Volume 20, 2016

Alexander Gillespie

Particularly Sensitive Sea Areas (PSSAs) are the foremost tool in international law to protect high-value parts of the ocean from the risks of shipping of a global nature. A large part of the equation for the designation of these areas by the International Maritime Organization works around the question of whether an area is sensitive enough to warrant such a designation. This article seeks to examine how the IMO understands sensitivity, and then juxtaposes a contemporary marine area, the Salish Sea, to fully explore the concept.

Matthew CM Hill

It is predicted that in the next few decades millions of people around the world could face displacement due to climate change. Even with increasing recognition of the links between climate change and migration, the recognition of "environmental refugees" has remained problematic, with conflicting views on how those facing environmental displacement can be given legal protection. People in low-lying small island developing states are at the frontline of climate change displacement, facing unique challenges environmentally and legally. This article examines the current international legal framework as it relates to people facing climate-induced displacement in these states and particularly in relation to human rights. The article then argues that the best first step for closing the current legal protection gap is through establishing a human rights-based "soft law" framework of guiding principles for cross-border displacement due to climate change. It is argued that this approach will allow for international, regional and national norms and policies to develop to address the protection needs of these displaced or relocated populations.

Rachael Whitney

The rise in sea levels, and the potential for whole countries to disappear below the waves, is arguably one of the most devastating consequences anthropocentric climate change may bring. Unsurprisingly, of particular vulnerability are low-lying small island states that stand mere metres above present sea levels. This article examines the legal implications such a threat poses to the statehood and sovereignty of small island states such as the atoll nations of the Maldives, Tuvalu, Kiribati and the Marshall Islands. In light of a changing climate, this article analyses at what point in time a sovereign state would cease to exist should sea levels continue to rise, the implications of such a disappearance for a state's maritime jurisdiction, and whether current international law has the ability to protect the legal personality of such states that face the threat of losing their effective statehood from causes beyond their control. In doing so, the international law on statehood lies at the heart of this article. As the physical disappearance of an entire state is an unprecedented problem for international law, this article attempts to show that a revised approach to our current understanding of statehood is required in order to achieve equity, security and certainty under international law as small island states face rising tides along their already low-lying coasts.

Selwyn Fraser

This article responds to one interesting aspect of the recent New Zealand litigation regarding the i-Kiribati refugee applicant, Mr Teitiota. The litigation is recognised internationally as a compelling example of the legal barriers facing people displaced by climate change who seek protection under the Refugee Convention. The article discusses one specific barrier, the absence of a legitimate agent of persecution. It interrogates Mr Teitiota's creative attempt to circumvent this barrier by casting as persecutor the international community of greenhouse gas emitters, especially the high-emitting industrialised nations. This argument has been made only in a few places outside of the Teitiota litigation; and the little attention it has received from legal academics has been almost entirely critical. The article pushes back against the common criticisms. In doing so, it raises some urgent questions about the significance and relevance of persecutory identity, especially in light of an interpretational trajectory that increasingly emphasises the Convention's protectionist object and purpose.

Luis Fuentes Godoy

Forests are one of the most important allies in combating the consequences of global warming. They have more carbon stored in their biomass than all the carbon dioxide that is concentrated in the atmosphere. Unfortunately, human activities like logging, cattle and agriculture deforest and degrade more than 13 million hectares of forests every year, releasing all the carbon they have sequestered, and constituting the second major source of greenhouse gas emissions in the world. In order to address this problem, the United Nations have created REDD+, an international strategy designed to provide developing countries with financial and technological resources to conserve, enhance and sustainably manage their forests, compensating them for succeeding in reducing greenhouse gas emissions in the forestry sector. Furthermore, REDD+ safeguards have been created to prevent collateral damage in the developing country's sovereignty, population and biodiversity, as a result of the implementation of REDD+ strategies. In this sense, besides proving the emission reductions, developing countries need to report on how the safeguards have been acknowledged and secured to be able to qualify for REDD+ results-based payments. Although safeguards are key to the success of REDD+, the complexity of their nature makes their protection a challenge for the generally weak institutions and rules of law of developing countries. Thus, analysing the nature of each REDD+ safeguard, as well as identifying strategic considerations for their development and implementation is an imperative and significant task that this article aims to undertake.

