Sustainable Decision-making and Protected Reserve Land: An Ecologically Sustainable Approach to Governance
By Henry Parker
A question of increasing importance in all forms of governance globally is how can humans continue to interact with Earth in a way that sustains integrity to support life and nature? Whether this question is viewed from an anthropocentric perspective or the broader recognition of intrinsic value of other life forms and environmental phenomena does not paralyse progress towards an answer. On the contrary, these perspectives offer insight into two ways that decision-making may incorporate necessary environmental concerns. The issue of the extent of Council’s discretion in granting “access arrangements” to Reserve Land in Royal Forest and Bird v Rangitira Developments [2018] NZCA 445 highlights these different approaches to environmentally astute decision making.
Sustainable Decision-Making Approaches
Out of modern international environmental discussion we see two approaches to sustainable governance, both of which mandate consideration of the environment.[1] One approach is to necessitate consideration of environmental factors but allow them to be offset against other social and economic considerations. This is known as the “weak sustainability” approach. The weak sustainability approach does not allow a “net loss” to the quality of the environment but does allow one environmental resource to be depleted so long as another is equally augmented. The most well-known example of weak-sustainability in New Zealand is the emissions trading scheme which requires certain producers of greenhouse gasses to offset their net harm to the environment by financially supporting the continuation of carbon-dioxide absorbing forests.[2] Producers of environmentally harmful practices may also explicitly substitute this damage by engaging in equally beneficial activities themselves. Thus, the producer of harm replaces “natural capital” with “economic capital.”[3] Weak sustainability is premised on the idea that all aspects of the environment are substitutable. An advantage of the weak sustainability model is that it allows permanent depletion of natural resources to be excused in the short term. As the shift away from exploitation of non-renewable resources is a gradual process, implementation of this model still engages a sustainable perspective as these operations are being wound down.
Another approach is to begin with the presumption that environmental features are not replaceable. This approach underlies the “strong sustainability” model. Strong sustainability requires decision makers to satisfy environmental concerns as a prerequisite to any engagement with the environment. An advantage of the strong sustainability approach is that it avoids concerns about replaceability of natural features which may otherwise be depleted under a weak sustainability model.[4] It does so in practice by requiring the satisfaction of environmental considerations in decision-making. An example of strong sustainability governance in New Zealand is the Resource Management Act, as enforced by the New Zealand Supreme Court as employing an “environmental bottom line” approach.[5] An environmental bottom-line sets the minimum requirements of environmental protection be met prior to social and economic activities. It can be contrasted with the “overall judgment approach” which weighs social and economic factors as equal considerations to environmental concerns. Indeed the “environmental bottom line approach” and the “overall judgment approach” reflect strong and weak sustainability governance respectively and are embodied neatly in the following diagram.[6]
It is notable that there is no need to choose between strong and weak sustainability.[7] Each may be employed to different types of decision making and offer environmental protection. The weak sustainability approach allows a greater range of economic activities to continue and accounts for the interim shift to a sustainable economy. Strong sustainability decision making avoids the uncertainty of depleting specific natural features on the long-term continuation of complex ecological systems. It also preserves the intrinsic value of the environment to which it applies. Maintaining ecological diversity in the long term requires that land, subsoil, ocean and atmosphere containing this diversity are not viewed as substitutable. A kiwi’s value to the environment cannot be replaced by breeding seagulls.
The West Coast Reserve Litigation
The Court of Appeal in Royal Forest and Bird v Rangitira Developments [2018] NZCA 445 was not explicitly concerned with sustainable governance theory. Neither “strong” or “weak” sustainability were mentioned in the judgment. Instead, the case turned on statutory interpretation. The interaction between the Reserves Act 1977 and the Crown Minerals Act 1991 nevertheless gave rise to an outcome of either weak or strong sustainable governance.
