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Somerville, Dr Royden --- "Resource Management Law: the next 30 years. The RMLA Salmon lecture 2021" [2022] NZJlEnvLaw 2; (2022) 22 NZJEL 1

New Zealand Journal of Environmental Law

Resource Management Law: the next 30 years. The RMLA Salmon lecture 2021 [2022] NZJlEnvLaw 2 (31 December 2022); (2022) 22 NZJEL 1

Last Updated: 14 May 2024

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The RMLA Salmon Lecture 2021: Resource Management Law:

The Next 30 Years

Dr Royden Somerville KC*

Ko tēnei te mihi, ki a koutou Katoa Ki te iti, ki te rahi

Ki kā hau e wha

Tēnā koutou, tēnā tātou katoa

Ko Aoraki te mauka Ko Waitaki te awa Ko Kai Tahu te iwi

Ko Moeraki me Ōtākou ētahi o kā marae Ko Royden Somerville ahau

1. INTRODUCTION

The Honourable Peter Salmon QC, President Sally Gepp, members of the national and Wellington committees, and colleagues. It is a very real privilege to deliver the 2021 Salmon Lecture at this flagship event of the Resource Management Law Association. Thank you, Laura, Karol, Emma, Nicky, and members of the committee, for organising this lecture during such uncertain and challenging times.

Tēnā koe, Peter. Thank you very much for your kind and generous introduction. The name of this prestigious lecture recognises and acknowledges your distinguished career, and your outstanding contribution to planning, resource management, and public law. Tonight, I attempt to build on your thinking, articulated in the inaugural Salmon Lecture delivered by you in 2002, and published in the 2007 Justice and the Environment compilation of Salmon

*Barrister, Dunedin. This lecture was delivered on 16 June 2022 due to delays caused by Covid-19.

Lectures.¹ In your insightful lecture you considered the significance of the ethic of justice in the context of sustainable development in New Zealand.

Currently, the Covid-19 pandemic means our lives are characterised by the language of risk and well-being. We are also experiencing heightened anxiety about several other existential threats confronting our shared humanity in the 21st century. These include a possible nuclear holocaust, catastrophic biological diversity collapse, devastating climate change impacts, and a dramatic technological merging of the inorganic with the organic.

Tonight, I wish to focus on how we can successfully manage the risks from human activities to biological diversity and to climate. These risks involve complex ontological problems concerning time and space.² They relate to the value we place on the natural environment that sustains the biosphere and the human species. They need to be addressed in the context of a future characterised by uncertainty, complexity, and constant change.³ These existential threats involve significant moral and ethical questions about our obligations to present and future generations.⁴ They also require urgent and adaptive risk management responses that traverse the intersecting domains of ecology, economics, society, technology, culture, and ethics.

Of socially constructed human responses, namely law, economics, and technology, I suggest that law has the paramount role when developing an effective and urgent response to address these threats. Inevitably, a regulatory

1. Trevor Daya-Winterbottom (ed) The Salmon Lectures: Justice and the Environment (Resource Management Law Association of New Zealand, Auckland, 2007).
2. Aaron M Griffith “Intergenerational Rights and the Problem of Cross-Temporal Relations” (2018) 83 Erkenn 693.
3. Jonathan Boston Safeguarding the Future: Governing in an Uncertain World (Bridget Williams Books, Wellington, 2017); David Wallace-Wells The Uninhabitable Earth: A Story of the Future (Penguin Books, London, 2019). For a useful examination of how to address climate change risks in the context of the Resource Management Act 1991 see Jon Jackson “Predictions in an Uncertain World — assessing effects under the Resource Management Act 1991” and Andy Reisinger and Judy Lawrence “Predictions in an Uncertain World — beyond the oxymoron” (Environmental Law Intensive, NZ Law Society, 2016); and Edith Brown Weiss “Rule of law for nature in a kaleidoscopic world” in Christina Voigt (ed) Rule of Law for Nature: New Dimensions and Ideas in Environmental Law (Cambridge University Press, Cambridge, 2013) 27.
4. Darrel Moellendorf The Moral Challenge of Dangerous Climate Change: Values, Poverty, and Policy (Cambridge University Press, New York, 2014); Stephen M Gardiner A Perfect Moral Storm: The Ethical Tragedy of Climate Change (Oxford University Press, New York, 2011); Robert Elliot Faking Nature: The Ethics of Environmental Restoration (Routledge, New York, 1997); and Edith Brown Weiss In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity (United Nations University, Tokyo/Transnational, New York, 1989).

policy-forcing risk management framework must be the central driver when developing resource management laws addressing the interface of human activities and natural and built environments.

In this lecture, I attempt to address how over the next 30 years, our legislation and common law can inform the resource management response to these interrelated threats. I make no claim to being prescient and am fully aware that it may be ill-advised to engage in predicting the likelihood of legislation developed in 2022, and Aotearoa New Zealand’s common law, responding successfully to such challenging environmental and resource management issues, over a 30-year timespan.

Historian and philosopher Yuval Harari, in his book 21 Lessons for the 21st Century, has opined that:⁵

Nobody can really predict the specific changes we will witness. Any particular scenario is likely to be far from the truth. If somebody describes to you the world of the mid twenty-first century and it sounds like science fiction, it is probably false. But then if somebody describes to you the world of the mid twenty-first century and it doesn’t sound like science fiction — it is certainly false. We cannot be sure of the specifics but change itself is the only certainty.

