Address on Sustainable Development
1.
SUSTAINABLE DEVELOPMENT IN NEW ZEALAND
A Paper presented by Justice Peter Salmon
to the Auckland Branch
Resource Management Law Association
Introduction
I am, of course, deeply honoured to have an annual lecture named after me and to have been asked to give the Inaugural Lecture. I hope that it will not also be the last. I hope too, assuming it is not the last, that every year when this Lecture is given people will say, “Well that lecture was even better than last years” because in that way on-going success will be ensured.
I want to talk about sustainable development with particular reference to a Global Judges’ Symposium on that topic, which I attended in Johannesburg a short time ago. It was a precursor to the Global Summit. I was asked to go at quite short notice. Self interest being what it is, and it is perhaps the greatest enemy of sustainable development, I immediately thought well I can combine that with a long held wish to visit a game park and so I did, and it was most enjoyable. And perhaps not incidentally, game parks provide a very good example of sustainable development and of eco-tourism. In a world where there is a constant demand for land for development, strong nationally profitable game parks provide an excellent means to preserve animal species. The symposium was a most interesting event. Judges, and many of them Chief Justices, from around the world, mostly from developing nations, spoke of the problems of their countries. The conference was hosted by Judges of South Africa’s highest Court, the Constitutional Court. The insight they gave into their hopes for the future and of the problems they continue to face was inspiring.
You may wonder what High Court Judges have to do with sustainable development, and I certainly wondered that when I was first invited to attend the symposium. That is a topic that I will come back to a little later in this address. First, I want to remind you why it is that sustainable development is so important.
The Importance of Sustainable Development
First some definitions. The most commonly used definition is one from the Brundtland Report:
“Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”
The word “needs” is important and has generally been defined as referring to the basic needs of human beings, such as housing, food, clean water and so on. That reference to needs can be contrasted with the definition of sustainable management in the Resource Management Act which refers to people in communities being enabled to provide for their social, economic and cultural well being and for their health and safety. That is obviously a much more expansive concept than needs.
The two core concepts of the Brundtland definition are intra generational equity (between rich and poor) and inter generational equity (between present and future generations). Those two concepts have been widely embraced both internationally and nationally. Most definitions of sustainable development reflect this dual goal of intra and inter generational justice and the means of integrating environmental, social and economic policies. For example, Judge Weeramantry, Vice President, International Court of Justice and one of the world’s leading jurists has said:
“In the first place what is sustainable development? It represents a delicate balancing of competing interests. It represents the balance between the concept of development and the concept of environmental protection. The concept of development is a human right. There is no room any longer for denying it this legal status. The concept of environmental protection is likewise a very important foundation of various human rights, such as the right to life, the right to an adequate standard of living and the right to health.”
So what is the significance of sustainable development? Arguably it is that it is the only meaningful cure to the problems that face the world. Let me give you a few statistics from a recent special edition of Time Magazine. Up to a third of the world is in danger of starving. Two billion people lack reliable access to safe nutritious food and 800 million of them, including 300 million children are chronically malnourished. Only 2.5 per cent of the world’s water is fresh and only a fraction of that is accessible. At present 1.1 billion people lack access to clean drinking water and more than 2.4 billion lack adequate sanitation. UN Secretary-General Kofi Annan has said that by 2025 two-thirds of the world’s population may be living in countries that face serious water shortages. About 2.5 billion people have no access to modern energy services. The power demands of developing economies are expected to grow 2.5 per cent per year. If these demands are met by burning fossil fuels such as oil, coal and gas more and more carbon dioxide and other greenhouse gases will be produced which, if the weight of scientific opinion is correct, will promote more global warming, which could lead to rising seas, fiercer storms, severe droughts and other climatic disruptions. Already heavy air pollution is caused in many places by the combustion of wood and fossil fuels. There have been recent reports of a haze across all of southern Asia, estimated to be three kilometres thick and thought to be responsible for hundreds of thousands of deaths a year from respiratory diseases. World-wide more than 11,000 species of animals and plants are known to be threatened with extinction. About a third of all coral reefs are expected to vanish in the next 30 years and about 15 million hectares of forest are being razed annually. Currently the amount of crops, animals and other bio matter we extract from the earth each year exceeds what the planet can replace by an estimated 20 per cent. Unfortunately, there are no lenders available to make up the deficit, nor is this a debt that can be paid back in the future. The only answer to this kind of spending is to ensure that there is no deficit and that is the goal of sustainable development.
