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Adaptation

28

Climate Change Adaptation

 The law has a powerful role in adapting to a climate change dominated world. While Al Gore has argued that adapting to climate change is “a kind of laziness, an arrogant faith in our ability to react in time to save our skins”, which requires a focus on the mitigation of greenhouse gases, from a legal perspective adaptation to climate change is not only legitimate but necessary.1It is inevitable that the risks posed by climate change need to be anticipated. As McDonald notes, the emphasis on mitigation means that “little work has examined the systems of law, government and governance that will be required to deliver adaptation policies.”2

The way that law responds to climate change is critical for meeting the challenges of climate change. As there is a severe time lag between the causes of climate change and the impacts of climate change, adaptation is a pressing requirement which involves planning for emergencies. In New Zealand, planning for emergencies has been left to policy makers which has resulted in a lattice of differing legislative priorities. The law needs to recognise that adaptation is often contextual, uncertain, and involves trade-offs  while at the same time acknowledging that many impacts will be irreversible and will interact with existing stressors. For McDonald, adaptation laws and adaptive laws are needed. These laws should be able to accommodate the sudden shocks wrought by climate change.

 

This part takes as its tenet the notion that those that fail to plan, plan to fail. When an emergency has arrived, it is simply too late for planning and survival is all that is important. Thus, to what extent is the law of New Zealand ready to adapt to the impacts of climate change? How does the New Zealand legal position for adaptation compare with international approaches from the European Union, Australia, Canada and the United States? How will New Zealand law need to change to adapt to the impacts of climate change? These are all questions that need to be asked in planning from a national and local perspective.

 

Planning for an emergency of whatever nature inevitably involves treading on private rights in favour of public rights. This tension that exists between private rights and public rights requires analysis from the sceptre of the separation of powers between the executive, legislature and judiciary. In the international sphere, how the law of New Zealand responds to international environmental disasters through immigration will be of concern. The migration of environmental refugees to New Zealand cannot be dismissed as a mere international problem as it is substantially a domestic legal problem. The planning for the impacts of climate change will require resource management decisions as to sea level rise, droughts, fire, flood, hurricanes, tornados, biosecurity infestation and loss of biodiversity. This concerns erosion, water, deforestation, upgrading of existing infrastructure, environmental quarantine and conservation. Naturally, insurance is a factor for commercial consideration and how the law of insurance responds to natural disasters needs to be examined. Compensation, either state or private compensation, also needs to be evaluated so as to explain how maladaptive behaviour to climate change will found a cause of action in tort law.

 

The Theoretical Framework for Adaptation to Climate Change

 

John Locke’s infamous trinomial of private rights as life, liberty and property are all threatened by the potential catastrophic consequences of climate change. Thus, part of the process of adapting to climate change requires a strong conceptualisation of public rights and private rights.3How the judiciary treat such concepts before a natural disaster is central to how adaptation to climate change will take place. Faulkner v Gisborne District Council presents the ultimate example of public rights where a landowner was unable to protect his private property from erosion from the sea because the public interest required that coastal erosion take place.4

Such a decision represents a careful legislative balancing between public rights and private rights and how the judiciary responds to such challenges. From a jurisprudential perspective, how the judiciary uses statutory interpretation to protect private rights becomes heightened. The judiciary are forced, thus, to interpret statutes which remove private rights without compensation for the benefit of public rights.

 

This conceptualisation of private rights and public rights interacts with the principle of eminent domain where the State has a right to take and use private property in order to enhance public rights.  The right of compensation for the expropriation of private rights flows naturally from the exercise of this prerogative power. This right is enshrined in the Magna Carta. However in planning for emergencies, the right to compensation becomes neglected for the rights associated with the public.  That is, while in an emergency the right of expropriation without compensation is arguably understandable, in planning for an emergency the threat is seemingly theoretical. Therefore, the legitimacy of emergency regulation becomes a matter of acute controversy. In planning for an emergency, the law must become agile to the circumstances but agility conflicts with the need for legal certainty.

