YLC Advocate Summer 2013

Advocate Summer 2013

INSIDE THIS ISSUE:

Madness on the Moon Freshwater management Youth Advocacy Battle of the Professionals

The quarterly magazine of the Young Lawyers’ Committee Wellington

Australia

London

China

Middle East

Hong Kong

Singapore

New Zealand

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www.jlegal.com find jlegal on new zealand melbourne sydney london singapore uae hong kong

YLC Advocate Summer 2013 04

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Editors’ Note

Case Preview: West Coast Ent Inc v Buller Coal Ltd – Lizzy Wiessing

Co-Deputy Convenor’s Note

Independent Advocacy for Children and Young People at a Child Youth and Family Care and Protection Residence –Alysia Bartlett

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The YLC Team

A Life Well Enjoyed: Judge Barry Lovegrove reflects on his life in the law

Upcoming events 06

09 YLC member profile: Interview with Kerrin Eckersley 10 Investor State Dispute Settlement, its Inclusion in the TransPacific Partnership and What It Means for New Zealand – Jessica Willis

16 Extra-terrestrial Water and the Problem of Allocation – Leah Hamilton & William Robertson

24 Book Review: “The Rule of Law” by Tom Bingham – Jason Cooper 25 YA/YLC Sports Day 26 Freshwater update in a nutshell – Keitaria Haira

20 Cleaning Up our Freshwater Management — Some New Suggestions from the Land and Water Forum – Joshua McGettigan

Editors:

Lizzie Chan & Hamish McQueen

Layout:

Rebecca Walthall

Cover photograph by Rebecca Walthall Natalie Siefe Photography

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Editors’ Note Welcome back for another year of Advocate! Our first issue of 2013 is filled with all the information you need on the upcoming events that the YLC has organised to ease you back into the working year. Plus there are some great articles on topical issues to kick-start your brain after the summer.

New Zealand summers are all about holidays!

Perhaps you headed out and saw some of our beautiful country. Maybe you flew away to experience foreign climes. Perhaps you couldn’t get beyond the sunny skies of Oriental Parade. Whatever your medicine, we hope you had a great time! As for ourselves, Hamish spent some time down South, walking the Routeburn and Greenstone tracks, checking out Milford Sound and doing a roadtrip up the East Coast of the South Island.

The Routeburn track in particular was spectacular, with beautiful alpine lakes, Mt Cook Lilies and awesome mountain views. Lizzie visited Hong Kong for two and a half weeks and had a lot of fun catching up with her family. Back in New Zealand, she also visited New Plymouth, Gisborne and Castlepoint beach — all breathtaking sites!

Perhaps none of you made it quite as far as outer space over the summer — but that could well be your holiday destination for the summer of 2050. We are excited in this issue to have the first in a three-part series of articles on the emerging topic of Space Law. Leah Hamilton and

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William Robertson explore the issue of extra-terrestrial water allocation. This is an issue that has gained real relevance with the discovery of polar ice on the Moon.

In the next two issues of Advocate, Leah and William will complete the series with articles on space junk and tourism in outer space.

We also have a great series of articles on more downto-Earth topics. On the topic of international trade, Jessica Willis explores the implications for New Zealand of the inclusion of investor state dispute settlement mechanisms in the Trans-Pacific Partnership. Judge Lovegrove reflects on his life in the law and provides some advice for young lawyers starting out in the profession. Alysia Bartlett discusses her experiences as an advocate for a child/young person in a CFYS Care and Protection Residence. For those interested in family or criminal law this is a great way to put your skills to use and help make a difference in young peoples’ lives. In the area of environmental law, Joshua McGettigan discusses some new proposals for better water management in New Zealand. Jason Cooper also explores the ubiquitous

Upcoming Events 7 March Welcome to 2013

July: Speed dating

21 March Grad Boat Cruise

August: Career Planning (JLegal)

April: MAS Investment Seminar

September: MAS Toolbox Seminar

May: Meet the Registry and YLC Quiz Night

October: Oktoberfest

June: Wine and Cheese Evening

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November: Toast Martinborough and YLC Christmas Party

What would you like to see included in the YLC Advocate?

We’d love to hear any feedback about the magazine — especially from potential contributors! So please get in touch at elizabeth.chan@justice.govt.nz or hamish.mcqueen@justice.govt.nz.

Top: Hamish on Conical Hill on the Routeburn Track Bottom: At Castlepoint Beach: where’s Lizzie?

yet elusive concept of the rule of law in his review of the late Lord Bingham’s book The Rule of Law. We also keep you up-to-date with the latest Supreme Court hearings. If you want to sound knowledgeable on the topic of who owns the water in New Zealand (rather than the Moon), Keitaria Haira has provided a useful nutshell update of the asset sales and freshwater ownership litigation. Lizzy Wiessing also previews a case that is soon to be heard by our highest bench, West Coast Ent Inc v Buller Coal Ltd. The case explores the issue of whether greenhouse gas emissions from the end use of coal should be considered by decision-makers on resource consent applications for coal extraction. Like the asset sales/freshwater litigation, the Supreme Court recognised the importance of the issue in Buller Coal Ltd by granting leave to hear the case straight from the High Court.

The YLC 2013 events calendar is already underway, with the YLC/Young Accountants Sports Day on 23 February.

As we move into March the YLC is throwing a Welcome to 2013 party at Chicago Bar on the 7th of March. This was an extremely popular event last year, and is a great way to catch up with friends after the holidays over a few drinks — tell your friends! Another event to look out for is the annual Grad Boat Cruise on 21 March – a mustdo if you have recently graduated and started working life. Other events we’ve got in the pipeline are a meet the registry event, career seminars, the annual ball and more.

For more check out the YLC website, and make sure to join our Facebook page to keep up to date with the latest YLC activities. > www.facebook.com/younglawyerscommittee We also thank the YLC’s general sponsors: the Medical Assurance Society and JLegal. Thanks also to Rebecca Walthall, our designer, for the beautiful photograph gracing the cover of Advocate.

The YLC Advocate Writing Prize 2012 Last year, the YLC created a new writing prize awarded to the best article published in Advocate in a year. We were lucky enough to have Professor Claudia Geiringer from Victoria University of Wellington to judge. Professor Geiringer teaches public law, human rights and the Bill of Rights. She works not only as an academic, but also practises as a lawyer. Out of 9 articles, Professor Geiringer’s judging was as follows: First prize: Tim Cochrane for “Torts of privacy: what can we learn from America?”

(Advocate Spring edition, page 20) Second prize: Joseph Fitzgerald for his case note, “Does HIV-positive status vititiate consent? An Analysis of KSB v Accident Compensation Corporation” (Advocate Autumn edition, page 18) Third prize: Sarah Hoffman for “Cats in Court” (Advocate Winter edition, page 22) Congratulations Tim, Joseph and Sarah!

LIZZIE CHAN AND HAMISH MCQUEEN EDITORS

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WE DON’T HAVE SHAREHOLDERS TO PLEASE. JUST YOU. No shareholders means we’re not going to push you into something you don’t need.

