“Climate refugees” revisited: a closer look at the Tuvalu decision

Vernon Rive . 14/08/2014 11:41:04 p.m.

The origin of phrase “environmental refugees" is typically credited to a United Nations Environment Program researcher Essam El-Hinnawi in a 1985 paper with that phrase as its title. The concept of “Climate change refugees” had been in circulation amongst academic and NGOs circles since the late 1970s and in recent years has entered popular consciousness through widespread media coverage assuming ever-increasing levels of drama and sensationalism.

In the South Pacific context, the high water mark of media spin on the issue might be represented by Al Gore's mention in his 2006 documentary An Inconvenient Truth of the supposed evacuation of the residents of a number of  low-lying islands in the Pacific Ocean to New Zealand because of the effects of global warming, an observation specifically rejected as baseless in the 2007 UK High Court decision in Dimmock v Secretary of State for Education and Skills.

Widespread and consistent rejection within academic and policy circles of both the concept and terminology of "environmental refugee" or "climate change refugee" has not, it seems, deterred commentators (and even some non-governmental organisations (PDF) who should know better) from continuing to adopt the labels.

So it has been no particular surprise that when a family from Tuvalu holding expired visitors permits appealed to the New Zealand Immigration and Protection Tribunal against deportation citing, amongst other things, hardship resulting from climate change-related environmental degradation in their home country - and secured the right to stay (PDF) - another round of sensationalist international media coverage has ensued.

As is typically the case with the reporting of court decisions, within the confines of a six-sentence story or three-minute clip, subtle (and sometimes not so subtle) points are overlooked or misreported.  The surface needs scratching a little deeper.  

This article by Prof Jane McAdam at UNSW Law does exactly that.  Prof McAdam has published widely on issues of forced migration and has rightly established a reputation as a leading international academic researcher, analyst and advisor on displacement/forced migration and refugee law.  She's been living and breathing climate change-related international and domestic law for many years and has unsurprisingly become the ‘go to' legal academic for commentary and advice on these issues.

My analysis generally lines up with hers on the interpretation and significance of the NZ IPT Tuvalu decision.  But I draw some additional, and possibly slightly different, points from the case to those outlined by Prof McAdam.  

We both agree that media descriptions of the IPT decision as "the first climate refugees" are wildly off the mark.  The Tribunal devoted 37 pages of carefully reasoned analysis to conclude exactly the opposite.  Like the earlier case dealing with i-Kiribati national Ione Teitiota and his family, the IPT (affirmed on appeal by New Zealand's High Court, and then Court of Appeal) held - uncontroversially from the perspective of most refugee practitioners and commentators - that although the impacts of climate change on low-lying atoll such as Kiribati and Tuvalu are real and concerning, except in very specific circumstances (which did not apply in either case) people fleeing climate change are not "refugees" in the legal sense.  Nor could they be regarded as "protected persons" under the International Covenant on Civil and Political Rights or the Convention against Torture.  

Where the recent case involving a Tuvaluan family differed from the line of decisions in the Teitiota litigation was that the appellants from Tuvalu were able to appeal against deportation under a particular provision of New Zealand's immigration legislation: section 207 of the Immigration Act 2009.  It states:

The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—

(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.

The statutory references to "exceptional circumstances" and "in all the circumstances" require, as you would expect, the full factual matrix surrounding the appellants and their appeal against deportation to be analysed.  That is what the Tribunal did.  

There were a number of compelling circumstances which took the case out of the ordinary.  The Tuvalu-based husband was among the remnants of a sizeable family which had effectively relocated to New Zealand. All but one of his six sisters had secured residency in New Zealand and established a strong family base here.  His elderly mother - also resident in New Zealand - required care and support relying on her son to perform that role.  The couple had produced two children while in New Zealand. They were well settled and integrated into their New Zealand family and society.  It appeared that there may have been legitimate “pathways” to legal residency which, had they been better pursued at the right time, would have regularised their New Zealand residency.

Alongside the family circumstances and facts relating to the residency process, factors relating to climate change were also advanced, and accepted as factually credible by the Tribunal.  These included regular events of seawater inundation resulting in coastal erosion and impact on food production.  Referring to the 1989 United Nations Convention on the Rights of the Child, the Tribunal recorded a specific finding (at paragraph 25) that the young age of the two children (five and three years):

“…makes them inherently more vulnerable to natural disasters and the adverse impact of climate change as noted above.”

As Professor McAdam notes, “in the end, the Tribunal allowed the family to stay in New Zealand on humanitarian grounds.” She goes on to note:

“The Tribunal’s decision to let the family stay in New Zealand as permanent residents was not based on the impacts of climate change in Tuvalu. Indeed, the Tribunal deliberately refrained from making a finding on this point. It did not need to do so because there were other exceptional humanitarian circumstances – namely, strong family ties – that justified granting them resident visas.”  

I agree that the decision was not "based on” the impacts of climate change in Tuvalu.   The evidence and submissions relating to climate change-related hardship that would be suffered if the family were required to return would not, alone, have been enough to satisfy the stringent "exceptional humanitarian grounds" test. It’s fairly clear that the family would have been granted humanitarian relief in any event because of the other compelling factors at play.  

However – and this is where I take a slightly different tack to Professor McAdam – that is not to say that the climate change-related factors were not taken into account at all as part of the wider factual assessment required under section 207.  

As I read the decision, the Tribunal accepted not only that the climate change-related factors cited on behalf of the Tuvaluan family were legally relevant in principle, but were in fact taken into account when reaching a conclusion on exceptional circumstances of a humanitarian nature.  I take that point from paragraph 30:

[30] The Tribunal is satisfied that, when the above matters are taken into account on a cumulative basis, there are exceptional circumstances of a humanitarian nature, which would make it unjust or unduly harsh for the appellants to be removed from New Zealand.

The “above matters” were not specifically identified in paragraph 30. Paragraph 30 is immediately preceded by three paragraphs under the heading "Climate Change and Environmental Degradation as a Humanitarian Circumstance”.  In paragraph 29 (directly “above” paragraph 30) the Tribunal refers to the companion refugee and protection decision in the same set of appeals, and cites a passage from para [16] of that decision:

“…Population growth was already placing pressure on sensitive environments and major sources of food security and livelihoods, and these effects can be exacerbated by adverse effects of climate change. Drought was anticipated to increase in severity in the future. The low elevation and limited land area of Tuvalu meant that the most direct and severe anticipated effects of climate change will be an increasing risk of coastal erosion, flooding and inundation. Other anticipated direct effects were stated to include an increase in dengue fever risks and water borne diseases, an increase in human stress, and decreasing agricultural yields.”

I think the natural interpretation of the words in paragraph [30] is that the Tribunal had regard to all of the surrounding facts and circumstances - the climate change-related ones alongside the family connections and other matters.  Climate change was not an overriding factor. But it was there as part of the mix.  The combination of the strong familial connections in New Zealand, the husband’s obligations towards his mother, the peculiarities of his residency application process, and the climate change considerations cumulatively amounted to "exceptional circumstances of a humanitarian nature, which would make it and just or unduly harsh for the appellants to be removed from New Zealand."

The Tribunal - no doubt acutely alive to the potential for further applicants relying on climate change-related circumstances - considered it necessary to manage expectations regarding that issue.  At paragraph 33, it said:

“It is not, however, necessary on the facts of this appeal to reach any conclusion on this [climate change] issue in relation to any of the appellants as the Tribunal is satisfied that by reason of the other factors identified in this case, there are exceptional circumstances of a humanitarian”

In the context of the decision as a whole, I don’t read that as inferring that the climate change factors were put to one side entirely.

If that had been the intention, paragraph 30 would sit a little awkwardly: at best ambiguous (was the reference to "above matters" meant to be to everything above except climate change, or, something broader?) at worst, just inconsistent with paragraph 33.  And I'm not sure that the acceptance of the “inherent vulnerability of the young children to natural disasters and the adverse impact of climate change” would have been conveyed in the unqualified words of paragraph 25 if, ultimately, the Tribunal proposed to put all of this to one side.  

So does it matter if climate change factors were or weren't taken into account as part of the assessment on exceptional humanitarian grounds in this particular case?  I think so.  

It's one thing to hold that the hardships on adults and children resulting from climate change in low-lying states such as Tuvalu and Kiribati might theoretically be relevant humanitarian circumstances but No Finding is Made In This Case. It’s something else to say that these climate change related factual circumstances are relevant, and because they are relevant, form part of the (inevitably wide) matrix of circumstances that will always need to be assessed cumulatively, on a case by case basis.  Perhaps in a future IPT decision the point will be clarified. I think the latter interpretation fits, not only with a natural reading of the case, but the policy and legal framework.  There’ll be other views, of course.  

The Tribunal appropriately clarified that it is not enough to claim to be impacted by climate change to get over the line on exceptional humanitarian grounds.

To my mind, it is not necessary to read down the decision any more than that.

By Vernon Rive on 14/08/2014 11:41:04 p.m. | Comments (0) | Print

Formerly New Zealand’s Fourth Most Climate Refugee

Vernon Rive . 22/10/2013 1:14:52 a.m.

Over the last fortnight, international media have lavished attention on a decision (PDF) of the humble New Zealand Immigration and Protection Tribunal with an energy usually reserved for political scandals or celebrity breakups. Outlet after outlet have breathlessly heralded the bid for asylum in New Zealand by a 37-year old resident of low-lying Pacific atoll Kiribati as 'the world's first climate refugee', seemingly oblivious to the fact that 'first’ label has already been used to describe climate-displaced communities in Alaska, Papua New Guinea, and Tuvalu.

In fact, the Kiribati citizen’s attempt to secure refugee status in New Zealand because of climate change is not the first case of its kind to come before our immigration authorities. In 2000, a group of applicants from Tuvalu unsuccessfully sought refuge in New Zealand, citing rising sea-level and other challenges as grounds for asylum.  The IPT’s predecessor, the New Zealand Refugee Appeals Authority, dismissed the claims (PDF), saying “This is not a case where the appellant can be said to be differentially at risk of harm amounting to persecution due to any one of these five [Refugee Convention] grounds. All Tuvalu citizens face the same environmental problems and economic difficulties living in Tuvalu.”
What makes the most recent IPT decision notable is the depth of analysis of Member Bruce Burson's examination of the i-Kiribati case under international refugee and New Zealand domestic immigration law.

And what makes the case news - big news all over the world - is that unlike most applications of this sort, this one has been taken to the High Court. So there is significant interest in what will be one of the first appellate rulings on issues which have been the subject of widespread academic debate, but hardly ever face detailed scrutiny by appellate judges.

The IPT's findings in its 25 June decision reflected mainstream views on the status of so-called ‘climate refugees’ at international law. The 1951 Refugee Convention, originally designed to address the legal status of millions of displaced people after the Second World War was crafted with quite different purposes in mind, and certainly well before the spectre of climate-displaced persons had entered public consciousness.

Despite the creative attempts of some lawyers and academics to argue otherwise, the Refugee Convention doesn't cover environmentally displaced people. It is almost certain that the High Court will confirm this in its reserved decision in a few weeks.

Acknowledging the widely accepted 'protection deficit' (PDF) at international law, international organisations have, for some time, been working on possible solutions. Earlier this year, the Norwegian and Swiss-led Nansen Initiative held a  first round of consultation meetings in Raratonga to work towards arrangements to address the ‘needs of people displaced across international borders by natural disasters, including the effects of climate change.’

In light of predictions (PDF) of hundreds of thousands of  climate-displaced people in the South Pacific by 2050 – a reasonable number of which can be expected to look towards New Zealand’s relatively safer shores for homes - is the Government working on a proactive response plan? Not so much. Papers that I obtained from MFAT under the Official Information Act earlier this year confirm that the government is aware of the issue, but is content, at this stage, to adopt a 'wait and see' approach. In a January 2013 MFAT briefing paper to the Associate Climate Change Minister, officials advised:

“‘[E]nvironmental refugees’… have no current status under international law…New Zealand has indicated that it will continue to respond to climatic disasters in the Pacific and manage changes as they arise…"

Media reporting that New Zealand has agreed to take ‘environmental refugees’ from Tuvalu…is incorrect.  There is no such policy.  However New Zealand will continue to monitor the situation and provide climate change assistance and disaster relief as it has always done.”

For now at least, would-be climate migrants from the Pacific and elsewhere seeking refuge in New Zealand continue to face deportation and an uncertain future in home countries increasingly at risk from the effects of global warming.

By Vernon Rive on 22/10/2013 1:14:52 a.m. | Comments (0) | Print

NZ law blogs

Vernon Rive . 19/02/2013 12:00:00 a.m.

From slim pickings in the early days, the number and quality of blogs by New Zealand lawyers has taken off in the last couple of years. Some pretty useful material is being produced regularly by a group of internet savvy lawyers which will often be relevant to issues that come up in law practice and studies. The following list is by no means exhaustive, but includes some sites that I've come across in my travels.

Wellington media law expert, barrister and academic Steven Price has been blogging for quite a few years now, and delivers consistently insightful and informed perspective on a range of issues around media and technology. Highly recommended. http://www.medialawjournal.co.nz/

There are a couple of excellent blogs run by legal academics on public Law issues, including Dean Knight’s Laws 179: Elephants and the Law (http://www.laws179.co.nz/) and Andrew Geddis’ contributions to Pundit (http://pundit.co.nz/blogs/andrew-geddis).

Stephen Franks - former right-wing politician, now back in the commercial law saddle, is worth a look on a range of commercial and public issues. (http://www.stephenfranks.co.nz/)

Legal beagle Graham Edgeler has been blogging for quite a while - recent posts of his have included commentary on the Constitutional review and the Kim Dotcom saga. He describes himself as having a 'strong interest in constitutional law, including free speech issues and open justice’.(http://publicaddress.net/legalbeagle/)

If you're interested in employment law, then you should check out Minter Ellison senior associate Bridget Smith’s blogs on the New Zealand Herald website.(http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10700157).

See also Prof Gordon Anderson's blog (also Vic Uni) http://labourlawnz.blogspot.co.nz/.

