Volume 22, 2018

Articles in Volume 22 of the New Zealand Journal of Environmental Law, 2018.

The German approach to Sustainability and its New Zealand Equivalent

Martin Kment

Sustainability has become an important principle of international public law. It is recognized in almost all fields of law and shows a significant impact on many national legal systems. This article examines the historical development of sustainability and its implementation into European and German constitutional law. It also analyses the normative inclusion of sustainability in German administrative provisions, in particular in environmental and planning law, and exposes the shortcomings of the German approach. With reference to the New Zealand Resource Management Act this article, finally, aims to detail sustainability in terms of content as in the German legal system sustainability has to be named and sharpened via directional political decisions in order to make it (more) tangible for legal practitioners.

Environmental Trusteeship of the Global Commons: Can New Zealand Take the Lead

Hannah Prior

At the beginning of the twenty-first century, humankind’s dependence on the life-sustaining commons of the planet, in the first instance the climate, has become more obvious than ever before. Humanity’s collective impact on the planet’s natural systems has led some to herald that we are seeing a shift from one geological age, the Holocene, to a new geological age, the Anthropocene, distinguished by the planetary-scale influence of humankind. The influence of human behaviour on the atmosphere and other natural systems is so significant, it is argued, as to have ushered in a new ecological epoch”. This paper explores the concept of the global commons and the challenges they face at this juncture of human history. It endeavours to understand the role that states, acting as environmental trustees, can play in ensuring the restoration, sustainable use and preservation of Earth, our home, for future generations. It also contains an analysis of the development of the concepts of rights for nature and legal personality, and their role as tools of trusteeship. It looks closely at the case of New Zealand and seeks to understand whether recent developments in law and resource management are giving meaningful effect to the concept of trusteeship, and what learnings might be applied to global commons governance.

Marine Genetic Resources in Areas beyond National Jurisdiction

Anja Morris

In resolution 69/292 the General Assembly of the United Nations established a committee to develop a legally binding instrument to regulate marine biodiversity in areas beyond national jurisdiction. This included the management of marine genetic resources (MGRs) in these areas.
The essay aims at providing an opinion on the international management of the marine genetic material beyond national jurisdiction. To assess possible regulations, existing regimes for managing similar resources will be discussed. The most central regulations are the United Nations Convention on the Law of the Seas (UNCLOS) management of fish stocks in the high seas and the management of minerals in the Area and the Convention on Biological Diversity (CBD).
The assessment of possible regulation will be based on the recommendation for an implementation agreement on the binding legal instrument to manage biodiversity at the high seas presented by the Preparatory Committee, and the submissions of states on the issue. There are still many aspects of the implementation agreement where the works of the Preparatory Committee is incomplete, which needs to be addressed. Issues that still need to be addressed include questions such as if the concepts of common heritage of mankind (CHM) or freedom of the high seas should be used, whether access to MGR’s should be regulated, what type of benefit that should be shared, or if the instrument should regulate the relation to intellectual property rights.
Some states believe that MGRs in areas beyond national jurisdiction fall within the existing regimes of or the freedoms of the high seas in UNCLOS. MGRs do not appear to fit within any of these regimes, so a more pragmatic approach of access and benefit sharing might be a better solution.
If benefits are shared, there is no real need to regulate access to MGRs. Non-monetary benefit sharing is the most essential, since this increases the general knowledge and development. Non-monetary benefit sharing can be combined with intellectual property rights (IPRs), but this creates a risk of overpricing vital products. An alternative is therefore to create a reward system for bioprospecting of MGRs in areas beyond national jurisdiction.