Instead you can trust us to take the time to understand your unique situation, and only then offer recommendations on what’s best for you. It’s the way we’ve always done it – for over 90 years.

Talk to us today about becoming a Member.

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Co-Deputy Convenor’s Note Happy new year and welcome back to our young lawyers returning to Wellington. It has been a busy start to the year already and I am confident that 2013 is going to be an actionpacked year filled with great YLC events, seminars and the odd party or two!

In our December 2012 meeting, we farewelled Sarah Backhouse from the Committee. Sarah has been a dedicated member of YLC, organising events such as the ball and also sitting as marketing officer for the latter part of 2012. We will miss her smiling face and welcome contribution to the YLC but wish her well in her career and wherever her future endeavours lead.

We would also like to thank Jordan Williams for his excellent contribution to YLC events and as our marketing officer. Jordan is known for his organisation of the speed dating event each year, but has also helped with the ball and the Bridging the Gap mentoring programme.

Thank you also to Simon Wilson for running YLC’s communications. I am not sure we will ever find a better Yvette Laughton-Campbell! Simon has made an outstanding contribution to YLC. Jordan and Simon will remain on the committee but have stepped out of their officer roles to focus on work and study commitments.

Looking forward to this year, we’ve come back from a refreshing holiday to a full calendar of events and a relatively new executive team.

We welcome Amberley James and Annabel Martin (Marketing), Daniel Fielding (Treasurer), Lizzie Chan (Co-Deputy Convenor) and Hadleigh Pedler (Communications) to the YLC executive. We are also pleased to announce a new position on the executive, the Advocacy Officer. This position has been created out of a need the Committee saw to fulfil a greater advocacy role in representing young lawyers in Wellington. The Advocacy officer (yet to be appointed) will be working on projects similar to the 2012 Profesional Studies course review and will also look into launching a referral system for young lawyers who need advice or mentoring on a specific issue or career decision.

Another significant change for 2013 is the creation of a Wellington Young Lawyers’ Mooting Competition to be run in the middle of the year. Watch this space for your opportunity to enter a team and compete for the much acclaimed title of YLC Mooter of 2013.

We look forward to the “Welcome to 2013” party at Chicago Bar on 7 March and the Grad Boat Cruise on 21 March. I’m looking forward to catching up with our Advocate readers at these events. Let’s hope this stellar Wellington weather holds!

See you all soon.

HELÉNA COOK CO-DEPUTY CONVENOR

Have you got something you’d like to say?

The Young Lawyers’ Committee is the voice of young lawyers in Wellington.

We meet regularly with the New Zealand Law Society to represent the views and interests of young lawyers on issues affecting the legal profession. Our role is not only to entertain and inform you, but to advocate on your behalf.

If you have any issues, concerns or complaints, or anything you’d like to let us know about, email our convenor in confidence at info@younglawyers.co.nz.

If you want to join the YLC as a committee member, send us an email at info@younglawyers.co.nz.

Committee Members Richard Evans

Jordan Williams

Monica Hamlyn-Crawshaw

Katie Williams

Natalie Pierce

Simon Wilson Tim Cochrane

Amberley James

Hamish McQueen

Jess Willis

Annabel Martin

Heléna Cook

Daniel Fielding

Helen Arathimos

Elizabeth Chan

Lorraine Hercus

Katrina Kelly

Nadia Gastaldo-Brac

Guy Carter

Ian Miller

Kerrin Eckersley

Nikki Farrell

Hadleigh Pedler

Jamie Grant

Matthew Jenkins

Pearl Roy

Sarah Watson

YLC Executive 2012 Convenor

Jamie Grant

Sponsorship Officers

Co-Deputy Convenors

Heléna Cook Elizabeth Chan

Guy Carter Sarah Watson

Marketing/Membership

Annabel Martin Amberley James

Treasurer

Tim Cochrane

Officers

Treasurer (elect)

Daniel Fielding

Communications Officer

Hadleigh Pedler

Lorraine Hercus

Magazine Editors

Elizabeth Chan Hamish McQueen

Secretary

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Interview with Kerrin Eckersley Hi Kerrin, what’s your role on the Committee?

Hello, it’s so nice being asked to be interviewed for such an esteemed publication. I am a new member to the Committee. At the moment I am assisting with organisation of a few upcoming and exciting events so am looking forward to becoming more involved as the year progresses.

When did you join and why?

I joined in October 2012. When I started out in practice I really appreciated the support that I received from the young professionals in my immediate contact (I work in a firm of 11 young lawyers!). Because of that experience I am keen to help other new graduates and young lawyers, who might not have that same immediate contact, to build up a wide network of young lawyers who can offer support and encouragement while things are a bit new and scary.

What do you do outside of the Committee?

Outside of the Committee I work at John Miller Law which makes every day pretty interesting. I spend some of my free time volunteering at the Community Law Centre but I also manage to keep up a pretty healthy obsession with American politics, broadcasters and pop culture.

Why did you choose law?

To be honest, it was not my first choice. After completing my BA in criminology and sociology I worked at the Court of Appeal for 18 months. I was a registrar in a hearing one day and as I was watching a, relatively

senior, practitioner argue his case, I thought “I could do that”. I aired this thought to one of the Judges and was challenged to prove it. After studying part time for five years and having been practicing for three years it turns out that I was woefully ignorant back then and arguing a case before a Judge is much harder than it appears!

What’s your favourite café in Wellington?

For coffee, it has to be Memphis Belle which happens to be in handy proximity to my work. For food, I am not really a café dweller. However, in the evening you can often find me dining at KK Malaysia.

If you were going to write a book, what would you call it and what would it be about?

When I was 14 I thought that a great title for a book would be “Cynical Scepticism”. I have no idea why and now it seems somewhat ridiculous. If I were going to write a book it would probably be non-fiction and have something to do with politics or pop culture. It would be a terrible piece of literature.

If someone asked you to give them a random piece of advice, what would you say?

Be anything but ordinary. And travel. Just travel.

As much and as far as you can.

If you could have dinner with three famous people, who would they be?

Ricky Gervais, Jon Stewart and more recently, Lena Dunham.

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Investor State Dispute Settlement, its Inclusion in the Trans-Pacific Partnership and What It Means for New Zealand Round 15 of the Trans-Pacific Partnership (TPP) negotiations concluded in Auckland late last year. Over 500 delegates from the 11 participating countries attended (New Zealand, United States, Mexico, Canada, Brunei, Chile, Malaysia, Peru, Singapore and Vietnam).

JESSICA WILLIS IS A SOLICITOR AT DLA PHILLIPS FOX

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ike many negotiations with economic implications, the TPP talks have largely been kept confidential. Secrecy surrounding the talks has made it difficult to have an informed debate on the merits of the TPP, and conversely what negative side effects there may be for New Zealand.

It is this secrecy that has fuelled concerns around the proposed deal, with critics being quick to question what exactly New Zealand is signing up to behind closed doors.

