учебный год 2023 / Evolution, Adaptation, And Invention - Property Rights In Natural Resources In A Changing World

discharge waste into. Again such rights have been subject to limitations mainly located in the law of torts (e.g., nuisance; the doctrine of Rylands v Fletcher),28 and also progressively restricted by legislation.29

4.3Air

Air has been treated in a similar way to water as a ‘free resource and “free sink” for waste products. It has been protected to a limited extent through the law of torts and, more recently, through clean air legislation.30

4.4Forests

Standing timber has historically been the property of the surface landowner. In New Zealand, the importance of forests for soil and water conservation, and even atmospheric quality, was recognized in legislation as early as 1874.31 Thus, forestry activity has long been subject to various common law limitations including the law of torts, obligations of support and the doctrine of waste. In more recent times, forestry activities on both public and private land has increasingly been subject to limitations through planning and resource management legislation and specific forestry measures.

4.5Fisheries

Fisheries were traditionally considered a common property resource to which the “rule of capture”32 applied. In the sea, fish caught lawfully would become the fisher’s property upon being hooked, netted or harpooned.33 In inland waters where the bed of the water body was privately owned, access to the resource would be limited by the law of trespass. If the fisher had legal access to the water body, he or she could take any caught fish as property.

In more recent times, extensive limitations have been imposed by fisheries legislation which, through the application of international agreements, has extraterritorial application within the area of the 200 nautical mile exclusive

28Rylands v Fletcher [1868] LR 3 HL 330.

29The Crown’s control over the right of access to natural water as asserted in s 21 of the Water and Soil Conservation Act 1991, is continued under s 354(1)(b) of the RMA, and is now largely exercised by regional councils through plans and rules prepared under the RMA.

30In New Zealand this was the Clean Air Act 1972 (NZ), now subsumed under the

RMA.

31The preamble to the Forests Act 1874 (NZ), which established state forests in New Zealand, states: “[w]hereas it is expedient to make provision for preserving the soil and climate by tree planting. . . .”

32See supra note 19.

33For an illuminating account of the rule of capture in relation to 19th century whaling, see Herman Melville, Moby Dick (New York: Harper and Brothers, 1851), ch. 89.

economic zone (EEZ) of New Zealand that lies beyond the 12 nautical mile territorial sea.34 Extensive regulation also applies to aquaculture and freshwater fisheries activities.35

4.6Maori customary rights

In Ngati Apa v Attorney-General,36 the Court of Appeal held that Maori customary rights to the foreshore and seabed continued to exist in law despite various legislative measures that purported to vest these areas in the Crown, or give the Crown jurisdiction over parts of it.37 Legislation subsequently specifically vested the foreshore and seabed in the Crown, while at the same time creating a process for recognition and protection of Maori customary rights short of full fee simple ownership.38

4.7General town planning and water and soil conservation measures

General planning and natural resource legislation restricting property rights has been around for some time, with the first comprehensive Town Planning Act passed in New Zealand in 1926.39 The 1941 Soil Conservation and Rivers Control Act addressed land erosion and sedimentation of rivers. Although mostly concerned with remedial works and incentives, the measure did involve some consequential limitation on rural landowners’ use of their land. The 1967 Water and Soil Conservation Act applied a stricter regime to the taking and use of natural water, vesting control in the state through a permitting system. This Act

34The United Nations Convention on the Law of the Sea (hereinafter “UNCLOS”) 1982 was ratified by New Zealand on July 19, 1996, and it came into effect a month later. The extent of New Zealand’s EEZ is set out in the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977 (NZ), s 9.

35Fisheries Act 1983 (NZ), Part 4A; Fisheries Act 1996 (NZ), Parts 9 and 9A; Aquaculture Reform (Repeals and Transitional Provisions) Act 2004 (NZ); RMA, Part 7A.

36[2003] 3 NZLR 643 (CA).

37Including the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977; Foreshore and Seabed Endowment Revesting Act 1991 (NZ), Harbours Act 1950 (NZ), and the RMA.

38Foreshore and Seabed Act 2004 (NZ). For commentary on the events leading up to this measure, see David Grinlinton, “Private Property Rights versus Public Access: The Foreshore and Seabed Debate,” New Zealand Journal of Environmental Law 7 (2003):313; Frederic M. (Jock) Bookfield, “Māori Customary Title to Foreshore and Seabed,” New Zealand Law Journal (2003):295. See also Richard Boast, Foreshore and Seabed (Wellington: LexisNexis, 2005), esp. ch. 8–11; Claire Charters and Andrew Erueti, eds., Maori Property Rights and the Foreshore and Seabed: The Last Frontier (Wellington: Victoria University Press, 2007). The Foreshore and Seabed Act is currently undergoing government review and is likely to be repealed and replaced with a new regime later this year (see infra note 78).

