Volume 27, 2023

James Palmer

This lecture discusses the challenges of translating resource management policy and legislation into meaningful environmental outcomes in New Zealand. The paper highlights the limitations of the Resource Management Act 1991, the practical difficulties of freshwater management and the need for environmental decision making to respond more effectively to climate change and uncertainty about the future. It is argued that legislative reform alone is insufficient and the paper emphasises the importance of better information and data, giving effect to te Tiriti o Waitangi, and the need for greater shared responsibility and a sense of urgency in decision making. 

David Kirkpatrick

This paper examines the continuity within New Zealand’s environmental and planning law following the enactment of the Natural Built Environment Act 2023 and the Spatial Planning Act 2023. It considers aspects of the previous Resource Management Act 1991 that remain the same, including the role of the Environment Court, evidential processes, the distinction between submissions and evidence, and plan-making. It also discusses procedural development, the recognition of te Tiriti o Waitangi and tikanga Māori, and the importance of professional conduct and wellbeing in environmental proceedings. 

Georgina Lyes

This article addresses the role of the courts in climate change governance and considers possible avenues for involving the courts to compel government towards climate change action in Aotearoa New Zealand. The use of tort arguments in climate change litigation and its applicability in the New Zealand courts is argued as placing untenable strain on long-standing doctrines. Finally, the largely unexplored potential for administrative law as a mechanism for compelling the New Zealand Government to take climate action is explored, suggesting that a public law approach is best placed to accommodate the legally disruptive nature of climate change.

Oliver Fredrickson

In the first 60 days of 2023, Aotearoa New Zealand experienced consecutive catastrophic weather events. Fifteen people dead, hundreds more injured, and billions of dollars in property damage. Reflecting on this, the Minister for Climate Change quickly commented that it is “clear that some areas of New Zealand may not continue to be habitable going forward”. Communities in these areas now face a sobering reality: rebuild and risk future harm or retreat and seek refuge in new and safer locations. In the past few months, this latter option — known as managed retreat — has been launched into the national discourse. Aotearoa does not yet have a national managed retreat policy. The previous government was expected to introduce a “Climate Adaptation Act” later in 2023 which was intended, among other objectives, to address the “complex technical, legal and financial issues associated with managed retreat”. This would have been a positive step, but it is now uncertain whether this measure will be progressed by the incoming National-led coalition government. Such a measure should also address the manifold environmental justice issues associated with managed retreats. International experiences confirm that managed retreats can perpetuate or exacerbate societal inequities and disproportionately impact vulnerable communities. Building on these experiences, this article argues that managed retreats in Aotearoa should be discussed, deliberated and delivered with reference to the twin pillars of environmental justice: procedural justice and distributive justice.

Pooja Maharaj

Responding to New Zealand’s recent recognition of the resource management regime’s role in mitigating climate change, this article considers how an activity’s downstream Scope 3 greenhouse emissions (indirect emissions) should be regulated in the regime. The article compares the planning framework and consenting processes as distinct tools to address indirect emissions, finding that the planning framework offers many benefits to achieve a consistent and strong approach to reducing emissions through national direction. It also considers the benefits of addressing indirect emissions through consent decisions, looking at how environmental impact assessments can develop methodologies to assess indirect emissions. The article analyses whether the rule of law dictates a certain approach to addressing indirect emissions in the regime, finding that the rule of law imposes some parameters on consent decision-makers. Ultimately, it suggests that planning documents and consenting processes offer both benefits and shortfalls in addressing indirect emissions, but that strong national direction presents an attractive opportunity to provide a consistent, streamlined and effective approach to addressing indirect emissions. Accordingly, New Zealand must carefully consider how to address indirect emissions throughout the regime, ideally starting at the top of the planning hierarchy, to ensure New Zealand meets net zero.

Jeannine Cheong

This article investigates whether local authorities in Aotearoa New Zealand can effectively safeguard the environment from adverse effects caused by plantation forestry activities by relying solely on a “permitted activity” approach to managing those activities. This question arises in the aftermath of ex-tropical Cyclone Hale and tropical Cyclone Gabrielle in early 2023, where the mobilisation of woody debris and sediment caused extensive damage to land, property, infrastructure and lives. This has prompted debates on who is to blame — local authorities for inadequate compliance monitoring and enforcement or forestry companies for their poor practices. This article examines the potential underlying causes of the “forestry slash” issue, including the permissiveness of the National Environmental Standards for Plantation Forestry (NES-PF), forestry management practices, and local authorities’ monitoring and enforcement efforts. It also explores legal avenues available to affected parties and to hold accountable those responsible for the damage. While this article focuses on the heavily impacted Tairāwhiti/Gisborne and Wairoa regions, the findings would be relevant to any region engaging in plantation forestry activities. Considering the intrinsically high-risk nature of plantation forestry activities and the possibility of irreversible environmental damage, such as loss of ecosystems and lives, this article advocates for a precautionary and proactive approach to address root causes and mitigate the impacts of future extreme weather events on the country’s environment, economy, and overall wellbeing of the population.

