Papers
Liability and limits for the Rena pollution incident
Makgill, R., Mossop, J. and Scott, K., 'Liability and Limits for the Rena Pollution Incident', NZ Lawyer, 4 November 2011.
Law of the sea experts Robert Makgill, Joanna Mossop and Karen Scott give their views on civil and criminal liability for oil pollution in New Zealand under the Maritime Transport Act 1994 and the Resource Management Act 1991.
Download (.pdf) Feeling Left out at Sea? Navigating No Ownership, Customary Rights and Resource Management
Published in 'Marine and Coastal Area Act - Demystifying the Hype', New Zealand Law Society, August 2011
The principal intention of the paper is to describe and comment on the key components of the Marine Coastal Area Act 2011 (“MCAA”) with regard to the commons, customary rights and decision making under the Resource Management Act 1991. During the process of the Marine and Coastal Area Bill through Parliament the author acted for Local Government New Zealand (“LGNZ”). The author advised on policy and legislative review, consultation with the Ministry of Justice and other Crown departments, and submissions to the Maori Affairs Select Committee. Our firm has also acted for local authorities in respect of a number of treaty settlements. Much of the work we have undertaken focuses on the implications of the MCAA, and other proposed settlement legislation, on issues of public interest and local government decision making. In this context the paper finishes by considering first the implications of the MCAA for other marine and coastal area users; secondly a hypothetical case study in which customary rights are implemented; and thirdly the potential influence the MCAA will have on local government decision-making and public participation under future settlement legislation.
The Marine and Coastal Area Act 2011
Published in Makgill, R. and Rennie, H. ‘The Marine and Coastal Area Act 2011’ April 2011 Resource Management Journal, at 1 to 7.
Co-Author
Dr Hamish Rennie - Department of Environmental Management - Lincoln University
The passing of the Marine and Coastal Area (Takutai Moana) Act (“MCAA”) by Parliament on 24 March 2011 establishes a new regime for recognition of customary rights and title over the foreshore and seabed. A Court of Appeal finding that the Maori Land Court had jurisdiction to determine claims of customary ownership of the foreshore and seabed in Ngati Apa v Attorney-General [2003] 3 NZLR 643 led to the previous Government’s enactment of the Foreshore and Seabed Act 2004 (“FSA”). The FSA removed the ability of Maori to seek recognition of their customary or aboriginal title and vested beneficial ownership of the foreshore and seabed in the Crown, but allowed existing freehold title to remain. The perceived elimination of customary title under the FSA led to the creation of the Maori Party, and adverse reports by The Waitangi Tribunal (WAI 1071) and a United Nations Special Rapporteur (E/CN.4/2006/78/Add.3, 13 March 2006). Despite the criticism of the FSA it is worth noting that many of the provisions found under the MCAA are based on those found in the earlier enactment. This article provides some comparison of the MCAA with the FSA. The principal intention of the article, however, is to describe and comment on the key components of the new legislation, particularly those that effect decision making under the Resource Management Act 1991 (“RMA”).
A Model for Integrated Coastal Management Legislation: A Principled Analysis of New Zealand’s Resource Management Act 1991
Submitted to International Journal of Marine and Coastal Law
Co-Author
Hamish Rennie - Lincoln University - Department of Environmental Management
In this paper we set out the key components of Integrated Coastal Management (ICM) legislation and show how the Resource Managment Act 1991 implements ICM in New Zealand. In Part II of this paper we briefly discuss why ICM is needed and the definition of ICM. We then identify the key tools for delivering ICM. Part III outlines three general components that we consider need to be provided for in any successful legislative framework for ICM. These are policy goals, legislative provision and decision making bodies. The RMA is then assessed to determine the extent to which it makes provision for these components. Parts IV to VIII discuss five specific kinds of tools that we consider an ICM legal framework should make provision for in order to give effect to ICM in decision making. These are: jurisdiction over the coastal environment, integrated planning, a consent process, public participation and informed decision making. We then consider how successfully each of these kinds of policy is implemented under the RMA. Part IX acknowledges that the ability of ICM to successfully manage intensive use and conflict is not without criticism. We briefly consider these criticisms in light of New Zealand’s experience with the RMA.
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Historic Environmental Law Decision
Historic Environmental Law Decision, 'Law Talk', New Zealand Law Society, Issue 768, Page 9 to 10, 25 March 2011
Having the majority of his team's submissions accepted by the Seabed Disputes Chamber in an historic international law ruling was a career highlight for New Zealand environmental law lawyer Robert Makgill.
