RM Theory & Practice Vol 10 (2014)


Resource Management Theory & Practice Vol 10 (2014) focuses on the ongoing debate about streamlining and simplifying resource management law, and the need to develop a coherent, systems based, body of law.

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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 10 (2014) focuses on the ongoing debate about streamlining and simplifying resource management law, and the need to develop a coherent, systems based, body of law.

Editorial introduction
Trevor Daya-Winterbottom, Founding General Editor

On behalf of the Resource Management Law Association of New Zealand Inc (RMLA), I am pleased to present the 2014 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 the tensions inherent in securing economic prosperity through more productive use of resources while ensuring that New Zealand’s unique natural resources are sustained. For primary production economies, addressing these challenging issues requires reconciliation via the process of preparing policy statements and plans, and deciding resource consent applications, within the context of the governing statutory regime. These issues were highlighted at the 2013 RMLA conference held in New Plymouth, in the specific context of dairy and petroleum – the two major industries in the Taranaki region.

The ongoing debate about resource management law reforms also provided an opportunity to reflect on how we address these broad issues. Subsequently, the intervention of the 2014 general election paused the reform process, and the publication of this 10th anniversary volume of the journal will, hopefully, contribute to the process of reflection before the proposed statutory reforms are introduced and debated via the Parliamentary process.

This issue of the journal therefore includes Sir Geoffrey Palmer’s insightful keynote paper from the 2013 RMLA conference on the resource management reforms, and continuing with the broad theme of developing a principled approach to resource management law the journal also includes Chief Justice Sian Elias’ Salmon Lecture paper together with scholarly analysis of sustainability by Dr Laura Horn from the University of Western Sydney. A key influence on reform, whether in relation to national legislation or subordinate policy statements and plans reviewed or changed by local authorities, is the evaluation of issues, options, and alternatives; and this journal includes a careful economic analysis of the 2009 amendments to s 32 of the Resource Management Act 1991 (RMA) by Kevin Counsell and James Mellsop of NERA Economic Consulting. Policy choices often involve “wicked” or difficult questions, and Environment Judge Jackson (writing extra-judicially) and Associate Professor Nicola Wheen from the University of Otago consider the sometimes intractable issues of protecting outstanding natural landscapes and marine mammals.

Continuing with the theme of specialist environmental courts from previous volumes, this journal also includes a paper presented at the IUCN Academy of Environmental Law 2013 Colloquium by Justice Munyao Sila of the Kenyan Environment and Land Court, the most recent specialist court to be established at High Court level in a common law jurisdiction. The Colloquium was proudly supported by the RMLA and the New Zealand Law Foundation and the plenary session with judges from environmental courts in Australia, Brazil, India, Kenya, and the United Kingdom was convened by Principal Environment Judge Laurie Newhook of the New Zealand Environment Court and Professor Nicholas Robinson from Pace University, New York.

Antepenultimately, Timothy Solomon, the recipient of the RMLA Scholarship 2012, considers the complex issue of public participation in an urban context and the equally “wicked” question of residential intensification. Freshwater governance reforms are also destined to be one of the major issues that the government will need to address as part of the wider environmental and resource management reform process, and Associate Professor Jacinta Ruru from the University of Otago provides a powerful analysis of Maori claims to freshwater resources and their potential future role in freshwater governance. Finally, as a tribute to the late Professor Joseph Sax of the University of California, Berkeley, his seminal paper “The Law for a Livable Planet” is republished. Rebecca Macky paid tribute to Professor Sax’s presentation of this paper at the 1989 NELA conference (which provided the inspiration for founding editorial the RMLA) in her keynote presentation at the 2012 RMLA conference. The inaugural RMLA President, Hon Peter Salmon CNZM QC, outlined the strong philosophical basis that underpins New Zealand resource management law and emphasized the seminal influence of Professor Sax’s paper which is based on a holistic ecosystems approach to resource management. He observed that the “challenge for the legal system of the future” is to be “creative” and “concerned with the functional integrity of the earth”.


Editorial introduction Trevor Daya-Winterbottom
The Resource Management Act – How we got it and what changes are being made to it Geoffrey Palmer
Righting Environmental Justice Sian Elias
Reframing human rights in Sustainable Development Laura Horn
Quantifying benefits and costs under the Resource Management Act Kevin Counsell & James Mellsop
Recognising outstanding landscapes under the RMA Jon Jackson
How the law lets down the ‘down-under dolphin’ Nicola Wheen
Access to environmental justice in Kenya Munyao Sila
Public participation and reforms to the RMA Timothy Solomon
Indigenous restitution in settling Water Claims Jacinta Ruru
The Law of a Livable Planet Joseph Sax
Cumulative Index Trevor Daya-Winterbottom

General Editor:
Trevor Daya-Winterbottom

Editorial Board:
Bruce Clarkson
Ben France-Hudson
Wayne Gumley
Caroline Miller
Royden Somerville QC
Martin Williams

RMLA International Advisory Panel
• Professor Jamie Benedickson, University of Ottawa, Canada;
• Emeritus Professor Ben Boer, University of Sydney, Australia;
• Dr Simone Borg, University of Malta; • Professor An Cliquet, University of Ghent, Belgium;
• Professor Willemien du Plessis, North West University, South Africa;
• Adjunct Professor Rob Fowler, University of South Australia;
• Professor Alexander Gillespie, University of Waikato, New Zealand;
• Professor Lee Godden, University of Melbourne, Australia;
• Emeritus Professor Malcolm Grant, University College London, UK;
• Associate Professor Irene Lye Lin Heng, National University  of Singapore;
• Professor David Hodas, Widener University, Maryland, USA;
• Professor Michael Kidd, University of KwaZulu-Natal, South  Africa;
• Professor Timo Koivurova, University of Lapland, Finland;
• Professor Louis Kotze, North West University, South Africa;
• Professor Yves Le Bouthillier, University of Ottawa, Canada;
• Associate Professor Nicola Lugaresi, University of Trento, Italy;
• Professor Richard Macrory, University College London, UK;
• Professor Frank Maes, University of Ghent, Belgium;
• Dr Jose Juan Gonzales Marquez, Universidad Autonoma Metropolitana, Mexico;
• Professor Albert Mumma, University of Nairobi;
• Professor Nilufer Oral, Instanbul Bilgi University, Turkey;
• Professor Melissa Powers, Lewis & Clark Law School, Oregon, USA;
• Professor Benjamin Richardson, University of Tasmania, Australia;
• Associate Professor Svitlana Romanko, Prykarpatsky National University, Ukraine;
• Associate Professor Christina Voigt, University of Oslo, Norway