39Town Planning Act 1926 (NZ), followed by the Town and Country Planning Acts of 1953 and 1977 (NZ).

severely restricted landowners from using, damming, or diverting natural water in rivers, streams, and lakes except for limited domestic purposes. Clean air and noise control legislation was introduced in 1972 and 1982 respectively.40

Today, most of these planning, soil and water, clean-air, and noise-control measures are incorporated under the 1991 Resource Management Act (RMA), which will now be considered.

5. Property rights and the Resource Management Act 1991

The RMA was an attempt to bring the management of land, air, and water under one integrated regime. While the management of a number of natural resources remains outside the RMA,41 it is the core environmental and resource management statute and generally has application to the environmental externalities of most activities affecting land, air, and water, including coastal water.42

5.1The approach of the Courts to the RMA and property rights

In Falkner v Gisborne District Council43 the court established the supremacy of the RMA over common law. The case concerned the issue of whether the common-law right of landowners to protect their land from the inroads of the sea was subject to the coastal management regime under the RMA. Justice Ian Barker stated:

The [Resource Management Act 1991] prescribes a comprehensive, interrelated system of rules, plans, policy statements and procedures, all guided by the touchstone of sustainable management of resources. The whole thrust of the regime is the regulation and control of the use of land, sea, and air. . . .

[W]here pre-existing common law rights are inconsistent with the [RMA’s] scheme, those rights will no longer be applicable.44

40Clean Air Act 1972; Noise Control Act 1982 (NZ).

41For example, allocation of mining permits under the CMA; allocation of fisheries rights under the Fisheries Act 1991 (NZ); to some extent, the management of the forestry estate and indigenous forests under the Forests Act 1949 (NZ) and the Conservation Act 1987 (NZ); management of certain activities within national parks and reserves under their respective acts and the Conservation Act 1987.

42On the history and theoretical underpinnings of the RMA reform process, see David Grinlinton, “Natural Resources Law Reform in New Zealand – Integrating Law, Policy and Sustainability,” Australasian Journal of Natural Resources Law & Policy 2 (1995):1; Klaus Bosselmann and David Grinlinton, eds., Environmental Law for a Sustainable Society (Auckland: NZCEL, 2002), 19–46. For general reference on the RMA, see Derek Nolan, ed.,

Environmental and Resource Management Law, 3rd ed. (Wellington: LexisNexis, 2005).

43[1995] 3 NZLR 622.

44[1995] 3 NZLR 622, 632.

Coleman v Kingston45 concerned whether the holder of a legal easement required a resource consent to construct an access way over the easement. In holding in the affirmative, Justice Grant Hammond stated:

[25] This is not the first occasion on which suggested conflicts between the Property Law Act 1952 and the Resource Management Act have arisen. Doubtless, this is fundamentally because persons possessed of traditional ownership rights regard with concern any interference with what they consider the fullest measure of the incidents attaching to those ownership rights. What the legislature did in the Resource Management Act was to add an overlaying tier of concerns with respect to environmental issues. . . .

[28] The Resource Management Act floats, rather like oil on water, across the top of ownership rights without affecting the underlying substance. . . .

Wheeler Forrest Associates Ltd v Farquhar46 considered the relationship between the 1952 Land Transfer Act (LTA) and the RMA regime, and whether the wide powers implied into a water easement by the LTA were overridden by the restrictions on water use in the RMA.47 Justice Lester Chisholm concluded that there was no conflict between the respective provisions, provided the daily extraction of water did not exceed that allowed under the water permit. He did observe that, in cases where reconciliation was not possible:

To the extent that a water easement does not comply with the Resource Management Act it will remain ineffective until the necessary consents have been obtained under that Act.48

These cases illustrate the tension between the traditional approach to property rights in land and the need to accommodate environmental constraints imposed through statutes such as the RMA.

5.2Specific statutory provisions limiting property rights under the RMA

While the traditional principle of free use of land by a landowner – subject to regulatory control and general law restrictions such as the torts of nuisance, negligence, and trespass – remains largely intact,49 there are now greater limitations on the exercise of property rights in respect to land.

45High Court, Auckland (AP 103-SW00), April 3, 2001, noted Butterworths Resource Management Bulletin 4 (2001):59.

46[2001] 2 NZLR 417.

47RMA, s 14.

48[2001] 2 NZLR 417, para [18].