It is easy for these problems to be masked in New Zealand because our small population means that we still have large reserves. But let us not be complacent. Consider the loss of our soils through erosion. A recent report placed it as one of the highest in the world. Consider the continuing pollution of our waterways through agricultural and industrial discharges. A recent graphic example was given in an article in a national magazine. The Waikare Inlet in the Bay of Islands was home to a number of very successful oyster farms. However, of the 25 oyster beds, 21 have been closed and are in varying stages of decay. This is because of problems arising from pollution in the Waikare Inlet, largely it seems as a result of sewage pollution. Businesses built up over years are destroyed. Valuable export opportunities are lost.
Dairy farms have been identified as a major source of pollution of streams and rivers. People have known about this for years and the answers to it are well known as well. Unfortunately, very little has been done, even though Councils clearly have the ability to exercise the appropriate control in terms of the Resource Management Act. Other areas of concern in this country include the use of non-renewable resources for the generation of electricity and the pollution levels in our major cities on days when there is not sufficient wind to blow the pollution out to sea.
It does not require very much imagination to realise that sustainable development is not an optional extra. The gross problems that face such a large proportion of the world’s population cannot be overcome unless sustainable development becomes a reality rather than a comforting platitude.
I recently watched a programme on television which described a poor country which relied on a staple crop as its food source, but produced another valuable food crop which it exported. The food source was affected by a plant disease and failed, threatening mass starvation. One of the leaders of the country proposed that the export food crop should be used for feeding the people of the country. Pressure was brought to bear against this on the grounds that it was undesirable to interfere with free trade and the export process.
That may sound to you like a description of some of the problems which concern those who oppose untrammelled world free trade. In fact the programme was a history of Britain. The country was Ireland and the event was the Potato Famine of 130 years ago when one-third of the population died from starvation.
I mention this to show that the problem is not new. What is new is the increasing acceptance by scientists and thinkers around the world that there is now a deficit in world terms and no lender is available to make it up. The urgency of the problem cannot be emphasised too strongly. If we, as individuals, and as a nation, are really serious about addressing the problems of starvation and lack of basic resources that beset so much of the world, we really must get serious about sustainable development.
It is apparent that up until now nations have not met the commitments which were entered into at Rio. In a paper prepared by the Secretary-General of the United Nations for the recent Summit in Johannesburg, he emphasised that the concept of sustainable development is meant to reflect the inextricable connection between environment and development. That sustainable development must simultaneously serve economic, social and environmental objectives. But he noted that the declarations and agreements of Rio and the policies and programmes that have followed have fallen far short of that level of integration and decision making. He said that no major changes have occurred since Rio in the unsustainable patterns of consumption and production which are putting the natural life support system at peril. He said there is a lack of mutually coherent policies or approaches in the areas of finance, trade, investment, technology and sustainable development and that the financial resources for implementing Agenda 21 have not been forthcoming.
It will be apparent from what I have said so far, that sustainable development is much more than the sustainable management of resources referred to in our Resource Management Act. Apart from matters of definition, the former involves economic management. It involves foreign policy. It involves a vision of the whole world as inter dependent. It involves an acceptance of John Donne’s famous words that “no man is an island”.
Professor Klaus Bosselmann of Auckland University has thought deeply on this topic. He emphasises the ethical basis of sustainable development and its relationship to the ethical concept of justice and notes that the ethical message underlying both justice and sustainability is widely accepted today as shaping and sustaining society. He is, of course, not alone in stressing those issues.
Dr Aldo Leopold has said:
“An ethic, ecologically, is a limitation of action in the struggle for existence … all ethics so far evolved rest upon a single premise: that the individual is a member of a community of inter dependent parts.”
