Volume 25, 2021

Staffan Westerlund and Prue Taylor (Annotator)

This article discusses the ongoing degradation of the biosphere as demonstrated by human population growth and declining biodiversity. It discusses the fact that no national or international environmental control system has achieved a legally secured ecological sustainability. This article recognises that human life as well as economies depend on nature and consequently ecological sustainability. The concept of core problem is fundamental for this article. The core problem recognises that achieving and maintaining ecological sustainability is necessary for sustainable development. This puts environmental law in focus. However, most environmental law research over the last 35 years has been reactive — mainly studying law as is and as applied — while the achievement and maintenance of ecological sustainability calls for proactive research aimed at solving global and regional sustainability problems. The answer to the overall question posed in the title of this article is that reactive environmental legal research — especially if carried out within or under pre-environmental or old environmental paradigms — serves to obstruct the development of theory for sustain- able development.

Trevor Daya-Winterbottom

This article interrogates the key environmental law principles from the proposed Global Pact 2017 in the context of current provisions in the Resource Management Act 1991 (RMA) and the indicative drafting of the purpose, principles, and definitions for the proposed Natural and Built Environments Act (NBA) that has been recommended by the Resource Management Review Panel to replace the RMA. The article provides an update on the current status of the Global Pact and the likely way forward at Stockholm+50 in June 2022. Finally, the article presents some conclusions on the potential way forward for domestic New Zealand law.

Sofie Van Canegem 

To mitigate climate change, the international community turned to renewable energy, which adversely affects indigenous peoples. This article assesses the international human rights that renewable energy projects impact upon and identifies the procedural rights that could inhibit such violations. As the procedural rights have been implemented and developed in various ways at national level, the article carries out a comparative study of indigenous peoples’ constitutional rights and institutional representation in New Zealand, Norway and Canada. The article analyses how the different approaches protect indigenous peoples’ rights in renewable energy projects and distils the key elements for a powerful indigenous influence on these projects. The article concludes with a recommendation to the Aboriginal and Torres Strait Islander people regarding their call for a constitutionally recognised First Nations Voice.

Emma Hodder 

This article will examine how assigning legal rights to nature may help to improve the global management framework for transboundary freshwater resources. This could help to address the global freshwater crisis. The article studies national-level rights of nature developments in New Zealand, Ecuador and the United States, and uses this as a basis to explore how language and principles could be incorporated into international law. Ideas proposed include amendments to the existing international freshwater treaty framework, and adoption of a new universal declaration

Guy C Charlton

The 19th century saw the rapid cutover of native forests in Australia, Canada, New Zealand and the United States. Due to concerns about deforestation there arose a nascent conservation movement which publicised the adverse environmental effects of the cutover, fire, wasteful logging practices, and the importance of sustainable forestry practices. Through an examination of the arguments opposing scientific forestry management and conservation, this article discusses how conservation and economic development were understood and changed in the Anglo- American political economy of the 19th and early 20th centuries. The article argues that these 19th-century debates echo opposition to climate mitigation policy today. It concludes that climate mitigation proponents must reconceptualise the notion of public interest and create a more cohesive narrative regarding the desirability of climate mitigation policies.

Henry Sullivan 

The agricultural sector is a major contributor to New Zealand’s greenhouse gas emissions profile. The sector is also economically and socio-culturally important to New Zealand. This tension makes the regulation of agricultural emissions a difficult prospect. In 2018, the Government established the Interim Climate Change Committee to assess how surrender obligations could best be arranged if agricultural methane and nitrous oxide emissions were to enter the New Zealand Emissions Trading Scheme. The Climate Change Response (Emissions Trading Reform) Amendment Act 2020 came into force on 22 June 2020. The Amendment states that livestock emissions will be priced at farm-level and fertiliser emissions will be priced at processor-level from 2025. This article will examine how the pricing of agricultural emissions should be designed according to responsive regulatory theory to better address climate change issues