49RMA, ss 9(1) and (3). The effect of these provisions is that you can use your land as you wish unless there is a rule in a plan preventing that use, in which case you will require a resource consent.

Most land uses are controlled through rules in district plans. Furthermore, riparian rights to the foreshore, the bed of the sea, the beds of lakes and rivers are significantly curtailed under the RMA.50

The traditional rights of landowners cujus est solum . . .51 are significantly reduced today. Air emissions are closely controlled52 and under the 1991 Crown Minerals Act (CMA) (and preceding minerals legislation), the Crown owns most minerals where mineral permits have not yet been granted.53

Other RMA restrictions on the traditional rights of surface landowners include:

•The restrictions of discharges of contaminants on to land;54

•Compulsory takings of land for provision of public services by public and private “network utility operators;”55

•Potential liability of a present landowner for historic pollution;56 extensive rights of entry on to land for collecting and seizing evidence for prosecutions.57

The traditional principle that water, in its natural state, is incapable of ownership,58 remains intact under the RMA. Control of water remains with the Crown, but is largely exercised by regional councils through regional plans and the resource consent procedure. However, in terms of usage rights, the reverse approach to land use applies; that is, no one can take or use water,59 or discharge contaminants into water,60 unless allowed by a rule in a plan or by a resource consent obtained for that use. There are some exemptions for use of water for domestic purposes and for watering stock.61

Similarly with air, the traditional principle that air is a free “sink” for waste emissions is curtailed for industrial activities,62 but survives (albeit severely curtailed in practice) for nonindustrial activities.63

50RMA, ss 9(6),(7), 12, and 13. The common law right to protect land from the inroads of the sea is also abrogated by the RMA. See Falkner, 3 NZLR 622.

51From the common law maxim, Cujus est solum, eju est usque ad coelum et ad inferos

(the owner of land owns everything above and below it to an indefinite extent).

52RMA, s 15.

53CMA, ss 10, 11.

54RMA, s 15(1)(d), (2).

55Ibid., ss 166–186.

56Ibid., ss 314(1)(da), 322(1)(b)(ii), 338(1)(b) and (c).

57Ibid., ss 332–335.

58Supra note 27.

59RMA, s 14.

60Ibid., s 15. There is an extensive definition of “contaminant” in s 2(1), RMA.

61Ibid., s 14(3)(b).

62Ibid., s 15(1)(c).

63Ibid., s 15(2). District planning rules largely restrict the use of open fires in most residential areas in New Zealand.

To summarize, traditional rights of the use of private property remain largely intact in respect of land with the notable exception of riparian rights. Conversely, water and air are no longer considered free resources or sinks for waste, but rather public property, which, for most purposes, a private landowner cannot use, or discharge contaminants into, without express authorization under the RMA.

6. Other statutory measures modifying property rights in natural resources

Many modern statutes directly or indirectly impact property rights. In New Zealand, recent measures concerning the major economic resources of minerals, fisheries, and forestry are of particular importance, and reflect the approach in other similar common law jurisdictions.

6.1Minerals

New Zealand landowners have very few rights to minerals under their land. The Crown Minerals Act 1991 (CMA) applied a permitting and access regime to Crown-owned minerals. All gold, silver, petroleum, and uranium are Crown owned, as are any other minerals that have been progressively reserved to the Crown in original land grants, or by provisions in successive land and minerals legislation since 1892.64 Thus landowners in most cases do not own the minerals under their land, and must seek a permit to prospect, explore for, or mine such minerals.65 Miners who do not own the surface estate must negotiate “access arrangements” – easements – to gain access to the mineral deposits.66 All mineral activities, whether relating to Crown-owned minerals or privately owned minerals are subject to the RMA regime and relevant land, water, and discharge permits must be obtained for the environmental externalities of mining activities.67

The CMA was initially intended to be a part of the RMA, but was excised and enacted as a separate statute because the government considered that minerals allocation could not easily be subjected to the “sustainable management”

64The Land Act 1892 (NZ), s 121. Successive mining legislation including the Mining Act 1971 (NZ), s 8, and the CMA, s 11, prospectively reserve minerals to the Crown. What is actually reserved will depend upon the meaning of “minerals” at the time of the reservation, or in terms of the applicable statutory reservation provision.

65CMA, ss 8 (1)(a), 22–29.

66Ibid., ss 8(1)(b), 49–54.

67Gebbie v Banks Peninsula District Council [2000] NZRMA 553.

principle of the RMA.68 The structure of the CMA is similar to the RMA, with an identical enforcement and offences regime. Permits have some property characteristics as they can be transferred, inherited, and used as security, which will be further discussed later in this chapter.

