This chapter explores and critically analyses national strategies for oceans governance and halting the decline in marine biodiversity from a transnational perspective. For example, in 2016 New Zealand launched a public consultation exercise on a new Marine Protected Areas Act and published an environmental report entitled Our Marine Environment, a statistical report on New Zealand’s marine economy and a Biodiversity Action Plan. These policy developments have served as the catalyst for discussion on the introduction of a new Marine Protected Areas Act, and have provided a firm basis for participating in the United Nations process for a new international agreement for protecting marine biodiversity in areas beyond national jurisdiction. Looking at these policy developments from a transnational perspective firmly grounds this chapter in terms of considering how international environmental law obligations are implemented through both vertical comparison with the international legal order and horizontal comparison between jurisdictions. The chapter concludes that while there are clear gaps in implementation, there is dynamic commitment from states to experiment with new legal and policy responses and real opportunities to learn from this experience about what works and why.
The chapter explains that most, if not all, countries are struggling to halt the decline of indigenous biodiversity, and New Zealand is one such. One problem is that, notwithstanding baseline state of the environment reporting since 1997, there has been political resistance to preparing national policy statements regarding indigenous biodiversity to assist with interpreting the law, and attempts to implement modern up-to-date legislation have stalled since 2002. This chapter focuses on a certain coastal marine area, and the largest global submarine forest of black coral trees found in that area, as a mechanism for evaluating the effectiveness of New Zealand’s marine protection laws. Generally, an empirical approach is used to interrogate what environmental practice would look like if carried out in a sustainable way, what government entities and the private sector are doing to foster sustainable outcomes, and what should be done to promote sustainability. The overall argument made in the chapter is that different evaluation approaches (constitutional, empirical and governance) are useful in exposing any gaps between policy and practice within the legal system. It is finally concluded that applying a variety of evaluation approaches is useful in exposing the nature and extent of any implementation gaps, and that in pragmatically driven common law systems there is evidence that anticipated environmental outcomes are not always driven by the law.
Rights-based approaches to environmental conflict resolution should be viewed from the wider public law context. For example, Martin Loughlin maps the transition from a liberty-focused constraint on law based on jurisdiction, to a rights-focused approach, to ‘intensive’ judicial review based on legality. This seismic shift away from common law (customary or practical) reasoning adopts a constitutional or statutory approach to describing liberties normatively using the ‘language of rights’, and builds upon the academic tradition that seeks to aid understanding by setting ‘forth the law as a coherent whole’ and ‘reducing the mass of legal rules to an orderly series of principles’. This chapter will explore and critically analyse the effect of these trends on environmental conflict resolution from a trans-national New Zealand perspective. The underlying thesis of this chapter is that the possibilities and tensions experienced by the courts in crafting a principled approach to human rights jurisprudence provides a transparent methodology for determining polycentric issues, and that there is a legitimate role for rights-based approaches to resolving environmental conflict.
Energy policy has a wide range of social implications, ranging from local to global. In the recent developments in this domain, where advancements in renewables are flanked by the pervasive effects of the use of fossil fuel, controversial issues are common. New Zealand is affected by different aspects of this blurred panorama of energy governance in a transition period, such as the consequences of use of renewable energies, the implications of climate change or environmental justice issues. This has created a rich case law, with New Zealand courts confronted with different cases regarding the new topics in energy law, particularly related to climate change litigation and impact of renewable energies. This chapter provides a detailed account of this case law.