 

The Immigration of Climate Change Refugees

 

The small islands of the Pacific will look to New Zealand for security from sea level rise. In such circumstances, New Zealand may well have a humanitarian but not necessarily legal obligation to provide environmental refugees with residency. The public interest in preventing mass immigration will obviously conflict with the private interests of the applicants and the family of such applicants in New Zealand. Precisely how New Zealand’s immigration law will respond to such challenges remains to be seen. For Warnock, thus, “[t]he potential for large refugee flows needs to be managed and planned well in advance.”5The difficulty is that refugee law is generally concerned with human persecution from the acts of a government against its individuals. It is “disingenuous therefore to aver that the Pacific Island States’ own governments are responsible for the climatic ravages likely to be visited upon the islands.”6

Warnock calls for an international agreement as preferable. Existing mechanisms exist, however, in terms of the Pacific Access Category under the Immigration Act 1987 as a basis for limited immigration. The category is run by a ballot and requires ongoing and sustainable employment with a single New Zealand employer. Immigration as a result of climate change will have implications on international stability.

 

Planning for Environmental Disasters Associated with Climate Change

 

The effects of climate change on the coasts of New Zealand are “a key adaptation issue given New Zealand’s geography.”7

New Zealand has “one of the longest (at 11,500 kilometres) and, in some places, most deeply indented coastlines in the world.”8

The New Zealand Coastal Policy Statement, therefore, plays a significant role in limiting subdivision in the coastal area.9This, of course, is part of a broader exercise to consider coastal erosion in light of climate change.10

How far do coastal hazard zones extend?11There are several cases where the nature and location of sea walls is in contention.12It is certainly trite that there is no legal basis for disregarding the sea-level rises of the future.(( Maruia Society Inc v Whakatane District Council (1991) 15 NZTPA 65))How ports,13

wharfs,14harbours and Maori interests under the Marine and Coastal Area Act 2011 will respond to rising sea levels remains uncertain. A reoccurring theme is that of adaptive management in light of development in the coastal marine area.15

Undoubtedly, however, the tension between public interests and private interests will feature in cases of the future because coastal subdivision and development remains fashionable.

 

Adaptation to limited water resources especially where a nation-wide drought takes place requires anticipation. Section 329 of the Resource Management Act 1991 provides that in the event of any serious temporary shortage of water, a regional council may give immediate notice suspending, restricting or apportioning any taking, use, damming, diversion of water or any discharge of any contaminants into water. Although regional councils are reluctant to grant water take permits on the basis that Section 329 provides for a water shortage direction, the minimum flow of lakes and rivers is an important consideration for over-allocation purposes. It is significant given that in some circumstances resource consents are required to put fresh water back into water bodies for recreation and fishing purposes. In a drought, the first-in first-served basis of water allocation would create a number of inequities.16

This, of course, returns to the omnipresent private and public rights tension. In addition, territorial authorities may also make bylaws to restrict water use in metropolitan areas. Whether New Zealand cities are prepared to recycle water like Australian cities or alternatively to desalinate sea water in the event of mass shortage is an area of concern.17

The Forest and Rural Fires Act 1977 and the Fire Service Act 1975 provide the basis for the mass fire outbreak. The former Act aims to safeguard the life and property of the public by the prevention, detection, control, restriction, suppression, and extinction of fire in forest and rural areas. With an increase in forestry anticipated through the Climate Change Response Act 2002, the potential for fire risk is acute. The legalities of sacrificing one property to the fire to save another property in these circumstances are highly contentious. In planning for a fire, Section 27 of the 1977 Act provides that a District Fire Authority may require any landowner to make and clear firebreaks for the purpose of fire control and to provide alternative through-routes for escape in the event of fire. Such a section only applies to exotic trees for the production of timber which means that as trees are increasingly being used for the storage of carbon rather than timber, the section could arguably not apply. The section, of course, is infused with the public rights and private rights dichotomy.

