Volume 8, 2004

Mark B Schroder

The doctrine of indigenous title originates from the theories of Francisco de Vitoria and Bartolomé de Las Casas, which informed the practice of European nations in their colonies. British colonial practice, the common law, and the doctrine of continuity therefore allowed indigenous peoples to retain control of their lands and natural resources. The modern doctrine of indigenous title has subsequently received recognition, at different stages, in the courts of the United States of America, Canada, New Zealand, and Australia. The formulation of the doctrine, although originating from a similar base, has begun to diverge in the four jurisdictions. Context specific solutions have been developed in relation to the content of indigenous title, however, there seems to be a growing consensus that the content of such a title is not limited to traditional uses. This view also reflects emerging international rights norms which suggest that indigenous title includes a right to modern forms of development. Nonetheless, differences exist in relation to methods of extinguishment, the payment of compensation, and the recognition of a fiduciary duty owed toward indigenous peoples. The jurisprudence of the four nations, however, still provides persuasive guidance in applying the doctrine to particular resources. Therefore in light of North American and Australian decisions and practices, Maori indigenous title rights clearly exist in respect of the sea. Maori title rights to the waters of rivers and lakes also remain because they have not been extinguished by the common law or legislation. Individual hapu and iwi can therefore claim a customary title to particular waters by proving the nature and content of that right via tikanga. Indigenous title is therefore a potent source for the recognition of Maori rights to the water resource. Subsequently any attempt by the Crown to extinguish a recognised title will require compensation to be paid to the relevant hapu or iwi.

Anja Gerdung

Civil society groups, foremost non-governmental organisations, have largely increased their activity and influence on global issues in the course of globalisation. Despite this, up to now, global and transnational environmental problems have mainly been approached by means of public international law and thus, states have been the decisive forces within this arena. Arguably, this approach has not always been an effective response to transnational environmental degradation. This article argues that civil society groups can contribute substantially to the development of environmental law, though they have not yet been adequately integrated into the international legal process to make it more effective. It suggests further, that the potential of these groups, outside the formal legal mechanisms, has not been fully realised. As an alternative to the traditional legal approach, the global environmental governance framework allows for the integration of a variety of concepts in order to effect environmental protection, including ‘bottom up’ approaches initiated by civil society. The article advocates for such a multi-layered approach; an approach that takes greater account of the capacity these societal forces have and further, promises more effective protection of the environment.

Ailsa Ceri Warnock

This article provides an overview of the efficacy of the climate change regime. In particular, the author considers whether states party to the United Nations Framework Convention on Climate Change and its Kyoto Protocol have, thus far, achieved the aim of addressing emissions of greenhouse gases. The compliance mechanisms contained within the Convention and the Protocol are examined and an assessment made as to whether such instruments are in fact likely to promote the efficacy of the scheme. Consideration is also given to some of the general barriers hindering substantive compliance with the goal of the Protocol. Finally, the successes of the regime as a whole, at this juncture, are acknowledged.

Stephanie Jane Mead

The precautionary principle is an important risk analysis concept playing an essential role in evaluating environmental risk and managing resources. Although recognition and acceptance of the precautionary principle has increased, uncertainty remains in determining a universal definition for the concept and reaching agreement on its status in environmental law. This article examines the meaning and status of the precautionary principle in an attempt to further define the principle and highlight the difficulties and criticisms surrounding the principle. Regardless of the various problems that hinder its current application this article will assert that due to the inherent environmental importance of the principle it will continue to evolve and gain momentum as a fundamental concept for the protection and management of environmental resources.

Ali Memon and P Skelton

This article analyses the concept of environmental compensation as a planning tool. Within New Zealand, a number of planning instruments prepared under the aegis of the Resource Management Act provide for environmental compensation, although the Act itself makes no specific reference to the issue. The advantages and disadvantages of the use of such a concept are considered; reference is made to the current literature on the topic and the international experience of environmental compensation examined. The authors consider means to protect indigenous ecosystems on private property and analyse the arguments for compensating landowners for loss of property rights. An assessment of the case law in New Zealand reveals an uncertainty as to how the concept of environmental compensation should be applied or given efficacy to. The authors counsel that if the concept is to be adopted and utilised to good effect, clarity of the issue must be achieved through the implementation of a robust legislative regime. Ultimately, they advocate a cautious approach be taken to the use of environmental compensation.

Trevor Daya-Winterbottom

This article considers the RMA review announced by the Government in May 2004 and comments on what should be done to improve practice under the RMA. In particular, the issue of delay in relation to the resource consent process is considered, together with the peculiar issues relating to major projects. Changes to the jurisdiction of the Environment Court are also critically analysed.

Jacinta Ruru

Since 1987, the principles of the Treaty of Waitangi have been explicitly relevant in the management of New Zealand’s conservation estate. This article examines how the courts, the Waitangi Tribunal, and the Department of Conservation have interpreted and applied section 4 of the Conservation Act 1987.

Stephanie Curran

Two principal Acts, the Resource Management Act 1991 and the Local Government Act of 2002, determine the behaviour of New Zealand’s local government. Despite the common principle of sustainability at their core the Acts diverge as to its application. The former Act espouses sustainable management whilst the latter demands a sustainable development approach. The contrast between these applications becomes apparent where there is potential overlap of actions required by each Act. This article charts the origins of sustainability in New Zealand with the application of sustainable management and considers in what manner the sustainable development approach should be interpreted. It further considers those areas in which the requirements of the Local Government Act will conflict with processes under the Resource Management Act, including the requirement to apply the sustainable development approach to decision-making procedures, a stricter method for consultation and a consideration of sustainable development and biodiversity when executing planning responsibilities.

Peter Fuiava

This article considers the approach taken in New Zealand to the issue of genetically modified organisms. The gravamen of the article is the interplay between central government and local government with regards to this issue. To determine whether local governments have any authority to control the use of genetically modified organisms via land use, the author examines, inter alia, the role of the Environmental Risk Management Authority, the principles and purposes inherent in the Hazardous Substances and New Organisms Act of 1996, the Resource Management Act, the Local Government Act 2002 and the Royal Commission Report on Genetic Modification. He concludes that Parliament did not intend to grant local governments power to regulate genetically modified organisms and that an examination of statute and case law supports this assertion.

Colleen Prendergast

The planning and funding of infrastructure (power and water supply, sewage and stormwater services, and roads) so as to ensure its provision prior to or at the same time as development has long been a difficult challenge for Councils. Essentially, the costs of growth can be funded in two broad ways - by the community at large in the form of rates, fees and charges; or by those creating the demand on the basis of the "polluter pays" principle.This article examines the funding tools contained within the Local Government (Rating) Act 2002, the Local Government Act 2002 and the Resource Management Act 1991. After a brief overview of the historical position, the article looks at each of the tools and considers the purpose and procedural requirements of the relevant Act, the rationale behind the tool and the advantages and disadvantages arising out of its formulation and application. The article then looks briefly at the current sources and sufficiency of funding for infrastructure in three of the local authorities experiencing growth pressures within the Auckland region. The article concludes by identifying the circumstances where use of each of the tools is considered appropriate.