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Courts As Decision-Makers on Climate Adaptation Measures: Lessons from New Zealand

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Courts As Decision-Makers on Climate Adaptation Measures: Lessons from New Zealand Courts as decision-makers on climate adaptation measures: Lessons from New Zealand By Catherine Iorns Magallanes,* Vanessa Jamesiiand Thomas Stuart,iii Abstract New Zealand has an extensive coastline, and most of its cities, significant infrastructure and population are located in low-lying coastal areas. Sea level rise is already impacting on coastal communities and a sea level rise of one metre would have a devastating impact on the country. Cohesive and appropriate adaptation measures are urgently needed at both central and local government level to reduce the impact on communities, protect against potential loss of life, and limit economic losses. However, responsibility for climate change adaptation measures in New Zealand has been devolved to local government without any significant direction or guidance from central government. This has produced climate change adaptation policies that vary significantly across the country and leaves councils vulnerable to legal action. This paper addresses legal challenges to sea level rise adaptation measures in New Zealand. It adopts a case study approach, discussing four decisions in cases where a precautionary sea level rise adaptation measure taken by a territorial authority was challenged by a holder of property rights in the coastal area. The paper explores the broader lessons they offer for decision-making on climate adaptation measures. While the decisions are grounded in New Zealand’s particular legal framework for resource management, they offer broader insight into the types of issues that arise in adaptation decision-making and how to overcome them. It suggests some lessons that are applicable beyond New Zealand -- lessons that better enable appropriate sea level rise adaptation measures and thereby increase the resilience of coastal communities to climate change. Key words Climate change; Adaptation; New Zealand; Sea level rise; Local government; Environment Court; High Court; Resource consent; Precautionary principle; Coastal policy * BA, LLB (Hons) Well, LLM Yale; Reader in Law, Victoria University of Wellington; Academic Adviser to the NZ Council of Legal Education. Many thanks are due to Eleanor Middleton for research assistance. ii LLB Waikato, PGDipArts Auck., LLM Well. iii BA, LLB (Hons) Well. Electronic copy available at: https://ssrn.com/abstract=3171293 I Introduction A key component of strategic adaptation to climate change in coastal communities is the establishment and use of appropriate planning processes, activities and measures. Such processes, activities and measures have been much studied, including the decision-making frameworks around them. Yet such decision-making processes sit within a legal framework, and more attention needs to be paid to this framework. Globally, courts are important decision-makers on climate change adaptation measures, often making final decisions on adoption of appropriate measures. However, while litigation risk may be identified as a factor for consideration in decision-making, research on adaptation decision-making has largely overlooked the role of courts and judges. This paper addresses legal challenges to coastal climate adaptation measures in New Zealand. Responsibility for climate change adaptation measures in New Zealand has been devolved to local government without any significant direction or guidance from central government. This leaves councils vulnerable to legal action and has produced climate change adaptation policies that vary significantly across the country. Various legal challenges to council decisions have occurred and illustrate the issues faced by local councils, the concerns of communities, and the responses by the Courts. The results of these challenges are varied, with some measures being upheld by courts and others being denied. While expert evidence underpins the planning processes, the use of expert evidence does not always serve to protect decisions from being overturned by courts. Further, results have not been predictable; different courts emphasise different reasons for the results, including illustrating varying approaches to risk and caution. This demonstrates the need for more consistency and clarity in the legal frameworks to assist the planning process, and thereby assist decision-making on climate adaptation measures. The paper illustrates some features of the New Zealand court decisions on sea level rise and explores the broader lessons they offer for decision-making on climate adaptation measures. While the decisions are grounded in New Zealand’s particular legal framework for resource management, they offer broader insight into the types of issues that arise in adaptation decision-making and how to overcome them. The aim is to find lessons that are applicable beyond New Zealand -- lessons that better enable appropriate sea level rise adaptation measures and thereby increase the resilience of coastal communities to climate change. The paper first discusses the New Zealand framework within which courts are decision- makers on climate adaptation measures, and summarises some aspects of such decisions. It then uses a case study approach to discuss four individual decisions on climate adaptation measures, to illustrate features that give rise to lessons. Two cases are from 2010, before a 2 Electronic copy available at: https://ssrn.com/abstract=3171293 new framework for coastal management was adopted; two cases arise after that framework coastal policy statement was adopted. The conclusion then summarises features identified in the case studies and lessons that they suggest. In taking a case study approach, this paper does not provide a comprehensive analysis of the evolving jurisprudence on climate adaptation in New Zealand. Nor does it discuss the legal framework empowering territorial authorities to factor climate adaptation into decision making. Instead, the focus is on a small number of cases chosen for their innovative and future-focussed approach, and for the way the court responded to claims that precautionary council action was improper in each case. The events which led to each of the judicial proceedings will be considered, but no investigatory analysis of those events will be conducted. Instead, this article will explain some of the ways that Courts have played their part in adapting New Zealand to a warmer climate. II New Zealand decision-making on sea level rise adaptation measures A Statutory framework Decisions on coastal climate adaptation measures in New Zealand are largely made by local and regional authorities – usually called councils – pursuant to the Resource Management Act 1991 (RMA). The RMA is an all-encompassing environmental, land and resource use management statute that provides for the development of long-term plans regarding the types of land and resource uses that will be allowed, as well as for the issuing of immediate, individual water and land use permits (consents), including house building consents. It is local and regional authorities that may make policy decisions on sea level inundation lines, and how they should be notified to New Zealanders - such as a decision to include sea level rise information on official Land Information Memoranda (‘LIM’) for certain properties in an area (these Memoranda are not legal titles but record the official information held by a council about a property, including its history and established future risks). The national-level central government may issue policy directions which all local authorities and relevant decision-makers must abide by. Of particular relevance to sea level rise adaptation, the central government has issued New Zealand Coastal Policy Statements (NZCPS) which govern use and protection of the coast. To date, two such policy statements have been issued: 1994 and 2010 (the 2010 statement supersedes that of 1994). These coastal policy statements contain a number of objectives and policies directly relating to key aspects of the coastal environment. Such aspects include: understanding of coastal processes; protection of natural character, landscape values and wild or scenic areas; protection of coastal species, habitats and ecosystems; and identification of coastal hazards and risks. While the 1994 Coastal Policy Statement (Department of Conservation, 1994) included six policies in relation to coastal hazards, they were specifically reviewed for the 2010 Coastal 3 Electronic copy available at: https://ssrn.com/abstract=3171293 Policy Statement (Department of Conservation, 2010) in light of the increased understanding of the likely effects of climate change and the responses that would be required to address them (Orchard, 2011, p. 33). Accordingly, the 2010 Coastal Policy Statement introduces as a key issue the continuing coastal erosion exacerbated by climate change (Department of Conservation, 2010, p. 5). While New Zealand has a population of less than 5 million, a gross domestic product of only NZD 260 billion, and a government spend of NZD 50 billion, it has the ninth longest coastline in the world. A sea level rise of one metre, as anticipated by 2115, would encroach significantly along the 15,000 kilometre coast (Ministry of Fisheries, 2011). It would have significant and costly effects on low-lying towns and cities, estuary settlements, beachfront homes, and other coastal infrastructure. The majority of New Zealand’s major cities (including Auckland, Wellington, Christchurch and Dunedin) are situated in coastal areas that will be affected by rising sea levels. Significant commercial and
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