Volume 1, 1997

Klaus Bosselmann

The right to self-determination of indigenous peoples can be conceptualised in different ways since international law has more than one avenue available to accommodate it. Colonial and post-colonial concepts of state sovereignty are hostile to the idea of self-determination. However, as the dichotomy between the two is vanishing, the case of a collective human right to self-determination has been argued strongly. This case is supported by recent international environmental law. The UNCED Agreements of 1992 acknowledge that successful environmental management depends on, at least, one form of indigenous self-determination. Indigenous peoples themselves as well as non-governmental organisations have proclaimed and further defined the right to self-determination.

This article argues that the causes of the indigenous and the environmental liberation are closely linked. It can be seen that indigenous peoples rights and environmental rights are mutually supportive. If international law is to develop effective strategies to protect the global environment, it must formally recognise the right to environmental self-determination of indigenous peoples.

Al Gillespie

Within the last eight months there have been a growing number of reports, all reiterating a very similar theme ñ the planet could be in for a large climatic shock unless some direct action is taken. Despite the possibilities of these implications, the development of New Zealand's climate change response has tended to move between the sublime and the ridiculous. This paper offers a critical assessment of New Zealand's response to global climate change as compared with the international community's response.

Andrea Tunks

This article, from a Maori perspective, discusses the effectiveness of domestic and international environmental law initiatives in recognising and giving practical effect to Maori environmental ethics. The article analyses Maori perceptions of climate and the "kaitaki" relationship of Tangata whenua in respect of the atmosphere. The initiatives of the New Zealand Climate Change Programme are measured against the kaitaki relationship web that the Maori worldview espouses. The extent to which Maori have been able to influence and participate in the response to the climate change issue at local and international levels is analysed. Lastly, the article examines the scope for indigenous participation in the regimes established by UNCED for responding to climate change issues. It concludes that the UNCED regime provides considerable capacity for governments to empower indigenous peoples, albeit within government structures. However, the voluntary nature of most state commitments and the reluctance of governments to recognise indigenous self-determination in terms of their own institutions, lands and resources prevents indigenous ethics from being given substantial effect. For this reason, indigenous peoples are taking a number of their own initiatives to give effect to their values and institutions.

Paul Beverley

In promoting the sustainable management of natural and physical resources, the Resource Management Act 1991 (RMA) recognises the importance of the Treaty of Waitangi. Section 8 of the RMA is the provision which incorporates the principles of the Treaty into the Act. The section has been the subject of extensive judicial consideration over the last four years. This article considers the approach of the courts to the interpretation of the section. In particular the question of whether a council officer is obliged to consult with the tangata whenua in the resource consent process is considered. An analysis is undertaken of the various interpretations of the courts, and of the underlying issues which have manifested themselves.

Nicola R Wheen

This article explores the impact of the enactment of the Resource Management Act 1991 on the allocation of New Zealand's natural waters. The specific issue is whether the Act has the potential to make, and has in fact made, New Zealand's water law greener. The focus is on whether the introduction of sustainable management (as defined in s 5 of the 1991 Act) has brought about greener decision-making than occurred under the 1967 Act's beneficial use test. It is asserted that the practice of balancing interests has continued, although in a more confined sense, under the 1991 Act, and that this is environmentally flawed. Possible solutions are briefly addressed.

Vernon JC Rive

A rising number of environmental disputes, both domestic and international, involving conflicting claims to a range of diminishing environmental resources emphasises the need for new approaches to resolve environmental conflicts. Environmental mediation is one approach which has proved successful overseas in resolving these conflicts. The article examines the use of mediation as a method of dispute resolution available under the Resource Management Act 1991. Although section268 of the Act provides for a variety of alternative dispute resolution (ADR) processes to be used, the article focuses on mediation as the ADR method which has received most recognition and use under the Act. The limits to mediation are discussed, including the matter of compulsory mediation. The article concludes with a consideration of the benefits of mediation and the relevance of a refusal to mediate on the question of costs awards.

Justin von Tunzelman

The article considers the awards of costs by the Planning Tribunal and Environment Court. There are three parts to the article. In the first part a normative approach to costs awards is taken. This involves a detailed examination of the broad justifications for costs awardsñ as compensation, punishment and disincentive ñand the practical effects of those awards. This leads to an outline of a system which it is submitted the Environment Court should adopt. The second part considers some of the awards which have been made, in particular under the Resource Management Act 1991.The focus is on the principles which underlie the awards of costs. In the final part an attempt is made to state the claimed approach of the Court, and to identify its casual approach. Proposals for reform in the Environment Court are advanced.