Volume 23, 2019

Pip Wallace and Jennifer Holman 

The term “well-being” has gained prominence in national and inter-national policy agendas. A malleable term with positive connotations and wide reach, it has become a standard objective for human advancement. New Zealand makes extensive use of the term in legislation, but well-being is seldom defined. This article explores well-being in New Zealand law and policy, with a focus on the Resource Management Act 1991 (RMA) and the Local Government Act 2002 (LGA). “Well-being” is revealed as a contested and context-dependent term at the heart of New Zealand’s resource debates. Application tends to the uncritical in terms of definition and theoretical foundation. This may mask important differences between the states, which are not necessarily correlative, and may result in conflation of well-being with development. Although the term “well-being” is used with frequency in legislation, important differences are evident in the subject of well-being, the nature and extent of any obligation in respect of well-being, the identity of the obligor and the particularisation of dimensions of well-being. At times these nuances are lost in translation, and whilst acknowledging the benefits of the expansive and adaptive term, recommendations are made regarding its use in environmental law.

Raewyn Peart, Alison Greenaway and Lara Taylor

Ecosystem-based management (EBM) has been proposed as a more effective way of addressing complex environmental challenges in the marine environment. The Sustainable Seas National Science Challenge has recently proposed seven principles to underpin marine ecosystem-based management in New Zealand reflecting international experience and the essential role of Māori in New Zealand society. This article reviews the extent to which the current legal framework supports the application of the principles in the New Zealand context. It concludes that there is an uneven approach across New Zealand’s legislative landscape with some important areas requiring rationalisation, modernisation and strengthening. In the absence of fundamental legislative reform, a national statutory framework for marine spatial planning could provide a stronger framework for the application of the proposed “EBM Principles”.

Sarah Eason

As an international community we are currently falling well short of meeting the goals of the Paris Agreement and the gap is widening. We must take dramatic and rapid action to scale up mitigation efforts, including a massive global energy shift to clean energy. However, countries are spending billions of dollars annually in fossil fuel subsidies, incentivising the production and consumption of harmful fossil fuels. There have been widespread calls for the careful phase-out of these subsidies but it is clear that international coordination and economic incentives are required for countries to take meaningful action in this regard. The World Trade Organization (WTO) has the potential to play a crucial role in the reform and eventual phase-out of fossil fuel subsidies. It is suggested the WTO could increase transparency and build political momentum in the first instance, with a view to creating binding legal obligations in the longer term. The WTO is well placed to advance fossil fuel subsidy reform given its wide membership, binding nature, effective enforcement mechanisms and the ability to generate rewards in exchange for concessions. Such reform falls within the WTO’s mandate given fossil fuel subsidies have a distorting impact on trade and investment as well as encouraging significant environmental harm. Further, the WTO has a mandate to ensure economic progress is achieved in accordance with the objective of sustainable development. Regional and bilateral trade agreements could play an important role alongside the WTO, with the potential to entail more detailed commitments than the WTO dependent on the parties involved. Whilst ambitious steps pose numerous political and other challenges, the gravity and urgency of climate change as a global crisis demands the international community to overcome such challenges and cooperate to take rapid action.

Benjamin Johnstone 

Now, more than ever, the effects of climate change are well and truly under the microscope of the world. The low-lying “sinking island” states of the Pacific Ocean are perhaps the most vivid and dramatic examples of the intense effects climate change can have upon human civilisation. This article intends to delve into the international law surrounding what may happen to a state which ceases to exist due to climate change, which requires an in-depth look at the law involved in the creation and dissolution of states. Much of the discussion is theoretical and is anchored in the abstract, due to the unprecedented nature of this issue. The article’s primary focus is on what exactly makes a state, and what potentially viable options these “sinking islands” have, if they hope to retain their statehood, sovereignty and unique culture.

Jesse Aimer

The International Seabed Authority (ISA) is in the process of drafting regulations to provide for the exploitation of the minerals of the deep seabed in the area beyond national jurisdiction (the Area). To manage the risk and uncertainty inherent in deep seabed mining, the ISA intends to incorporate adaptive management into the future exploitation regime. This article argues that the ISA’s important role in controlling activities in the Area and ensuring these activities are carried out for the benefit of humankind as a whole must be taken into account when designing an effective adaptive management framework under the exploitation regulations. It is proposed that the ISA and the contractor operate under a co-regulatory approach, where the ISA is involved in the management of the mining activity, rather than primarily being involved in an enforcement sense to ensure compliance with the conditions of the contract. Under a co-regulatory approach, the balance between flexibility and certainty can be achieved through the incorporation in the contract of a formal amendment procedure outlining the process by which decisions to review the contract would be made. Such a decision-making process would require the ISA to consider and balance principles such as natural justice, public participation, transparency and review to ensure that the exploitation contract contains sufficient administrative flexibility whilst maintaining certainty and fairness to the contractor base.

