Volume 10, 2006

Jennifer Stanton

While sustainable development is increasingly becoming a necessary means by which to protect the planetary ecosystem, the objectives of this concept are not necessarily realised in international environmental instruments. This is evident, for instance, through the Cartagena Protocol on Biosafety, which is ultimately a product of compromised decision-making that fails to prioritise the environment. Since developments in genetic modification threaten biological systems, any attempt to preserve the natural environment must recognise and incorporate sustainable development. Furthermore, the components of sustainable development, as elaborated on by the Earth Charter, are directly applicable to the use and development of genetically modified organisms. Nevertheless, the extent to which the Cartagena Protocol on Biosafety reflects sustainable development, as guided by the Earth Charter, is questionable. While the Cartagena Protocol on Biosafety in some instances promotes the components of sustainable development, it fails to exemplify a ‘strong,’ ecocentric model of sustainable development, which is necessary for the preservation of the planetary ecosystem.

Stephanie Bonney

Improvements in technology have allowed marine scientific researchers to venture into the abyssal depths. It is only recently that marine scientific researchers have discovered that deep sea features such as hydrothermal vents, deep sea trenches, cold seeps, sea mounts, and even the abyssal plains are teeming with "life". The biological resources associated with these deep sea features have developed unique characteristics in order to survive in inhospitable environments characterised by high pressure, high temperatures, extreme toxicity, extreme salinity, high pH values, and eternal darkness. As a result of this discovery deep sea features have become the focus of bioprospecting activities. Bioprospecting involves the search for biological resources that may have commercially valuable characteristics or compounds. The current legal regime (the United Nations Convention on the Law of the Sea, the Convention on Biological Diversity and principles of international environmental law) relating to biological resources of the deep sea in areas beyond national jurisdiction is discussed. The paper considers whether the current legal regime sufficiently regulates access to, and use of, biological resources of the deep sea and offers suggestions to remedy the deficiencies of the current regime. The potential role of marine protected areas, environmental impact assessments, benefit sharing regimes, intellectual property rights and emerging principles of international law are examined in order to develop a solution that adequately addresses the tension between using biological resources to benefit mankind today, while protecting them for future generations. The fundamental issue is whether States are prepared to forgo the short term benefits of unregulated bioprospecting in order to avoid irreversible environmental degradation.

Alexander Gillespie

The goal to create and effectively manage protected areas of global significance has been resolutely adopted by the international community. However, despite the clear merits of this goal, the need to maintain and conserve these protected areas from any number of threats has not been systematically advanced. The aim of this paper is to provide a framework, to show that a clear practice is evolving in international law with regard to protected areas, that their management and planning requires the endorsement of at least eight considerations. Once these foundations have been laid, it may be possible for a much greater and synchronized international attempt to comprehensively manage areas of international significance.

Lars Hoffmann

The article compares the different approaches that New Zealand and Germany have taken to implement economic instruments in order to reach compliance with the Kyoto Protocol into their environmental policies. It only focuses on the economic instruments of carbon emission trade and carbon taxes as these are currently the most discussed tools in this field. Both countries have commitments under the Kyoto Protocol to reduce their carbon emissions in the First Commitment Period between 2008 and 2012. Currently, it seems that New Zealand and Germany are succeeding differently in employing economic instruments for the climate change policy. While Germany introduced a carbon tax as well as an emission trading scheme, New Zealand has not made serious attempts to employ these instruments so far. As it appears, both approaches lead to different outcomes. While Germany is currently on a good way to achieve its reduction target, the figures of New Zealand’s carbon emissions are still rising. The article will outline how New Zealand can adopt certain elements of the German approach towards a more efficient implementation of economic instruments. Furthermore, the German approach will be judged and it will be outlined where it is to be improved to guarantee more efficiency of those instruments.

Barry Brunette

This paper examines the current freshwater resource management regime and allocation of freshwater under the Resource Management Act 1991. It examines the concept of first-in first-served in the allocation of the resource and questions whether this approach achieves the sustainable management principles of the RMA. Balancing competing interests is an underlying issue in the management of water resources and current policy on the part of central government and the courts. Powers over allocation methods have been delegated by central government to regional and district councils, which are required to formulate and implement rules on allocation of water resources. The first-in first-served approach has for some time been adopted by the councils and the courts. The future of this approach is, however, open to scrutiny due to sustainability and increased demands on the resources. Sustainable concepts may be at risk if there is a strict adherence to the concept of first-in first-served in allocation of water resources and this paper concludes that central government should provide councils with direction on alternative allocation management, such as a quota regime and or market-based approaches.

