RM Theory & Practice Vol 8 (2012)


Resource Management Theory & Practice Vol 8 (2012) focuses on the developing jurisprudence of New Zealand environmental and resource management law and our place in the world; hei whakapae ururoa – OUT OF STOCK

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The aim of Resource Management Theory & Practice is to provide a vehicle for in-depth analysis of resource management issues relevant to the New Zealand and Australian scene.

Resource Management Theory & Practice Vol 8 (2012) focuses on the developing jurisprudence of New Zealand environmental and resource management law and our place in the world; hei whakapae ururoa – OUT OF STOCK

Editorial introduction:
Trevor Daya-Winterbottom, General Editor

On behalf of the Resource Management Law Association of New Zealand Inc (RMLA), I am pleased to present the 2012 volume of Resource Management Theory & Practice. This volume of the journal focuses on the developing jurisprudence of New Zealand environmental and resource management law, and our place in the world: hei whakapae ururoa.

This theme is reflected in the papers included in this issue of the journal. The 2012 volume of Resource Management Theory & Practice also marks a number of significant events. First, the retirement of Dr Mike Patrick, our resident scientific member of the Editorial Board since 2002. Secondly, the retirement of Helen Atkins from the Editorial Board after completing her two-year RMLA presidency. Thirdly, it marks new beginnings with Professor Bruce Clarkson, Director of the Environmental Research Institute at the University of Waikato, agreeing to join the Editorial Board to add depth to our coverage of science and engineering matters; and Blair Dickie joining the Editorial Board following his election as RMLA president.

More importantly on the international scene, 2012 celebrates the birth of the environmental movement with the publication of Silent Spring by Rachael Carson 50 years ago in 1962, and Should Trees have Standing? by Christopher Stone 40 years ago in 1972. These seminal publications provided the catalyst for the ban on DDT use in the USA and the establishment of the US Environmental Protection Agency. In New Zealand, they provided the impetus for the foundation of the Environmental Defence Society which celebrated its 40th anniversary in 2011. This year we also celebrate the 20th anniversaries of the Earth Summit in Rio de Janeiro, and the founding of the Resource Management Law Association, which remains the largest multi-disciplinary environmental law association by membership in the Commonwealth. Next year will see the 60th anniversary of the enactment of the Town and Country Planning Act 1953 that established the Planning Tribunal which, as the Environment Court, remains the longest standing environmental court: an idea clearly well ahead of its time.

When looking ahead towards 2000, Professor Nicholas Robinson of Pace University, New York, identified two basic foundations for environmental law in his keynote speech at the RMLA 5th Annual Conference in 1997: that environmental law should be based on sound environmental science and on environmental ethics, by drawing on the body of reasoned analysis found in the common law or in customary law.

The paper by Austin Forbes QC on the post-earthquake experience in Canterbury emphasises that reasoned analysis founded on the common law includes the principle of administrative justice. This should inform both how we reform the law and how we resolve environmental conflicts. For example, infrastructure provision is important for ensuring the sustainability of communities and the competitiveness of the national economy, but despite significant debate about infrastructure during an intense period of resource management reform since 2005, how we provide for infrastructure remains a contentious issue. Professor Robinson suggested that comparative legal analysis “can provide instructive insights”, and the paper by Sarah Nolan addresses this need by commenting on recent UK reforms from a New Zealand perspective. Similarly, the paper by Kate McArthur confirms the need for sound environmental science as the foundation for regional rules on water quality.

The paper by Judge Michael Rackemann of the Queensland Planning and Environment Court continues the journal’s focus on environmental adjudication and expert evidence. His views regarding expert witness caucusing and the timing of caucusing meetings were cited with approval by Judge Laurie Newhook of the New Zealand Environment Court in a recent paper given at the RMLA 19th Annual Conference, 6 – 8 October 2011, Hamilton, and subsequently published in the Resource Management Journal.

The paper by Marlene Oliver also contributes to this debate, and provides careful analysis of the benefits of court annexed mediation as an alternative method of non-adversarial conflict resolution.

The paper by Derek Nolan, Bal Matheson, James Gardner-Hopkins and Bronwyn Carruthers on improving the plan process under the Resource Management Act 1991 (RMA) addresses another contentious issue that continues to haunt the resource management reform process. Administrative justice is central to resolving environmental conflict about proposed plan rules. Professor Barry Barton of the University of Waikato has emphasised the constitutional nature of the procedural guarantees provided by the RMA’s submission, hearing and appeal process regarding plan rules, in the absence of any statutory provision for compensation where rules have an adverse effect on reasonable use of the subject land.6 Similarly, commentators in Australia and the UK have also confirmed the importance of specialist, independent, merits-based adjudication for environmental conflict resolution, in preference to relying on judicial review by courts of general jurisdiction.

As we prepare for the Rio+20 Earth Summit in Rio de Janeiro, 20 – 22 June 2012, it is useful to take stock of New Zealand’s progress during the intervening years. When measuring performance under the RMA in the lead-up to the Rio+10 Earth Summit in Johannesburg in 2002, Denise Church, then Chief Executive of the Ministry for the Environment, observed:

What matters most is that we define, and work towards, all of the ingredients of good process, relevant to all decision makers and find ways of measuring performance. This might, at last, allow us to move on from our fixation with process, to what matters most of all — how we address the gap between New Zealand’s clean and green image and reality, and reduce the current risks to our health, our environment, and our future economic prosperity.

Arguably, we remain locked in the same debate about process as we prepare for the Rio+20 Earth Summit. In the intervening period the global environmental debate has continued to generate new ideas. For example, the publication of Wild Law by Cormac Cullinan in 2002 has been taken up enthusiastically by other environmental law associations in the Commonwealth; new specialist environmental courts have been established in more than 40 countries, and the New Zealand Environment Court has come of age gaining international recognition for best practice as “a streamlined, comprehensive one-stop shop for litigants with broad and effective remedies”. Any reform of RMA plan appeal rights will therefore require careful consideration. The significant paper by Robert Makgill on the new foreshore and seabed regime clearly illustrates the influence of common law and customary law in developing New Zealand environmental law, and is republished in this journal by kind permission of the author and the New Zealand Law Society. Finally, looking ahead, the 2013 volume of Resource Management Theory & Practice will focus on risk and resilience in the context of the developing jurisprudence of Australian and New Zealand environmental and resource management law.

General Editor:
Trevor Daya-Winterbottom

Editorial Board:
Bruce Clarkson
Trevor Daya-Winterbottom
Blair Dickie
Wayne Gumley
Caroline Miller
Royden Somerville QC