Topic / Sustainability
Vernon Rive . 21/06/2012 3:21:53 a.m.
With preliminaries out of the way, the second phase of the Rio+20 Conference kicked off this morning for a three-day session involving over 115 world leaders, as well as high-level political representatives joining officials and advisers that have been driving the process so far. Under the tight rein of the Brazilian hosts, a final draft text was thrashed out at 2:18 am Tuesday morning. It was rubberstamped without further ado at a plenary session later that morning.
It is now up to the politicians to engage in any further horse-trading, before what looks like an inevitable endorsement of the document towards the end of this week.
Major international environmental conferences in recent years seem to have settled into a familiar choreographed dance with a number of set moves. The sequence is something like this.
• 1st movement - the UN appointed conference secretary-general announces that the gathered nations are at a critical point in history, the world is watching, a unique opportunity exists to avert disaster/fundamentally shift global paradigms, and failure is not an option.
• 2nd movement - lengthy, complex and tortured negotiations take place with multiple sessions into the early hours of the morning. Civil society representatives make impassioned speeches which optimistically suggest that this time leaders might grasp the nettle;
• 3rd movement - final or close-to-final draft text is issued after difficult compromises negotiated through skillful diplomacy and liberal use of ambiguous language. Outrage is expressed by major NGOs claiming treachery and/or betrayal and/or capture by big business/vested interests. Statements are issued to the effect that that further participation by civil society in negotiations is considered futile and other direct action is likely;
• 4th movement - staged protests take place with strategic instances of civil disobedience, arrests and ejection of NGO leaders and acolytes;
• 5th movement - convention/declaration/decision is confirmed (usually anti-climactically) by conference plenary, followed by dissection and analysis of the outcome. Conclusion: overall, the result is ‘a bit of a mixed bag.’
The Rio +20 conference has just passed the 3rd movement, and it looks as if the orchestra is tuning up for the 4th.
A 2:18 am close on preparatory negotiations, just over 2 hours later than the Brazilian presidency had predicted for finalisation of the draft text is, it should be said, an impressive achievement. At the beginning of the week a mere 20% had been settled, and major rifts were apparent between key players on a range of contentious issues.
Analysis of the final draft text is still underway, but some of the issues that have been in dispute include the following:
• References to the international law principle/concept of ‘common but differentiated responsibilities’. ‘CBDR’ was also a contentious point at the last round of climate talks in Durban in December. The concept involves recognition that developed countries will assume a greater load than developing countries when it comes to obligations to reduce or remedy environmental impacts. At the heart of CBDR is the proposition that developing countries should not be subject to constraints on development open (or at least, the constraints should be minimal) and that rich countries should provide financial and technical support to poor countries to help them develop and improve environmental management. Developed countries such as the US had been baulking at the placement and extent of references in the draft outcome text to CBDR. The compromise draft text retains some references to CBDR, but not as many, and not in the same places as had been sought by developing countries during the earlier part of discussions;
• Abolition of subsidies on fossil fuels and other environmentally sensitive activities such as fishing. As has been widely reported, Tuesday saw the relatively unusual phenomenon of fossil fuel subsidies topping the ‘trending’ charts on Twitter. Aided by strategic tweets from celebrity tweeps such as Stephen Fry, Robert Redford and Helen Clark, environmental NGOs are claiming a symbolic victory for at least raising the profile of an otherwise dry subject. The draft text includes a tentative call to halt fossil fuel subsidies (“We invite others to consider rationalizing inefficient fossil fuel subsidies by removing market distortions…) Unsurprisingly, this is not to the complete satisfaction of many elements of civil society;
• Corporate social responsibility/accountability: CSR has now made it to UN declarations, in a clause which says ‘We call on the private sector to engage in responsible business practices…’ This is a slightly watered-down version of an earlier draft clause which mentioned ‘accountability’ as well as ‘responsibility’, and asked businesses to ‘apply standards of’ CSR;
• Reproductive rights: this has been a controversial topic at Rio. A number of countries (including New Zealand) had been pushing for inclusion in the document of references to “population dynamics” together with “reproductive health and rights”. This has attracted the ire of some groups concerned that ‘population dynamics’ is code for ‘population control’. The ‘Holy See’ (Vatican) has also taken a strong stance on the issue, attracting howls of outrage from women’s groups. The draft text avoids the phrase ‘population dynamics’ but includes a commitment to “systematically consider population trends” as part of national planning;
• Financial institutions: in a smart PR move, earlier in the week, a group a major financial institutions unveiled at Rio a ‘Natural Capital Declaration’, in which financial institutions ‘acknowledge and reaffirm the importance of natural capital in maintaining a sustainable global economy and commits signatories to integrate natural capital into their business decisions. Despite that declaration – applauded by some NGO’s such as the World Wildlife Fund, Greenpeace announced yesterday that it is moving to a war footing against the financial corporate sectors. “We want to shut off the flow of capital,” said Greenpeace Global head Kumi Naidoo. “The time is right because the banks are at their most vulnerable in terms of public legitimacy."
