Volume 3, 1999

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.

Justice A. P. Randerson

The views which I express in this paper are largely those gained over 30 years of practice as a lawyer in the field now known as environmental law. The approach of the second millennium provides an opportunity to review the changes made both to the content and practice of environmental law over the past three decades, and to consider whether it may fairly be said that progress has been made. In view of my position as a Judge, I give the usual disclaimer that any views I express are not necessarily those which I would adopt in my judicial capacity.

Judge J. R. Jackson

I was originally invited here to give a talk on "the role of economic analysis in RMA jurisprudence". Fortunately I was also given leave to rewrite the topic, and I have exercised that right. Due to time limitations I have largely left the jurisprudence of the Resource Management Act 1991 ( "the RMA ") to the footnotes, and I have omitted any reference to analysis because I wish to discuss some economic themes about resource use at a more basic level. Revised in that way my theme becomes "the role of economics in the RMA." However, as I prepared for this address I realised that a more interesting, and possibly more insightful, topic might be a reversal of the heading so that it becomes "the role of the RMA in economics". Hence the alternative title.

There are always dangers when anyone talks outside their discipline. The reason for my dealing with the subject of economics at all is that there is, from a lawyer's perspective, an economic "thread" running through the RMA. In fact, to continue the weaving metaphor, economics is more than a thread: it could be seen as the warp running at right angles to the weft of the law. Both make up the fabric of the Act.

Cath Wallace

The Quota Management System in New Zealand fisheries management was instituted by the Fisheries Amendment Act 1986. We now have twelve years of experience in the operation of this tradeable rights system and the Fisheries Act 1996, which imposes various obligations on the Minister and other parties, as well as refining the tradeable rights system in ways that also have implications for various aspects of environmental ethics. The paper analyses these obligations and ethical effects and assesses the New Zealand Quota Management System for its impacts on the actual and perceived ethical, legal and political rights and interests of fishers and other entities.

Jonathan J. Cutler

As with previous planning legislation, businesses are able to use the Resource Management Act 1991 for anti-competitive purposes by opposing planning applications made by their competitors and by appealing decisions to the courts. Frequently, parties who conduct the opposition aim to thwart or delay the projects of their competitors in order to protect their own commercial interests. Often, however, the opposition is disguised in the form of very complex and clever resource management and environmental arguments meaning that each case is heard on its merits. This combined with the broad nature of resource management means that attempts by Parliament to directly thwart this behaviour via a series of amendments to the RMA have been largely ineffective. Rather the courts have continued to treat appeals involving trade competitors carefully on a case-by-case basis as had occurred previously under the now repealed Town and Country Planning Act 1977. The author believes that the most recent of the amendments will also be largely ineffective.

Bruce Pardy and Janine Kerr

Reverse sensitivity is sensitivity not to environmental impact, but to complaint about environmental impact. Reverse sensitivity exists where an established use produces adverse effects and a new use is proposed for nearby land. It is the legal vulnerability of the established activity to objection from the new use. Under the Resource Management Act 1991 ("RMA"), new uses may be prohibited or limited on the ground of reverse sensitivity in order to protect established uses from having to modify their operations. Restricting new uses on this basis has significant consequences for the law of private nuisance, private land rights, and the interpretation and application of the RMA. It defeats the purpose of the common law rule that it is no defence that the plaintiff came to the nuisance. Private land rights become dependent upon public benefit and are apt to be compromised or extinguished in the absence of open and continuous use. Owners of vacant land must object to proposed activities with adverse effects in order to preserve future rights to use their own land The RMA is reduced to a planning statute rather than an environmental protection regime. Adverse environmental impacts are permitted to continue and the existing uses that cause those impacts are protected from legitimate legal complaint.

Prue Taylor

The Vice-President of the International Court of Justice recently described sustainable development as "... not merely a principle of modern international law. It is also one of the most ancient ideas in the human heritage." This is a remarkable statement, for a number of reasons. First, it appeared as a separate opinion to the majority judgment of the International Court of Justice (ICJ), in a recent case between Hungary and Slovakia (one of two successor states to Czechoslovakia). In contrast to the Vice-President's comments, the majority judgment's reference to sustainable development was much weaker. Second, it implies that sustainable development has achieved the status of a rule of customary international law. If this is so, then it potentially creates a binding international legal obligation upon all states — one that will also have large ramifications for domestic legal systems. Third, the suggestion that sustainable development is "one of the most ancient ideas in the human heritage" must come as a surprise to those who have long considered the 1987 Brundtland Report as the source of the first authoritative definition.