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RMA anomaly halts prosecutions

By Sarah Day, Solicitor

First published in the Rural News 19 November 2009

A flurry of legal debates have sprung up around the country as to whether farmers and others can get off scot free for what appear to be clear offences under the Resource Management Act.

Over the years, many farmers have been convicted and sentenced for dairy farm effluent discharge offences under the RMA.  The maximum penalty a farmer faces if convicted for discharging effluent in breach of the RMA is up to two years imprisonment and a maximum fine of $300,000, while a company faces up to $600,000.

But in an unusual turn of events, it seems the Courts might not have been able to convict them in the first place, due to a possible loophole recently discovered by lawyers defending a Bay of Plenty dairy farmer.

The problem stems from the decision in the mid 90s to introduce infringement notices into the RMA - a quick fix process already in use for other minor offences such as parking or littering.  The infringement process enables officers to process the offence very quickly and inexpensively. The offset of an infringement offence is that the fines are a maximum of $1000 and no criminal conviction can ever be imposed.

Whoever drafted the section introducing infringement notices into the RMA must have been blissfully unaware of s78A of the Summary Proceedings Act, which prevents a criminal conviction being entered for anything that is an infringement offence.  If those who discovered the loophole are right, the moment the changes that allowed infringement notices to be issued for RMA offences were introduced, the ability to convict for those offences was inadvertently lost.  This could mean that Courts have wrongly convicted a large number of people under the RMA and more may yet  get off.

Even though this issue is not new to the RMA and has been floating around for the past 10 years or so, it has only been recently raised in the Tauranga RMA prosecution, which has been put off until the issue is clarified.

Several other cases around the country have also been postponed and District Courts have delayed sentencing RMA offences until the issue is resolved.  Resolution is most likely to happen by the High Court making a definitive ruling on whether the loophole does exist. This will provide the necessary direction for the District Courts. Even if the High Court verifies the loophole, the Ministry for the Environment is sure to rush through changes to the RMA that will close it.

It seems that we will not have to wait long for this. There is already an appeal before the High Court in Waikato, which wants to deal with the issue with as little impact on the Environment Bay of Plenty case before the Tauranga District Court.

So, where does that leave any farmers who are in the process of being convicted for offences? Don’t get your hopes up too soon. The Court of Appeal has been faced with a similar technical legal argument, but refused to allow wording problems in the Summary Proceedings Act to take away the ability for convictions to be imposed under the RMA. There is every chance the High Court will take a similar line and find that this was never what was intended when creating infringement offences under the RMA.

It may be that a few cases will jump through the loop and get off with a fine and a slap on the wrist. Irrespective – if there is a loophole, it will not be around for long.  If the Courts do not close it, Wellington will.

• Sarah Day is a solicitor specialising in environmental law at national and trans-Tasman law firm Duncan Cotterill. S.Day@DunanCotterill.com