New Zealand Yearbook of International Law
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New Zealand Yearbook of International LawLast Updated: 27 January 2014
INTERNATIONAL ENVIRONMENTAL LAW
I. INTRODUCTION
In 2010, New Zealand's international environmental law actions largely
related to climate change. Formal notification of association
with the
Copenhagen Accord1 by New Zealand occurred in January and in April it
hosted the inaugural meeting of the Global Research Alliance on Agricultural
Greenhouse
Gas (GHG) emissions. In November, New Zealand adopted the Ambo
Declaration2 and in December, it attended the Sixteenth Conference of
the Parties (COP-16) to the United Nations Framework Convention on Climate
Change (UNFCCC),3 and the Sixth Meeting of the Parties to the Kyoto
Protocol4 (CMP-6) in Cancun. In Cancun New Zealand articulated
agendas on forestry calculations and fossil fuel subsidies and led the focus
on
measurement, reporting and verification (MRV). Other New Zealand international
environmental actions related to renewable energy,
bilateral Environmental
Cooperation Agreements (ECA), persistent organic pollutants and biodiversity.
New Zealand decided not to
become a Party to the Nagoya Protocol on Access and
Benefit Sharing,5 (finalised at COP-10 to the Convention on
Biological Diversity (CBD) in October 2010) when it opens for signature, owing
to unresolved
domestic policy issues. New Zealand was involved in minimal
regional activity, although it did refocus its Overseas Development Aid
Programme on the Pacific with respect to climate change, and announce intentions
toward sustainable forest management and illegal
logging cooperation with
Australia.
Domestically, developments in 2010 in New Zealand relevant to
international environmental law include: assessment of New Zealand's
progress
towards meeting its first commitment period Kyoto Protocol obligations,
projecting a surplus of 11.4m units or NZ$231m;
the entry of the Stationary
Energy, Industrial Processes and the Liquid Fossil Fuels sectors into the New
Zealand Emissions Trading
Scheme (NZ ETS); promulgation ofa number ofregulations
clarifying the detail ofthe NZ ETS; and the announcement that a review of
the NZ
ETS is to be undertaken, inter alia, to assess the current situation whereby the
aforementioned sectors' obligation will rise
to 100% with no price cap when the
transition period expires (in December 2012). Other 2010 national developments
include: changes
to the Environmental Protection Agency, now to be a Crown
Agent; steps toward sustainable management of fresh water; the
introduction of a Coastal Policy Statement; the announcement of a review of
the effectiveness and necessity of continuing with forestry
schemes outside of,
and predating, the NZ ETS; the launch of the 2010 Waste Strategy; amendments to
the Hazardous Substances and
New Organisms Act 1996; upgrades in protection
status of various species; and attempts to reduce New Zealand biodiversity
loss.
II. INTERNATIONAL DEVELOPMENTS
A. Climate Change
In late January 2010, New Zealand notified the
UNFCCC Secretariat that it wished to be associated with the Copenhagen Accord on
climate
change, and submitted to the UNFCCC its conditional greenhouse gas (GHG)
emission reduction target of between 10% and 20% below 1990
levels by
2020.6
As previously reported,7 New Zealand, which has an unusually high proportion of GHG emissions from agriculture, constituting about half of New Zealand's emissions, took a lead role in establishing a Global Research Alliance on Agricultural GHG. The overarching ambition of the Alliance is "to find ways to produce more food with fewer emissions"8 by working to boost international cooperation, collaboration and investment in both public and private research. Three research groups were established at its inaugural meeting in Wellington, New Zealand in April 2010. The Livestock Research Group looks at GHGs from ruminant and non-ruminant livestock systems and is co-coordinated by New Zealand and the Netherlands. The Croplands Research Group, coordinated by the United States, investigates ways to limit carbon and nitrogen losses to the atmosphere from crops and soils. The Paddy Rice Research group focuses on GHG emissions from paddy rice cultivation systems and is co-ordinated by Japan.9
In November 2010, New Zealand attended the Tarawa Climate Change Conference in Kiribati and adopted the resulting Ambo Declaration along with 11 other countries.10 This 18 point document calls upon parties to work together to fast track the pace of international negotiations within the UNFCCC and calls for an "urgent package" with concrete decisions to be agreed at the COP-16/CMP-6 in Cancun to "assist those in most vulnerable States on the frontline to respond to the challenges posed by the climate change crisis". It calls upon developed country parties to make new and additional financial resources available and grant those resources on a transparent basis to developing country parties, especially the aforementioned front line States, so they can "meet and address current and projected impacts of climate change".11
New Zealand participated in COP-16/CMP-6 and
related subsidiary body meetings in Cancun, Mexico, in late 2010. At the
President's
request13 New Zealand led the focus on mitigation,
including measurement, reporting and verification (MRV) during
COP-16/CMP-6.