Kierra Parker 

Climate change poses an existential threat to life on earth. Methane emitted by animal agriculture substantially speeds the pace of global warming. Agriculture is a major industry in New Zealand, occupying approximately one third of all land in the country. Methane released by cattle is the single largest contributor to New Zealand’s greenhouse gas emissions, being almost half of all greenhouse gas emissions. Current legislation and policy are inadequate to sufficiently reduce methane emissions from cattle. Given New Zealand’s economic reliance on agriculture, particularly dairy, it is unsurprising that the sector has avoided significant emissions reduction regulation to date. It is essential that the challenge of reducing methane emissions from animal agriculture is tackled now. This article analyses some regulatory mechanisms which could be implemented to reduce methane emitted by cattle in New Zealand

Pia Jane Domingo Puertollano 

Indigenous cultural property from communities all over the world fill the museum exhibitions of the former colonial powers, and attract millions of visitors every year. Taonga are no exception, having ended up overseas via trade, theft, or in the name of science. However, as the decolonisation of Aotearoa progresses, the call for taonga to be returned has grown stronger. Māori have worked for decades on solutions to bring more taonga back to Aotearoa, but international repatriation is a political process, intended by international instruments to take place between nation states. Māori are therefore limited in their ability to initiate the repatriation process without Crown support. However, the Crown also relies on Māori, to provide oral histories and cultural expertise and care. As such, this article argues that domestic reform is necessary to streamline the repatriation process for Māori and enable greater authority in developing repatriation policy. A new framework can be developed by adapting the Taonga Māori Protection Bill, broadening the scope of the Karanga Aotearoa programme, and integrating complementary tools like digitisation and a taonga registry. These efforts will require collaboration with the Crown, due to its obligations under Te Tiriti, and the partnership envisioned by the Waitangi Tribunal in Wai 262.

Cristin Jamieson 

This article discusses the need for an international treaty on plastic pollution and encourages the New Zealand Government to take action to support this development. The article uses the 2019 report by the Prime Minister’s Chief Science Advisor Rethinking Plastics in Aotearoa New Zealand, as well as other government action on plastics to frame the argument and highlight that New Zealand’s plastic problem is not one that can be solved domestically. New Zealand transitioning to a circular plastics economy is necessary to make changes; however, meaningful results will not occur unless there is collective international action. There is a therefore a need for an international treaty on plastics if New Zealand is to live up to the vision of the Rethinking Plastics report

Stephen Knight-Lenihan

New Zealand’s primary planning legislation, the Resource Management Act 1991, is due to be repealed and replaced. This article reviews from an ecological perspective the proposed replacement, a ‘Natural and Built Environments Act’. The review concludes the replacement is insufficiently clear to deliver the high-level goal of protecting and enhancing the natural environment, and the wording reveals a poor understanding of ecosystem processes. A particular term needing to be removed is “environmental limit”, along with the concept of minimum biophysical states and maximum amounts of environmental harm or stress. Instead, a concept such as “biophysical capacity” should be introduced, drawing on dynamic ecological processes and the need to enhance and restore ecosystems as a primary outcome of environmental legislation. “Capacity” allows for continuing improvements in ecological values, whereas “limits” relate to accounting concepts such as bottom lines and overall benefits across ecological, economic and social domains. New wording is proposed that would at least expose the contradictions inherent in creating legislation aimed at improving ecological outcomes without sufficient use of robust ecological terminology. This could form the basis for further refinement to create more useful legislation

Elizabeth Macpherson, Jill Banwell, Robert Makgill, Adrienne Paul 

This article discusses the implications of the Supreme Court’s decision in relation to the scope and function of the Exclusive Economics (Environmental Effects) Act 2012. The article considers New Zealand’s international obligations and Crown obligations under Te Tiriti o Waitangi/the Treaty of Waitangi when unpacking three key aspects of the ruling. These three aspects are the relevance of international environmental law in New Zealand, the role and importance of tikanga, the treaty and existing interests of iwi and finally the nature and effect of the activity on other marine management regimes. The article approaches the ruling from a broader perspective in terms of environmental law and regulation in New Zealand and internationally.