1. Integrating the ‘normative principle’ of sustainability into Environmental Law David Grinlinton New Zealand Centre for Environmental Law Faculty of Law, University of Auckland d.grinlinton@auckland.ac.nz 7 th Annual Colloquium of the IUCN Academy of Environmental Law Wuhan, China, 1-5 November 2009

2. Outline: Outline:  “ Environmental governance ”  Integrating sustainability into environmental governance  The New Zealand “ model ” of governance  Some criticisms and observations  “ Environmental governance ”  Integrating sustainability into environmental governance  The New Zealand “ model ” of governance  Some criticisms and observations

3. Oceania 1200 miles

4. Geologically mixed & unstable terrain High mountains, glaciers, volcanoes & geothermal activity Temperate climate High rainfall Loss of forest cover Intensive agriculture Geologically mixed & unstable terrain High mountains, glaciers, volcanoes & geothermal activity Temperate climate High rainfall Loss of forest cover Intensive agriculture New Zealand Size - 268,000km 2 Similar size & geography to Japan Similar population & geography to Norway Pop - 4.2 million Most remote OECD country Size - 268,000km 2 Similar size & geography to Japan Similar population & geography to Norway Pop - 4.2 million Most remote OECD country

5. Maori: “tangata whenua” - ‘first peoples’

6. European settlement from late 1700s …

7. Some conflict

8. Pristine physical environment?

9. But... poor land management

10. Introduced species

11. = Depletion of vegetation/habitat

12. = Erosion

13. Open cut mining …

14. Industrial contamination

15. Ecological footprint - OECD 6th highest in OECD

16. Environmental governance? Global Regional National Sub-national Municipal Community Corporate Individual Global Regional National Sub-national Municipal Community Corporate Individual Concentrate on these

17. Integrated environmental governance Requires reform & integration of: administrative/institutional structures policy-making & planning legislation and regulation processes of participation & decision-making operational implementation, including monitoring, EIA, enforcement Under a sound philosophical foundation; ie “sustainability”. Requires reform & integration of: administrative/institutional structures policy-making & planning legislation and regulation processes of participation & decision-making operational implementation, including monitoring, EIA, enforcement Under a sound philosophical foundation; ie “sustainability”.

18. A “model” for environmental governance? Integration of Normative principles (eg ‘sustainability”) [Central government] Integration of Strategic policy-making and planning [Primarily regional and local govt] Integration of Operational planning, consenting, and enforcement [Primarily local government] System attempts to achieve lateral and vertical integration at all levels

19. Environmental law reform in NZ Administrative Reforms: Ministry for the Environment (1986) Parliamentary Commissioner for the Environment (Environmental “Ombudsman”) (1986) Department of Conservation (1987) Local Government reforms (1988-91) Administrative Reforms: Ministry for the Environment (1986) Parliamentary Commissioner for the Environment (Environmental “Ombudsman”) (1986) Department of Conservation (1987) Local Government reforms (1988-91)

20. Environmental law reform in NZ Legislative reforms: Resource Management Act 1991 Replaced 50+ environmental/natural resources statutes Now the “core” environmental statute Other legislative reforms: Mining (1991); Biosecurity (1993); Native forests (1993); Fisheries (1996); Energy efficiency & conservation (2000) Legislative reforms: Resource Management Act 1991 Replaced 50+ environmental/natural resources statutes Now the “core” environmental statute Other legislative reforms: Mining (1991); Biosecurity (1993); Native forests (1993); Fisheries (1996); Energy efficiency & conservation (2000)

21. Resource Management Act 1991 Resource Management Act 1991 Regulates use & protection of land, air and water Central purpose is the “sustainable management … of natural & physical resources” Provides an integrated “effects based” policy, planning and decision-making structure Improves public access to policy formulation, planning & project specific decision –making Improves Maori consultation and participation in system Establishes a specialist Environment Court Regulates use & protection of land, air and water Central purpose is the “sustainable management … of natural & physical resources” Provides an integrated “effects based” policy, planning and decision-making structure Improves public access to policy formulation, planning & project specific decision –making Improves Maori consultation and participation in system Establishes a specialist Environment Court

