Volume 13, 2009

Barry Barton

Carbon capture and storage, or geosequestration, is an emerging technique to address climate change by reducing emissions of carbon dioxide. New Zealand law does not presently provide for carbon capture and storage. The Crown Minerals Act 1991 and the Resource Management Act 1991 do not make it possible. Canada and Australia offer useful comparisons, as, to a lesser extent, do the European Union and the United States. The comparisons assist in an analysis of the main issues involved in creating a legal regime for New Zealand: rights to real property, title or permits, relationship with oil and gas operations, regulation, liability, and relationships with other legislation.

G R Milner-White

This article explores conflicts that can arise between domestic measures to implement climate change obligations and international trade rules. It uses as an example recent legislation introduced in the US House of Representatives, the Clean Energy and Security Bill of 2009 (the Waxman-Markey Bill), which establishes a carbon "cap and trade" system. After overviewing the international legal framework, the article analyses the trade-related provisions of the Bill against WTO obligations. It concludes that these provisions are likely to violate the non-discrimination provisions under the General Agreement on Tariffs and Trade ("GATT") and possibly the also the national treatment obligations, but they are nevertheless likely to be able to justified under the environmental exemptions of Article XX of GATT. The analysis demonstrates the significant complexity in designing a system to protect domestic "trade exposed" industry from the costs of climate change mitigation, that is both workable and complies with WTO obligations. The article concludes by examining some possible solutions to existing tensions between trade and environmental objectives in this area. It suggests that the WTO should work towards establishing a comprehensive framework for dealing with WTO-Kyoto conflicts with an effective dispute resolution mechanism. A possible solution may be to seek to amend Article XX of GATT to clarify the status of climate change mitigation measures in relation to GATT's substantive obligations, or the promulgation of a new interpretative decision by the contracting parties to clarify uncertainty about existing environmental exceptions. Without an adequate global consensus on the conflicting goals, there is the likelihood of continued unilateral and uncoordinated domestic action.

Robert Goemmel

Over recent decades almost every aspect of daily life, from mobile phones to nuclear power plants, has developed and changed at an incomparably fast rate. But an unknown risk to the natural environment is posed by our constant attraction to new science and technology. The response to this threat needs to be separated into three different strands. First of all there needs to be a new awareness of how society is responsible for controlling its own "creation". This new responsibility is often seen as the latest step in environmental ethics. Secondly, further research into the field of ecology is necessary. Ecology has the ability to provide scientific guidance in the future, but only if it is able to eliminate old problems, such as abuse by pseudo-scientists. Last but not least, implementation of the new responsibility (for example, the question
of legal instruments) is important. New conventions like Aarhus, Stockholm, and Rio illustrate how society can participate and what legal tools are available. Evaluation of the Prevention and Precautionary Principles, Environmental Impact Assessment ("EIA"), liability and the Polluter Pays Principle, and their implementation, shows that we are on the right path, although there is still a lot of work to be done.

Jennifer-Ann Hoeveler

Electronic waste is an extremely fast-growing waste stream and its characteristics indicate that this issue deserves increased attention. Many electronic devices contain highly toxic substances that might be released to the environment and thus pose a significant risk to humans as well as to nature. During recent decades a massive international trade with e-waste has developed, which appears to transfer these risks from industrialised countries to developing countries, which needs to be considered as another matter of concern in this context. The international community as a whole as well as various nation states have recognised the increasing problem of e-waste and have introduced legislation in an attempt to combat it. This article seeks to illustrate various problems involved in e-waste and gives an overview of international policies currently in force that address this issue. E-waste strategies of countries such as New Zealand, the member states of the European Union, the United States as well as Japan will be introduced and comparatively analysed in order to point out policy that is likely to be the most effective.

