Volume 15, 2011

Ian Boisvert

With abundant ocean renewable energy resources New Zealand has the possibility of being a global leader in this emerging clean technology. However, its framework for allocating coastal space for renewable energy development, the Resource Management Act, suffers from paradoxes, inconsistencies, and too much discretion for local authorities. Coupling these issues with incentives for existing users to stymie new coastal applicants through drawn-out litigation is arguably discouraging ocean renewable energy development and encouraging coastal conflict. To tackle these challenges this paper recommends that ocean renewable energy developers, as a group, build a nationwide rapport, that local authorities strengthen their processes and accountability, and that the national government allow commercial and cultural coastal users the ability to privately trade occupation of coastal space among themselves. The last recommendation will encourage cooperation, build a new market, and generate new sources of public revenue to strengthen oceans governance.
He waka eke noa — Maori proverb

Alexander Gillespie

Nature-based tourism is the premier example in international and national settings, whereby the economic, social and ecological goals of sustainable development can be reconciled. Nature-based tourism is at the forefront of New Zealand’s self- and marketing image. Vast amounts of economic wealth are already generated by nature-based tourism, and both the numbers of tourists and the revenues generated are expected to grow. However, the ecological basis of nature-based tourism in New Zealand is, in some areas, showing signs of stress that the ecological limits of which the tourism activities are built upon are approaching capacity. These examples range from the premier protected areas through to various species-based activities, of which whale watching is a prominent concern. In all instances, the pressure to keep expanding the activities needs to be reconciled with the repeated warning sounds that the activities upon which nature-based tourism is based are often very fragile.

Berry Fong Chung Hsu

The public trust doctrine is a traditional common law principle stating that certain resources are common property, and that the state is legally obligated to control and manage them for the welfare of the public, subject only to the paramount and reasonable needs of other users. This article explores the enforceability of the public trust doctrine in common law and its possible recognition in Hong Kong. This doctrine is controversial. This article first investigates the evolution of the doctrine. Secondly, it discusses the limits of private property rights. Thirdly, it analyses the common law jurisprudence in determining whether a trust obligation can be imposed on the state. The fundamental issue is whether the people have an inherent or vested right to the use and enjoyment of natural resources. A stronger case can be made when there is a constitutional home for the doctrine. Fourthly, this article surveys the common law jurisdictions which recognise this doctrine. By way of conclusion, the role of the judiciary in environmental protection will be discussed.

Thomas Ebben

For us the precautionary principle is more than a semantic or theoretical exercise. It is an ecological and moral imperative. We trust the world understands our concerns by now. We do not have the luxury of waiting for conclusive proof as some have suggested in the past. The proof, we fear, will kill us.

David J Round

Current law and administration, under the Wildlife Act and Conservation Act, are clearly inadequate to prevent the extinction of many native vertebrates and invertebrates. Change is necessary, but the Australian and United States model often proposed as desirable would not work satisfactorily here — nor does it there — for inevitable reasons, including (but not limited to) the unavoidable fact that there will never be nearly enough public money available in future to ensure its success. It might be prudent, therefore, to allow more private involvement in native species recovery projects, although that approach too has its limitations and dangers. The Department of Conservation is reluctant to allow much private involvement now, and some of its reasons may well be good ones. The entire debate is fraught with perplexing cross-currents. No clear simple answer seems to exist, but the deaths of species are dreadful indications that our world is dying.

Pip Wallace

This article examines the ways in which environmental law in New Zealand incorporates ecological knowledge and recognises and provides for movement of animals in the landscape, in the context of biodiversity protection in the New Zealand environment. Integrated management of the environment requires an integrated policy approach, and one which recognises interconnections in the environment. Consideration of international and domestic law, with a focus on Regional Policy Statements made under the Resource Management Act 1991, confirms that opportunity exists to further develop an ecosystems approach that recognises ecological integrity in the landscape. The article identifies that although national policy options exist to develop a nationally consistent approach, policy as currently drafted is limited by subject matter and spatial application. As such, it fails to adequately capture and support the notion of ecological integrity in a holistic manner. Similar limitations are revealed in lower-order documents, the focus of which tends to be constrained to considerations of significant habitat and vegetation, although elements of a broader view may be discerned. A challenge for New Zealand policy-makers is to develop policy and associated responses well aligned with the ecological prerequisites of animals.

Peter Sankoff

Tucked into the very back of the Animal Welfare Act 1999 is s 175, a clause that effectively exempts wildlife from the scope of New Zealand animal protection law. Ostensibly enacted to permit legitimate forms of hunting, fishing and pest control to remain immune from scrutiny, the clause has morphed into a comprehensive exemption. As a result, acts of ill-treatment that would clearly be punishable had the victims been domestic or farmed animals can be committed with impunity against wild animals. This article will consider how s 175 has been applied and examine its impact on wildlife. After proposing a more limited interpretation of the clause that would provide a modicum of protection for wild animals, the article proposes a number of reform options that would better balance the needs of wildlife and persons involved in the activities that cause them harm.

Jennifer Moore

The increasing numbers of products containing manufactured nano-materials (MNMs) are generating nanoparticle waste, some of which is toxic to the environment. Given the potential market of nanoproducts and the growing evidence of risks, it is important to have adequate regulation of nanowaste to prevent adverse environmental and public health outcomes. This article examines the current scientific data on ecotoxicity attributed to nanotechnology and nanoproducts. The suitability of New Zealand's regulation of nanoecotoxicity is evaluated. Specifically, I assess the adequacy of the Waste Minimisation Act 2008 (WMA) for regulating potential environmental risks associated with nanomaterials. I argue that there will be challenges in applying the WMA to MNMs. Current deficiencies in knowledge about nanoecotoxicity mean that there is not adequate information to assess against the statutory thresholds. The absence of documented cases of adverse environmental effects directly attributable to MNMs may mean that nanoproducts may not be singled out as products likely to harm the environment when disposed of as waste. No jurisdiction has applied its media-specific environmental laws to nanowaste. This article explores how such law in New Zealand could be applied to nanowaste and the novel challenges posed by nanoproducts.

Julia Harker

New Zealand is particularly vulnerable to natural hazards arising from its geological formation, extensive coastline and high rainfall, as well as man-made hazards such as contaminated land. While these are essentially nationwide problems, central government has chosen to devolve most of its responsibility for the management of hazards to local authorities, as well as the accompanying potential for liability. This article seeks to explore the potential for local authority liability when allowing development in areas subject to hazards, and specifically considers development in areas subject to liquefaction in Christchurch, as well as the risks for greenfields development on contaminated land in Auckland.