Intellectual property and technology lawyer by day, law blogger by, um, other times, Scott Yorke has attracted a growing following at Imperator Fish blog where he blogs mostly about 'news, politics and law'.( http://www.imperatorfish.com/)

Scott Yorke includes Hong Kong-based Cathy Odgers (byline… ‘Saving the world from sanctimonious and bearded men. One whisker removed at a time.’) on his (2011) list of New Zealand law bloggers, observing ‘Her blogging style is aggressive and forthright and she delights in furiously attacking people who don’t share her strongly-held opinions, which are firmly on the right side of the political spectrum. She blogs mainly on political and business issues’. (http://asianinvasion2006.blogspot.co.nz/)

(Generally, see Scott's excellent overview of New Zealand law bloggers at http://www.imperatorfish.com/2011/01/new-zealand-lawyers-who-blog.html).

An increasing number of practising lawyers are also running law blogs on the side, including Buckingham Law (employment, ACC) (http://www.buckinghamlaw.co.nz/blog/), Laurent Law (immigration) (http://blog.laurentlaw.co.nz/), Lowndes Jordan’s Rick Shera (IT, IP, technology) (http://lawgeeknz.posterous.com/), Guy Burgess (Law and technology) (http://blog.laurentlaw.co.nz/).
For Maori and indigenous issues, see Carwyn Jones’ Ahi-ka-roa (http://ahi-ka-roa.blogspot.com/)

By Vernon Rive on 19/02/2013 12:00:00 a.m. | Comments (1) | Print

Groser finally 'fesses up: no Kyoto CP2 for New Zealand

Vernon Rive . 9/11/2012 5:23:30 p.m.

The news has broken today that New Zealand will not participate in a second commitment period under the Kyoto Protocol.

Since the last round of UN climate talks in Durban, December 2011, New Zealand politicians have been studiously avoiding being drawn on whether New Zealand would join the EU and other nations in a second commitment period under the Kyoto Protocol, whose first legally binding commitment period expires in less than eight weeks. As recently as the end of October, acting Climate Change Minister Simon Bridges was quoted as saying that the Government had "not made a decision" on its commitment.  So, today's announcement doesn't exactly come as a surprise.  However, it will be viewed by many as further evidence that the current administration has no real intention of maintaining New Zealand's historic international leadership position on climate change mitigation.

In effect, New Zealand will not be subject to an international legally binding commitment to reduce emissions for the period 2013-2020. It hasn't retreated from its voluntary commitments (first made as part of the Copenhagen Accord in 2009 and confirmed in Cancun in 2010). But it is "keeping its powder dry" on legally binding commitments pending the outcome of the new global treaty negotiations which began in earnest in Doha in a few weeks.

Today's announcement contrasts starkly with Friday's news that Australia will sign up to a second Kyoto commitment.  Like Minister Groser, Australian Climate Change Minister Greg Combet has acknowledged the need for a global treaty. However unlike his New Zealand counterpart, Combet has frankly accepted that without action being taken now, the Australian economy would face a "severe economic shock" from 2020 (the date earmarked for commencement of a yet-to-be-negotiated global treaty).  Combet observed with some force, “it is better to tackle it now”.  With New Zealand's primary policy instrument for climate change mitigation - the ETS -  in what might be described as a politically induced coma, the same might be said of New Zealand.

By Vernon Rive on 9/11/2012 5:23:30 p.m. | Comments (2) | Print

One Leviathan is enough: nuanced ruling from Whata J on climate and the coal consent process

Vernon Rive . 6/09/2012 8:35:05 a.m.

In a wide-ranging judgment delivered on 24 August 2012 containing Whata J’s most detailed discussion of the scheme, principles and provisions of the Resource Management Act 1991 since his appointment to the High Court Bench in March 2011, the High Court has ruled that climate change considerations of two controversial South Island coal mining proposals are legally irrelevant when assessing land use applications under the Act.
The decision ends a period of uncertainty for the subsidiary of Australian mining company Bathurst Resources Limited as well as beleaguered SOE Solid Energy triggered by declaration applications to the Environment Court by two environmental groups (Royal Forest and Bird Society and West Coast ENT) in March.  The groups had asked for Court determinations that the effects on climate change from millions of tonnes of CO2 that will be emitted when coal from the Mt William North and Escarpment mines is burnt in steel-making factories in India, China, Japan, Brazil and South Africa should be considered during the land use consent process for the mines under the RMA.

In April 2012, acting Principal Environment Judge Newhook ruled in the miners’ favour.  He held that the RMA, as amended by the Resource Management (Energy and Climate Change) Amendment Act 2004 contained no “ambiguity, uncertainty, or room for discretion or “choice"…" regarding the ability to consider the effects on climate change linked with the proposals at issue.  RFBS and West Coast ENT appealed to the High Court.

Whata J’s decision is a sequel to a series of contentious cases between 2006 and 2008 involving Greenpeace, Mighty River Power and Genesis Energy concerning the proposed ‘Marsden B’ coal-fired power station in Northland and gas-fired power station in Rodney.   That litigation culminated in a majority decision of the Supreme Court that in light of the 2004 amendments, consent authorities could not consider the adverse impacts on climate change when assessing applications for air discharge consent needed for non-renewable energy generation projects.  The Court held that the purpose and associated provisions of the 2004 amendments made it clear that Parliament intended that climate change effects from non-renewable energy projects should be regulated at the national level (such as through the emissions trading scheme established by the Climate Change Response Act 2002) and not on a case-by-case basis by regional councils assessing a discharge permit applications.  

The Greenpeace litigation concerned the relevance of climate change effects when assessing applications for air discharge permits for New Zealand-based non-renewable energy projects. What it did not explicitly deal with was whether councils (and the Environment Court on appeal) could consider the effects on climate change when assessing land use applications.   Nor had the Supreme Court addressed issue of whether the fact that extracted coal would be exported and burnt overseas made any difference to the legal position under the RMA.

Those issues were at the heart of the March and July 2012 hearings.

In the Environment Court, counsel for the environmental groups (which included Sir Geoffrey Palmer) argued that neither the 2004 amendments, nor the Supreme Court decision in Greenpeace and created any impediments to considering impacts of climate change from the ultimate burning of mined coal when assessing land-use consents for the mining projects. The Greenpeace cases revolved around interpretation of a particular provisions (104E) which the Supreme Court had accepted explicitly prohibited consideration of climate change and impacts from non-renewable energy projects.  But that provision was not engaged in the present case. Counsel argued that the provision governing the assessment of land-use applications (s104(1)(a)) contained no prohibition - explicit or implied - on considering the downstream climate change impacts of coal combustion. Whether the coal was ultimately burnt in New Zealand or elsewhere, on a plain reading of the section and in light of the sustainable management purpose of the RMA, the adverse impacts on climate change should be considered.

Submissions on behalf of the environmental groups were rejected by the Environment Court in a succinct 14 page decision, which dismissed each of the contentions in short order.  

Whata J reached the same essential position.  However his more detailed decision provides a more nuanced analysis of the issues that will be of general interest to legal, planning and environmental practitioners - whether involved in non-renewable mining and energy generation facilities or not.

Whata J conceded that it might be “intuitively attractive" to treat s104(1)(a) RMA as conferring “a broad or unfettered discretion … to consider the effects of land-use activities, including the greenhouse gas effects of related secondary uses.”  However he reached the view that as a matter of interpretation, the scheme of the Act (as amended in 2004) created a necessarily implication that climate change impacts should not be considered when assessing a land-use application, unless a relevant national environmental standard had been promulgated.

On the question of overseas discharges, His Honour acknowledged that unlike discharges within New Zealand, those discharges could never be the subject of national environmental standards.  So, it could well be that “they will not be subject to assessment under the rubric of sustainable management".  However he found that because nothing in the RMA confers powers to regulate activities extra-territorially, there is simply no jurisdiction under the RMA to consider the effects of coal burning in other countries:

“One leviathan of environmental law (i.e. the RMA) is more than enough for lawyers, experts, environmental managers, planners, the local authorities and the courts of this country. The prospect of a district council assessing whether an end use of coal… is subject to sustainable environmental policy… in Cambodia … China, in Japan or Brazil, Zimbabwe or Kenya… is palpably unattractive.”

RFBS and West Coast ENT have confirmed that they will continue to oppose the mining proposals.  But climate change effects will not be amongst the matters able to be advanced in any future hearings.

(Article in forthcoming Spring 2012 issue of AUT Law School Newsletter AUTlaw)

By Vernon Rive on 6/09/2012 8:35:05 a.m. | Comments (1) | Print

Don’t worry, be happy? Rio+20 – the aftermath

Vernon Rive . 29/06/2012 11:58:42 a.m.

The much-hyped international environmental talks in Rio last week finished on Friday with a whimper rather than a bang, with the leaders and representatives of 193 nations signing off on a 283-paragraph declaration, 'The Future We Want'. The final document was the same in substance as a draft thrashed out by officials after a three day 'prepcom’ that wrapped up on the earlier Tuesday.

Most of the three-day plenary session that began on Wednesday consisted of a series of formulaic, occasionally propagandist, national statements which rarely delved deeper than scripted skite sheets highlighting individual countries’ environmental achievements or the taking of (appropriately diplomatically worded) potshots at other countries warning them off any ideas of environmental or economic imperialism.

The essential message from G77 countries: we know how to manage our natural resources, are intent on developing them, would appreciate financial assistance from the west and north but have no plans to be curtailing expansion of our economies for the sake of the environment any time soon.  The language was replete with references to ‘sustainable development’ and ‘green economy’. But despite the rhetoric, there were scant concrete signs of any ‘step changes’ towards environmentally sustainable economies.

As it became clear that the document was unlikely to develop further from the Tuesday draft – long on lengthy, highly conditioned statements of intention, short on clear commitments – civil society organisations moved to distance themselves from the declaration.

Addressing the plenary on behalf of one of the NGO “Major Groups" last Wednesday, Wael Hmaidan, director of Climate Action Network International, said: ‘The text as it stands is completely out of touch with reality.  Just to be clear, NGOs here in Rio in no way endorse this document.  Already more than 1,000 organisations and individuals have signed in only one day a petition called The Future We Don’t Want that completely refuses the current text.  It does not in any way reflect our aspiration, and therefore we demand that the words ‘in full participation with civil society’ are removed from the first paragraph.”

The words remained in the final version.

Meanwhile, UN officials defiantly maintained positive stances on both the document and the process.  It’s not clear whether anyone was comforted by the statement by Sha Zukang, Secretary-General of the conference: "This is an outcome that makes nobody happy. My job was to make everyone equally unhappy".  Or UNEP head Achim Steiner’s brave reference in his final press conference to the ‘hidden richness in this document’.  

As widely reported, the word “encourage” appears in the text 50 times, the phrase “we will”, five; “support” is used 99 times; “must”, three times.

Amongst the small number of statements that come close to decisions or clear statements of intention are:
- agreement on a process to develop ‘Sustainable Development Goals’ (‘action oriented, concise and easy to communicate, limited in number, aspirational, global in nature and universally applicable to all countries’) which will sit alongside the existing Millennium Development Goals;
- a decision to create a ‘universal intergovernmental high-level political forum’ to ‘follow up on the implementation of sustainable development;
- a decision to ‘strengthen and upgrade’ the United Nations Environment Programme.

The bulk of the rest of the document consists of high-level exhortations, affirmations, invitations and statements of encouragement.

The New Zealand political reaction

I spoke to New Zealand's recently appointed Minister for the Environment Amy Adams on the second to last day of the conference and asked for her views on the success or otherwise of the venture.

“We set ourselves two goals coming to Rio. One was around fossil fuel subsidy reform, and the other was around better global fisheries management.

“On the global fisheries side of the equation, I think we can be pretty pleased with where we got to…[On fossil fuel subsidies reform] we would have liked to see more, of course we would, and that's what we fought for. But realistically… to even have text in there about the need to have a look at fossil fuel subsidies is huge… It is not particularly definitive. But let's not forget that it is progress.”

I sought out Green MP Kennedy Graham (the only other New Zealand MP to attend the conference) for his reaction to statements by some commentators that people shouldn't be too concerned or distracted by the outcome document itself, but rather that the real value of these sorts of conferences comes from connections made and initiatives launched.  Graham bluntly rejected the proposition.

“Don't worry, be happy?  Come on. The critical point of the conference…is to get the international community of states to emerge with specific and substantive resolutions on solutions to the global problem.”

“To say ‘never mind if we’ve got a weak, wishy-washy document, we’ll be okay and it's been fun’ is about as ostrich-like as can be.”

What about Rio+20’s implications for New Zealand?

I asked the Minister whether, from a New Zealand government perspective, we can expect business-as-usual post-Rio+20, or if she sees anything coming out of the conference which might translate to changes in domestic policy.  Take what you will from her response.

“In the wider framework in the environment space, reading through it so far, I think a lot of it is reflective of the direction that we are heading in our policy-making anyway. I'm sure that there will be parts that we look at and think, ‘You know we do need to take that, and perhaps emphasise that.’ But that's going to be something that we will take back for further consideration.”

On the specific issue of the government’s present proposals to strip references to sustainable development out of the purpose clause of the Local Government Act (a move which seems curiously out of sync with paragraph three of the declaration that the Minister went on to sign), Adams’ response was effectively: ‘don't ask me, ask Minister Carter’.

“Certainly within the resource management part of the local government activities, absolutely, [sustainable development is] central. It has to be, because that is the part at which that level of government has to be very careful in managing its resources. I agree that it has to be integrated at all levels of government. But I would argue that it is anyway. It's not the same as saying 'it must be in every piece of legislation ".  So I'm not saying that there isn't a role there, I'm simply saying that I'm not the right person to ask, so that's something that Minister Carter will need to consider.”

Graham’s reaction to the Minister's response on this?

“Doctrinally incorrect, and very politically incorrect in terms of UN documentation that she's just signing today.  Because she is saying: ‘not my job, go and talk to David Carter’.  And she's signing a document which calls for an integrated holistic approach to sustainable development across all sectors.  It's fatuous.  All the more reason why the Prime Minister should have been here…”

Further analysis

A number of useful analyses of the document are emerging.  Interesting perspectives from New Zealand include those from Rod Oram, Nicola Tokai, and Graham.  Offshore, the posts by Sara Bice (Sustainable Business Forum), the Guardian’s George Monbiot, The Telegraph’s (slightly more upbeat) Louise Gray, and the New York Times' Simon Romero and John Broder are worth a read.

One of the more piercing analyses that I have seen so far is a piece headed Life After Rio: A commentary by Mark Halle of the International Institute for Sustainable Development.