New Zealand expressed concern about fossil fuel subsidies and
sought to create dialogue about their phase out. It noted the irony
of a great
deal of money being spent on subsidising fossil fuels every year, while detailed
instruments are simultaneously being
negotiated trying to minimise the
environmental cost of emissions.14
During negotiations, New
Zealand sought changes to the rules on forestry. Indeed, on 9 December, it
stated that its "emissions are
so sensitive to variations in forestry rules that
we cannot commit to a specific future target until they are clear."15
New Zealand sought "to be able to lock up emissions where wood is harvested but
used in products such as for buildings or furniture
— rather than have it
count as being consumed and its emissions released on felling" and it sought
"rules to allow forests
planted pre-1990 to be harvested and re-
planted in other parts of the country".16 The Minister
subsequently expressed disappointment about the lack of progress made in
relation to the "recognition of some wood products
as carbon sinks ... which
would have reduced New Zealand's international emissions
liability".17 New Zealand generally supports the Cancun Agreements,
reached on 11 December, but it seeks to further advance negotiations on
agriculture
and forestry in 2011.18
At the end of COP-16/CMP-6, on
12 December, New Zealander Adrian Macey was elected as Chair of the Kyoto
Protocol. He will chair key
negotiations after Cancun, in regards to future
emissions reduction commitments after 2012.19
B. Renewable Energy
As part of New Zealand's international treaty examination process, the
Commerce Select Committee examined the Statute of the International
Renewable
Energy Agency (IRENA)20, and reported back to the House in November
proposing that New Zealand accede to IRENA.21
In March, New
Zealand signed a Memorandum of Understanding on Cooperation in the Field of New
and Renewable Energy with Mexico to
facilitate bilateral collaboration on
renewable energy.22
C. Bilateral Environmental Cooperation Agreements (ECA)
These agreements generally seek to promote sound environmental policies and improve the respective capabilities of the parties. A New Zealand — Hong Kong, China ECA was signed in March. The New Zealand-Malaysia ECA entered into force in August.23
D. Persistent Organic Pollutants
In November the New Zealand Government agreed to make domestic regulatory changes to enable it to withdraw its notice of non-acceptance of the addition of nine new POPs to the Annexes of the Stockholm Convention on Persistent Organic Pollutants,24 made earlier in August. These domestic regulatory changes are expected to be in place and effective by mid 2011, at which point, New Zealand's notice of non-acceptance (which was essentially a matter of timing pending domestic regulatory changes) will be withdrawn.25
E. Biodiversity
New Zealand has accepted the need for urgent action on biodiversity given
that global biodiversity targets have not been met and the
world is moving
closer to some possible tipping points.26 It made some effort in 2010
at capacity building, for instance, in April, it hosted a workshop, convened
with the support of the
Convention on Biological Diversity (CBD)27
Secretariat, the Nature Conservancy and Global Island Partnership, on
extending regional invasive alien species management techniques
to other
regions. This "Helping Islands Adapt" workshop was focused on developing
Caribbean, Coral Triangle, Indian Ocean and Pacific
regional action plans.
Commitments made at the workshop were put in place and reported to the CBD's
Subsidiary Body on Scientific,
Technical and Technological Advice at its 14th
meeting in Nairobi in May.28
New Zealand has decided not to become
a Party to the Nagoya Protocol when it opens for signature. A Cabinet paper
outlines the reasons
for this decision.29 In brief, New Zealand will
not become a Party until it resolves or clarifies domestic policy issues
relating to a claim by New Zealand's
indigenous Maori (the Wai 262 Treaty
ofWaitangi claim, the outcome of which may have implications for genetic
resources approaches
in New Zealand), as well as
resolving uncertainty about the Protocol's application to certain sectors such as agriculture and health. The Cabinet paper also notes that New Zealand shares the understanding of other Antarctic Treaty claimants that Antarctic genetic resources are excluded from the Protocol's scope.30
A. Climate Change
New Zealand has refocused its Overseas Development Aid Programme on the Pacific, and is investing in climate change mitigation projects, for example "cyclone-resistant buildings in the Cook Islands, upgraded jetties in Vanuatu and solar power support for Tonga."31
B. Forestry
In 2010, Australia and New Zealand announced their intention to cooperate further with respect to regional practices on sustainable forest management and illegal logging.32
A. Climate Change
1. Emissions and Emissions Targets
In April 2010, New Zealand submitted its annual GHG inventory for the 2008
calendar year (the first year of the commitment period),
in accordance with
UNFCCC/Kyoto Protocol requirements.33
The Ministry for the
Environment also issued its Net Position Report 2010,34 which looks
across all industry sectors and provides projections of New Zealand's progress
towards meeting its Kyoto Protocol commitments.
