Federated Farmers: RMA to prosecute or not

Two Pied Stilt chicks flee across the effluent pond.

Federation members are becoming increasingly alarmed and distressed about how councils are enforcing environmental law.

Members used a recent survey relating to RMA reform as an opportunity to discuss frustrations they have with prosecution provisions and how they are applied.

There are lots of reported situations where there have been inconsistent responses to cases with similar environmental or potential impacts.

The inconsistencies are seen both internally within specific processes and are also apparent when comparing approaches across the country.

The problem being that it undermines the deterrent purpose of a prosecution and provides no certainty for resource users.

Other examples show that when a council is too process-focused at the expense of being solutions or outcome driven, it can ultimately be at the expense of the environment longer term.

Money which could be better spent on environmental restoration, upgrading equipment or on staff training to minimise ongoing issues is spent on legal costs.

Unfortunately the situation described by this member is not an isolated one: "We have recently been fined and convicted personally as a director and a company for effluent having the 'potential' to reach or damage a waterway.

"When the incident occurred, we dropped everything to co-operate under the impression that we could remedy the problem by improving our staff training, on farm systems and even agreed to plant a riparian strip at our own cost -- having plans drawn up and presented to the regional council by a professional in this area.

"However, the council decided to withdraw this offer preferring to prosecute us and fine us both personally and as a company."

The survey results and the issues outlined come as no surprise to regional policy staff that over recent months have been looking at a number of council prosecution processes.

Analysis has shown the most problems occur when decisions to prosecute are made in a seemingly ad hoc fashion, not informed and guided by a robust compliance and enforcement policy.

It is important for council staff to have discretion to determine when enforcement action is taken.

However current standard practices generally lack guidance, transparency and accountability within the decision-making processes.

The absence of those important elements means the discretion can be misused. The punishment and deterrent purpose of a prosecution can then become lost in the debate and anger surrounding a poor process.

No one is suggesting environmental offences should go unpunished. Rather those councils should undertake a review of their prosecution processes to assess whether they are fit for purpose.

The broad consensus from members is presently they are not.