So far, much of the NGO and media focus has been on the negotiations on the text of the outcome document. But it would be a mistake to judge the success or otherwise of the Conference on that document alone. Alongside those negotiations, there have been a number of high-profile and (on the surface at least) constructive initiatives whose legacy may prove just as significant, if not more, than anything that results from the outcome document itself.
One of these initiatives was the Corporate Sustainability Forum, a pre-Rio+20 event that took place on 15-17 June. Facilitated by the UN (that fact notable on its own, and indicative of a growing UN recognition of the role of the private sector in addressing global environmental issues), the CSF produced a ‘Global Compact’. This is described as a ‘strategic policy initiative for businesses that are committed to aligning their operations and strategies with ten universally accepted principles in the areas of human rights, labour, environment and anti-corruption.’ The Global Compact is referenced (if weakly) in the draft text of the outcome document.
Another Rio+20-aligned initiative was the World Summit of Legislators which met last week at the same time as the CSF. Legislators agreed on a Rio+20 legislators’ protocol to take back to home to seek support or formal ratification. The Legislators’ Summit was attended by Green Party MP Kennedy Graham who has shared his experiences in a series of blog posts on the Green Party's Frogblog.
Alongside these formal events is the networking, exchange of ideas, upskilling of youth delegates (such as the P3 Foundation group and New Zealand Youth Delegation) and exposure of views to comment/encouragement/criticism. I think this informal networking is one of the most valuable aspects of these sorts of events. Perhaps the warming and stirring of the melting pot of ideas could take place in a more organic (and less expensive) way. But there is something about a major UN summit that creates the occasion, unlocks public and private resources to get together in a way that an online discussion forum or lower key conference or workshop never could.
The next few days will be interesting ones. Exactly how far will green groups go in expressing their unhappiness about the current direction of negotiations, and will this have any impact on the outcome? Will anything significant emerge from the ministerial phase of discussions? Or will this part of the ritual follow a conventional course - making enough amendments to justify the leaders’ attendance - but going not much further than that?
I’ll post another report later in the week with an update.
By Vernon Rive on 21/06/2012 3:21:53 a.m. | Comments (1) | Print
Vernon Rive . 14/06/2012 10:13:43 a.m.
Next week a ragtag collection of world leaders, do-gooders, moguls, Marxists, movie stars and misfits descend on Rio de Janeiro for what is billed as the largest summit the United Nations has ever organised: ‘Rio+20’, or the UN Conference on Sustainable Development. Over 135 Heads of State are ‘inscribed to attend’, alongside 50,000 – 60,000 officials, NGO representatives, business leaders, youth, academics and other observers.
“It cannot be another talk shop,” said Sha Zukang, the Chinese diplomat assigned the role as Secretary-General of the Conference, before proceeding to make a decent contribution to pretty much exactly that.
“The world is watching. Rio can deliver agreement on specific initiatives and commitments that can accelerate progress and advance well being. This can only happen by delivering actions, not just words."
