The development of Alternative Environmental Justice (AEJ) has been driven by Environment Canterbury's Monitoring and Compliance Section. Largely to fill a gap in the toolbox where the offence requires a stronger response than an infringement notice but perhaps falls short of the threshold where the person responsible deserves a criminal record. The majority of offences under the Resource Management Act 1991 (RMA) are strict liability offences, meaning that the prosecutor does not need to establish an intention to cause harm – the fact that the offence has occurred is sufficient.
This AEJ process provides another tool for ECan to respond to offences against the RMA and can involve the wider community. The victims of an offence may be difficult to identify as the harm done is generally inflicted on the natural environment, however, often the community where the offending has occurred along with the local Runanga may feel saddened and aggrieved by the harm done. The aim of the AEJ approach is to get the offender and those concerned by the environmental harm involved in the process. It is possible, that the AEJ process may provide a better overall outcome than a fine from the Environment Court.
AEJ will not necessarily be available to all offenders and ECan will consider a variety of factors when deciding whether to offer AEJ to an offender. The factors ECan will consider in making its decision include:
- the seriousness of the offence;
- the environmental effects;
- whether the offender has a prior record of non-compliance;
- the level of intent involved and the offender's motivation for offending; and
- whether the outcome of the process can include remediation of the damage caused.
Both the offender and ECan may opt out during the AEJ process if it becomes apparent the process is not achieving its purpose. For example, for the process is to work the offender must accept responsibility and the onus is on the offender to propose measures to address the impact of the offending.
If the AEJ process does not result in a withdrawal of the charges laid, it will be for the Court to determine the appropriate sentence taking into account the outcome of the restorative justice process. At that point an application for a discharge without conviction can still be made to the Court. In considering such an application the Court will consider the following:
- the gravity of the offending, which includes a consideration of personal and mitigating and aggravating factors as well;
- the likely direct and indirect consequences of the conviction on the defendant;
- whether those consequences are out of all proportion to the gravity of the offence; and
- whether the Court should exercise its discretion to grant the application.
A recent example of this process occurred in relation to charges brought by Waikato Regional Council against Fulton Hogan and Camex Excavators in relation to discharges of sediment to an unnamed tributary of the Mangaone Stream1. Taking into account all the relevant factors the Environment Court discharged Fulton Hogan without conviction. It is noted that Fulton Hogan was the project manager and did not actually undertake the dewatering process, which resulted in the discharge of sediment. The method agreed by those involved to dewater the pond was acceptable and/or best practice. The adverse effects on the stream were temporary and Fulton Hogan reached an agreement for restoration of the Mangaone Stream.
Although the facts of each case are different, it would be worthwhile for any offender to consider whether it can remediate the damage to the environment or provide some form of works which will go towards making things right with the community and others affected by the offending. Even if the AEJ process does not result in a withdrawal of the charges it will be a factor taken into account by the Court on sentencing.
1 Waikato Regional Council v Fulton Hogan Limited and Cambridge Excavators Limited  NZDC 2711;  NZDC 6759;  NZDC 2913.
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