6 Discussion
The lack of formalisation of property rights in respect of NPS discharges has made this research a difficult undertaking. The focus groups were unable to progress significantly beyond first order discussions about the nature of rights, simply because much of the discussion became hypothetical in nature.
We feel comfortable based on the research undertaken to draw the following conclusions about the nature of the rights as seen by the landholders:
They do not see themselves as having an unconstrained right to pollute - the groups were all open to the concept that they had a responsibility to minimise their impact on the environment, and accepted the need for constraints on their rights based on regulation. By many this was simply seen as enforcing the responsible approach to management, which embodies concepts of stewardship and sustainability. They were adamant that any constraint had to be scientifically proven.
They see their key right as an ability to making a living off the land - the participants were largely reasonably accepting of the need to constrain their rights to mitigate scientifically proven affects. In the group meetings we pressed them to discuss the limits of when these constraints may no longer be acceptable. Interestingly they did not see the limits being in terms of an ability to continue a particular land use, nor to be able to discharge at a particular level. They saw limits of acceptable regulation being the envelope of an ability to make an income, provide for their families, and provide opportunities for growth off the property. This was the basic right they believed they gained with the decision to purchase the land and live in the area.
The acceptability of attenuation of this right differed from participant to participant. For some their rights should be subject only to a small amount of attenuation to prevent environmental damage from NPS discharges, and others appeared more accepting of greater attenuation. However universally the group participants appeared to believe that their core rights should be balanced against the environmental outcomes, with the economic dimension seen as an important part of sustainability, and that some damage to the environment would have to be accepted.
In the context of the RMA, the landholders' perceptions of their rights could be seen not so much Section 9 rights (continuing a existing land use) or Section 15 (right to discharge at a particular level) but more Section 85 (reasonable use) rights.
The other stakeholders spoken tended to regard the community's values as paramount. However the differences between the landholder view and the other stakeholders' view was more about where in the scale of a continuum the rights should be constrained. Even among the other stakeholders there was a considerable spread of views about the level of rights that landholders have. We feel positive therefore about the potential for a consensus view to emerge about the nature of those rights.
We have not found the frameworks reviewed in Section 2 above very useful in developing an understanding of the rights in relation to NPS discharges. Using the different frameworks identified we would describe the current rights as:
- significantly attenuated
- they are probably inefficient in the long term in some areas because of the "tragedy of the commons" situations with cumulative impacts of many users of the resources causing significant degradation. However from a landholders' point of view the increases in costs (regulatory) associated with defining their property rights was not seen to be creating a net benefit, even with the increased certainty this would bring
- in the context of a Scott (1988) framework they have good flexibility, divisibility and transferability, but poor quality of title, no exclusivity, and poor duration.
The study gave some important pointers in the development of tools for implementing management regimes for NPS.
Flexibility
The participants in the focus groups repeatedly stressed the importance of flexibility in any constraints placed on their rights. They valued the ability to change and to respond to different circumstances, and to allow innovation and development of operations within the envelope of responsible or sustainable impacts. In presentation of scenarios involving a cap on discharges, some participants could see the advantages in terms of flexibility this provided, whereas the constraints on land use were tended to be seen as disastrous. From our observations any system which maximises flexibility for land managers is to be preferred.
Non-regulatory pressure
The discussions in Edgecumbe pointed to the pressures exerted on farmers by perceptions of non farming neighbours and urban people on farming practice. This was cited by a participant as a significant factor in deciding to quit dairying on a block by the main road, and other examples were given of negative impacts of these pressures. The interesting feature about these pressures was that there was no regulatory involvement, other than response to unfounded complaints, yet the impact on the farm operations was real. The group participants appeared to be saying that weight of opinion was a significant pressure to have to deal with. This was backed up by a generally defensive approach in the Canterbury meeting regarding their impacts on water quality. There was considerable discussion of the polarisation of the community that was perceived by these participants.
"What we've created with these things is we've created the opportunity for spitefulness and that goes beyond people's rights and us impinging on their rights and we have to be careful about that ... I think a lot of this environmental stuff has created divisions in the rural communities when it didn't need to ..."
Agencies involved in the management of resources and the environment need to be careful in the targeting and clarity of their messages, as it is not in the interests of society nor of the economy to have unnecessary friction within the community, nor to have business decision making distorted by unfounded community perceptions.
Compliance costs
The relatively brief discussion in the results section was based on extensive commentary on compliance costs in the groups. This was brief because compliance costs are not a key objective of the study. However the potential for compliance costs to produce perverse environmental outcomes is an important consideration. The need to intensify to meet compliance costs or ignoring the need for consents were both cited by participants. The regulatory system as it currently operates relies on largely voluntary compliance - that is the acceptance of the governed - or it would become unworkable. The concern is that continued increases in compliance costs will result in more perverse incentives or more widespread ignoring of regulatory requirements.
The most effective system is a consensus approach where the landholders accept the need for regulation, and most comply with it. Building this consensus involves a movement of the concepts of what is normal and responsible land management practice, and approaches which minimise the costs of compliance for landholders. This will not be a simple task in respect of NPS discharges.
Landholder perceptions of the environment and their responsibilities
The research has found some interesting points of leverage for those wishing to address NPS through non regulatory means. For example:
- the high regard that all held for the concept of stewardship, although it was noticeable that participants tended to discuss stewardship of their land first, with stewardship of the environment coming in later comments
- similarly participants aimed to avoid impacts off the farm, but it was impacts on neighbours which were often discussed first, with impacts on the wider environment commented on later
- participants all regarded themselves as responsible in respect of their environmental management, to the extent that is possible. They were unhappy about those who didn't behave well, variously described as the 1% to 10% of farmers. They disliked the damage to the environment and the bad name this gave to farmers
- some participants reported non regulatory pressure as a significant factor in management decision making
- awareness of NPS issues was probably reasonable low. "When thinking about responsibilities, [we] tend to think of point sources rather than a broader impact across the landscape."
We believe that these point to a hierarchy in awareness of environmental issues. The more immediate the impact the greater the awareness. Unfortunately with NPS effects often distant physically and with the impacts on the values of socially distant communities they are unlikely to be high priority issues for landholders. Where regulation is envisaged for NPS discharges the research points to positive dividends from approaches which:
- raise awareness of NPS issues and the impacts of discharges at a distance from their property
- expand the concept of responsibility and stewardship, so that landholders see themselves as stewards of a wider area than their land holding
- uses the peer group concept to assist management of NPS discharges through community based solutions.
Precedents
The Lake Taupo and Rotorua Lakes approaches to managing NPS discharges are the first attempts to do so. As such they act as important test beds for approaches to regulation, which as noted earlier are very difficult to manage. They will also establish precedents in terms of property rights. The potential for payment of compensation to landholders in the Taupo area sets an important precedent as to landholders' rights, and it implies existing use rights for established discharges.
The staff at one region expressed some concern at this precedent, since it will clearly not be sustainable across the whole country - when regions need to manage more local issues, they are unlikely to be able to afford compensate landholders to reduce discharges. For regions this would create political difficulties in proceeding with regulation without compensation, but also raises the unusual situation of landholders who are lucky enough to be damaging a national icon being paid to stop, while others damaging resources with only regional value are not paid. Some care should therefore be taken at a national level in dealing with NPS issues. For example it may be that structuring the payment a transitional measure such as an incentive for early change rather than compensation would send a different signal. This would be consistent with the views of some other stakeholders expressed regarding compensation for existing use rights.