The criticism has been most strongly leveled at the “Investor State Dispute Settlement” (ISDS) issue. Critics argue that ISDS puts economic interests of investors ahead of the rights of governments to conduct their own affairs, and if included in the TPP, could limit New Zealand’s ability to implement reforms and legislative policy on programmes related to public health and environmental protection. Some argue that ISDS gives foreign investors an advantage over local investors as it gives them the option to pursue their claims either through local courts, or to take their case to an international tribunal.

What is ISDS? ISDS is a mechanism through which foreign investors can bring international arbitration claims against host governments for breaches of international investment rules. A recent and well-publicised example is Phillip Morris, a multinational tobacco company using the provisions in the Australia-Hong Kong Bilateral Investment Treaty to claim compensation for the

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Australian Government’s plain cigarette packaging antismoking legislation. Perhaps as a result of this decision, Australia has taken a strong stance against ISDS in TPP negotiations.

How ISDS could benefit New Zealand Many of the countries that New Zealand invests in do not have the level of investor protection and transparency that exists in New Zealand. In these mainly developing countries investors can face lengthy delays and bias in domestic proceedings. In extreme cases corruption and government bias may make it impossible, or frustrate their ability to obtain effective remedies through local proceedings.

The benefit New Zealand derives from ISDS is protection for its investors in emerging markets and an ability to pursue remedies for breaches of investment rules in forums that are impartial and effective. This is a significant factor where the rules that are being negotiated in the TPP talks will apply across the AsiaPacific region. In the event of political unrest in these countries these rights would protect those New Zealand investors. In the future ISDS clauses could come to protect companies such as Fonterra and its investments across Asia and Latin America.

New Zealand has always been a net capital importer.

We do not have large capital reserves. While foreign investment is necessary for New Zealand’s economic growth, concern is frequently voiced around an open

investment regime. The challenge New Zealand faces is to strike a balance between setting rules that encourage open investment, while continuing to ensure that foreign investment reflects our values and expectations.

made. It needs to be clear that ISDS should remain an exceptional approach which requires the exhaustion of local remedies before permitting access to international tribunals.

To date no ISDS proceedings have been brought against the New Zealand Government. (The United Kingdom, France, Germany and the United States have never lost an investment case).

Foreign investment standards have always been part of international customary law. What is new is the method (namely ISDS) by which these standards can now be enforced. Investors that have ISDS no longer need to solely rely on the host country’s court system, or on their government to bring proceedings against the host government. Under ISDS they can litigate and seek their own remedies directly through international tribunals.

Including ISDS in the TPP The New Zealand Government has been cautious about including ISDS provisions in various Free Trade Agreements (FTA). Both the FTA with China in 2008, and the ASEAN–Australia New Zealand FTA in 2009 contain ISDS provisions. The foreign investors from these countries have investment rights against New Zealand, and New Zealand investors have reciprocal rights in those countries. The TPP will simply extend this coverage.

During the TPP talks New Zealand trade negotiators will seek to ensure there are safeguards that will preserve the Government’s autonomy and regulatory discretion. For example, broad general exception clauses over matters of public health, environmental protection and the Treaty of Waitangi (as was done for the China–NZ FTA) will maintain the Government’s freedom to regulate for legitimate public welfare purposes. Other clauses should be included to restrict the range of parties who may invoke ISDS rights and the scope of orders that may be

The benefit of the TPP to New Zealand is unlimited. It will markedly increase international market access for New Zealand investors and we will gain from the investment rights in TPP countries. It should be remembered that ISDS provides our major export companies with enforceable investment rights, which will essentially operate as an important insurance policy.

Round 16 of TPP negotiations will commence in Singapore on 4 March 2013.

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Independent Advocacy for Children and Young People at a Child, Youth and Family Care and Protection Residence I would recommend to any law student or graduate lawyer who is interested in family or criminal law to be an advocate for a child and/or young person in a Child, Youth and Family Care Services (CYFS) Care and Protection or Youth Justice Residence (CPR). I had a valuable experience as a volunteer advocate for a pilot independent advocacy scheme at the Puketai Care and Protection Residence based in Dunedin. This scheme was led by Sean Twomey.

ALYSIA BARTLETT WORKS AT THE MINISTRY OF SOCIAL DEVELOPMENT

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nder reg 16 of the Children, Young Persons and Their Families (Residential Care) Regulations 1996, the Manager (person in charge of a residence) must ensure that a resident has reasonable access to an advocate who will support and represent them in relation to a complaint.

A child or young person to be advocated for will have experienced anything from prostitution, crime, drugs, being in unsafe environments and child abuse. Although they are living in a CPR to protect their safety, they are cared for in an impersonal institutional setting by strangers.

When a child or young person enters the residence, they agree not talk about the “bad experiences” that have led them to the residence. I am sure this is done in the name of the child or young person’s best interests, but because of this restriction, the resident may not be able to talk freely or trust staff members.

Sean Twomey based the independent advocacy scheme on the United Kingdom Advocacy Charter 2004. The Charter states that an advocacy scheme should be

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structurally independent from the institution (in New Zealand, this is CYFS), and that all service provider agencies should be free from conflicts of interest both in terms of design and operation. Our independence from CYFS helped to ensure our independence in our roles as advocates for children and young people. It meant we did not have to moderate the young people’s views to accommodate the objectives of a welfare institution.

Before any session, we would always explain to the resident that we were completely independent from CYFS and that any information they told us would remain private and confidential unless we got their permission to speak on their behalf. I found that most residents were genuinely happy to see us. When the session commenced, they would often express all the thoughts they had been bottling up over the days from the previous session.

I think it helped that they felt we were like an older brother or sister whom they could confide in. Sometimes I came across residents who did not want to talk to me, but would be happy to talk to one of the other volunteers

flickr user geinography

and vice versa. I was always blown away at how adultlike the residents were at such a young age, being so street-wise from basically not having a childhood.

There were some common complaints that the residents reported. Some residents said that they struggled to get answers from social workers. They did not always feel like they were being listened to in regards to their Independent Care Plans. They did not always feel included in their Family Group Conferences, and sometimes only got five minutes to talk on the phone to people on the calling list.

What we realised is that some professionals may not be placing the child or young person at the centre of the decision-making process as they may consider that the child or young person has limited capacity to be self-determining because of their age or maturity. If a resident felt they were not being involved in their Family Group Conference, we would offer to follow this up and if they wanted, to be there with them at the Family Group Conference. We wanted to give them the confidence to speak or for us to advocate by representing them,

essentially to be “their voice” and to ensure their needs and views were expressed.

If a resident was unhappy with the treatment by a staff member, they had the option of lodging a complaint to the grievance panel. This involved a very long process that could lead to further disempowerment of the resident.

So it was important for us to follow up on every step of the process to make sure the complaint was resolved in a timely manner.

