New Zealand: ENVIROLINK: Environmental Law Newsletter October 2001

Biosecurity Minister, Hon. Jim Sutton, recently launched a national programme designed to raise public awareness of the importance of protecting New Zealand against the economic and social consequences arising from biosecurity threats.

Entitled "Protect New Zealand", the programme is primarily focused at raising awareness across all sectors of the risks introduced pests and diseases pose for New Zealand. The Protect New Zealand campaign covers biosecurity awareness in the marine/aquaculture, horticulture, agriculture, forestry, conservation, environmental and health sectors. It targets awareness of pre-border, border and post-border biosecurity measures and responsibilities.

Further information on the Protect New Zealand campaign is available on the website www.protectnz.org.nz.

The launch of the campaign coincides with the release of a national issues paper entitled "Developing a Biosecurity Strategy for New Zealand". Produced by the Biosecurity Strategy Development Team, the paper provides an outline of issues related to biosecurity risks that threaten our economy, health and environment.

The issues paper will form the basis of nation-wide public consultation prior to the release of a final biosecurity strategy in December 2002. The consultation includes a "Protect New Zealand Week" and international conference planned for May 2002. A nation-wide series of workshops, public meetings and a national hui are also planned in October to November 2002.

The issues paper, and other information about the biosecurity strategy, is available on the website www.biostrategy.govt.nz.

The Energy Efficiency and Conservation Authority (EECA) has released its National Energy Efficiency and Conservation Strategy. The two main targets are:

1. a 20 percent improvement in New Zealand’s energy efficiency by 2012; and
2. a further increase of between 19 percent and 42 percent in energy production from renewable sources by 2012.

Five action programmes (for Government, energy supply, industry, buildings and appliances, and transport) are designed to help achieve the strategy targets.

Mechanisms being evaluated to achieve the increase in energy production from renewable sources include:

• Tradable renewable energy requirements for all energy retailers;
• Tradable renewable energy requirements specific to electricity retailers;
• Tradable fossil fuel use restrictions for all electricity generators and other energy suppliers;
• Support for sectors such as solar hot water and renewable industrial process heat; and
• Voluntary measures such as negotiated industry agreements or green pricing of renewable energy.

The strategy also includes other measures such as minimum energy performance standards and labelling for generic industry equipment, sector energy efficiency studies, international benchmarking and research on woody biomass utilisation.

The action programmes are largely of a voluntary nature. However, previous initiatives, such as the Energy Wise Companies campaign, also run by EECA have proved successful, with 700 of New Zealand’s largest organisations already part of that campaign.

339 public submissions were received on the strategy, a copy of which can be viewed on line at www.eeca.govt.nz.

Submissions on the review co-ordinated by the Hon. Pete Hodgson (in culmination with the Ministry of Economic Development) on the way New Zealand’s electricity system functioned over the winter closed on 5 October 2001.

Submissions will be posted on a public website, and cross-submissions will be invited. Following the submission process, cabinet will be invited to make decisions on whether further changes are required to electricity arrangements.

The terms of reference of the review are:

1. What factors contributed to wholesale electricity market developments in the 2001 winter?
2. How effective were the existing market arrangements in responding to these developments?
3. What changes should be made to market arrangements, why are these changes recommended and what are the costs and benefits?
4. What changes to the Energy Efficiency and Conservation Campaign should be considered in case the need arises in future for a similar campaign?

Submissions are posted on: www.winterreview.govt.nz. There is opportunity for parties to comment on the submissions of others, and cross-submissions are due by 19 October 2001.

The Taonga Maori Protection Bill was presented to the House by the Minister of Maori Affairs, Hon. Parekura Horomia, on 6 September 2001. The Bill, currently at the Select Committee stage, was originally introduced by Tau Henare in 1996.

The Bill essentially provides for the preservation of Maori cultural heritage in New Zealand and related purposes. In particular, the Bill provides for:

• The establishment of the Taonga Maori Trust. The Trust would assist the Ministry of Maori Development in the administration of the Taonga Maori Register, which would record the location of "taonga" (defined as physical treasures), held off-shore. The Trust would also work with the Ministry of Maori Development in arranging the return of taonga to iwi.

• The prohibition of sale or alienation of physical Maori taonga without the prior consent of Maori through consultation.