“We must put a stop to the massive waste of money represented by events like the Rio conference. If our governments are not prepared to move towards sustainability, it is better that our voting populations know this. Calling a failure a success – even a guarded success – is to paper over the ever-widening cracks in the system. So the first conclusion we must reach is that we should call a moratorium on all global multilateral negotiations and begin to address the thousands of unfulfilled promises and commitments we have made.”

Last Thursday, the Minister indicated to me that she would be going through the document with Cabinet. I doubt too many people will be holding their breath for news from that discussion.

(This blog first appeared on Idealog's Sustain site on 28 June 2012)

By Vernon Rive on 29/06/2012 11:58:42 a.m. | Comments (2) | Print

Rio+20 talks move up a gear

Vernon Rive . 21/06/2012 3:21:53 a.m.

With preliminaries out of the way, the second phase of the Rio+20 Conference kicked off this morning for a three-day session involving over 115 world leaders, as well as high-level political representatives joining officials and advisers that have been driving the process so far. Under the tight rein of the Brazilian hosts, a final draft text was thrashed out at 2:18 am Tuesday morning.  It was rubberstamped without further ado at a plenary session later that morning.

It is now up to the politicians to engage in any further horse-trading, before what looks like an inevitable endorsement of the document towards the end of this week.

Major international environmental conferences in recent years seem to have settled into a familiar choreographed dance with a number of set moves.   The sequence is something like this.  

•    1st movement - the UN appointed conference secretary-general announces that the gathered nations are at a critical point in history, the world is watching, a unique opportunity exists to avert disaster/fundamentally shift global paradigms, and failure is not an option.
•    2nd movement - lengthy, complex and tortured negotiations take place with multiple sessions into the early hours of the morning.  Civil society representatives make impassioned speeches which optimistically suggest that this time leaders might grasp the nettle;
•    3rd movement - final or close-to-final draft text is issued after difficult compromises negotiated through skillful diplomacy and liberal use of ambiguous language.  Outrage is expressed by major NGOs claiming treachery and/or betrayal and/or capture by big business/vested interests.  Statements are issued to the effect that that further participation by civil society in negotiations is considered futile and other direct action is likely;
•    4th movement - staged protests take place with strategic instances of civil disobedience, arrests and ejection of NGO leaders and acolytes;
•    5th movement - convention/declaration/decision is confirmed  (usually anti-climactically) by conference plenary, followed by dissection and analysis of the outcome. Conclusion: overall, the result is ‘a bit of a mixed bag.’

The Rio +20 conference has just passed the 3rd movement, and it looks as if the orchestra is tuning up for the 4th.    

A 2:18 am close on preparatory negotiations, just over 2 hours later than the Brazilian presidency had predicted for finalisation of the draft text is, it should be said, an impressive achievement. At the beginning of the week a mere 20% had been settled, and major rifts were apparent between key players on a range of contentious issues.

 Analysis of the final draft text is still underway, but some of the issues that have been in dispute include the following:
•    References to the international law principle/concept of ‘common but differentiated responsibilities’.  ‘CBDR’ was also a contentious point at the last round of climate talks in Durban in December. The concept involves recognition that developed countries will assume a greater load than developing countries when it comes to obligations to reduce or remedy environmental impacts.   At the heart of CBDR is the proposition that developing countries should not be subject to constraints on development open (or at least, the constraints should be minimal) and that rich countries should provide financial and technical support to poor countries to help them develop and improve environmental management.   Developed countries such as the US had been baulking at the placement and extent of references in the draft outcome text to CBDR.   The compromise draft text retains some references to CBDR, but not as many, and not in the same places as had been sought by developing countries during the earlier part of discussions;
•    Abolition of subsidies on fossil fuels and other environmentally sensitive activities such as fishing. As has been widely reported, Tuesday saw the relatively unusual phenomenon of fossil fuel subsidies topping the ‘trending’ charts on Twitter.  Aided by strategic tweets from celebrity tweeps such as Stephen Fry, Robert Redford and Helen Clark, environmental NGOs are claiming a symbolic victory for at least raising the profile of an otherwise dry subject. The draft text includes a tentative call to halt fossil fuel subsidies (“We invite others to consider rationalizing inefficient fossil fuel subsidies by removing market distortions…) Unsurprisingly, this is not to the complete satisfaction of many elements of civil society;
•    Corporate social responsibility/accountability: CSR has now made it to UN declarations, in a clause which says ‘We call on the private sector to engage in responsible business practices…’  This is a slightly watered-down version of an earlier draft clause which mentioned ‘accountability’ as well as ‘responsibility’, and asked businesses to ‘apply standards of’ CSR;
•    Reproductive rights: this has been a controversial topic at Rio.  A number of countries (including New Zealand) had been pushing for inclusion in the document of references to “population dynamics” together with “reproductive health and rights”.  This has attracted the ire of some groups concerned that ‘population dynamics’ is code for ‘population control’.  The ‘Holy See’ (Vatican) has also taken a strong stance on the issue, attracting howls of outrage from women’s groups.  The draft text avoids the phrase ‘population dynamics’ but includes a commitment to “systematically consider population trends” as part of national planning;
•    Financial institutions: in a smart PR move, earlier in the week, a group a major financial institutions unveiled at Rio a ‘Natural Capital Declaration’, in which financial institutions ‘acknowledge and reaffirm the importance of natural capital in maintaining a sustainable global economy and commits signatories to integrate natural capital into their business decisions.  Despite that declaration – applauded by some NGO’s such as the World Wildlife Fund, Greenpeace announced yesterday that it is moving to a war footing against the financial corporate sectors. “We want to shut off the flow of capital,” said Greenpeace Global head Kumi Naidoo. “The time is right because the banks are at their most vulnerable in terms of public legitimacy."
So far, much of the NGO and media focus has been on the negotiations on the text of the outcome document. But it would be a mistake to judge the success or otherwise of the Conference on that document alone.  Alongside those negotiations, there have been a number of high-profile and (on the surface at least) constructive initiatives whose legacy may prove just as significant, if not more, than anything that results from the outcome document itself.

One of these initiatives was the Corporate Sustainability Forum, a pre-Rio+20 event that took place on 15-17 June. Facilitated by the UN (that fact notable on its own, and indicative of a growing UN recognition of the role of the private sector in addressing global environmental issues), the CSF produced a ‘Global Compact’.  This is described as a ‘strategic policy initiative for businesses that are committed to aligning their operations and strategies with ten universally accepted principles in the areas of human rights, labour, environment and anti-corruption.’  The Global Compact is referenced (if weakly) in the draft text of the outcome document.
Another Rio+20-aligned initiative was the World Summit of Legislators which met last week at the same time as the CSF.  Legislators agreed on a Rio+20 legislators’ protocol to take back to home to seek support or formal ratification. The Legislators’ Summit was attended by Green Party MP Kennedy Graham who has shared his experiences in a series of blog posts on the Green Party's Frogblog.

Alongside these formal events is the networking, exchange of ideas, upskilling of youth delegates (such as the P3 Foundation group and New Zealand Youth Delegation) and exposure of views to comment/encouragement/criticism.  I think this informal networking is one of the most valuable aspects of these sorts of events. Perhaps the warming and stirring of the melting pot of ideas could take place in a more organic (and less expensive) way. But there is something about a major UN summit that creates the occasion, unlocks public and private resources to get together in a way that an online discussion forum or lower key conference or workshop never could.

The next few days will be interesting ones. Exactly how far will green groups go in expressing their unhappiness about the current direction of negotiations, and will this have any impact on the outcome? Will anything significant emerge from the ministerial phase of discussions? Or will this part of the ritual follow a conventional course - making enough amendments to justify the leaders’ attendance - but going not much further than that?

I’ll post another report later in the week with an update.

By Vernon Rive on 21/06/2012 3:21:53 a.m. | Comments (2) | Print

Rio+20: Not another talk shop?

Vernon Rive . 14/06/2012 10:13:43 a.m.

Next week a ragtag collection of world leaders, do-gooders, moguls, Marxists, movie stars and misfits descend on Rio de Janeiro for what is billed as the largest summit the United Nations has ever organised: ‘Rio+20’, or the UN Conference on Sustainable Development.  Over 135 Heads of State are ‘inscribed to attend’, alongside 50,000 – 60,000 officials, NGO representatives, business leaders, youth, academics and other observers.

It cannot be another talk shop,” said Sha Zukang, the Chinese diplomat assigned the role as Secretary-General of the Conference, before proceeding to make a decent contribution to pretty much exactly that.

“The world is watching.  Rio can deliver agreement on specific initiatives and commitments that can accelerate progress and advance well being.  This can only happen by delivering actions, not just words."

(Photo credit: Chris Tackett)

Rio +20 has been convened to review progress on stakes in the ground planted in 1992 at the first Earth Summit.  That occasion delivered a string of significant international environmental policy and law instruments, including the Rio Declaration on Environment and Development, Agenda 21, the Biodiversity Convention, Forest Principles, as well as the grand-daddy of all international climate change documents - the United Nations Framework Convention on Climate Change. The majority of these documents are in the category of what international lawyers described as ‘soft law’.  These are statements of intention generally worded in language kindly described as ‘aspirational’, and unkindly as ‘weasel words’.  The UNFCCC and Biodiversity Convention were in a different category, although still at a high level, and notoriously difficult to enforce.

Nevertheless, the 1992 Rio conference marked a significant point in international environmental diplomacy.  Its legacy remains today, palpably for New Zealand in the form of the Climate Change Response Act 2002 and Emissions Trading Scheme. 

What are the issues this time round?  Much the same as at the Rio+10 conference in 2002 in Johannesburg.  Which were much the same as in Rio in 1992.  Can development be facilitated in such a way that will at the same time alleviate poverty, improve standards of living but retain an adequate quality of the environment?

At the 2012 conference an additional issue has risen to the surface - the perennially controversial question of global environmental leadership and governance at the UN level.  A number of proposals are on the table, including a revamp of existing UN environmental institutions as well as the creation of new entities.

Unlike 1992, there is no extended list of instruments ready to be negotiated and signed.  Most of the focus is on one document - as yet unnamed - but going by the inventive working title of ‘Outcome Document’.  On 7 May, Kukang told negotiators “Our objective should be to arrive in Rio with at least 90% of the text ready. The most difficult 10% should then be negotiated in Rio with the highest political support.”

A third round of preparatory talks concluded on 2 June with only 20% of the text agreed.  This has led some commentators to predict that even if compromise is reached, ‘the risk is it will come at the expense of delayed commitments and open-ended, unenforceable promises.’

It is interesting to reflect on why the 1992 conference was able to deliver with relative ease five highly ambitious and ostensibly onerous international environmental instruments, whereas in 2012, the gathered nations seem likely to struggle to produce one non-legally binding statement.

One factor which is clearly influential in 2012 is the precarious state of the global economy, and in particular deep challenges facing developed country economies in the US and Europe layered upon the perceived economic threat of emerging economies such as China and India.
The divide between developed North and developing South has always been a feature of international geopolitics. It is heightened in 2012, as emerging economies flex negotiating muscle and old-school developed countries move into defensive mode.  As seen in other recent environmental negotiations such as the 2009 Copenhagen and 2011 Durban climate talks, countries such as China, India, Brazil and South Africa are noticeably more self assured and sophisticated in their tactics and positioning. The US, EU, Canada, Japan, Australia and New Zealand are now faced with bolshier demands for recognition of income and resource disparity between developed and developing nations.  That creates additional challenges for the negotiations and negotiators, especially US negotiators whose masters’ eyes are on a certain upcoming date at the polls.
How is New Zealand positioning itself for the event?

At the time of writing, it looks as if New Zealand will follow the lead of the US and UK and not send its leader to Rio. (This contrasts with the 1992 event where Helen Clark was present alongside Bush, Major and, er, Castro, to inscribe her signature on the various documents concluded). New Environment Minister Amy Adams is billed to appear on behalf of New Zealand, alongside a team of officials from MfE and MFAT.
In March of this year, former Minister for the Environment Nick Smith identified oceans policy and tackling fossil fuel subsidies as key areas of focus for New Zealand in Rio, being ‘areas that are most urgent, where we can add value, and where there are good prospects to make progress’.  He also said ‘we will not be the biggest and may not be the loudest voice at the conference, but we intend to be one of the most practical and relevant".
Exactly how this plays out will be interesting to watch.
I am heading to Rio on Sunday to pickup the conclusion of the prepcom, and monitor the main event on 20-22 June.  I'll be posting updates as the negotiations develop.

By Vernon Rive on 14/06/2012 10:13:43 a.m. | Comments (1) | Print

Coal mines, climate change and test cases: initial thoughts on Buller Coal

Vernon Rive . 12/06/2012 5:22:04 p.m.

A feature of New Zealand environmental litigation over the past 30 years has been the willingness of individuals and organizations to venture into the uncertain and at times perilous waters of the courts to test points of law, policy or expert opinion on issues regarded as significant from a public interest perspective.  

In some cases individuals, community or environmental interests have succeeded in securing rulings favourable to their positions.  Select examples include  Environmental Defence Society v Mangonui County Council
, Otorohanga Heritage Protection Group v Otorohanga District Council, and Coromandel Watchdog of Hauraki Inc v Chief Executive of the Ministry of Economic Development.

As often as not, cases brought by environmental groups are unsuccessful.  The manner of the courts’ disposal of such cases varies.  It is not unusual for applications or appeals to be dismissed in fairly short order, with costs awards against the community or environmental interests.  That is especially the case where the position advanced is judged to be untenable, motivations are assessed as clouded, or the way in which the case has been brought and argued lacks focus or adopts an intransigent approach.  

But where the issues are seen as important, the points on appeal or raised by an application tenable, the case prepared well and argued reasonably, judges (even when ultimately unpersuaded by an applicant’s or appellant’s case) acknowledge explicitly or implicitly the import and utility of having significant issues of law, evidence or policy put through the rigours of a court process.   In these cases, there seems to be recognition that there is societal benefit in having matters of public interest and concern tested, in circumstances where if not brought before the court by community or environmental interests, those issues will remain unexamined.

Two 2002 decisions issued concurrently by the Environment Court presided over by Judge Whiting concerning challenges based on the climate change effects of proposed combined cycle power stations are examples of implicit acknowledgment of the points above.  Dismissing appeals brought by the Environmental Defence Society against decisions of the Taranaki Regional Council and Auckland Regional Council, the court declined to impose conditions on discharge consents for generation facilities in Taranaki and South Auckland.  The reasons included the Court’s “considerable disquiet about the efficacy, appropriateness and reasonableness of such a condition.”  Yet a review of both decisions conveys little sense of misgivings at the use of Court time and processes to test matters of perceived significance, even if the prospects of success were always faint.

