An environmental crime wave is sweeping through Aotearoa New Zealand. Much of our country’s remaining Nature, existing on private land, is being destroyed at a disturbing rate.

The Resource Management Act (RMA) is our key legislation for regulation of environmental crimes. It was enacted as a textbook way to address the market failure that treats Nature as a storehouse of free goods for the taking. It asks market players to pick up the tab for exploiting Nature instead of leaving it to the public to pay for the costs, either now or in the future.

However, the RMA’s public interest goals to protect Nature have mainly failed. This is because regulation is extremely vulnerable to “agency capture”. Business interests have captured regulatory processes (that were meant to protect the public interest) for their own benefit.

Agency capture happens because powerful interests are well-resourced, well-organised, concentrated, and incentivised to keep harming Nature for their immediate gains. The public interest to protect Nature is no match, being under-resourced, poorly organised, and scattered. Politically, the private interest to exploit Nature almost always overwhelms the public interest to protect Nature.  

That the public interest is so much weaker than private interests is a symptom of modern societies that suffer from short-termism. The long-term interests of Nature and humanity are being lost to the short-term profits of a relative few. Environmental offending generally does not affect any human or their pockets directly in the short term (although it can immediately affect the rest of Nature). Those costs will come to the public later on. Effectively, it means stealing from future generations.

Short-termism is amplified by our inability to grasp timescales greater than our own personal lives, or at most, a few generations either side of us. Most of us simply cannot feel our responsibilities to future generations in any palpable way. This viewpoint contrasts starkly with long-term indigenous values such as that of the Haudenosaunee Confederacy’s Seven Generations, which takes into account the wellbeing of the seven generations that will come after us (the world of which we are borrowing from). Iwi have similar, long-term perspectives, such as Ngā Ariki Kaipūtahi, who also use a Seventh Generation principle to guide their lives, and Te Kawerau ā Maki’s 1000-year outlook.

Furthermore, due to modern societies’ disconnection from Nature, most people only feel the benefits of Nature faintly, if at all. And the law does not generally consider Nature to be a direct victim. We as a society don’t take even the most brutal of attacks on Nature seriously compared to other crimes.

As a result, agencies feel little public pressure to prosecute environmental crimes in comparison to other crimes that affect people personally and directly. Meanwhile, environmental offenders reap direct and almost immediate financial benefits from their mistreatment of Nature. And the economic sector’s relentless resistance to our environmental laws renders them weak and toothless.

Worldwide, environmental laws are cursed by this clash between the public interest to protect Nature and vested interests to exploit Nature. In order to “survive”, regulatory agencies often align with more powerful private interests rather than the fragile public interest. They enact grand yet purposefully vague legislation that ends up serving economic interests due to its ineffectiveness and unworkability.

Councils as environmental prosecutors

The drafters of the RMA put the idea of prosecution of environmental crimes into the Act, but gave little thought as to how this would be achieved. They delegated the main role of prosecution to councils, including the discretionary power to prosecute as they pleased. Government does not offer oversight, the Environment Court usually defers to councils’ prosecutorial discretion, and there is no environmental “victim” to hold councils to account. Councils are therefore answerable to noone as the RMA enforcer. Far too often, this means no prosecution at all.

In Aotearoa New Zealand, another layer is added to the clash between the environment and economic growth. Councils (as the main enforcer of the RMA) have these conflicting economic and environmental mandates baked into their institutional structures. They have their own potent agenda to support local economic growth even as they are tasked with enforcing the RMA. In effect, councils must choose between either businesses breaking the law or less business activity. Since councils generally wish to appear business-friendly, council staff have admitted that councils sometimes turn a blind eye to environmental offending. In the specific cases of unlawful developments and illegal dumping of demolition and development waste, it appears that councils don’t want to discourage the development sector by publicly enforcing the full environmental costs of development and its waste. This massive conflict of interest has contributed to decades of council failure to treat serious RMA breaches as environmental crimes.

Prosecution under the RMA is undesirable to powerful and electorally significant sectors and therefore politically unpopular. Some councillors even run for council on the basis that, if elected, they will change a council’s enforcement practices. Because of anti-enforcement messages from these particular elected officials, compliance staff can feel pressure to use only compliance tools, and can sometimes take a lenient, more relaxed approach to offenders for longer than is appropriate, during which time the offending continues. Informal, off-the-books political meddling in compliance, monitoring and enforcement (CME) decisions is also an issue. Such political interference by elected officials in enforcement processes appears to be common amongst many councils.

Before an environmental offence is even considered for prosecution, it needs to go before an enforcement panel in many councils. Then, if the case clears the enforcement panel hurdle, many councils’ chief executives have final say on whether to prosecute an RMA breach. They are, again, subject to political, especially business, pressures. And alongside this lengthy process, once again, environmental offending can continue apace.

Councils don’t have enough money to stop environmental crimes

Most councils also lack the resources to stop environmental crimes. But this lack of resources is a political choice. Agency capture drives councils towards under-resourcing CME and frowning upon enforcement generally. Since councils want to encourage certain economic participation, they are reluctant to fund their prosecution.

Successive governments have also favoured the “compliance family” of tools for dealing with breaches of the RMA. Abatement and infringement notices are cheap and easy. They are standard-issue forms, so don’t take up a lot of staff time or brain power and can be issued on the spot. Low-cost abatement notices requiring compliance with the RMA are recommended as the “primary tool”. Whether they actually work to deter environmental crimes is another matter. Meanwhile, even serious cases that should have gone to court have been dealt with using infringement fines (that also don’t usually work as a deterrent).