It projected a surplus of 11.4m
units during the first commitment period, up from the 2009 projection of a 9.6m
unit surplus. At
the date of the 2010 report release, this represented a surplus
of NZ$231m (up from NZ$194m). This small improvement has been put
down to "lower
agricultural emissions from the ongoing impacts of drought in some regions" and
"updated figures on forest removals
due to improved information from the
Land
Wellington, 2010).
Use and Carbon Accounting System".35 The report estimates the
effect of the NZ ETS (after its modification in 2009), and suggests that without
it New Zealand would face
a deficit of 22m units or NZ$446m. The New Zealand
Minister for Climate Change Issues has stressed the importance of recognising
that "although New Zealand's net position is a surplus, this is not the
Government's position. Post-1989 foresters are eligible to
claim credits for
their trees and, as a consequence, the Government will face a substantial
deficit."36 The Minister has, moreover, admitted that "[t]he only
reason New Zealand is in surplus is because the growth of post-1989 forests
is
more than offsetting the 23% increase in gross emissions".37 New
Zealand's "emissions per person are among the highest in the world and are
growing at one of the fastest rates among developed
countries".38
Also related to emissions and emissions targets, in
2010 it was reported that 73% of New Zealand's electricity comes from renewable
sources. New Zealand's goal is 90% by 2025.39 Also related to
renewable energy, a Draft Energy Strategy and an accompanying Draft Energy
Efficiency and Conservation Strategy were
released in July 2010, promoting,
among other things, renewable energy, environmental responsibility and energy
efficiency. Finally,
the Biodiesel Grants scheme, introduced in 2009 to kick
start New Zealand's biodiesel production industry through Government grants
for
biodiesel and biodiesel blends meeting specified criteria, was extended in July
2010. Initially, the biodiesel blend sold had
to have less than 20% biodiesel to
ordinary diesel to be eligible. In 2010, eligibility was extended to blends up
to and including
100% biodiesel, in order to give an incentive to individuals
and businesses who are able to use higher level blends. It is anticipated
that
the change will increase New Zealand production and sales of biodiesel.
2. New Zealand Emissions Trading Scheme
The NZ ETS is designed to assist New Zealand in meeting its international climate change obligations. In general, the Crown's Kyoto Protocol liability is devolved to forest owners and various polluting sectors of the New Zealand economy. As in the Kyoto Protocol, there is a distinction between land upon which forests were established post-1989 and pre-1990 forests. Generally speaking, forest owners face emissions liability for deforestation (with a few exemptions). To support the pre-1990 forestry sector, there is a limited allocation of free New Zealand Units (NZUs). An NZU represents one metric tonne of CO2 or CO2 equivalent emissions.40 Some (post-1989)
owners of forests which absorb GHGs are entitled to receive NZUs; they earn
these at the rate of one NZU for each tonne of CO2 or CO2
equivalent removed from the atmosphere and stored in the forest, which they can
then sell. Domestic emitters in a wide variety of
sectors of the economy, such
as industrial processes, must monitor and report on their activities (in a
manner comparable to the
New Zealand tax system) and surrender one emission unit
for each tonne of GHG emissions that the participant is responsible for (though
this is not fully implemented at present). Emitting participants must therefore
purchase NZUs to cover their emissions, over and
above any allocated free
allowance, of the six GHGs covered by the Kyoto Protocol. The idea is that the
cost associated with such
purchase acts as a disincentive to emit, and leads to
emissions reductions that would not otherwise occur. However, the NZ ETS's
effectiveness is probably mitigated by the fact that certain sectors presently
need only surrender one unit for every two tonnes
of GHG emissions (until
December 2012), and the fact that there are free allocations of NZUs by the
government to some participants,
meaning that those participants will have to
purchase fewer emission units, and thus the incentive to lower emissions is
reduced.
