Volume 6, 2002

Janet Hope

This article traces the history of New Zealand's approach to regulating genetic modification technology from the early 1970s to the end of the 20th century. It highlights the influence of New Zealand's unique characteristics — its geographic isolation, size, cultural heritage and peculiar economic liabilities and opportunities — on the development of a distinctive approach to gene technology regulation. Following the introduction, Part II deals with early developments in genetic technology and the response of regulators to these developments. Part III deals with the period from the late 1980s to the mid-1990s, when on the surface the commercial promise of biotechnology tended to overshadow concerns about its risks, while at a deeper level the ground work was laid for the coming public backlash against deregulation. Part IV provides an overview of the Hazardous Substances and New Organisms Act 1996 and gives an account of regulation under the regime it established. Part V outlines the events leading to the announcement of a Royal Commission on Genetic Modification in February 2000. The conclusion comments on the subsequent short term moratorium.

Christina Voigt

The Government decision to allow medical and laboratory experiments involving genetic engineering and to reopen applications for field trials of genetically modified organisms in 2003 reflects the significant interlinkages between science, politics and economy. Albeit proclaimed, little respect is shown to both the high level of uncertainty inherent to the new scientific field of genetic engineering and the crucial limitations of technological application with regard to the complexity of nature.

It is the intention of this article to investigate the requirements of a precautionary approach to meet those uncertainties and limitations. By examining the risks imposed by genetic modification, it becomes apparent that the legal and institutional framework in place does not recognize sufficiently the limits of knowledge. The application of a risk assessment and risk management strategy cannot provide for a secure decision making basis. It is argued that in order to comply with the requirements of a precautionary approach, a wider systems-based interdisciplinary analysis has to be put in place. Both expert views and public perception have to be taken into account and complemented by the recognition of ecological reality and adoption of a sound ethical basis as provided for by an ecocentric perspective.

Alexander Gillespie

This article examines the environmental threats that are posed to cetaceans and examines the way the international community in general has begun to deal with them. A broad approach to the international community is taken, as the environmental threats overlap with issue-specific forums other than the International Whaling Commission (IWC). Although the international response to ozone depletion has been successful, and the Persistent Organic Pollutants (POPs) convention shows promise, the international community is clearly failing with regard to adequately dealing with climatic change, and its response to rivers suffers from a lack of specific commitments at both the general and specific levels. The IWC must increasingly be active in related forums as the ultimate conservation of cetaceans may be decided elsewhere, not within traditional whaling debates.

Michaela Stirling

International law gives States certain exclusive rights over continental shelf resources, but also a correlating responsibility to protect the surrounding environment. This article examines this tension in relation to New Zealand's offshore mining regime beyond the 12-mile limit, highlighting particular issues for the policy-setting period of the upcoming Oceans Policy.

Graham Nicholson

Resource development in the contemporary global circumstances, including the ability to explore for and mine minerals, is critical to the continuance of modern civilisation, but increasingly it has to be balanced against environmental, generational and other factors of growing public importance. This article examines the law as to mining as applied to the emerging international concept of the "common heritage of mankind", or "global commons", as might be said to be illustrated in 4 categories — mining in the High Seas, mining on objects in space, mining in the Antarctic and mining in World heritage areas, and examines where that balance has been set, noting the vastly different and usually controversial approaches taken in each case notwithstanding the existence of certain commonalities, and the deficiencies in each. It concludes that while this concept is here to stay, it is not a fixed concept, but rather one that is still in the course of evolution, and one that is capable of being expressed in different ways through different international institutional arrangements with different consequences.

Donna Craig

Indigenous co-management of lands, waters, seas and resources is rapidly expanding throughout the world. The most highly regarded models have been developed in Australia and Canada. Their "success" has been largely anecdotal and based on informal practices and relationships developed by dedicated participants. The focus has been on practical means of making co-management work on the ground. Much has been gained in this process. However, fundamental conflicts and issues relating to Indigenous rights have often been ignored. It cannot be assumed that conservation and managerial agendas will be the same as the aspirations of Indigenous owners. This article critically reviews the very diverse Australian and Canadian experiences, having regard to international and national legal standards recognizing the comprehensive rights of Indigenous peoples, and suggests that a more "rights based" approach to co-management is needed. More careful attention also needs to be given to the contexts and parties involved. Indigenous roles will vary depending on whether co-management is part of self government negotiations, or more limited agendas related to conservation, sustainable resource management or mainstream planning and development frameworks.

Rod Thomas

Section 85 of the Resource Management Act 1991 (RMA) prohibits compensation claims arising from the effect of planning restrictions, but provides that persons having an interest in land can apply to the Environment Court to change a plan provision where it would render the land incapable of reasonable use. Judicial pronouncements to date have asserted that relief is only available where the proposed plan change does not endanger planning controls. The article contends that this approach is unwarranted, when considered in light of the RMA's resumption that all reasonable forms of land use are permissible. Indeed the current judicial approach has the effect of enabling councils to promulgate restrictive zoning controls with impunity, as the landowner has no other remedy. In contrast, the author argues that on a correct interpretation, s 85 should be seen as a linchpin of the RMA defining and limiting the ability of local authorities to control and direct land use by means of prescriptive land controls such as zoning.

Nicola R Wheen

This article evaluates the legal history of the dealings between various New Zealand governments and the owners of the SILNA forests (indigenous forests on land originally granted to Southern Maori under the South Island Landless Natives Act 1906). Recent decisions to apply the Resource Management Act's land-use controls to SILNA land, in conjunction with the government's current approach to the SILNA land owners are open to criticism. The problems with this approach have less to do with the conservation of the forests, and everything to do with the government's duties to the landowners under the Treaty of Waitangi.

Klaus Bosselmann

2002 marked the 10th anniversary of the Earth Summit in Rio that promoted the concept of sustainable development. While the concept has been popular among governments and business, very little has been done to implement it. The recent World Summit on Sustainable Development in Johannesburg adopted a "Plan of Implementation", but failed to provide specific guidance. Economic globalization has shaped governments' policies to an extent that only a major turnaround, led by civil society, could salvage the vision of sustainability.