Environmental Reporting Bill

  • enacted

Commentary

Recommendation

The Local Government and Environment Committee has examined the Environmental Reporting Bill, and recommends by majority that it be passed with the amendments shown.

Introduction

The Environmental Reporting Bill would require regular reporting on New Zealand’s environment. A report on one of five domains (air, freshwater, land, marine, atmosphere and climate) would be released every six months. It would report on the state of, and pressures on, the environment, as well as effects the changes in the environment might be having on other areas. A synthesis report analysing trends across all the domains would be published every three years, drawing on the best available data.

The legislation would make the Secretary for the Environment and the Government Statistician responsible for the production and publication of environmental reports.

This commentary covers the key amendments that we recommend to the bill. It does not cover minor or technical amendments.

Domain and Synthesis Reports

We recommend amending clauses 7 and 10 to replace economic benefits with economy, so that both positive and negative economic impacts from changes to the state of the environment were included in domain and synthesis reports. The majority of us believe this would bring balance regarding the economic benefits from natural resources, and would take into account environmental impacts on the economy. We also recommend adding subclauses 7(1)(c)(iiia) and 10(1)(c)(iiia) to include a te ao Māori impact category.

Commencement

The majority of us recommend removing the specific date for the release of the first synthesis report from clause 8. Instead, we recommend amending clause 11 to require that the first domain report be published within 18 months of the bill’s commencement, initiating the first three-year environmental reporting cycle. The first synthesis report would be due three years from the date of the first domain report’s release.

Responsibility for Environmental Reporting

Topics

Clause 18 sets out the proposed role of the Minister for the Environment and the Minister for Statistics in making regulations prescribing topics to be covered in environmental reports. We recommend amending subclause 18(3) to expand the number of entities to be consulted before recommending regulations. We propose adding the public, iwi authorities, and local authorities to the list.

We also recommend inserting subclauses 6(1A) and 9(2) which would require the Ministers to present reports jointly to the House of Representatives, thus encouraging political accountability. Concern by some over Government Ministers having regulation-making power over the subject matters is noted.

Government members of the committee believe that environmental monitoring comes at considerable expense, and it is not appropriate for independent officers effectively to be able to commit public expenditure. Furthermore, there is a check on any government misusing these regulations in that a process of public consultation would be required on the regulations that ensured transparency in the process.

Role of the Parliamentary Commissioner for the Environment

Clause 17 sets out the Parliamentary Commissioner for the Environment’s role in the environmental reporting process. We note that the commissioner could choose to report on an environmental report, but would not be obliged to. The Officers of Parliament Committee recommended an increase in the commissioner’s funding to support this function.

We note suggestions that the commissioner’s environmental reporting role should be expanded. However, the commentary function proposed in the bill would allow the commissioner to provide independent scrutiny of environmental reports, consistent with the commissioner’s existing functions and powers under the Environment Act 1986.

Disclosure of information

We recommend that clause 16 be amended to clarify that the Government Statistician could withhold access only to untested and unpublished data prepared for the purposes of this Act. This clause is intended to maintain the independence and integrity of reports, and to ensure that no single party, including the Parliamentary Commissioner for the Environment or the Ministers, is privileged above another regarding access to raw data from an unpublished report. It would also ensure that data could be properly quality assured before its release; it is not intended to prevent public access to data, and is consistent with section 15 of the Statistics Act 1975.

We also recommend amending clause 16 to clarify that a request for untested information does not include requests made under the Ombudsmen Act 1975 or the Public Audit Act 2001. This provision acknowledges that the powers of the Ombudsmen and the Auditor-General to seek, obtain, and review the decisions and performance of departments would not be affected.

Treaty of Waitangi

We recommend inserting a new Treaty of Waitangi clause, 4A. This would be consistent with other legislation, would recognise the principles of the Treaty, and would acknowledge te ao Māori (the Māori world view) as an important contribution to New Zealand’s environmental reporting.

Purpose and Interpretation

We recommend amending clause 3 to simplify the purpose of the bill.

We recommend a number of amendments to clause 4 for clarity, including amending the definitions of the freshwater, marine and land domains to take into account animals and man-made structures.

New Zealand Labour Party minority view

Labour does not support the Environmental Reporting Bill in its current form. Although we wholeheartedly support the purpose of the bill, to require regular reports on the state of the New Zealand environment, there are a number of fundamental issues that prevent us from voting for this legislation. Our primary and substantial reason for not being able to support the bill is the lack of legislated independence in the reporting process.

The Labour Party, despite our grave reservations, supported this legislation to select committee because we had a commitment to working constructively to ensure we had robust legislation that would provide truly independent environmental reporting. Regrettably, this aim has not been achieved, and we do not believe the bill in its current form will deliver on its purpose.

The bill requires that the Secretary for the Environment and the Government Statistician report on five environment domains—air, atmosphere and climate, freshwater, marine, and land. The bill further specifies that these domains must be divided into topics. There is not a list of topics contained in the bill, but instead there is a process for choosing the topics. This process is set out in clause 18(1), and states that regulations may be made, on the joint recommendation of the Minister for the Environment and the Minister of Statistics to the Governor-General, prescribing topics to be covered in domain and synthesis reports.

