Volume 11, 2007

Professor Paul Martin and Professor Michael Jeffery QC

This article discusses the potential legal obligations of researchers who obtain cultural, technological, religious or mystical knowledge from indigenous custodians. It is argued that the combination of four existing areas of law: confidential information, equitable estoppel, statutory prohibitions against misleading or deceptive conduct, and unjust enrichment may in effect provide a comprehensive protection to indigenous peoples against the misuse of knowledge they share with researchers, even without sui generis law or international treaties. Unlike previous approaches to this topic, this paper is not proposing new legal concepts. The obligations discussed are already present in most common law jurisdictions. Affected researchers may be surprised at the extent of this protection, and the commensurate extent of their legal obligations. Research institutions may find themselves being held accountable for not having complied with these responsibilities. An outline of one mechanism to formalise and make clear researcher responsibilities is provided. It is hoped that such a mechanism will aid researchers and research institutions in fulfilling their legal and moral responsibilities in regards to Indigenous knowledge.

Friederike Lehmann

This article analyses the international legal framework for genetic resources in the deep seabed beyond national jurisdiction regarding marine scientific research and bioprospecting. It finds that neither the United Nations Convention on the Law of the Sea nor the United Nations Convention on Biological Diversity regulate access to and sustainable use of genetic resources in the deep seabed beyond national jurisdiction in a comprehensive manner. This is ironic because the most immediately exploitable and lucrative resources of the deep seabed are arguably its genetic resources, yet such resources fall outside the main legal regime applicable to the deep seabed. This article argues that marine scientific research and bioprospecting should be regulated in a manner that does not pose a threat on further advances of marine scientific research and protects, at the same time, the threatened deep seabed ecosystems. It briefly presents a number of potential regulatory tools, such as marine protected areas, patents and environmental impact assessments, which should be implemented into the existing international legal framework to achieve that aim. Moreover, the article recommends following three parallel pathways forward in order to diminish the outlined legal gap and regulate marine scientific research and bioprospecting regarding genetic resources of deep seabed ecosystems beyond national jurisdiction: strengthening the implementation and enforcement of existing legal instruments to protect and preserve the marine environment beyond national jurisdiction; establishing a sui generis system of patents for micro-organisms sampled beyond national jurisdiction; following the long-term aim to negotiate a protocol or implementation agreement to the UNCLOS.

Anne Lucia Plein

When the Montreal Protocol on Substances that deplete the Ozone Layer was signed by twenty-four countries and the European Community in September of 1987, it was hailed as a milestone in international environmental diplomacy. And indeed, the Montreal Protocol, now ratified by more then 190 nations, still represents a major political and diplomatic achievement in the international effort to protect stratospheric ozone. Designed to control the production and consumption of ozone-depleting chemicals, the Protocol provides for a gradual phase-out of chlorofluorocarbons before irreversible damage is done to the earth’s ozone layer. Therefore, the Montreal Protocol, the foundation for this process, stands as an extraordinary and even spectacular success story. Unfortunately there is still no room for complacency and the Montreal Protocol’s work to protect the ozone layer is far from done. In 2006 scientists recorded nearly the largest ozone hole ever over Antarctica, and new data indicates that the recovery of the ozone layer above Antarctica will be delayed by fifteen years, with a return to pre-1980 levels not occurring until 2065. Ozone layer recovery at mid-latitudes is also delayed and will not return to pre-1980 levels until 2049. The fact remains that a great deal of additional action will be essential to ensure that the ozone layer remains safe for current and future generations. At present, some serious problems are undermining the successful protection of the ozone layer. Effective implementation faces several main challenges - for example, illegal trade in ozone depleting substances. The role of developing countries is still a major concern and regarding to global warming it is important to emphasise the linkage between Montreal and the Kyoto Protocol. This year the Montreal Protocol is celebrating its 20th Anniversary. It represents a good opportunity to look back at all measures already taken by parties to prevent further ozone depletion and to acknowledge obtained achievements. But on the other hand, this anniversary is an even better opportunity to observe that the Protocol’s work is far from done.

Kerry Puddle

This paper examines compatibility between international trade rules and unilateral trade measures taken to mitigate climate change. This is conducted by way of a case study looking at whether New Zealand would be able to unilaterally ban the importation or use of unsustainably produced biofuels. The paper begins by briefly discussing the scope and nature of the issues surrounding unsustainably produced biofuels and why a country like New Zealand would want to take measures to restrict the access of such biofuels to its markets. The paper then outlines how a ban on the importation or use of unsustainably produced biofuels is likely to be a violation of New Zealand’s obligations under Articles III or XI of the General Agreement on Tariffs and Trade (GATT). The remainder of the paper consists of a detailed analysis of how trade measures taken to mitigate climate change could be justified under the Article XX exceptions to the GATT, specifically XX(b) "necessary to protect human, animal or plant life or health" and XX(g) "relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption." The paper concludes by suggesting that the issue of sustainability in biofuel production would be best resolved through a multilateral agreement, as it is unlikely that a unilateral trade restriction on biofuels based on their methods of production would be justifiable under the GATT. However, it is likely that trade measures taken in accordance with a multilateral agreement could be justified under the GATT’s Article XX exceptions.