(Photo credit: Chris Tackett)
Rio +20 has been convened to review progress on stakes in the ground planted in 1992 at the first Earth Summit. That occasion delivered a string of significant international environmental policy and law instruments, including the Rio Declaration on Environment and Development, Agenda 21, the Biodiversity Convention, Forest Principles, as well as the grand-daddy of all international climate change documents - the United Nations Framework Convention on Climate Change. The majority of these documents are in the category of what international lawyers described as ‘soft law’. These are statements of intention generally worded in language kindly described as ‘aspirational’, and unkindly as ‘weasel words’. The UNFCCC and Biodiversity Convention were in a different category, although still at a high level, and notoriously difficult to enforce.
Nevertheless, the 1992 Rio conference marked a significant point in international environmental diplomacy. Its legacy remains today, palpably for New Zealand in the form of the Climate Change Response Act 2002 and Emissions Trading Scheme.
What are the issues this time round? Much the same as at the Rio+10 conference in 2002 in Johannesburg. Which were much the same as in Rio in 1992. Can development be facilitated in such a way that will at the same time alleviate poverty, improve standards of living but retain an adequate quality of the environment?
At the 2012 conference an additional issue has risen to the surface - the perennially controversial question of global environmental leadership and governance at the UN level. A number of proposals are on the table, including a revamp of existing UN environmental institutions as well as the creation of new entities.
Unlike 1992, there is no extended list of instruments ready to be negotiated and signed. Most of the focus is on one document - as yet unnamed - but going by the inventive working title of ‘Outcome Document’. On 7 May, Kukang told negotiators “Our objective should be to arrive in Rio with at least 90% of the text ready. The most difficult 10% should then be negotiated in Rio with the highest political support.”
A third round of preparatory talks concluded on 2 June with only 20% of the text agreed. This has led some commentators to predict that even if compromise is reached, ‘the risk is it will come at the expense of delayed commitments and open-ended, unenforceable promises.’
It is interesting to reflect on why the 1992 conference was able to deliver with relative ease five highly ambitious and ostensibly onerous international environmental instruments, whereas in 2012, the gathered nations seem likely to struggle to produce one non-legally binding statement.
One factor which is clearly influential in 2012 is the precarious state of the global economy, and in particular deep challenges facing developed country economies in the US and Europe layered upon the perceived economic threat of emerging economies such as China and India.
The divide between developed North and developing South has always been a feature of international geopolitics. It is heightened in 2012, as emerging economies flex negotiating muscle and old-school developed countries move into defensive mode. As seen in other recent environmental negotiations such as the 2009 Copenhagen and 2011 Durban climate talks, countries such as China, India, Brazil and South Africa are noticeably more self assured and sophisticated in their tactics and positioning. The US, EU, Canada, Japan, Australia and New Zealand are now faced with bolshier demands for recognition of income and resource disparity between developed and developing nations. That creates additional challenges for the negotiations and negotiators, especially US negotiators whose masters’ eyes are on a certain upcoming date at the polls.
How is New Zealand positioning itself for the event?
At the time of writing, it looks as if New Zealand will follow the lead of the US and UK and not send its leader to Rio. (This contrasts with the 1992 event where Helen Clark was present alongside Bush, Major and, er, Castro, to inscribe her signature on the various documents concluded). New Environment Minister Amy Adams is billed to appear on behalf of New Zealand, alongside a team of officials from MfE and MFAT.
In March of this year, former Minister for the Environment Nick Smith identified oceans policy and tackling fossil fuel subsidies as key areas of focus for New Zealand in Rio, being ‘areas that are most urgent, where we can add value, and where there are good prospects to make progress’. He also said ‘we will not be the biggest and may not be the loudest voice at the conference, but we intend to be one of the most practical and relevant".
Exactly how this plays out will be interesting to watch.
I am heading to Rio on Sunday to pickup the conclusion of the prepcom, and monitor the main event on 20-22 June. I'll be posting updates as the negotiations develop.
By Vernon Rive on 14/06/2012 10:13:43 a.m. | Comments (1) | Print
Topic / Sustainability
Vernon Rive . 12/01/2012 11:26:22 a.m.
An article in Nature magazine out today has received a bit of press, including this article in the Herald, and this one in the Guardian.