Labour members agree with the majority of submitters who did not support clause 18, and agree with their reasoning that having Ministers set topics is incompatible with independent environmental reporting, as it creates the opportunity for political interference. We share the view that this opportunity for political interference undermines the integrity and independence of environmental reporting. The choice of topics will ultimately determine the scope of the environmental reports produced under the legislation. If Ministers are given the responsibility for setting topics this creates the opportunity to exclude politically sensitive or controversial topics. This would obviously undermine the independence of the report.

We concur with the view expressed by Fish and Game New Zealand and the Parliamentary Commissioner for the Environment that as this clause is incompatible with independent reporting, it is therefore contrary to the purpose of the bill.

Several alternatives for topic selection that could achieve greater levels of neutrality were mooted to the select committee. One of these was to have the Parliamentary Commissioner for the Environment select the topics. While the Parliamentary Commissioner for the Environment has expressed her support for the assurance role set out in clause 17 of the bill, the Parliamentary Commissioner for the Environment herself expressed a view that having the dual functions (of topic setting in addition to assurance and comment) may potentially constrain her ability to provide assurance and comment as required by clause 17 of the bill.

Our preferred mechanism for topic setting is to have the Secretary for the Environment and the Government Statistician, after consultation with the Parliamentary Commissioner for the Environment, the public, iwi, and local authorities, undertake this task. In our opinion, this would allow for a greater separation between topic selection and the political sphere.

For too long New Zealand has lagged well behind international best practice in that we are the only country in the OECD without an ongoing commitment in law to independently and regularly monitor the state of our environment. The bill in its current form does not deliver on our desire to see that independent and regular monitoring of our environment.

Green Party of Aotearoa/New Zealand minority view

The Green Party supported the referral of the Environmental Reporting Bill to select committee because it is a step towards having regular reporting on the state of our environment guaranteed by law. New Zealand is out of step with the rest of the OECD in not having this.

If environmental reporting is to be credible and robust it needs to be independent. The Green Party opposes the bill because while it provides for reporting on the state of the environment, it does not provide for independent reporting. This is a major flaw at the heart of the bill. Our history has shown that governments can manipulate environmental data if it does not suit them.

The process for preparing state of the environment reports is not fully independent because clause 18 provides wide regulation making powers for the Minister for the Environment and Minister of Statistics. Those powers include prescribing the topics to be covered in the occasional domain reports to be published on a rotating basis every six months and the three-yearly synthesis reports; the pressures which are changing the state of the environment, and the impacts the changes are having.

As the Parliamentary Commissioner for the Environment said in her submission: Giving the selection of topics to the Government of the day creates the opportunity for political interference. For instance, it would be possible to avoid reporting on an environmental topic that is important but also controversial…

Officials noted that nearly half of submitters on the bill commented on clause 18 with the majority opposing it. Submitters considered that having Ministers set topics was incompatible with independent environmental reporting. The Green Party agrees.

Submitters suggested several options to avoid having topics being influenced or perceived to be influenced by political priorities and ideology. These included removing the topics from the legislation, having them set in a schedule to the bill itself, having the Parliamentary Commissioner for the Environment set the topics on her own or in consultation with the Government Statistician and the Secretary for the Environment, a panel of scientists with input from the Parliamentary Commissioner, or having the Secretary for the Environment and the Government Statistician set the topics jointly. None of the options have been supported by the majority of the select committee.

The bill as amended requires Ministers to consult the public, iwi authorities, local authorities and others before making the regulations, however, it still gives Ministers too much scope to interfere with and restrict the matters to be reported on and the types of information which will be relevant.

Green members support the other select committee amendments to the bill in response to public submissions such as the changes to clause 16. The Green Party was concerned that in the bill as introduced, clause 16 could have been used to restrict access to environmental data. These concerns were shared by 46 percent of submitters on the clause who believed its ambiguous drafting would reduce the independence, integrity, and transparency of environmental reporting by restricting access to information. Agencies, such as local authorities which collect information used in environmental reporting, could have been restricted in their right to publish this data.

Clause 16 also potentially interfered with the roles and responsibilities of the Officers of Parliament (the Parliamentary Commissioner for the Environment, the Ombudsman, and the Auditor-General) by constraining their statutory powers to require and obtain information to carry out their investigative functions. The amendments to clause 16 are intended to avoid this.

The Green Party remains concerned that clause 16 may still restrict the ability of local authorities, especially regional and unitary councils, to use information they collect about their region’s environment and trends; and to fulfil their statutory functions for policy making, planning, and environmental management. Councils should be able to use their own information for their own reporting and other purposes and the bill should explicitly protect this right.

Appendix

Committee process

The Environmental Reporting Bill was referred to the Local Government and Environment Committee on 5 March 2014. The closing date for submissions was 17 April 2014. We received and considered 323 submissions from interested groups and individuals. We heard 22 oral submissions, and held hearings in Wellington and Auckland.

We received advice from the Ministry for the Environment, Statistics New Zealand, and the Parliamentary Counsel Office.

Committee membership

Scott Simpson (Chairperson)

Matt Doocey

Paul Foster-Bell

Julie Anne Genter

Joanne Hayes

Tutehounuku Korako

Ron Mark

Todd Muller

Eugenie Sage

Su’a William Sio

Dr Megan Woods