Volume 2, 1998

Justice Peter Salmon

It is customary for Judges providing papers for conferences to commence with a disclaimer. The comments that I make in this paper on legal matters are designed to make a contribution to an on-going debate and are not necessarily the views that I would adopt in my judicial capacity.

The topic for this session is Access to Environmental Justice. The topic has both administrative and judicial aspects. I anticipate that the intent of the organisers is that the emphasis in my paper should be on access to the courts but I will have something to say about access in an administrative sense as well.

Professor Jeremy Rowan-Robinson

One of the most important aspects of environmental justice is the procedural standards applied to the administration of environmental protection services. The development of procedural standards has been an important focus of administrative law in the United Kingdom. The role of administrative law is not simply to safeguard citizens but to facilitate public administration and to help achieve public policy goals. Given the multilateral nature of most environmental policy issues, the focus of good administrative practice has been justice both for those citizens most directly affected by the exercise of power and the wider public constituency. This has entailed, inter alia, the development of procedural requirements for public notice, the establishment of public registers of permit applications and decisions, requirements to provide information, consultation and public participation arrangements, opportunities to object, and access to the courts to challenge unlawful actions and decisions.

Joan Forret

For many centuries there has been a working relationship between science and law, particularly in relation to environmental issues. As science and scientists have moved into the mainstream of modern society, there has been increasing reference to and reliance upon science for answers, explanations and predictions. However, science is an evolutionary process that involves testing of numerous ideas or theories, each of which will be supported to some extent by a section of the scientific community. When issues that impinge on "unsettled" science confront the legal system, our courts have difficulty. In law, decisions have to be made and the courts have developed evidential rules that help to evaluate the reliability and probative value of scientific testimony. Even though not bound by the rules of evidence, the Environment Court has adopted the approach of other courts in evaluating evidence from novel scientific theories. This article examines the historical development of science and how the legal system, through the courts, deals with scientific evidence.

Kathleen Ryan

Question: Mr and Mrs Jones took early retirement and purchased twenty hectares of property in the foothills surrounding a medium-sized city. They planted trees in the expectation that they would mature by the time they reached eighty and their other investments were exhausted. At the time of purchase, forestry and tree cutting were permitted activities. After the first pruning, the district council zoned their land "potable water catchment". This prevents them from ever cutting down the trees, reduces the value of the land and removes all prospective returns from the forestry block. They had no notice of this restriction at the time of purchase. Section 85 of the Resource Management Act 1991(RMA) denies them mandatory compensation. Should the Jones be compensated for this "regulatory taking" of value?

Trevor Daya-Winterbottom

The author critically analyses proposals for the management of historical (pre-Resource Management Act 1991) contaminated sites in New Zealand. The current position in New Zealand is compared with statutory provisions in the United Kingdom and proposed legislation in Australia. The Discussion Document on Contaminated Sites Management published by the Ministry for the Environment in 1995 is reviewed and the author concludes that many of the key issues identified remain to be addressed through the process of further policy development and consultation on funding and a preferred option during 1998. The responses developed by the United Kingdom and Australia to contaminated sites management may be used as the basis for critical analysis of the Government's proposals when submitters and other interested parties are consulted by the Ministry during 1998.

Paul Beverley

This article considers the ways in which Maori interests are protected under Part II of the Resource Management Act 1991. This analysis is based on some of the many decisions that have emerged on the protection of Maori interests in the resource consent process. Section 5 of the Act defines the purpose of the Act and there are a number of aspects of this definition that are of relevance to Maori. Under s 6(e), the relationship of Maori and their culture and traditions with certain resources is protected as a matter of national importance. Section 7 requires that particular regard be accorded to the concept of kaitaikitanga. Finally, under s 8 there is a duty to take into account the principles of the Treaty of Waitangi. These protective mechanisms have been relied upon both individually and in various combinations, as the courts attempt to ascribe some real meaning to the Maori provisions in the Act. This analysis explores the form of protection afforded under each of these mechanisms.

Kiri Chanwai and Benjamin Richardson

Indigenous peoples management and use of introduced species raises questions concerning the application of aboriginal rights or rights arising pursuant to the Treaty of Waitangi to non-traditional environmental resources. In New Zealand, trout fishing and kiore rat eradication programmes have become controversial because of government efforts to restrict Maori access to these species. This article explores the rights indigenous peoples may have to access and manage introduced species. It also canvasses possible institutional models to reconcile indigenous peoples claims with other broader social, economic and environmental concerns. The development of iwi management plans under the Resource Management Act 1991 is identified as one possible model. Reforms to the Conservation Act 1987 may also be appropriate.

Barry Barton

New Zealand's electricity sector has undergone considerable restructuring since the mid-1980s. These developments have raised many issues in electricity law and policy, including state versus private ownership, structure, regulatory mechanisms, management of the wholesale market, and quality of service. Quality of service in electricity distribution has become an especially polemical topic following the massive power failure in central Auckland in early 1998. This article examines developments concerning such issues in select European countries. It finds that debate and uncertainty about the issues is by no means confined to New Zealand. The international comparisons help us to make some useful observations about New Zealand's situation, especially about the extent to which our government has preferred restructuring over regulation as an instrument of change.