It is approximately 30 years since the enactment of the Resource Management Act 1991 (RMA), and approximately another 30 years to the middle of this century. What is clear, is that risk management responses to these threats must become effective within this decade if there is to be a realistic chance of addressing them successfully by 2050. The strength and urgency of the response to managing these risks by central and local government legislators and the courts will depend on the success of the current ambitious and crucial resource management law reform project.⁶ The invaluable contribution to this project of the multidisciplinary membership of the highly regarded Resource Management Law Association cannot be overstated.

2. SCOPE OF LECTURE

In this lecture, I will consider firstly the current version of the Natural and Built Environment Bill. I will refer to it as “the Bill” or the proposed Natural

5. Yuval Noah Harari 21 Lessons for the 21st Century (Penguin Random House, UK, 2018) at 263 (emphasis in original).
6. Simon Upton “The RMLA Salmon Lecture 2020: RMA Reform — Coming Full Circle” [2021] RM Theory & Practice 61; Resource Management Review Panel New Directions for Resource Management in New Zealand (Ministry for the Environment, Report of the Resource Management Review Panel, June 2020).

and Built Environment Act “the NBA”. I will examine whether its provisions sufficiently direct and inform decision-makers about how to make reasoned value judgements when endeavouring to manage these risks. I will also recommend some additional implementation principles I believe should be included in the Bill. Secondly, I will consider whether the proposed legislation, as an overarching resource management statute, that also requires all persons exercising powers, and performing functions and duties under it, to give effect to the principles of te Tiriti o Waitangi, should be accorded constitutional law status. Finally, because of the polycentric considerations required to be addressed by a court developing Aotearoa New Zealand’s common law for managing risks from these threats, and the environmental and constitutional law implications of the proposed legislation, I will consider whether the Environment Court should be reconstituted as a senior court.

My underlying thesis is that central and local government decision-makers managing these risks, and courts addressing them, must strive to meet the value-laden and ethical goals of ecological and intergenerational justice.⁷ These dimensions of justice are understood as the moral obligation to ensure the fair treatment of all species and future generations, when promoting the sustainability of the natural environment. They are also sometimes expressed as interspecies justice, and justice between present and future generations.⁸ The challenge is, how do decision-makers meet these goals? I attempt to address this demanding question through the lens, not only of resource management and environmental law, but also of public and constitutional law. I draw on a philosophy of environmental law centred on applied ecological and intergenerational ethics, and environmental constitutionalism. I also consider jurisprudence addressing environmental risks and ethics.

3. THE PROPOSED LEGISLATION

I start from the premise that over the next three decades the NBA is likely to be the principal statement of, and foundation for, our resource management law, addressing the utilisation of the natural environment for human activities. It will need to align with existing legislation that establishes public strategies and

7. Klaus Bosselmann The Principle of Sustainability: Transforming Law and Governance (Ashgate, Farnham, UK, 2008) at 78–109.
8. Anna Wienhues Ecological Justice and the Extinction Crisis: Giving Living Beings their Due (Bristol University Press, Bristol, 2020); C Okereke and M Charlesworth “Environmental and Ecological Justice” in MM Betsill, K Hochstetler and D Stevis (eds) Advances in International Environmental Politics (2nd ed, Palgrave Macmillan, New York, 2014) 123.

governance processes for addressing biological diversity and climate change impacts.⁹ This includes the Conservation Act 1987 and the Climate Change Response Act 2002.¹⁰ Specific provisions referring to these statutes and to relevant principles in international environmental law instruments need to be added to the Bill to help frame and implement an integrated risk management governance response to the threats.

It is noteworthy that in Part 2 of the Bill as currently drafted, the purpose and related provisions contain significant value-laden and risk management language, addressing ecological health and intergenerational equity.¹¹

Clause 5(1) states that:

The purpose of this Act is to enable—

(a) Te Oranga o te Taiao to be upheld, including by protecting and enhancing the natural environment; and

(b) people and communities to use the environment in a way that supports the well-being of present generations without compromising the well-being of future generations.

It is immediately apparent that these provisions are about the goals of ecological and intergenerational justice. The issue then is how do we achieve these goals and what are the ethical imperatives that inform our resource management public law response?

Sub-clause (2) states that:

To achieve the purpose of the Act—

(a) use of the environment must comply with environmental limits; and

(b) outcomes for the benefit of the environment must be promoted; and

(c) any adverse effects on the environment of its use must be avoided, remedied, or mitigated.

9. Nicola Wheen “Contemporary environmental institutions and policy-making” in M Bargh and JL MacArthur (eds) Environmental Politics and Policy in Aotearoa New Zealand (Auckland University Press, Auckland, 2022) 127; and Nicola R Wheen “Sustainability, Indeterminacy and Abdication of Environmental Responsibility” in S Bookman, E Willis, H Wilberg and M Harris (eds) Pragmatism, Principle, and Power in Common Law Constitutional Systems: Essays in Honour of Bruce Harris (Intersentia, Cambridge, UK, 2022) 59.
10. Philipp Semmelmayer “The Climate Change Response (Zero Carbon) Amendment Act — A Critical Analysis of New Zealand’s Response to Climate Change” (2020) 24 NZJEL 157.
    11. John Fogarty “Giving Effect to Values in Statutes” in J Finn and S Todd (eds) Law, Liberty, Legislation: Essays in Honour of John Burrows QC (LexisNexis, Wellington, 2008).

In Parts 2 and 3, the Act provides for a regulatory and delegated national and regional planning regime to establish the environmental limits and promote the 16 wide-ranging, aspirational, and sometimes conflicting environmental outcomes specified in clause 8 of the Bill. There is then the familiar and demanding duty placed on legislators and decision-makers to manage the human use of natural and built environments to ensure any adverse environmental effects are avoided, remedied, or mitigated.

