The Institute recently came across an interesting investigation revealing that more than a third of environmental promises are being broken by resource consent holders in New Zealand. We caught up with University of Waikato PhD candidate Marie Brown to find out more about her the results of her investigation.

Marie studied science and law at the University of Auckland and the University of Waikato. She recently submitted her PhD, under the supervision of Professors Bruce Clarkson and Barry Barton. She now works as a Senior Policy Analyst for the Environmental Defence Society and was selected to attend the World Justice Forum IV in the Netherlands. Marie’s thesis: Towards Robust Exchanges – Evaluating Ecological Compensation in New Zealand is currently under examination, but will be available at the end of the year. A related paper: Ecological compensation: an evaluation of regulatory compliance in New Zealand can be purchased here.

Marie assessed compliance with 245 conditions relating to ecological compensation across 81 resource consents in New Zealand and found that over 35% of requirements were not being met. We asked Marie some questions about her findings.

What were the key findings of your research?

My research demonstrated that there is a significant level of non-compliance with requirements for ecological compensation under the RMA. It also demonstrated the levels of compliance differ substantially across different sectors, types of conditions and other variables.

A programme of interviews incorporated within the research also shows that there exists a real expectation that compensatory mechanisms like offsets can improve environmental outcomes of development, but that poor implementation is constraining that potential. There is a strong appetite for statutory guidance and policy, to establish a decision-making framework and associated monitoring.

Yet to be published research also raises concerns about the nature of exchanges from a biodiversity perspective.

According to your research, why are so many ‘environmental promises’ not being fulfilled?

The research demonstrated that non-compliance was correlated with a range of factors, and was highest in situations where, for example, the mitigation proposal had been introduced into consent discussions only at the very end of the process, rather than earlier on with the benefit of broader engagement.

More widely, and not specifically originating in this research, there is acknowledgement from various sources that RMA consent monitoring is not up to scratch. Monitoring and compliance is a pretty negative activity for a consent authority to carry out, and their job is often made difficult by a lack of resourcing and a lack of political and managerial support.

Enforcement theory does highlight that ‘proximity to the regulator’ (i.e. the likelihood or frequency of monitoring visits by the issuing agency) has a positive impact on compliance, so I suppose that story tells itself.

There are other factors of course, including poorly written conditions, consent holders not really being sure of how to comply, objecting to the restrictions or costs, and of requirements being poorly considered from the outset.

How have your findings been received so far, have people been surprised?

From the get-go, my research has enjoyed enormous levels of support at an end-user level. The community groups, NGOs and local and regional government have engaged wonderfully well, and been open and friendly. Most agency staff I have talked to accept the results, definitely want to address the issues and usually pretty frank about the systemic aspects that make it tough to do so.

I don’t know that many people have been surprised – some even thought the compliance rate would be lower! It’s been a lot about putting numbers to long-held assumptions in a way that doesn’t try to dampen clear trends and lets the data tell the story.

I’ve had so many opportunities to present my research (more than 30 invited presentations so far) which I suppose is a measure of a positive reception. I’ve presented to the likes of the 2020 Forest & Bird Conference, three years running at the Local Government Environmental Compliance Forum and a suite of other engagements. Most notable of late was that myself and my Law Professor, Barry Barton, were invited to present my research (and his work on Carbon Capture and Storage) to the Judges Conference of the Environment Court.

In your opinion what would be the best case scenario for New Zealand’s regulatory system moving forward?

That’s a pretty big question, and probably one my research goes only some way in answering. I think what is needed is some more empirical research and monitoring of outcomes (not just outputs). We have such an obsession with efficiency and small consent timeframes, that we forget what really matters is what occurs following granting.

We don’t have particularly good information on the implementation of the RMA, and it needs to be a stronger research priority for both the agencies themselves, and the Ministry for the Environment.

Conceptually, there are issues at an agency level that might be addressed by more clearly dividing the role of those agency sections that issue consents from those that monitor and enforce. There has been the idea bobbing around for some time that a national agency could assume responsibility for RMA consent monitoring. I think there’s merit in that, subject to a detailed analysis and plan of implementation. The culture of an organisation also has a lot to do with levels of follow-up and enforcement, and that’s something much more difficult to address.

Photo by Nicola de Wit