Jin Fong Chua

It is irrefutable that increasing greenhouse gases resulting from human activities is causing significant changes to global climate patterns. This is a critical and urgent issue for the world today. It is also unquestionable that one of the largest contributors to this issue is business corporations. Nevertheless, "climate change denial" continues to exist on the part of certain corporate organisations. This article provides an overview of a corporate organisation's legal liability and risk in respect of climate change in New Zealand, and whether it is strong enough to hold a corporate organisation accountable for its actions. This includes for instance regulations such as climate change legislation, any other relevant reporting regulations which may be applicable in relation to climate change, and whether in accordance with the relevant regulations a company director could be held accountable for their company's actions in relation to climate change. The article also explores the potential private litigation action which may be taken against a company as a contributor to greenhouse gases. In addition, where climate change is a concern, a corporate organisation should consider factors such as reputational risk, capital risk, operational risk and risk involved in participating in greenwashing activities. In sum, there are multiple risks in respect of climate change which should not be ignored by corporate organisations in their operational activities.

David J Round

The New Zealand government has recently announced ambitious long-term targets for the elimination of several introduced predatory mammalian species in order to enable populations of native vertebrates to recover. The debate which the project has already engendered raises philosophical questions about the proper place of species, the "rights" of animals and the rights of mankind to alter natural systems further, even if only in attempts to repair earlier damage. More narrowly administrative and legal questions concern the status of the pests concerned, the operations of the Department of Conservation, the appropriateness of the government's proposed crown entity model, and the statutory powers necessary for any pest-exterminating organisation. The elimination of predators and recovery of native species, if actually achieved, will introduce new practical issues, but must be regarded as a very positive and hopeful development for human as well as non-human New Zealanders. 

Matthew Hawkins

This article considers the use of alternative dispute resolution mechanisms with the Resource Management Act 1991 and related changes proposed in the Resource Legislation Amendment Bill 2015. The resolution of environmental disputes outside of formal local government or court processes is clearly intended by the Resource Management Act. However, local governments make scant use of mediation to resolve policy, plan or consent disputes. In contrast, the Environmental Court refers the majority of appeals from policy, plan or consent decisions by local government to some form of alternative dispute resolution, chiefly mediation. This paradox raises the question: If the Environmental Court is directing the majority of decision disputes to mediation, why was mediation not initiated at first instance by local government? The reasons are uncertain but power imbalances and the well-trodden path to the Environmental Court are strong factors. Court processes can result in delays, causing both opportunity and financial loss. However, local governments are closer in time to the dispute and are responsible for the efficacy of the conditions of any negotiated outcome from mediation, court-arranged or not, therefore they are better positioned to initiate mediation that results in best outcomes. Attention is then drawn to the related changes proposed in the Resource Legislation Amendment Bill. Surprisingly, given the policy that processes are timely, efficient, consistent, and cost-effective, the under-utilised provisions for local government mediation remain untouched. Instead the proposed changes, including making participation mandatory, further bolster the Environmental Court's use of alternative dispute resolution. Comparable jurisdictions furnish instructive examples of legislative support for alternative dispute resolution and case studies of local government environmental mediation. It is suggested that the use of mediation by local government can shift public engagement to first-instance planning and consent decisions, result in outcomes agreeable to all parties, save time and money, and reduce appeals. Two recent cases before the Environmental Court have features suggesting local government mediation could have achieved better outcomes. More could be achieved through initiatives to bolster local government mediation such as adding a new schedule to the Resource Management Act for alternative dispute resolution.

Kate Scanlen

Liquefaction is a significant reduction in the strength of saturated granular or sandy soils by shaking or vibration, often resulting in the failure of building foundations and deposition of groundwater or liquefied sediment above the ground surface. The damage liquefaction caused in the Christchurch earthquakes of 2011 highlighted the importance of effective hazard management. However, years after the fact, liquefaction remains absent from much of New Zealand law. This article analyses why this gap remains by outlining the specific challenges raised by liquefaction as a hazard. It is concluded that assumptions made by planning theory such as the importance of preparedness, mitigation and education pose fundamental problems to implement in practice, compelling lawmakers to make inevitable compromises between present and future need. It is therefore proposed that a solution should consist of a change in form of local plans to increase transparency and clarity; largely by following the requirements of outlining objectives, policies and methods under the Resource Management Act 1991.