6.2Fisheries

The 1996 Fisheries Act continued the quota management scheme (QMS) that had been introduced into the prior fisheries legislation in 1986. Pursuant to New Zealand’s ratification of the United Nations Convention on the Law of the Sea, the government controls access to fisheries within the 200-mile EEZ.69 The QMS allocates quota rights in certain species to fishers. The right called an ‘individual transferable quota’ (ITQ), entitles the holder to a certain proportion of a fish stock from the total allowable commercial catch (TACC) set by the Minister of Fisheries every year for that particular species. The fisheries regime is subject to a sustainable utilization purpose enshrined in the legislation.70 The system attempts to achieve sustainability through applying the use of best available knowledge of a fishery in the setting of the total allowable catch (TAC), of which the TACC is a part, at a level that will ensure sustainability of that species. Because the quota is transferable and may be used as security, it has many characteristics of a property right. The system overrides the traditional rule of capture described earlier. Fisheries not subject to the QMS may be fished without an ITQ, but may still be subject to some restrictions set out within the legislation, or through other regulation or international agreement.

Coastal aquaculture is managed through regional coastal plans where certain areas within the coastal marine area are set aside as aquaculture management areas (AMA’s).71 Aquaculture is allowed only within those areas, and marine farmers must apply to the regional council for the allocation of space through a coastal permit under the RMA. The system limits the rights of marine farmers to carry out aquaculture activities in the coastal marine area, and subjects applications to the RMA’s test of sustainable management.72

68New Zealand Government, Resource Management Bill Information Kit: The Government’s Responses to the Review Group Recommendations (Wellington: New Zealand Government, 1991).

69UNCLOS 1982 was ratified by New Zealand on July 19, 1996, and came into effect on August 18, 1996. The extent of New Zealand’s EEZ is set out in the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977, s 9. See also ss 5 and 6 (determining the baseline).

70Fisheries Act 1996, s 9 (Environmental Principles).

71Aquaculture Reform Act 2004.

72The aquaculture regime is currently under review. See New Zealand Government, Ministry of Fisheries, “Aquaculture,” http://fs.fish.govt.nz/Page.aspx?pk=24&tk=62 (accessed June 8, 2010).

6.3Forestry

The forestry regime is complicated. Generally commercial forestry of exotic species is treated the same as any other agricultural land use, and is subject to the RMA regime and the resource consenting process. As a result of government policy, commercial forestry of indigenous species on state land has largely ceased.73 Felling and milling of indigenous species on private land may still occur, but is subject to a sustainable management regime that includes the preparation of sustainable forest management plans, or application to the Secretary of Agriculture and Forestry for a sustainable forest management permit.74 Felling and milling of indigenous species, with some exceptions, can only occur on private land within the constraints of the management plan. This measure constitutes a major restriction on a private landowner’s use of his or her land, and has particular impact on farmers. The penalties for breach of the provisions are high, with fines of up to $NZ200,000 ($US140,000) per offence, and up to $NZ10,000 ($US7,000) a day for a continuing offence.75

6.4Maori customary rights

The 2004 Foreshore and Seabed Act was enacted to specifically vest New Zealand’s foreshore and seabed in the Crown. At the same time, it created a system whereby Maori could assert their traditional customary rights in the foreshore and seabed by applying for a “customary rights order”76 through the Maori Land Court.77 Criteria for granting such an order follows the common-law concept of native customary rights, including showing a prior and continuing relationship of Maori with the area or resource claimed, and that the activity or right is not prohibited by law.

There is no provision for registration of the order against the relevant land title under the 1952 Land Transfer Act, although a public “Foreshore and Sea-

73For a discussion of the history and implementation indigenous forestry policy on government land, see Westco Lagan v Attorney-General [2001] 1 NZLR 40 (HCt), and the article by Sir Geoffrey Palmer, “Westco Lagan v A–G,” NZLJ (2001):163.

74Pursuant to the Forests Act 1949, Part 3A, added by the Forests (Amendment) Act 1993

(NZ).

75Forests Act 1949, s 67U.

76An order granted by the Maori Land Court or the High Court of New Zealand that recognizes an activity, use or practice that has been carried out continuously from 1840 (the date of the signing of the Treaty of Waitangi) to the present day. The procedure for issue of customary rights orders is set out under Parts 3 and 4 of the Foreshore and Seabed Act 2004, and orders issued are given recognition in resource management planning and consenting in ss 6, 17A & B, 28, 82A, 85A & B, 107A–D, 293A, 355AA–AB, and Schedule 12 of the RMA. See New Zealand Government, Ministry of Justice, “Customary Rights Orders,” http://www.justice.govt.nz/policy-and-consultation/justice-system/foreshore-and-seabed/ 2.3-customary-rights (accessed August 21, 2010).