Relevant key words in the Bill defined in clause 3 include: “natural environ- ment”, “ecological integrity”, “ecosystem”, “environment”, “precautionary approach”, “te Tiriti o Waitangi”, and “well-being”.

Clause 5(3) states that:

In this section, Te Oranga o te Taiao incorporates—

(a) the health of the natural environment; and

(b) the intrinsic relationship between iwi and hapū and te Taiao; and

(c) the interconnectedness of all parts of the natural environment; and

(d) the essential relationship between the health of the natural environ- ment and its capacity to sustain life.

Clause 6 requires that all persons exercising powers and performing functions and duties under the Act must give effect to the principles of te Tiriti o Waitangi.

Clause 8 requires that environmental outcomes must be promoted. They include that: ecological integrity is protected, restored or improved (8b); greenhouse gas emissions are reduced and there is an increase in the removal of those gases from the atmosphere (8j); and in relation to natural hazards and climate change, (i) the significant risks of both are reduced; and (ii) the resilience of the environment to natural hazards and the effects of climate change is improved (8p).

The words and phrases in clause 8 include: “protected, restored or improved”, “preserve”, “proportionate”, “reduced”, “adaptable”, “sustainable use”, “significant risks”, and “resilience of the environment”.

Clause 13(1) requires that the National Planning Framework must set out provisions addressing ecological integrity (b), greenhouse gas emissions (e), and natural hazards and climate change (i).

Clause 13 sub-clause (3) and clause 22 sub-clause (1)(g) direct that the National Planning Framework and the Natural and Built Environment Plans must include provisions to help resolve conflicts “between or among any of the environmental outcomes described in section 8”, and those relating to the environment in a region.

Clauses 16 and 24 contain a duty to apply a precautionary approach. Clause 18 is a placeholder for implementation principles.

The provisions in the Bill raise complex environmental risk management approaches addressing the protection and use of the natural environment. Decision-makers confronted with conflicting and incommensurate values when developing and implementing the National Planning Framework and Natural and Built Environment Plans will need to draw on eco-philosophical and axiological approaches, involving values, principles, and ethics.

In order to protect the intrinsic value of natural environments, these socially constructed statutory planning instruments need to be applied so they align and are in harmony with the laws of nature.

Four laws of ecology were helpfully summarised by ecologist Dr Barry Commoner in his book The Closing Circle.¹² They are that everything is connected to everything else, everything must go somewhere, nature knows best, and there is no such thing as a free lunch.¹³ These are the same laws of nature that inform the principles of the circular economy that is central to the evolving field of ecological economics.¹⁴

Climate change impacts are accelerating the extinction of known and unknown species that sustain the ecosystem. Hence countries such as the Republic of Ireland have declared not only a climate change emergency, but also a biological diversity emergency.

To avoid intergenerational injustice, the development processes for statu- tory environmental risk management planning instruments need to result from the dialectic of law and environmental values,¹⁵ and intragenerational and intergenerational values, addressing cross-temporal relations.¹⁶

Decision-makers need to make principled value judgements and choices in order to meet the moral obligation not to compromise the well-being of future generations of humans.¹⁷ The defence of previous generations that “we did not know” is no longer available to us.¹⁸

The impressive and well-informed youth movement confronting the climate emergency is at the vanguard of advocates for climate justice. The

12. Barry Commoner The Closing Circle (1st ed, Random House, New York, 1971). 13 Jennifer Caldwell An Ecological Approach to Environmental Law (Legal Research

Foundation, Auckland, 1988); William R Catton Jr Overshoot: the Ecological Basis of Revolutionary Change (University of Illinois Press, Champaign (IL), 1982).

14. “The Nature Imperative — How the circular economy tackles biodiversity loss” Ellen Macarthur Foundation <https://ellenmacarthurfoundation.org/biodiversity- report>.
15. Holly Doremus “Shaping the Future: The Dialectic of Law and Environmental Values” (2003) 37 University of California, Davis 233.
16. Griffith, above n 2.
17. Brown Weiss, above n 4.
18. Michael D Higgins (President of Ireland) “Speech to the Youth Climate Justice Fund” (30 November 2021) Media Library.

intragenerational views of Baby Boomers, Generation X, Generation Y (or Millennials), Generation Z (or Zoomers), and those born in the 21st century, Generation Alpha, must inform the values that influence the formulation of laws and policies that articulate the duty of care owed to existing and future generations.

Currently in the academy, environmental psychological impacts are being studied. These are the impacts on the mental health and well-being of people and communities experiencing severe anxiety and despair about possible apocalyptic events.¹⁹ I suggest robust statutory instruments that disclose effective risk management measures may help to ameliorate distress about the future for our shared humanity.

