Volume 9, 2005

Douglas Fisher

The values of landscape are diverse and often in conflict in terms of the economic, ecological, aesthetic or spiritual. Traditionally values such as these have been linked in legal terms to land, the ownership and use of land, and more recently the conservation of land and land-related values. Orthodox legal mechanisms such as rights of property have been unable to cope with the diversity of values involved in managing land and landscape. One example is the different perceptions of landscape between indigenous and non-indigenous groups within a society. Public policy is responding to some of these issues. Legal systems are also responding - internationally, constitutionally, nationally and locally. Landscape values are increasingly recognised in environmental management, resource management, land use planning, cultural heritage conservation, through native title and occasionally in their own right. While there is no generic duty within the legal system to protect landscape values, there is an increasing range of mechanisms, many managerial and procedural in kind, that have the effect of attributing value in human activity and human decision-making to landscape.

Stephanie Curran

The intrinsic value of Nature is often cited as a reason for mankind to protect and preserve the environment, and there are a number of international instruments that acknowledge this. However, New Zealand has also recognized this concept in its domestic legislation, an inclusion that appears to be unique amongst States. Any discussion of intrinsic value inevitably raises fundamental philosophical questions of subjective belief and objective reality, issues that have captured and confounded philosophers for over two thousand years. This article examines the historic context of intrinsic value and identifies the problems that arise when a philosophical or "pure" interpretation is mandated. In order to avoid these difficulties and to give a functional meaning to the concept of intrinsic value this article proposes an ecosystemic approach under which ecosystem health forms the guidance for an environmental management practice. However, the issue still arises under this approach of how to measure the value of ecosystems. A study conducted for the Auckland Regional Council has responded to this in the form of economic modelling. This study will be examined and critiqued. Finally, three areas in which an ecosystemic approach to intrinsic value has been implemented and proved successful will be highlighted.

Ana Gabriela Platero Midence

The establishment and continued assessment of Protected Areas has been one of the key elements that countries have used to preserve their ecosystems. International law, especially through the Convention of Biological Diversity, has taken a major role on creating structures that allow for Protected Areas to be effective. The recommendations made to countries by the international community include a framework adapted to the special needs of each population and the type of area which is protected. Furthermore, it provides for the creation of a strategy plan that allows for goals to be set and easily followed.
This paper focuses on New Zealand and Guatemala. Two very different countries, which rich in biological diversity plays a major role in the world’s environment. Both countries have issued their corresponding legislation and strategy plans that deal with protected areas. However, due to their special circumstances, their actual results in their implementation vary greatly.

Andrew Hayward

This article analyses the regulation of GMOs in New Zealand under the Hazardous Substances and New Organisms Act. The HSNO Act came into force for new organisms in 1998, and since that date has served as the country’s primary regulator of GMO import and use. The article gives particular regard to the precautionary principle, and the role it should play in GMO regulation. The origins and interpretation of the precautionary principle are considered, as are the risks associated with GMOs. The specific application of precaution in the New Zealand context is discussed, and the HSNO Act is assessed based upon this context. The article concludes that the integration of the precautionary principle into the HSNO Act is not strong enough to effectively prevent the potential risks of GMOs, and that the poor differentiation between low-risk and high-risk GMOs within the Act should be amended.

Imke Sagemueller

This article examines the non-compliance procedure established under the Cartagena Protocol on Biosafety to the Convention on Biological Diversity. The article questions whether non-compliance procedures in general and the non-compliance procedure established under the Protocol in particular are reasonable methods of ensuring compliance. The author argues on a number of different levels. Commencing with a definition of non-compliance procedures, the article goes on to consider the possible responses to non-compliance. Compliance theory generally distinguishes between two theoretical approaches in responding to non-compliance: the "soft" managerial approach and the "hard" enforcement approach. Both approaches are thoroughly examined before the question is considered as to whether soft or hard responses to non-compliance should be applied in general. Subsequently, the analysis focuses on the Cartagena Protocol specifically. Was it reasonable to develop a non-compliance procedure under the Protocol? The article determines whether the Cartagena Protocol applies the managerial or the enforcement approach before a conclusion is reached as to whether, in this regard, a wise decision was made.