Advocates in a CPR play an important and wide-ranging role in supporting the resident. They do so by listening to the resident and being respectful. They are also there for the resident, often being on the other end of the phone. Advocates should be a positive influence, giving confidence and comfort. They may also represent a resident’s voice at a Family Group Conference. They may also give career advice. Ultimately, it is about empowering the child or young person to stand up for their rights and interests. It is also about ensuring that the child care and protection system works effectively and appropriately for the young people it is designed to serve.

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A Life Well Enjoyed: Judge Barry Lovegrove reflects on his life in the law After 18 years as a District Court judge, I surrendered my warrant last year. It was a good 18 years and a very satisfying culmination of my love of the law over the greater part of the preceding 50 years during which I’d studied law, researched law, practised law, taught law, and applied my knowledge of law at a national and international level variously in New Zealand, Africa, Europe, and Asia.

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ver that period, while soaking up the law, working on my advocacy skills, and enjoying the constant challenge of persuading others to see things my way, I’d never known, until my appointment as a judge in 1995, what it was like to be the one invested with the power to make the final decision in the courtroom arena.

My domestic and international experience has left me with a strong world view without in any way diminishing New Zealand as the centre of that world. I’ve been enriched by the diversity of my experience. As a Pakeha, I mostly lived as a member of an ethnic majority in New Zealand. However, I lived and worked extensively as a member of an ethnic minority in Africa and Asia between 1967-1970 and 1973-1983. Additionally, between 19831992, I lived for 10 years as a member of an ethnic minority in my own country in the Hokianga. Wherever I’ve been, I’ve invariably been handsomely treated by all cultures. It would be churlish not to respond in kind. I’m familiar with the basic tenets of Christianity, Islam, and Eastern religions both in theory and in practice.

With an Asian wife and my somewhat unique background, I thought I might make a good Race Relations Commissioner but failed to make the short list last year. I doubt my candid opposition to any later move for the abolition of the post made me an attractive candidate. Never mind, working in my home garden has its own pleasures.

In the words of Edith Piaf “Je ne regrette rien”. Mine has been a life much enjoyed. And it nearly didn’t happen.

At the Hertford assizes in 1845, my great grandfather Benjamin Shadbolt escaped the hangman’s noose by a whisker for stealing food and cloth. With his life intact, he was transported to Tasmania for 15 years (plus 2

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years for a misconduct) and, after obtaining his ticket of leave, came to New Zealand, via Norfolk Island, in 1859 where he quickly established himself as a gentleman of substance. Among other things, he owned the Traveller’s Rest now Hotel Des Pecheurs at Desvauxchelles Bay in Akaroa. He died on 13 April 1882 and was buried at the Anglican cemetery overlooking the sea. His funeral was attended by 300 mourners. At his eulogy it was said...

At the final door of Judgement The wayward sinner stood Aware of his many failings Aware he’d not always been good But the Lord from his throne of glory Called him forth to eternal bliss For the sinner had been kind to the wretched In the sorrowful world that was his Good on you, great grandpa. I’m sure you would like to know that one of yours is very grateful both for the wisdom of Queen Victoria’s Parliament in 1845 in disestablishing theft as a capital offence as well as for the admirable genetic stock you have contributed to future generations. I can almost feel you in my veins. I’ve no doubt you inspired my abiding interest in the law in general and the notion of parole in particular.

Looking back over the period of nearly half a century, I offer these observations of relevance to budding lawyers.

Firstly, treasure your qualification in law. It will equip you to do many things in many places. It will protect you if you fall and help you land on your feet ready to forge a way ahead. Constantly broaden your horizons and never close your mind to challenge. Strive to be a better lawyer today than you were the day before. Finally, be honest with yourself and with others and enjoy the golden camaraderie of the bar.

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Apollo 11

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Extra-terrestrial Water and the Problem of Allocation “Ground control to Major Tom ... if you’re thirsty, put the kettle on...”

LEAH HAMILTON AND WILLIAM ROBERTSON ARE JUNIORS AT MINTER ELLISON RUDD WATTS, AIMING FOR STARDOM

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uter space is an up-and-coming area of interest in the legal field. Vast technological advances have enabled the possibility for resources in space to be not only explored but also exploited. These advances, along with commercial space tourism, pose interesting legal issues. This article is the first in a series of three, and will “launch” into the issue of extra-terrestrial water allocation and the potential difficulties involved in finding an appropriate water management regime. This brief series will also cover space junk and tourism in outer space. We “Apollogise” if space law may seem a little out of this world, but you would be a lunar-tic not to stay tuned in!

The discovery of polar ice on the Moon, and the National Aeronautic and Space Administration’s (NASA) decision to support commercial human space flight has recently thrust the commercial use of extra-terrestrial water out of the hypothetical realm and into the limelight.1 Water can be broken down into oxygen and hydrogen, which are key fuel components for chemical rockets and space travel.

Whether providing water to drink, oxygen to breathe or hydrogen to use as fuel, the commercial use of water in space is becoming an increasingly attractive prospect.

It has the ability to drastically reduce the astronomical costs involved in travelling between celestial bodies, or surviving on a research base.2 You may be surprised to know that outer space is already governed by some international law, such as the Outer Space Treaty 1967 (the OST). While this can provide a guide to appropriate legal structures in outer space, other instruments such as the Moon Treaty remain relatively toothless due to a lack of ratification. The OST therefore is the “primary guide and foundation for all legal space

operations”,3 and has been signed and ratified by the majority of the United Nations members. The treaty asserts that space is to be used peacefully and explored for the benefit of all people. National appropriation is prohibited by art 2 of the OST. The Moon Treaty deals more specifically with issues relating to activities on or around celestial bodies.4 Currently there is no country that possesses launch capabilities that has ratified the Moon Treaty, and its status in international law exists only to the extent that countries are prepared to honour it.5 Article 11(3) of the Moon Treaty goes beyond the prohibition of property ownership, declaring that no natural resources are able to be owned by those who extract them.6 Article 11 in the Moon Treaty also proclaims that the Moon and its natural resources “are the common heritage of mankind”,7 effectively prohibiting their commercial exploitation.

Alongside the international law governing resources in space, this issue can also be considered in light of the water management issues we face in New Zealand.

Water is undoubtedly one of our most valuable assets.

It is essential to our country’s economic, cultural, and social well-being, and has deep cultural value amongst all New Zealanders, particularly Māori.8 In New Zealand, the radical step of recognising ownership of water as a property right has been vigorously debated.9 Iwi have raised concerns as there is a real risk that water could pass out of government hands before any agreement is reached. Similarly, in outer space, there is a risk that extra-terrestrial water could pass out of an international regulatory body’s hands before all space-faring nations have expressed their interest. >

K Trinidad “NASA Radar Finds Ice Deposits at Moon’s North Pole; Additional Evidence of Water Activity on the Moon” (press release 10-055, 1 March 2010) <http//solarsystem.nasa.govt>.

2 J Easterson “You Can Lead an Astronaut to Water … : Prospects for Legal Use and Water Rights on the Moon and Other Celestial Bodies” (New Perspectives on Space Law, Proceedings of the 53rd International Institute of Space Law Colloquium on the Law of Outer Space, Young Scholars’ session) at 84.