The content and tenor of the 30 April 2012 decision of the Environment Court in Buller Coal Limited v West Coast ENT Incorporated [2012] NZEnvC 40 (PDF) stands in marked contrast to the 2002 EDS decisions. Buller involved competing applications for declarations by Buller Coal and Solid Energy on the one hand, and environmental groups West Coast ENT and the Royal Forest and Bird Society on the other.  Both sets of applicants sought rulings on the jurisdiction and obligations of decision-makers under the Resource Management Act 1991 to consider the consequential effects on climate change of the grant of land use consents for coalmining activities taking place in New Zealand.  

At the heart of the case were arguments over the proper interpretation of sections 7(i), s104(1)(a) and the meaning of “effect” considered against the statutory and legal backdrop of the Resource Management (Energy and Climate Change) Amendment Act 2004 and decision of the Supreme Court in Greenpeace New Zealand Incorporated v Genesis Power Limited (PDF). The Court ruled in favour of the coalmining companies.  It held that the consequential effects on climate change of discharges of greenhouse gases to air resulting from the combustion of coal could not be considered in the context of hearings on applications for land use consent.

As other commentators have noted, the outcome is not so surprising.  It is consistent with the theme of the 2004 amendments, the majority judgments of the Supreme Court in the 2008 Greenpeace decision as well, of course, as the first instance Environment Court decision which the Supreme Court effectively upheld.  

What is interesting - and from this commentator’s perspective at least, surprising -  is the short shrift given to arguments by counsel (including Sir Geoffrey Palmer for West Coast ENT) for the environmental groups.  The Greenpeace litigation involved a challenge - always likely to be a difficult one - to the conventional interpretation of a provision in the RMA (section 104E) addressing the relevance or irrelevance of the effects on climate change when assessing an application for consent for discharges to air.  Despite those challenges, the Greenpeace position (similar in approach to that adopted by the environmental groups in Buller) found favour with Williams J in the High Court and (in her minority judgment) the Chief Justice in the Supreme Court.

Unlike the Greenpeace case, the Buller Coal proceedings concerned the interpretation of a ‘standard’ RMA provision (104(1)(a)) governing the assessment of effects of an application for consent, not being an application to discharge greenhouse gases to air.  On this issue, all parties agreed that the statutory framework was not identical to that which confronted the Supreme Court in the 2008 proceedings.  Section 104(1)(a) contains no statutory prohibition against considering effects of land use activities on climate change. Nor does the definition of “effects” in section 2.  There seemed to be an argument at least to be had.  The Environment Court clearly thought not, stating “… I am not persuaded that there is any discretion concerning interpretation, or any ambiguity, or choice” (emphasis added).  Costs were reserved.

It has been reported that an appeal to the High Court against the Buller decision is to be lodged. Coalminers and environmental groups alike will await with keen interest not only the outcome of the appeal but also, perhaps, views from the High Court on the appropriateness and utility of environmental groups bringing test cases on issues such as these.

(This is an adapted version of a forthcoming editorial in the June 2012 issue of Resource Management Bulletin)

By Vernon Rive on 12/06/2012 5:22:04 p.m. | Comments (0) | Print

I will not make boring art: A brief history of John Baldessari, narrated by Tom Waits

. 20/05/2012 1:26:51 p.m.

Not bad advice, not a bad example, for artists, for academics...
I think most of my work up until 1970 should probably also be cremated.

By on 20/05/2012 1:26:51 p.m. | Comments (1) | Print

The persons who become rich/The persons who become poor

Vernon Rive . 21/01/2012 10:40:16 a.m.

In the last couple of weeks I've been returning to some of my academic roots, wading through a bunch of readings on law, economics, ethics and philosophy.

Currently half way through Richard Posner's Utilitariansm, Economics and Legal Theory 8 J. Legal Stud. 103 1979.

This quote (p23, Posner quoting Frank Knight (Ethics of Competition and Other Essays, 1935) in turn quoting John Ruskin, Ad Valorem (1915)) jumped out as not a bad one for summer reflection...

"In a community regulated by laws of demand and supply, but protected from open violence, the persons who become rich are, generally speaking, industrious, resolute, proud, covetous, prompt, methodical, sensible, unimaginative, insensitive, and ignorant. The persons who remain poor are the entirely foolish, the entirely wise, the idle, the reckless, the humble, the thoughtful, the dull, the imaginative, the sensitive, the well-informed, the improvident, the irregularly and impulsively wicked, the clumsy knave, the open thief, and the entirely merciful, just, and godly person."

Late NY's resolutions:
1.Work on the thoughtful, imaginative, sensitive etc; less of the clumsy knave...
2. Finish this damn Posner article before we head to Urupukapuka tomorrow.

By Vernon Rive on 21/01/2012 10:40:16 a.m. | Comments (2) | Print

Guided by an invisible harpoon? Market approach to saving the whales

Vernon Rive . 12/01/2012 11:26:22 a.m.

An article in Nature magazine out today has received a bit of press, including this article in the Herald, and this one in the Guardian.

The authors argue for a new market approach to whale conservation:

"We propose an alternative path forward that could break the deadlock: quotas that can be bought and sold, creating a market that would be economically, ecologically and socially viable for whalers and whales alike. Because conservationists could bid for quotas, whalers could profit from whales even without harvesting the animals. A market would therefore open the door to reducing mortality without needing to battle over whether whaling is honourable or shameful."

It's an interesting idea.  But I can't help thinking that the authors fundamentally misconceive the underlying motivations for much of the whaling activity currently taking place.  Nations such as Japan whale not for economic reasons, but to assert their standing and place in the international community. 

Because economics has little to do with the drivers for whaling, market mechanisms don't offer much of a solution.  As I've suggested in an earlier post, it's going to take a groundswell of public opinion, crucially from young people from whaling nations such as Japan and Norway, to create a social and political environment where whaling is not seen as acceptable.  Sea Shepherds' antics in the Southern Ocean won't do much there.  Nor, I reckon, will the theoretically attractive, but basically flawed proposal from Costello, Gerber and Gaines for a tradeable permit system in whale meat.

By Vernon Rive on 12/01/2012 11:26:22 a.m. | Comments (1) | Print

Groser and Smith on Kyoto: Just ducking out for a bit. We may be some time.

Vernon Rive . 15/12/2011 10:53:12 p.m.

By now you’ll know that in the early hours of Sunday morning a deal was thrashed out by the 194 members of the United Nations Framework Convention on Climate Change which, for better or worse, will guide the course of international climate law for the next decade or so.

The key components of the “Durban Platform” include agreement in principle by a select group of countries led by the European Union to sign up for a second commitment period under the Kyoto Protocol, establishment of a $100 billion “Green Climate Fund” and high-level commitments to work towards a comprehensive climate agreement that – eventually, and hopefully – will coordinate and regulate emissions reductions commitments by developing as well as developed countries. 

The new proposal is presented as one which will draw in climate-pariah states such as the USA, as well as China and India.  But the price of doing the deal was the inclusion of weasel words in the text: words that will allow scope for the USA, China and India - and New Zealand - all to argue for a new regime which falls short of imposing binding legal obligations on key parties to reduce emissions.  And argue for it they will.

International climate negotiations such as those which recently took place in Durban tend to go down to the wire. Parties hold back their ultimate bottom lines until the last minute. These negotiations took that approach to the extreme. Some key documents containing the proposed final text of the decisions were not circulated parties until the last scheduled day of the conference. Marathon sessions from Friday evening bled into the early hours of Saturday morning, and then virtually through the night without succeeding in breaking deadlocks on critical issues.

It took a last-minute proposal by South African conference President Maite Nkoana-Mashabone for an in-session (and very public) “huddle” involving a number of the core parties to unlock an uneasy compromise.

How much of the final outcome was driven by sheer exhaustion is a fair question. Video footage of the last couple of hours of the session shows many of the negotiators struggling to keep their eyes open.

The complete set of decisions adopted by the parties to the Framework convention and Kyoto protocol include technical arrangements or ‘modalities’ on various aspects of the international climate law regime, addressing matters as such the operational arrangements for an international fund intended to provide financing for developing countries for climate mitigation and adaptation projects, and the establishment of an ‘Adaptation Committee’ (a UN body to coordinate activities, largely in poorer countries, to prepare for the escalating impacts of climate change).

As noted in previous posts, the central and most controversial area for discussion concerned the future of the global climate mitigation regime.

One issue was whether the 1997 Kyoto Protocol should be retained for a second round. The protocol’s first commitment period expires on 31 December 2012. A pressing issue was whether those developed countries who have signed up to the Protocol already (including the EU, Australia and New Zealand) would be willing to accept a second commitment period.

The EU had said that it would be willing to accept a second commitment period with obligations which, on their face, imposed tougher requirements to reduce emissions than in CMP1. But it was only prepared to do so if it could be satisfied that the rest of the world (including the USA, China and India) was willing to bring itself under some sort of legally binding regime of emissions reductions commitments. This issue was at the heart of the matter being wrestled with in the early Sunday morning huddle.

What broke the deadlock (with words put up by the Brazilian delegation) was the following text:

[The parties also decide] to launch a process to develop a protocol, another legal instrument or an agreed outcome with legal force under the United Nations Framework Convention on Climate Change applicable to all Parties, through a subsidiary body under the Convention hereby established and to be known as the Ad Hoc Working Group on the Durban Platform for Enhanced Action.

The words in red were the ones added at 3am on Sunday morning.  Apparently, there were conflicting legal views on the implications of the words. For my ZAR, there was already scope for arguments about the fluid nature of any hypothetical future emissions reductions commitments with the words “another legal instrument”.  (Such an instrument could be a beefed up version of the Cancun Agreements, involving voluntary commitments but with mandatory reporting obligations.  A country gets egg on its face if it doesn’t comply but otherwise doesn’t breach international law, as long as it accurately reports its non-compliance.)  “An agreed outcome with legal force” continues the theme, but with feeling.

Mark Lynas, climate change adviser to the President of the Maldives and Visiting Research Associate at Oxford University’s School of Geography and the Environment had this to say about the phrase:

The importance of this to the future of the UNFCCC cannot be overstated. This paragraph heralds the end of the Kyoto system of emissions targets only for industrialised-country parties and looks forward to the dismantling of the Annex 1/non-Annex 1 ‘firewall’ system through a new legal regime “applicable to all parties”.

Well, ok… it almost certainly does herald the end of the Kyoto system.  But whether it sets the stage for a better regime is moot.

So where does New Zealand sit in all of this?

As foreshadowed in my previous post, the COP decision recording agreed outcomes concerning the Kyoto Protocol includes a table which collects together Kyoto countries’ commitments (in UNFCCC jargon, Quantified Emission Limitation or Reduction Obligations or QELROs) in a second round.  The line relating to New Zealand is blank, with a footnote as follows:

New Zealand is prepared to consider submitting information on its QELRO… following the necessary domestic processes and taking into account decision 1/CP.17 and decisions on mitigation…of the Conference of the Parties.

Not exactly unequivocal stuff.

On the matter of the Protocol, Ministers Groser and Smith commented on the Durban results this week using very guarded language:

We, and no doubt Australia, will each need to make a decision in coming months whether to join Europe in inscribing our next set of international commitments within the framework of the Kyoto Protocol or to join all the developing countries, the United States, Canada, Japan, Russia and others, in making those commitments under the alternative transitional arrangements described in different texts.

Like all countries, we will need to take account of our national circumstances and compare our efforts to the efforts of others. We want to do our fair share, but it will not be clear for some time what exactly others will be committing to.

One reason why New Zealand might sign up to a second commitment period under Kyoto is because it is one of the few countries with an established emissions trading scheme which has linkages to the present Kyoto architecture.

Another is because the science tells us that the planet is at very serious risk of facing global temperature increases that will be utterly devastating to countries which include some of our closest Pacific neighbours – neighbours that New Zealand professes concern to support and assist.  Arguably, promises without the force of law are insufficient to deal with these sorts of environmental risks.  (We don’t accept promises when consenting a house renovation in Epsom’s Res 1 zone where the risks are an out-of character window frame in a pretty street.  So the logic for accepting voluntary commitments where the existence of entire nations is at risk is deeply questionable.)

But science didn’t seem to play much of a role in these negotiations.

Groser and Smith’s statement raises the distinct possibility of New Zealand moving away from its previous positioning alongside the EU, towards that of the USA and Canada (which not unexpectedly, but still controversially, announced this week that it intends to withdraw from Kyoto completely).  

Last week in Durban I asked Minister Groser if it was a fair observation that New Zealand no longer regards itself as a leader on international climate policy.  He mentioned that we have the first global all-sectors-all-gases emissions trading scheme.  (Accepted – this is, in theory at least, leading edge policy, although he'd be on stronger ground if the Government hadn't signalled the intention to keep agriculture out of the scheme for an indefinite period).  And the New Zealand-led Global Research Alliance on Agricultural Emissions.  (Again, accepted – this is an important initiative, and one that many hope will produce some technological break-throughs on the difficult area of agricultural emissions.)  And the role of New Zealanders such as Adrian Macy in chairing key UNFCCC committees.  To that he could have added his own role in Cancun and Durban.

However, to duck out at this stage on Kyoto II would, as I see it, signal a major shift in direction for years of climate change diplomacy for New Zealand.  It is all very well to say that a Kyoto Protocol covering only 15% of global emissions is completely indequate to tackle the challenges of climate change.  But if it transpires that New Zealand now supports an alternative regime which, on the crucial issue of emissions reductions – particularly for developed states - lacks any real teeth, then to me, that would represent a clear relinquishing of leadership by New Zealand on international climate change policy.

There’s a bit of water to go under the bridge yet.  Perhaps a regime can be developed which contains enough sticks and carrots to get all of the main players to do the necessary to avoid an over 2˚temperature rise. New Zealand would be in the best position, I reckon, to advocate for that kind of regime if it is already part of a robust regime (Kyoto II).  

Having seen what Groser and Smith have had to say this week, I am not holding my breath…

By Vernon Rive on 15/12/2011 10:53:12 p.m. | Comments (3) | Print

COP 17 (Groundhog) day 10

Vernon Rive . 10/12/2011 11:56:45 p.m.