Alexander Gillespie

Despite making economic progress on a par with other developing countries, Africa remains a land of problems, paradoxes and possibilities, with the continent facing environmental stresses at relatively higher levels compared to many other regions of the world. Serious concerns are becoming apparent not only with the management of many protected areas, with Africa possessing 13 of the overall global total of 31 sites on the official World Heritage Danger List, but with disproportionately high rates of deforestation, fresh water distribution difficulties, air pollution problems attendant on uncontrolled urbanisation, and oceanic degradation. At the beginning of the 21st century, the continent is at a cross-road with regard to social, economic, and environmental sustainability. The change of approach required with regard to conservation cannot be dealt with in isolation but placed within that trilogy of concerns. The core of its strategy to confront these unique difficulties is the New Partnership for Africa’s Development ("NEPAD"), the primary objectives of which are to reduce poverty, achieve sustainable growth and development, halt the marginalisation of Africa in the globalisation process, and accelerate the empowerment of women. Guidance on how to apply the NEPAD principles to conservation concerns emerged from the 2002 World Summit on Sustainable Development. In the context of environmental thinking at the international level, local communities which surround, and often interact with, the environment or species that are to be protected should be, as much as possible, fully integrated with its management and benefit from its conservation. Basic steps towards successful conservation policy in one of the most difficult, yet potential-rich, areas on the planet will be met if conservation goals are built within supportive social and economic frameworks, and the goals understand the importance of sustainable use, popular participation and equitable sharing, financial assistance and capacity building.

Ian Munro

The equitable provision of community facilities has been identified locally and internationally as an important component of sustainable development. Several strategic and regulatory plans have been predicated in New Zealand on the notion that activities in space do not have uniform effects. Instead, they can be configured and located to maximise certain qualities (such as economic activity), while minimising others (such as environmental pollution or demand for infrastructure services). The Local Government Act 2002 requires
that local authorities take a sustainable development approach to promote well-being. Development contribution policies promulgated by territorial authorities under that Act can help fund the capital costs of community facilities required as a consequence of growth. It could be expected that those policies might be consistent with urban sustainability prerogatives through the attribution of community facility demand between developments or types of development. This article will evaluate six territorial authority development contribution policies to examine how they relate to sustainable development generally, and urban sustainability specifically. It will conclude that overall each of the policies fails to acknowledge or otherwise promote principles of urban sustainability. Further, they seem to contradict existing local policies calling for sustainable urban outcomes in the way they attribute infrastructure demand and establish market price signals between different types of development. This could call into question whether a sustainable development approach has been successfully taken.

Louise Cooney

A decrease in housing affordability in New Zealand has prompted the recent enactment of the Affordable Housing: Enabling Territorial Authorities Act 2008. The Act provides local government with a mandate to use the planning system to facilitate the provision of affordable housing. This paper discusses territorial authorities’ ability under the Act to regulate land use and to offer incentives to developers to increase the supply of affordable housing, and also considers comparable United Kingdom legislation and policy guidance. It is concluded that the Act will assist those territorial authorities that choose to use the powers provided to address housing affordability. However, it is acknowledged that implementation costs, intraregional variation in territorial authorities’ uptake of the powers, and the ability of New Zealand’s nonprofit sector to capitalise on development opportunities may affect the utility of the powers provided by the Act.

Helgard Wagener

This paper deals with the development of the Waste Minimisation Act 2008 and the ability of territorial authorities to provide for the management and minimisation of solid waste. It discusses briefly waste as a concept and the growing international awareness that it is more than a threat to human health and the environment but also indicative of poor use of limited resources. Common words, phrases and concepts used in waste management are explained, and the history of refuse collection and disposal in New Zealand is examined with an emphasis on the use of health- and local government-related legislation as methods of management. The introduction of "sustainability" to waste management by territorial authorities as provided by the Resource Management Act 1991, the Local Government Amendment Act (No 4) 1996, and the New Zealand Waste Strategy is also discussed. The effect of the absence of mandatory standards and requirements in these regulatory mechanisms for waste management plans is considered, as are the adverse implications of the High Court and Court of Appeal decisions in the Carter Holt Harvey v North Shore City Council cases on the ability of territorial authorities to provide optimally for sustainable waste management. Statistics are provided on the newly introduced material recovery facility used by Auckland City and the extent of the waste management issue in New Zealand. The implication that the definitions of "waste" and "diverted material" have on the ambit of the Waste Minimisation Act 2008 shortly after enactment is considered. Although product stewardship and extended producer responsibility are looked at briefly, the discussion concentrates on the purpose and impact of the waste disposal levy and the responsibilities of the territorial authorities under the legislation. Whether the omission of "diverted materials" from the regulatory responsibility of the territorial authorities detracts from their ability to provide optimally for waste assessments and draft holistic waste management and minimisation plans is questioned. The conclusion drawn is that robust regulations are needed to provide sufficiently detailed information of diverted material to enable territorial authorities to meet the objectives of the Act and the New Zealand Waste Strategy. The view is also presented that regulations are needed to require implementation of the priorities within the waste hierarchy, and that in their absence territorial authorities will continue to place emphasis on recycling and disposal of residual waste in their waste management and minimisation plans.