The authors argue for a new market approach to whale conservation:
"We
propose an alternative path forward that could break the deadlock:
quotas that can be bought and sold, creating a market that would be
economically, ecologically and socially viable for whalers and whales
alike. Because conservationists could bid for quotas, whalers could
profit from whales even without harvesting the animals. A market would
therefore open the door to reducing mortality without needing to battle
over whether whaling is honourable or shameful."
It's an interesting idea. But I can't help thinking that the authors fundamentally misconceive the underlying motivations for much of the whaling activity currently taking place. Nations such as Japan whale not for economic reasons, but to assert their standing and place in the international community.
Because economics has little to do with the drivers for whaling, market mechanisms don't offer much of a solution. As I've suggested in an earlier post, it's going to take a groundswell of public opinion, crucially from young people from whaling nations such as Japan and Norway, to create a social and political environment where whaling is not seen as acceptable. Sea Shepherds' antics in the Southern Ocean won't do much there. Nor, I reckon, will the theoretically attractive, but basically flawed proposal from Costello, Gerber and Gaines for a tradeable permit system in whale meat.
By Vernon Rive on 12/01/2012 11:26:22 a.m. | Comments (1) | Print
Vernon Rive . 8/12/2011 12:00:00 a.m.
Youth delegations from around the globe have converged on Durban in the last couple of weeks to add their bodies, voices and laptops to the crowded NGO space looking to influence the outcome of the climate talks.
Earlier in the week, I spoke with Emma Moon and David Tong from the
New Zealand Youth Delegation – a group of 10 students of law, environmental science, international relations, music, development studies and politics. Some of that chat is in the video below.
Like other youth delegations here at COP17, the New Zealand group has thrown itself into a range of activities – meeting with their South African counterparts and other members of the ‘YOUNGO’ community, delivering an ‘intervention’ at a working group on the Kyoto Protocol, attending side events, and catching up with the New Zealand Government delegation on a fairly regular basis.
And, of course, promoting the “I heart Kyoto” message as much as they can.
On Tuesday, the NZ group issued a fairly bold press release. It began thus:
"The New Zealand Government is jeopardising its good name in international negotiations at this fortnight's United Nations Climate Change Conference in Durban. It has been identified as one of a small number of States stalling progress in forming an international climate agreement. Other parties have privately condemned its conduct and predict it could risk the possibility of a credible outcome."
..and continues for 2 pages in a similar vein.
I asked New Zealand’s Climate Change Negotiations Minister Tim Groser for his thoughts on the statement. The Minister is not especially known for pulling his punches on this kind of thing. He didn’t disappoint.
“I didn’t come here to negotiate with 10 young New Zealanders. What they’ve unfortunately bought without realizing it is the whole drum beat on KP, KP, KP, as if somehow they don’t understand that a deal that locks in only 15% of emissions is actually an insult to New Zealand.”
Groser’s point on the complete inadequacy of a Kyoto Part II which covers only 15% of emissions is undoubtedly on the money. And the simple messaging around a second Kyoto commitment period being adopted by the Youth Delegation as well as many NGOs here in Durban is an easy target for criticism.
His comments do a slight disservice to the youth movement however. They understand that Kyoto II without China, the States and India is not enough. Perhaps their messaging could be a little more sophisticated. But their point, as far as I can tell, is that the instrument that is currently the only legally binding agreement on emissions reductions is very much worth retaining for another round, on the way to the bigger goal of a comprehensive agreement involving all of the main players.
That is actually not too far from New Zealand’s position here in Durban. But I'm not expecting to see the Minister in an ‘I heart Kyoto’ T-shirt any time soon.
By Vernon Rive on 8/12/2011 12:00:00 a.m. | Comments (1) | Print
Topic / Sustainability
Vernon Rive . 15/11/2011 1:17:42 p.m.
"With the Rena’s oil all but salvaged, many might breathe a huge sigh of relief. But the saga is by no way over and if anything, it poses some serious questions around the laws, or lack thereof, that exist in New Zealand to deal with such incidences. To get a little clarity on the matter, we posed a few questions to AUT’s senior lecturer in law, Vernon Rive."