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Advisory Opinion on Responsibility and Liability for International Seabed Mining (ITLOS Case No. 17): International Environmental Law in the Seabed Disputes Chamber
Published in Environmental Policy and Law, 41/2 (2011)
Also see ANU College of Law Research Paper No. 11-06
Co-Authors:
Donald K. Anton - Australian National University (ANU) - College of Law
Cymie R. Payne - Lewis & Clark Law School
On 1 February 2011, the Seabed Disputes Chamber (“the Chamber”) delivered its first Advisory Opinion. The Opinion provides useful guidance to the international community concerned with the deep seabed. First and foremost, the Chamber accomplished its task to assist the ISA with independent and impartial judicial interpretation of the Convention and related instruments. States that intend to extract valuable resources now know that they must evaluate their legal codes, administrative capacity, and their judicial enforcement mechanisms to determine where they fall short of the standards that the Chamber has identified. For most states it will be necessary to introduce new laws to provide the requisite rules, regulations and procedures. Entities seeking sponsorship will likely wish to work with these governments to develop a workable regime. Other entities, such as those interested in scientific research, other economic uses, and protection of the ocean and seabed resources, will want to assist with this process to ensure that their interests are respected and that developing states are given assistance to develop appropriate laws and enforcement capacity. Finally, the limitations and gaps in the Convention’s liability scheme have now been identified and await the international legal community’s attention.
Number of Pages in PDF File: 13
Accepted Paper Series
Public Property and Private Use Rights: Exclusive occupation of the coastal marine area in New Zealand
To be published in Klaus Bosselmann and Vernon Tava (eds), Water and Sustainability in Australasia, New Zealand Centre for Environmental Law Monograph Series, Vol. 3, Auckland, 2011.
[Copy of Chapter sent to printer following gramtical and formatting revision by editors. Includes author's revision of Part III concerning imperium (radical title) and dominium (absolute title).]
In New Zealand individual rights to occupy the coastal marine area are conferred under the Resource Management Act 1991 (“RMA”). Coastal occupation is best understood as a private use right over public property. The conferral of private rights over property has lead some to define occupation as a property right. It is not an absolute property right. Such rights do not exist within contemporary legal systems. It does, however, display a number of characteristics that we would otherwise identify as belonging to the bundle of rights normally associated with private property.
Any comparison of coastal occupation rights to private property needs to be tempered by recognition that the coastal marine area is vested in the Crown and may not be alienated under the Foreshore and Seabed Act 2004 (“FSA”). There is also a presumption under the RMA in favour of public access to the coastal marine area. The neoliberal approach to land based activities under the RMA is reversed in the coastal marine area, and private occupation is prohibited unless allowed by a plan or a resource consent. Furthermore, the extent to which resource consents are recognised as being either real or personal property is governed by the RMA. These statutory restrictions signal that occupation rights within the coastal marine area have a statutory origin.
Nevertheless, when occupation rights are broken down into their component parts it is apparent that they include rights to exclude, possess, use and transfer. This entitles consent holders to take actions to protect those rights under property related headings such as trespass and non-derogation of entitlement. Coastal occupation rights are not, therefore, either purely statutory or property based rights. This raises the question, what kind of rights are they? This paper concludes they are something new, and might be best considered, at least from an academic standpoint, as a hybrid right that confers both statutory and property rights to a public resource.
Keywords:
Allocation, coastal, exclusive, private, property, public, occupation, ownership, use, right.
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International Tribunal For The Law Of The Sea (Case No. 17): Oral Statement on Behalf of IUCN dated 16 September 2010
Co-Authors:
Donald K. Anton - Australian National University (ANU) - College of Law
Cymie R. Payne - Lewis & Clark Law School
International Tribunal For The Law Of The Sea (Case No. 17) - Responsibilities and obligations of states sponsoring persons and entities with respect to activities in the international seabed area - (Request for advisory opinion submitted to The Seabed Disputes Chamber) - Oral Statement on Behalf of International Union for Conservation of Nature and Natural Resources - 16 September 2010
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International Tribunal For The Law Of The Sea (Case No. 17): Protecting the common heritage of mankind
NZLawyer 25 February 2011, Darise Bennington
Far beneath the high seas lie minerals with the potential to make someone millions. Sailing those same high seas are commercial entities eager to take advantage of what lies beneath. But with the high seas seabed (known as the ‘Area’)
declared “the common heritage of mankind” by the 1982 United Nations Convention on the Law of the Sea (Convention) – how can commercial entities take
advantage of these natural resources? The answer: through State sponsorship – and commercial entities can be sponsored by any State in the world, even a landlocked State with no direct access whatsoever to the world’s oceans.
With the Deepwater Horizon disaster (the BP oil spill) still reverberating around the world – and as the long-reaching implications of its fallout continue to make themselves known, the next question is how do we protect our oceans from disasters that may occur as a result of activities introduced in pristine and untouched seas by these same commercial entities? And if we can’t protect them completely, how do we ensure that when the damage is done, that someone takes responsibility for ensuring that it is rectified and that the environment is returned as far as is possible to its pre-tainted state?