A Critical Analysis of the Incorporation of Tikanga Māori in Decisions on Genetic Modification

Olivia Oldham

Many Māori have asserted that genetic modification contravenes tikanga Māori in a number of ways. The majority of decision-making on genetic modification in New Zealand carried out under the Hazardous Substances and New Organisms Act 1996. This paper discusses the ways in which tikanga Māori is incorporated into that decision-making process. It is argued that substantive and procedural barriers have prevented tikanga from being effectively considered. The failure to adequately incorporate tikanga into decisions is argued to be inconsistent with core principles of te Tiriti o Waitangi – particularly partnership and tino rangatiratanga. Attempts have been made to improve decision-making practice over recent years, but the underlying bias in favour of a ‘Western’ scientific world-view has not been adequately addressed. This paper recommends four legal and practical changes which would increase the ability for tikanga Māori to be taken into account.

Contributions of philosophy and psychology towards understanding the effectiveness of environmental law in a New Zealand context

Madeline Seaman

New Zealand is an ecologically unique landmass characterised by the radiation of species in the almost complete absence of mammals. To manage its unique environment New Zealand’s landmark Resource Management Act (1991) was conceptualised and brought into legislation by a forward-thinking Labour government elected in 1984. The RMA is informed by concepts of sustainable development such as intrinsic value for the environment and preservation of natural resources for future generations. Despite being surrounded by pristine wilderness and ways of conceptualising the world embedded in Te Ao Māori (Māori worldview), which has a deep ecological ethic, the RMA has failed to effectively manage New Zealand’s environmental ecosystems. New Zealand has the highest share of greenhouse gas emissions in the OECD, 40% of which comes from agriculture. How and where has its environmental strategy gone so awry? It is argued that the thinking, Western thinking, that has produced the RMA is fundamentally flawed when it comes to considering the environment. This is because of the disembodiment of the western person who acts within systems that value extrinsic factors such as money, status and power that in turn contribute to ecologically destructive behaviours. The disembodiment of the western person has separated them from nature to the point where they are unable to see past its objective properties and truly understand how connected everything is. The truth of the matter is, humans are physically constructed from nature, humans are the environment in every behaviour that they perform. Every behaviour each individual performs has an effect on the group through the psychological concepts of identity formation and modelling and copying of behaviours. It is therefore imperative that the legal system considers humans and the environment as one single system. The factors that contribute to a human being able to flourish in an ecologically conscious way; a way where their true health and wellbeing is acknowledged and supported by a sovereign state that acts as a trustee and guardian for the environment of which its’ people are inherently imbued.

Privacy versus views: a law and economics approach to balancing conflicting urban values

Kevin Counsell

In 2015 the “Oriental Bay fence case” of Aitchison v Walmsley hit the New Zealand headlines. The widely-publicised case centred on a conflict between neighbours in a Wellington hill suburb, with the Walmsleys having built a large fence-like structure to provide for their privacy, but which had the effect of obscuring the Aitchisons’ panoramic views. While a long court process ensued, at it is heart it was a simple matter than many urban households could relate to: a conflict between competing urban values, of privacy versus views. This conflict illustrates the economic concept of externalities, which arise when one party’s actions harm another party. Despite this harm often seeming to come from only one side, Aitchison v Walmsley shows the reciprocal nature of externalities. That is, externalities arise when two (or more) parties want to use the same scarce resource, but in inconsistent ways. In this case, while one party desires privacy, the other desires views. The question then is how such externality problems can best be resolved. Two principles from the field of law and economics assist in answering this. One, the Coase theorem, shows how externality problems can be resolved by private agreement between the relevant parties. The other, the Hobbes theorem, provides an approach when private agreement breaks down, and an authoritative third party, such as a court or government, is required to determine the outcome. Both approaches provide a strong conceptual foundation for robust legal and economic analysis that can balance conflicting values in a way that best benefits society.

