NZ Centre for Environmental Law

Volume 14 2010 Articles

The Resource Management Regime and Private Property Rights and Interests - Is there an Untoward Tension between the Two?

- R J Bollard

This paper explores the relationship between the Resource Management (RMA) regime and private property rights. It discusses various RMA cases with the intent of illustrating that, while tension is oft reported between the RMA regime and private property rights, the two ought not to be treated or interpreted as competing in ways liable to undermine one or the other.


Old Solutions for New Problems: Providing for Intergenerational Equity in National Institutions

- Sacha Hollis

Concern for future generations or the concept of intergenerational equity is a fundamental tenet of environmental law, recognised in international declarations and national legislation. There is justification for protection of the environment for future generations from both religious and evolutionary perspectives. In spite of this, the rights of future generations that require protection are not always obvious, and as future generations are not represented in environmental legislation or legal proceedings it is argued that these rights are not given effect to. This article traces the development of the theory of intergenerational equity through international law. Recognition of the rights of future generations in national law is then analysed and the effectiveness of implementation of these rights considered. Various options are also proposed with the aim of improving the implementation of the rights of future generations in the hope that this will assist with more effective environmental protection for all generations.


Common but Differentiated Responsibilities: Adjusting the "Developing"/"Developed" Dichotomy in International Environmental Law

- Rachel Boyte

The principle of common but differentiated responsibilities addresses different historical and current contributions of states to global environmental problems, along with their capacity to mitigate these, while recognising that all nations have a responsibility to provide for the "common heritage of mankind". The principle affects the obligations of "developing" and "developed" countries under numerous multilateral environmental agreements. It is by virtue of this principle being included in a number of agreements that differential treatment applies to environmental regimes. The principle has its roots both in equity and pragmatism, but it is contended that the effective and fair application of the principle is being undermined due to issues with the current categorisation of countries. This article suggests that amendment to the categories and the means by which nations are grouped under these is necessary in the best interests of a number of "developing" countries, the efficacy and equitability of the principle, and importantly, the global environment. The article proposes means by which these necessary changes can occur, while adhering to the elements of, and strengthening, the underlying legal principle.


The Global Covenant: The Earth Charter and the Concept of Covenants in International Law and Environmental Governance

- Shane D Nicholls

Sustainable development, and the general theory of sustainability in environmental governance, has reached a point where humankind, as the Earth's stewards, chooses between State-based fragmentation and a human-based "moral" code. The inability of international law to create a truly sustainable system between consumption and progress and the protection of global resources for future generations has never been more apparent than today. We are in a time of such technology that communication is available to almost everyone and what was once a localised problem is now a global one. Throughout the best part of last century international law has attempted to contain progress to a point where what we consume is limited to resources available. A yardstick is missing by which we can judge what is consumed or is protected for future generations. We look to the Rio Declaration or the Stockholm Convention as paving the way for international law to reflect the global community's need to legislate on sustainability. We have underestimated, however, the very nature of State-based sovereignty, which forms the basis of international law, and may be the very reason for the failing of any internationally enforced environmental code of conduct. On this ground we have witnessed a rise in the global community's desire to self-govern without the direct need to have enforceable international law as a deterrent to the global citizen's behaviour. The Earth Charter has emerged as a the moral code that may have the ability to govern environmental and social conduct successfully, where international law cannot. What the Earth Charter seeks to achieve is the introduction of an inclusive and non-discriminatory code based on the concept of "the global covenant". In effect, the Charter forms governing principles that withstand international conflict and State-based disputes - a "moral code" that depends not on what is written but on the desire of the individual to adhere to what they believe is fundamental to humankind's indefinite survival. This article looks at how the concept of a "moral code" for global civil governance has the ability to override what civilisation and State sovereignty was built on: codified law. How does an appeal to one's ethics overcome cultural, social, economic and political divides to effectively govern on an international scale? That humans have moral and ethical codes on which they base their daily conduct is beyond doubt, but how these codes translate to a consensus in international governance is the question that remains unanswered.


The Interpretation of Environmental Legislation in New Zealand

- Edward Willis

This article examines a recent Supreme Court case involving the interpretation of environmental protection provisions in the Resource Management Act 1991, Greenpeace New Zealand Inc. v Genesis Power Ltd. It argues that, despite seemingly straightforward resolution of the principal issue, the case highlights the difficulties of interpreting environmental statutes. This is manifest in the confused approach to interpretation applied by the majority and highlighted by the strong dissenting judgment of the Chief Justice, which employs a more orthodox interpretative approach. The article suggests that a perceived inability to sensibly apply a purposive analysis and a desire to defer to other decision-makers on environmental issues are key factors that make almost all environmental statutes difficult to interpret judicially, and proposes that the courts openly adopt analysis of the socio-political context of environmental statutes to assist in resolving such issues. At the very least, this represents a move away from debate over interpretative approaches and makes more transparent the key substantive issues, such as the importance of environmental protection to the public.