These were the issues that were discussed in-depth (albeit in a very tightly constrained time frame) before the Seabed Disputes Chamber (Chamber) of the International Tribunal for the Law of the Sea (ITLOS) in September 2010. Over a four-day period, the seventeenth case to come before ITLOS heard 12 separate parties (Germany, the Netherlands, Argentina, Chile, Fiji, Mexico, Nauru, the UK, Russia, the International Seabed Authority, the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization, and the International Union for Conservation of Nature and Natural Resources (IUCN)) address the issue as to what were the responsibilities and obligations of States that sponsored persons and entities seeking to undertake activities in the Area. Appearing before the Chamber in Hamburg was Robert Makgill, an environmental lawyer whose firm, North South Environmental Law, has offices in Auckland and Queenstown; Makgill joined American environmental lawyers Cymie Payne and Donald Anton, arguing on behalf of intergovernmental agency IUCN for responsibilities and liabilities that would ensure that sponsoring States endeavoured to protect the “common heritage of mankind”.
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International Tribunal For The Law Of The Sea (Case No. 17): Written Statement of IUCN dated 19 August 2010
UC Berkeley Public Law Research Paper No. 1673587
Co-Authors
Cymie R. Payne - Lewis & Clark Law School
Donald K. Anton - Australian National University (ANU) - College of Law
Youna Lyons - National University of Singapore - Centre for International Law
The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea has been asked to give an Advisory Opinion regarding the responsibility and obligations of a State that sponsors persons or entities to undertake prospecting in the International Seabed Area; the extent of a State's liability for any failure to comply with relevant obligations by the sponsored person or entity; and the necessary and appropriate measures that the State must undertake to fulfill its responsibility.
This submission to the Chamber discusses the State's obligations of due diligence, the relevance of state responsibility, the need to ensure that there is not a gap in liability, and a number of measures called for by the Law of the Sea Convention and other relevant international law. The statement was prepared by four members of the IUCN - Commission on Environmental Law, Oceans Specialist Group.
Keywords:
Deep Seabed, Law of the Sea, Environmental Liability, Common Heritage of Mankind
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New Zealand Lawyer before International Law of the Sea Tribunal
NZ lawyer at Law of the Sea Tribunal, Law Talk, Page 12, Issue 758, 13 September 2010
Robert Makgill is to appear before the International Tribunal for the Law of the Sea in Hamburg in September to present oral submissions to the Seabed Disputes Chamber.
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A New Start for Fresh Water: Allocation and Property Rights
Lincoln Planning Review, Vol. 2, No. 1, pp. 5-10, 2010
The purpose of this article is to consider water allocation and property rights as presently governed under the Resource Management Act 1991 (RMA), canvass the key problems associated with the present regime and then discuss the manner in which these problems might be addressed in Phase Two of the amendments to the RMA.
The article addresses the following issues:
Allocation between competitors for water is presently determined by those first in time. This system of allocation does not enable an application for allocation to be refused on the basis that a later proposal meets higher environmental or economic standards. The government is signalling that the first-in first-served approach is to be replaced by a system that enables water to be allocated to its most valued uses. This looks likely to include a market based system for allocation.
Research has shown that a lack of flexibility over allocation and transfer has discouraged efficient water use. Irrigators, for example, are fearful that moving to more efficient forms of irrigation will result in the loss of water rights. This is because restrictions on the kinds of use, and location of use, make it difficult to use water for other purposes under existing consents. Restrictions over use and location similarly make it difficult to transfer water rights to other parties either in full or for short periods of time.
Work undertaken by successive government departments has indicated that greater flexibility and transferability of water rights would provide a strong financial incentive for greater efficiency. The government's New Start for Fresh Water (NSFW) strategy is largely silent on the issue of flexibility and transferability, but the government is committed to maximising the economic return from water. Considering this policy background and current recessionary environment it is likely that reforms to flexibility and transferability will be introduced in order to both encourage more efficient water use and stimulate new economic activity.
There is presently little detail on how any of the potential changes to water allocation and property rights might work. The Land and Water Forum and government's Technical Advisory Group (TAG) are to report to the government on this by July this year. It is unclear at this stage whether there will be an opportunity for public submissions prior to the report being delivered. This is because the Land and Water Forum is supposed to represent all key stakeholders. However, the NSFW does anticipate wide public consultation before major policy decisions are made. It is worth noting in this vein that the aquaculture TAG's initial report was open to public submission. In any case, there will be an opportunity for wider public submissions once any proposed legislative reforms reach the select committee stage.
