small (e.g. several thousand dollars to secure a small-scale ecosystem restoration project) or comprise millions of dollars for high-risk activities. For example, the Waikato Regional Council holds a bond of NZD 40 million to secure compliance with certain permit conditions of the Newmont Waihi gold mine.

Mitigation trusts are independent entities that carry out conservation work or distribute funding to address adverse environmental impacts. They are usually established in response to a large-scale project with diffuse effects over a wide area (e.g. the Waikato Catchment Ecological Enhancement Trust) or by an agency to manage impacts of several projects (e.g. the Taranaki Tree Trust). When a consent or a permit is granted, agreement is normally reached on the objectives of the trust and its annual disbursements.

However, the costs of setting up and running a mitigation trust are often significant, including legal fees, reimbursement of trustees, distribution of funds, liaison with stakeholders and monitoring of outcomes. As a result of these high administrative costs, mitigation trusts are not as effective as they might be in implementing ecosystem restoration measures.

Source: Brown (2016).

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.

Voluntary agreements

The central government and local authorities have concluded a number of voluntary agreements with individual companies and industry groups to promote sustainable production practices. The “Sustainable Dairying: Water Accord” – by far the largest one – was put in place in July 2013 (replacing the “Dairying and Clean Streams Accord” of 2003). It establishes national good management practice benchmarks to improve management of risks to freshwater bodies posed by the dairy industry by (Box 2.6; see also Chapter 4). As recommended by the 2007 EPR, this accord sets clear environmental performance targets and requires regular reporting and third-party auditing. It has achieved tangible results ahead of the adoption of relevant government regulation.

Box 2.6. A voluntary agreement with the dairy industry to protect water bodies

The “Sustainable Dairying: Water Accord” was concluded between DairyNZ (an industry organisation representing New Zealand’s dairy farmers), the Dairy Companies Association of New Zealand, the country’s five largest dairy companies, the Fertiliser Association of New Zealand and several other relevant organisations. The accord’s “friends”, which contribute to its success, include the MfE, the Ministry for Primary Industries, 13 regional councils, 3 district councils and the Federation of Maori Authorities. The accord was put in place in view of the forthcoming national regulation of environmental impacts of intensive farming, which has been under consideration since 2011, but has still not been issued.

The accord establishes measurable targets in several policy areas, including:

  • 100% exclusion of livestock from all waterways (over 1 metre wide), lakes and significant wetlands by May 2017

  • preparation of riparian (borderline between land and waterway) management plans by all participating farms by May 2020

  • collection and benchmarking of nutrient management information from all participating dairy farms by November 2015

  • assessment of all participating dairy farms’ compliance with relevant regional council rules and/or resource consents by May 2014

  • installation of water intake meters by 85% of the farms by 2020.

The Dairy Environment Leadership Group, which includes representatives of all the engaged stakeholders, oversees the accord’s implementation. An independent third party audits annual reports.

According to the second annual implementation report, 90% livestock exclusion had been achieved by the end of 2015; the government’s draft regulation aims at full exclusion by mid-2017. While the number of prosecutions related to farm effluents is declining, the nutrient management target has not yet been achieved.

Source: DairyNZ (2016, 2013).

Providing information and advice to the regulated community

Several regional councils (such as one for the Bay of Plenty) initiate pollution prevention audits in small businesses and disseminate information on best practices in the most problematic activity sectors. The Regional Sector Strategic Compliance Framework (CESIG, 2016) also promotes engagement and education of the regulated community. Many regional councils hold stakeholder forums in key economic activity sectors. In addition, the EPA has developed a “toolbox” to raise awareness among SMEs and Maori communities about the use of hazardous chemicals. Other useful tools to provide guidance to the business community include free-access webpages (where best practices include the US Environmental Protection Agency’s online National Compliance Assistance Centers and NetRegs in the United Kingdom), as well as concise printed materials (Mazur, 2012).

Sustainable public procurement and eco-labelling

The New Zealand government worked closely with its Australian counterpart to produce a joint framework for sustainable procurement (APCC, 2007). In 2013, the two countries signed an Australia-New Zealand Government Procurement Agreement to create and maintain a single government procurement market. The New Zealand government’s Guide to Sustainable Procurement (MED, 2010) suggested compliance with environmental standards as one of the key procurement criteria, largely inspired by the UK model. With support from the New Zealand Business Council for Sustainable Development, a wide range of New Zealand’s government agencies are using these criteria.

For sustainable public procurement, government agencies largely rely on the Environmental Choice New Zealand eco-labelling scheme to identify green products and services. The number of companies and products licensed to use this voluntary eco-label has steadily increased over the last decade. Around 2 000 products and services are eligible to carry the eco-label.