3 Easterson, at 95.

4 Easterson, at 96.

5 Easterson, at 96.

6 The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Treaty), art 11(3).

7 Easterson, at 97.

8 “National Policy Statement for Freshwater Management (2011).

9 A Memon and P Skelton “Institutional Arrangements and Planning Practices to Allocate Freshwater Resources in New Zealand” (2007) 11 NZ J Envtl L 241 at 251.

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Apollo 12

> The starting point for water rights in New Zealand is the common law. The basic rule is that a riparian owner has no property in the water of a stream flowing through or past his or her land. However, an owner is entitled to the use of it as it passes along for the enjoyment of his or her property.10 This basic common law position has now been shaped by the Water and Soil Conservation Act 1967 (the WSCA) and the Resource Management Act 1991 (the RMA). Under the RMA, a first-in first-served approach to granting water consents is taken based on prior appropriation. This means that the first person to appropriate water and apply that water to use, after receiving consent, obtains the senior water right, which must be satisfied before any others.11 This method of allocation seems to function satisfactorily when there is a sufficient amount of water and when the water is a renewable resource. As far as we know, this is not the case regarding extra-terrestrial water. Water on the Moon and other celestial bodies is not part of a water cycle as it is on Earth. Instead, water on the Moon is more analogous to oil, as it will need to be mined from deposits. Therefore it seems most fitting to consider extra-terrestrial water as a mineral.12

Another approach that can be considered is the “prior appropriation doctrine,” by which the first person to beneficially use the water, regardless of riparian rights, has a superior claim to it. However, prior appropriation mechanisms seem to conflict with art 1 of the OST, which provides that space is to be used “in the interest of all countries irrespective of their level of economic and scientific development”.13 Using a prior appropriation mechanism would mean that nations with launch capabilities would possess a considerable advantage over those without.

Another approach to water management in outer space can be by way of a market system. These systems tend to benefit the environment as they focus on improving efficiency.14 It has been noted that using mechanisms such as leases and licenses can assist with the protection of environmental values and that tradable permits for water are good examples of free market environmentalism working effectively.15 Some jurisdictions incorporate a marginal cost-pricing mechanism which targets a price for water to equal the cost of supplying the last unit of that water. This has been considered an economically efficient system of allocation. However, such a system tends to neglect equity issues and in periods of scarcity or limited supply.

Also those with less capital may struggle, and those who

W Blackstone, E Christian, J F Archibold, J Chitty and B Field Commentaries on the Laws of England, (E Duyckinck & al, New York, 1827) vol 1 at 303.

11 Memon and Skelton, at 256.

12 Easterson, at 94.

13 United Nations Outer Space Treaty, art 1.

14 R Gazmuri “Chile’s Market Orientated Water Policy: Institutional Aspects and Achievements” in G Le Moigne, K W Easter, W J Ochs and S Giltner (eds) Water Policy and Water Markets (World Bank, Washington DC, 1994) at 65–78.

15 D Grinlinton “Property Rights and the Environment” (1996) 4 APLJ 41 at 59.

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Apollo 12

have invested earlier may have to pay an increased price when new users are introduced.16 Arguably this system lacks the certainty required for commercial exploration.

The primary issue, however, is that recognising the legal status of water as a property right does not seem to sit well with current international treaty regulations.

A resource allocation system which has worked well in New Zealand is the fisheries quota regime under the Fisheries Act 1986. This is where licence holders are permitted to fish commercially using allocated annual catch rights which are able to be transferred. There has been a worldwide trend towards the use of these quota systems.17 This system provides for the utilisation of resources while ensuring they are sufficiently sustained to meet the needs of future generations. This system is also able to mitigate any adverse effects on the environment.18 Applying this concept to resources in outer space however is unlikely to be suitable, as while fish stocks are replenishable, extra-terrestrial water is not.

Perhaps the most appropriate model for extra-terrestrial resource management is what has been implemented by the International Telecommunications Union Radiotelecommunication Sector (the ITU-R). The ITU-R is responsible for the governance of geostationary Earth orbits and frequency bands. These bands are a limited

natural resource and to avoid collisions and interference must be “governed judiciously”19 with consideration given to both present capabilities and future needs.

Equitable allocation is achieved by a priori allocation of broadcasting and fixed satellite frequencies. This means that when a country develops the capabilities to manage extra-terrestrial resources, it can then apply to take its reserved allocation.

It is inappropriate to apply traditional terrestrial water regimes to the extra-terrestrial realm. The majority of water management systems on Earth are based on property ownership and historical claims, which cannot easily apply to extra-terrestrial resources. Resource allocation methods in New Zealand and worldwide can provide some clues for systems that may be appropriate, but while markets, quota allocations, or approaches such as that taken by the ITU-R may be suitable in some ways, in outer space their applicability is about as useful as an ejector seat in a rocket ship.

In the end, economic and political power will go some way to determining the allocation of water in the heavens, but like the Wild West, it will probably be as simple as “first to grab it, keeps it” — particularly if they have a gun. The Man in the Moon won’t know what hit him.

A Dinaer, M Rosegrant and R Meinzen-DickDinaer “Water Allocation Mechanisms — Principles and Examples” (World Bank, Agriculture and Natural Resources Department, 2011).

17 J Sutinen and M Soboil “The Performance of Fisheries Management Systems and the Ecosystem Challenge” (University of Rhode Island, 2001).

18 Memon and Skelton, at 273.

19 Easterson, at 101.

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Cleaning Up our Freshwater Management — Some New Suggestions from the Land and Water Forum It is no secret that New Zealand’s “100% pure” advertising campaign was stretching the truth a little, and was the source of some pretty searching questions that John Key had trouble responding to in an infamous interview with Steven Sackur from the BBC in 2011.

JOSHUA MCGETTIGAN IS A SOLICITOR AT SIMPSON GRIERSON. THE VIEWS EXPRESSED IN THIS ARTICLE ARE SOLELY THOSE OF THE AUTHOR AND DO NOT NECESSARILY REPRESENT THE VIEWS OF SIMPSON GRIERSON.

I

It is a picture that becomes pretty hard to sell when you consider most environmental yardsticks — especially given the compromised quality and availability of our freshwater, with only 5 per cent of our catchments having a quality limit;1 at least one scientist claiming that 96 per cent of our lowland waterways are unswimmable;2 and a large proportion of our allocable3 freshwater being fully or over-allocated.4 However, the Government (if not John Key himself) was not oblivious to this conflict between projected image and reality, and recognised that, independently of how to “clean up” these freshwater resources in the short term, freshwater management and governance methods more generally needed to be put under the microscope.

It accordingly provided funding to a representative body of the stakeholders and interest groups in water management, and gave it the rather ambitious goal of achieving a consensus on how to address these kinds of issues. That body is called the Land and Water Forum (Forum).