When endeavouring to predict an unknown future, central and local government legislators and the courts must utilise reasoning methods involving not only deductive and inductive reasoning, but also abductive reasoning, using inferences and hypotheses. They also need to call on transdisciplinary expertise and research, and a wide range of epistemologies including mātauranga Māori, to help inform the development of a resource management response that is just.²⁰

The issue is, do the provisions in the Bill disclose sufficient directions to assist legislators and decision-makers responsible for addressing these horrendous risks?²¹

The provisions of the NBA need to be interpreted before they can be applied. Principles of statutory interpretation can assist decision-makers

19. Richard E Leakey and Roger Lewin The Sixth Extinction: Patterns of Life and the Future of Humankind (Doubleday, New York, 1995); Susan Clayton “Climate anxiety: Psychological responses to climate change” (2020) 74 Journal of Anxiety Disorders 102263; KE Gibson, J Barnett, N Haslam and I Kaplan “The mental health impacts of climate change: Findings from a Pacific Island atoll nation” (2020) 73 Journal of Anxiety Disorders 102237; “Ecological grief and anxiety: the start of a healthy response to climate change?” (2020) 4(7) The Lancet Planetary Health e261; and “Climate Anxiety in young people: a call to action” (2020) 4(10) The Lancet Planetary Health e435.
20. For a multi-disciplinary approach addressing property law theory and how to meet ecological challenges see Prue Taylor and David Grinlinton “Property Rights and Sustainability: Toward a New Vision of Property” in David Grinlinton and Prue Taylor (eds) Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff, Leiden/Boston, 2011)
    1. See also Hon Justice Christian Whata “‘Mātauranga Māori’ knowledge, comprehension and understanding: Reflection of lessons learnt and contemplation of the future” [2016] RM Theory & Practice 21. For scholarship in that area see Jacinta Ruru and Linda Waimarie Nikora Ngā Kete Mātauranga: Māori Scholars at the Research Interface (Otago University Press, Dunedin, 2021).
21. Stephen Knight-Lenihan “Why the Proposed Natural and Built Environments Act Might Fail” (2021) 25 NZJEL 259.

in the context of managing ecological and climate risks. In addition to the principles in the Legislation Act 2019,²² assistance can be gained from considering: the history of the legislation; the interpretation and application of other legislation addressing the environmental risks;²³ relevant general international environmental law principles contained in ratified treaties and bilateral and multilateral agreements,²⁴ or expressed in the general wording of the legislation; and secondary sources such as central and local government reports, strategy documents, and journal articles addressing the values contained in the legislation. There is a rich source of material backgrounding the current resource management reforms that can be called on to assist with the interpretation and application of the provisions in the NBA.²⁵

It is also instructive to consider how the values-based principles contained in Part 2 of the RMA have been applied when developing and implementing National Policy Statements with a goal of managing the risks from human activities impacting biological diversity and climate systems. These instruments include the New Zealand Coastal Policy Statement 2010, the National Policy Statement for Renewable Electricity Generation 2011 (NPS REG), and the National Policy Statement for Freshwater Management 2020 (NPS FWM).

The NPS FWM (NPS) is a values-based statutory instrument aimed at managing the impacts of ecological degradation of freshwater. The word “value” is mentioned in it 45 times. It provides for an integrated and adaptive risk management regime for freshwater management within 30-year intergenerational timeframes. It contains strong directive provisions that refer to values and principles to be applied as a matter of law when developing statutory policy and planning instruments that are to give effect to it. The value-laden fundamental concept of Te Mana o te Wai in the NPS, recognises among other things, that protecting the health of freshwater also protects the health and well- being of the wider environment. The six directive principles in the NPS include

22. Legislation Act 2019, s 10.
23. Trans-Tasman Resources Ltd v Environmental Protection Authority [2021] NZSC 127 at [50]; Elizabeth Macpherson, Jill Banwell, Robert Makgill and Adrienne Paul “Trans-Tasman Resources v Taranaki-Whanganui Conservation Board [2021] NZSC 127: A New ‘High-Water Mark’ for Seabed Mining” (2021) 25 NZJEL 277.
24. For an excellent examination of international environmental principles see Trevor Daya-Winterbottom “Reimagining Environmental Law Principles” (2021) 25 NZJEL 29; Anthony Cecilie Berno Hald “The War of Survival: Towards a Global Pact for the Environment” (2020) 24 NZJEL 93; United Nations General Assembly, Report of the Secretary-General “Gaps in international environmental law and environment-related instruments: towards a global pact for the environ- ment” (30 November 2018).
25. Resource Management Review Panel New Directions for Resource Management in New Zealand (Ministry for the Environment, Report of the Resource Manage- ment Review Panel, June 2020).

kaitiakitanga and stewardship. The NPS also specifies resource management priorities for freshwater.²⁶

Principles contained in the NBA should inform how an integrated risk management regime addressing ecological and climate risks is to be developed and implemented. There are many general international environmental law principles that can inform effective approaches to managing those risks.²⁷ They contain values undergirding ethical imperatives that inform legislators and decision-makers involved with environmental risk management. The key normative principles of sustainability and precaution are evident in the 1992 United Nations Convention on Biodiversity and the United Nations Framework Convention on Climate Change. The principle of sustainability has been described by one eminent scholar as a principle that transforms law and governance.²⁸

International environmental law principles are also utilised by territorial courts to inform a reasoning approach for addressing values and ethics. For example, these principles have been used to inform the reasoning of the Indian Supreme Court, the Court of Justice of the European Union, and the New South Wales Land and Environment Court.²⁹

Over the last 30 years, several general international environmental principles have emerged that can be applied when managing environmental risks.³⁰ They include: the polluter-pays; In Dubio Pro Natura; integration; ecological sustainability and resilience; intragenerational and intergenerational equity; non-regression; progression; ecological proportionality; access to information; public participation; and access to justice in environmental matters (which incorporates the principle of good governance and environmental democracy).

