Volume 26,2022

Dr Royden Somerville KC

There are many interrelated existential threats facing our shared humanity in the next 30 years. This poses complex risks to human activities, biological diversity, and to climate. This lecture addresses how our legislation and common law can inform the resource management response to those interrelated threats. It will first consider the current version of the Natural and Built Environment Bill. Then it will consider whether the proposed legislation should be accorded constitutional law status. Finally, it considers whether the Environment Court should be reconstituted as a senior court.

Janet Whiteside

This article discusses the meaning of sustainability and its development as a principle in environmental legislation. The article then describes how sustainability was introduced into New Zealand’s Resource Management Act 1991 (RMA) and comments on how the RMA has failed to apply the principle effectively to protect the natural environment because of its anthropocentric focus. Finally, the article discusses whether the recently introduced Natural and Built Environment Bill (NBEB) is likely to be more effective in ensuring sustainability of the natural environment and suggests changes to the Bill that would increase this likelihood.

Kate Leyland

A post-political lens is increasingly applied to planning processes to shed light on how planning increasingly forecloses “the political” — whereby dissensus, conflict or fundamental differences are not meaningfully reflected in planning outcomes via participatory practices — often to further neoliberal trajectories to accommodate economic growth. This article examines the extent to which post-political strategies are utilised within processes of formulating national direction through statutory planning frameworks in New Zealand. The article maintains that expressions of the political can be obscured via the legal frameworks for promulgating national direction. Lessons from legislative analysis of the process for promulgating national policy statements (NPSs), along with case studies of previous NPS processes, will inform recommendations for how to reassert the political in future planning frameworks.

Feroze Duncan Gadekar Brailsford

Aotearoa New Zealand’s public law accountability mechanisms are insufficient and poorly placed to prevent and provide relief from climate change-induced harms. By contrast, tort law is well-placed and well suited to addressing damage to private property and personal interests.

Mark Howard

The worsening global biodiversity crisis lays bare the anthropocentric inefficacy of environmental law. Reversing the crisis requires law and society be built around ecological integrity and within planetary boundaries. This article argues that eco-constitutionalism has unique qualities necessary to achieve such ecocentrism. It explores the contents of an ideal eco-constitution via global eco-constitutional trends. Aotearoa is obligated to adopt eco-constitutionalism through a kaitiakitanga-derived grundnorm preserved in article 2 of Te Tiriti o Waitangi, fused with cosmopolitan duties. Finally, it provides an overview of a proposed Aotearoa eco-constitution.

Spencer Barley

During the second half of the 20th century, the concepts of rights and obligations attained new political and legal significance, as demonstrated by the rapid growth of international human rights law. It appears such developments will continue in the 21st century, albeit in new directions, as emerging approaches to environmental rights and human obligations seek solutions to the global environmental crisis. This article critically analyses such approaches and suggests an outline for how they might be implemented.

Hamish MacMillan

The concept of trusteeship has seen much discussion over the years as a promising mechanism for a broad and intergenerational environmental management, with notable champions in Joseph Sax and Elizabeth Brown Weiss. This article reviews the history, literature, and actual implementation of the concept, and arrives at the conclusion that the concept does indeed have the promise it purports to have, with evidence of international implementation to support that. Nonetheless, it is still currently constrained by the lack of a greater global guidance on rights and responsibilities, which it relies upon to act effectively from the envisaged broad environmental perspective. The idea of whether a new Universal Declaration of Human Responsibilities sitting side by side with the Universal Declaration of Human Rights (UDHR) would serve to fill that void is explored. Reviewing the background of the UDHR and subsequent instruments (from both the UN and NGOs) there is no shortage of material that would address such a gap. A consideration of wider context such as recent discussion papers in the United Kingdom and some of the debates triggered by the COVID-19 pandemic confirms that not only would trusteeship as a mechanism for environmental protection benefit from a such a document, but so would society in general. The tools and thinking is already there, we just need to act.

Martin Kment and Katharina Bader

Nature is becoming entrenched as a legal subject in an increasing number of legal systems all over the world. This entails granting nature rights of its own which can be asserted in a court of law if necessary. In two legislative Acts, Aotearoa, New Zealand has defined as legal entities with rights and liabilities of their own first Te Urewera forest, and second the Whanganui River. This ground-breaking achievement under environmental law sets new standards on the international stage. By contrast, intrinsic rights accruing to nature are still alien to the German legal system. Environmental law in Germany has an anthropocentric orientation. Therefore, nature is seen as a legal object which is destined to serve humans as legal subjects. Today, this fundamental understanding runs from the constitutional level through to simple statutory law. This anthropocentric point of view is however not mandatory. In fact, it would be constitutionally permissible for the German legal system to also recognise nature as a holder of rights, and hence to trigger a paradigm shift in the law from anthropocentrism to ecocentrism. The present article explains both legal systems in a comparison of laws but attempts to approach the topic from the — thoroughly self-critical — point of view of a German lawyer.