The sun’s risen on another muggy day in Durban to the news that the COP17 talks are being extended for another day. 

It’s all feeling a bit Groundhoggish. Bleary-eyed delegates and journalists are wandering around: some in a daze, others staring and pecking away at laptops.  Groups of young observers are cross-legged in circles in the corridors, chatting.  The conference centre screens that during the last 2 weeks have been crammed with rolling announcements of press conferences, meetings, side events and notices of new documents are largely blank and static.   

Overnight some
new texts were released and are under discussion, but nothing has been agreed yet.

With many of the party delegates booked to fly out today, and so many of the contentious issues still seemingly up in the air, its hard to see that on the critical matters, much is going to be able to be resolved before the meeting finishes, other than perhaps some sort of high level declaration or commitment to keep talking.  That would be a very poor result.  It would not be good at all for the reputation of the UNFCCC process.

Cindy Baxter over on Hot Topic is doing
some good analysis from a New Zealand perspective.  

The country has come in for a bit of stick from the NGOs.  Last night New Zealand
earned a “first place fossil” in the Climate Action Network awards for

“…severely mixed messages about its Kyoto Protocol 2nd Commitment Period stance. This time, it made it clear, describing Kyoto as 'actually an insult to New Zealand'. The only insult is to the citizens of New Zealand and the rest of the world, who will have to suffer the costs of climate change.”

To be fair to Minister Groser, his real reservation on the KP 2nd period (as I understood it) was that it shouldn’t be regarded as the be-all-and-end-all.  A major task here in Durban has been to try and lock in commitments from other major emitters, especially the USA and China. Groser’s choice of words – “an insult to New Zealand” predictably raised the ire of the NGOs.  Somehow I don’t think he’s going to lose any sleep over the Fossil award.

On the issue of locking in commitments from a wider pool of nations, the
current draft text has countries (developed and developing) agreeing to “launch a process to develop a Protocol or another legal instrument applicable to all Parties”.  The exact meaning of ‘a Protocol or another legal instrument’ remains murky, and deliberately so.  The USA has a pathological dislike for the phrase ‘legally binding’. So this is a compromise to try and broker a deal. But is not clear if the USA, China and India will agree to even this watered down obligation.

As for a 2nd commitment period on the Kyoto Protocol for New Zealand, at this stage, that is also murky.  The
current draft text contains proposed amendments to the KP’s Annex 1 (which contains Quantified Emission Limitation or Reduction Obligations or QELROs). New Zealand’s row on the table is blank, with a footnote as follows:

New Zealand is prepared to consider submitting information on its QELRO, pursuant to decision 1/CMP.7, paragraph 3, following the necessary domestic processes and taking into account decision 1/CP.17 and decisions on mitigation [XX/CP.17] of the Conference of the Parties.

So, at this stage, the draft text reflects a New Zealand’s commitment to do no more than consider submitting figures some time down the track, after more analysis, perhaps some consultation, and a hard think about how the entire package looks.

At this late stage it is probably unrealistic to expect that much more will come from New Zealand.  But it falls well short of a stepping up to the mark hoped for by many here in Durban.

It has been reasonably challenging trying to track New Zealand’s precise position on a range of issues this week. Maybe that is to be expected in a negotiation where positions on individual components (such as the KP 2nd commitment period) depend on outcomes on other matters (other nations’ commitments, rules on matters such as the carryover of Kyoto units from 1st to 2nd commitment periods , LULCF rules etc).  But overall New Zealand has kept its cards very close.  

Minister Groser delivered the customary brief Heads of Government statement on Wednesday, but there’s been not one official press conference in 2 weeks where international media could quiz New Zealand’s ambassador on the country’s position. (The Minister did agree to an around 10 minute interview with me on Tuesday which was appreciated.)  Jo Tyndall sat in on Tokelau’s press conference on Thursday, but
according to Cindy from Hot Topic, didn't throw too much light on New Zealand's position:

“Jo Tyndall, head of the NZ delegation, sat on the podium with [the Ulu of Tokelau], and wouldn’t commit to helping them out in finding the finance for the $900,000 they need to finish the project. Things are looking better for an outcome on the Green Climate Fund here in Durban, so maybe that would make a difference, But when the BBC asked her to clarify her position on Kyoto, she refused to answer. We know that New Zealand has joined Australia in pushing back against Kyoto. She looked very uncomfortable, and so she should.”
A UN press conference is apparently scheduled in an hour or so, but things are very fluid today.  I will do an update after that and a wrap up post in the next couple of days when we know what the final result is.

By Vernon Rive on 10/12/2011 11:56:45 p.m. | Comments (1) | Print

Hearting Kyoto in Durban

Vernon Rive . 8/12/2011 12:00:00 a.m.

Youth delegations from around the globe have converged on Durban in the last couple of weeks to add their bodies, voices and laptops to the crowded NGO space looking to influence the outcome of the climate talks.

Earlier in the week, I spoke with Emma Moon and David Tong from the
New Zealand Youth Delegation – a group of 10 students of law, environmental science, international relations, music, development studies and politics.  Some of that chat is in the video below.

Like other youth delegations here at COP17, the New Zealand group has thrown itself into a range of activities – meeting with their South African counterparts and other members of the ‘YOUNGO’ community, delivering an ‘intervention’ at a working group on the Kyoto Protocol, attending side events, and catching up with the New Zealand Government delegation on a fairly regular basis.

And, of course, promoting the “I heart Kyoto” message as much as they can.

On Tuesday, the NZ group issued a fairly bold press release.  It began thus:

"The New Zealand Government is jeopardising its good name in international negotiations at this fortnight's United Nations Climate Change Conference in Durban. It has been identified as one of a small number of States stalling progress in forming an international climate agreement. Other parties have privately condemned its conduct and predict it could risk the possibility of a credible outcome."

..and  continues for 2 pages in a similar vein.

I asked New Zealand’s Climate Change Negotiations Minister Tim Groser for his thoughts on the statement.  The Minister is not especially known for pulling his punches on this kind of thing.  He didn’t disappoint.

“I didn’t come here to negotiate with 10 young New Zealanders.  What they’ve unfortunately bought without realizing it is the whole drum beat on KP, KP, KP, as if somehow they don’t understand that a deal that locks in only 15% of emissions is actually an insult to New Zealand.”

Groser’s point on the complete inadequacy of a Kyoto Part II which covers only 15% of emissions is undoubtedly on the money.  And the simple messaging around a second Kyoto commitment period being adopted by the Youth Delegation as well as many NGOs here in Durban is an easy target for criticism.  

His comments do a slight disservice to the youth movement however.  They understand that Kyoto II without China, the States and India is not enough.  Perhaps their messaging could be a little more sophisticated.  But their point, as far as I can tell, is that the instrument that is currently the only legally binding agreement on emissions reductions is very much worth retaining for another round, on the way to the bigger goal of a comprehensive agreement involving all of the main players.

That is actually not too far from New Zealand’s position here in Durban.  But I'm not expecting to see the Minister in an ‘I heart Kyoto’ T-shirt any time soon.

By Vernon Rive on 8/12/2011 12:00:00 a.m. | Comments (1) | Print

New Zealand after ‘Kyoto Plus’ as things get serious in Durban

Vernon Rive . 7/12/2011 12:00:00 a.m.

Delegates to the 17th conference of the parties to the UN Framework Convention on Climate Change in Durban are now into the second half of the second week of talks, and it is officially Business Time.

Ministers formally joined the proceedings on Tuesday. They've been lining up to present (largely symbolic and formulaic) 'Statements from Heads of Government' to the plenary for the last couple of days.

But the gritty wheeling and dealing is almost entirely taking place behind closed doors – in group and bilateral discussions between country representatives, 'indaba' (a Zulu tradition introduced by the South African presidency – essentially, an elders meeting where important or contentious issues are discussed), and chats in makeshift war-rooms set up in the underground conference centre carpark.

The first week of officials-driven meetings ended with pessimism in some quarters over prospects of a second commitment period for the legally binding Kyoto Protocol, whose first legally binding emissions reductions phase (CMP1) expires on December 31, 2012.

In the second week, winds seem to have shifted. Kyoto turncoats Canada, Japan and Russia remain staunch in their no-commitment-to-CMP2 stance. But there is a growing sense that the EU, under intense pressure from developing countries – especially (and not surprisingly, given the continent that we're on) the African block – really does not want Kyoto to 'die in Durban'.

Negotiators (including the New Zealand delegation now being led by climate change negotiations minister, Tim Groser) continue to hold their cards close to their chests. Following the typical course for UN climate change negotiations, it is likely to go down to the wire.

Yesterday, Groser told Idealog: "New Zealand can do a second commitment period under the Kyoto Protocol, but we're not going to be committed to that position until we can see how the other factors play out."

The "other factors" include, critically for Groser, commitments to emissions reductions by countries responsible for the 85 percent of emissions not covered by the Kyoto Protocol.

"We now know that a second commitment period that covers only 15 percent of emissions...is a poor joke, actually."

Groser sees a potential deal involving a 'landing zone' that he describes as 'Kyoto Plus'. For the period 2013 - 2020, this would include Kyoto commitments from those countries willing to sign up for CMP2 (say, the EU, and other Kyoto-friendly countries such as Australia and New Zealand) "plus the mitigation commitments that China, the United States and other countries who stand outside Kyoto said they would do in Cancun, clarified and operationalised."

"In addition to that, what we need is ... a roadmap, or a process, to negotiate a more coherent long-term deal which ends this mosaic of different bits into a single comprehensive treaty."

And if a deal is not concluded in Durban, what might this mean for New Zealand?

"I hope we take a step forward here. If we don't, we'll just have to carry on. But what we will not do is abandon the ETS, abandon the drive for more renewables, abandon the search for energy efficiency, partly because these things have got other environmental co-benefits in them."

In the closing days of the last UNFCCC Conference in Cancun, Groser played a significant role at the request of the Mexican presidency, working through the night guiding parties to a landing on the contentious matter of measuring and verifying countries' emissions reductions commitments. There may well be call for Groser's diplomatic prowess – and multiple cups of Tanzania's finest – in the final stretch of COP17. 

(This article first appeared on Idealog's website on 8 December 2011)

By Vernon Rive on 7/12/2011 12:00:00 a.m. | Comments (1) | Print

Kyoto Protocol on life support: will someone pull the plug already?

Vernon Rive . 3/12/2011 7:44:42 p.m.

There’s been a strange and slightly awkward atmosphere around the Albert Luthuli International Convention Centre in Durban this week.  Close relatives of the Kyoto Protocol have gathered around its deathbed waiting for what seems like its inevitable passing.  Old feuds have erupted again.  Some are in denial.  Squabbles are breaking out over arrangements for disposition of the estate and care of the dependents.  Shadows are deepening around eyes,  and the priests are preparing to administer last rites.  The kind thing, surely, would be to put it out of its misery.

An interchange yesterday at the Japanese delegation’s daily press briefing between a Spanish journalist and Masahiko Horie, Japan’s ambassador for global environmental affairs was revealing of the terminal nature of the Protocol’s malaise.  Japan announced last year, and has confirmed again in Durban, that it won’t agree to a second commitment period under the Kyoto Protocol.  Canada is taking a similar line.  NGO’s and developing countries are incensed.

The English on both sides wasn’t perfect, but the meaning was plain.
Paraphrased, it went something like this:

Q: I’m just wondering..how can Japan be asking other countries to be taking on further binding commitments to reduce emissions when it won’t first continue to commit to binding commitments itself?

A: The Protocol only binds countries responsible for 26% of global emissions. We think it’s important that all major countries join. China is the largest emitter of GHGs and the USA is the second largest. So this is why we are appealing for all to join.

Q: But if you are asking them to do what you used to do, why are you stopping doing what you were doing? You’ve been doing it very well, for a very long time.  But instead of saying “do what I am doing”, you are saying “I’m going to stop doing what I’m doing in order to force you to do it.”

A: We’re proposing a single comprehensive international framework. It has to be something that all the major economies and as many countries as possible join.  Under that kind of agreement the total emissions reductions will be large enough to achieve the goal.

The USA’s position is that it is not part of the Kyoto Protocol, so will just stay clear of that process thanks. But in any event, the system of voluntary pledges initiated in Copenhagen in 2009 and confirmed in Cancun in 2010 will be fine, for the time being at least. As for a future agreement after 2020, “the only way it could be effective and garner broad support is if it fully applies to all significant countries”.

China and the other ‘BASIC’ group countries (Brazil, South Africa, India) continue to press for the distinction in international climate rules between developed countries and developing countries. They say the rich have an obligation to accept binding reductions and help developing countries to improve living standards – something that would happen if Kyoto was ratified (by the USA) and extended (by the rest of the rich Kyoto parties).

As Brett and Jermaine say, it’s a chicken and eggy one.

It’s not completely doom and gloom.  Officials seem to have made good progress on technical arrangements for catalyzing technology transfers, access to finance for climate mitigation and adaptation projects for developing countries.  This stuff will be important for pre-, during and post-illness care.  But the global community appears stumped on how to stop getting sick in the first place.

This week the negotiations have been mainly driven by diplomats and officials.  The Ministers
, including New Zealand’s Tim Groser and Nick Smith, are on their way for the final week.

A miracle recovery can't be ruled out.  But I'd be surprised if there weren't a few black suits in the checked-in luggage.

By Vernon Rive on 3/12/2011 7:44:42 p.m. | Comments (1) | Print

COP 17 - Opening shots

Vernon Rive . 3/12/2011 7:15:53 a.m.

Reeling a little with jetlag, 3 press conferences, catch up with the New Zealand Youth Delegation and New Zealand Government delegation and 3 more press conferences.  All up, experiencing a severe overdose of information, propaganda, doublespeak, security checks, unabashed youthful idealism (not mine), world weary cynicism (not mine, but give it a couple of days) and more climate change acronyms than I thought could in all seriousness be included in one speech.  But I had a great curry.  Here are some shots from my first day at COP 17.  Working on some words which I'll look to post tomorrow.

By Vernon Rive on 3/12/2011 7:15:53 a.m. | Comments (1) | Print

Legal ramifications of the Rena oil spill

Vernon Rive . 15/11/2011 1:17:42 p.m.

"With the Rena’s oil all but salvaged, many might breathe a huge sigh of relief. But the saga is by no way over and if anything, it poses some serious questions around the laws, or lack thereof, that exist in New Zealand to deal with such incidences. To get a little clarity on the matter, we posed a few questions to AUT’s senior lecturer in law, Vernon Rive." 