Moreover, agricultural emissions, which make up approximately half of
New Zealand's emissions, are excluded from the NZ ETS until
2015 (although
monitoring and reporting obligations start sooner). Waste and synthetic gas
sectors enter the scheme in 2013, although
again monitoring and reporting
obligations begin earlier.
In 2010 the Stationary Energy, Industrial
Processes and the Liquid Fossil Fuels sectors entered the NZ ETS. Participants
in these
sectors became subject to mandatory reporting requirements from 1
January. From 1 July they entered the scheme on a "half-obligation
basis". This
half-obligation (where emitters carrying out certain activities must pay for
their emissions at NZ$12.50 per tonne,
half what they were to pay before the
2009 review of the NZ ETS) will continue for the duration of the transitional
period ( July
2010 to December 2012), after which time, as things currently
stand, they will acquire the full obligation. Free allocations of NZUs
exist for
businesses where the cost of the NZ ETS exceeds 1% and 2% of gross turnover (1%
receive a 60% allocation of units, whilst
2% receive a 90% allocation) and who
are trade-exposed industries (in competition with an overseas firm and with
inability to pass
on costs to consumers). The Climate Change (Eligible
Industrial Activities) Regulations 2010 set out a number of the industrial
activities
eligible for a free allocation of NZUs and the level of allocation
they attract.41 Lower emissions-intensive activities will receive
less assistance than higher emissions-intensive activities. This assistance will
phase out over time.
From July 2010 until December 2012, the fisheries sector is allocated free
NZUs (equivalent to 90% of 2005 emissions) to cover increases
in fuel costs. The
Government is assessing the eligibility of other activities for free allocations
of NZUs.
Forestry entered the NZ ETS in 2008, and in 2010, there were
suggestions that the NZ ETS has managed to switch the balance from deforestation
to afforestation.42 In general, persons or entities planting trees to
absorb CO2 receive $25 per tonne.43 There are exemptions
from liability for deforestation, for instance, those relating to tree weeds and
for those owning less than
50 hectares of pre-1990 forest (which had to be
applied for by 1 July 2010). For pre-1990 forests limited free allocations of
NZUs
exist.44 The first set of final allocations of NZUs made to
pre-1990 forest landowners was released in December 2010. Of the 66 separate
allocations
made, only 13 landowners received over 10,000 NZUs.45 For
the post-1989 forestry sector, those eligible to become NZ ETS participants had
to apply by 1 January 2010 to receive NZUs for
GHG removals (occurring after
1
January 2008).
Climate change regulations promulgated in 2010 included,
variously, those setting the method for calculating emissions from disposal
facilities46 and certain agricultural activities,47
amending requirements for the collection of information and the calculation of
emissions,48 setting plans for allocating NZUs for
fishing,49 regulations relating to tree weed exemptions50
and extending the operation of previous regulations to new
activities.51
In December, a panel to review the ETS by the end of
2011, as required under the Climate Change Response Act 2002, was appointed.
Among other things, the review will examine how the NZ ETS should evolve beyond
the transitional period in which there is a cap at
NZ$25 per tonne and the issue
of transport, stationary energy and industrial sectors only having to pay for
one in two tonnes of
emissions. As things stand, these sectors' obligation will
rise to 100% with no price cap after December
2012.52
B. Environmental Protection Authority
As previously reported,53 New Zealand established an Environmental
Protection Authority (EPA) in 2009 as a transitional authority, housed within
the Ministry
for the Environment. In June 2010, the government announced the
establishment of a new EPA as a Crown agent (accountable to the Minister
for the
Environment). EPA functions will include those of the existing Environmental
Risk Management Authority (ERMA) as well as
responsibility for the regulatory
functions of national consents under the Resource Management Act 1991; the
Hazardous Substances
and New Organisms Act 1996; the Ozone Protection Act 1996;
the Climate Change Response Act 2002 (including administration ofthe NZ
ETS);
the Stockholm, Rotterdam,54 Basel55 and Waigani
Conventions56 and the Cartagena Protocol on Biosafety57;
the Antarctic (Environmental Protection) Act 1984; and it will be responsible
for the proposed stronger regulation of New Zealand's
Exclusive Economic Zone
(EEZ), which aims for "world best environmental protection" of the
EEZ.58
The Environmental Protection Authority Bill
201059 was introduced to the House on 16 November 2010 and passed its
first reading unanimously on 24 November 2010. It was then referred
to the Local
Government and Environment Select Committee which received submissions on it.