Francesco Sindico

The negative effects of climate change, such as increasing rise in sea levels, pose new threats to the international community. However, do they constitute threats to the international peace and security ex Article 39 of the United Nations (UN) Charter? The goal of this article is to answer this question and to determine which path the international community should take in order to efficiently tackle climate change threats: an ex-post approach or an ex-ante approach. The ex-post approach analyses the international legal and political frameworks in which future climate change related threats may be addressed by the international community. In particular, it studies whether the system provided for in Chapter 7 of the UN Charter would be able to deal with environmental-related threats. The ex-ante approach focuses on what the international community should do today in order to prevent climate change threats from occuring. It argues that States must change their economic behaviour and in some cases give priority to environmental interests over commercial interests. In conclusion, taking into account the current status of international affairs, it is unlikely that the international community will follow the ex-ante approach in the short term. Therefore, this paper concludes that legal and political scholars must take action within the ex-post approach in order to improve the current international community response to climate change threats, in particular by improving the maintenance of international peace and security system provided for in the UN Charter.

Kerry Tetzlaff

Bottom trawling is one of the most destructive methods of modern day fishing. It involves dragging large nets with huge steel doors and steel rollers over the deep sea floor capturing everything in its path in order to catch a few fish. As a result, marine habitats are destroyed, fish stocks are overfished, and other species caught as bycatch risk extinction. This paper examines two questions of major importance. The first question is whether international law provides adequate protection from the negative effects of bottom trawling on the high seas. The second question is whether, if international law does not provide adequate protection, other measures could be taken to provide the much needed protection. To answer these two questions, this article examines the relevant provisions of the United Nations Convention on the Law of the Sea, the United Nations Fish Stocks Agreement, the Food and Agriculture Organisation’s Compliance Agreement, and the Convention on Biological Diversity. The article also investigates the concept and performance of regional fisheries management organisations. Finally, the article proposes a moratorium on bottom trawling in the high seas and an eventual convention banning all bottom trawling activities in the high seas.

Dr Ulrich Klein

New Zealand is seen as a leading country in environmental planning. Until recently, most studies have hesitated to draw conclusions on whether this reputation is justified. This article presents the key messages of a juridical assessment of New Zealand`s Environmental Planning Model which has been published in Germany. It argues that although the Resource Management Act 1991 (RMA 1991) provides new opportunities for green planning, many legal and practical impediments still exist.

Richard M Fisher

This article analyzes the treatment of wind energy under the Resource Management Act 1991 ("RMA"). It includes an assessment of government policy in respect of alternative energy, and how this has played out in terms of three major amendments to the RMA from 2003-2005, as well as the influence of New Zealand's present position regarding emissions trading under the Kyoto Protocol. Case studies of resource consent applications for large wind energy projects are included. From them, a number of key planning issues are identified that are likely to affect the future regulatory treatment of wind energy in New Zealand.

Ailsa Ceri Warnock

2005 was declared to be the "Year of the Built Environment" in New Zealand. This article concerns the law relating to the "built environment" and specifically, examines the construction of buildings within an environmental matrix. Starting from the premise that sustainable construction is an imperative if the goal of sustainable development is to be achieved, the article examines the approach taken in New Zealand to "green" building practices. Through an analysis of the Building Act 2004, the Building Code and the Resource Management Act, the author considers whether present regulatory methods can best ensure that construction is conducted in a sustainable manner. The Code to the Building Act 2004 is presently under review and an assessment is made as to the prospects of any revised Code effectively promoting the aim of sustainability. The author concludes that, in the event of the revised Code failing to adequately address the issue, local authorities can use the Resource Management Act to require and to encourage sustainable construction via the use of district plans, conditions on resource consents and financial contributions.