14 November 2011 article on Idealog Magazine's Sustain Blog.
By Vernon Rive on 15/11/2011 1:17:42 p.m. | Comments (0) | Print
Vernon Rive . 5/01/2011 12:43:52 p.m.
Part v-log, part 70’s educational cine-movie, part Sigur Ros video, part Planet Earth on a handycam. Al Gore & masseuse nowhere in sight, but David Attenborough is there looking charmingly shabby. If you watch only 1 online climate change doco made on a tight budget by an 18 yr old UK film maker called Ross this week, make it this one: Beyond the Brink.
By Vernon Rive on 5/01/2011 12:43:52 p.m. | Comments (0) | Print
Topic / Sustainability
. 26/02/2010 10:07:27 a.m.
In the last two weeks, two reports with significant implications for fresh water management in New Zealand have been released. The reports share a common starting point: there are serious issues with current approaches to fresh water management, including widespread over-allocation and the lack of an integrated approach to water management, with environmental and economic consequences which, already at an unacceptable level, could dramatically worsen in the future.
In response, the authors of the first report recommend a much clearer articulation of the national values relevant to fresh water management, and the provision of central government direction to how these values should be reflected in and implemented through subordinate planning documents.
Acknowledging that sustainable management involves an “overall broad judgment… that allows for a comparison of conflicting considerations” the authors of the first report nevertheless urge a recognition and protection of natural environmental values of water, even if this means limiting the availability of the resource for human use, including for commercial purposes:
Improvements in fresh water by phasing out over-allocation and contamination require that fresh water is used for enabling economic wellbeing only while, and to the extent that, life-supporting capacity of water and its associated ecosystems is fully safeguarded, and the potential to meet reasonably foreseeable needs of future generations is fully sustained.
….
Intrinsic values of fresh water are substantial in themselves. Maintenance, restoration and enhancement of them is not subordinate to economic values of fresh water for potential use for people and communities’ wellbeing.
The second report bemoans the “lack of balance between economic, social, cultural and environmental perspectives” in relation to the management of water resources in one New Zealand region, holding that (amongst other matters) it is an over-emphasis on environmental values, and under-emphasis on the economic benefits of water use that has inhibited the strategic management of water in that region.
There is insufficient consideration given to the fact that the purpose of the RMA is to weigh environmental, social, cultural and economic matters. [The] focus is mostly on ‘natural’ environmental matters.
There is a lack of economic perspective to balance what is perceived as a pro-natural environment approach in Plans and officer reports…
The second report’s recommendation is to remove all powers of water management, strategy and plan development, consent processing, monitoring and enforcement from an existing regional council, and establish a new standalone regional water authority under new legislation, membership to be appointed by central government. The new Act would have its own purpose, distinct from the purpose of the RMA, “which should involve a mix of economic development, environmental, social and cultural factors.”
The first report, of course, is the Report and Recommendations of the Board of Inquiry in the Proposed National Policy Statement for Freshwater Management. Chaired by the former Principal Environment Judge Sheppard, and written in crisp prose reminiscent of many landmark Environment Court decisions issued under his direction, this is the outcome of an involved document development and consultation process which included 149 submissions on the draft NPS, 30 further submissions, hearings over 21 days with appearances from 80 submitters, and at least 4 months further deliberations before provision of the recommendations to Government.
If adopted, the NPS would require regional councils to include in new or amended policy statements and plans a raft of new provisions directed at addressing the key national issues identified as of significant concern, namely:
Over-allocation of fresh water;
Contamination of fresh water;
Loss of wetlands;
Incompletely integrated management.
The report frankly acknowledges that an NPS will be only part of a wider programme of review and reform. Much of its content is taken up with explaining why matters urged on it for consideration by submitters are outside of the scope if its inquiry, or indeed, the scope of the RMA. And while one environmental group, EDS, has criticized the 2030 target date for improved freshwater quality, it conceded that “there is some real merit in the policies and objectives the Board of Inquiry has proposed”.