Anna Jenkin

This article explores the possibility of an international crime of ecocide, explaining that while it is not a silver bullet its inclusion in the Rome Statute is desirable for Earth, its inhabitants, and the law. An international crime of ecocide could provide an accountability framework and clear reference point to guide individuals’ behaviour globally. It would morally condemn the ecological destruction occurring daily outside of war, which is currently lawful. Because ecological destruction is often an unintended but anticipated secondary effect of corporate or State action, the crime of ecocide faces the challenge of obtaining States’ international agreement on the appropriate mens rea standard, and challenges State sovereignty more broadly. But it also has the potential to strengthen the international response to our changing planet and help us justly transition into a green global economic order. While some States have included ecocide in some form in the national penal codes, this article’s focus is international. However, it ends by recommending Aotearoa New Zealand should begin the amendment process of the Rome Statute to include the crime of ecocide.

Cases, legislation and other commentary:

Dr Victor Meyer

Soil conservation takes an anthropocentric, utilitarian approach to policy and planning, whereas soil preservation takes an ecocentric or nature-centred approach. The Resource Management Act 1991 (RMA) replaced more than 50 Acts (including amendments) relating to land, water and air, and both the RMA and accompanying environmental reforms of the late 1980s to early 1990s were responsible for bringing sustainability and integrated environmental management into the planning and resource management systems so that cumulative effects could be taken into account, rather than managing one resource while overlooking a knock-on effect on another. Government subsidies to help farmers conserve soils were stopped in the mid-1980s when freemarket economic policies were introduced. The Ministry of Works and Development was disestablished pre-RMA as part of moves to devolve some elements of centrally controlled planning to local governments. As part of these reforms, the catchment boards of the earlier eras (governed mainly by the Soil Conservation and Rivers Control Act 1941) were decommissioned to make way for regional councils, and as a result, the soil scientific expertise was largely lost. Consequently, soil quality in New Zealand has been deteriorating ever since. This article argues for a return to catchment boards, or similar entities for soil management, but with a more ecocentric orientation and guiding philosophy. It is also recommended that future resource management legislation be nature-centred, and that anthropocentric notions be revised to improve soil health and ensure better outcomes for the environment.

Renate Vosloo, Franca Buelow, John Page and Ann Brower

Braided rivers are visible from space yet globally rare. They are as physically fragile as they are biologically diverse. This case note explores the law’s difficulties in defining boundaries of a braided river, hence delineating where earthworks can and cannot take place. Following from a prosecution of earthworks within a riverbed, the case explored the definition of braided rivers by questioning whether the defendant’s development was within the decidedly amorphous riverbed. It is no wonder the law struggles to decide where the land stops and the river begins, because science describes braided rivers as complex flows of water and sediment — simultaneously land and water. Yet Canterbury Regional Council v Dewhirst Land Company all but excludes “various scientific explanations” from the decisions, stating the question is one of law. As such, this case note explores the intersections and gulfs between law and science and land and water. It concludes that braided rivers require a legislative definition at the national level that embraces dynamism, complexity, and room to move. Above all, to fulfil regional and national goals of protecting natural character of unique landscapes, the legislative definition must recognise that braided rivers are land and water both at once.

Amy Whetu, James Whetu, Dr Kate Bromfield and Kiri Crossland

Aotearoa New Zealand’s energy profile is significantly weighted towards renewable energy. Finding and enabling access to additional renewable energy sources that promise to proffer the increased energy use we will require in a low carbon future, however, still remains a priority. Enabling this access without further degrading waterways and landscapes, and without compromising cultural values and identity, is one of a number of a challenges in Aotearoa New Zealand. Exploring what is “good” resource sharing and navigating best-practice approaches is explored in this article. This is the driver behind a number of research projects, including the five-year Endeavour-funded “Economic Opportunities and Environmental Implications for Energy Extraction from Gas Hydrates”, “HYDEE” research project. HYDEE sees researchers currently exploring energy production from gas hydrates naturally occurring beneath the seafloor. The scientific exploration and analysis around whether this is a plausible option for energy extraction is being undertaken alongside research into how Māori1 might be engaged in future processes that recognise and provide for the impacts and opportunities in the use of gas hydrates. This article explores lessons from Aotearoa New Zealand and other indigenous nations, in relation to access to or preservation of resources and what approaches best suit the management of emerging resource use.