After about four years of discussion and consultation, the Forum released its third (and final) report in November last year. Together the reports paint a holistic new picture for freshwater management in New Zealand, with a series of hard-hitting recommendations on how the quality and

rights associated with the use of our freshwater should be managed. Two of its most interesting suggestions, which were discussed mainly in its Second and Third Reports, are the focus of this article. These recommendations were that there be: • a complete overhaul in the way documents regulating freshwater management are created, so that opposing interest-holders are engaged even before any formal policy proposals are made; and • a series of changes made to incentivise the creation of a water permit “market” in which the right to take water could be easily transferred between parties.

Power to the people: the collaborative approach to plan and policy creation The Forum’s Second Report proposed (in some detail) a completely new “collaborative” approach to the creation of regional and national freshwater regulatory instruments.5 The proposed approach would involve all interest-holders in the process from a very early stage — even before any decisions had been made about written policy or plan proposals.

Land and Water Forum Third Report of the Land and Water Forum: Managing Water Quality and Allocating Water (2012) at [72]. The Report does not elaborate further on what it means by “quality limit” in this context, or how it was determined that only 5 per cent of New Zealand’s catchments have one. The author assumes that “quality limit”, as stated in the Report, refers to a limit on quality of water. Such a limit could be imposed in a quantitative way (by setting a limit on the level of contaminants a water body can hold) or a qualitative way (by setting a limit not necessary linked to contaminant levels, such as prohibiting conspicuous colour changes).

2 According to various comments from Mike Joy, Environmental Scientist at Massey University. See, for example: “100% Pure Fantasy? Living Up to Our Brand” <www.stuff.co.nz>.

3 By “allocable”, I mean the amount that has been determined can be appropriately taken without having an adverse effect on the environment.

4 Land and Water Forum Report of the Land and Water Forum: A Fresh Start for Fresh Water (2010) at ix.

5 Land and Water Forum Second Report of the Land and Water Forum: Setting Limits for Water Quality and Quantity, and Freshwater Policy- and PlanMaking Through Collaboration (2012).

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The Forum recommended creating an intermediary “collaborative stakeholder group”, comprising various interest-holders in freshwater management, which would work to reach consensus on the matters which it was asked to address by the decision-maker (i.e. regional council or Minister). The group would then itself write its own provisions for the matters on which the group could reach consensus, with the decision-maker only writing the proposed provisions where consensus could not be reached. Submissions on that written proposal would then be heard in a hearing with the more limited purpose of canvassing perspectives not already considered, and resolving any remaining disputes.

The significance of this suggestion is best understood in comparison to the current process for drafting freshwater regulatory instruments. This process emphasises the role of the decision-maker, which drafts its own provisions; calls for public submissions on those provisions; and then considers the views of expert witnesses and lawyers about whether those provisions, or amendments proposed by submitters, are the most appropriate.6 The process is adversarial, pitting lawyers and expert witnesses against each other, and gives the advantage of “holding the pen” (and constructing the ballpark for the public submissions) to the writer of the original version of the plan provisions.

The level of detail that the Third Report provides for how it would function also means that a lot of the hard work surrounding how to implement it has already been done.

The Forum’s methods for covering off common reservations about water take permit markets are innovative. For example, many people have a feeling of discomfort with such an important (and traditionally public) resource being the subject of a private trading market. Although not framed as a direct response to that, the Forum recommends the introduction of powers akin to those contained in the Public Works Act 1981 for community water suppliers, to allow them to claim back water rights if the community really needs them, which would alleviate such concerns.

The process is adversarial, pitting lawyers and expert witnesses against each other, and gives the advantage of “holding the pen” to the writer of the original version of the plan provisions.

Conclusion

Engaging everyone before anything is written down would be a complete reversal of the order of the current process. For lawyers who are not familiar with local government processes, this new approach would be similar to Parliament getting interested members of the public to draft its legislation — a pretty revolutionary suggestion, by anyone’s standards.

Allocation and reallocation — a market in transferable freshwater rights It has been identified for some time that New Zealand’s freshwater allocation is less than ideal. The way it has worked for many years, is by the “first come first served” principle (provided there is no contrary regional policy direction). This means that the first person to successfully apply to use the water gets first rights to use it. Therefore, if the person applied for more than they needed, or if a higher value use7 became apparent after that application had been granted, then there would be some inefficiencies and opportunity costs associated with the initial allocation.8 The Forum proposes to address those problems by carving out a standardised part of water take permits, which could be separated from the site-specific aspects, so that water take permits become freely transferrable.

It is not a new idea, but it has previously been more in the nature of one option among alternatives, rather than the option recommended by all interested stakeholders.

There is an element of the Forum wanting to have its cake and eat it too with the significant changes it recommends. Although it acknowledges that the collaborative approach to plan and policy statement creation will be more expensive than the traditional approach, it states that its recommendations need to be integrated within the wider policy framework (in which local government spending has been slammed). The Forum was also itself unable to reach consensus on how to tax water users. In this context, the practicability of the Forum’s recommendations must be questioned.

Regardless, the greater certainty and decreased litigation that would result from all interested players being involved in the drafting of freshwater-related instruments would be likely to have efficiency gains and lower costs once the documents are operative. It is also hard to deny the value that would be created with greater transferability of water permits, which would provide greater flexibility for water to meet its highest valued use.

The Government has chosen to take further advice on the Forum’s three reports before deciding how to respond to them. Given the significance of the consensuses contained in the reports, their widespread support from diverse interest-holders, and the four years of consultation and debate that was required to reach them, I certainly hope that the Government takes heed of their importance.

This process is often referred to as “the Schedule 1 Process”, due to the importance of sch 1 of the Resource Management Act 1991 in regulating it.

7 Not just in the economic sense, but also in a cultural, social, or environmental sense too.

8 This is because, although s 122(1) of the Resource Management Act 1991 states that resource consents are neither real nor personal property, case law has given them property-like status. See Laura Fraser “Property Rights in Environmental Management: The Nature of Resource Consents in the Resource Management Act 1991” (2008) 12 New Zealand Journal of Environmental Law 145, for a discussion of the nature of resource consents.

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Case Preview: West Coast Ent Inc v Buller Coal Ltd In March, the Supreme Court will hear an appeal direct from a decision of the High Court. The question before the Court will be whether greenhouse gas emissions from the end use of coal (likely to occur overseas) should be considered by those making decisions on resource consent applications for coal extraction. The High Court1 and Environment Court2 held that local authority decision-makers had no jurisdiction to consider these effects.

LIZZY WIESSING IS AN ASSOCIATE AT SIMPSON GRIERSON

Facts

Issue and competing views

The case arose after Buller Coal Ltd was granted consent to construct and operate the Escarpment Mine (including coal extraction) and Solid Energy New Zealand Ltd applied for resource consent to carry out mining at the Mt William North mining area. Buller Coal’s consent was appealed while submissions were being taken on Solid Energy’s application. Neither company was required to or did apply for discharge permits.