 

New Zealand is no stranger to the natural hazards provided by floods. The Land Drainage Act 1908, the River Boards Act 1908, the Soil Conservation and Rivers Control Act 1941 and the Resource Management Act 1991 are the principal statutes New Zealand used to prepare for floods. The latter means that by determining where subdivision and building is to take place, the risks associated with flooding can be minimised. This is consistent with NZS 9401: 2008 Managing Flood Risk: A Process Standard. As the Ministry for the Environment has noted in Meeting the Challenges of Future Flooding in New Zealand the statutes are not only outdated but “the pre-eminence given individual rights under various Acts makes it difficult to carry out comprehensive flood protection works.”18An example of such complexities is provided in Waikato Regional Council v Marshall where Marshall refused to undertake flood protection works on his own land.19

The Regional Council after a decade of negotiation, obtained specific performance to require Marshall to complete the works. Marshall contended that the Regional Council was required to compulsorily acquire the land.

 

The effects of strong winds from hurricanes or tornados are another impact which will be wrought from climate change. While the building code can potentially be improved for new buildings, existing buildings provide a legal problem. Section 124 of the Building Act 2004 means that a territorial authority may require work to be undertaken on dangerous, earth-quake prone, or insanitary buildings. The concept of dangerous is, however, problematic. It is unlikely that a building is unsafe until it is exposed to strong winds at which point it becomes unsafe. The fact that New Zealand does not have a duty to maintain historic heritage is challenging in this context.20

This means that unless a building is exceedingly dangerous, there is limited power for territorial authorities to plan for the onset of strong winds. There is limited power for engineers to enter buildings to recommend upgrading. This is based on a strong entrenching of private rights to the detriment of broader public safety. The benefits of ensuring that private rights are respected in this context require consideration.

 

A serious security aspect of climate change is the spread of diseases or organisms to New Zealand as a risk to humans or risk to New Zealand’s natural and physical resources. This invokes the legislation relating to controlled areas under the Biosecurity Act 1993 and quarantine under the Health Act 1956. The former Act is designed to exclude, eradicate, and effectively manage pests and unwanted organisms. This has border controls aimed at effective management of risks associated with importation of risk goods. Under the latter Act, quarantine procedures are set which require any ship or aircraft into New Zealand reasonably believed to have a specified disease to be subject to quarantine. This is in addition to the Epidemic Preparedness Act 2006. The requisition and destruction of property under the Health Act 1956 and the Biosecurity Act 1993 pose direct questions as to the reach that public rights extend and the extent to which private rights are curtailed for emergencies.

 

Inevitably, there will be a loss of biodiversity with climate change. The protection of biodiversity in New Zealand is provided for under the Conservation Act 1987, the Reserves Act 1977, the Wildlife Act 1953 and the Native Plants Protection Act 1934. Section 6(c) of the Resource Management Act 1991 provides that as a matter of national importance there should be the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna. The Ministry for the Environment is currently engaged in consultation over a National Policy Statement on Indigenous Biodiversity. It is principally to provide for the identification and management of indigenous biodiversity outside the conservation estate. Local authorities, therefore, would be required to manage the environmental effects of activities on indigenous biodiversity to ensure that significant indigenous biodiversity is not lost. A difficulty, however, is that it is the global activity of greenhouse gas emissions causing climate change rather than any specific localised activity that will lead to the loss of biodiversity. Biodiversity loss is a fraught area mainly because of different perspectives as to public rights of protection in contrast to private rights of development and necessity.21

Civil Defence and Emergency Management Act 2002

 

Emergency legislation in New Zealand exists in the form of the Civil Defence and Emergency Management Act 2002. The Act’s purpose is to ensure risk reduction, readiness, response and recovery. It provides for local authorities to join emergency services in forming civil defence emergency management groups. The Director of civil defence emergency management monitors and evaluates national strategies and plans associated with civil defence emergencies. These strategies and plans allow for emergency services to have extensive consultation. The civil defence management group, in the event of a state of emergency, has far reaching powers. This includes under Section 86 of the Civil Defence and Emergency Management Act 2002 to order evacuations of any premises or place as well as excluding persons from that premises or place necessary for the preservation of human life. The discord between private and public interest are heightened in such a civil emergency.