There are no prizes for identifying the second report as the Report on the Investigation of the Performance of Environment Canterbury, released on 19 February. It is a no-holds-barred and wide ranging critique of Ecan’s water and senior management team and institutional processes. It appears likely to lead to the disestablishment of Ecan as we know it, quite possibly in a very short timeframe. If implemented, in Canterbury at least, the prospect of the RMA as 1-stop-shop is severely bruised, and with it, the hopes of meaningful integrated management – particularly a recognition of the links between land use development and water use and quality.
Some of the Ecan officers might read the Board of Inquiry report with interest, reflecting on the irony that, superficially at least, their approach of holding the intrinsic values of water as not necessarily subordinate to the economic values of commercial use seems to resonate with the tone and content of former Principal Environment Judge and his Board colleagues’ report. But that approach – held up as an example of misguided and unbalanced thinking by Messrs Creech and co - could well mean the imminent demise of any meaningful role for them at the council that manages around 70% of New Zealand’s fresh water resource.
By on 26/02/2010 10:07:27 a.m. | Comments (0) | Print
Vernon Rive . 9/02/2010 6:01:09 p.m.
A Court of Appeal judgment delivered just before Christmas (Central Plains Water Trust v Synlait Ltd [2009] NZCA 609) is the latest chapter in a long saga of litigation dealing with the vexed issue of competing priorities for consent applications dealing with the same resource: in this case, South Island water.
The decision, judgment delivered by Baragwanath J, affirms the “first-in-first served” principle earlier established in the well-known Fleetwing Farms case, and the principle more recently laid down in Central Plains Water Trust v Ngai Tahu Properties Ltd [2008] NZRMA 200 (CA) that in circumstances where there are competing applications for the same resource, hearing priority is to be determined by who is “first to file a complete application”, and not according to which application is first “ready for notification”.
In Ngai Tahu, it had been left open as to whether the “first to file a complete application” test should apply to scenarios where the competing applicants were not “similar commercial competitors”. Now, the CA has confirmed that the Ngai Tahu test applies across the board, subject to a potential – and slightly tantalising - “exceptional circumstances” rider, the limits of which will have to be drawn in subsequent cases, if not addressed by legislative reform.
At the heart of the Central Plains decision is an assessment of what the Court described as two competing “themes”: Theme 1 - “efficiency” and Theme 2 - “other policy factors”, further described as “s 5 and the broad concept of sustainable management”.
While accepting that both themes are recognised in Part 2 of the RMA, they were characterised as “each tending in different directions”: crudely summarised, the “efficiency” theme supporting a simpler, quicker, non-discretionary attaining of priority status, once an application that satisfies the basic requirements of s 88 RMA has been lodged (Central Plains’ position); and the “sustainable management” theme supporting a more nuanced, potentially discretionary route to attaining hearing priority which would allow, for example, decisions by Council officers to request further information, or defer the hearing of applications until other related consents are lodged, to influence the question of priority.
Baragwanath J and his CA colleagues reconciled the competing considerations by separating the issue of priority of hearing from the issue of priority of merits. Priority of hearing, it was held, should be determined by reference to s 88:
It is impractical to use as a measure of priority, even as to hearing, the mutable test of what a council officer, more or less cautious, more or less informed, might stipulate under s 91 (or indeed s 92). What matters as to priority of hearing is what Parliament has stipulated in ss 88 and 21, which provide the essential and unwavering architecture.
So, the first to file a complete application has priority of hearing. The second-in-time competing applicant will normally have an opportunity to submit against, and be heard in relation to the first application: this, the Court said, allows the non-priority applicant to have it say on, and for the council (or Environment Court on appeal) to assess, “the Part 2 and other (theme (2)) considerations rather than allow the theme (1) factors to deprive the community of a benefit which it considers outweighs them.”
The CA decision may not be the last word, however…as with the abandoned Supreme Court proceedings in Central Plains Water Trust v Ngai Tahu Properties Ltd, there is one more level of appeal available. Watch this space.
As the CA itself came close to acknowledging, the entire system of allocating fresh water in New Zealand is ripe for a bottom-up review, and reform. That process is winding up – slowly. In the meantime, first-in-first-served, with an application that meets the statutory requirements, but allows for gap-filling down the track, is the order of the day.