There are useful definitions of some of these in the IUCN World Com- mission on Environmental Law, World Declaration on the Environmental Rule of Law.³¹ I refer to six of them:

26. Muaūpoko Tribal Authority Inc v Minister for the Environment [2022] NZHC 883. 27 Daya-Winterbottom, above n 24; and Hald, above n 24.
28. Bosselmann, above n 7.
29. Eloise Scotford Environmental Principles and the Evolution of Environmental Law (Hart Publishing, Oxford and Portland, Oregon, 2017).
30. Daya-Winterbottom, above n 24.
31. World Declaration on the Environmental Rule of Law 2016, IUCN World Commission on Environmental Law. This is an outcome document from the IUCN World Congress on Environmental Law, conducted in Rio de Janeiro between 27 and 29 April 2016. It does not represent a formally negotiated outcome and does not necessarily represent the views of any individual, institution or state; nor does it necessarily capture all the individual views or represent country or institutional positions, or consensus on all issues.

The principle of In Dubio Pro Natura means: “In cases of doubt, all matters before Courts, administrative agencies, and other decision-makers shall be resolved in a way most likely to favour the protection and conservation of the environment, with preference to be given to alternatives that are least harmful to the environment. Actions shall not be undertaken when their potential adverse impacts on the environment are disproportionate or excessive in relation to the benefits derived therein.”

The principle of ecological sustainability and resilience means: “Legal and other measures shall be taken to protect and restore ecosystems’ integrity and to sustain and enhance the resilience of social-ecological systems. In the drafting of policies and legislation, and in decision-making, the maintenance of a healthy biosphere for nature and humanity should be a primary consideration.”

The principle of intragenerational equity means: “There shall be a fair and equitable sharing of the benefits of nature, including appropriate access to ecosystem services. There shall be a fair and equitable sharing of efforts and burdens. Natural resources shall be used and managed in an ecologically sustainable manner.”

The principle of intergenerational equity means: “The present generation must ensure that the biodiversity, ecological functions, and beauty of the environment are maintained or restored to provide equitable access to the benefits of the environment by each successive generation.”

The principle of non-regression (sometimes referred to as the “never look back principle”) means: “States, sub-national entities, and regional integration organisations shall not allow or pursue actions that have the net effect of diminishing the legal protection of the environment or of access to environmental justice.”³²

The principle of progression means: “In order to achieve the progressive development and enforcement of the environmental rule of law, states, sub- national entities, and regional integration organisations shall regularly revise and enhance laws and policies in order to protect, conserve, restore, and ameliorate the environment, based on the most recent scientific knowledge and policy developments.”

Clearly, the content and thrust of some of these principles are already contained in the general wording of the Bill.

Providing they are framed as strong directions, well-crafted principles will help decision-makers effectively address ambiguous wording, conflicting values and outcomes, and the formulation and implementation of statutory policy and planning instruments, standards and rules.

32. Nicholas S Bryner “Never Look Back: Non-Regression in Environmental Law” (2022) 43 U Pa J Int’l L 555.

An example of a strong and clear direction concerning principles is contained in clause 6, directing that the principles of te Tiriti o Waitangi are to be given effect to. This statutory direction should compel those engaged in resource management governance to abide by the principles of partnership and active protection.

In order to achieve the purpose of the proposed legislation, I contend that five additional principles need to be added to the implementation provisions (a)–(g) in clause 18 of the Bill.

3.1 Recommendations

My recommendations are as follows:

(h) apply the principles of non-regression, progression, and resilience when developing and implementing planning instruments to halt degradation of ecological diversity and integrity, and to enhance the ecological health of the natural environment.³³

(i) apply the principle of ecological sustainable development when addressing the use of the natural environment for the development and use of the built environment.³⁴

(j) apply the principles of intragenerational and intergenerational equity when making decisions addressing the well-being of present generations without compromising the well-being of future generations.

(k) align the provisions of the National Planning Framework and Natural and Built Environment Plans as far as possible with relevant strategic and planning instruments developed under the Conservation Act 1987 and the Climate Change Response Act 2002.

(l) align the provisions of the National Planning Framework and Natural and Built Environment Plans as far as possible with the international environmental law instruments and principles set out in Schedule 3.

33. Natural and Built Environment Bill 2022 (186-1), pts 3 and 4.
34. Staffan Westerlund and Prue Taylor (annotator) “Theory for Sustainable Development: Towards or Against?” (2021) 25 NZJEL 1; Christina Voigt “The principle of sustainable development: integration and ecological integrity” in Christina Voigt (ed) Rule of Law for Nature: New Dimensions and Ideas in Environmental Law (Cambridge University Press, Cambridge, 2013) 146.

4. RESOURCE MANAGEMENT LAW AS CONSTITUTIONAL LAW

When addressing whether the proposed NBA should be considered consti- tutional law, a consideration of environmental rights and obligations is involved.

Over the last 30 years there has been a growing scholarship in the field of environmental constitutionalism.³⁵ Environmental law scholars have inter- rogated constitutional law theories addressing state constitutions, the separation of powers, the rule of law, and democracy.³⁶ There is also considerable scholarship examining how the constitutional rights-based models of social- values constitutionalism can be addressed by the courts.³⁷ It is estimated that three-quarters of the world’s constitutions refer to and entrench environmental protection provisions.³⁸ These often refer to a state’s obligation to protect, preserve, and improve the natural environment.

