Environmental Responsibility and Democracy for the Future: Limits, Pathways and Actions
Sir Geoffrey Palmer
Speech to ECO Conference, Nelson
Saturday 26 August 2017
This address links two themes and they are related.
The first is the state of New Zealand’s environment.
There exist here serious issues requiring urgent remedial policy attention that they have not received.
The second is the state of our Constitution, our democracy.
It is my contention there are serious issues to be addressed with our democratic frameworks as well.
After the 1987 election I became the Minister for the Environment.
It was a newish post; for many years New Zealand did not have a Minister for the Environment.
The first Minister was not appointed until 1972 and then he had no department.
A Commission for the Environment was established but it had no statutory basis, only a Cabinet minute, although it did have a number of staff.
Phil Goff, as Minister in the first term of the Fourth Labour Government, had passed the Environment Act 1986, setting up both the Ministry and the Parliamentary Commissioner for the Environment.
Russell Marshall passed the Conservation Act 1987.
Both statutes have withstood the test of time but both now need major surgery and the administration of them needs an infusion of resources.
I found being the Minister for the Environment for three years a wonderful but worrying experience; wonderful because I could learn about many fascinating issues and worrying because of the fragility of the planet and the future of life upon it.
I do believe that disaster will overtake the world unless international measures to protect the environment are agreed upon and implemented.
Being the Minister gave me exposure to issues about which I had not thought before and that led to an enduring interest in international environmental law.
Not only were we grappling with the design of the Resource Management Act 1991, but also towards the end of my tenure the climate change issue came into prominence.
On 4 August 1990 we announced the New Zealand Government’s response strategy.
The step was taken because the first report of the United Nations Intergovernmental Panel on Climate Change (IPCC) was produced in 1990.
While global scientific knowledge had not yet reached the clarity and consensus that it has now attained, the shape of things to come was clearly discernible even then.
The first peer reviewed scientific article on the topic appeared in 1896!
The strategy adopted by the Government in 1990 called for priority to be given to reducing the emission of greenhouse gases, rather than focusing on adaptation.
The announced aim was a 20 per cent reduction of 1990 carbon dioxide emissions by 2005, as an interim objective.
The Ministries of Commerce, the Environment and Transport were required to work together to develop a carbon dioxide reduction plan, in consultation with other government agencies, local and regional government and NGOs.
The strategy also required the pursuit of an increased use of renewable energy resources in New Zealand.
Reduction targets were set by the strategy: carbon dioxide – a 20 per cent reduction on 1990 levels by 2005, with reports to be prepared on the actions necessary for and implications of a 40 per cent reduction by 2015 and a 60 per cent reduction by 2020.
I made several speeches in the Pacific warning the Pacific Island countries of the dangers of inundation due to rises in sea level caused by climate change. I said at the University of Papua New Guinea in May 1989:
In our neighbourhood are many small nations, rich in history, culture and language. There are several nations in the Pacific region that are made up totally of atolls. The entire land base of these vital, unique and important countries are likely one day to be physically destroyed.
Those policies were eventually swept away by the incoming government.
Had we started on the job of reducing our emissions back then the ease of adjustment would be much greater now. But we did not start and the result is that New Zealand’s greenhouse gas emissions have increased.
The recent report of the Parliamentary Commissioner for the Environment says that between 1990 and 2015 “New Zealand’s net emissions have risen 64 %”.
New Zealand’s current policies on adaptation are no better than the laggard emissions policy. The need to control emissions and adequately deal with adaptation will require heavy changes in New Zealand law that are not yet on the horizon.
Environmental policy in New Zealand suffers from a bias toward the present over the future.
The three-year parliamentary term reinforces the bias.
The policy conclusion to be drawn is that the biggest enemy of the future is the present.
The problems of the present and their resolution crowd out the prospect for the future.
No doubt this does not happen on every occasion on every issue, but the tendency seems to me powerful nonetheless.
The Resource Management Act crisis
The Resource Management Act is a case in point.
Many environmental indicators have become worse in the years since 1991 and prime among those issues have been the deteriorating quality of our water.
Poor water quality results from three major types of pollutants: pathogens, sediment and nutrients—nitrogen and phosphorus doing the most damage.
Agricultural intensification, particularly dairying has much to answer for here.