Background
The case concerned 104 hectares of protected council land (“the land”) 12 kilometres outside Westport on the west coast of the South Island. The land is protected under the Reserves Act, giving general environmental protection, and specifically as a local reserve held “In trust for water conservation purposes” under section 23.[8] Section 23 provides, among other protections, that “every local purpose reserve… shall be so administered and maintained that where scenic, historic, archaeological, biological, or natural features are present on the reserve, those features shall be managed and protected to the extent compatible with the principal or primary purpose of the reserve.” Despite this protection, the Buller District Council entered an “access arrangement” under section 60 of Crown Minerals Act 1991 (a colloquial name for the mining act) with Rangitira Developments to open a coal mine on the land; land which was professionally assessed to contain 23 species of indigenous birds, including the threatened New Zealand Falcon. Forest and Bird New Zealand challenged this council decision in court by arguing the council must satisfy the protection granted to the land under the Reserves Act. Upon learning of these proceedings, the council retracted its granting of an “access arrangement.” Rangitira then applied to court themselves seeking clarification on exactly what the council would have to consider when granting an “access arrangement” under section 60 of the Crown Minerals Act for Reserve Land. These are the proceedings which we are concerned with.
The issue is put neatly at paragraph [15] of the Court of Appeal judgment: “…Whether the Council was bound to make its decision in accordance with s 23 of the Reserves Act, or whether in fact s 23 was only a factor to be taken into account when making a decision under s 60(2) of the Crown Minerals Act.” A decision requiring accordance with s 23 is strong sustainability, whereas a decision made only considering s 23 as a factor is weak sustainability.
High Court
Rangitira and Forest & Bird agreed in their submissions that the environment (s 23 Reserves Act) was a mandatory relevant consideration for the Council prior to granting an “access arrangement.” However, Rangitira asserted it must only be considered, whereas Forest & Bird asserted it must be complied with. The High Court found the environment was a consideration only. Economic benefits were seen as a competing factor for which s 23 may be weighed against. The decision was premised on references to repealed legislation in the Reserves Act, which the learned judge deemed indicative of favoring that council discretion under s 60 was not restricted by the need to satisfy the Reserves Act. Indeed, the High Court Judge explicitly said Rangitira could “offset” or “compensate its impact on the environment through other enhancements to the reserve.[9] In other words, the Judge deemed that environmental features were replaceable.
Court of Appeal
The Court of Appeal (CA) reversed the High Court decision. It said the Council must satisfy the purpose of the Local Purpose reserve under the Reserves Act prior to allowing any access permit under s 60 of the Crown Minerals Act. The CA dismantled the High Court’s reliance on references in the Reserves Act to repealed legislation in noting that the previous legislation did not apply to coal mines in the first place so could be “of no assistance to Rangitira.”[10] All three sitting judges in the CA unanimously concluded that the two acts (Reserves Act 1977 and Crown Minerals Act 1991) were consistent, neither were superior and the open nature of s 60 of the CMA meant that compliance with the Reserves Act s 23 in decisions concerning Local Reserves was mandatory.[11] This decision leads to the legal rule that the purpose for which any Local Purpose Reserve is established must be upheld by New Zealand local councils against economic pressure. It is therefore a clear example of an environmental bottom line approach, or in other words, strong sustainability governance. In the instance of this particular reserve, the protection includes a Pink and Yellow Silver Pine forest, significant indigenous vegetation and fauna, as well as the 23 native species mentioned earlier. The compliance with s 23 does not stymie economic incentives. Projects centred around development may go ahead within the “access arrangement” framework to the extent they are compatible with the Reserves Act protection previously granted.
Supreme Court
Rangitira appealed the decision to the Supreme Court and a hearing was opened on the 19th of May. On 15th of July 2020 the Supreme Court released its judgment.[12] The unanimous decision of the five justices categorically agreed with the Court of Appeal’s reasoning and decision in favour of Forest & Bird. It upheld restrictions to Crown Minerals Act mining activity by the requirements of the Reserves Act to preserve local purpose reserves and pointed out that, whereas previous Mining legislation had supremacy over other legislation, the Government’s aim in enacting the Crown Minerals Act “neither promotes nor discourages mining relative to other activities.”[13] The shift in legislative intent reflects the shift towards more sustainable policy and allows requirements of the Reserves Act to prevail. As the final court of appeal, this Supreme Court decision sets a binding precedent for any holder of land (other than the Crown) falling under the Reserves Act, to uphold the reserve’s purpose in light of any application under the Crown Minerals Act. The strong sustainability approach of putting environmental considerations first therefore resonates in both the Court of Appeal and Supreme Court’s decisions.