Bosselmann makes the point that just as justice is a concept towards which our laws aspire, and which our laws seek to embrace, so too sustainable development is a concept which should inform law making. This is an important insight. It is not really possible to pass a law ensuring sustainable development, just as it is not possible to pass a law ensuring justice. Both are ethical concepts. The importance of justice for all and equality before the law is not just a norm of our legal system, it is a norm of the ethical construct which binds us together as a society. But it is not self-evident. It is a concept which in its present form has been developed over many centuries, until just in the latter part of the last century it became accepted as part of international law and a right for every citizen of this planet.
But justice is given effect to by a multitude of individual laws. It informs law making. So too with sustainable development. The concept has achieved a large measure of international acceptance. It is an ethic of society, just as is justice. It too should inform the legislative process and the relationship of human beings and organisations with each other. The concept of sustainable development requires major structural reforms in the areas of policy design, administration, business management, production and consumption, education and public awareness.
As speakers at the recent Global Judges’ Symposium pointed out, there are a number of impediments in traditional legal systems to the acceptance of some important rights and humanitarian concepts. The first is that only the living generation have rights under the law and most current legal systems concentrate exclusively on the rights of those who are living now. Secondly, most modern law tends to give only human beings recognisable rights. Obviously there are some exceptions to this. But as a general proposition that is so. Thirdly, modern law tends to concentrate on the rights of individuals.
Interestingly enough, these are all areas where we can learn from the philosophies of traditional wisdom. Indeed, even in this country, in each of those areas I have mentioned, traditional Maori wisdom takes a different view and one that is significant in terms of sustainable development.
Other speakers referred to the need for Judges and lawyers to be familiar with law at the junction between development necessary for the well being of people, and the need to protect the environment, and the interest of present and future generations. In this regard it is important to be open to legal developments in other countries.
Professor Nicholas Robinson, the chair of the Commission on Environmental Law of the IUCN said that Courts can have a profound influence on attaining sustainable development since judicial decisions ultimately shape the views held by future generations as to normative behaviour. The lawyers amongst you will be able to think of numerous examples of this, particularly in such areas as negligence and the duty of care. Judges must envision the long-term implications of their immediate decisions. The lawyers who appear before them should also be conscious of that need. Judges seek to apply basic principles in order to decide disputes that recur over the years with consistency to achieve fairness and justice. In the context of environmental law the Courts are applying a jurisprudence which has emerged to guide human relations with nature itself. Professor Robinson referred to specific environmental principles such as the precautionary principle and the polluter pays principle. These are recognised in our environmental law and in particular, our Resource Management Act. What lawyers and Judges need to do is to see these principles and indeed, the whole of our environmental law, as a part of the concept of sustainable development, just as other principles and rights are a part of the concept of justice.
By putting these disparate elements into the context of sustainable development they acquire meaning. They can be seen as part of a continuum, and as part of an organic whole.
Over the last few years many countries have developed and adopted national sustainability strategies. New Zealand has fallen behind this international trend, especially within the OECD. New Zealand was one of the world’s first countries to adopt a principled approach to environmental legislation with the enactment of the Resource Management Act. But since then little has been done to build on that and develop a national strategy for sustainable development. The Parliamentary Commissioner for the Environment in his review of the progress of sustainable development in New Zealand says that in this country sustainable development has not progressed in a co-ordinated and meaningful fashion. His report concludes that sustainability is achieved when organisations, businesses, communities and individuals all take responsibility for the resources they use, the energy they consume, the waste they produce and the impacts they may have on bio diversity. Values, cultural and ethical frameworks are critical to the implementation of sustainable development.
Fortunately, the present government has now accepted that sustainable development principles should underpin its economic, social and environmental policies at home and abroad. In a brief report prepared by the Ministry for the Environment after the Johannesburg Conference the government view is noted that sustainable development integrates concern for social, economic and environmental issues and involves thinking broadly about objectives, considering long-term as well as short-term effects, assessing indirect as well as direct effects, and taking extra care when change brought about by development might be irreversible. The intra generational and inter generational aspects are acknowledged.
Work continues on the development of a national policy. There is no reason, given what has been done so far, why New Zealand should not regain its position as a leader in this area.