14 November 2011 article on Idealog Magazine's Sustain Blog.

By Vernon Rive on 15/11/2011 1:17:42 p.m. | Comments (0) | Print

Heading towards a South African stand-off?

Vernon Rive . 14/11/2011 5:43:23 p.m.

Two years ago, media interest was building towards something of a frenzy in the lead up to the most significant international environmental gathering for many years: the 2009 Copenhagen Climate Change Conference.  World leaders - not used to being dragged along to single-issue international conferences - were persuaded to travel to Denmark’s capital to share in the final negotiations and bask in the reflected glory of a new, groundbreaking, global climate change treaty.  But ‘Hopenhagen’ collapsed under the weight of unrealistic expectations, leaving many disillusioned and cynical about the ability of the United Nations solve to what many have regarded as the defining environmental challenge of the 21st century.

In just a couple of weeks, politicians, officials and civil society leaders will meet again in Durban, South Africa, in an attempt to progress matters. The stakes are no less high than existed in Copenhagen in 2009. Global emissions continue to rise.  In 2011 however, they are fuelled not so much by rampant growth in Western economies but rather by the steady rise of countries such as China and India. But, unlike the unrestrained optimism and hype preceding Copenhagen, expectations ahead of the Durban conference are low.

The past is a foreign country

A central question hanging over the entire process concerns the future of the Kyoto Protocol. 

The Kyoto Protocol was negotiated in 1997. It was a time when the US economy was robust, and a united Europe was determined to take a strong lead in implementing innovative measures to reduce emissions. China and India had not then really flexed their muscles economically, and were still seen as ‘developing’ nations for whom binding emissions reductions obligations were not appropriate. An agreement was reached which required developed countries (including New Zealand) to achieve fixed emissions limits, but committed developing countries to little more than “best endeavours” steps to reduce emissions. 

In the event, the US baulked at implementing the Protocol – not willing to accept limitations which did not also apply to its competitors such as China.  Australia dragged its coal dust-caked boots until 2007. But with ratification by Russia in 2005, an international regime was set up which provided a global legal framework for domestic policies such as the EU and New Zealand emissions trading schemes and the contentious carbon tax scheme approved in early November this year by the Australian Senate.

Fast forward 14 years from Kyoto, and the world is a different place, economically and geopolitically.  China has taken number one spot as the world’s largest carbon emitter. Its rate of economic growth well outstrips that of most Western economies, including the US. India sits in third place in the emissions rankings, also enjoying strong growth. The EU operates the world’s largest and most established emissions trading scheme and is still committed to a global regime which includes comprehensive binding limits. But the EU’s current economic woes, not to mention searing international political and legal pressure concerning its plan to bring international aviation into its ETS, mean that it faces bigger challenges now than it did in 1997.  

The increasingly influential BASIC grouping (Brazil, South Africa, India and China) are positioning themselves to (a) hold developed nations’ feet to the fire on emissions reductions and financial support for developing countries on climate change issues; and (b) avoid becoming stung by growth-limiting emissions restrictions themselves. Many would say that their position is completely reasonable: their standards of living are still low compared to western economies with long histories of resource exploitation and associated unrestrained emissions. They should be given a chance to catch up.  But conditions are ripe for a South African stand-off.

New Zealand’s ETS

Closer to home, New Zealand politicians are pondering the future of this country’s climate change policy. Earlier this year our fledgling emissions trading scheme was put under the microscope by a government-appointed review group.  Amongst its recommendations was the indefinite deferral of the agricultural sector to enter the ETS. The rationale is something like this: no one has yet figured out how to reduce emissions from the farming of cows and sheep, and the sector is so important to the national economy.  So, it makes no real sense to bring it into the scheme. There are compelling arguments to the contrary. But it is reasonable to assume that if the present government is re-elected, farmers will be breathing easy for quite some time to come.  A Durban outcome which pushes the timeframe for a new international binding treaty out to the last quarter of this decade will not help the cause of those arguing for faster, deeper and wider emissions cuts domestically.

Stepping back for a minute from the political and legal wrangling, what are the scientists telling us?  In 2007 the Intergovernmental Panel on Climate Change said that to keep global temperature to between 2°C and 2.4°C above the pre-industrial average and secure a reasonable hope avoiding significant climatic and environmental damage, emissions would need to peak before 2015 and sharply dive after that. Judging from their behaviour, not many world leaders seem to believe that advice. Our own included.  

By Vernon Rive on 14/11/2011 5:43:23 p.m. | Comments (1) | Print

Oxfam Climate Change Debate

Vernon Rive . 2/11/2011 10:33:44 p.m.

My boy Caspian (8) and I navigated our way through post-rush hour traffic on the failing Vespa this evening to the Auckland Uni Business School for Oxfam’s 2011 Election Climate Change Debate. Oxfam’s always insightful (and, for my money, one of the more consistently impressive New Zealand NGO commentators on climate change issues) Barry Coates chaired the debate.  

Nick Smith flew the flag for the Nats; David Parker for Labour, and Kennedy Graham for the Greens. Around a 100 were there: numbers, a bit disappointing – apparently a few more were at the Wellington event.  

Caspian liked the ‘clickers’ – TV-remote looking devices which allowed the overwhelmingly Green-backing audience to rate the speakers at various points in the proceedings.  He confessed at the end that he had struggled to follow most of the talkfest, but he clapped enthusiastically after each round and kept himself occupied trying to skew the stats by voting 10 times whatever I had picked. (Owen Glenn's clicker-designers were onto that.) 

Playing to a home crowd, I thought Graham lacked a bit of spark, with a couple of exceptions later in the piece.  He’d obviously prepared well, but the scripted answers – at one point, an entire answer was him reading from Green’s campaign brochure – were a bit stiff and stilted. He was at his best when he departed from his notes.  Graham's almost (but not quite) fiery response to Smith’s description of the Greens as a 1-issue party gave him a chance to display some passion.  But he’s got a way to go to fill Jeanette Fitzsimon’s sandals as Green Climate Change spokesperson.

Smith came across as the battle-hardened campaigner that he is. Tonight’s debate would have been a leisurely stroll compared to some of the provincial town hall meetings he’s faced over the years.  It was nice seeing him give some credit to Parker and Labour for the groundwork laid on CC policy. But the repeated Nats mantra: ‘we’re striking a balanced approach between the environment and the economy' wore thin with the audience and your correspondent.  I’m with Graham on this one. It’s not quite a question of balancing 2 competing factors.  The environment: local and global: is integral to the economy. Our economy more than most. And as Parker chipped in, the rhetoric of ‘balance’ can mask a multitude of sins.

A bit unexpectedly for me, Parker was the standout speaker.  Caspian agreed.  Although by 8:00pm, he was quite keen to get home and finish Amazon Adventure.  Maybe Parker had the easier task as the commentator from the sidelines.  But I thought his analysis of the folly of an indefinite deferral of agriculture into the ETS was on the button.  And his exposure of the long-term disastrous consequences of dabbling in the lignite-to-liquid energy habit left Smith and the Nats looking like they were on liquefactious ground, and I thought, slightly guilty. 

The final clicker-vote had the Green’s still well ahead, Smith’s 5 votes dwindled to 2 and Parker up around 10 clicks to 15. 

Next stop, Durban.       

By Vernon Rive on 2/11/2011 10:33:44 p.m. | Comments (1) | Print

Summer viewing

Vernon Rive . 5/01/2011 12:43:52 p.m.

Part v-log, part 70’s educational cine-movie, part Sigur Ros video, part Planet Earth on a handycam. Al Gore & masseuse nowhere in sight, but David Attenborough is there looking charmingly shabby. If you watch only 1 online climate change doco made on a tight budget by an 18 yr old UK film maker called Ross this week, make it this one: Beyond the Brink.

By Vernon Rive on 5/01/2011 12:43:52 p.m. | Comments (0) | Print

Duty calls

Vernon Rive . 6/09/2010 11:08:38 a.m.

A very recent decision of Ellis J in the High Court (Oteha Investments Ltd v North Shore City Council HC, Auckland, 30 August 2010 CIV-2008-404-6556) clarifies the nature of the duty of care owed by councils towards prospective applicants for resource consents when involved in pre-lodgement meetings where advice is given (and charged for) on local authority planning requirements for proposed developments.

Oteha had bought land intending to construct a 24 unit housing development which would be leased to Housing New Zealand Ltd.  Before lodging its application with the North Shore City Council, it had a meeting with council officers to discuss resource consent requirements.  A few months later it lodged its application taking into account the advice received.

Three months after the application has been lodged, a consultant planner for the Council identified 2 potentially significant requirements under the district plan which had not been previously identified: an esplanade reserve requirement, and a proposed road extension.  The second issue was resolved.  But the first "remained both live and problematic and ultimately led to Oteha withdrawing its original application and instructing new consultants to lodge a fresh application ...". Oteha alleged that the delays occasioned by the need for a new application caused Housing New Zealand to terminate negotiations.  The company sued the council in negligence.

The council applied to strike out the negligence claim, citing earlier decisions which had held that councils would not be liable for giving interpretive advice concerning the district plans.  An initial decision by Associate-Judge Sargisson struck out the negligence claim, holding that the situation was indistinguishable from the authorities in Morrison v Upper Hutt City Council [1998] 2 NZLR 331 (CA) and Bella Vista Resort Ltd v WBPDC [2007] 3 NZLR 429.

On an application for review of the Associate-Judge’s strikeout decision, Ellis J held that the Oteha facts were distinguishable from the authorities noted above.  Contrary to the submissions of the council, he held that it could not be ruled out that a duty of care arises where councils offer a fee-paying service of providing pre-lodgement advice.  So, we have a bit of a strange situation in that paid-for Council advice given in pre-lodgement meetings is potentially subject to a tortious duty of care, but the moment an application is lodged, the duty of care no longer applies.  

As acknowledged in the decision, the holding may have "a chilling effect on the concept of pre-lodgement meetings and advice". If so, that would be a shame. Many people (particularly those not in the position to engage experts at the outset) find it very helpful speaking with council officers about proposed applications before they are formally lodged.  If the result of the decision is to cause councils to "shut up shop" completely, a valuable service would be lost.  On the other hand, as also surmised by Ellis J, "it may simply mean that more care is taken when giving such advice". 

It seems quite likely this matter will go further.  In the meantime I'd expect a change in practice at councils.  Options might include (as noted above) the withdrawal of the pre-lodgment advice service completely.  Or perhaps less radically, an explicit limitation of liability when giving advice, and an increase in fees to cover the increased insurance premiums which reflect the wider council liability in these situations.  

By Vernon Rive on 6/09/2010 11:08:38 a.m. | Comments (2) | Print

Strictly Courtroom

Vernon Rive . 2/09/2010 3:55:56 p.m.

A recent decision of Judge Borthwick in the Invercargill District Court Southland Regional Council v Niagara Sawmilling Company Ltd CRI-2009-025-002700 contains a pithy and really-not-so-surprising affirmation of the strict liability nature of offences under the RMA.

Niagara Sawmilling Company was charged with a number of offences relating to the discharge of dust from sawing and processing timber on its premises.  On the evidence, it was held that some of the dust resulted from the operation of a "Cyclone" dust collector. Niagara had installed the equipment on the expectation that it would contain the dust.  But despite what it considered was its best and reasonable efforts, in fact it did not do so.  One of the other main causes of dust discharge was from wind blowing material off-site.

The lawyer for Niagara acknowledged that dust - being a contaminant under the RMA - had escaped from the site.  However, he argued that it was not being "discharged" by Niagara, because (in relation to the cyclone dust) Niagara had taken all reasonable steps to contain it, and at the time of the discharges, was not aware that dust was escaping.  In relation to wind-borne dust, he argued that the wind (a factor outside of the control of Niagara) had caused the discharge, not Niagara, and so it was not liable under the Act.

As judges sometimes put it, those were quite 'bold' submissions.  Judge Borthwick predictably rejected both arguments.  She held that the relevant offences were strict liability, and can be committed with no element of intention.  Equally, there is no obligation on the prosecution to establish that a person needed to foresee, or be aware of discharges, before they are liable.

Pointedly, she agreed with the lawyer for the Council that Niagara's lawyer's intended defence "appears to be a new or hybrid defence incorporating elements of section 341".  She held that this was not available, nor could such a defence be identified from previous case law, including McKnight v Biogas [1994] 2 NZLR 664 (HC) and URS New Zealand Limited v Auckland Regional Council, Environment Court, Judge McElrea, 25 May 2010, CIV-2008-004-013603.

Tough for Niagara?  Well, maybe.  It had purchased and installed the equipment in good faith, expecting that it would do the job.  But these sorts of laws can't really work any other way if they are to be effective, and create the right incentives to avoid environmental harm.  And the consequences of the "it wasn't us, it was the wind" argument succeeding are really too far reaching and scary to even consider...

Update: At sentencing on 15 November 2010, Judge Borthwick imposed a fine of $60,000 against Niagara, and made enforcement orders requiring an air quality consultant to be engaged to prepare an air quality management plan addressing staff training and implementation of measures to avoid further breaches.

By Vernon Rive on 2/09/2010 3:55:56 p.m. | Comments (2) | Print

Climate skeptics v scientists in court: the NZTR files

Vernon Rive . 17/08/2010 10:27:23 p.m.

With impeccable, or possibly ironic, timing, within a day or so of "a newly registered arm of the New Zealand’s Climate Science Coalition" lodging judicial review proceedings in the Auckland High Court against NIWA “to invalidate the New Zealand official temperature record (NZTR)”:
- the Australian Academy of Science has released a comprehensive report The Science of Climate Change containing an unequivocal finding that “the global average surface temperature has increased over the last century and many other associated changes have been observed. The available evidence implies that greenhouse gas emissions from human activities are the main cause.”
- The New Zealand High Court has issued a decision – significant on a number of other levels – containing a “side-bar” dismissal of an appeal which sought to challenge the Environment Court’s assumptions on climate change. The High Court agreed with the Environment Court’s finding that in an RMA appeal (this was a large windfarm application), it is not the Court’s role to revisit the assumption that climate change is occurring, nor should it enter into a discussion of its causes, directions and magnitude (paras 150-165).

