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Resource Management Resource Management Official Journal of the Resource ManagementJ Law Association of Newournal Zealand Inc. Formerly Resource Management News Issue 3 Volume VII November 1999 INSIDE THIS ISSUE THE CITIZEN IN THE The Citizen in the ENVIRONMENT FRONT COVER HOW THE Environment ENVIRONMENT COURT DECIDES ENGINEERING Access to Justice DISPUTES PAGE 21 Dr Ludwig Krämer HERITAGE & THE Keynote address to the 1999 RMLA Seventh Annual Conference RESOURCE MANAGEMENT ACT 1.The Protection of the Environment and the Citizen PAGE 25 1.1 Standard-setting and Everybody knows that this almost idyllic pic- THE RMA & environmental protection ture has limited resemblance with the reality at the GOVERNANCE POLITICAL PARTY In democratic, industrialised societies there is end of the twentieth century. The appearance of POLICIES a general consensus that governments are insti- political parties and the massive representation of PAGE 27 tuted which derive their right to govern from the group interests (vested interests) had considerable FORTHCOMING EVENTS consent of the governed. Parliaments, composed influence on the functioning of parliamentary PAGE 28 of the representatives of the governed, fix general democracy. Elections offer limited alternatives, legislation and allow the governments and their since the different party machineries have become THE APPOINTMENT OF THE NATIONAL administrations to elaborate the necessary regula- more and more alike. And in the relationship COMMITTEE tions for execution and implementation, applica- between parliaments and governments (adminis- PAGE 29 tion and enforcement. trations), the power has since long shifted to the HAURAKI GULF MARINE PARK BILL PAGE 30 AWARDS 1999 PAGE 32 CASE LAW PAGE 33 RESOURCE Postcard pic t/c MANAGEMENT AMENDMENT BILL PAGE 36 CONFERENCE 1999 PAGE 37 Judge Shonagh Kenderdine and Dr Ludwig Krämer. Resource Management Journal 1 and taken care of by the elected parlia- biodiversity. The complexity of life can- ment. Where administrations have taken not in all details be seized by legislation. over the task of standard-setting, it might For this reason, environmental law well be asked how the general interest is and policy more and more recur to gen- safeguarded. Parliamentary elections - eral notions which try to embrace these Parliamentary and with them an eventual change in complexities - and which become, at government - do not really constitute a the same time, a nightmare for all agen- elections – and with solution. Indeed, while the political top cies or officers which are charged to put of the administration, the government, into operation such legal provisions. them an eventual might change, the great majority of There is no significant difference change in administrative officials remains in func- between international - non-binding1 tion. In daily practice, there is thus often government – do not little difference between regulations, really constitute a decrees or other executive instruments which emanate from politically opposite it is an illusion to solution. governments. believe that the Environmental law has the task to protect the environment with the help of agreement or legal instruments. However, there are disagreement of great doubts, whether the protection of the environment really can be captured citizens with these side of administrations, which dispose of in legal terms. Indeed, modern societies more resources, more time, better access are extremely complex and decisions on numerous to information and a more “military” infrastructure projects such as motor- administrative form of organisation. The majority of ways, airports or urbanisations, on new legal provisions in all societies, whether industrial installations, electricity or decisions is really industrialised or not, is prepared, made waste treatment plants etc. require a expressed by and monitored by administrations, careful and detailed balancing of differ- including those cases where, formally, ent environmental, economical, social electoral consent. Parliament legislates. and human aspects. The same applies to This raises the problem of the safe- the creation of nature reserves, the fixing guard of the general interest, which, of quality standards, the fight against cli- under classical theories of the division of mate change or desertification, the pro- or binding2 -, European Community3 powers, was to be determined, specified tection of the ozone layer or of or national legislation4. 1. See as an example some notions of the Rio de Janeiro Declaration on Environment and Development of 16 June 1992, UN Doc.A/CONF.151/5:“sustainable devel- opment; environmental needs of present and future generations; reduce and eliminate unsustainable patterns of production and consumption; appropriate access to information; effective access to judicial and administrative proceedings; severe environmental degradations”. 2. See as an example some notions of the United Nations Framework Convention on Climate Change of 9 May 1992, New York: mitigate climate change by address- ing anthropogenic emissions by sources and removals by sinks of all greenhouse gases; promote sustainable management; best available scientific knowledge; effe- cive capacity of sinks; provide such financial resources ... needed by developing countries”. 3. See as examples some notions of European Community law: Directive 85/337 on the environment impact assessment OJEC1985, L 175/40: assess the direct and indirect effects of a project; Directive 91/156 on waste, OJEC 1991, L78/32: ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment; Directive 92/43 on the conservation of natural habitats and wild fauna and flora, OJEC 1992, L 206/7: significant effect (on a natural site); Directive 84/360 on air pollution from industrial installations, OJEC 1984, L 188/20: best available technology not entrailing excessive costs. 4. See some examples of New Zealand,The Resource Management Act 1991: same or similar (use) in character, intensity and scale (to earlier use); best practicable option; reasonable level; adverse effect on the environment; significant adverse effects on aquatic life; actual or potential effects on the environment; minor effects on the environment. Resource Management Journal 2 The consequence of this legislator’s cerned and affected public; it has to recourse to general clauses in environ- examine the scientific and technical mental matters is twofold: first, as the expertise as well as other elements which legislator is aware that he is unable to might play a role in reaching a balanced “Human beings are at strike a just and fair and at the same time decision. It is thus the administration’s precise balance between diverging inter- decisions which give substance to the the centre of ests – which, for simplification reasons, general notions on environmental pro- concerns of are called economic and ecological inter- tection which were identified above. ests hereafter, he has increased and This role of the administration as the sustainable detailed the provisions on procedures for environment’s guardian, has not received developments. They reaching an administrative decision in a the necessary attention by lawyers. specific case. And second, this approach Indeed, there are a number of elements are entitled to a has a considerable impact on the which give rise to concern in this con- healthy and enforcement and monitoring of environ- text: which are the technical and scien- mental regulation. tific elements that are the disposal of the productive life in The tendency to increase, for envi- administration when it reaches its deci- ronmental regulatory or administrative sion? How is the ordinary citizen, the harmony with decisions, procedural provisions, is a governed, involved in the administra- nature.” worldwide phenomenon which can be tion’s decision-making procedure? And identified in international conventions, how is the environment involved in this regional provisions – such as NAFTA process, the environment of which we all provisions for North America, European know that it has no voice: the interests of nature reserve might well find the agree- Community law for Europe – and water and soil, of air and birds, of lakes, ment of the present generation, but what national legislation5. Provisions for mak- seas and forests - how can they be about the next? “Under the traditional ing plans and programmes, environment addressed properly in the administrative principles and procedures, only actual impact assessments, hearing procedures, procedure? interests are voiced, try to influence the auditing schemes, details on ways to Finally, it might be correct to state decisions and request consideration. reach decisions on planning consent or that governments derive the right to be Public authorities are obliged to be to protect environmental assets by classi- governed from the consent of the gov- responsive to them, and this is how the fication, the setting up of inventories, erned; but between different elections, respect of rights is ensured in practice (in registers, lists of good or bad practices, hundreds of thousands of administrative contrast to their abstract recognition). harmful or harmless substances or prod- decisions are being taken which affect The “future” is not represented in any ucts, emissions or discharges - numerous the environment; it is an illusion to committee; it is not a power which can examples can be given, where proce- believe
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