When crime pays : “environmental civil prosecutions” and the Resource Management Act 1991. (2020)
Type of ContentTheses / Dissertations
Degree NameDoctor of Philosophy
PublisherUniversity of Canterbury
The Resource Management Act 1991 (RMA) is a significant piece of legislation, aimed at promoting the sustainable management of natural and physical resources in New Zealand. However, it can only achieve this goal if it is properly enforced, and the most serious and visible means of doing this is by local authorities prosecuting those in breach of the Act’s provisions. Yet the RMA’s offences have, in and of themselves, received little attention, with previous research focussing on the effectiveness of the enforcement tools in the Act as a whole. Such an approach has also meant that the offences, when they are considered, are treated as though they are just another state regulatory tool, interchangeable with other mechanisms for securing compliance, as opposed to having the special significance that comes from employing the criminal law. There is also an underlying assumption in the previous research that any issues with enforcement can be solved, other than by minor tinkering with the tools, by altering the behaviour of the local authorities. Unsurprisingly, this is what the recent changes in the area of RMA enforcement have targeted.
This thesis seeks to fill the identified gaps in the literature by asking whether the offences in the Act are “working”. It does this by first considering whether the offences are effective – are they doing what they are supposed to? This involves determining the primary purpose of the offences, which is found to be deterrence, and then using deterrence theory to analyse the severity of the criminal sanctions and the certainty that they will be imposed. It then asks whether the offences are being used appropriately. This involves considering how the local authorities apply – or do not apply – the offences, and critiquing the approach councils are taking against criminal law theory.
The conclusion reached is that the offences are neither effective nor being used appropriately, and therefore they are not working. Fundamentally, this is because the offences, penalties and institutional arrangements for hearing prosecutions are formally criminal but in substance civil, with the confused system also meaning that the actions of local authorities are essentially unchecked. This thesis suggests that the way that serious non-compliance with the RMA is dealt with needs to be reconsidered, with the goals decided first and then the tools and institutional arrangements developed. In particular, if deterrence is to remain the primary goal, the question to be asked is what role – if any – the criminal law should play.
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