Michael Hansby

New Zealand’s newly elected government intends to divert the course of freshwater management set by the previous government by repealing legislation relating to “Three Waters” and the new resource management regime. Regional councils can now expect to retain autonomy over water assets, but will be required to deliver plans to central government demonstrating that water services will meet quality standards and are financially sustainable in the long term. In devising these plans, councils may well need to consider imposing a fee or tax on water takes, beyond any existing volumetric charges which some councils already can and do impose to cover the costs of water. This article recommends that councils consider imposing a Pigouvian water tax where appropriate.

Bella Rollinson

This article considers sovereignty in Aotearoa New Zealand’s Exclusive Economic Zone (EEZ), in particular, the relationship between the United Nations Convention on the Law of the Sea (UNCLOS) and Māori sovereignty under tikanga. It challenges readers to reconceptualise the concept of sovereignty and view it from a te ao Māori perspective. It argues that Māori have and retain sovereignty over the EEZ, but this was not recognised during UNCLOS negotiations nor in the final convention. The United Nations Permanent Forum on Indigenous Issues has recognised that current UNCLOS practices do not recognise the rights set out in the United Nations Declaration on the Rights of Indigenous Peoples. This article discusses how UNCLOS and Māori sovereignty might be reconciled. The concept of “sovereign rights” under UNCLOS is inconsistent with Māori sovereignty. In light of that restriction, New Zealand must seek to enable the practical exercise of Māori sovereignty in its domestic law to the greatest extent possible. Current domestic law governing the EEZ does not achieve this. This article recommends that any reform should draw on the work of the Wai 262, Matike Mai and He Puapua reports. In some areas, the kāwanatanga (Crown) sphere must interface more effectively with tikanga; in others governance should take place in a joint sphere of influence which recognises both Crown and Māori authority; and in others the tinorangatiratanga (Māori sovereignty) sphere should have full control. This article sets out some EEZ-based examples where each model could be applied. It concludes by urging law- and policy-makers to embrace the wealth of te ao Māori in a way that recognises the true plurality of power in Aotearoa New Zealand.

Josh Ellwood

The International Court of Justice (ICJ) inches towards the hot-tubbing of experts in the Dispute over the Status and Use of the Waters of the Silala. This article assesses the ICJ’s growing capacity to procure accessible scientific evidence from party-appointed experts. While the Court did not provide desired clarity over international watercourse law, its directive for Chile and Bolivia to submit expert summaries facilitated the Parties to agree on almost all issues. The ICJ should continue to pursue expert hot-tubbing, especially in more contentious environmental law cases.

Justin Sobion

This comment sets out a brief history and status of the International Court of Justice Advisory Opinion (ICJAO) on climate change, and the critical role that the youth, small island developing states, and the science could play in the framing of an ambitious advisory opinion.

Airu Teng

This case note examines the Supreme Court’s decision of Port Otago Limited v Environmental Defence Society. This case concerns the tension between the efficient and safe operation of ports and avoiding the adverse environmental effects that may be caused by the operation, as regulated by the New Zealand Coastal Policy Statement (NZCPS). This case also clarifies the relationship between the NZCPS and lower-level planning documents made pursuant to the NZCPS. This note concludes that the Court has relaxed the strict approach it had taken in Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd, but whether its reasoning applies outside of the NZCPS context is yet to be confirmed.

Caroline E Foster

Litigating the Environment: Process and Procedure Before International Courts and Tribunals by Justine Bendel analyses how international courts and tribunals can respond procedurally to environmental cases. Focussing on the International Court of Justice, the International Tribunal for the Law of the Sea and international and arbitral tribunals, the book addresses dimensions of international adjudication including access to international courts and tribunals, scientific evidence, provisional measures, and remedies. Its key message is that international courts and tribunals have the potential to adequately address international environmental cases, due to their capacity for procedural dynamism and adaptation.

Martin Kment

The Future of Environmental Law: Ambition and Reality by Stefan E Weishaar and Kars J de Graaf examines how environmental law can respond to future challenges and reach sustainability goals. The book brings together contributions addressing international environmental law, sustainability, energy transition, environmental litigation, and emerging environmental challenges across different legal contexts. The book’s comparative and interdisciplinary approach provides a strong foundation for further research and demonstrates the potential for innovative legal approaches to environmental sustainability.