The loss of our biodiversity also continues apace.
The performance of local authorities both in the planning and enforcement space has been defective and sometimes downright unlawful.
The principles of sustainable management that drive the Resource Management Act can be, and have been, subverted by a number of factors:
- weak central government leadership in providing the policy guidance the Act entrusts to it;
- political influences on regional councils that attempt to tip the scales against the environment and in favour of development;
- government policies explicitly designed to encourage the intensification of agriculture by raising primary production export earnings and subsidising irrigation projects;
- conflicts of interest within regional councils between obligations as environmental regulators compared with development activities undertaken by the council, the most egregious example being the Ruataniwha Dam project in the Hawkes Bay;
- failure to enforce the law contained in plans and enforce consent conditions, thus going soft on polluters.
Dr Marie Brown’s recently published research for the Environmental Defence Society (EDS) demonstrates the point.
The Manawatu One Plan case decided this year is an example of how bad things are. The Environment Court issued seven far-reaching declarations.
These declarations demonstrate the council had failed to adequately protect the water quality, was in breach of the Act and had even failed to properly follow its own promulgated plan.
The illegality of the council’s decision-making is quite stunning.
It had been assessing and granting consents in accordance with a council resolution.
The court characterised the resolution in strong language: “… it is unlawful, invalid and in contravention of the RMA to have regard to factors such as those in subpara (iii) of the former Resolution.”
Forced to withdraw and revoke the resolution that could not be defended, the legality of consents granted on the strength of it will need now to be addressed.
The two prime New Zealand statutes governing most actions on climate change are the Resource Management Act 1991 (RMA) and the Climate Change Response Act 2002. The statute book speaks with many voices in New Zealand on climate change. There exist a number of provisions enabling and providing incentives for fossil fuel exploration.
The RMA was designed and implemented before the magnitude of the climate change problem was fully apparent.
The Bill was introduced in 1989. Amendments have been made to try and take the issue into account to some degree but these have been insufficient and have raised more problems than they have solved.
The unsatisfactory nature of the law has caused expensive and lengthy litigation, including at least two journeys to the Supreme Court. In West Coast ENT Inc v Buller Coal Ltd  NZSC 87,  1 NZLR 32 the Supreme Court had before it the provisions of the Resource Management (Energy and Climate Change) Amendment Act 2004.
The Amendment Act directs those operating under the RMA to have particular regard to the efficiency of the end use of energy and the benefits derived from the use and development of renewable energy. However, the Amendment Act also introduced provisions prohibiting consent authorities from considering the effects of greenhouse gas emissions on climate change when making rules to control discharges into air and when considering an application for a discharge permit.
The amendments required consents and conditions to follow any national environmental standard to control the effects on climate change of the discharge into the air of greenhouse gases. This amendment was to avoid having Regional Councils arriving at different standards around New Zealand and to avoid double regulation. But in an obvious policy failure no such standard has ever been promulgated.
New Zealand’s key environmental statute the RMA is disabled from considering what is a critical issue relating to climate change. The massive and recent amendments to the RMA are silent on the issue.
As the law now stands it is not open to territorial authorities and regional councils to regulate activities by reference to the effect on climate change and greenhouse gas emissions. That is what Wise Response found out when they challenged the massive Fonterra South Canterbury coal burning milk drying plant last year.
The statute is also the prime mechanism by which climate change adaptation must be addressed in New Zealand. Here the approach of central government has been to leave it to local authorities minimal help or guidance.
No signals are given that central Government regards the issue as a priority. What is required in my opinion is a National Environmental Standard promulgated under the RMA to avoid having Councils argue the science and relitigate with their communities over and over again.
And now we begin to address a cross-over point with the Constitution.
It concerns how the law is made.
The Resource Management Act was 382 pages in length when it was passed in 1991.
It is now 773 pages in length.
But that is not all.
Parliament this year passed the Resource Legislation Amendment Act that is not yet in force.
It covers a further 213 pages.
This statute is long and incomprehensible now.
It has lost its coherence.
It is not fit for purpose.
But more legislation is planned after the election.
The Productivity Commission has produced two reports.
The later one in February 2017, Better Urban Planning, is being worked on in the Ministry of Business, Innovation & Employment.
