Volume 29, 2025

Laurie Newhook

This lecture poses three questions: Should there be access to justice for the natural environment? If so, how can this be achieved? Challenges in legal and adjudicatory frameworks? Ecosystem biodiversity” and its importance is first described by reference to pt 2 of the Resource Management Act 1991, and scientific, public policy and philosophical underpinnings. Jurisprudential and academic analysis is considered. International conventions and frameworks are examined, and it is argued that they support an aspirational moral platform for access to justice for the natural environment. Recent jurisprudence supports the presence of obligations at international law. The lecture then analyses the scientific underpinnings, and it is suggested that there is a strong case in current domestic (NZ) law for the protection of whole ecosystem functionality. Relevant writings of celebrated commentators such as Sir David Attenborough and other philosophers and non-fiction writers are examined and critiqued. The work and activities of the Rights of Nature Movement, and the legislative protection in this country for the Whanganui River (Te Awa Tupua Act 2017) are also examined in detail. The legal efficacy of the Act is considered in detail by the author. Challenges are described in detail, including the policy underpinnings and provisions of recent law reforms. International reviews of such legislative styles are discussed and largely supported by the author. The first of the three questions is answered with ease in the conclusion. Harder issues are encountered in answering the second and third questions, particularly in the area of actual and potential challenges.

John Hassan

This paper examines access to environmental justice in Aotearoa New Zealand during the reform of the Resource Management Act 1991, arguing for a paradigm shift in environmental law-making. It emphasises the need to ground environmental regulation in science and mātauranga Māori while strengthening the relationship between environmental law, tikanga, the Treaty of Waitangi, and kaitiakitanga. It concludes that environmental practitioners have an important role in rebuilding public confidence in environmental law and safeguarding access to justice for present and future generations.

Bella Belcher

States party to the Paris Agreement 2015 (PA) must submit a nationally determined contribution (NDC) every five years that represents a progression and its highest possible ambition under art 4(3). These normative standards can guide States and serve as a tool for external parties to hold States accountable for mitigation efforts (or lack of ). However, these standards are ill-defined, limiting their operationalisation. This article aims to address this by proposing a four-stage assessment of what these norms may require. First, a State’s capability to mitigate emissions — rather than its fair share — should be determined (step one). Second, all States must give due regard to relevant CMA guidance when preparing their NDCs. When deciding upon the NDC’s substantive contribution, each State must ensure that this target is reasonably coherent with its preparation stage findings (step two). Whether a State’s differentiation adjustments to its NDC were reasonable should then be evaluated by assessing whether coherence has been maintained between the preparation stage findings and the NDC’s substantive contribution (step three). Finally, an effort-based assessment can be used to objectively evaluate the intensity of a State’s effort overall and whether this fulfils what the art 4(3) norms may require based on this article’s interpretation (step four). Finally, this article will evaluate New Zealand’s NDC-2 using these steps, concluding that NDC-2 cannot likely represent a progression/highest possible ambition as required by art 4(3) of the PA.

Lily Rose Gholam Hosseini

This article examines the evolution and operation of Aotearoa New Zealand’s mandatory climate-related disclosure (CRD) regime, introduced in 2021 as a world-leading framework to embed climate risk into financial decision-making. Following its first year of implementation, the regime attracted significant criticism from reporting entities and market participants regarding its practical operation. In response, the Ministry of Business, Innovation and Employment released a discussion paper in December 2024 proposing reforms to address these concerns. This article evaluates the two most contentious aspects of that consultation: listed issuer reporting thresholds and director liability. The analysis is guided by the core objective of the CRD regime: ensuring that the appropriate entities are captured so that climate reporting supports New Zealand’s transition to a low-emissions economy without imposing unnecessary barriers to doing business. Drawing on regulatory theory, stakeholder submissions, comparative analysis, and enforcement practice, the article argues that many critiques of the regime are overstated. It concludes that maintaining the existing threshold and liability settings is generally appropriate for New Zealand’s market context, provided they are supported by targeted refinements, enhanced guidance, and proportionate enforcement. Rather than structural reform, incremental and evidence-based adjustments are recommended to preserve the regime’s integrity, support capital allocation towards climate-resilient activity, and ensure its long-term credibility.

Justine Bendel and Giedre Jokubauskaite

Environmental impact assessments (EIAs) have become a ubiquitous tool of environmental governance. In this article, we argue that EIA is a tool that implicitly prioritises development at the cost of environmental and social protection and is part of a paradigm of legal thinking that is increasingly outdated in the context of climate emergency. By examining the shared pedigree of EIAs that can be traced back to the 1969 National Environmental Protection Act (NEPA) in the US, which we call a “NEPA blueprint”, we identify two key problems with EIA’s design: an unfettered discretion of authorities promoting the project; and exclusion of the people most affected by the projects enabled by EIAs. We argue that these problems have been exacerbated when EIAs have been transplanted onto the international level, where it acquired a customary status. Using forest governance to demonstrate how EIA enables developments leading to deforestation in practice, we suggest integrating legitimate tenure rights into the EIA, to tackle the issues of discretion and exclusion. Human rights jurisprudence that recognises a crucial role of tenure rights holders in decision-making provides an inspiration for how such a proposal could be imagined and implemented in practice.

