Patrick Lynch, Waikato Regional Council Compliance Manager, recommends improving the compliance and enforcement regime for environmental violations.
Scrapping juries for environmental crimes and imposing tougher fines are among the options raised by a Waikato enforcement specialist as the government considers tougher legislation as part of Resource Management Act (RMA) reforms.
The Waikato Regional Council’s compliance manager, Patrick Lynch, speaks personally in a paper last month for the Department of the Environment (MfE).
It comes as penalties are in the spotlight statewide and in Waikato, including the penalties imposed on repeat offender Morrinsville farmer Kenneth McIntyre. He was given a regional first sentence last month to house arrest for environmental crimes and a $100,000 fine.
People can be jailed for up to two years per conviction for environmental crimes, but Lynch’s paper points out that there have only been a handful of prison sentences nationwide in the last 30 years.
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In McIntyre’s most recent case, the crown sought jail time, but Judge David Kirkpatrick opted for house arrest, saying it would better enable him to carry out his responsibilities to help clean up his farm and comply with an enforcement order.
Of McIntyre’s five-month home sentence, Lynch said last month, “It reflects the seriousness of the offense … I think it’s entirely reasonable.”
Asked if this is a sign the courts are taking environmental crimes more seriously, Lynch said, “It shows a strengthening of the messages coming from the court.”
If fines have not been enough to deter offenders in the past, then the risk of house arrest or incarceration “certainly must make a difference.”
At the national level, a recent paper from the New Directions for Resource Management in New Zealand – known as the Randerson Panel – discussed strengthening compliance, monitoring and enforcement of environmental legislation.
The panel’s ideas included reducing the number of cases in which a jury trial was possible given the complexity of the matters and banning insurance against fines and infringement fees for environmental crimes.
Lynch, who stressed that his comments in his paper for the MfE were in no way intended to criticize or express frustration with court decisions, argued against the Randerson report’s comments on juries, saying it was just simpler and better “that RMA prosecutions should be exempt from jury trial” in full.
“Environmental cases can be technical in nature and would normally be decided by a district judge who also has an environmental warrant and is familiar with the technicalities of environmental crimes. In my view, there is an increased risk that a jury will reach an inappropriate verdict.”
Lynch also said that many see fines for serious environmental crimes as “light and not sufficiently dissuasive.”
For example, his paper found that RMA prosecution fines totaled about $5.2 million in 2020-21, just under four percent of the total potential maximum available fines of $130 million.
“There has been more than one call for the maximum penalty available to be increased…[but] the maximum penalty available is not really the issue as there is a lot of untapped potential (over 95%) in the existing penalty system.”
He said clear messages, guidance and even directions to sentencing judges based on community expectations would result in significant increases in sentences.
Regarding unpaid fines, Lynch said that over four years, after deducting regional council costs from the fine revenue received, there was a current “loss” or taxpayer burden of more than $360,000. “What can be done to ensure that? [the Ministry of Justice] get back the highest possible part of the fines imposed for environmental crimes?” he asked.
A statement from the MfE said compliance, monitoring and enforcement are “the last line of defense to protect the environment from degradation”.
“As part of our reform process, the Department is exploring ways to modernize the enforcement tools available to regulators to ensure they are best placed to tackle environmental breaches.
“Decisions have yet to be formalized and more details will be available once the Natural and Built Environments Act goes to Parliament, which is expected to take place later this year.”