Naming and shaming possibly a step too far
Water is one of our most precious natural resources and in New Zealand, water consumption is regulated by enforcement agencies and Regional Councils. The Resource Management Act (RMA), requires farmers to obtain and comply with all necessary consents to take and use water.
The RMA prohibits the taking of water without a permit, unless it is for reasonable domestic purposes or stock needs, or permitted by a regional plan, or for emergency purposes (for example putting out a fire). In Taranaki, for other uses, while smaller takes (less than 1.5 litres a second or 50 cubic metres a day, and less than 25% of the stream flow) may be permitted under the Regional Plan, larger takes are likely to require a consent, and water monitoring may be a condition of the consent.
Most farmers comply with these water regulations, but for those who don’t, Regional Councils have a range of enforcement tools under the RMA which include the power to issue warnings for minor offences, abatement notices or infringement notices (issuing a fine for moderate offences), or prosecution for more serious breaches.
However, a recent article (stuff.co.nz – “Forest & Bird contests Environment Canterbury water compliance claim” (26 August 2016)) reports that Environment Canterbury (ECan) has taken other steps, including planning to publish farmers’ infringement and abatement notices on its website. ECan had reported some success with using this strategy (although Forrest and Bird has challenged this), but is it legal?
With the available enforcement tools (highlighted above), the RMA already gives Regional Councils and other enforcement agencies specific powers to enforce the water regulations to ensure that farmers are complying with water consumption rules. These are quite specific powers, which enforcement authorities should not exceed. Threats to publicise enforcement notices on the Regional Council’s website is a step too far, especially where it is not provided for in the RMA’s quite specific enforcement regime.
Aside from the RMA, privacy issues also arise. The Privacy Act prohibits the publication of personal information, unless doing so is necessary (amongst other things) for the maintenance of the law. Although the Privacy Act only relates to the publication of personal information, if publishing infringement and abatement notices also involved publishing farmers’ personal information, then this may be a breach of the Privacy Act.
Additionally, one could argue that, as the RMA already provides effective tools for the regulation of water consumption and the enforcement of the RMA, so publishing infringement and abatement notices is an unreasonable, as well as an unlawful, response to a fixable problem.
While environmental agencies have called for, and Regional Councils recognise the need for strict enforcement, enforcement agencies (including Regional Councils) must operate within the bounds of the law.
The content of this document is necessarily general and readers should seek specific advice on particular matters and not rely solely on this document.
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