CSC’s move to challenge NIWA’s historic temperature record has been commented on extensively in a number of blog posts and media articles in the last few days. Gareth Renowden at Hot Topic has undertaken a thorough critical assessment of CSC’s position. His commentary on it is well worth a read. The competing claims regarding the scientific validity of NIWA’s data are best assessed by climate science journalists and academic and practising scientists. But I have some initial  thoughts on the legal strategy being employed by CSC.

Judicial review is legal remedy with a long and proud track record in New Zealand. Judicial review proceedings have been employed to resolve (or attempt to resolve) disputes on topics as varied as a proposed 1985 NZRFU rugby tour of South Africa (they stopped it) , the decision to proceed with the Aramoana Aluminium Smelter (didn’t stop it), the divestment of Crown assets to newly formed State Owned Enterprises (stopped it in 1987, not so much after that), and the awarding to a newcomer of a major contract for Auckland medical testing services (halted in the High Court, went ahead after a Court of Appeal reversal).

But is JR an appropriate mechanism for resolving competing scientific claims in the climate change arena?

In 2007, UK plaintiffs backed by Viscount Monckton – also recently in the news – famously judicially reviewed the UK Secretary of State for Education and Skills’s decision to use Al Gore’s An Inconvenient Truth as an educational aid in schools. Lawyers for the father of children at one of the schools complained about a number of alleged errors in the film, and the need for a balanced presentation on what was regarded as essentially a political (as opposed to scientific) issue. The decision was widely reported for its finding that there were nine “errors” in the film: one of which involved New Zealand. However, the court broadly upheld the validity of the scientific research on which the film is based.

Closer to home, to date, there have been a number of occasions where New Zealand courts have been asked to rule on competing scientific positions concerning climate change.

In 1995 – it seems like ancient history now – a Board of Inquiry into the Stratford Power Station considered an argument that because, in global terms, the CO2 discharges would be “negligible” that issue should be put to one side when considering consenting under the RMA. The Board rejected the argument swiftly. It held “… even though the emission from the proposed power station is small by world standards, nevertheless the harm, or potential for harm, throughout the world is very large. A small proportion of a very large amount may itself be large.

That theme was picked up in a number of subsequent decisions, including (in 2002) Environmental Defence Society v Taranaki Regional Council and Environmental Defence Society v Auckland Regional Council, (in 2005) Genesis Power Ltd v Franklin District Council.

Amendments to the RMA in 2005 reduced the scope of legitimate climate change considerations for the Environment Court to (in simplistic terms) the positive effects on climate change of renewable energy projects. Notable decisions in which the legitimacy of climate change impacts was accepted by the Environment Court included (with no attempt to be exhaustive), (in 2007) Meridian Energy Ltd v Wellington City Council, (in 2008) Outstanding Landscape Protection Society Inc v Hastings District Council, Motorimu Wind Farm Ltd v Palmerston North Council, Upland Landscape Protection Society Inc v Clutha District Council, (in 2009) Unison Networks Ltd v Hastings District Council, Maniototo Environmental Society Inc v Central Otago District Council.

The examples above all concerned contested resource management approvals for particular projects.  In those cases it was open to the Environment Court to undertake a merits assessment of the proposals, and rule on competing evidence regarding benefits and dis-benefits advanced by the parties before it.

But judges in judicial review proceedings tend to shy away from “merits assessments”, focusing instead on procedure and compliance with statutory frameworks.  So, it’s unlikely the HC will be as open as the EC on the issues.

A core element of the intended CSC proceeding is an allegation that, in relation to a number of decisions or actions relating to its assessment and publication of the NZTR, NIWA has acted “unreasonably”.

Judicial review proceedings based on alleged unreasonableness are notoriously difficult to succeed on in New Zealand.  In recent years, the courts have adopted a “sliding scale of review”, where the degree or “intensity” with which the court examines contested factual or legal claims increases or decreases depending on a range of factors such as the nature and policy content of the decision, the identity of the decision maker.  In relation to research or publication decisions on issues which involve the application of fine-grained scientific methodologies, it’s hard to imagine the High Court taking anything other than a circumspect approach.

In short, I think the likelihood of the High Court embarking on a comparative review of competing positions on methodologies for adjusting historic temperature records is remote.

CSC is also alleging illegality on the part of NIWA. From the summary of claim, it looks as if CSC will rely on provisions of the Crown Research Institute Act 1992, and in particular on section 5. Section 5 specifies a number of “principles of operation” for CRI’s, including the obligations to “pursue excellence in all its activities” and “comply with any applicable ethical standards”.

Experienced lawyers never say “never” in the dark art of litigation. However, the scenario of CSC demonstrating to the satisfaction of the court that NIWA knowingly delegated tasks to personnel who themselves wilfully manipulated climate data sets seems far-fetched at best.  So too, I reckon, are the prospects of CSC establishing that NIWA knowingly and wilfully published information which it knew to be inaccurate or unreliable.

It is difficult to avoid the impression shared by a number of respected and independent commentators that the whole exercise is an ill-thought through attempt to gain publicity for a cause whose time has well and truly passed.  Or worse, a cynical ploy to distract overworked scientists whose time would better be spent on more productive tasks than rebutting tired, and probably irrelevant, claims through the court process.

NIWA’s statement of defence is due within 30 days of service.  It will be interesting to see how tactical moves on the part of NIWA, and possible applications for intervention by interested parties such as the Environmental Defence Society, pan out.

By Vernon Rive on 17/08/2010 10:27:23 p.m. | Comments (2) | Print

Whaling: Not where I wanted to be

Vernon Rive . 30/04/2010 5:24:05 p.m.

‘This has been a fraught subject for much more than twenty years …a boil on the international body politic that needs to be lanced…’ -Sir Geoffrey Palmer, NZ Whaling Commissioner, 1 April 2010.  Two years of intense discussions since the last IWC meeting in Chile in 2008 have left the parties in a state of unresolved wrangling, just one month out from the forthcoming IWC meeting of parties in June in the Moroccan seaside resort town of Agadir.

The last four months have seen a frenzy of activity on the vexed issue of international whaling, a pattern that looks set to accelerate in the remaining weeks leading up to the start of pre-meetings of IWC committees in late May, and the Annual Commission meeting on 21 June.  In January, an upbeat John Key, fresh from his summer break, mentioned to reporters his plan to raise with US Secretary of State Hillary Clinton in meetings a few days later a ‘potential solution’ that could end Japanese whaling.  Details were scant at that point. But an emotionally charged, politically intense debate was triggered when it emerged that the potential solution involved an arrangement which, on its face, legitimised limited whaling by Japan, Norway and Iceland for a period at least, while parties to the IWC attempted a longer term consensus.

Australia meanwhile, remained relatively staunch, confirming its commitment to ongoing discussions, but making no secret of its Plan B, if a satisfactory solution cannot be thrashed out at the next IWC round: proceedings in the International Court of Justice against Japan and other countries who have exploited a perceived loophole in IWC rules allowing the harvesting of whales for ‘scientific purposes’.  

The timing driven by an IWC deadline for tabling proposed amendments to the 1946 International Convention for the Regulation of Whaling, on 22 April (coincidentally Earth Day 2010) , the IWC, reportedly with US support, released a 'Proposed Consensus decision to Improve the Conservation of Whales'.

Under the ‘proposed consensus decision’:

- Japan would be allowed to legally kill and take whales in the Antarctic's Southern Ocean Sanctuary, but its quota would drop from 935 to 400 minke whales for 5 years, reducing to 200 after 5 years;

- Japan would also be allowed to harpoon 10 fin whales in the sanctuary and 120 minke whales in its own coastal waters;

      • - More active monitoring of whaling activities would take place under the auspices of the IWC;
      • - The maintenance of DNA records to enable detection of illegal international trafficking in whale meat would be mandatory.


Fin whales, the second largest whale species after blue whales, are on the IUCN ‘redlist’ of endangered species.  NZ Foreign Affairs Minister Murray McCully has described the inclusion of a catch limit for fin whales in the Southern Ocean Whale Sanctuary as “inflammatory” and “offensive”.

The introduction to the IWC’s proposed consensus decision frankly acknowledged that no party would be happy with it: "The only inevitable result of the example numbers we have included…is that as a package, they will be disliked by all for one reason or another, including ourselves.”  It is a self-acknowledged ‘straw man proposal’ – there to provoke and allow discussion. Provoke discussion it has.

NZ was swift to reject it.

To an extent, the IWC document might be seen as a ‘get out of jail free’ card for Key & McCully on an increasingly volatile political issue: after having gone out on a limb earlier in the year, it has now allowed them to move a little closer to public opinion, using descriptions such as ‘unrealistic’ and ‘inflammatory’, and emphasising that attempts at diplomatic solutions will not be pursued beyond a point. 

Australia’s inevitable rejection was made clear by Environment Minister Peter Garrett on 23 April, amplified in a 28 April speech in Canberra, saying “Australia believes the proposal before us falls well short of any outcome that Australia could accept.”

Japan was never likely to show enthusiasm for the text, nor did it: Japanese Fisheries Minister Hirotaka Akamatsu by way of loaded understatement put it this way: "Regarding the total catch allowed, it is different from Japan's position.” 

It hardly needs to be said that the stakes are high, and issues almost intractable.  And while position-taking, breast-beating, veiled and open threats are increasingly par for the course in the period leading up to contentious international treaty negotiations – the Copenhagen climate change conference for example – hopes must be dimming as to the prospects of an enduring situation being reached in Agadir in June.

Of obvious concern, if entrenched positions are maintained, is the possibility of the IWC process completely breaking down.  On this scenario, Sir Geoffrey’s views are clear:

I think there is a big risk of that and I don't relish it… We cannot afford to see the end of the International Whaling Commission because if it comes to an end, there will be no international instrument for protecting the whales.

Unregulated whaling would almost certainly result in an increase in the number of whales slaughtered in both hemispheres, without any dedicated international body - no matter how dysfunctional - to regulate it.

The possibility of the IWC falling apart leads to thoughts of alternative mechanisms such as the ICJ. 

It would not be the first time Australia and New Zealand have resorted to international law institutions to resolve environmental disputes.  In 1999, Australia and NZ embarked on international legal proceedings over a controversial Japanese ‘Experimental Fishing Programme’ for southern bluefin tuna.  There was mixed success: an initial ruling favourable to Australia and NZ was subsequently overturned by arbitral tribunal constituted under the United Nations Convention on the Law of the Sea (with a notable dissent by NZ’s Justice Kenneth Keith – now sitting in the ICJ).  The parties were ultimately sent back to the negotiating table to work things out ‘peacefully’.

New Zealand has been to the ICJ twice over the legality of French nuclear testing in the Pacific.  France ignored provisional measures ruled on by the ICJ in NZ’s favour in 1973 and 1974, proceeding with tests, and then avoided a detailed merits assessment of the legality of its actions by undertaking not to undertake further atmospheric testing.  In 1995 an attempt by NZ to seek rulings on the legality of underground testing was dismissed by the ICJ, although France subsequently joined a treaty banning all nuclear testing in 1998. 

International legal proceedings can have utility in putting additional pressure on nations to alter their behaviour in the global realm.  But they potentially take years to come to hearing and produce rulings, are frequently dogged by tactical procedural challenges (which, as seen in the BFT and nuclear cases, have gone against NZ as often as for) and even if successful, require political goodwill to be complied with.

For all parties there is a real conundrum over tactics.

The Sea Shepherd’s supporters will be basking in obvious satisfaction at the success of significantly reducing the numbers of whales taken by Japanese vessels through a determined campaign of obstruction.

Unregulated and increased whaling could well provoke future campaigns by the likes of Sea Shepherd compared with which, the past obstruction activities could be seen as a clearing of the throat, a gentle warm-up.  The military jargon that already permeates websites, speeches and other media of some anti-whaling organisations reflects the position that not only has war already been declared, but also that it most certainly will be televised.

But it would be naïve to think that these tactics will provoke anything but a hardening of position by whaling nations.  Attracting the attention of a section of young Americans to reality-type shows capitalising on the age-old romance of adventure on the high seas is one thing.  Unlocking entrenched attitudes of pro-whaling nations and their leaders, for whom whaling has been elevated to an issue of international identity, sovereignty and esteem is another. 

Peter Singer, the respected Australian philosopher, writing in 2008 pithily summarised one of the core ethical issues thrown up by the whaling debate:

The Japanese do have one argument that is not so easily dismissed. They claim that Western countries object to whaling because, for them, whales are a special kind of animal, as cows are for Hindus. Western nations, the Japanese say, should not try to impose their cultural beliefs on them.
The best response to this argument is that the wrongness of causing needless suffering to sentient beings is not culturally specific. It is, for example, one of the first precepts of one of Japan's major ethical traditions, Buddhism.

But Western nations are in a weak position to make this response, because they inflict so much unnecessary suffering on animals. The Australian government strongly opposes whaling, yet it permits the killing of millions of kangaroos each year—a slaughter that involves a great deal of animal suffering. The same can be said of various forms of hunting in other countries, not to mention the vast amount of animal suffering caused by factory farms.

NZ is by no means lily white in this respect.  A recognition that our own house needs to be in order is seldom part of the discussion, but should be.  So too, might an acknowledgement of NZ’s own role in historic whaling activities – 1964, the year that the last whale was harpooned in NZ waters is not so long ago.   The point is not so much that anguished introspection is needed, but rather that a small dose of humility might go a long way in the international debate.

It seems unlikely that the question of whaling will be finally resolved by extreme tactics by either side, rulings of international courts, or trade wars.  Those elements may play their part, but ultimately, resolution lies in the shifting of ethical views: a fundamental revisiting of the relationship between humans and this class of higher mammals, whose lifespan frequently exceeds that of humans, whose brains are up to ten times the size of ours, and whose number include the largest creatures on earth.

Perhaps what is needed is not another Operation No-Compromise, but a global charm offensive, aimed at the capturing the hearts and minds of the Icelandic, Norwegian and Japanese public, particularly the young.  More Whale Rider than The Cove?  Less Sun Tzu than Heathcote Williams?  The tactics of Te Whiti over Guevara?

By Vernon Rive on 30/04/2010 5:24:05 p.m. | Comments (1) | Print

Troubled waters: a tale of two reports

. 26/02/2010 10:07:27 a.m.

In the last two weeks, two reports with significant implications for fresh water management in New Zealand have been released. The reports share a common starting point: there are serious issues with current approaches to fresh water management, including widespread over-allocation and the lack of an integrated approach to water management, with environmental and economic consequences which, already at an unacceptable level, could dramatically worsen in the future.

