Volume 24, 2020

Hilke Giles and Barry Barton

Adaptive management is commonly used to manage activities that require resource consents under the Resource Management Act 1991 (RMA) that have uncertain, complex and potentially significant environmental effects. This article examines the tension between the finality of decision-making under the RMA and the need for flexibility in adaptively managing the activity over the consent term. It explores the concept of adaptive management, the matters of general legal principle that it raises, and the approach to it taken in the courts. It offers generic insights that can be used to develop guidance for practitioners involved in the resource consent process, particularly for drafting environmental management plans. It concludes that the RMA provides legal mechanisms that accommodate all steps of the adaptive management process, but that, in practice, these mechanisms are not always used effectively. Consents often lack clear criteria and procedures for the modification of environmental management plans, for staged developments, and for step-back from activities that turn out to have unacceptable adverse effects. Furthermore, when adverse effects are potentially irreversible, so that the experimentation inherent in adaptive management is impossible, other management approaches are required. Notwithstanding these difficulties, adaptive management is a beneficial approach to complex projects that need ongoing adjustment and flexibility beyond the fixed requirements imposed in conventional resource consent conditions.

Ben Stewart

The Resource Management Act 1991 (the Act) was an ambitious attempt to revolutionise environmental planning. However, the Act has been constantly reformed and rapidly became a bloated and complicated legislative scheme that has attracted widespread criticism. Consequently, both Labour and National parties signalled an intention to repeal the Act following the 2020 election. This article seeks to investigate to what extent the decentralisation of environmental management impacted on the success of the Act. The article argues that the Act’s efficacy has suffered from a systemic lack of meaningful central direction provided to under-resourced local governments. In reaching this conclusion, the article first establishes that the Act was an example of “unfinished business”, given the lack of supporting policy statements and standards relative to expressions of intent at its inception. The article then argues that the lack of supporting policy has negatively impacted on the implementation and effectiveness of the Act, particularly by overwhelming regional authorities unequipped to design local environmental standards from scratch. Finally, the article tracks the historical implementation of central guidance (such as national policy statements), concluding that the lack of central guidance has primarily occurred due to skewed political incentives that currently discourage the Government from intervening in regional environmental management.

David Weitz 

More than 30 years have passed since humankind found scientific proof that our greenhouse gas emissions are causing global warming that will have devastating consequences for all living beings on our planet. Unfortunately, our response during these 30 years can until now only be described as inadequate. This article will provide an overview of the most recent developments and examine the direction in which we are heading. Although some progress has been made in recent years, states still generally prioritise their own national economic interests over the global ecological interest in halting climate change. States often refer to their state sovereignty to legitimise these decisions. The article then proposes that the fiduciary relationship between a state and its citizens requires states to establish an Atmospheric Trusteeship Organisation. Although states are sovereign in determining which measures are in their citizens’ best interests, this article follows John Locke in arguing that the consent of its people always requires a state to preserve its people. Since certain natural resources are a prerequisite for human existence, states are obliged to protect and preserve those natural resources which are essential for their peoples’ survival. Seeing that the atmosphere is a resource shared by all states, the states have to be considered joint trustees, which obliges them to unite in protecting and preserving the atmosphere. Establishing an Atmospheric Trusteeship Organisation would be one way of meeting this obligation and the article will also provide a framework for such an organisation.

Cecilie Anthony Berno Hald

This article is an analysis of the Global Pact for the Environment (GPE), and it examines whether the GPE can be a possible solution for a global environmental instrument to address the current climate crisis. The analysis concludes that the international environmental law consists of many gaps, such as lack of implementation and coherence, fragmentation, as well being ambiguous and lacking fully developed principles. The UN process until June 2019 is analysed by examining the open-ended working group’s (OEWG) three substantive sessions, whose outcome did not include recommendations to adopt the GPE. Hereafter, shortcomings of the substantive sessions and the draft of the GPE (Draft) are analysed and discussed. Several shortcomings in the substantive sessions, despite the lack of consensus, can be found, such as the swift timeframe and the fear of losing sovereignty. Some of the Draft’s shortcomings are a vague and ambiguous language, risk of regeneralising and over-simplifying already fine-tuned principles, and overall it does not bring anything new to the table. The prospects for adopting the GPE in 2022 by integrating the Earth System and/or the Earth Trusteeship are discussed and are found to be a possible, positive approach towards a GPE.

