New Zealand

AuthorRobert Makgill
Pages909-932
CHAPTER 46
New Zealand
ROBERT MAKGILL*
I. Overview and Structure
New Zealand (Aotearoa) is an archipelago located in the Southern Pacific
Ocean southeast of Australia. The two main islands are the North Island (Te
Ika a Maui) and the South Island (Pounamu). These islands are over 1,600
km in length,1 and characterized by an extraordinarily varied landscape.
New Zealand’s total land area is 268,670 square kilometers (km),2 making it
about the size of the state of Colorado.3 Its coastline measures 18,000 km4
and its territorial waters encompass 16.3 million hectares.5 The country’s
exclusive economic zone (EEZ) is the fourth largest in the world, with an
area about 15 times that of its land mass (or 5.7 percent of the world’s EEZ).6
Close proximity to the coastline and a vast ocean jurisdiction means that the
coastal environment plays an important role in New Zealand’s culture and
economy, while a relatively small population (4,451,052)7 means that exports
of natural resources account for a large proportion of gross domestic prod-
uct.8 New Zealand’s principal industries are agriculture, horticulture, fish-
ing, forestry, and mining, which make up about half of the country’s exports.9
Major sources of environmental pressure include agriculture, transport, tour-
ism, and energy production and consumption.10
New Zealand is a Westminster-styled parliamentary democracy.11 The
Crown12 is the foundation of the executive, legislative, and judicial branches
of government.13 The Crown does not, however, participate in the legislative
process save for granting assent to bills passed by Parliament to be enacted
into law. The political party (or coalition) with an elected majority of seats in
Parliament forms the government. The government is controlled by a prime
minister and his/her cabinet. The cabinet is responsible for deciding key
government policy and actions. New Zealand’s reliance on natural resources
means that the management of natural resources is a principal focus of envi-
ronmental policy (irrespective of which political party controls the govern-
ment at a given moment).14
*The author would like to thank Susann Kerstan, an intern at the New Zealand Center for
Environmental Law, Auckland University, for her assistance in writing this chapter.
909
New Zealand’s legal system finds its roots in the English common law
tradition. Subsequently, it does not have a written constitution and is formed
by two main sources of law: statutory law (or legislation) made by Parlia-
ment and common law developed by judges through decisions of courts.
Environmental law in New Zealand is principally administered through
public law,15 and is therefore composed of a comprehensive set of statutes
that codify environmental rights and duties. The country’s environmental
common law is composed of the decisions of its judiciary and the judiciary
of other commonwealth courts where relevant (especially that of the United
Kingdom, Australia, and Canada). Although common law is typically
thought of as precedent formed in the absence of statute, it is important to
note that most of New Zealand’s existing environmental precedent is
founded on the interpretation and application of environmental statutes. As
environmental law has an administrative tradition in New Zealand, public
statutes do not always satisfactorily address issues of private liability (i.e.,
liability to private parties as opposed to the Crown,16 which acts on behalf of
the public). This means that parties must resort to common law remedies for
environmental damage where statutes fail to remedy or mitigate the private
cost of an act causing environmental harm.17
A. Principal Environmental Statutes
The Resource Management Act 1991 (RMA) is the principal overarching stat-
ute for managing natural and physical resources. It is important to note that
this excludes the allocation of minerals and hydrocarbons (i.e., gas and oil),
and all fishing activities (including protection of areas from fishing activi-
ties). However, the RMA does address the effects of mining activities and of
facilities and infrastructure associated with fishing.18 Enacted before the Rio
Earth Summit, the government drew on the Brundtland Report’s19 treatment
of sustainable development to shape the purpose of the RMA. The fact that
the RMA introduced the concept of sustainability into domestic legislation
facilitated New Zealand’s rapid signing of Agenda 21,20 and the subsequent
ratification of two international environmental agreements and the U.N.
Convention on the Law of the Sea (UNCLOS), which includes extensive
environmental provisions.21
Sustainable development is defined under the Brundtland Report as
“development that meets the needs of the present without compromising the
ability of future generations to meet their own needs.”22 The concept of
“needs” under the report pays particular attention to the needs of the poor, to
which the report suggests overriding priority should be given.23 To this extent,
sustainable development “implies a concern for social equity,” and can be
said to seek to redress imbalances in resource allocation.24 In context, the pur-
pose of section 5 under the RMA is deliberately based on sustainable manage-
ment rather than sustainable development. It does not seek to regulate social
equity. It does not seek to redistribute wealth, and it does not seek to equitably
allocate rights to development. It is effectively a form of development control
910 INTERNATIONAL ENVIRONMENTAL LAW

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