In response, the authors of the first report recommend a much clearer articulation of the national values relevant to fresh water management, and the provision of central government direction to how these values should be reflected in and implemented through subordinate planning documents. 

Acknowledging that sustainable management involves an “overall broad judgment… that allows for a comparison of conflicting considerations” the authors of the first report nevertheless urge a recognition and protection of natural environmental values of water, even if this means limiting the availability of the resource for human use, including for commercial purposes:

Improvements in fresh water by phasing out over-allocation and contamination require that fresh water is used for enabling economic wellbeing only while, and to the extent that, life-supporting capacity of water and its associated ecosystems is fully safeguarded, and the potential to meet reasonably foreseeable needs of future generations is fully sustained.
Intrinsic values of fresh water are substantial in themselves.  Maintenance, restoration and enhancement of them is not subordinate to economic values of fresh water for potential use for people and communities’ wellbeing.

The second report bemoans the “lack of balance between economic, social, cultural and environmental perspectives” in relation to the management of water resources in one New Zealand region, holding that (amongst other matters) it is an over-emphasis on environmental values, and under-emphasis on the economic benefits of water use that has inhibited the strategic management of water in that region.

There is insufficient consideration given to the fact that the purpose of the RMA is to weigh environmental, social, cultural and economic matters. [The] focus is mostly on ‘natural’ environmental matters. 

There is a lack of economic perspective to balance what is perceived as a pro-natural environment approach in Plans and officer reports…

The second report’s recommendation is to remove all powers of water management, strategy and plan development, consent processing, monitoring and enforcement from an existing regional council, and establish a new standalone regional water authority under new legislation, membership to be appointed by central government. The new Act would have its own purpose, distinct from the purpose of the RMA, “which should involve a mix of economic development, environmental, social and cultural factors.”

The first report, of course, is the Report and Recommendations of the Board of Inquiry in the Proposed National Policy Statement for Freshwater Management.  Chaired by the former Principal Environment Judge Sheppard, and written in crisp prose reminiscent of many landmark Environment Court decisions issued under his direction, this is the outcome of an involved document development and consultation process which included 149 submissions on the draft NPS, 30 further submissions, hearings over 21 days with appearances from 80 submitters, and at least 4 months further deliberations before provision of the recommendations to Government. 

If adopted, the NPS would require regional councils to include in new or amended policy statements and plans a raft of new provisions directed at addressing the key national issues identified as of significant concern, namely:
 Over-allocation of fresh water;
 Contamination of fresh water;
 Loss of wetlands;
 Incompletely integrated management.

The report frankly acknowledges that an NPS will be only part of a wider programme of review and reform.  Much of its content is taken up with explaining why matters urged on it for consideration by submitters are outside of the scope if its inquiry, or indeed, the scope of the RMA.  And while one environmental group, EDS, has criticized the 2030 target date for improved freshwater quality, it conceded that “there is some real merit in the policies and objectives the Board of Inquiry has proposed”.

There are no prizes for identifying the second report as the Report on the Investigation of the Performance of Environment Canterbury, released on 19 February.  It is a no-holds-barred and wide ranging critique of Ecan’s water and senior management team and institutional processes.  It appears likely to lead to the disestablishment of Ecan as we know it, quite possibly in a very short timeframe.  If implemented, in Canterbury at least, the prospect of the RMA as 1-stop-shop is severely bruised, and with it, the hopes of meaningful integrated management – particularly a recognition of the links between land use development and water use and quality.   

Some of the Ecan officers might read the Board of Inquiry report with interest, reflecting on the irony that, superficially at least, their approach of holding the intrinsic values of water as not necessarily subordinate to the economic values of commercial use seems to resonate with the tone and content of former Principal Environment Judge and his Board colleagues’ report.  But that approach – held up as an example of misguided and unbalanced thinking by Messrs Creech and co - could well mean the imminent demise of any meaningful role for them at the council that manages around 70% of New Zealand’s fresh water resource.   

By on 26/02/2010 10:07:27 a.m. | Comments (1) | Print

Testing the water: competing priorities for water takes in the Court of Appeal

Vernon Rive . 9/02/2010 6:01:09 p.m.

A Court of Appeal judgment delivered just before Christmas (Central Plains Water Trust v Synlait Ltd [2009] NZCA 609) is the latest chapter in a long saga of litigation dealing with the vexed issue of competing priorities for consent applications dealing with the same resource: in this case, South Island water.

The decision, judgment delivered by Baragwanath J, affirms the “first-in-first served” principle earlier established in the well-known Fleetwing Farms case, and the principle more recently laid down in Central Plains Water Trust v Ngai Tahu Properties Ltd [2008] NZRMA 200 (CA) that in circumstances where there are competing applications for the same resource, hearing priority is to be determined by who is “first to file a complete application”, and not according to which application is first “ready for notification”.

In Ngai Tahu, it had been left open as to whether the “first to file a complete application” test should apply to scenarios where the competing applicants were not “similar commercial competitors”.  Now, the CA has confirmed that the Ngai Tahu test applies across the board, subject to a potential – and slightly tantalising - “exceptional circumstances” rider, the limits of which will have to be drawn in subsequent cases, if not addressed by legislative reform.

At the heart of the Central Plains decision is an assessment of what the Court described as two competing “themes”: Theme 1 - “efficiency” and Theme 2 - “other policy factors”, further described as “s 5 and the broad concept of sustainable management”.

While accepting that both themes are recognised in Part 2 of the RMA, they were characterised as “each tending in different directions”: crudely summarised, the “efficiency” theme supporting a simpler, quicker, non-discretionary attaining of priority status, once an application that satisfies the basic requirements of s 88 RMA has been lodged (Central Plains’ position); and the “sustainable management” theme supporting a more nuanced, potentially discretionary route to attaining hearing priority which would allow, for example, decisions by Council officers to request further information, or defer the hearing of applications until other related consents are lodged, to influence the question of priority.

Baragwanath J and his CA colleagues reconciled the competing considerations by separating the issue of priority of hearing from the issue of priority of merits. Priority of hearing, it was held, should be determined by reference to s 88:

It is impractical to use as a measure of priority, even as to hearing, the mutable test of what a council officer, more or less cautious, more or less informed, might stipulate under s 91 (or indeed s 92). What matters as to priority of hearing is what Parliament has stipulated in ss 88 and 21, which provide the essential and unwavering architecture.

So, the first to file a complete application has priority of hearing. The second-in-time competing applicant will normally have an opportunity to submit against, and be heard in relation to the first application: this, the Court said, allows the non-priority applicant to have it say on, and for the council (or Environment Court on appeal) to assess, “the Part 2 and other (theme (2)) considerations rather than allow the theme (1) factors to deprive the community of a benefit which it considers outweighs them.”

The CA decision may not be the last word, however…as with the abandoned Supreme Court proceedings in Central Plains Water Trust v Ngai Tahu Properties Ltd, there is one more level of appeal available. Watch this space.

As the CA itself came close to acknowledging, the entire system of allocating fresh water in New Zealand is ripe for a bottom-up review, and reform. That process is winding up – slowly. In the meantime, first-in-first-served, with an application that meets the statutory requirements, but allows for gap-filling down the track, is the order of the day.

By Vernon Rive on 9/02/2010 6:01:09 p.m. | Comments (2) | Print

Cloudy, with a chance of appeals

Vernon Rive . 21/01/2010 3:45:14 p.m.

Over at Hot Topic, Bryan Walker has posted his 19 January Waikato Times article following Environment Judge Newhook’s recent interim decision giving an “indication of a possible positive recommendation” to Crest Energy’s proposed marine turbine power generation project in the Kaipara Harbour (Crest Energy Kaipara Ltd v Northland Regional Council A132/2009).  There are high hopes for marine generation in New Zealand, and this decision is a notable step in that regard.

Crest’s consenting process hasn’t been all clear skies and calm waters. In June 2009, representatives of a Northland hapu of Ngati Whatua (Environs Holdings Ltd) brought judicial review proceedings to overturn an EC decision declining a stay or adjournment of the hearing of various EC appeals on the proposal.  A stay was sought to avoid prejudice to a pending claim under s33 of the Foreshore and Seabed Act that was anticipated if the EC proceeded with the appeal proceedings under the RMA.

The High Court gave the application reasonably short shrift, holding that the claimants could run their arguments (including concern at expected prejudice to rights that may be confirmed under the Seabed Act) in the RMA proceedings, also noting the EC’s role in relation to the restricted coastal activity consents needed for the marine turbine operation was recommendatory only. As with the Whangamata Marina case, the Minister of Conservation has the final say, a factor (the HC said) that “adds a safeguard to the process from the group claimants’ point of view”.

The EC appeal proceeded.  In the event, the Court was not ultimately swayed by extensive submissions and evidence on the part of Environs in opposition to the RCA consents, holding (amongst other matters) that Crest’s offer of a Memorandum of Understanding and proposed funding of a trust for environmental restoration in and around the Kaipara Harbour “can be seen to address aspects of cultural offence deriving from biological and physical degradation of past land and water management practices, and together with satisfactory conditions of consent addressing ecological and other biophysical matters, should, if those things are adequately addressed, amount to adequate provision for the matters the subject of Section 6(e).”

The EC has asked for more information on monitoring and the proposed conditions of consent, however all signs point to a positive final recommendation, once i’s are dotted and t’s crossed.

Turning to wider issues of energy policy, as Bryan notes, there are question marks around government priorities for renewable energy generation:

In the case of marine energy [the Government] has, admittedly, provided $8 million over a period of four years to support selected projects. But it committed $20 million over three years to gather seismic data in support of oil and gas exploration, and has extended tax exemptions for offshore exploration.…In a rational world we’d be more interested in finding ways of leaving it in the ground, knowing, as we now do, the fearful prospects ahead if we keep burning the stuff.  There’s still some priority-sorting needed at government level.

Even assuming Government gets on board, quite how the “priority-sorting” should best demonstrate itself is an interesting question in itself, as was seen in a rather different decision by another division of the Environment Court on another controversial renewable energy project – Meridian’s planned 176 wind turbine Project Hayes (Maniototo Environmental Society Inc v Central Otago District Council C103/2009).

In Maniototo an “All of Government” submission in support of the proposal under section 141A(4)(c) RMA was considered, the issues advanced on behalf of the Crown “duly assessed” and “had regard to”, but the Crown’s involvement in support “as an ‘other matter’ for the purposes of section 104(1)(c)” was ultimately not of sufficient moment to offset the concerns of the majority of the Court with impacts on landscape, and its assessment that Meridian had not sufficiently analysed relevant alternatives.

The Maniototo decision has been criticised for creating “a new test for projects to overcome which is unworkable; which will result in planning paralysis and in conflict between organisations wanting to advance separate projects”.  Meridian has appealed to the High Court, whose decision may well prove to be one of the more significant RMA judgments in 2010.

In the meantime, its hard to escape the view that clearer central Government direction on issues of national significance in the renewable energy arena – the kind of guidance that will not simply be relegated to ‘another matter’ to be thrown in the mix - is sorely needed.  Something like, say, a clear NPS on Renewables?  It can’t be far off, surely…

By Vernon Rive on 21/01/2010 3:45:14 p.m. | Comments (2) | Print

Spotlight on NZ sunshine laws

Vernon Rive . 12/01/2010 12:43:17 p.m.

Sunlight, US Supreme Court Judge Louis Brandeis famously said, is the best disinfectant.  Less famously, he also remarked that “the logic of words should yield to the logic of realities”.  The tension between disinfecting sunlight and the logic of realities is again about to come under the scrutiny of the New Zealand Law Commission, charged with a review of the Official Information Act 1982.

A comprehensive review of the OIA was undertaken by the Commission in the early 1990’s culminating in its 1997 Review of the Official Information Act 1982.  In 1997, it concluded that the OIA “generally achieved its stated purpose” but identified a number of “major problems” with the Act and its operation, including challenges thrown up by large and broadly defined requests, delays in responding to requests, resistance by agencies outside of the core state sector and deficiencies in coordinating supervision, compliance and education about the Act.  Some, but by no means all, of the recommendations were picked up in a 2003 Amendment to the OIA. 

The forthcoming Commission review follows notable reviews of the OIA by Wellington media lawyer, blogger and academic Steven Price and former Victoria University Senior Research Nicola White (whose 2007 book Free and Frank – Making the Official Information Act 1982 work better was the output of a 2 year project analysing the operation of the Act). 

Price’s research is especially interesting.  In late 2002, as part of a quantitative data collection exercise, he made OIA requests to 136 national agencies subject to the OIA asking for, amongst other material, copies of the 10 most recent OIA requests and responses, 10 most recent requests/responses where information had been withheld and 5 most recent requests/responses where time limits were extended. 

The results of Price’s requests were, as Law Commission President Sir Geoffrey Palmer wryly acknowledged in a 2007 speech, “mixed” – 13 of the agencies failed to respond, even after follow ups, and even after being told that the research was being overseen by an Ombudsman and former Secretary for Justice. 

Perhaps surprisingly, given the inconsistent approach to responses to his own OIA requests, Price concluded that the OIA appeared to be working better than its critics might have predicted: he found that the majority of requests were apparently met in full, the vast majority on deadline.  However he also concluded that “there is…much to be concerned about”, including around 1 in 8 requests breaching the 20-working-day response deadline, “bland assertions of ‘confidentiality’, ‘commercial sensitivity’ and ‘privacy’”, and widespread failure to explicitly balance public interest considerations against (rebuttable) reasons for withholding.

To kick off its 2010 review, the Commission is looking for input from people regularly involved in and familiar with the operation of the OIA and its sister statute, the Local Government Official Information and Meetings Act 1987, via an online survey and discussion forum.  Responses to the initial round of information gathering are due by 15 February. 

By Vernon Rive on 12/01/2010 12:43:17 p.m. | Comments (1) | Print


I’m an Auckland based writer, researcher, lawyer and lecturer specialising in environmental, resource management and public law.  My particular interest is in the international law framework influencing domestic law and policy on climate change and biodiversity protection.  I'm the author of chapters on the International Framework, New Zealand Climate Change Regulation and Adaptation to Climate Change in the 2011 Lexis Nexis-published book Climate Change Law and Policy in New Zealand and the general editor of the Resource Management Bulletin.  I also lecture in Public, Resource Management Law and International Environmental Law at AUT Law School.