Laws434. Linkages between climate change and bio diversity
This essay will identify the linkages between climate change and
biodiversity and outline the international environmental law obligations
applying to these issues and how these obligations have been given effect by
New Zealand statute law. It will conclude by considering whether New
Zealand law is effective in these areas.
Climate change is a paramount issue of international significance. Despite
failure to permanently occupy media headlines, this global problem is not
going away anytime soon and requires collective global efforts to find a
Climate change refers to a clear change in trend over a period of time 1
relates to any of the components of climate. This may include temperature,
rain, winds or atmospheric pressure.2
The components of the climate are
linked to the earth, with a change in one single component of climate
initiating a reaction in the earth’s environmental systems.3
The root causes of climate change vary and are split into two broad
categories. These two categories are natural and anthropogenic emissions4
Present evidence supports human-induced activities as a major contributor to
rising temperatures, caused by the enhanced natural greenhouse effect5
Examples of human-induced activities include the release of methane
through agriculture and the burning of carbon-containing fossil fuels.
The effects of human-induced activities include the decreasing size of ice
mass and glaciers, the increase in sea level, rising sea temperatures, the
1 For example decades.
2 Government of Australia, Climate change and global warming – what’s the difference?,
Parliament of Australia, www.aph.gov.au, para 1.
3 USEPA, Causes of Climate Change, Climate Change USEPA, 20 April 2015,
4 Emissions were formerly of exclusively natural origin.
5 Government of Australia, The Greenhouse Effectm, Parliament of Australia,
www.aph.gov.au, para 4.
Jayne Sankey-O’Dwyer 1111626
increase in ocean acidification, the change in rainfall patterns, the increase of
the frequency of extreme weather conditions and changes in regard to drying
of the land.6
These changes to our natural habitat in turn have a destructive
impacting on our biodiversity, decreasing the variety of lifeforms found
within our natural environment.
New Zealand is a key player in relation to biodiversity decline, and as such
“attention is likely to focus on the impacts of climate change on our native
. There is an extremely high proportion of endemism in New
Zealand, meaning that a large number of our species are unique exclusively
to New Zealand8
. For that reason decreasing biodiversity has been specified
as the single most paramount environmental issue concerning New Zealand9
Species which are located in the lowlands and wetlands10 of New Zealand
are the most affected due to low levels of reserves being located here, and
the reduction of a high percentage of native land cover in these areas.
Due to New Zealand’s unique circumstances, we have an irregular emissions
profile.11 Owing to geographical location and population spread there is a
reliance on fossil fuel-powered transport. Nearly half of all emissions come
from agriculture and 85% of the food produced is exported. New Zealand
already utilises high levels of renewable energy with approximately 75% of
electricity being generated using renewable resources such as
hydrogeneration, geothermal and wind. Yet the energy sector is responsible
6 For example flooding or droughts.
7 Ministry for the Environment (2007) Environment New Zealand 2007 (Wellington, New
Zealand) p 399.
8 This encompasses all frogs and reptiles, in excess of 90% of insects, around 80% of plants
and 25% of birds. Additionally there are around 80,000 species of native plants, fungi and
9 Ministry for the Environment (1997) The State of New Zealand’s Environment 1997
Zealand) p. 6.
10 Both coastal and freshwater.
11Ministry for the Environment, New Zealand’s Sixth National Communication under the
United Nations Framework Convention on Climate Change and Kyoto Protocol, Ministry for
the Environment, 2013.
for 43% of emissions and in 2012 resource consents were renewed for
another twenty-five years.
As highlighted by Stone in “Should Trees Have Standing?”12, global and
national legislation has both protected and empowered natural objects to
have standing in Court to an extent, with human-beings acting as stewards or
guardians of the natural environment. In a continuing theme as that
ascertained by Stone there has been a changing view amongst people by
legislation setting the initial stance. This was commonly the case with the
abolishment of many previous forms of discrimination13 which were derived
from positive social change.