Most councils’ enforcement budgets are capped. Compared to the compliance family of tools, enforcement is expensive and time-consuming, tying up council staff’s time. It also costs time and money to investigate RMA breaches in order to bring a case to court. This is another reason why most councils are very selective about which cases make it to court at all.

Councils appear to pick and choose cases that are winnable over others that are less of a sure bet. For example, councils are much more likely to pursue section 15 water cases (discharge of contaminants into water) over section 9 land cases (restrictions of use on land), the former being easier to prove than the latter. Section 9 cases also impinge on New Zealanders’ perceived sacrosanct right to do whatever they like on their private property. Councils therefore generally deal with section 9 cases, no matter how serious, using the compliance family of tools. This amounts to unequal treatment of different offences of the same severity, watering down our environmental laws even further.

Laser focus on recovery of costs

In the rare case where an environmental criminal does face court action, penalties are modest and not much of a deterrent. This is partly because a main focus for councils is on recouping their investigation and prosecution costs rather than on punishing offenders or deterring future environmental crimes.

When prosecuting, many councils harness the Environment Court process to recover their costs. They will almost always suggest to the courts that the penalty be a fine. The fine is typically low because councils are focussed on recovering their costs, not on deterring future offending. The average fine has been set at around 12% of the maximum penalty. Therefore, even serious breaches have only attracted low sentences. Fine levels should be determined based on the actual offending, not on council costs.

Councils also often do deals with offenders mainly to recover their costs, either in court or out of court.

Doing deals in court

Councils will often do a deal with environmental offenders within the court process in order to recover their costs. “Not guilty” pleas are much more expensive for councils due to ballooning court costs. Therefore, there are often negotiations between councils and offenders before sentencing, with councils giving away “bargaining chips”, whittling away at the offender’s wrongdoing, sometimes until it almost equates to nothing, until a bargain is struck where the offender pleads guilty in exchange for a discounted sentence. Defendants can receive a discount of up to 25% for entering a guilty plea.

Doing deals out of court

Councils and offenders can both benefit from an RMA diversionary deal that moves them out of the court process. Councils get a guaranteed return of their costs, and the offender can stay outside of the court system as well as keep their legal bills down. The deal usually involves the offender doing certain things in exchange for a council making the court case go away. Sometimes, the case is dropped after the offender agrees to pay a sum of money, an arrangement that was declared illegal by the Supreme Court in Osborne v Worksafe. If the case is diverted away from the courts, it then remains private, confidential and out of the public eye, which is highly appealing to the offender. The offender is thus handed an opportunity to buy their way out of conviction and the case being made public.

Councils get frustrated with how the law and courts operate, and so many appear to be inventing their own methods in order to guarantee recovery of their costs. Public prosecutions of serious RMA breaches are being replaced with private confidential settlements between councils and offenders, outside of proper legal procedure. There is no legal basis for this mechanism that many councils have created for their own benefit. These diversionary tactics appear to allow councils to bypass the law, usurp the role of the courts, and become the lawmakers and judges themselves. Under these schemes, councils can behave however they want without public scrutiny and have total control of the outcome without the unpredictability of the courts and case law. This collapsing of the separation of powers and the three branches of government could be considered undemocratic and unconstitutional.

Low levels of reporting

RMA enforcement is also not widely publicised. There is no nationwide reporting system, and generally, most councils do not publish compliance and monitoring data or enforcement reports. Whatever we hear comes from the odd press release or media story. The reporting of successful cases (and only successful cases) of environmental enforcement here and there can make council prosecutions seem like the norm and reassure the public that our environmental laws are working well.

Most councils do not inform the public about RMA breaches or publish the names of convicted RMA offenders on their websites. Nor do they keep a resource consent “blacklist” of businesses who have been convicted under the RMA. Although these actions would effectively deter future environmental offenders, of greater concern to most councils is that they would cast them in a “business-unfriendly” light.

Treat serious RMA breaches as environmental crimes

It was intended that serious breaches of the RMA would be treated as crimes when the RMA was drafted.

Criminal law begins from the starting point of prosecution for breaches of criminal law. Councils, on the other hand, will generally only prosecute as a last resort.

Criminal sentencing focuses on goals such as accountability, reparation, and deterrence. RMA sentencing often focuses on councils recovering their costs. The penalties that councils are aiming for in the Environment Court are often not commensurate to the crime, but to the compensation of council costs.

This may appear to be great for ratepayers, but not so much our rule of law. The rule of law is not there to help councils to save money and recover their costs, just like it is not there to help taxpayers save money instead of punishing offenders under the Crimes Act. One of the basic requirements of a country is that its laws work. If we want our environmental laws to work, then it is going to cost us money to enforce them.

On top of this, the Crown and police handle prosecution of criminal cases, so why not also RMA cases (which are meant to be criminal)?

Environmental law will only work to deter current and future offending if it is consistent, reliably and firmly enforced, operating openly in public, and a matter of public record. Our democracy is cheapened by the rule of law’s shakiness towards environmental crimes. And government and council failure to bring environmental criminals to justice is contributing to Aotearoa New Zealand’s environmental crime wave.