I have never been convinced that the economists at the Productivity Commission understood the nature of the jurisprudence developed in the courts, in particular by the Supreme Court and what it means in practice. Quite Possibly MBIE suffers from the same problem.
To begin with, the courts got the statutory interpretation issues wrong. This led to the application of an ‘overall judgment’ test, which seemed to take priority over the intention of the Act: to provide environmental bottom lines. That intention was clearly illustrated in parliamentary speeches during the Bill’s legislative passage by two Ministers for the Environment.
Fortunately, the Supreme Court of New Zealand has now provided clarity in the case of Environmental Defence Society v New Zealand King Salmon . In a careful and elegant judgment of the Court given by Justice Terrence Arnold, matters were made as clear as it is possible to be. It is to be hoped that decisionmakers do not return to their old habits of ad hoc balancing.
Without going into detail, it is important to note that in 2014 the Supreme Court, in the most important judicial decision since the inception of the Act, made a number of significant pronouncements of great precedential value:
- It repeatedly emphasised that environmental protection is an essential part of the RMA’s purpose of sustainable management.
- It stressed that sections 6 and 7 are an elaboration of the statement of principle contained in section 5.
- It drew a distinction between the matters addressed in section 6 and those addressed in section 7, noting that the matters in section 6 “fall naturally within the concept of sustainable management in a New Zealand context”, and section 6 therefore contains a stronger direction to decision-makers than section 7.
- It explained that the elements of “protection and preservation” in section 6 “are intended to make it clear to those implementing the RMA that they must take steps to implement that protective element of sustainable management.”
- It rejected the ‘overall judgment’ approach adopted by the Board of Inquiry.
- The Productivity Commission managed to write a whole report without referring to the King Salmon case. What a remarkable mistake.
The decision makes it very difficult to argue that the Government’s proposals for reform, made in 2013 but never introduced, were a simple ‘rebalancing exercise’. Following the Supreme Court decision, the decision that the government has made to abandon its plans to radically alter Part 2 was a wise decision. What the decision makes plain is that ad hoc balancing tests are out, and environmental bottom line tests are in.
The unfortunate feature of the struggle on Part 2 has been to cause years of delay in making the processes of the Act less cumbersome, less bureaucratic and more user-friendly. What the Supreme Court decision demonstrates, in a remorselessly analytical manner, is that the environmental protections in the Act are real, and any reduction of them would be a retrograde step. People who want to change the approach have to recognise that the sustainability paradigm constitutes the key anchoring principle for the key policy in the whole Act.
There are some welcome features in the Productivity Commission report, including spatial planning and other matters.
The Ministry of Innovation Business and Employment website says the purpose is to produce a policy that will allow more nationally or locally significant projects to be built more quickly.
The Ministry for the Environment may well have its influence reduced in this policy process.
That is the department responsible for administering the RMA.
It looks like a potential policy train wreck to me.
An enormous set of changes to the RMA have just been made, plus new big proposals are now being worked on.
This policy process that could easily go awry.
It would be better to begin all over again, such is the state of the legislation.
What is needed is an open, transparent and public consultative process.
The Government may replace the RMA altogether, they have been working behind the scenes on this for some time.
But depending upon who wins the general election the environment could be in peril.
Better law-making procedures would produce better results.
The problems are these:
- an unmanageable quantity of statute law resulting in attendant dangers for the rule of law norm:
rapid increases over time in the cumulative bulk of statutes:
- a pronounced tendency to pass too many amending Acts that damage the coherence of the principal Act:
- insufficient care and planning in the development of significant new statutory schemes because time is not allowed, thus quality is reduced:
- undue delays occurring in the passage of necessary smaller changes to the law:
- a propensity to pass new statutes where changes to the law are not needed:
- a failure to evaluate systematically whether statutes have achieved their purpose:
- a lack of transparency surrounding the preparation of legislation within the executive and the fact that the legislative programme is not publicly available:
- a lack of clarity as to whether the Executive or Parliament is responsible for the quality of legislation:
- Parliament does not sit long enough to properly process the legislation that is introduced and does not do a good job of technical scrutiny:
- urgency can prevent proper scrutiny of Bills and the taking of urgency unreasonably reduces safeguards:
- procedures in the House of Representatives do not add sufficient value to the quality of legislation and need to be improved:
- the moving of extensive amendments in the Committee of the Whole can often be too quick, so the amendments are not properly scrutinised:
- statutes contain too much detail and are of tedious length:
- too often agreed legislative standards are not followed.