The aplicable history concerning the Environment Court was neatly
summarised by Judge Whiting in Environmental Defence Society Inc v
Auckland Regional Council and Contact Energy Limited.14
United Nations Framework Convention for Climate Change (UNFCCC)
The UNFCCC was established in response to global warming and was
signed by New Zealand and around 185 developed and developing
countries.15 The overall aim without time limitations is stated in Article 2, as
a common long-term objective; the stabilisation of atmospheric
concentrations of greenhouse gases at a level that would prevent dangerous
anthropogenic interference with the climate system.16 Also of particular
relevance is Article 4 (2), where New Zealand has undertaken to limit its
anthropogenic emissions of greenhouse gases, report on the measures used
and report on the resulting projections.
12 Christopher Stone, “Should Trees Have Standing?”.
13 For example ageism, raceism and sexism.
14 NZRMA 492 (Decision No. A183/2002).
15 rmla08_judgelaurienewhook_climatechangeandtherma.pdf at page 2.
16 UNFCCC Article 2.
Jayne Sankey-O’Dwyer 1111626
This protocol was ratified by nearly 200 developed countries and came into
force in 2005. It aimed to supplement the UNFCCC after the global
community acknowledged that stronger and more urgent action was required
containing country-specific emissions targets.17 The obligations of New
Zealand include reducing total greenhouse gas emissions for the first
commitment period to equal to or less than 1990 levels or if these levels are
exceeded, utilising the ‘Emissions-trading’ and ‘carbon-sinks’ provisions of
The Convention on Biological Diversity (CBD)
New Zealand also enjoys membership of the CBD, which it ratified on 24
February 2005. This means protected areas will be established as far as
possible “… to conserve biological diversity”, with guidelines provided for
their genesis and management. Members must “regulate or manage
biological resources important for the conservation of biological diversity
whether within or outside protected areas”. This adds value to the resources
and protected areas themselves, and to those areas adjacent to protected
areas, which could potentially be included within the protected area
boundaries in the future, and aids the promotion of natural habitats and the
species inhabiting these. Furthermore, member states are obliged to protect
threatened species and populations through means such as regulations or
The Oslo Principles
The Oslo Principles both define the scope of our legal responsibilities to
protect the environment, and outline how this obligation may be achieved. It
was found that the existing binding obligation of all state’s is for measures to
be taken to prevent climate change, and for the environmental impact
assessment of activities. This finding will make the rulings of judges easier
to construct by providing a solid basis for decisions.
17 New Zealand Government, The Global Effort – New Zealand Climate Change
The Oslo Principles also recognise trans-boundary effects in the context of
climate change and activities affecting neighbouring states, as was already
contained in international law pertaining to other environmental issues18
Additionally, it is provided that developed countries will assist developing
countries with the costs of reducing their emissions.19
For the achievement of the international obligations and country specific
targets, numerous domestic measures have been implemented. These include
the instrumental Climate Change Response Act 2002 and sector specific policy
targets.20. These domestic measures are liable to update in response to
Climate Change Response Act 2002 (CCRA)
The purpose of this is to coordinate greenhouse gas emissions in New Zealand,
and is achieved with the supplementation of other regulations where required.
Initially supplementation through an emissions trading scheme and carbon tax
credit were favourable to the New Zealand government, although only the ETS
is currently in existence.
This Act empowers the Minister of Finance to trade the units representing New
Zealand’s target greenhouse gases emissions on the international market. All
transfers and stock must be reported. This statute also establishes a national
inventory agency to record and report according to international requirements.
In Northland Milk Vendors v Northern Milk21, the Court of Appeal had to
consider the climate change effects of domestic activities on the increasing
of emission levels of overseas countries. This was not expressly provided
18 For example freshwater.
20 New Zealand’s Fifth National Communication under the UNFCCC, Wellington, Ministry
for the Environment, 2009.
21 Northern Milk Ltd v Northland Milk Vendors Association Inc and Grant  1 NZLR
Jayne Sankey-O’Dwyer 1111626
for in the legislation and therefore it was for the Court to make a decision
which accorded with the spirit of the act.
Emissions Trading Scheme (ETS)
This is established under the CCRA. The purpose of ETS is to assist New
Zealand in meeting it’s international obligations under the UNFCCC and the
Kyoto Protocol. This is achieveable by reducing national emissions to below
business-as-usual levels. To do this ETS requires certain sectors to account for
their direct emissions or emissions associated with their produced products
consumed in New Zealand through the trading of New Zealand Units (NZUS).