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
picture

 https://doi.org/10.1787/888933459847

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. Promoting environmental democracy

Environmental democracy has particular importance in New Zealand given that the Treaty of Waitangi (1840) guarantees special rights for the Maori people. Over the last decade, the country has demonstrated progress in promoting access to environmental information, justice and education for everyone. There are multiple opportunities for public participation in policy making, while public engagement in individual permitting decisions is more limited.

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%).

Recommendations on environmental governance and management

Regulatory framework

  • Conduct a comprehensive evaluation of the effectiveness of RMA implementation at the local authority level in achieving its objective of development within the limits of the environment’s carrying capacity; consider a regulatory review of the RMA to evaluate whether its framework as a whole remains fit for purpose.

  • Prepare new and review existing NPSs and NESs to reinforce the national-level regulatory and methodological framework for managing air and water pollution; establish national standards for hazardous waste management.

  • Establish nationally standardised requirements for air and water discharge permits and waste generation and management; encourage better cross-media integration of discharge permits on the basis of best available techniques; extend consent and permit requirements to existing use rights obtained under older regulatory regimes.

  • Build capacity of local authorities to carry out their permitting, compliance monitoring and enforcement responsibilities through better nationwide guidance, support and training, including interactive online support; introduce outcome indicators in the National Monitoring System to strengthen the national government’s oversight and ex post evaluation of policy implementation and enforcement at the local level.

  • Evaluate the implementation of requirements for the assessment of environmental effects (AEE) and consider defining environmental impact-based thresholds for activities above which the scope of assessment would remain comprehensive and notification to the public would be mandatory, while smaller activities could undergo simplified AEE without notification.

  • Ensure coherence of regional and territorial land-use plans; require explicit assessment of cumulative environmental impacts as part of the planning process; continue efforts to integrate biodiversity protection into land-use planning, particularly on private land.

Compliance assurance

  • Promote risk-based targeting and other resource-efficient inspection practices among local authorities; strengthen compliance assurance through more active use of administrative enforcement tools and better national oversight of their consistent application; enhance compliance promotion through best practice guidance.

  • Establish mechanisms to enforce strict (independent of fault) liability regime for damage to water bodies and ecosystems; expand the use of bonds and mitigation trusts under the RMA to secure the remediation of potential future environmental damage.

Environmental democracy

  • Continue to ensure public participation in land-use planning, limiting exemptions to a few clearly defined cases; build capacity of Maori communities to ensure their adequate participation in resource management planning.

  • Establish a Pollutant Release and Transfer Register (PRTR) to collect, and facilitate the public’s access to, information on environmental impacts of private companies.

References

APCC (2007), Australian and New Zealand Government Framework for Sustainable Procurement, Australasian Procurement and Construction Council, Deakin West.

Brower, A.L. (2016), “Is collaboration good for the environment? Or, what’s wrong with the Land and Water Forum?”, New Zealand Journal of Ecology, Vol. 40/3, New Zealand Ecological Society, Christchurch, pp. 390-397.

Brown, M.A. (2016), Pathways to Prosperity: Safeguarding Biodiversity in Development, Environmental Defence Society, Auckland.

Brown, M.A. et al. (2013), “Ecological compensation: An evaluation of regulatory compliance in New Zealand”, Impact Assessment and Project Appraisal, Vol. 31/1, Fargo, International Association for Impact Assessment, pp. 34-44.

CESIG (2016), Regional Sector Strategic Compliance Framework 2016-2018, Compliance and Enforcement Special Interest Group.

DairyNZ (2016), Sustainable Dairying: Water Accord: Two Years on…, March 2016, DairyNZ, Hamilton.

DairyNZ (2013), Sustainable Dairying: Water Accord, DairyNZ, Hamilton.

DIA (2015), “The loopy rules report: New Zealanders tell their stories”, Rules Reduction Taskforce Report to the Minister of Local Government, Department of Internal Affairs, August 2015, Department of Internal Affairs, Wellington.

EDS (2016), Evaluating the Environmental Impacts of the RMA, report by the Environmental Defence Society, Wellington, June 2016.

Enviroschools (2015), Enviroschools: Key Findings from the Nationwide Census, Toimata Foundation, Hamilton.

EPA (2014), EPA Compliance: Our Approach, Environmental Protection Authority, Wellington, May 2014.

Fish and Game New Zealand (2016), An Analysis of Environment Canterbury’s Enforcement of Waterway Protection Rules, Fish & Game New Zealand, April 2016.