The issue before the High Court was whether the effect of the 2004 Amendment was to remove the jurisdiction from local government.4

Declarations were sought in the Environment Court by both the companies and environmental groups opposing the applications. The Environment Court said the effects of the end use were not a relevant consideration to the applications because the Resource Management (Energy and Climate Change) Amendment Act 2004 (2004 Amendment) had removed jurisdiction for this issue from local government and made it a central government issue.3 The environmental groups appealed to the High Court.

Section 3 of the 2004 Amendment states: 3 Purpose The purpose of this Act is to amend the principal Act— (a) … (b) to require local authorities— (i) to plan for the effects of climate change; but (ii) not to consider the effects on climate change of discharges into air of greenhouse gases.

The issue is relevant when consent authorities consider applications for resource consent under s 104(1) of the Resource Management Act 1991 (RMA) and the broader sustainable management purpose of the RMA through s 7(i) of the RMA which requires that particular regard be had to the effects of climate change.

Royal Forest and Bird Protection Society of New Zealand v Buller Coal Ltd [2012] NZHC 2156, [2012] NZRMA 552 (Royal Forest and Bird Protection Society).

2 Re Buller Coal Ltd [2012] NZEnvC 80, [2012] NZRMA 401 (Re Buller Coal Ltd).

3 Re Buller Coal Ltd, at [53].

4 Royal Forest and Bird Protection Society, at [5].

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The environmental groups ran a broad argument, including that greenhouse gas discharges from end uses should be a mandatory consideration5 and that the 2004 Amendment only related to discharge permits6 (which have additional considerations in the RMA).

The appellants also argued that not allowing such considerations would prevent local authorities having regard to greenhouse gas emissions in the performance of their primary functions, and the RMA does not contain this restriction.7

play when considering resource consent applications) would conflict with the carefully constructed regulatory regime.15

The respondents saw the 2004 Amendment as explicitly removing local authorities’ regulatory responsibilities with respect to effects of activities on climate change and placing those responsibilities at a national level.8 They considered a separation could be drawn between the effects of greenhouse gas emissions, which they argued was a national issue, and effects of climate change on activities, which remains a RMA consideration through s 7(i).9 Lastly, they argued that the activity of coal mining itself does not result in greenhouse gas emissions, so greenhouse gas emissions from end uses are not relevant considerations to the applications.10

Commentary

In addressing s 7(i) of the RMA, the Court held that s 7(i) does not derogate from the policy of the 2004 Amendment and can be read in harmony with it.16 Lastly, the Court noted the practical and legal issues with regulating discharges beyond New Zealand’s jurisdiction.17

This was a special case and the Court was careful to separate it from others — restricting the potential effect of the decision. To be clear, the Court was not suggesting that the effects of an activity located in New Zealand, but with effects extending overseas, are not capable of assessment. The Court said those cases involve scale, not jurisdiction and justiciability as the one before it did. Accordingly, the Court provided a clear and concise judgment on the issue.

The High Court held that the effect of the 2004 Amendment was an express, specific removal from consent authorities’ jurisdiction.11 It held that local authorities are to plan for the effects of climate change (including the effects of climate change on activities) but are not to consider the effects on climate change of discharges into air of greenhouse gases.12 In addition, the Court noted that the activity the Environment Court is concerned with is coal extraction, not discharges from the combustion of coal.13

Exceptional circumstances justify an appeal being heard directly by the Supreme Court (in addition to it being necessary in the interests of justice that the Court hear and determine the appeal).18 All parties argued in the leave hearing19 that receiving a final decision on the issue earlier rather than later was a matter of public importance warranting a direct appeal.20 This was in addition to it being desirable to avoid disruption in the individual cases.21 Although the Supreme Court was concerned about the lost opportunity to benefit from the views of the Court of Appeal, it decided that the substantive issues were important and the potential disruption to the Environment Court’s decision making if the usual course was followed justified the direct appeal.22

In considering the extent of the effects of activities that will be considered, the Court said that while it is common to consider the effects of downstream activities, the type of discharge there is regulated (and able to be regulated) by local authorities.14 The Court said that considering the effects on climate change of activities under wider sustainable management considerations (at

Although this case stems from an appeal to a declaration decision, which means the decision only answers the specific questions asked of the Court, a Supreme Court decision on the question will be an important precedent for other cases. Hopefully the simplicity of the question and the issue will lead to a clear and concise precedent from the Supreme Court.

Decision

At [7a].

At [7b].

7 At [7g].

8 At [9d] and [9e].

9 At [9g].

10 At [9h].

11 At [40].

12 At [40].

13 At [42].

14 At [43].

15 At [43].

16 At [49].

17 At [52].

18 Supreme Court Act 2003, s 14.

19 West Coast Ent Inc v Buller Coal Ltd [2012] NZSC 107.

20 At [3].

21 At [2].

22 At[4].

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SUMMER 2013 23

Book Review: “The Rule of Law”

by Tom Bingham Tom Bingham was once described by his school as the “brightest boy in a hundred years”. He went on to become a Queen’s Counsel at age 38, Master of the Rolls in 1992 and then Lord Chief Justice of England and Wales in 1996. I am of the view that drawing swords with a judge is poor strategy so I’m glad to say, as expected, that Tom Bingham’s form is supported by a significant portion of substance in this book. As acknowledgment, it received the Orwell Prize for literature in 2011.

JASON COOPER IS A LEGAL OFFICER AT THE NEW ZEALAND LAW SOCIETY

Brookers tells me that the phrase “rule of law” appears 1,304 times in New Zealand statutes, notably of course, in the Lawyers and Conveyancers Act 2006. It’s fair to say that if you have sworn an oath to the courts to uphold the rule of law and to facilitate the administration of justice then it is important to know what the rule of law means.

Bingham is quick to point out that it is an ambiguous concept which many are quick to use but slow to define.

Helpfully in chapter one, he gives us a pithy definition to recite at the next young lawyers’ event: …that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.

Through the course of this book, Bingham gently walks the reader through the major implications of the rule of law. They range from technical aspects such as ambiguously drafted legislation undermining the public’s access to justice, to some of the high level challenges to the rule of law in our international system including Guantanamo Bay, the invasion of Iraq and

extraordinary rendition. While much of the book is dedicated to a thorough description of the rule of law and covers familiar material, Bingham’s enthusiasm has an intoxicating effect. In the final paragraph he sheds his British reserve to conclude that “in a world divided by differences of nationality, race, colour, religion and wealth it is one of the greatest unifying factors, perhaps the greatest, the nearest we are likely to approach to a universal secular religion”.

If I were to wish for one more chapter, it would include an analysis of how the rule of law is challenged when states start to fail or are threatened with, for example, the Central American drug wars. I suspect there may be interesting historical analogies to draw, though some of these issues are touched on in the chapter on terrorism and Bingham does briefly mention the sufferings of judicial independence in Zimbabwe and Pakistan.

Reading this book helps explain that upholding the rule of law is not something that will sensibly appear on your “to do” list to be ticked off each morning. It separates the wood from the trees as issues relating to the rule of law appear scattered throughout a lawyer’s daily work.