Financial motivation for the reduction of emissions is offered, with a price
being attached to emissions created in New Zealand.22
The Permanent Forest Sink Initiative (PFSI)
This is established under Part 3B of the Forests Act 1949. The purpose is for
owners of land containing permanent forests planted since 1990 to receive
carbon credits. Under this scheme owners must show their forests are
permanent by a Forest Sink Covenant (Covenant) with the Crown. This
Covenant prohibits non-essential chopping down of the trees for the specified
The Conservation Act 1987
Both the Conservation Act 1987 and RMA 1991 contain Indigenous Species
Protection Law with indigenous species and their habitats being resources
managed by DOC while decision-makers acknowledge sustainable
management under the RMA. Although the Conservation Act 1987 neglects to
expressly state the effects of climate change, it must be taken into account by
DOC. This is implied as DOC’s duty is to “manage for conservation purposes
(which includes all animals and the land on which they live)23”.
The Resource Management Act 1991 (RMA)
22 New Zealand Government, Emissions Trading Scheme Basics – New Zealand Climate
Change Information,nd, http://www.climatechange.govt.nz/emissions-tradingscheme/about/basics.html#content.
23 DOC’s Statement of Intent identifies climate change as a threat, however, it does not
advance to specify the management of it.
This is New Zealand’s fundamental planning and environmental management
legislation. The purpose of the RMA is to “promote the sustainable
management24 of natural and physical resources” and specifies considerations
decision-makers should recognise in Part 2. In addition to Part 2, achievement
of this is via policy statements, regional and district plans. The sustainable
management of the habitats of indigenous species are relevant here, whereas
wildlife itself is not.
Significant to all RMA decisions is the King Salmon25 decision. King Salmon
proposed to rezone 8 sites in the Marlborough Sounds to allow for salmon
farming as a discretionary activity, and for a private plan change to the
Marlborough Sounds Resource Management Plan. This was appealed to the
Supreme Court by the Environmental Defence Society (EDS). The Supreme
Court held (it) “is improbable that it would be necessary to prohibit an activity
that has a minor or transitory adverse effect in order to preserve the natural
character of the coastal environment, even where that natural character is
outstanding. Moreover, some uses or developments may enhance the natural
character of an area.”, deciding that the Board of Inquiry was wrong in law to
make a “balanced judgement” and provided assistance with future application
of s 5.
This was considered by the Environment Court in Cook Adam Trustees Ltd26
Here the reasoning of the Supreme Court was extended with the Environment
Court amending the legal framework for district plan changes by noting,
“resort should be had to Part 2 of the Act only if there is a problem with any of
the statutory documents we have to consider.”.
Relating to the King Salmon decision, the Board of Inquiry released it’s
findings regarding ‘the Tukituki decision’27 on 26 June 2014. Here no reference
was seemingly made to the King Salmon decision and a broad judgement was
24 “Sustainable management” is defined and supplemented in Part 2 RMA.
25 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd  NZSC
26 Cook Adam Trustees Limited v Queenstown Lakes District Council  NZEnvC 117.
27 Tukituki Catchment Proposal Board of Inquiry.
Jayne Sankey-O’Dwyer 1111626
In KPF Investments Ltd 28, the Environment Court decided to
decline discretionary activity consents for a salmon farm where the
previously decided King Salmon decision was a significant factor.
Indigenous Species Protection laws currently empower Local Authorities to
manage the habitats of these species under the RMA. It does not make sense
that such complicated decisions which require expert knowledge are burdened
on local authorities.
To protect areas as aimed for future-generations, buffer zones around protected
areas must be introduced. Other harmful factors to natural ecosystems, for
example pollution or other species, must also be considered and monitored.
This is necessary as one of the effects of climate change is species movement.
Although the RMA provides a good framework, it has an effect which is
neither good or bad in practise on the promotion of sustainable management.
This is dependent on subsidiary regulations and plans not being operational, as
presumed by the RMA. This means no guidance is given to decision-makers as
to how they should rank considerations or rule on competing decisions
Policy statements optional.
28 KPF Investments Limited v Marlborough District Council  NZEnvC 152.