Mark Hamilton and Ellie Stanton

Environmental crime not only harms the physical environment (trees, plants, animals) but also communities and individual connection with the environment. Restorative justice conferencing (a face-to-face encounter amongst stakeholders to a crime) attempts to understand the impacts of the crime and repair the harm occasioned. In New Zealand, a back-end model has been used which embeds conferencing in the prosecution process. While there have been reported to have been 73 such conferences between the commencement of the Sentencing Act 2002 on 30 June 2002 and 31 December 2024, we have the names of 60 judgments which have considered a restorative justice process. This article brings together those judgments for analysis and commentary, and quite simply as a central repository of such judgments which can be expanded as time goes by.

Maria Bargh and Estair Van Wagner

Unilateral Crown decision-making power over minerals and a lack of reciprocity with tangata whenua (Māori Indigenous People of the land) and the more-than-human world have long characterised New Zealand mining law. Here we examine the emergence of “critical minerals” narratives in Aotearoa and consider the implications for how we shape the transition away from a carbon-based economy. We argue that critical minerals narratives are reinforcing extractivism and undermining Te Tiriti relations. In our view, there is still an opportunity to resist mining exceptionalism and build a low-emissions society. However, an effective and just framework for energy transition in Aotearoa must uphold and support tikanga (Māori customary values and practices or Māori system of law) and Te Tiriti o Waitangi as core elements of a just transition.

Faye Busfield

Ongoing escalation of climate change impacts now threatens Māori in Aotearoa New Zealand with climate change-induced cultural loss. Cultural loss is a type of non-economic loss and damage in the climate change regime. The remedial basis to loss and damage provides that Māori should have access to procuring compensation from the Crown for suffered cultural loss. This article analyses international and Te Tiriti o Waitangi obligations as compensatory approaches to Māori claimants. The recent International Court of Justice Advisory Opinion on State obligations arising from climate change supports the international obligations approach. The duty to prevent significant harm to the environment and international human rights law are applied to the issue of Māori cultural loss. The Te Tiriti approach engages with the Crown’s obligation to protect the undisturbed exercise of tino rangatiratanga (autonomy and full authority) over Māori properties and interests, and the Treaty principle of partnership. The loss and forced relocation of a marae following Cyclone Gabrielle is used as a case study to analyse the applicability of each approach. The fit-for-purpose mechanism of the Waitangi Tribunal to provide a contextualised assessment of cultural loss suffered by Māori situates New Zealand distinctively in the loss and damage literature. The government’s conservative approach towards fulfilling climate change obligations and Te Tiriti is a significant challenge to both approaches. Comparatively, the author finds that Te Tiriti is the preferred approach, largely for its inherent capacity to encompass the significance of the considered cultural loss holistically.

Ashe Wainui-Mackle

Climate change poses an existential threat to societies across the globe. Associated effects of climate change, including rising sea levels, are set to disrupt economies, cause damage to settlements and threaten human life. However, these impacts of climate change are unlikely to be felt evenly. Indigenous peoples, including Māori, are especially vulnerable. In response to such a threat, governments the world over, including that of New Zealand, are beginning to recognise the need for comprehensive managed retreat legislation, through which people and assets are to be moved out of the way of coastal inundation and erosion. In designing a dedicated framework for managed retreat, the New Zealand Government must address this disproportionate vulnerability, especially in light of its obligations under Te Tiriti o Waitangi | the Treaty of Waitangi. The patchwork assembly of current statutory powers that enables New Zealand authorities to move people and assets out of harm’s way is inadequate for such a coordinated retreat from the coast. Furthermore, the current statutory powers do not allow for managed retreat in a way that is consistent with the Crown’s Treaty obligations. This article argues that separate spheres of influence for hapū and iwi (primary kinship groups and collectives of related hapū) and for the Crown should be provided for through managed retreat legislation. To achieve this, the legislation should establish bespoke Māori managed retreat authorities for hapū and iwi across New Zealand. Doing so would best give effect to principles of tino rangatiratanga (autonomy and full authority), houruatanga (partnership) and active protection, while addressing the disproportionate impacts of rising sea levels on Māori.

Caroline E Foster

The Sustainability Revolution in International Trade Agreements edited by Geraldo Vidigal and Kathleen Claussen offers a wealth of insights at the developing edge of the law on sustainability in international trade agreements. The volume is dedicated to an examination in three parts of legal, political and economic effects of including sustainability provisions in trade agreements, related advances, and the future outlook. Each of the 24 chapters offers a relatively short read, and a good number of them pack a solid intellectual punch when it comes to advancing thinking in this vital field.