Greg Milner-White

This paper examines the New Zealand’s commitments under the Kyoto Protocol in relation reduction of carbon emissions, and the development of government policy concerning the land management sectors and, in particular, the forestry industry. It explores the implications of emissions trading and other measures, such as the Permanent Forest Sinks Initiative, for the local forestry industry. It also compares New Zealand’s approach to carbon sinks and the management of forestry practices post Kyoto with the Australian approach. The paper concludes that although there has been significant progress in developing climate change policy, there is still a need to offer appropriate incentives to forest owners to ensure that the Government’s climate change objectives are met. It also suggested that in light of New Zealand very small contribution to global emissions, it is unlikely to be in the national interest to make radical policy commitments and binding commitments about emission targets too early.

Inga Carlman

The Resource Management Act 1991 was drafted for sustainability and probably still reflects the state of the art as regards environmental legislation for sustainable development. Modern theory of environmental law methodology has to a high extent focussed on implementation deficits based on the significance of law in rule of law countries and consequently on the concept of legal operationalisation of environmental goals (ultimately ecological sustainability). This not only puts, inter alia, balancing in a new light but also calls for systemic thinking and reconsideration of bottom-up approaches. What, then, is to be legally operationalised under the RMA and are there counterproductive functions, explicit or implicit, in it? This is discussed in depth, putting the RMA planning system in the centre and observing the lack of far reaching substantive standards and obscurities as regards goals and means. The discussion reflects theory of environmental law methodology, systems theory, and the issue of non-linearity of ecosystems, also when the role of courts is elaborated.

Pip Wallace

The protection of significant habitats of indigenous fauna is a matter recognised by the Resource Management Act 1991 as one of national importance. The aim of this article is to investigate the nature of the term habitat as applied by the RMA. The context of the enquiry is the natural and physical environment of New Zealand, with a particular focus on habitats of avian fauna. A central question raised by the research, is whether or not air space used by birds can be considered habitat in terms of s 6(c) of the RMA. This issue is of contemporary importance, due to the advent of wind farms to the New Zealand environment. The compass of the term habitat has yet to receive full scrutiny by New Zealand courts and it is timely to give consideration to the nature of habitat. International approaches to habitat are also examined. The article concludes that where a regime such as the RMA prioritises habitat protection as a national goal, a lesser result for indigenous avian species will be achieved, if areas of air space expertly identified as significant to the survival of the species, cannot be defined as constituting significant habitat within the meaning of s 6(c).

Ali Memon and Peter Skelton

The mandate for making decisions on allocation of freshwater resources in New Zealand has been devolved to regional councils by the Resource Management Act (RMA) enacted in 1991. Growing demand for water resources in many parts of New Zealand during the last two decades has increased competition and conflicts between different stakeholders for access to scarce surface water and groundwater resources. However, while the RMA planning framework is innovative in a number of important respects, regional councils have evidently found it difficult to satisfactorily address water conflicts within the framework of the RMA.

The objectives of this paper are two fold:

• to review the architecture of current institutional arrangements and related planning practices to allocate freshwater resources in New Zealand under the RMA framework, and
• to comment on the potential of innovative approaches which could be incorporated within the RMA institutional framework to allocate freshwater resources.

From social equity and environmental justice perspectives, it could be argued that access to water should be treated as a basic human right and as a social good for purposes of satisfaction of domestic and livestock needs and for protection of ecological integrity. At the same time, growing competition by New Zealand’s wealth producing activities, such as farming and manufacturing, for access to water makes it imperative that water is also managed as an economic good. We have argued in this paper that institutional inertia, in terms of formal and informal institutional constraints on water governance, is a major barrier to realizing the innovative potential of the RMA’s water planning provisions.

The institutional constraints on RMA water planning practices highlighted in this paper need to be partly addressed through central government policy interventions that extend strictly beyond the RMA. The Sustainable Water Programme of Action has put forward potentially the most ambitious water reform agenda for New Zealand since the enactment of the RMA in 1991, but it remains to be seen to what extent political intentions for effective and efficient allocation mechanisms are translated into policy. The proposed reforms are limited in scope because they eschew a number of the wider ranging institutional reforms needed to address sustainability objectives.

Jim Sinner and Jörn Scherzer

Resource rent is defined as a surplus value, i.e. the difference between the price at which a resource can be sold and its respective extraction or production costs, including normal returns. Reasons to collect resource rent include ensuring a return to the owner of a resource, avoiding inefficient allocation, and achieving ethical objectives. Rent recovery should not be confused with cost recovery. Cost recovery aims at recovering a variety of costs that arise from resource use, whereas rent is a return to the owner. Rent is best treated separately from externalities even though a negative externality can be seen as a reduction in rent realised by another user of the resource. Depending on their design, rent recovery mechanisms can therefore capture the value of externalities otherwise unaccounted for. Any rent regime has to take into account local circumstances and values (e.g. in New Zealand recreational access to public resources is traditionally free).

Jordan Boyd

This paper analyses the efficacy of the Minister of Conservation’s power to make decisions under section 119 of the Resource Management Act 1991. It argues that, following Whangamata Marina Society v Attorney-General, the role of the Minister is a constrained one; and that when these constraints are viewed in context with the evolution of coastal management, it is ultimately an unnecessary one. It begins by outlining the revolution of coastal management that occurred with the RMA, and subsequent evolution of statutory instruments designed to facilitate the purposes of that Act. It then looks at the stated purpose of the Minister’s power under section 119. By analysing the limits of the Minister’s power in conjunction with the evolution of coastal management, the paper concludes that the Minister’ power no longer facilitates the purposes for which it was designed. Having considered that essentially the Minister’s power is superfluous, the next conclusion is that the Minister’s conflict of functions with respect to the resource consent process is undesirable, and the duplication of process creates uncertainty.