Best of: Public and Environmental Law (Volume 1, Issue 2)
Our ‘Best of’ ejournal editions are designed to showcase the best of the Faculty’s fantastic scholarship on SSRN.
The environmental crisis continues to worsen, while across the world conflicts and political unrest ravage entire regions. Innovative, critical reflections on public and environmental law have never been more crucial. This edition of the University of Auckland Faculty of Law’s Best of SSRN series showcases the Faculty’s world-leading responses to these vexing problems. It features reflections on climate protections in tort law, tackling inequality and climate change via the law of elections, and climate refugees under immigration law.
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"Saving the Earth for Future Generations: Some Reflections"
Klaus Bosselmann
Most legal systems recognize trusteeship functions of individuals or institutions to act on behalf and in the interest of those who cannot legally act for themselves. They can be advanced for the effective protection of future generations and the Earth. Guidance for Earth Trusteeship exist in the form of two agreements created by global civil society, the 2000 Earth Charter and the 2018 Hague Principles. Current opportunities include the UN Secretary General’s call for “repurposing the Trusteeship Council”, the UN Summit of the Future and ongoing developments in many countries towards implementing ecological integrity and rights of nature into their legal systems.
"Novel Climate Tort? The New Zealand Court of Appeal Decision in Smith v Fonterra Co-Operative Group Limited and Others"
Caroline E. Foster
In Smith v Fonterra the New Zealand High Court and Court of Appeal struck out all causes of action in proceedings seeking orders that seven New Zealand companies cease direct and indirect greenhouse gas emissions by 2030 grounded in the three distinct claims of negligence, public nuisance and a proposed novel tort referred to as “breach of duty”. The Court of Appeal’s judgment is under appeal before the New Zealand Supreme Court. This commentary seeks to open up discussion around the reasons given for the various aspects of the judgment. In particular the commentary puts the view that there is scope for the creation of a novel common law climate tort. This tort must be forward-looking and preventive in orientation and may differ fundamentally from existing torts.
"The Intersection of Property Rights and Environmental Law"
David Grinlinton
This article examines the legal and policy intersection of property rights and environmental law. Property rights are closely connected to and often in tension with many elements of environmental law and policy. Appropriate controls on the use of property rights and natural resources, and effectively managing the environmental consequences of such use, are critical in addressing the environmental challenges of our time. This paper first reviews the importance of property rights in the context of our legal, social, economic and political systems. It then examines the active use of property rights and mechanisms to address environmental challenges, including the creative and innovative use and development of new forms of property rights that have emerged in recent times. This is followed by a discussion of recent developments in restricting the use of property rights in land use and natural resource development to address environmental issues. The paper concludes with some ideas for future development of the law, and emerging new directions for future research. Throughout the paper, New Zealand will be used as a case study to reflect on the relationship between property rights and environmental protection.
"The Authority of the Administration"
Janet Mclean
The authority claims of the administration have undergone radical change with consequences for the shape and content of administrative law. In the seventeenth century, authority was claimed in office, as a means to limit the imposition of the King’s will and to secure the independence of officials, especially the judges. In the eighteenth century, virtue, property and independence became the basis for office and the common law sought to enhance such authority through notions of public trust. After the nineteenth century transition to more centralised and bureaucratic hierarchy, democracy became the new source of authority for the administration, reinforced by the ultra vires doctrine. At all of these points the common law had a central role in constituting as well as controlling authority.
This article examines “sunset clauses”, legal provisions that provide for the expiry of a law or part of a law at a later date. Sunset clauses have often featured in post-9/11 counterterrorism legislation, and are commonly considered to be a safeguard against panicked and ill-conceived legislation. The purpose of this article is to evaluate whether this claim is borne out by experience.
The article sketches a brief history of the use of sunset clauses in general and in the specific context of the counterterrorism legislation of the United States, the United Kingdom and Canada. It then considers whether sunset clauses are substantively or procedurally effective by looking at whether they actually led to the expiry of certain legislative provisions or meaningful legislative reconsideration of those provisions. The article contends that the record of sunset clauses is mixed, but that sunset clauses, if appropriately drafted and tied to other accountability mechanisms, still have value.
