7 Other Issues
Two further major issues in pest management arose during the course of discussion with staff and others involved in the development of strategies at the regional level. Concerns about the Councils' abilities to be pro-active in respect of small scale pests were raised, in the sense that the role, functions and funding of surveillance are not spelt out well in the Act. The second major issue is the lack of appeal provisions in the Act, which means that those affected by a strategy have no recourse other than a judicial review, which would be expensive and time consuming for all parties. These issues are discussed below.
7.1.1 Surveillance
Section 13(a) of the Act provides for monitoring and surveillance of pests in the following manner:
"13. Powers of Regional Councils - every Regional Council has, in relation to its region, power to -
(a) Cause to be carried out, for the purposes of Part V31 of this Act,-
(i) Monitoring to determine whether of not there are present; and
(ii) Surveillance of,-pests, pest agents and unwanted organisms:"
Councils identify two problems in relation to surveillance. The first is the ability to be pro- active in respect of a pest, particularly when they are of a very small scale. In order to undertake control of a pest, regardless of the scale, Councils must either prepare a PMS, or use the provisions of Section 100. Section 100 is the most appropriate course of action for new arrivals in a region, but even this requires a delay in respect of a control action, in that a request must be made to the Chief Technical Officer to declare the pest an unwanted organism, and then notice must be given before the pest is destroyed. This places Council officers undertaking surveillance in the invidious position that if they come across an unwanted pest they must leave it, return to the Council, apply for the pest to be declared unwanted, give notice, and then return to undertake control. For some pests this will not present any difficulties, although the exercise would be unnecessarily expensive in that a return visit may be required where one would suffice. However, for very mobile pests, or for pests which are on the verge of reproducing, this delay could prove significant. Southland Regional Council has already come across this difficulty in respect of an outbreak of Undaria pinnafitida32 in a limited area of Big Glory Bay, Stewart Island. The pest is entirely new to the region, was identified by DoC, was very limited in extent, and required immediate control action as it was on the verge of reproducing. The Regional Council and DoC combined to undertake immediate control action, with the region issuing a retrospective resource consent. However, there was no legal justification for undertaking the action, and had the Council attempted to fulfil its obligations in respect of a Section 100 notification it is likely that the pest would not have been contained.
There does not appear to be a sound basis for reserving the powers to declare and act on unwanted organisms without notification to central government, although it is acknowledged that MAF have some concerns about the need to be kept notified of new organisms, and that philosophically, Central Government has some concerns about allowing local government to undertake actions unilaterally and without any prior consultation or notification. However, we believe that in some very limited circumstances this power may be required, and that its lack may create unnecessary cost and delays. In order to reduce the response time for controlling pests, provision could be made for retrospective notification of a Section 100 programme in special circumstances, or alternately by making other minor amendments enabling Council officers to undertake action without Section 100 notification. These changes are detailed in Section 9.
The second difficulty arises as a result of the Act making no provision for the funding of activities other than those contained in a Pest Management Strategy33. It is not clear whether the Act needs to contain provision as to how its administration should be funded, but again, this would be readily rectified by the insertion of a paragraph which allows the funding of administration costs associated with the Biosecurity Act where appropriate through rates in accordance with the provisions of Part VIIA of the Local Government Act 1974.
7.1.2 Appeal Provisions
The Act, as it currently stands, contains no provision for appeal or review of any of Councils' pest management functions. This creates some particular difficulties where agencies, such as Regional Councils both prepare and approve a strategy. As a result of the discussions held as part of this project, it is our opinion that there is a real need for Councils to have greater incentive to ensure that their decisions are robust and transparent. A significant recommendation therefore, is for appeal provisions to be included in respect of the notification of a strategy.
A second issue relating to appeal of individual notices has arisen, since
in a similar fashion there is no allowance for landholders to have Council decisions
reviewed in this context. It is our opinion however, that the nature of pest management
makes appeals at this level somewhat vexed since the time window for undertaking control
may be very limited. An example would be Nassella Tussock control, where plants must be
controlled between their emergence in spring and flowering in November/December. Appealing
an order to control the pest could easily delay its implementation well beyond the plant
flowering date, making the order useless and delaying progress toward the strategies
objectives by several years. It is our opinion, therefore, that appeal provisions for
individual notices under a PMS, while desirable from the point of view of natural justice,
would make pest management unworkable in some cases.
31 Part V relates to pest management through PMSs or
through Section 100, the management of unwanted organisms on a small scale.
32 A type of seaweed.
33 Other than in Section 135. Section 135 however is
somewhat ambiguous, since it discusses the recovery of costs, which would be inappropriate
for many of the activities.
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