Implications
Firstly, the lack of express use of terminology to approaches to environmentally conscious decision-making at all courts in this case is a product of the traditional judicial review process of statutory interpretation. As neither act referenced either strong or weak sustainability, the judgments not mentioning them is unsurprising and avoids confusion when accounting for precise statutory wording. Absence of use of the terminology within the litigation does not detract from it being a clear illustration of the differences between weak and strong sustainability, as well as the courts finding of parliamentary intention to take a strong sustainability approach.
Secondly, further use of environmental concepts and terminology arising from international discourse, including those discussed in this article and others, should be encouraged in both judicial and parliamentary settings, in light of the increasing need for sustainable global governance. The trend towards doing so is already underway. An example is the Court of Appeal in Taranaki Mining case recognising New Zealand’s obligation to give effect to preserving biodiversity under the Biodiversity Convention.[14]
Thirdly, ideally, the New Zealand Courts should not be required as the backstop for enforcing environmentally contingent decision-making. The Reserves Act as it stands is clear in describing the management and preservation of reserves. However, it has not been amended to address mining since its enactment in 1977, therefore it would benefit from updated explicit reference to its interaction with other legislation, such as the subsequently passed Crown Minerals Act 1991, to cement further New Zealand’s commitments to environmental protection. The Crown Minerals Act itself requires minimal environmental consideration. Further protection could be granted to its application to both public and private land, through necessitating stronger environmental considerations, such as the offsetting of harm required under a weak sustainability model.
Conclusion
The decision of the Supreme Court reinforcing the Court of Appeal’s decision, creates comprehensive protection for local purpose reserves in line with strong sustainability throughout the country. It prevents the illogical outcome of landscapes within protected reserves being irreversibly exploited in ways which undermine sustainable objectives and the very reason for having such reserves. The litigation is one of many examples of a springboard for discussions around emerging strong and weak sustainability governance. These terms provide shorthand platforms for policy creators to account for environmental concerns and defend the fundamental frameworks for how they plan to do so.
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Featured image source: Wikimedia Commons
[1] Steven Hackett “Weak vs Strong Sustainability Debate” in Klaus Bosselmann, Daniel Fogel and J B Ruhl (eds) Berkshire Encyclopedia of Sustainability: The Law and Politics of Sustainability (Berkshire Publishing Group LLC, Great Barrington, 2010) 50.
[2] Ministry for the Environment “About the New Zealand Emissions Trading Scheme.” < https://www.mfe.govt.nz/climate-change/new-zealand-emissions-trading-scheme/about-nz-ets>
[3] Hackett, above n 1.
[4] David Pearce, Anil Markandya and Edward Barbier Blueprint for a Green Economy. (1989) London: Earthscan.
[5] Environmental Defense Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 167
[6] Maureen Hart “Sustainable measures” <https://www.fs.fed.us/research/sustain/what-is-sustainability.php>
[7] Hackett, above n 1.
[8] “Vesting a Reserve in the Westport Borough Council” (1 November 1951) 84 New Zealand Gazette 1640.
[9] Rangitira Developments v The Royal Forest and Bird Protection Society Limited and Buller District Council [2018] NZHC 146 at [110].
[10] Royal Forest and Bird Protection Society of New Zealand Incorporated v Rangitira Developments Limited [2018] NZCA 445 at [65].
[11] At [46] to [50] and [70].
[12] Rangitira Developments Limited v Royal Forest and Bird Protection Society of New Zealand Incorporated [2020] NZSC 66.
[13] Resource Management Bill 1989 (224-1) (explanatory note) at xiii.
[14] Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2020] NZRMA 248, [2020] NZCA 86 at [24].