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 9 (2013) focuses on the developing jurisprudence of New Zealand environmental and resource management law and the broad theme of risk, with a focus on better solutions for a more resilient world, and consideration of the role of environmental planning, policies and management across a variety of issues such as urban development, economic growth, tourism and oil exploration.
Trevor Daya-Winterbottom, General Editor
On behalf of the Resource Management Law Association of New Zealand Inc (RMLA), I am pleased to present the 2013 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 broad theme of risk,1 with a focus on better solutions for a more resilient world, and consideration of the role of environmental planning, policies and management across a variety of issues such as urban development, economic growth, tourism and oil exploration. This theme is reflected in the papers included in this issue of the journal. The assessment of risk under the Resource Management Act 1991 (RMA) was addressed by the Environment Court in Shirley Primary School v Telecom Mobile Communications Ltd in relation to radio frequency radiation from a cellsite where the Court found that the RMA is not a “no risk” regime, that perfect safety cannot be guaranteed, and that some levels of risk may be acceptable. The Court stated:
 Since life cannot be made completely safe for anybody, a no risk approach is (logically) impossible. There is also authority that the RMA is not a “no risk” statute and therefore it is not the role of this Court to ensure that Telecom’s cellsite can operate with absolute safety. In Aquamarine Ltd v Southland Regional Council [Environment Court C126/97, 15 December 1997] the Court stated of a “no risk” regime that:
“We do not think this is compatible with the definition of sustainable management in s5(2) of the Act.”
An observation from high authority in another jurisdiction also bears out our approach. In AFL-CIO v American Petroleum Institute [(1980) 448 US 607] the Chief Justice [Burger] of the Supreme Court of the USA stated:
“Perfect safety is a chimera; regulation must not strangle human activity in the search for the impossible.”
The need for a “principled and rational” approach to environmental and resource management decision-making is emphasised by Dr Royden Somerville QC in his paper on “Policy adjudication, adaptive management and the Environment Court”, including the use of adaptive management as “a risk management approach for addressing environmental risks characterised by scientific uncertainty”. This paper builds on previous analysis of how to address uncertainty in the decision-making process. Building on international legal scholarship, Dr Somerville notes the changing nature of public law:
The RMA highlights the importance of the new public law concept which goes beyond the traditional understanding of public law as addressing the distribution and exercise of power by the State (public power). The focus of new public law is on how the law can influence policy outcomes.
The 2012 Salmon Lecture presented by Justice Christian Whata of the New Zealand High Court explores the relationship between risk, regulation and fundamental rights. His paper provides a timely analysis of the dichotomy between rights-based approaches to environmental and resource management law, and the legal response to crises. These are important issues for New Zealand jurisprudence in terms of the need to craft special legislation to deal with the aftermath of the Christchurch earthquakes, the administration of the Canterbury water allocation crisis and to provide a resilient and agile response to the global economic crisis that preserves and enhances New Zealand’s competitiveness in the world economy; and how these issues can be reconciled with public law principles regarding natural justice and the rule of law?
The papers by leading New Zealand environmental law academics, Professor Alexander Gillespie of the University of Waikato and Ceri Warnock of the University of Otago, provide further in-depth analysis of the precautionary principle and the difficult value judgments required when assessing psychological effects, which are both key issues in terms of crafting an enduring and resilient legal and regulatory response to risk management. These papers are republished with kind permission of the Editorial Board of the New Zealand Universities Law Review.
The papers on offshore drilling in New Zealand’s exclusive economic zone and our ability to respond effectively in cases of emergency, the agility of our legal framework to respond to maritime disasters such as the grounding of the MV Rena on the Astrolabe Reef in the Bay of Plenty, and new techniques for oil and gas exploration and development such as hydraulic fracturing, also bring issues of risk and resilience sharply into focus. These issues are fully addressed by emerging New Zealand lawyers and scholars, and demonstrate the commitment of the RMLA to mentoring future generations of environmental and resource management practitioners.
New Zealand has been a leader in the development of public law as evidenced by the enactment of the Town and Country Planning Act 1953, Parliamentary Commissioner (Ombudsman) Act 1962, and the Judicature Amendment Act 1972. These statutes liberalised public law by legislating for an environmental court, an informal grievance procedure to look after citizen’s interests in their dealings with government, and providing for enhanced public accountability via the legal regulation of governance. They have also provided the catalyst for similar reforms across the common law world.
The public law issues that formed the heart of these reforms are currently the topic of crucial and important debate in terms of the future role of merits appeals to the Environment Court regarding policy statements and plans. The paper by Judge Newhook provides a neutral analysis of the Court’s performance, while the paper by Derek Nolan and the environmental and resource management team at Russell McVeagh provides a considered and powerful analysis of reform proposals and concludes that current proposals fall short of the mark in terms of ensuring natural justice. Interestingly, New Zealand lawyers have a unique role in the common law world as the statutory guardians of the rule of law.
The RMLA scholarship paper by Julie Abbari provides an introduction to a new and interesting debate about light pollution and protecting our ability to view the sky at night, both in terms of the range of potential adverse environmental effects that may need to be addressed, and in terms of the physical limits of land use regulation under the RMA based on the rule that:
… the owner of the soil is presumed to be “the owner of everything up to the sky and down to the centre of the earth” according to the maxim cuius est solum eius est usque ad coelum et ad inferos.
The paper by Gordon Whiting, formerly Environment Judge, Environment Court of New Zealand, continues the journal’s focus on environmental adjudication and expert evidence. It also readily illustrates the dynamic and evolving practice before the Court, and its dual commitment to both speed and quality of decision-making. This paper is republished with kind permission of New Zealand Acoustics and the Acoustical Society of New Zealand, as a tribute to Judge Whiting’s sustained contribution to the development of environmental and resource management law and practice. This issue of the journal also heralds a new and significant development with the announcement, on page 6, of the establishment of an International Advisory Panel to secure the journal’s continued development as a vehicle for in-depth analysis that reflects the comparative, international and transnational nature of environmental and resource management law.
Finally, the 2014 volume of Resource Management Theory & Practice will focus on the challenges of promoting the sustainable management of natural and physical resources in an economically sustainable way, and how the tension between these objectives can be resolved within an agile, coherent, soundly based and resilient legal framework. These issues will be explored in the context of the developing jurisprudence of Australia and New Zealand environmental and resource management law.
Royden Somerville QC
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;
Adjunct Professor Rob Fowler, University of South Australia;
Professor Alexander Gillespie, University of Waikato, New Zealand;
Professor Lee Godden, University of Melbourne, Australia;
Professor Malcolm Grant, President & Provost, University College London, UK;
Associate Professor Irene Lye Lin Heng, National University of Singapore;
Professor David Hodas, Widener University, Maryland, USA;
Professor Timo Koivurova, University of Lapland, Finland;
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 Nilufer Oral, Instanbul Bilgi University, Turkey;
Professor Melissa Powers, Lewis & Clark Law School, Oregon, USA;
Professor Benjamin Richardson, University of British Columbia, Canada;
Associate Professor Svitlana Romanko, Prykarpatsky National University, Ukraine
Associate Professor Christina Voigt, University of Oslo, Norway