The New Zealand and German Legal Waste System

Benedikt Miller

Coffee to go, single-use plastic bags, vegetables and fruits wrapped in plastic packaging, plastic cutlery, plates and cups – everyday life is flooded with waste. Especially plastic waste became indispensable in our modern lifestyle. In contrast, the negative effects of waste and the question what happens after it is thrown away are often excluded and not addressed in this context.
This essay wants to pursue this issue and deals with the legal waste systems of two industrial states: New Zealand and Germany. The objective of this paper is to examine the similarities and differences between both regimes in order to assess if they can provide appropriate answers. The current waste situations in both countries as well as their embedment in the legal framework of international obligations and national legislation are discussed. The focus is set on the main pieces of legislation in waste management law – the New Zealand Waste Minimisation Act 2008 and the German Waste Management Act (KrWG). It will be seen that both countries are facing big waste problems and challenges of the 21st century even though their international images suggest something else: there is the ‘clean and green’ New Zealand with its magnificent sceneries and nature and Germany with its high international reputation in waste separation and recycling technologies. There might be different starting positions and different ways to deal with those challenges – but finally the problems are the same. At the end, some political and social movements and the promised waste policies of the newly elected New Zealand government are outlined in the light of recent events.

Local Government Strategies to Reduce GHG Emissions

Victoria Edmonds

This report discusses the various multi-disciplinary strategies that have been adopted by six leading cities’ in terms of reducing greenhouse gas emissions (GHG) and meeting their targets to help prevent and adapt to climate change. The cities that have been chosen are all part of a leadership programme titled “c40 Cities”, which are cities’ (both developed and less developed alike) around the world that are making a meaningful impact in reducing both GHG and the risks from climate change through the creation of strategies and other measures. The network was created to facilitate interactions between the cities, and encourage learning and collaboration in combating climate change at the local level.

Each city has one or more over arching strategies for GHG emission reduction and/or climate change adaption, and within these are ground level implementation strategies (also referred to as policies, measures or tactics) that have been, or will be implemented to reach the cities goals that have been set. The strategies that the cities’ have created to help reduce GHG emissions range from simple steps to robust programmes or services that each city will offer or collaborate with the public/ private sector to implement. This report will outline the GHG emission reduction target is discussed in terms of each city, with the relevant strategies stated.

The strategies are then allocated into a list of categories, which are all related to methods used to reduce GHG emissions. By doing this, the similarities that the cities strategies possess are brought to light, and it also shows why some cities might be doing better than others in terms of covering all reduction methods.

The report concludes by evaluating the cities strategies that are the most effective and innovative. This entails at least one strategy from each country that has proven results in terms of real world impact on GHG emissions for that city.

Putting a Price on Freshwater in New Zealand: Can we afford not to?

Hannah Watson

Intensification of the agricultural sector, increased competition and over-allocation of water resources have led to adverse effects on freshwater quantity and quality in New Zealand. The current freshwater management regime under the Resource Management Act 1991 is struggling to adequately manage this important resource. One possible reason for this is that management decisions around freshwater proceed on the basis that water is a ‘free’ resource. A water abstraction charge can be an economic tool used to account for the value of water. However, the proposition of a charging regime has been met with strong resistance, with claims that imposing a charge on freshwater asserts ownership by the Crown, which would result in Treaty of Waitangi claims by iwi. This paper considers whether ownership is a necessary requirement for the establishment of a water abstraction charge and examines current royalty regimes for natural resources that are not owned by the Crown. This paper determines that the Crown can impose a charging regime on water abstraction, without needing to own freshwater in its natural state, through the exercise of its sovereign rights to manage natural resources. Māori rights in water are currently “unascertained” and determination of these rights may affect the design of a charging regime. If Māori proprietary rights are recognised, a share in the amounts collected from a water charge, or some form of co-management arrangement in regard to the distribution of the funds collected from the charge may need to be investigated. A charging regime could be implemented by simply amending sections 112(2) and 360(1)(c) of the RMA to include water permits issued for the taking of freshwater. A water abstraction charge can be used to raise revenue, which can then be directed into funding water restoration projects. If volumetrically-based, a water abstraction charge can also encourage more efficient water use. Thus, a water charging regime can be used alongside other freshwater management approaches under the RMA to better achieve sustainable management of New Zealand’s freshwater resources.