Module 5: getting results: compliance, enforcement and liability

1. Developing legal and institutional frameworksfor invasive alien species Module 5: getting results: compliance, enforcement and liability

2. what this module covers what decision-makers need to know about invasive species • the importance of oversight and monitoring • enforcement and its limitations • liability and its limitations • fostering voluntary compliance • designing economic and financial instruments to address invasives Module 1 laying the foundations for effective national frameworks Module 2 preventing biological invasions Module 3 responding to biological invasions Module 4 getting results: compliance, enforcement and liability Module 5 legal frameworks for cooperation beyond borders Module 6

3. getting results • legislation is not an end in itself, but a means to an end – better and more informed decision-making leading to results on the ground • the real test is whether legislation meets its objectives out in the real world • depends on many factors, including administrative capacity, institutional commitment and proper communication • people, from government agencies to big companies to individuals, know what is allowed or not, understand why and know what may happen if they disregard applicable measures

4. basic components • clearly-defined agency functions and duties related to oversight, compliance and enforcement • meaningful penalty provisions • conditions for liability • provisions to promote accountability and responsibility

5. oversight and monitoring agencies need the power and capacity to: • confirm reports and content of applications • oversee compliance with permits, through inspection, monitoring and other processes • conduct tests and analyses of specimens and processes obtained by inspection • respond to scientific developments and internal conditions by adjusting permits where necessary • require persons or companies to self-inspect and provide reports • manage and collate data received

6. powers of inspection and verification legal frameworks must confer authority on agencies to: • confirm, test and analyse for verification of facts • enter property/premises for inspection • inspect and monitor in a variety of ways and for various purposes • act on the basis of inspection results, including steps to enable remediation

7. capacity for inspection and monitoring To be effective, inspection procedures need the responsible agency to have (or be able to develop) a team of trained inspectors who are qualified to : • identify critical species and activities (taxonomic input) • perform necessary sampling techniques (laboratory and biological storage facilities) • properly document all sample collection • combine prioritised target areas and random sampling

8. new discoveries and changed conditions Scientific knowledge is continually evolving: legal systems should make it possible to review and update the rights and responsibilities of permit holders/others Implementing regulations need to be flexibleto allow: • changes to existing permits • revision of standards for permit approval • additional administrative measures or controls • additional limitations on actions that do not require permits • additional inspection and/or remedial action by government • special notice to land owners/occupiers and other entities to take remedial or other actions as required

9. mandatory enforcement mechanisms the law/regulations must clearly state what action constitutes an offence terms such as “shall”, “must” or “may not” are used the requirement must facilitate enforcement: compare: “no person may plant or otherwise introduce species X into land or water under his ownership or control or allow it to remain on such land”with “no person may plant or otherwise introduce species X in land under his ownership or control”

10. other pre-conditions for effective enforcement aligned with national legislation: powers to • enter premises, infested land, vessels etc. • request oral or written information • take samples and collect evidence • seize property • issue arrest warrant

11. penalties lawmakers to consider: • levels of penalty (level of species risk and harm, intention or recklessness of person/entity responsible) • consequences of permit violations • additional/alternative deterrents: e.g. confiscation or destruction of specimens and/or material; closure of facilities operating outside the law

12. example of private stakeholders working with regulatory authorities « Getting it wrong has serious implications for New Zealand and members, so as responsible stakeholders an understanding of the legislation is encouraged » Industry website explains: • role of the Ministry of Agriculture and Forestry for biosecurity; • how the legislation impacts on horticulture businesses (whether importing or exporting); • provides links to all key legislation (http://www.ngia.co.nz/biosecurity.php)

13. liability may be incurred by parties responsible for activities involving IAS that are linked to harm to persons, property and the environment. Raises four legal questions : • who has duties to take action to prevent harm and to compensate for harm? • how causation is determined? • how liability will be allocated when more than one party is responsible for harm? • how does liability work in the transboundary context?

14. liability: duty of care • could include reporting the presence of listed IAS, taking steps to halt spread, repairing damage or restoring ecosystems   • depending on the legal system, parties that take ‘reasonable measures’ to prevent harm may be protected against liability • ‘reasonable measures’ would include, as a starting point, complying with all legally-mandated control measures and permit conditions

15. liability for IAS: specific challenges • causation: many actors may be responsible/harm may date from a decades-old introduction/conduct often lawful at the time, even actively encouraged • allocation of damages between multiple parties: difficult to ascertain respective proportions with accuracy or fairness – collective mechanisms to share costs may be more practical • transboundary harm: a major issue in the IAS context – requires adapted approaches (see Module 6)

16. fostering voluntary compliance given difficulties with conventional enforcement and liability, fostering voluntary compliance can make an important contribution over time. Target audiences include: • Government itself (different sectors, local as well as national – e.g. Codes of Conduct, minimising exemptions) • the private sector (best practices to build awareness amongst consumers/actively look for native alternatives) Trachemys scripta elegans Cervus nippon Sika deer

17. designing economic and financial instruments for IAS • most loosely based on “polluter/user pays” principle • most instruments have dual purpose: • changing incentive structures to motivate particular behaviour (encourage collective responsibility of all those involved in a particular activity) • raise sustainable funding to cover the costs of a third party undertaking invasives control, compensation, mitigation or remedy the unique characteristics of IAS make some conventional economic instruments only partially applicable. Once biological invasions are set in motion, they are largely self-perpetuating and impacts may increase over time

18. instruments which have been recommended for invasive control • invasion risk tariffs for exporters • damage bonds against repair costs • assurance bonds for importers of new species • fees on travel and trade activities that might cause invasions, to create fund • packages of insurance and bonding requirements • tradable risk permits on cargo vessels (Perrings et al 2005a, Thomas and Randall 2000, Perrings 2000, Jenkins 2001 & 2002, Horan & Lupi 2005)

19. examples of economic and financial instruments applied to invasive alien species From Emerton and Howard, 2008)

20. thank you