The Constitutional issues
So we now arrive at what may be wrong with the Constitution.
Of course, New Zealand does not have a written, codified constitution.
It is one of only three countries on the planet without one.
Parliament can do anything. There are no limits except triennial elections and public opinion.
The New Zealand Bill of Rights Act 1990 is not superior law.
It can be overridden by a statute.
It has been overridden in this way on 37 occasions since it has been in existence.
In our 2016 book, A Constitution for Aotearoa New Zealand, Andrew Butler and I propose that the Bill of Rights we have be made part of a superior law constitution so it is binding upon the Parliament and other statutes must be in conformity with it.
We also propose some additional rights, including an environmental right.
We believe that the environment needs protection up there along with the human rights that are already protected by the current Bill of Rights Act. So our draft Constitution includes such a guarantee.
There has been over the last 20 years a rapidly growing international movement to connect the strong developments in human rights law with the magnitude of the global environmental crisis.
More than 80 nations have enacted constitutional reforms to provide recognition for environmental rights.
We believe the time has come to follow that trend in New Zealand. The model we have chosen in our first draft of Constitution Aotearoa is based on the widely admired South African constitution. There are some judicial decisions available from there upon which to build, but it is clear that, important as this right is, it has not given rise to much litigation.
The aim is to ensure that people can enjoy an environment that is not harmful to their health or wellbeing and to protect the environment for the benefit of present and future generations by ensuring that economic development is sustainable.
Article 105 in the proposed Constitution gives constitutional status to that principle.
Constitutional protection means in this context that environmental standards could not be reduced by a small majority in the House of Representatives. We are proposing a superior law Constitution.
Here is the provision we have drafted. We have a website and are asking for submissions on the Constitution. The link is www.constitutionaotearoa.org.nz.
Everyone has the right—
(a) to an environment that is not harmful to his or her health or wellbeing; and
(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that—
(i) reduce pollution and ecological degradation:
(ii) promote conservation:
(iii) pursue ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
We believe that such a provision in the type of Constitution we propose would be of inestimable value to preserving New Zealand’s environment.
There are issues about this draft and we would like to hear from you on it.
Is it too anthropogenic?
Does it need to be based more firmly in ecology?
There are important human rights issues bound up in environmental protection.
The future of New Zealand will be inextricably bound up with the global environmental problems that threaten to overwhelm the planet. The challenges these problems pose to the development of public policy in New Zealand are formidable.
Climate change is one of the issues, but it is not the only one—water quality, the health of the oceans and acidification, the disposal of waste, loss of top soil, air quality and chemical pollution are others.
In such circumstances it is only prudent to set out some constitutional markers to ensure that New Zealand’s standards of environmental protection are enhanced and not reduced as is the current trend.
The consequences of such a development will be important.
Restraints will be placed on the capacity of policy makers to breach the constitutional guarantees.
The public will know what the bottom lines are.
Ministers and MPs will be bound by the Constitution and so will the Judges. In other words, such constitutional rights to be meaningful must be enforceable.
In May 1994, an international group of experts on human rights and the environmental protection convened at the United Nations in Geneva and drafted the first declaration of principles on human rights and the environment.
Part I of that document contains a succinct statement of the principles:
1. Human rights, an ecologically sound environment, sustainable development and peace are interdependent and indivisible.
2. All persons have the right to a secure, healthy and ecologically sound environment. This right and other human rights, including civil, cultural economic, political and social rights, are universal, interdependent and indivisible.
3. All persons shall be free from any form of discrimination in regard to actions and decisions that affect the environment.
4. All persons have the right to an environment adequate to meet equitably the needs of present generations and that does not impair the rights of future generations to meet equitably their needs.
The rapidity with which constitutional protection for preservation of the environment and its life sustaining qualities has spread around the world is noteworthy.
It began with the Stockholm Declaration in 1972 following the global eco-summit held that year.
Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.
The proposed Constitution is part of a programme of democratic renewal.
New Zealand cannot afford to be complacent about its democracy.