Andrew Hayward

This article analyses the regulation of freshwater use in New Zealand and presents future alternative regimes. The current availability and use of freshwater is discussed, as are the shortfalls of the current allocation system. Primary consideration is given to water management under the Resource Management Act and the implementation of the RMA by the Auckland Regional Council. The Quota Management System for fisheries, implemented in the Fisheries Act 1986, is analyzed for its potential to provide an alternative means to regulate the use of freshwater resources. Water rights trading and water pricing are also discussed as possible alternatives to the first-come first-served system now established under the RMA. The article concludes that volumetric pricing of water, in combination with water-market regimes, provides a sound alternative to the current freshwater management regime.

Lucie Drummond

The intensification of agriculture, in particular pastoral farming, has led the way in the demise of water quality in New Zealand. Much of this pollution is due to the non-point source discharge of nutrients into our waterways. This environmental damage has been noticed for over 50 years, yet the cause of the problem has remained under relatively voluntary management. Agriculture has now been identified as one of the greatest causes of environmental pressure to fresh water quality. Current management is ineffective and is doing little to fix an escalating problem. Freshwater quality is currently managed by regional councils under the Resource Management Act 1991. Within the Act there is provision for central government to have a role in fresh water management through the setting of national targets. To date there are no national standards set and regional councils can be seen to take a wide range of approaches to managing the issue. Under the Resource Management Act 1991 councils have the ability to regulate non-point source discharges through land use controls or discharge permits. A survey of some regional councils conducted for this paper revealed that most councils currently advocate a voluntary approach. However, where regulation does appear it is through land use controls applied to specified areas within the region. The nitrates directive was signed by the Commission of European Communities in 1991. In recent years most European countries have taken action under this directive to identify nitrogen sensitive areas and create action programmes for these areas. In New Zealand there has also been research conducted on agricultures role in non-point source discharges. In the past 10 to 15 years several studies have been conducted by central government agencies, councils, industry groups and environmental organisations. The result of these studies is a body of knowledge and tools that can now be used to improve the management of non-point source discharges and the quality of fresh water. These changes to management can be made within the current legislative structure through enforcing current provisions and creating stronger land use controls. If a discharge permit approach was preferred this could require additions to the Resource Management Act 1991.

Jenny Vince

This essay considers how consultation practices with Maori have developed through case law since the RMA was adopted in 1991, focusing primarily on consultation in relation to resource consent applications. Consideration is given to the implications of the 2005 amendments, particularly section 36A, and how this may affect current consultative practices. The duties and responsibilities for those working under the RMA are also discussed, along with implications that may occur when no or limited consultation with Maori is undertaken, as has been demonstrated in case law. Some case studies from the author’s own experiences are also provided.

Carla Towns

Planning systems in western democracies are often the focus of public scrutiny as they inevitably interfere with property rights. The effect of the right of third party appeal thus becomes the subject of debate. The New Zealand system of integrated planning and environmental management embraces not only public involvement in planning decisions, but also a right of third party appeal. The debate in the UK, where the right is absent, prompted the author to research the operation of the right of third party appeal in a system where it is truly entrenched. The paper offers an overview of the evolution of the New Zealand land-use planning system and a critical appraisal of the way in which the system has incorporated the right of third party appeal. Statutory limitation of the right is addressed, procedural and financial limitations are detailed and the interplay between public participation and third party right of appeal is investigated. The conclusions suggest the New Zealand system is to be admired for valuing the right as democratically necessary and that the model indicates that third party rights and the right of appeal can compliment each other.

Erika Techera

Since gaining independence 30 years ago Samoa has been proactive in returning control of government, land and resources to traditional owners. The most recent challenges have been in the areas of biodiversity conservation and the creation of sustainable livelihoods. Samoa has taken a progressive approach by recognising the unique value in traditional knowledge and cultural practices that have developed over generations. By incorporating customary law and practice into natural resource management laws and policy, Samoa has created a multifaceted system empowering indigenous communities and maximising their participation. This article focuses upon Samoa’s marine protection regime to illustrate the many advantages of blending old and new to create an effective, modern and sustainable conservation regime.