Oriane Jolly

Climate change-induced migration is a phenomenon newly recognised as climate change and its consequences are better understood. The increasing presence of climate change on the international agenda point outs the lack of protection for internationally displaced persons due to the impacts of climate change. Through the analysis of the international legal framework and the innovative use of climate change litigation, this article explores the possible answers to a legal vacuum concerning climate change-related migration. The analysis and interpretation of the Teitiota case involving Kiribati, a Pacific Island state, and New Zealand, gives both a national and international answer to a case of climate change-induced migration. This article examines the Human Rights Committee’s approach to climate change-induced migration which opens up possible protection on the international scale, while scrutinising international and national case law as well as customary international law to suggest how protection can be brought on a general basis.

Philipp Semmelmayer 

At the end of 2019, New Zealand passed a new law to counteract climate change: the Climate Change Response (Zero Carbon) Amendment Act 2019 (the Act). The Act is New Zealand’s answer to the Paris Agreement, under which 196 states committed themselves to undertake and communicate ambitious efforts against climate change, as nationally determined contributions (NDCs).  New Zealand already submitted its NDCs on an international level in October 2015,  and only recently the Act was launched, as a domestic response. The Act is mainly modelled on the United Kingdom’s Climate Change Act 2008 (the CCA) and seeks to provide a framework by which New Zealand can develop and implement clear and stable climate change policies.  The fact that the New Zealand Government finally took action was largely welcomed by the public. However, despite its popularity, the Climate Change Response (Zero Carbon) Amendment Bill (the Bill) faced massive criticism from a political, legal, economic and social standpoint. And the criticism continues today, as the Bill was passed with little change. This article makes a critical analysis of the Act as such and deals with the various criticisms, taking a solution-oriented approach, if and where possible.

Danielle Cooper 

Climate change litigation is increasingly becoming an attractive pathway in the fight against governmental and commercial apathy towards climate change action. In New Zealand, the case of Smith v Fonterra Co-operative Group Ltd sought to limit the emissions of our biggest corporate polluters through the common law. Smith’s claims in public nuisance and negligence were struck out. However, the third action — an inchoate climatic tort — could be pleaded at trial. This article examines Smith’s claim — a public right to private liability for greenhouse gas emissions — through the lens of climate justice. It explores the tenability of a novel tort for climate through traditional and contemporary theories of tort liability. It argues that corrective justice and economic efficiency are ill-suited to the challenges of a modern climatic tort. However, in turning to tikanga Māori and the foundations of public nuisance, there may be an opportunity to create a base for a tortious public right.

Kierra Parker

Climate change poses a serious threat to Māori; physically, economically, culturally and spiritually. The New Zealand Government (acting as the Crown) owes Māori a duty of active protection under the Treaty of Waitangi. Arguably, this duty could require the Government to protect Māori from the impacts of climate change. Should the Government fail to take adequate steps to actively protect Māori, this could amount to an actionable contravention of the principles of the Treaty of Waitangi. This article analyses existing climate change litigation brought by Māori in Aotearoa New Zealand to date, and climate change litigation brought by indigenous groups globally, in order to assess the challenges and opportunities in reliance on the duty of active protection in future climate change litigation.

Alexander Douglas Young

This article examines the differing perspectives on wetlands held by British settler colonists and Māori in New Zealand in the late 19th and early 20th centuries. Wetlands were viewed as wastelands by settler colonists, as they were not cultivated and developed in a Eurocentric manner. Furthermore, wetlands were viewed as dangerous landscapes. To settler colonists, in the context of wetlands, Māori had failed to mix their labour with the land, and make it productive; this failed to satisfy Locke’s theory of property, which permitted settler colonists to take wetlands and drain them to produce productive farmland. Additionally, dominion theology gave settler colonists a religious mandate to improve the swampy wastelands and make them productive. This article traverses literature which discusses settler perceptions of wastelands and the origins of improvement, Lockean land law theory and dominion theology, before shifting to a case study of the Hauraki Plains Act 1908. This Act was an application of the wastelands doctrine, and led to the disenfranchisement of Hauraki Māori from their lands. The article concludes that whilst it led to the creation of productive farmland, the wastelands doctrine, manifested through the Hauraki Plains Act 1908, caused widespread social and ecological damage to the Hauraki Plains wetlands.