New Zealand is one of the world’s oldest and most stable democracies, and Kiwis are justifiably proud to live in the first country in the world to adopt universal suffrage.
But we cannot rest on past deeds. New Zealand’s democracy is neither as healthy nor as safe as it could be.
At the last election more than 700,000 enrolled electors didn’t vote. This included more than one-third of people under 35 years of age.
A recent survey by Massey University found widespread discontent among voters—even those who support the current Government.
About half of those summed up the country’s mood as ‘discontented’. About half agreed that political leaders are ‘out of touch with the people’.
About half wanted ‘a complete change of Government’ even though Labour supporters were under-represented in the sample.
More than two-thirds thought the system of government was either ‘completely broken’ or ‘working but needs to change’.
These results were mirrored in a recently published Ipsos poll, which found that more than half of those surveyed thought that politicians didn’t care about them.
The Massey research also gave some insights into why voters are discontented and mistrust politicians.
Most were concerned about rising inequality, and in particular about a housing crisis that is locking many young New Zealanders out of home ownership and leaving some with no shelter at all. Health and the environment were also big concerns.
The prominence of the environment is unsurprising at a time when New Zealand’s waterways are so polluted and little is being done to combat climate change or prepare for the effects it will have on peoples’ lives.
In earlier times, these levels of discontentment might have been reflected in lower popular support for the Government. But times have changed, and the political system isn’t working as it used to.
What we appear to be seeing – particularly from younger people – is disconnection from and mistrust of all political parties, and from the entire system of government.
Those who feel economically disenfranchised also feel abandoned by politicians and politics.
Voters have little understanding of how New Zealand’s system of law-making government works, and therefore little understanding of how their input might bring about change.
We have already seen – in Brexit, and remarkable election results in the United States, France, and Britain – how this discontentment can play out in novel and unexpected ways.
There are four main reasons for voters switching off from politics.
First, there is a lack of information. Many voters have little understanding of how New Zealand’s system of law-making government works, and therefore little understanding of how their input might bring about change.
This is not surprising: there is no single document a New Zealander can read to find out how New Zealand’s system of government works.
Civics education is limited, and public education in this area almost nonexistent.
Second, New Zealanders have largely turned away from political parties. Parties used to have large numbers of members, who had opportunities to debate and discuss the party’s policies. This created a very direct link between voters and Parliament.
Now, only a tiny fraction of New Zealanders belong to political parties. Citizen participations has reduced markedly, making the political system less connected to the people.
New Zealand now has cadre parties, that is to say small numbers of people in the professional political elites exert the power. This is not the type of representative democracy we once had.
Third, there has been a long and sustained decline in the media coverage of politics, policy and Parliament.
As competition has increased, news media have become more entertainment-and celebrity-focused, and media staffing and resources have become more stretched.
The multi-media digital revolution is still in progress. How it will affect the future of our democracy is a yet unknown.
It’s true that a vast amount of information is available online, including records of parliamentary debates and select committee hearings. But people do not know what to make of it and cannot devote the time and effort to find out what it all means.
A fourth reason for public disenchantment is the rising influence of money and professional lobby groups.
In the absence of mass membership, political parties now rely for funding on donations from corporations, trade unions and wealthy individuals.
In such a situation there are risks that the voice of ordinary people will be drowned out by the interests of those with money.
New Zealand has some safeguards in place to limit third party spending on election campaigns and to promote transparency about political donations.
But it is difficult to escape the conclusion that election outcomes depend at least partly on which party has the most money.
There is a case for tightening political donation and election spending regulations, and for increasing regulatory oversight of political parties.
New Zealand needs democratic renewal. This means encouraging civic literacy, so people understand how government works, and how they can have influence.
Increasing numbers of people in New Zealand were not born here and have little understanding of how the institutions of government work.
We need to build trust in the institutions of government, by reconnecting the governors with the governed.
Democracy means more than having a vote every three years. It means having genuine opportunities for informed participation in the business of government, so that laws and policies reflect the wishes of the people.
Internationally, some democratic countries are finding new ways for government to engage with citizens, and involve them in decision-making. In Ireland and Iceland, for example, randomly selected panels of citizens have been involved in drawing up constitutional reforms.
