Module 5:

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Developing legal and institutional frameworksfor
invasive alien species
Module 5 getting results compliance,
enforcement and liability
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what this module covers

• 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

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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

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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

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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

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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

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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

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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 flexible to
  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

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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

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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

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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

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• 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)

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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?

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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

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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)

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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)

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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

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