Volume 17, 2013

Bettina Meier-Wehren

In this article, the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (GPA) is evaluated. The article starts with an overview of the developments in international environmental law which led to the inception of the GPA. It points out the challenges presenting themselves when dealing with protection of the marine environment from land-based activities, such as the question of a global versus regional approach and hard versus soft law. In this respect, the role of customary international law is briefly evaluated. Next, the article examines the structure and content of the GPA, its funding and the state of its worldwide implementation, as well as the role of the United Nations Environment Programme (UNEP) with regard to the GPA. This examination is followed by an analysis of the GPA implementation on a national level. Countries are expected to develop their own National Programmes of Action (NPAs) to implement the GPA. Two countries are compared with regard to the development of their NPAs. To show the difference in challenges faced when implementing the GPA, the comparison is drawn between two countries at a different developmental stage. As an example of a developing country, Bangladesh is compared to Australia, an example of a developed country. The approach taken by Bangladesh in the development of its NPA is compared to the guidelines published by UNEP with regard to GPA implementation. Since the evaluation of Bangladesh’s NPA points to poverty as a major hindering factor in environmental protection and implementation of the GPA, the concept of Common but Differentiated Responsibilities (CBDR) is briefly evaluated. After looking at Australia’s NPA, an overall assessment of the GPA is undertaken, pointing out the specific challenges regarding its implementation and suggesting possible solutions. The article ends with an overall conclusion listing the lack of binding compliance mechanisms as well as lack of funding in developing countries as the most serious challenges to successful GPA implementation.

Fionna J Cumming

In the wake of the Rio+20 United Nations Conference on Sustainable Development, the public is looking beyond states towards civil society for meaningful responses to the global environmental crisis. Non-governmental organisations (NGOs) play a major role in many aspects of international environmental governance, including setting international norms and being actively involved in the creation of interstate environmental law. This article explores opportunities for greater public participation in promoting state compliance with international environmental obligations in multi-lateral environmental agreements. Possibilities cover a range of confrontational and non-confrontational means. The ground-breaking non-compliance procedure (NCP) set out in the Aarhus Convention provides a precedent framework for the practical realisation of public participation in the enforcement of multi-lateral environmental agreements. A greater role for NGOs means further efforts need to be made to address issues of legitimacy and accountability. Despite these difficulties, significant opportunities exist to achieve greater state compliance with international environmental obligations through meaningful public participation.

Nikhil R Ullal

This article seeks to determine the challenges and options associated with a post-Kyoto Protocol regime. Following the introduction, part two of the article sets out its focus, while also providing a brief overview of the material to be covered. Part three investigates the events that led to the landmark Conference of the Parties, in Kyoto in 1997, which successfully negotiated the terms of the Kyoto Protocol. In doing so, it covers the history of global warming, as well as the political changes that led to the formation of the United Nations Framework Convention on Climate Change at the Earth Summit in Rio de Janeiro in 1992. Part four covers the details of the Kyoto Protocol, including the terms of the agreement. It analyses the effectiveness and shortcomings of the first commitment period between 2008 and 2012; analyses the events leading up to an adoption of a second commitment period between 2013 and 2020; and finally predicts the likely effectiveness of this second commitment period. Part five covers the challenges and options that a future climate change regime replacing the Kyoto Protocol must overcome, focusing particularly on the distinction between industrialised and developing countries and the fundamental change in attitude required in relation to global warming and climate change. Part six outlines potential climate change replacement regimes that fall into the two main categories of treaty and non-treaty solutions. The article concludes with a recommendation that a combination of nonlegal solutions that envisage the implementation of environmentally friendly policies at local and regional levels be adopted, before progressing to a national and then finally international political sphere. Also discussed is the need for the creation of a global climate change authority that can act as a form of trusteeship over the environment, protecting it for the benefit of future generations.

Anemoon Soete

Both New Zealand and the European Union (EU) have an important impact on global biodiversity, the EU due to its vast territory and ability to bind many countries at once and New Zealand due to its territorial isolation. Since the realisation that biodiversity was suffering badly these parties to the Convention on Biodiversity (CBD) have pledged to nurture their territories’ biodiversity. In this article the various past, present and future efforts and lack thereof of these two parties are examined. In order to fulfil their obligations under the CBD these naturally dissimilar regions showcase different instruments to reach their own specific goals. Whilst New Zealand focuses on the protection of private land and sticks to theories, the European Union’s policy revolves more around public land and a green economy. Despite the countries’ disparities they do have some common demons to fight. Inadequate data can turn the choice of the most appropriate policies and instruments into guesswork. Consequently, different regions within each party tackle the issue with varying standards, leading to a crumbled application of what should have been a guiding and unifying national policy created contemplating the guidelines of the CBD. There is no one-size-fits-all approach here, but it is obvious that parties can learn from each other’s attempts at protection and need to be observed so that action is firmly put on the agenda.