These are efforts at ‘deliberative democracy’ – a democracy that informs its citizens and involves them in decision-making, instead of reserving all power for an elected elite.
One of the principal aims of the codified constitution that Dr Andrew Butler and I have proposed is to strengthen understanding of New Zealand’s system of government, by gathering all of the main laws in one document which people can easily find.
We have a website and we want to hear from you.
Please make a submission.
Do you agree that New Zealand’s democracy could be made stronger? That the environment needs protection? What should change?
*The author is grateful for comments from Dr Roger Blakeley on this paper.
1 For my experiences as Minister for the Environment see Geoffrey Palmer Environmental Politics – A Greenprint for New Zealand (John McIndoe, Dunedin, 1990). For the international material see Geoffrey Palmer Environment – the International Challenge (Victoria University Press, Wellington, 1995); Jonathan Carlson, Geoffrey Palmer and Burns Weston International Environmental Law and World Order (3rd ed., West Publishing Co, St Paul, 2012). We are working on a 4th edition currently.
2 JT Houghton, GJ Jenkins and JJ Ephraums (eds) Climate Change: The IPCC Scientific Assessment (Cambridge University Press, Cambridge, 1990); WJ McG Tegart, GW Sheldon and DC Griffiths (eds) Climate Change: The IPCC Impacts Assessment (Australian Government Publishing Service, Canberra, 1990).
3 Svanet Arrhenius “On the Influence of Carbonic Acid in the Air upon the Temperature of the Ground” (1896) Series 5, 41 Philosophical Magazine and Journal of Science 2373
4 Geoffrey Palmer “The role of the Pacific in the Global Environmental Issues, University of Papua New Guinea, 18 May 1989 reprinted in Geoffrey Palmer Environmental Politics-A Greenprint for New Zealand (John McIndoe, Dunedin,1990) 69 at 70.
5 Parliamentary Commissioner for the Environment, Stepping stones to Paris and beyond: Climate change, progress, and predictability, July 2017 at 4.
6 New Zealand’s Environmental Reporting Series, 2015 Environment Aotearoa and the commentary of the Parliamentary Commissioner for the Environment available at <www.pce.parliament.nz/media/1666/the-state-of-new-zealand-s-environment.pdf>.
7 Wellington Fish & Game Council v Wanganui Regional Council  NZ Env 37 (21 March 2017), available at <www.nzlii.org/cgibin/sinodisp/nz/cases/NZEnvC/2017/37.html?query=2017%20Regional%20One%20Plan %20decision>. See commentary Geoffrey Palmer “Not green enough, local government, the Resource Management Act and the Environment” LG-NZ Local Government Magazine 15 June 2017.
8 Hon Simon Upton (4 July 1991) 515 NZPD 3019; Rt Hon Geoffrey Palmer (28 August 1990) 510 NZPD 3950.
9 Environmental Defence Society v New Zealand King Salmon Co Ltd NZSC 38(SC).
10 Available at <www.mbie.govt.nz/info-services/housing-property/urban-developmentauthorities/overview?searchterm=Urban+Planning>.
11 David R Boyd The Environmental Revolution: A Global Study of Constitutions, Human Rights and the Environment (UBC Press, Vancouver, 2012).
12 Economic and Social Council, Commission on Human Rights, E/CN.4/Sub.2/1994/9, Annex I, Draft Principles on Human Rights and the Environment.
13 Stockholm Declaration of the United Nations Conference on the Human Environment. Adopted by the UN Conference on the Human Environment at Stockholm, 16 June 1972 reprinted in 11 ILM 1416(1972)
14 Electoral Commission General Election; Voter Turnout Statistics 2014, available at <www.elections.org.nz/events/2014-general-election/election-results-and-reporting/2014-general-electionvoter-turnout>.
15 Massey University “Election Survey shows widespread discontent” 2017, available at <www.massey.ac.nz/massey/about-massey/news/article.cfm?mnarticle_uuid=9AA7647B-0864-1798-6495CC7CA330FCAF>.
16 Henry Cooke “Over half Kiwis think the economy and politics are rigged against them” Stuff.co.nz (online ed, 3 July 2017) available at <www.stuff.co.nz/national/politics/94335554/over-half-of-kiwis-think-politics-andthe-economy-are-rigged-against-them>.