I suggest that it is an opportune time to incorporate environmental constitutionalism into the resource management law reform project. This is not a new proposition. It has been advanced in the past that the RMA should be considered as constitutionally important.³⁹ Those supporting a new constitutional vision for the country have suggested that the Parliamentary

35. Louis J Kotzé “Environmental Constitutionalism”, Essential Readings in Environmental Law, IUCN Academy of Environmental Law <www.iucnael. org>; Klaus Bosselmann When Two Worlds Collide: Society and Ecology (RSVP Publishing Company Limited, Auckland, 1995) at 222–263.
36. Ceri Warnock “The RMLA Salmon Lecture 2018: Environmental Problems and Constitutional Principles” [2021] RM Theory & Practice 12; Ceri Warnock Environmental Courts and Tribunals: Powers, Integrity and the Search for Legitimacy (The Law Foundation New Zealand, Hart Publishing, Oxford, 2020); BoHao (Steven) Li “Joining the Aotearoa New Zealand Constitutional Debate: Constitutional Environmental Rights in our Future ‘Constitution’” (LLM Research Paper, LAWS 526: Comparative Constitutionalism, Victoria University of Wellington, 2013); Louis J Kotzé “Sustainable development and the rule of law for nature: a constitutional reading” in Christina Voigt (ed) Rule of Law for Nature: New Dimensions and Ideas in Environmental Law (Cambridge University Press, Cambridge, 2013) 130; Stephen Rivers-McCombs “Planning in Wonderland: The RMA, Local Democracy and the Rule of Law’ (2011) 9 NZJPIL 43.
37. Peter D Burdon “A Theory of Earth Jurisprudence” (2012) 37 Australian Journal of Legal Philosophy 28. For a discussion on natural law, human rights jurisprudence and parliamentary supremacy see EW Thomas The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles (Cambridge University Press, Cambridge, 2005) at 42–53.
38. Kotzé, above n 35.
39. Elizabeth Fisher “Towards Environmental Constitutionalism: A Different Vision of the Resource Management Act 1991?” [2015] RM Theory & Practice 63.

Commissioner for the Environment should be responsible for ensuring environmental rights are protected.⁴⁰

Statutes with constitutional law status are primarily rights-focused and include the Treaty of Waitangi Act 1975, the Constitution Act 1986,⁴¹ the New Zealand Bill of Rights Act 1990, and the Human Rights Act 1993. In its preamble, The Human Rights Act also refers to New Zealand’s international law commitments.

International environmental rights-based principles include that each human and other living being has a right to the conservation, protection, and restoration of the health and integrity of ecosystems; that nature has the inherent right to exist, thrive, and evolve; and that each human, past, present and future, has the right to a safe, clean, healthy, and sustainable environment.

In October 2021 the United Nations Human Rights Council recognised that having a clean, healthy, and sustainable environment is a human right. In March 2022 the UN Office of the High Commissioner for Human Rights released an excellent draft report on integrating human rights in national biodiversity strategies and action plans.

There is also a body of scholarship that supports the proposition that ecocentric-based rights should be accorded to nature, as a rule of law.⁴² This is sometimes referred to as earth jurisprudence and it promotes the recognition of the rights of nature in constitutions, national statutes, and local laws.⁴³ It involves a paradigm shift where nature is placed at the centre and humans are connected to it in an interdependent way rather than a dominant way. It is argued that nature should have the inherent right to defend itself against harm. Environmental law principles contained in written constitutions and multilateral international law instruments can usefully inform the design of domestic resource management legislative instruments and the development of

relevant common law.⁴⁴

There are many examples in international law of written constitutions placing duties on legislators to protect the natural environment. The first time the right of nature became a constitutional law right was in the 2008 Constitution of Ecuador. It builds on principle 7 of the 1992 Rio Declaration on Environment and Development, “to conserve, protect and restore the health

40. Geoffrey Palmer and Andrew Butler Towards Democratic Renewal (Victoria University Press, Wellington, 2018) at 163–166.
41. Sian Elias “Mapping the Constitutional” [2014] 1 NZ L Rev 15.
42. Christina Voigt (ed) Rule of Law for Nature: New Dimensions and Ideas in Environmental Law (Cambridge University Press, Cambridge, 2013).
43. Emma Hodder “Ko au te Awa, ko te Awa ko au: Incorporating Rights of Nature in International Freshwater Law” (2021) 25 NZJEL 95; Nathalie Rühs and Aled Jones “The Implementation of Earth Jurisprudence through Substantive Constitutional Rights of Nature” (2016) 8(2) Sustainability 174.
44. Daya-Winterbottom, above n 24.

and integrity of the earth’s ecosystem”.⁴⁵ It also refers to the non-regression principle.

In the New Zealand context, an example of legislation recognising the rights of nature is Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. It gives effect to the constitutionally significant principles of te Tiriti o Waitangi, including partnership and active protection. The legislation provides statutory recognition of the natural environment having rights and legal personhood and establishes a co-governance and co-management guardianship structure.⁴⁶ This approach is in accord with an animistic and holistic worldview.

A kaitiakitanga, stewardship, and guardianship resource management approach aligns with the theory of earth trusteeship in the context of human rights and responsibility.⁴⁷ This resource management approach is based on a fiduciary obligation requiring humanity to act as trustee for the earth and not as owner of it.⁴⁸ This is an ethical governance approach that advocates for the earth, non-humans, and future generations.

I believe that to promote ecological and intergenerational justice, both environmental and constitutional law need not only to recognise the rights of humans and nature, but also to clearly articulate an obligation and responsibility to value, care for, and protect the natural environment. The relevant principle in international environmental law is that each state, public or private entity, and individual has the obligation to care for and promote the well-being of nature, regardless of its worth to humans, and to place limits on its use and exploitation. Despite the view that environmental constitutionalism is often rights- focused, values-based directive principles are the most common method of entrenching environmental constitutional obligations. Studies in 2018 showed that directive principles were present in approximately 140 of the estimated 147

45. Mihnea Tanasescu “Rights of Nature, Legal Personality, and Indigenous Philosophies’” (2020) 9(3) Transnational Environmental Law 429; Rühs and Jones, above n 43.
46. Hodder, above n 43; Andrew Geddis and Jacinta Ruru “Places as Persons: Creating a New Framework for Māori–Crown Relations” in Jason NE Varuhas and Shona Wilson Stark (eds) The Frontiers of Public Law (Hart Publishing, Oxford, 2019) 255; Rachael Harris “A legal identity for Te Urewera: The changing face of co- governance in the central North Island” [2015] RM Theory & Practice 148.
47. Klaus Bosselmann “Earth Trusteeship Forum” (10 December 2018), Peace Palace, The Hague, Alliance for Responsible and Sustainable Societies (October 2018)

<https://www.earthtrusteeship.world>.