• The requirement for multi-national corporations and foreign companies to include in their annual reports mechanisms and initiatives pursued in the protection of taonga. In addition, prior to beginning operations in New Zealand, foreign companies would be required to illustrate their understanding of the need for the protection of taonga and a practical commitment to achieving that objective.

Before the Bill is passed, the Select Committee will need to address several important issues. For example, there is concern that the Bill limits taonga to physical cultural property, whereas Article II of the Treaty of Waitangi allows for a far wider interpretation of "taonga". In the 21 May 2001 edition of Envirolink we discussed the High Court’s consideration of the term "taonga", and whether it can include both tangible and intangible aspects, in the Blakeley v ERMA decision. Further, the Bill does not currently contain provision for Regulations to specify the detail of protection policies, or sanctions for breaching the Bill.

The Court in Arrigato considered two questions of law arising from the High Court decision. One of those questions concerned the "permitted base line" test, and whether an unimplemented resource consent could be taken into account under that test.

In the July 2001 edition of Envirolink, we discussed the Court of Appeal’s decision regarding the permitted baseline test in Smith Chilcott Ltd v Martinez.

In Arrigato the Court of Appeal affirmed its earlier decision in Smith Chilcott, and stated that:

The Court then turned its mind to whether the above test should be expanded so as to include unimplemented resource consent activities within the permitted baseline. There is an important difference between what is permitted under a plan and what is allowed under a resource consent, and the Court considered submissions which were made in respect of "environmental creep". That expression describes a process whereby having achieved a resource consent for a particular activity or building, a person may seek consent for something more, and try to use their existing unimplemented consent as the baseline from which the effects of the additional proposal are to be assessed.

Ultimately the Court decided that the competing contentions in this area require a flexible approach and that there could be no rigid rule either way. While what is permitted as of right by a plan is deemed to be part of the relevant environment, further assessment of the relevant environment and relevant effects are essentially questions of fact. On the facts in Arrigato, the Court held that the Environment Court did not err in taking into account Arrigato’s existing resource consent.

In Dye v Auckland Regional Council, the Court of Appeal restored the Environment Court’s decision to grant a resource consent for the subdivision of land in the Rodney District. The appeal was heard immediately after Arrigato, and judgment was given contemporaneously, as essentially the same issue was in question.

As in Arrigato, the plaintiff intended to subdivide rural land.

The resource consent was granted by the Environment Court, and the case was appealed to the High Court. The High Court held that the Environment Court had misinterpreted or misunderstood the objectives and policies of the Rodney District Plan because, in its view, the Environment Court did not pay proper regard to the relevant planning documents in accordance with section 104 of the Act. To this end, it was held that the Environment Court had erred in law.

The Court of Appeal held that the High Court was not entitled to come to its decision because it was not open for the High Court to differ in its assessment of whether the subdivision was contrary to the relevant objectives and policies. The Court of Appeal stated:

After a detailed examination of the relevant policy documents the Court of Appeal held that the Environment Court was entitled in reach its conclusion and had not erred in its assessment of the subdivision under sections 104(1)(a) and 105(2A)(b).

The Court of Appeal also examined the issues of "precedent" and "cumulative" effects which were raised in the High Court. In relation to precedent effect, the High Court held that the Environment Court had erred in finding that its decision would produce no precedent effect. However, the Court of Appeal held that the Judge in the High Court had moved outside the scope of the law in considering the precedent effect of the Environment Court’s decision. It held that the granting of a resource consent had no precedent effect in the strict sense because a consent authority is not bound by a previous decision of the same or another authority. Furthermore, as no two applications are likely to ever be the same, the most that can be said is that the granting of one consent may have an influence on the other application.

On the issue of cumulative effects, the Court of Appeal found that it was not a mandatory requirement to make an area-wide assessment of all possible effects of granting of consent, as suggested by the High Court. The Court of Appeal held that the express definition of "effects" provided in section 3 was not relevant in interpreting s104(1)(a) since the purpose of that section was to address only adverse effects which were "actual" or "potential". As such, the Environment Court was not required to take into account "potential cumulative precedent effects" which would stretch the intention of Parliament beyond what was intended by the Act.

• Submissions can currently be made to the Ministry for the Environment on:

• the draft action plan for reducing dioxin discharges. Submissions close December 2001;

• the establishment of controls for stationary tanks containing hazardous liquids. Submissions close November 2001; and

• the draft guidelines for the management of hazardous waste. Submissions close January 2002.

• Petrol and diesel quality standards

• Environmental standards in international trade agreements?