The Role of Indigenous Communities in the Pursuit of Sustainability

- Jemima Jamieson

The relationship between indigenous knowledge and sustainability has been increasingly applauded in recent years. Indeed "indigenous sustainability" has been acknowledged worldwide - not only by individual commentators, but also by NGOs and governments. The value of indigenous knowledge is again affirmed by acknowledgements contained within international agreements such as Agenda 21, the Rio Declaration, the Convention on Biological Diversity, and the Earth Charter. This paper evaluates the validity of these claims both on a general level and in a specifically New Zealand context. To this end, key principles underpinning tikanga Maori systems of resource use and management have much to offer a world seeking sustainability. However, it must also be stressed that the integration of such concepts into the mainstream requires an informed, considerate and objective approach that both empowers and includes tangata whenua.


Adopting a Maori Property Rights Approach to Fisheries

- Valmaine Toki

For Maori, tikanga Maori or custom law not only underpinned the recognition of property rights to their fishery but also their environmental ethics and the sustainable management of that fishery. In comparison, the property right of non-indigenous peoples was sourced from a rights system determined by the State. The nature of these property rights for Maori has been acknowledged by legislation. The challenge for Maori is to effectively maintain, develop and manage this allocated resource in a way that will not only sustain the resource but also ensure its longevity both socially and economically for future generations. Among the issues Maori will face are how to balance effective governance and efficient management, together with the requirement to address global issues of over-fishing and property rights, all the while preserving and respecting tradition. Irrespective of these challenges, it is the tikanga, or philosophy, intrinsic to the traditional Maori worldview which will guide Maori through these challenges and provide a way forward for issues such as global climate change.


Waste Management Law in New Zealand

- Simon A Schofield

Waste management in New Zealand traditionally has generated a great deal of policy but little legal discussion. In the legal realm, the issue continues to develop, administratively and legislatively, in a piecemeal fashion, maligned by any attempt to develop a holistic approach. This article comprehensively consolidates waste management law to date. it traverses the plethora of statutes, regulations, rules, bylaws, accords, strategies and guidance documents. It argues that waste, conceptually, is a flexible concept controlled by too many different organisations. It looks to the sources of environmental liability, finding a mismatch of jurisdictional issues. Is, for instance, a Litter Control Officer, Health Protection Officer, Hazardous Waste Officer, Regional Council Officer, District Council Officer or the neighbour(s) to prosecute for appalling waste management practices? Furthermore, the article considers the contaminated land liability of landfill on the polluter and the occupier. It proposes an adoption of international approaches to waste and contaminated land.


Legislative Implications of Managing Disaster Waste in New Zealand

- Charlotte Brown, Mark Milke, Erica Seville

In the recovery following a disaster, disaster waste managers are restricted by existing legislation. In many cases, emergency legislation is available to waive peacetime requirements to reduce threats to life, property and the environment. But disaster waste management sits in a grey area between an immediate hazard and a longer-term threat to the economic, social and environmental recovery of a disaster-struck area. Emergency laws are not often written with disaster recovery in mind. Legal waivers were used effectively and ineffectively during the waste management processes following both Hurricane Katrina, 2005 and the Victorian Bushfires, 2009. In both these examples it was clear that the main driver behind use of the legal waivers was to expedite the clean-up process. New Zealand law applicable to disaster waste is complex, with a plethora of associated legislations and regulatory authorities. In general, current laws have adequate provisions to cope with the likely needs of disaster waste management; however, the complexity of responsibilities, stakeholders and unclear statutory precedence may result in slow or ineffectual decision-making. One potential bottleneck identified is the restrictions on transportation of hazardous goods by road and by sea. Complex licensing and permitting structures may be extremely restrictive. The consultative, effects-based nature of the Resource Management Act 1991 in New Zealand is also a potential hurdle to long-term disaster waste management. While there are effective mechanisms to commence activities quickly, medium to long-term continuation of activities will be dependent on resource consent approval. The uncertainties associated with consent approvals may disempower the decision-maker. A pre-established, regulatory-approved assessment process which balances social restoration and environmental protection would be a useful tool to support the decision-maker. In general, disaster waste management laws need to: allow for flexibility for adaptation to any situation; be bounded enough to provide support and confidence in outcomes for decision-makers; be effectively communicated to the public both pre- and post-disaster; and provide streamlining of waste management organisational structures including decision-making authority. An addendum to the article addresses the legislative response to the major Canterbury Earthquake on 4 September 2010.


Legislation Note: Environment Canterbury Temporary Commissioners and Improved Water Management) Act 2010

- Anne Brower