48. David Weitz “The Atmosphere and State Sovereignty: The Call for a Trusteeship Organisation” (2020) 24 NZJEL 63 at 82–87. Compare Nicola Hulley “The public trust doctrine: An analysis of the original theory and its historical foundations” [2016] RM Theory & Practice 82.

national constitutions (95 per cent), whereas approximately 76 (54 per cent) contained environmental rights provisions.⁴⁹

I contend that the proposed NBA does inform and disclose a duty of care to protect the natural environment governed by the laws of nature. The legislation helps anchor constitutionally the legal obligations placed on central and local government actors responsible for resource management addressing natural and built environments.

Embedding the suggested directive principles in the proposed legislation with the status of constitutional law would significantly help to give effect to the principles of te Tiriti o Waitangi and promote the goals of ecological and intergenerational justice.

Also, including in the NBA references to international environmental law principles that the nation has committed to in multilateral instruments would demonstrate New Zealand’s commitment to ecological and intergenerational justice.

4.1 Recommendation

To strengthen the scheme of the proposed NBA to reflect its eco-constitutional law status,⁵⁰ I proffer the following suggestion to those involved in the resource management law reform project. It is that they include an additional risk management framework process provision in the NBA, that recognises the rights of nature. It should provide for the appointment of guardians to protect the intrinsic values of the natural environment. Those values are reflected in the definition of “ecological integrity” in the proposed NBA. Their duty of care would be restricted to the health and well-being of the natural environment governed by the laws of nature. Their representation before NBA decision- makers, and their collation and presentation of primary and secondary evidence, should be funded by the Parliamentary Commissioner for the Environment. I believe this would greatly benefit the planning and decision-making structure contained in the proposed NBA as constitutional law.

5. RECONSTITUTING THE ENVIRONMENT COURT AS A SENIOR COURT

A decade after the enactment of the RMA, I unsuccessfully made submissions to the New Zealand Law Commission when it was reviewing the structure

49. Lael K Weis “Environmental constitutionalism: Aspiration or transformation?” (2018) 16(3) International Journal of Constitutional Law 836.
50. Bosselmann, above n 35, at 222–263.

of the courts.⁵¹ I advocated that the specialist Environment Court, with its wide-ranging jurisdiction, be reconstituted as a division of the High Court. Now that a comprehensive resource management law reform process is under way, I suggest that the proposal needs to be revisited when considering the administration of ecological and intergenerational justice.

The integrity of the Environment Court’s processes and reasoning has been acknowledged by the senior courts and practising resource management lawyers, and is addressed in an excellent book by a former Salmon lecturer.⁵² When considering appeals from the Environment Court on a question of law, the senior courts often defer to it on planning and policy matters.⁵³

The Court has a significant role in developing resource management jurisprudence.⁵⁴ It has an informed understanding of how to use applied ethics when considering environmental value-imperatives. It is very aware of the importance in environmental law of addressing impacts on the biosphere, and the moral obligation to future generations. In its resource management legislative oversight and adjudicatory roles, polycentric considerations focusing on an unknown future characterise the work of the Court. These include addressing values, ethics, principles, policies, plans, and rules. With the benefit of its judicial expertise and lay membership, it is well equipped to make value judgements involving the law and legislative facts. Its evaluative skills, utilising secondary sources and policy material when addressing legislative facts, are well regarded.

It understands the value of evidence addressing tikanga⁵⁵ and relevant cultural, social, ecological, economic, scientific, and technological matters when considering the lawfulness of the development and implementation of RMA instruments. Because of the nature of its work, it has significant

51. Royden Somerville QC “Submission on: Striking the Balance — Appeal Processes — the Specialist Environment Court” (A Review of the New Zealand Court System, New Zealand Law Commission, 12 July 2002); Royden Somerville QC “Seeking Solutions — Part 2 — Preliminary Paper 52 — The Status of the Specialist Environment Court (submission to New Zealand Law Commission, 14 May 2003).
52. Warnock, above n 36; Wheen “Sustainability, Indeterminacy and Abdication of Environmental Responsibility”, above n 9; Chief Environment Court Judge DA Kirkpatrick and Professor Ceri Warnock “Do we need Judges in order to resolve environmental disputes?” Proceedings of the New Zealand Law Society Continuing Legal Education (NZLS CLE) Intensive: Environmental Law (2021) 3.
53. Warnock, above n 36; Stark v Auckland Regional Council [1994] NZHC 1013; [1994] 3 NZLR 614 (HC).
54. Judges Laurie Newhook, David Kirkpatrick and John Hassan “Issues with access to justice in the Environment Court of New Zealand” (2017) 29 ELM 125.
55. Horiana Irwin-Easthope “The Increasing and Enduring Importance of Tikanga Māori and Cultural Evidence in the Environment Court” [2017] RM Theory & Practice 93.

experience of applying not only deductive and inductive, but also abductive, reasoning methods in its decision-making processes.⁵⁶

