Environment reporting, reported back
This week the Environment Reporting Bill comes back to Parliament, with two possible outcomes. Both of the outcomes are a step forward, but both of them are also flawed, meaning that the environment reporting framework to be set in place in New Zealand is less than we’d like.
It is likely that government will find a majority to pass the version of the Bill reported back, with the support of one or more of its support parties. However, there is also an Opposition amendment to the Bill being proposed – and if that were to find Parliamentary support instead, the Bill would proceed with a little more political independence.
Either way, the Bill falls a long way short of wholly independent reporting through an expanded function of the office of the Parliamentary Commissioner for the Environment (PCE), which is the option that Forest & Bird continues to support. That of course relies on government willingness and capability to adequately fund the PCE to perform that role, as part of a commitment to good environmental and democratic outcomes.
Forest & Bird made a submission to the select committee on the Bill a year ago. The big concern with it was around independence, with original proposals to give the environment reporting function to the PCE dumped, in favour of joint reporting by the chief executives for the Department of Statistics and the Ministry for the Environment; and with Ministers specifying the topics to be reported on through regulations.
To the select committee, we said:
According to the Bill’s explanatory note: the purpose of this Bill is to create a national-level environmental reporting system to ensure that reporting on our environment occurs on a regular basis and can be trusted by the public as independent, fair, and accurate.
We support this as a need that has been correctly identified (although we are less sure that it has to be “fair”, as opposed to robust). We do not, however, support the Bill in its present form, as we do not consider that it is capable of achieving the purpose.
Briefly summarising how the new reporting will now work – the Bill provides for a 3-yearly “synthesis” report, analysing trends and general state of the environment, and further reporting every 6 months on one of five specified but very broad “domains”. The domains are air, atmosphere and climate, freshwater, marine, and land.
Each domain (for example, land) is to be divided into topics, and the topics (which might include terrestrial biodiversity loss, for example – or any other relevant topic) will be specified through Order in Council (see clause 18 of the Bill). Effectively, an Order in Council is a Cabinet approval process.
There is a consultation requirement but ultimately, Ministerial responsibility for setting, for each domain, the topics to be reported on.
There’s some history of political sensitivity around environmental reporting in NZ with, in 2007, the controversial removal from the report by the Labour-led government at the time, of a significant conclusions chapter. It was this which prompted the calls for independent statutory reporting, to which the current Bill originally proposed to respond.
Instead, the regulation-making clause puts the Ministerial foxes in charge of the environmental henhouse, setting their own topics on which their officials are to report.
Submitters had argued strongly about the need for independence from Ministers. 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…”
On the positive side, the Environmental Reporting Bill would require regular reporting on (the state of) New Zealand’s environment. This is new. NZ has been the only country in the OECD without an ongoing commitment in law to independently and regularly monitor the state of our environment.
In producing and publishing an environmental report, the Secretary and the Government Statistician must act independently of any Minister of the Crown.
The select committee also made some small changes that were improvements. For example, the Bill now refers to “the impacts that the state of the environment and changes to the state of the environment may be having on the economy” rather than to “economic benefits”, so that both all economic impacts from environmental changes can be weighed up.
A formerly very broad official withholding power for information to be reported on is now revised to refer to “untested information”, although “untested information” isn’t defined, so what it might mean is unclear.
Instead of giving the reporting job itself to the PCE, the Bill gives her a formal role in commenting on reports and the processes that produced them – which she could, on her own initiative, have undertaken anyway (resources permitting).
The opposition changes to the Bill proposed by the Green party would take the regulation-setting power from Ministers, and instead give it directly to the two chief executives (the government statistician and the head of MFE), who would consult as provided for in the Bill, and publish their list of topics in the New Zealand Gazette. Ironically, this is less transparent than regulation-making (if Ministers were to do regulations badly, at least they are accountable). We have reservations about seeing this embedded as the long-term approach.
In the end, some environmental reporting is better than none. The Bill about to be passed systematises it, and sets reporting on a regular and frequent schedule so that it won’t lapse for a decade again. At the very least though, Forest & Bird would have liked to see review of the operation of the new law on expiry of 5 years from its commencement, with recommendations for any further reform. Provision for this to happen, and for this review to be done by the PCE, should be written into the Act.
It would be an opportunity for considering again whether the PCE herself should take on the role, with the benefit of any lessons in the meantime of how the new law has been working.