 

The Role of Insurance in Planning for and Responding to Climate Change

 

The insurance industry must prepare for and respond to climate change but historical data which the insurance industry traditionally rely on in determining risk will become increasingly unreliable in a climate change dominated world. The words of Webb that New Zealand “arguably has the least regulated insurance industry in the developed world” presents problems for how New Zealand will adapt to climate change.22

If risk is so high, it is inevitable that the insurance industry will be reluctant to insure. A corollary is the need for insurance to reward low-risk development. Obviously, the Earthquake Commission Act 1993 provides for protection against natural disaster damage but private insurances have a role in encouraging those insured retrofit buildings and homes to reduce risk. This acts as a financial incentive rather than a blunt legal tool to ensure that business and individuals respond to risk appropriately rather than ignoring the difficulty of adapting to climate change.

 

Liability for Maladaptive Planning to Climate Change

 

Tort law is averse to pure financial loss claims entering the duty of care in negligence. Defective buildings and leaky homes are a major exception to the general rule of non-recoverability for pure financial loss. However, liability either for planning or for emergency services that are provided negligently will become increasingly prominent in a world wrecked by climate change impacts. While it may be difficult to succeed in a claim for compensation for negligently performed emergency services especially where such services are provided in good faith, the likelihood of local authorities being liable for anticipating climate change impacts is less academic and increasingly substantive. For example, Easton Agriculture Ltd v Manawatu-Wanganui Regional Council involved the failure of a stopbank built by the Manawatu-Wanganui Regional Council which destroyed crops in the ensuing flood.23

The claim was bought in negligence, nuisance, breach of statutory duty, and Rylands v Fletcher. The claim was in part successful because the Council had failed to identify and repair a gap at the top of the stopbank which contributed to the damage to the crops. With climate change the traditional defence of an act of god takes upon an entirely new meaning. The planning of the public through local authorities, here, endangers several private rights.

 

Before concluding, it must be noted that there is substantial policy work on adaptation to climate change in New Zealand. The Intergovernmental Panel on Climate Change Climate Change 2007: Impacts, Adaptation and Vulnerability (2008) provides a broad overview of adaptation. The Ministry for the Environment Climate Change Effects and Impacts Assessment: A Guidance Manual for Local Government in New Zealand (2nd ed, 2008), the Ministry for the Environment Coastal Hazards and Climate Change: A Guidance Manual for Local Government in New Zealand (2nd ed, 2008), the Ministry for the Environment Climate Change: Potential Effects on Human Health in New Zealand (2001), and the Ministry for the Environment Preparing for Future Flooding: A Guide for Local Government in New Zealand (2010) are the main governmental documents in New Zealand. In addition, the New Zealand Climate Change Centre Climate Change Adaptation in New Zealand: Future Scenarios and Some Sectoral Perspectives (New Zealand Climate Change Centre, Wellington, 2010) provides an excellent traversing of the issues with climate change adaptation in New Zealand.

 

In conclusion, disaster law as part of climate change law is emerging as a distinct legal discipline. There is a delicate executive, legislative and judicial balance to found in the reconciliation of private rights in favour of public rights. What is known is that the immigration of climate refugees will force New Zealand to squarely confront the international concern of climate change on its national doorstep. Resource management decisions will also need to be made and lines drawn over such matters as sea level rise, droughts, fire, flood, hurricanes, tornados, biosecurity infestation and loss of biodiversity. There are far more matters that can be added such as concerns relating to erosion, water, deforestation, upgrading of existing infrastructure, environmental quarantine and conservation. As has been seen from events in Christchurch, insurance is a factor which requires thorough analysis. This can be seen to work alongside arguments of compensation, either state or private compensation, where maladaptive behaviour in relation to climate change is remedied with compensation through the founding of a cause of action in tort law.