Briony Bennett

The Paris Agreement commits its signatories to mitigate and adapt to global climate change but does not provide a basis for any liability or compensation for victims. This leaves a substantial “justice gap”, as losses and damages are now an inevitable consequence of climate change. Yet, the responsibility to compensate victims need not necessarily fall on states only. Fossil fuel companies ought to bear some of the cost as they have harmed the communities that face losses and damages. Further, courts have a role to play in assigning this responsibility. Tort law is designed to deliver justice where harm-doing occurs. Specifically, the article makes a case for public nuisance — interference with the public right to economic and physical well-being and safety. The appropriate plaintiff is a state attorney general, invoking the principle of parens patriae. The serious misrepresentation of the facts of climate change by fossil fuel companies and their political lobbying have successfully thwarted attempts to regulate fossil fuel consumption and reduce greenhouse gas emissions over the last three decades. Through these actions, companies have knowingly contributed to accelerating climate change and substantially increased the risk of losses and damages related to climate change. Courts can order that the defendants compensate victims, using attribution studies to determine what proportion of losses and damages can be attributed to sheer bad luck or the forces of nature, and what proportion can be attributed to human-made climate change.

Pooja Upadhyay

As communities are feeling the effects of climate change and as the Earth’s prognosis is becoming more severe, citizens are getting restless. They are dissatisfied with their governments and the international system. Consequently, citizens around the world are suing their governments for inaction on climate change. These climate claimants are pursuing unique and interesting legal arguments. Some are invoking human rights law, arguing that the government’s inaction on climate change has led to negative climate change effects on citizens. Others are arguing that their governments owe a duty to them, as trustees, to look after public trust assets like the atmosphere. What is clear is that climate change claims against governments are on the rise, with over 1000 cases logged in Columbia Law’s database. This article looks at some of the causes of action being pursued and analyses them against the New Zealand legal system. In particular, it explores human rights, environmental law, the public trust doctrine and negligence. It compares and contrasts jurisdictions where claims have been successful and assesses whether similar arguments would be viable in New Zealand. The nature of the state, parliamentary supremacy and the role of the courts are core ideas that underpin every cause of action. The article concludes that any cause of action in New Zealand, purporting to sue the government for climate change inaction, will be difficult. While such a claim in New Zealand would be challenging, the article argues that there is real value in trying.

Bryce Lyall

Worldwide, people have grown frustrated with the indifferent and halting governmental response to the threat climate change poses to our way of life. In response, a group of lawyers are developing novel strategies to challenge government inaction or indifference. Atmospheric trust litigation is one strategy that is proving effective across a variety of jurisdictions around the world. This article dis- cusses the strategy, and then the prospects of its successful adoption in New Zealand in a “nuts and bolts” fashion. First, consideration is given to the development of atmospheric trust litigation, and the article places New Zealand in context. Examples from overseas jurisdictions are analysed, and then three possible avenues for pursuing the strategy are discussed, including the Waitangi Tribunal, an avenue which is unique to New Zealand.

Mick Strack and Andrew Scott

Rivers naturally adjust their course according to natural law. Our attempts to impose legal and cadastral (boundary and ownership) spatial definitions on rivers have been contrary to the natural movement of water bodies. From a property law perspective we seek to achieve certainty and security of property. Our survey system is highly evolved to provide such certainty in most situations, but when it comes to natural (riparian) boundaries we see that fixed property boundaries lose the connection between public and private property and waterways. Similarly, many riparian reserves which are created for public access to water soon become remote from the rivers they were created around and no longer serve their intended purpose. This article discusses aspects of property and surveying law and illustrates, by example, situations when legal boundaries and public reserves become isolated from waterways. It is suggested that riparian boundaries and reserves should be more consistently defined by ambulatory rivers, and correspondingly, that rivers are freed from our cadastral constraints. We must make room for rivers.