Volume 7, 2003

Helle Tegner Anker

Different approaches to protect water quality in New Zealand and Europe are analysed, in particular as regards agricultural pollution. Important elements in a water quality based integrated resource management are identified as the determination of environmental bottom-lines or water quality standards, the appropriate mix of measures to control activities, including non-point source pollution, and most importantly a river basin, watershed or catchment approach that links the measures of control to the water quality standards. The EC Water Framework Directive provides an example of how to establish a framework for the setting of environmental bottom-lines for water quality, whereas the New Zealand Resource Management Act demonstrates a potential to link measures of control to water quality through integrated (water) resource management. However, more precise directions to regional councils from national government appear warranted in New Zealand. On the other hand a too strong interventionist approach as in Denmark may fail to promote integration.

Ralph Chapman

The Dutch environmental policy scene is characterised by two very distinctive aspects — the emphasis on consensus-type agreements, following a broad move away from detailed environmental regulation, and initiatives to begin on a major set of transitions towards greater sustainability in key parts of the economy such as energy, agriculture and transport. Both of these aspects take place within a culture where the need for policies to advance sustainable development, and central government activism in the environmental area are more accepted than in New Zealand. At the same time, policy discussion is gradually shifting more towards the quality of life than the technicalities of pollution reduction - in short, a transition away from traditional environmental concerns towards the broader notion of sustainability. Nevertheless, the two societies have many similarities and can learn from each other. Gains in sustainable development can be generated for New Zealand by picking up on innovative features of Dutch sustainability policies, as evident particularly in the comparative success of its evolving covenant approach, backed by economic instruments.

Alexander Gillespie

There are two stages for effective international environmental law. The first pertains to the formation of international agreements. The second relates to their implementation. This paper relates to the second question. The key aspect of implementation is achieving compliance by the signatories. In this regard, international environmental law is at the forefront of a whole series of new concerns as countries are now obliged to meet the commitments they earlier signed up to. This paper attempts to show how three 'state of the art' regimes meet this challenge, and what lessons can be learnt from them.

Kees Bastmeijer

Both the intensity and the diversity of tourist activities in Antarctica are increasing. Activities conducted in the Antarctic today include ski-expeditions, mountain climbing, marathons, long-distance swimming and scuba diving. In this article the question is discussed whether the Protocol on Environmental Protection to the Antarctic Treaty and the domestic implementing legislation of the Contracting Parties provide a system of clear normative criteria for authorizing Antarctic tourist activities. This question is answered in the negative. Although the Annexes to the Protocol have been incorporated into domestic law, most of the requirements and prohibitions are in fact 'conditions' for conducting activities in the Antarctic and do not provide clear guidance for the 'go-no go' decision. Article 3 provides more fundamental principles, but not all Contracting Parties consider this Article legally binding. Furthermore, the wording of this Article is not very clear, and in particular the consequences of Article 3(2)(b) in relation to tourist activities appear to differ from state to state. The laws of the various Contracting Parties seem to exclude the possibility of refusing authorisation for any activity that will not cause 'more than a minor or transitory impact'. Based on these findings, combined with the expectation that in the future the diversity of tourist activities will further increase, the author questions whether, in the longer term, the current legal system is strong enough to safeguard the Antarctic as a 'natural reserve, devoted to peace and science'.

Debra L Donahue

Open space covenants are a popular, promising tool for protecting natural values on New Zealand private lands. Unlike conservation easements, an analogous device in the United States about which much has been written, open space covenants have attracted little scrutiny. This paper considers the efficacy and durability of open space covenants as a conservation tool. After summarizing the similar common-law roots and basic features of these devices, the paper proceeds to examine the Queen Elizabeth the Second National Trust Act of 1977, which authorizes open space covenants, and other potentially relevant law, and to evaluate the National Trust's administration of covenants. The program's success is attributed largely to the voluntary nature of covenants, Trust-landowner goodwill, and the Trust's expertise and independence from government. Issues that have not been problematic to date but will likely require attention in the future are identified and explored. They include the legal nature of the interest in covenants; covenant enforcement, revocation, and amendment, including judicial authority to modify or extinguish covenants; public access; and the nature and scope of the public's interest in covenants. The paper concludes by offering recommendations for improving the covenant program and enhancing its contribution to conservation.

Christina Voigt

The legal framework in place in New Zealand provides for the protection of indigenous flora on publicly owned land. But many species and assemblages are present in areas outside public conservation land and are therefore subject to permanent destruction. This paper focuses on the examination of the cumbersome legal basis for biodiversity protection on private land and the role local government plays in this regard. The objective of this paper is based on the conviction that indigenous forestation can and must become a much more dominant component of local authorities' decision- and policy-making processes in order to halt the decline in New Zealand's indigenous biodiversity.

Asher Davidson

Consideration of reverse sensitivity in applications for consent under the Resource Management Act is now common place. Often it will mean that consent authorities are faced with a difficult choice between allowing an existing activity with unavoidable adverse effects to continue and refusing consent to a proposed activity; or allowing the new activity to establish to the detriment of its effects-producing neighbour. This article considers the potential win-win solution offered by "no-complaints" instruments, which prevent landowners from bringing action against any activity of the effects-producing neighbour. Factors considered are the mechanisms by which such instruments operate, their validity, enforceability, legality and general desirability.

Peter Fuller

The Courts exercised the discretion they were provided with to interpret s 5 of the Resource Management Act 1991 using an "overall broad judgment" approach. This paper argues that if the alternative "high level constraints" approach were rigorously applied then most human activity would fail the s 5 test for sustainable management. The "overall broad judgment" approach is, with respect, the preferable way to interpret s 5. This paper also argues that the emergence of the so-called "permitted baseline" was precipitated by those plans that were based on an inadequate assessment of environmental effects. Furthermore, criticism of the permitted baseline test often ignores the reasons why it developed and this was because many plans adopted a differential approach to classifying activities that could not withstand objective scrutiny based on environmental effects. The paper concludes that reform of the Act and the writing of second generation plans and policies, would benefit from first debating the merits of purpose based legislation and conducting a more robust environmental effects assessment of different activities.

David Sinclair

The Resource Management Act 1991 (RMA) is at the core of public and environmental health legislation in New Zealand. It is the primary legislation for the control of environmental hazards with health implications (along with the Hazardous Substances and New Organisms Act 1996 (HSNO)), public health-related infrastructure (such as sanitation), and the means for developing and implementing the planning necessary for promoting healthy environments. However, public and environmental health issues have often had a relatively low profile in the implementation of the RMA.

This paper describes the common origins and subsequent divergence of public health and environmental management legislation and practice, and then looks at "health and safety" as included in the definition of sustainable management in section 5 of the RMA, judicial interpretation and implementation. This is followed by a description of public and environmental health frameworks, law and practice (including human health aspects of sustainability) and the place of the RMA in this. Several examples of the sometimes complex responsibilities for public and environmental health are described briefly.

The paper seeks to describe and explore the links between the RMA and its implementation on one hand, and public/environmental health concepts, law and practice. It considers some of the conceptual and practical questions which arise from attempting to use the RMA as a public and environmental health tool, and draws some conclusions about possible improvement in public health law and practice. There are considerable potential benefits from environmental management and public health practitioners becoming better acquainted.

The ownership and use of the foreshore and seabed in New Zealand requires clarification following the Ngati Apa decision in 2003. The article examines the legal concepts of ownership, the claims by Maori to customary rights or title, and the Government's proposals to resolve the issues.