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EDS releases report on environmental advocacy; calls for creation of an Environmental Defender’s Office

02 March 2023

EDS has published a new report titled Environmental Advocacy in a Future Resource Management System. Authored by EDS Policy Director Dr Greg Severinsen, the report investigates how advocacy could be improved as part of the reform process replacing the Resource Management Act and, in a key recommendation, calls for the creation of an Environmental Defender’s Office.

“We defined advocacy as how people and institutions argue for better environmental outcomes within the resource management system. This about much more than people expressing their views. It’s also about holding decision-makers to account, clarifying aspects of the law, and acting as a counterweight to opposing advocates seeking development,” said Dr Severinsen.

“The importance of advocacy, in achieving positive environmental outcomes in the public interest, is often not fully appreciated. Who persuades decision-makers, how and for what purpose can be as significant in influencing decisions as who the actual decision-maker is. Such persuasion can occur in places like the courtroom, the Beehive, council chambers or the realm of public opinion.

“Environmental decisions are particularly open to advocacy because, unlike in criminal or contract law, they involve the application of value-based frameworks which leave considerable room for decision-maker discretion. 

“In the report, we describe how advocacy is occurring in the current system and highlight some of the shortcomings that need to be addressed. Many of the issues we identify stem from conflicted mandates and a lack of clarity about what advocacy should achieve. There is also little oversight or accountability for the advocacy function as a whole.

“For example, the Department of Conservation has a clear statutory advocacy function, but is also subject to ministerial control and budget cuts that can prevent it from undertaking advocacy in practice. Fish and Game has been one of the most effective bodies in advocating for freshwater quality, but has a narrow mandate to represent the interests of anglers and hunters, rather than the broader public interest.

“We have also seen civil society funding from the Environmental Legal Assistance Fund being cut when environmental advocacy conflicts with political desires for greater efficiency and ‘getting stuff done’. 

“On top of this, there are significant financial, resourcing and capacity barriers, especially in the courts. These are likely to be exacerbated when a flood of plans are created under the new Natural and Built Environment Act and Spatial Planning Act. 

“Fortunately, we think that all these issues, among others, are fixable. In our report we make a number of recommendations on how to achieve this. They include drafting changes to the Natural and Built Environment Bill to ensure appropriate appeal rights for public interest advocates and that the law is clear when it comes to environmental limits. 

“We also recommend institutional changes such as removing DOC’s advocacy function from ministerial influence and more strongly empowering the Ministry for the Environment to litigate where councils get it wrong.

“We identify a range of non-statutory supporting measures that also need to be put in place. These include establishing funds to better support civil society advocacy in the courts, strengthening the Environmental Legal Assistance Fund, and explicitly identifying advocacy activity in departmental budgeting and reporting. 

“The information base supporting advocates making substantive arguments also needs to be strengthened in a variety of ways. This includes by making experts available for public interest litigation and directing strategic research activity towards environmental policy priorities.

“However, we think a truly fit for purpose system should see the establishment of a robustly independent Environmental Defender’s Office. This would have a strong protective mandate, an independent source of funding, and be empowered to litigate as well as advocate in political and public fora. 

“The United Kingdom’s new Office for Environmental Protection is a model worth watching. It has powers to take the government to court; a prospect that would be unthinkable for our core statutory advocate, the Department of Conservation. 

“Of course, in an ideal world we would not require active environmental advocates at all, particularly if incentives for degrading the environment, including through the tax and financial systems, were removed. 

We should also start thinking about how the environment might advocate for itself, such as through legal personhood for nature models,” concluded Dr Severinsen.

The full report, a shorter report highlighting key recommendations, and a four-page summary document can be found on the EDS website here.