The Explanatory Note to the Bill makes
clear that the EPA is intended to "more
effectively, efficiently and transparently manage the regulation of New
Zealand's environment
and natural and physical resources" by:60
creating a national-level regulatory-focused agency that can contribute to providing greater central government direction on the regulation of the environment, consolidate regulatory and technical skills, and achieve efficiency gains by bringing together similar environmental regulatory functions and powers.
In relation to its functions it will also "contribute to, and co-operate
with, international forums and carry out international
obligations".61 The new EPA is expected to operate from July 2011 and
it is anticipated that it will receive infrastructure applications of more
than
$6 billion by the end
of 2011.62
C. Fresh Water Management
The New Zealand government has acknowledged that it has historically been lax in its water management strategies, largely owing to the country's plentiful supply of fresh water.63 Water allocation for uses such as irrigation, domestic use and for manufacturing has nearly doubled between 1999 and 2010.64 New Zealand has begun to take steps toward sustainable management of fresh water, particularly in terms of beginning to measure water takes, since "[w]e can't manage what we don't measure".65 New rules under the Resource Management (Measurement and Reporting of Water Takes) Regulations 2010 (SR 2010/267) require that significant water takes be measured and reported in order to provide more accurate water use information.
D. Coastal Policy
A New Zealand Coastal Policy Statement was released in 2010. It acknowledged the importance of coastal areas in respect of natural, social, cultural and economic values. In particular it recognised inter alia the risks of climate change and the need to respond accordingly, the potential for renewable energy, and the need for a precautionary approach to coastal ecosystems and habitat.66
E. Forestry
On 10 December 2010 a review of the effectiveness ofschemes encouraging the planting of new forests predating the NZ ETS was announced in light of the fact that the latter also encourages new planting. The Permanent Forest Sink Initiative (which encourages establishment of permanent forests on previously unforested land), Afforestation Grant Scheme (which aims to promote the establishment of new forests through subsidies) and the Hill Country Erosion Programme (which encourages protection of highly erodable land) are included in the review.67
F. Waste Management
October saw the launch of the 2010 Waste Strategy,68 which emphasises the harmful effects of waste and the need to recover economic value. A Waste Minimisation Fund (WMF) had been established earlier in March, resulting in requests totalling NZ$55m versus available funds of NZ$6m. In October, allocations from the WMF were made for processing electronic waste and establishing new e-waste facilities. Waste management strategies have been applied to farms and city councils.69
G. Hazardous Substances and New Organisms
New Zealand legislation restricts the import, development, field testing or
release of any new organism, and the import or manufacture
of hazardous
substances, otherwise than in accordance with an approval from the ERMA which
assesses and decides on applications to
introduce new organisms or hazardous
substances into New Zealand. The Hazardous Substances and New Organisms
Amendment Act 2010 was
introduced in 2010 to try to ensure that the policy
intent of the principal Act is more efficiently achieved with minimum compliance
costs.
In April, the Supreme Court, in regard to an appeal against a decision
of the ERMA, agreed to preserve the confidentiality of commercially
sensitive
information (regarding the veterinary drench in question) but held that "[t]he
Authority must, however, disclose such confidential
information if a fair and
appropriate hearing, consistent with the scheme and purpose of the Act and the
principles of natural justice,
so requires."70
H. Biodiversity
In June, the Minister of Conservation announced upgraded protection status under the Wildlife Act 1953 for 12 previously unprotected invertebrate species including absolute protection for whale sharks, katipo spiders and giant weta. Giant groper, manta rays and coral also had their protection status upgraded. In addition, regulations introducing the absolute protection
in New Zealand fisheries waters of the Convention on International Trade in
Endangered Species of Wild Fauna and Flora71-protected Basking Shark
were introduced in 2010.72
The Government is working on a
Biodiversity National Policy Statement which, together with a new Quality
Planning Guidance Note on
Indigenous Biodiversity, aims to strengthen the
Resource Management Act's contributions to halting New Zealand biodiversity
decline.73 Once in effect, the proposed NPS will require, within 5
years, the identification of significant biodiversity in district and regional
plans.
Since much biodiversity is found on private land, in 2010, the Inland
Revenue Department began considering tax deductions as an incentive
for farmers
who carry out biodiversity conservation.74
Geoffrey Leane, Josephine Toop University of Canterbury
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URL: http://www.nzlii.org/nz/journals/NZYbkIntLaw/2010/12.html