Environmental right needed before it’s too late

If New Zealand doesn’t protect environmental rights there’ll be no environment – or economy – left to protect, argues Sir Geoffrey Palmer.

The 2016 book A Constitution for Aotearoa New Zealand by Andrew Butler and me proposes a written, codified, superior law constitution for New Zealand.

The draft Constitution contains an environmental right, along with other rights now contained in the New Zealand Bill of Rights Act 1990.

Rodney Hide does not like it (see National Business Review, 12 May 2017).

One of the main policy issues modern economies face is this: when is the market the best way of advancing human welfare, and when is government intervention needed to regulate an activity?

It is around such issues that much legislation pivots.

Neo-classical economists insist that the market is usually the best solution.

For years they said that financial markets didn’t need regulation.

They were wrong.

Lack of regulation made New Zealand’s markets a wild-west show, and crippled them.

Many people lost their money.

We now have modern legislation that prevents the rip-offs and scandals that used to characterise the New Zealand financial sector: the Financial Advisers Act 2006, the Financial Markets Authority Act 2011, the Financial Markets Conduct Act 2013, the Financial  Supervisers Act 2011 and the Financial Reporting Act 2013.

New Zealand’s environment is now in a similarly perilous state.

Climate change is the key environmental issue facing the world, and the New Zealand  regulatory response to has been lame and ineffective.

Water is another environmental issue of major importance. Every day we hear more about the sad state of New Zealand’s lakes and rivers.

So far, we have seen no effective response from a government that has been determined to increased primary production exports at the of the expense of environment.

Environmental rights are a live subject internationally.

According to the Canadian lawyer David R Boyd, author of The Environmental Rights Revolution, more than 80 countries now have some form of constitutional right to a healthy environment, enforceable by courts.

We have fallen far behind other nations in the measures we take to protect the environment.

And too often, the environmental protections we have are not enforced.

How might things be different for New Zealand’s waterways if the country’s citizens had an enforceable right to a healthy environment that could not be ignored by central or local government?

How might things be different for the citizens of Havelock North?

The capacity of the planet to survive the pollution that is being heaped upon is limited and we are not far from the tipping point.

In New Zealand on water that point has been reached.

Development must take place within the capacity of ecosystems to support it.

We are notoriously bad in New Zealand at looking to the future.

In policy terms we seem unable to see beyond the next election.

Surely, we have some obligation to protect the interests those who come after us by leaving them with an environment that will support them.

In the strange constitutional structure of New Zealand, where a determined executive can get its way on almost anything in a small Parliament with only one Chamber, there need to be more checks and balances upon government excesses.

A written codified constitution can provide some of those checks by entrenching rights that cannot be over-ridden by a majority of one or two, and cannot be ignored by central or local government.

Judges are independent and not subject to political spin.

They can interpret objectively and carefully when the principles that are set out in such a Constitution have been breached.

The Environment Court has for many years used the judicial process to test proposals that involve pollution and degradation of the environment.

I suggest Mr Hide read the recent decision of Judge Thompson in the court case the Wellington Fish & Game Council and Environmental Defence Society brought against the Manawatu-Wanganui Regional Council concerning the Regional One Plan. The issue here was water quality. (Decision [2017] NZEnvC 37).

In that case the illegality and negligence of the Council was remarkable to say the least.

The Council did not even follow its own rules.

New Zealand’s clean green image upon which the tourism industry centrally depends is at risk.

Nothing effective has been done about it.

More levers are needed to nudge the Government into action.

A constitutional right to clean environment would provide a stimulus that would work.

Governments tend to do what they can get away with.

We need this right for the same reason we have guarantees against the excesses of police power and other governmental inroads into civil liberties.

Untrammelled free markets will crush the environment.

In the end, if Mr Hide has his way, there will be little economy left.


This blog first appeared in the National Business Review on Friday 19 May, in response to the previous week’s column by Rodney Hide.

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