Simon Schofield

New Zealand’s development of renewable energy for electricity generation is at the forefront of national reductions in greenhouse gas emissions. This article considers the legal impediments facing two forms of renewable energy for electricity generation, geothermal and wind energy, which have been developing exponentially over the last decade. Following the introduction, the article starts with a short foreword describing the benefits of renewable energy before breaking into two respective parts. Each part follows a general pattern of exploring historical legal developments, ownership disputes, and then the adverse environmental effects of geothermal and wind development respectively. The final section of each part is devoted to Maori cultural concerns. Ultimately, this article concludes that ownership of renewable resources is such that no one owns these resources but that entitlement is only granted for the sustainable use of that resource. While the Resource Management Act 1991 has been interpreted to create a “first-in first-served” principle of resource allocation, this seems inconsistent with the sustainable management of resources. As will be seen, there are many challenges to the development of geothermal and wind energy in New Zealand.

Angela Dimery

Heritage regulation is frequently seen to occupy a polarised position in relation to property rights. Environmental regulations are often invoked against private owners and heritage losses tend to occur incrementally, through a cumulative series of small decisions by various owners. This article closely examines the property law system, the nature of property rights, the legal function of heritage within planning and environmental law, and the extent to which heritage regulations constrain property rights. The article draws on recent scholarship identifying an inherent bias in the property law system towards wealth maximisation. It argues that this bias is inconsistent with sustainability objectives in the heritage context, which instead places a premium on intergenerational equity. It supports calls by commentators to reconstruct property concepts to better accommodate sustainability objectives and reflect the ways that property rights differ from other rights.

Nicola Jane Brazendale

Heritage buildings juxtapose the familiar and the exotic. The fact that human beings are drawn to both perhaps goes some way towards explaining why so many of us wish to see heritage buildings reserved — we value what and who has come before us, and want to pass that perceived value on to future generations. Preserving resources for future generations is also a key aspect of sustainable management, the guiding precept of the Resource Management Act 1991. The preservation of heritage buildings is fundamental to sustainable management because it arguably encompasses all three aspects of it — environmental, social and economic well-being. This article will seek to analyse why we should care about the preservation of heritage buildings in the wake of the Canterbury earthquakes. The natural catastrophe has highlighted major environmental, economic and social aspects of the preservation of heritage buildings: Are they safe enough? Can we afford to keep them? Can we afford to lose them? The earthquakes have certainly focused the Government’s mind. In the two and a half years since the 22 February 2011 disaster, it has proposed major changes to the earthquake-prone buildings policy, and is also looking to significantly alter the Resource Management Act 1991, and to replace the Historic Places Act 1993. The potential impact of these reform proposals for the future of heritage buildings in New Zealand is important. This article aims to raise public awareness of, and to encourage debate on, the future of our heritage buildings while there is still something left to preserve. The city … does not tell its past, but contains it like the lines of a hand, written in the corners of the streets, the gratings of the windows, the banisters of the steps, the antennae of the lightning rods, the poles of the flags, every segment marked in turn with scratches, indentations, scrolls.

Mark Christensen

There is increasing interest in the valuation of natural assets and ecosystem services, both internationally and within New Zealand. Under the Resource Management Act 1991 (RMA), economic considerations are an integral component of sustainable management. Economic efficiency is to be considered by decision-makers both for resource consent applications and for plan provisions. However, the courts to date have generally expressed considerable reservations about the usefulness of economic valuations of effects on natural assets or ecosystem services. It is important to distinguish between valuing natural assets and “putting a price” on those assets. Not all values can be monetised. The court decisions are to the effect that an economic analysis is only one component of the overall assessment which is to be made under the RMA. A holistic approach is to be preferred, so that while an economic analysis can be helpful, the RMA requires a wider exercise of judgement. As currently interpreted, the RMA does not require a quantitative and explicit cost-benefit analysis of effects on natural assets to be undertaken, although the implications of the recently amended s 32 remain to be seen. Given the increasing prominence of the concept of valuation of natural assets and ecosystem services, the ongoing debate is likely to be played out in the context of the RMA. Given that scenario, if certain contentious issues around models and methodologies for valuation of natural assets and ecosystem services can be resolved within the context of a national policy around such issues, the outcome may well be more robust and defensible decision-making to promote the sustainable management of New Zealand’s natural and physical resources.

Steven (BoHao) Li

Antarctica is the Earth’s southernmost continent. The perceived wilderness nature of Antarctica, while increasingly drawing visitors interested in its outstanding natural values may, paradoxically, lead to the continent’s destruction. The growth of tourism interest has focused academics, non-governmental organisations and Antarctic Treaty Parties’ attention on the effectiveness and legitimacy of the current Antarctic Treaty System on the management of tourist visitation in Antarctica. This article will examine the effectiveness of the current legal framework regulating Antarctic tourist activities. To the extent that the existing legal framework may be ineffective, the article will also explore potential avenues of addressing these inefficiencies.