Uncertainty and precaution are often addressed in the Court’s insightful reasoning approaches, using the language of risk and benefits.⁵⁷ The Court’s application of the provisions of s 32 of the RMA when undertaking a risk benefit regulatory impact assessment is very instructive. That application has often involved building on adaptive risk management approaches for achieving a strong precautionary approach to managing environmental risks. Risk management policies, standards, and rules in policy and planning instruments referred to the Environment Court on appeal, have also resulted in informative decisions. These are very useful when designing ecological protection provisions for inclusion in statutory policy and planning instruments.⁵⁸

The Court’s consideration of tikanga, and its use of a relativistic reasoning approach for addressing competing values held by different iwi and hapū over the same natural resources, provides for a robust and transparent judicial decision-making process.⁵⁹

5.1 Recommendation

I suggest that there is a strong argument for the Court to have a status that reflects the significance of the existential threats and the complexity of the issues for a democratic society reliant on the rule of law. I contend that Environment Judges should be appointed as members of the judiciary, pursuant to the Constitution Act 1986 and the Senior Courts Act 2016. They should preside in a Natural and Built Environment Division. If necessary, Māori Land Court Judges, and expert commissioners, could be appointed as sitting members of the Division.⁶⁰

I believe this approach to the administration of justice within our consti- tutional arrangements would promote the development of Aotearoa New

56. Kirkpatrick and Warnock, above n 52, at 17–20.
57. Long Bay-Okura Great Park Society Inc v North Shore City Council (NZEnvC) A078/2008 at [35].
58. Hilke Giles and Barry Barton “Adaptive Management Under the RMA: The Tension Between Finality and Flexibility” (2020) 24 NZJEL 1; Royden Somerville QC “Policy adjudication, adaptive management and the Environment Court” [2013] RM Theory & Practice 13.
59. Justice Joe Williams, The RMLA Salmon Lecture 2019: “He Pūkenga Wai” [2021] RM Theory & Practice 40; Justice Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern NZ Law” [2013] WkoLawRw 2; (2013) 21 Wai L Rev 1 at 21–22; Ngati Hokopu ki Hokowhitu v Whakatane District Council [2002] NZEnvC 421; (2002) 9 ELRNZ 111 (EnvC). See also Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768.
60. Senior Courts Act 2016, s 9.

Zealand’s common law addressing ecological and intergenerational justice.⁶¹ With general and inherent jurisdiction, a reconstituted Environment Court could make a significant contribution to maintaining and enhancing the rights of nature and ensuring the state’s obligations to protect and care for it are met. It would also be well-equipped to contribute to the development of axio- logical reasoning methods, informed by values and ethics, when addressing the principles of te Tiriti o Waitangi and the provisions of Treaty settlement

legislation in the context of resource management.

With judicial review jurisdiction, it could be instrumental in developing the application of administrative law principles, such as the principle of proportionality,⁶² in conjunction with international environmental law principles, such as the principle of ecological proportionality.

It could also contribute to the development of a principled approach to assisted migration of non-human species as a tool for biodiversity adaptation to climate change,⁶³ and to offsetting and environmental compensation. It could ensure that adaptive environmental risk management approaches align with approaches being pursued under other legislation to address the threats from biodiversity loss and climate change impacts.

For the Court, the governance structures, and the statutory duties, functions, powers, and discretions contained in the proposed Act, involve very familiar RMA language. It would be very beneficial if the Court were to have jurisdiction to consider appeals challenging the lawfulness of the National Planning Framework, and Natural and Built Environment Plans developed under Parts 3 and 4 of the NBA. This would help to achieve the purpose of the NBA, and to give effect to te Tiriti o Waitangi. That function has significant constitutional importance.

61. For approaches addressing anthropological climate impacts in the Senior Courts see Sarah Thomson v The Minister for Climate Change Issues [2017] NZHC 733; Danielle Cooper “Change the System Not the Climate — A Principled Look at Smith v Fonterra Co-operative Group Ltd ” (2020) 24 NZJEL 187; Kierra Parker “Navigating the Duty of Active Protection in a Climate Crisis” (2020) 24 NZJEL 209.
62. Grant Huscroft, Bradley W Miller and Gregoire Webber Proportionality and the Rule of Law: Rights, Justification, Reasoning (Cambridge University Press, New York, 2014); Gerd Winter “Ecological proportionality: an emerging principle of law for nature?” in Christina Voigt (ed) Rule of Law for Nature: New Dimensions and Ideas in Environmental Law (Cambridge University Press, Cambridge, 2013) 111.
63. Maksim Lavrik “Customary Norms, General Principles of International Environmental Law, and Assisted Migration as a Tool for Biodiversity Adaptation to Climate Change” (2022) 4(2) Jus Cogens 99.

6. CONCLUSION

To conclude, I consider that it is essential to place the leitmotif of ecological and intergenerational justice at the forefront of the current resource management reforms. The NBA will provide for an urgent regulatory risk management response to the existential threats of biological diversity collapse and climate change.

The inclusion of the suggested value-laden and directive environmental law principles in the implementation provisions of the Bill will assist legislators and decision-makers to achieve the purpose of the proposed NBA, and give effect to the principles of te Tiriti o Waitangi.

I consider that the proposed NBA would be constitutional law, directing how human activities involving the natural and built environment should be managed to provide for a sustainable future. In our constitutional arrangements for the administration of justice, Environment Judges should become High Court Judges and sit in a Natural and Built Environment Division.

If these suggestions are actioned, I am bold enough to predict that they will help to meet our moral duty to care for and protect the natural environment, and provide for a sustainable future for present and future generations.

Kia ora tātou