Fox, C. and C. Bretton (2014), “Maori participation, rights and interests”, presentation at the Resource Management Law Association 2014 conference, 26 September 2014, Dunedin.

ISO (2015), ISO Survey 2014, International Organization for Standardization, Geneva.

Mazur, E. (2012), “Green transformation of small businesses: Achieving and going beyond environmental requirements”, OECD Environment Working Papers, No. 47, OECD Publishing, Paris, https://doi.org/10.1787/5k92r8nmfgxp-en.

Mazur, E. (2011), “Environmental enforcement in decentralised governance systems: Toward a nationwide level playing field”, OECD Environment Working Papers, No. 34, OECD Publishing, Paris, https://doi.org/10.1787/5kgb1m60qtq6-en.

McGimpsey, P. and R.K. Morgan (2013), “The application of strategic environmental assessment in a non-mandatory context: Regional transport planning in New Zealand”, Environmental Impact Assessment Review, Vol. 43, November 2013, Elsevier, Amsterdam, pp. 56-64.

MED (2010), Guide 1 to Sustainable Procurement: Identifying Sustainable Procurement Priorities, A guide for agencies, Ministry of Economic Development, Wellington, June 2010.

MfE (2016a), National Monitoring System for 2014/15 (database), Ministry for the Environment, Wellington, www.mfe.govt.nz/rma/rma-monitoring-and-reporting/reporting-201415 (accessed 10 July 2016).

MfE (2016b), Priorities for National Direction website, Ministry for the Environment, Wellington, www.mfe.govt.nz/rma/rma-legislative-tools/priorities-national-direction (accessed 28 September 2016).

MfE (2014), Resource Management Act: Survey of Local Authorities, 2012/2013, Ministry for the Environment, Wellington, April 2014.

MfE (2013a), Improving Our Resource Management System, Ministry for the Environment, Wellington, February 2013.

MfE (2013b), A Study into the Use of Prosecutions under the Resource Management Act 1991, 1 July 2008 – 30 September 2012, Ministry for the Environment, Wellington, October 2013.

NZCID (2015), Integrated Governance Planning and Delivery: A Proposal for Local Government and Planning Law Reform in New Zealand, New Zealand Council for Infrastructure Development, Auckland, August 2015.

NZPC (2016), Better Urban Planning, draft report, New Zealand Productivity Commission, Wellington.

Palmer, G. and R. Blakeley (2015), “Submission on New Zealand Productivity Commission’s better urban planning inquiry, Issues Paper, Submission 007, March 2016, New Zealand Productivity Commission.

PCE (2016a), Resource Legislation Amendment Bill 2015: Submission to the Local Government and Environment Committee, Parliamentary Commissioner for the Environment, 14 March 2016.

PCE (2016b), The State of New Zealand’s Environment: Commentary by the Parliamentary Commissioner for the Environment on Environment Aotearoa 2015, 29 June 2016, Parliamentary Commissioner for the Environment, Wellington.

Price, K. (2003), New Zealand: Environmental Liability: Risk and Compliance, 18 June 2003, www.mondaq.com/NewZealand/x/21635/Health+Safety/Environmental+Liability+Risk+And+Compliance.

Reeves, S. (2015), Environmental Law of New Zealand, Fourth Edition, Kluwer Law International BV, The Netherlands.

Statistics NZ, MfE, DOC (2013), Environment Domain Plan 2013: Initiatives to Address our Environmental Information Needs, Statistics New Zealand, Ministry for the Environment and Department of Conservation, Wellington.

Notes

← 1. Regions are delineated along water basin boundaries, but may comprise several basins (Chapter 4).

← 2. Councils are funded by a combination of local taxes and central government funding (primarily in the form of road and public transport subsidies).

← 3. The EEZ Act provides for an environmental consent regime for oil and gas exploration and drilling, seabed mining and other potentially harmful activities on the country’s continental shelf.

← 4. Regional policy statements may cover topics for which no NPS has been issued.

← 5. Discharges of contaminants into air by agricultural users are exempt from permit requirements. The use of agrichemicals is addressed by non-binding industry guidelines and codes of practice, as well as by district and regional plans.

← 6. In 2011-13, the EPA processed 60 resource consents and 2 regional plans.

← 7. C(79)116 – Recommendation of the Council on the Assessment of Projects with Significant Impact on the Environment.

← 8. Fish & Game, the country’s leading environmental and recreation non-profit organisation, left the LAWF in November 2015 (Brower, 2016).

← 9. The OECD Council Recommendation C(96)41/FINAL, amended by C(2003)87, recommends that OECD member countries establish and maintain a PRTR.