Hamish Anderson warns of the ''roller-coaster ride to hell'' that comes with an Environment Court prosecution. He believes such prosecution should be reserved for the most serious cases.
Spring is here and all the joys that come with it! Low prices, feed shortages, bad weather and the stress associated with calving, lambing and getting crops in the ground, and to top it off you have had an environmental mishap or mistake that has come to the attention of a regional council compliance officer.
This was once mostly the domain of dairy farmers who had to deal with effluent disposal from milking sheds, stand-off pads and herd homes.
Changes in water plans mean that in the rural areas all farmers, foresters and contractors are now in the spotlight in terms of complying with and possibly running foul of the rules in place to protect our environment.
Such offences include and are not limited to effluent ponding, activities on a stream or lake bed without a resource consent, taking, damming or diverting water without consent and a number more.
These offences are classed as grade one offences and carry hefty penalties of up to two years' imprisonment and a fine of up to $300,000 for an individual and entities may be fined up to $600,000.
This is not chicken feed, but make no mistake, I am not a supporter of the wilful destruction of our environment and if you do something that results in that outcome then you had better be aware.
Here lies the problem.
There are myriad degrees of damage but a prosecution in the Environment Court sets you on the roller-coaster ride to hell that can have major implications for the present and the rest of your life.
If you do something that falls into the grade one bracket and face the prospect of going to court this is how things can pan out.
You may have to wait six months to find out if you are to be prosecuted, so enjoy that period of worry and stress.
If you are to be prosecuted, then it will be under The Criminal Procedure Act 2011 heard by an Environment Court judge.
So you want to defend the charge, well think carefully!
The prosecution must show what the offence is but does not need to prove you intended to commit the offence.
Your lawyer may well advise you to make an early guilty plea and get a fine reduction of 30%.
You can't base a defence on the basis of challenging the merits of a regional or district rule.
You can use the ''due diligence'' defence, that you did it to save or protect a life, or an ''act of god'', that it was beyond your control, such as natural disaster or mechanical breakdown which the judge will invariably reject because, despite God being all-powerful, you should make sure that he/she does not cause a mechanical failure.
These defences are not going to help you.
Punishments for grade one offences increased from October 1, 2009.
They are not only designed to punish you, but also to act as a deterrent to others.
A very similar system was used in England to deter highwaymen; that is, hang them at the crossroads for all to see their rotting corpses.
It is very apparent that you do not want to end up in the Environment Court.
The fines, possible imprisonment, stress, stigma and not to forget a criminal conviction that may have major impacts on your life - unless you get diversion - are not desirable.
The simple answer to avoid this is make sure you do not end up in a situation that means you could end up in court.
But let's look at this another way.
The responsibility of the organisations that bring prosecutions (councils) should be to only prosecute the cases that genuinely have a more than minor environmental effect.
So often we see cases where a minor breach of rules results in punishments that seem excessive.
Ponding in the middle of a paddock where no waterway is harmed but the prosecution is based on ''it may have reached an unnamed stream''.
This is like charging everyone who speeds in a car with dangerous driving causing death, because it may happen.
We all must do better environmentally, both rural and urban people.
The regional councils must really make sure prosecution is the best way to proceed, or are there better ways to get what we all want without demonising and criminalising people?
Clutha Development is running a catchment programme to help farmers meet their obligations under Plan Change 6a.
We welcome any farmer who needs help or wants to be involved to contact us.
• Hamish Anderson is Clutha Development project manager. He is particularly involved in the Clutha district water catchments quality management project.