By Vernon Rive on 9/02/2010 6:01:09 p.m. | Comments (1) | Print
Topic / Sustainability
Vernon Rive . 21/01/2010 3:45:14 p.m.
Over at Hot Topic, Bryan Walker has posted his 19 January Waikato Times article following Environment Judge Newhook’s recent interim decision giving an “indication of a possible positive recommendation” to Crest Energy’s proposed marine turbine power generation project in the Kaipara Harbour (Crest Energy Kaipara Ltd v Northland Regional Council A132/2009). There are high hopes for marine generation in New Zealand, and this decision is a notable step in that regard.
Crest’s consenting process hasn’t been all clear skies and calm waters. In June 2009, representatives of a Northland hapu of Ngati Whatua (Environs Holdings Ltd) brought judicial review proceedings to overturn an EC decision declining a stay or adjournment of the hearing of various EC appeals on the proposal. A stay was sought to avoid prejudice to a pending claim under s33 of the Foreshore and Seabed Act that was anticipated if the EC proceeded with the appeal proceedings under the RMA.
The High Court gave the application reasonably short shrift, holding that the claimants could run their arguments (including concern at expected prejudice to rights that may be confirmed under the Seabed Act) in the RMA proceedings, also noting the EC’s role in relation to the restricted coastal activity consents needed for the marine turbine operation was recommendatory only. As with the Whangamata Marina case, the Minister of Conservation has the final say, a factor (the HC said) that “adds a safeguard to the process from the group claimants’ point of view”.
The EC appeal proceeded. In the event, the Court was not ultimately swayed by extensive submissions and evidence on the part of Environs in opposition to the RCA consents, holding (amongst other matters) that Crest’s offer of a Memorandum of Understanding and proposed funding of a trust for environmental restoration in and around the Kaipara Harbour “can be seen to address aspects of cultural offence deriving from biological and physical degradation of past land and water management practices, and together with satisfactory conditions of consent addressing ecological and other biophysical matters, should, if those things are adequately addressed, amount to adequate provision for the matters the subject of Section 6(e).”
The EC has asked for more information on monitoring and the proposed conditions of consent, however all signs point to a positive final recommendation, once i’s are dotted and t’s crossed.
Turning to wider issues of energy policy, as Bryan notes, there are question marks around government priorities for renewable energy generation:
In the case of marine energy [the Government] has, admittedly, provided $8 million over a period of four years to support selected projects. But it committed $20 million over three years to gather seismic data in support of oil and gas exploration, and has extended tax exemptions for offshore exploration.…In a rational world we’d be more interested in finding ways of leaving it in the ground, knowing, as we now do, the fearful prospects ahead if we keep burning the stuff. There’s still some priority-sorting needed at government level.
Even assuming Government gets on board, quite how the “priority-sorting” should best demonstrate itself is an interesting question in itself, as was seen in a rather different decision by another division of the Environment Court on another controversial renewable energy project – Meridian’s planned 176 wind turbine Project Hayes (Maniototo Environmental Society Inc v Central Otago District Council C103/2009).
In Maniototo an “All of Government” submission in support of the proposal under section 141A(4)(c) RMA was considered, the issues advanced on behalf of the Crown “duly assessed” and “had regard to”, but the Crown’s involvement in support “as an ‘other matter’ for the purposes of section 104(1)(c)” was ultimately not of sufficient moment to offset the concerns of the majority of the Court with impacts on landscape, and its assessment that Meridian had not sufficiently analysed relevant alternatives.
The Maniototo decision has been criticised for creating “a new test for projects to overcome which is unworkable; which will result in planning paralysis and in conflict between organisations wanting to advance separate projects”. Meridian has appealed to the High Court, whose decision may well prove to be one of the more significant RMA judgments in 2010.
In the meantime, its hard to escape the view that clearer central Government direction on issues of national significance in the renewable energy arena – the kind of guidance that will not simply be relegated to ‘another matter’ to be thrown in the mix - is sorely needed. Something like, say, a clear NPS on Renewables? It can’t be far off, surely…
By Vernon Rive on 21/01/2010 3:45:14 p.m. | Comments (1) | Print
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