Bingham takes a fluid topic and distills its essence in clear concise portions. This book explains a fundamental first principle of our legal system. It is an easy read and I definitely recommend it.

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YA/YLC Sports Day The Young Lawyers’ Committee took on the Young Accountants in netball and rugby on Saturday 23 February, at Evans Bay Intermediate School. The netball tournament got underway first, with four qualifying games before the final. The Russell McVeagh team won three of their games, but just missed out to NZICA when qualifying. The YLC and Minter Ellison teams were pooled with a very slick PWC team, who were the eventual winners, but both teams got wins under their respective belts / bibs. Unfortunately the Lawyers’ rugby team struggled for numbers — through the help of a large number of ring-ins, the team did get up over the Accountants, but there were some legitimate queries thrown about regarding “player eligibility”.

A BBQ was run throughout the day which was appreciated by the various sportspeople and their supporters. The after match function at the Poneke clubrooms was positively received, with a big meal of pizza and beer going down a treat. This was the first time that the YLC have attempted a sports event with the Young Accountants, next time we look forward to enjoying success in both sports, without any questions surrounding the legitimacy of our talent pool!

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Freshwater update in a nutshell The following timeline provides a summary of the litigious journey that is “asset sales and freshwater ownership” in New Zealand. From Waitangi Tribunal claims to the controversial passing of legislation, High Court proceedings and now with recent Supreme Court action, this information should provide the background necessary for any future debate on this hot topic.

KEITARIA HAIRA IS A SOLICITOR

19 May 2011 The New Zealand Government announced its decision to partially privatise the state-owned power companies Mighty River Power Limited (MRP), Genesis Power Limited, Meridian Energy Limited and Solid Energy (the SOEs).

Note the claims were to be heard in two stages. Stage one concerned the conversion of state-owned power companies into MOM companies. Stage two will consider the nature and extent of particular proprietary claims to water and is yet to be heard.

Nov 2011 The National Party is re-elected for another term in Government.

29 Jun 2012 The Mixed Ownership Model Bill is passed by a 61 to 60 majority!

Feb 2012 Formal consultation with Māori is undertaken by the Crown. A key issue at this stage is the inclusion of an equivalent “Treaty clause” in any new Mixed Ownership Model (MOM) legislative framework.

As a result, two pieces of legislation were enacted. The State-Owned Enterprises Amendment Act 2012 and the Public Finance (Mixed Ownership Model) Amendment Act 2012.

Feb 2012 The New Zealand Māori Council, along with ten coclaimant hapū and iwi, file two claims with the Waitangi Tribunal (Tribunal).

The Wai 2357 claim concerns the Crown’s policy to partially privatise the SOEs without first protecting or providing for Māori rights in the water resources used by these companies.

The Wai 2358 claim concerns the Crown’s actions and policies in respect to freshwater and geothermal resources. Note that the Tribunal later consolidated both claims under Wai 2358.

Mar 2012 The Mixed Ownership Model Bill is introduced to the House of Representatives and has its first reading.

28 Mar 2012 The Waitangi Tribunal grants urgency to hear the New Zealand Māori Council claims.

Despite the jurisdictional bar on the Tribunal’s ability to inquire into any Bill that has been introduced to the House, the Tribunal accepted that the Wai 2357 claim could proceed as a claim for the “preservation of remedy”.

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The SOE Amendment Act 2012 enables the Government

by Order in Council to change the status of the SOE companies to MOM companies.

Jul 2012 The Waitangi Tribunal stage one hearing is held over eight days with submissions and evidence presented on behalf of the claimants and the Crown.

24 Aug 2012 The Waitangi Tribunal Interim Report is released.

The Tribunal found that there is a nexus between the assets to be transferred (shares in power companies) and the Māori claim to interests in water used by the power companies sufficient to call a halt to the sale process until the Crown provided an agreed mechanism to preserve Māori rights and to provide redress for past Treaty breaches.

The Tribunal further acknowledged the potential significance of “Shares Plus” as a form of rights recognition and redress and that this could not be provided to Māori after the sale of shares occurs. The Tribunal recommended that the Crown urgently convene a national hui to determine a way forward.

Flickr user brunsdon

Note that Shares Plus is the concept of ownership of shares in conjunction with shareholder agreements and amended company constitutions.

18 Dec 2012 The New Zealand Māori Council and the Waikato River and Dams Claim Trust are granted leave to appeal the High Court decision directly to the Supreme Court.

Sep/Oct 2012 Shares Plus consultation hui held around New Zealand.

Jan/Feb 2013 Supreme Court appeal.

The Government declined to participate in a national hui and instead held six consultation hui regarding the Shares Plus concept with iwi and hapū it considered had a specific connection to the freshwater and geothermal resources used by MRP, Meridian Energy and Genesis Energy.

The appellants conclude the appeal on their claim that the MOM would impinge on the Crown’s ability to settle the unresolved issue of water rights.

Oct 2012 MRP share sale to proceed.

The Government announced that it would not implement the Shares Plus concept, would prepare an Order in Council to proceed with the removal of MRP from the SOE Act and would continue to work towards the sale of MRP shares between March and June 2013.

Both parties came under pressure when questioned by the full five Judge bench. At the hearing, counsel for the appellants explained that the Crown did not have an obligation to sell 49 per cent of shares, but only that it could sell up to that amount. He said that the Crown could create a class of shares that carried with it rights that relate to the Treaty right. Elias CJ asked, as an example, whether a protective mechanism could be that the Crown would not divest itself of say, 25 per cent, of the shares until there was some resolution.

The Court reserved its decision.

11 Dec 2012 High Court proceedings — New Zealand Māori Council v Attorney-General HC Wellington CIV 2012-485-2187, 11 December 2012.

The New Zealand Māori Council was joined by the Waikato River and Dams Claims Trust and the Pouakani Claims Trust in an application to challenge the Government’s decision to proceed towards the partial privatisation of MRP. Furthermore, if the decisions were reviewable, Ronald Young J decided that none of the grounds for review would succeed.

Just before publication, the Supreme Court delivered - Council v Attorneyits decision in New Zealand Maori General, holding that the Government’s decision to proceed with the partial privatisation of Mighty River Power was reviewable by the courts. But it concluded that the partial privatisation of Mighty River Power would not impair to a material extent the Crown’s ability to remedy any Treaty breach in respect of Maori interests in water: see New Zealand Maori Council v Attorney-General [2013] NZSC 6.

- Council v Attorney-General HC Wellington CIV 2012-485-2187, 11 December 2012; Waitangi Tribunal The Interim Report Sources: New Zealand Maori on the National Freshwater and Geothermal Resources Claim (Wai 2358, 2012); National Party press releases, including John Key “PM announces next steps for Mighty River Power sale” (press release, 15 October 2012) and Bill English and Tony Ryall “Government to pursue mixed ownership model” (press release, 19 May 2011).

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www.younglawyers.co.nz 28 YLC ADVOCATE