22. Central statutory purpose, s 5(1) Central statutory purpose, s 5(1) [The purpose of this Act is] … to promote the sustainable management of natural and physical resources … “Natural and physical resources” as defined include: … land, water, air, soil, minerals, and energy, all forms of plants and animals … and all structures [The purpose of this Act is] … to promote the sustainable management of natural and physical resources … “Natural and physical resources” as defined include: … land, water, air, soil, minerals, and energy, all forms of plants and animals … and all structures

23. Definition of “sustainable management”: s 5(2) Complex definition, but simplified: Contemplates enabling communities to provide for their social, economic development and cultural needs, while Protecting the life supporting capacity of the biosphere, and sustaining resources for the foreseeable needs of future generations Sections 6-8 of the Act contain supportive “principles” to be applied by those exercising powers and functions; ie decision-makers; Judges Complex definition, but simplified: Contemplates enabling communities to provide for their social, economic development and cultural needs, while Protecting the life supporting capacity of the biosphere, and sustaining resources for the foreseeable needs of future generations Sections 6-8 of the Act contain supportive “principles” to be applied by those exercising powers and functions; ie decision-makers; Judges

24. The Courts’ interpretation of s 5, RMA The Courts’ interpretation of s 5, RMA Initially the courts interpreted s 5(2)(a)-(c) as constituting an “ecological bottom line” for planning and development More recently the courts have taken an “overall broad judgment” approach to s 5 North Shore City Council v ARC (1997) - “overall broad judgement” approach Genesis Power Ltd v Franklin DC (2005) - “statutory hierarchy” - S 5 has primacy over ss 6-8, RMA Initially the courts interpreted s 5(2)(a)-(c) as constituting an “ecological bottom line” for planning and development More recently the courts have taken an “overall broad judgment” approach to s 5 North Shore City Council v ARC (1997) - “overall broad judgement” approach Genesis Power Ltd v Franklin DC (2005) - “statutory hierarchy” - S 5 has primacy over ss 6-8, RMA

25. How is it meant to work in practice? How is it meant to work in practice? ‘Vertically integrated’ policy and planning system based on ‘sustainability’ purpose of the Act A hierarchy of policies & plans from central to regional to territorial government Applications made to relevant local authority for consent to undertake activities using land, air, water Decisions made based primarily on ‘sustainability’ criteria, but balanced against development needs ‘Vertically integrated’ policy and planning system based on ‘sustainability’ purpose of the Act A hierarchy of policies & plans from central to regional to territorial government Applications made to relevant local authority for consent to undertake activities using land, air, water Decisions made based primarily on ‘sustainability’ criteria, but balanced against development needs

26. RMA System “Failures”  Lack of central government guidance  Restrictions on full public participation  Environmental assessment poor and uncoordinated  Enforcement by authorities ‘light-handed’  Consultation with Maori variable  Lack of central government guidance  Restrictions on full public participation  Environmental assessment poor and uncoordinated  Enforcement by authorities ‘light-handed’  Consultation with Maori variable

27. “Rolling back” the RMA  Reforms in October 2009:  “Fast-track” route for infrastructure development  EPA to be created  More discretionary power to local authorities  Increased costs and reduced rights of public participation  Other reforms:  ETS to be assessed for costs/benefits to economy and may well be jettisoned with NZ pulling back from Kyoto  Conservation land to be opened up for mining  Reforms in October 2009:  “Fast-track” route for infrastructure development  EPA to be created  More discretionary power to local authorities  Increased costs and reduced rights of public participation  Other reforms:  ETS to be assessed for costs/benefits to economy and may well be jettisoned with NZ pulling back from Kyoto  Conservation land to be opened up for mining

28. Some elements for successful governance reform  Sound philosophical foundation for reform – ie, ‘sustainability’  Reform of government and administrative structures  Introduction of coherent, comprehensive & integrated legislation incorporating sustainability purpose  Clear allocation of functions & powers in central & local government  Integrated policy-making and planning, and decision-making  Broad consultation & public participation in policy/plan-making, & consent granting process  Effective mechanisms for enforcement & meaningful penalties for breach  Sound philosophical foundation for reform – ie, ‘sustainability’  Reform of government and administrative structures  Introduction of coherent, comprehensive & integrated legislation incorporating sustainability purpose  Clear allocation of functions & powers in central & local government  Integrated policy-making and planning, and decision-making  Broad consultation & public participation in policy/plan-making, & consent granting process  Effective mechanisms for enforcement & meaningful penalties for breach

29. 谢谢 …. thank you