  1. R Pielkle “Lifting the Taboo on Adaptation” (2007) 445 Nature 597 as cited in Jan McDonald “Mapping the Legal Landscape of Climate Change Adaptation” in Tim Bonyhady, Andrew Macintosh, and Jan MacDonald Adaptation to Climate Change: Law and Policy (The Federation Press, Sydney, 2010) 1 at 1. []
  2. Ibid at 2. []
  3. Barry Barton “The Legitimacy of Regulation” (2002) 20(4) NZULR 364; Philip Joseph “Property Rights and Environmental Regulation” (2001) Quality Planning: The RMA Planning Resource <http://www.qualityplanning.org.nz/>; A McHarg (ed.) Property and the Law in Energy and Natural Resource (Oxford University Press, Oxford, 2010).

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  4. Faulkner v Gisborne District Council [1995] 3 NZLR 622 []
  5. Ceri Warnock “Small Island Developing States of the Pacific and Climate Change: Adaptation and Alternatives” (2007) 4 NZYIL 247 at 268.

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  6. Ibid at 270. []
  7. Alistair Cameron Climate Change Law and Policy in New Zealand (Lexis Nexis, Wellington, 2011) at 363. []
  8. Matthew Smith (ed.) New Zealand’s Fifth National Communication  under the United Nations Framework Convention on Climate Change Including the Report on the Global Climate Observing System (Ministry for the Environment, Wellington, 2009) at 16.

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  9. Re Tasman District Council ENC Wellington ENV-2011-WLG-000017, 28 February 2011; Buckley v South Wairarapa District Council ENC Wellington W004/08, 4 February 2008.

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  10. Clyma v Otago Regional Council PT Wellington W64/96, 17 June 1996 []
  11. Save the Bay v Canterbury Regional Council ENC Christchurch C6/2001, 19 January 2001; Skinner v Tauranga District Council ENC Auckland A163/02, 19 August 2002; Fore World Developments Ltd v Napier City Council ENC Wellington W29/06, 13 April 2006.

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  12. Mason v Bay of Plenty Regional Council ENC Auckland A098/07, 30 November 2007 []
  13. Judges Bay Residents Association v Auckland Regional Council ENC Auckland A72/98, 24 June 1998. []
  14. Waterfront Watch Inc v Wellington Regional Council ENC Wellington W043/09, ENV-2008-WLG-000088, 9 June 2009.

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  15. Energy Kaipara Ltd v Northland Regional Council ENC Auckland A132/09, 22 December 2009. []
  16. Fleetwing Farms Ltd v Marlborough District Council [1997] 3 NZLR 257; Central Plains Water Trust v Ngai Tahu Properties Ltd [2008] NZRMA 200; Central Plains Water Trust v Synlait Ltd [2010] 2 NZLR 363.

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  17. Poh-Ling Tan “Adaptation Measures for Water Securities in a Changing Climate: Policy, Planning and Law” in Tim Bonyhady, Andrew Macintosh, and Jan MacDonald Adaptation to Climate Change: Law and Policy (The Federation Press, Sydney, 2010) 135.

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  18. Ministry for the Environment Meeting the Challenges of Future Flooding in New Zealand (2008). []
  19. Waikato Regional Council v Marshall HC Hamilton CIV-2008-419-918, 11 November 2010 []
  20. New Zealand Historic Places Trust/ Pouhere Taonga Sustainable Management of Historic Heritage, Discussion Paper No.6, Heritage at Risk: Addressing the Issue of the Demolition by Neglect of Historic Heritage in New Zealand (2007).

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  21. Powelliphanta Augustus Inc v Solid Energy New Zealand Ltd (2007) 13 ELRNZ 200.

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  22. Duncan Webb “Playing Dice with God: Insurance in a Climate of Change” (2008) 19(1) ILJ 57 at 67. []
  23. Easton Agriculture Ltd v Manawatu-Wanganui Regional Council HC Palmerston North CIV-2008-454-31, 7 September 2011.

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