"Inequality, Corruption, and Climate Change: Rethinking Election Law in the Twenty-First Century"
Timothy K. Kuhner
This chapter argues for a fundamental restructuring of election law in order to address the political entrenchment of concentrated capital. That entrenchment arises from global trends in campaign and party finance, lobbying, conflicts of interest, and influence trading that systematically skew political ideology, elections, political appointments, mass media coverage, social media messaging, law-making, and policy-making. Particularly egregious effects of this undue political influence of private wealth include rising levels of economic inequality and ecological destruction. Reconceptualized as part of the struggle against inequality, corruption, and climate change, this chapter suggests that the abolition of private control over the means of political production should be the priority of any progressive agenda.
This article discusses twin decisions delivered concurrently on 4 June 2014 by the New Zealand Immigration and Protection Tribunal (IPT) on appeals against deportation by a family of Tuvaluan nationals relying, in part, on climate change-related hardship. The decisions have attracted widespread attention among the international community. Some media outlets have described the family’s successful bid for residency as representing “the world’s first climate refugees”. The recent AC (Tuvalu) decisions follow closely on AF (Kiribati), another widely reported case involving an unsuccessful claim for refugee and protected person status in New Zealand by a citizen of Kiribati who had also resisted deportation citing climate change-related hardship if required to return to his home country.
The decisions do not, in the author’s view, represent a seismic shift in conceptual or legal analysis of the international status of persons seeking to relocate to other countries for reasons which include hardship or deprivation associated with the impacts of climate change in their place of original residence. However, the decisions are worthy of review and reflection for a number of reasons outlined in the article.
My argument in this chapter is that fundamental common law rights have justified limits, just like other rights. When courts use the so-called principle of legality to protect fundamental common law rights against statutory abrogation (that is, when they apply the interpretive presumption that general or ambiguous words were not intended to abrogate such rights), they need to accommodate such justified limits. In order to do so, they need to assess the justification for a challenged limit on a right before attempting to read down the empowering provision, and proceed to a reading down only if the limit is not justified. The chapter shows that this approach is already quite widely used, albeit often tacitly; and argues that it should always be used.
In looking for instances of courts assessing the justification for limits on rights before reading down the statute, we must note that such an assessment can take a variety of forms. The most familiar form is the proportionality test used for this purpose in the context of statutory bills of rights. However, the same purpose can be served by two other approaches. The first of these is "heightened scrutiny". While there is much debate about the relationship between this and proportionality, I argue simply that "heightened scrutiny" can be, and often is, used to test the justification for limits on rights. In the second alternative approach, justified limits form part of the judicially developed definition of a right, rather than arising as a separate question after the right has been found to be infringed. In the case of rights that are sourced in the common law of torts, such a justifiably limited definition takes the form of the elements of the cause of action and the available defences. Adherence to such specific established limits serves the same purpose as applying a proportionality or heightened scrutiny test. My concern is to argue against an approach that both defines rights in broad unlimited terms and omits to subject them to a justified limits test.
The reason why such an approach should always be used is that justified limits do not represent rights violations; they serve to define the proper scope of protection. I offer arguments against two contrary positions in the commentary. Sir John Laws has adopted a position directly contrary to my proposal in extra-judicial writing. His argument involves insufficient respect for parliamentary sovereignty and insufficient scope for the exercise of public powers to serve public interests that compete with rights. Secondly, some commentators have taken the view that the protection of common law rights is purely a matter of statutory interpretation, and hence there is no space for an evaluative test of justification in this context. Their argument appears to reflect an inappropriately inflated understanding of parliamentary sovereignty. Both positions insufficiently acknowledge the fundamental point that justified limits on rights are not rights violations but rather define the appropriate scope of protection.
"Co-governance Design and Implementation: Lessons from Norman v Tūpuna Maunga o Tāmaki Makaurau Authority"
Jayden Houghton
Norman v Tūpuna Maunga o Tāmaki Makaurau Authority is a judicial review of the Tūpuna Maunga o Tāmaki Makaurau Authority’s decision to fell and remove all the exotic (non-native) trees on Ōwairaka / Mt Albert. Whilst the High Court dismissed the review and allowed the operation to proceed, that decision was overturned by the Court of Appeal because the Maunga Authority failed to consult in accordance with statutory requirements. The Norman litigation has implications and lessons for all co-governance arrangements in Aotearoa New Zealand. This article argues that whilst the relevant Treaty of Waitangi settlement legislation allows for meaningful power-sharing within the Maunga Authority, and the co-governance partners sought to meaningfully share power, the Maunga Authority could have done more to consult and act in good faith. It also contends that tikanga Māori gives rise to a duty to consult and ought to be contemplated by counsel as a basis for a duty to consult in the future.