77See references supra notes 36 and 38.

bed Register” is required to be kept as a permanent record in the Maori Land Court.

The Foreshore and Seabed Act is currently undergoing a government review, and is likely to be repealed and replaced with a different regime in the near future.78

6.5Greenhouse gas (GHG)79 emissions legislation

Addressing GHG emissions through the use of economic instruments is a relatively new and experimental area involving the use of property rights to achieve sustainable outcomes. Signatories to the 1997 Kyoto Protocol to the Framework Convention on Climate Change (1992) agreed to reduce levels of greenhouse gases (GHGs) to certain levels – variable depending upon the country – by 2012. As one mechanism to help reduce GHG emissions, New Zealand introduced an emissions trading scheme that covers all major industrial and agricultural sectors, and becomes mandatory in a staged process between now and 2015.80 The measure is a further major restriction on the rights of property owners to use the atmosphere as a free sink for waste products. The nature of property rights created will be discussed later.

7. Innovation and invention – new forms of property rights created under the RMA and other natural resource statutes

While modern natural resource measures have made significant inroads into traditional property rights, they have also introduced some interesting innovations, and arguably, new forms of quasi-property rights.

7.1Resource consents under the RMA

One of the more curious sections in the RMA is section 122(1), which states that: “A resource consent is neither real nor personal property.”

78 See New Zealand Government, Ministry of Justice, “Reviewing the Foreshore and Seabed Act 2004,” http://www.justice.govt.nz/policy-and-consultation/foreshore-and-seabed/ reviewing-the-foreshore-and-seabed-act-2004 (accessed August 21, 2010). See also Kenneth Palmer, “Foreshore and Seabed Reform 2010,” LexisNexis Resource Management Bulletin 8 (2010):141–144; and Kenneth Palmer, “Marine and Coastal Area (Takutai Moana) Bill 2010 − Replacement of Foreshore and Seabed Act,” LexisNexis Resource Management Bulletin 8 (2010):165–169.

79The main GHGs are carbon dioxide, methane, nitrous oxide, perfluorocarbons, hydrofluorocarbons, and sulphur hexafluoride.

80Participation in the emissions trading scheme is required from July 1, 2010, for the transport, energy, and industrial sectors, and from January 1, 2015 for agriculture. Full details are available New Zealand Government, Ministry for the Environment, “Climate Change Information,” at www

.climatechange.govt.nz (accessed August 21, 2010).

Sections 122(5) and (6) further state that, in relation to coastal permits, such consents are not exclusive, do not confer any rights on the holder analogous to the rights of a ‘tenant’ or ‘licensee,’ and do not give rights to remove sand, shingle, or other natural material as if they were licenses or profits à prendre.

However, resource consents vest in personal representatives on the death of the holder, or the official assignee upon bankruptcy, as if [they] were personal property, and consents are to be treated as property for the purposes of the 1988 Protection of Personal Property Rights Act. The holder may also grant a charge over the consent as if it were personal property, and consents are to be treated as “goods” for the purposes of the 1999 Personal Properties Securities Act.81 Coastal and water permits may carry obligations to pay rent or royalties – charges normally associated with the grant of a property right – for the right to remove natural resources from another’s land.82 Councils may require a bond as a condition of consent, and if a bond is required, it is an interest in the land and registrable on the title.83

The RMA regulates the transfer and portability of consents.84 Land use and subdivision consents generally attach to the land to which they apply.85 Water permits, coastal permits, and discharge permits are subject to varying levels of discretionary control on transfer to different persons or from site to site.86

Thus resource consents convey rights – sometimes exclusive – in relation to land, air, or water; are transferable (within limits); and have economic value – all characteristics of traditional real and some personal property rights. And yet section 122 (1) says they are neither real nor personal property.87

Further provisions introduced into the RMA by the 2005 Resource Management Amendment Act reinforce the perception of resource consents as valuable property rights by:88

•allowing regional councils to allocate water among different categories of use;89

•providing that allocations must not derogate from existing consents during their current term; and

81RMA, ss 122(2)–(4).

82Ibid., s 112.

83Ibid., s 109(1).

84Ibid., ss 134–138A.

85Ibid., s 134(1).

86Ibid., ss 135–137. On water rights under the RMA, see the cases discussed below under “8.2 The courts’ interpretation of section 122(1), RMA” and the references listed infra note 90

&91.

87RMA, s 122(1).

88Ibid., s 30 (1)(fa).

89Ibid., s 30 (4).