LegalResearchFoundation

Despite the adoption of the UN Declaration on the Rights of Indigenous Peoples in 2017, there is a lack of conceptual clarity behind Indigenous peoples' rights and a lack of consensus amongst scholars on their relationship to and with human rights. That confusion is reflected in decision-making in New Zealand: in the Human Rights Review Tribunal's decision in Bullock v Department of Corrections; Attorney-General and Crown law reviews of bills for consistency with the Bill of Rights Act 1990; the decisions of the High Court, Court of Appeal and Supreme Court in the Takamore litigation; and in the Waitangi Tribunal's Wai 2417 Report on the Māori Community Development Act 1962. To address both the conceptual uncertainty, and inconsistent approaches to Indigenous peoples' rights, I present a methodology designed to achieve a normatively fair balance between Indigenous individual human rights, Indigenous peoples' collective and evolved human rights, and Indigenous peoples' rights to authority.

This article examines the approach taken to the protection of liberty in the New Zealand Bill of Rights Act 1990 (NZBORA). Although its historical antecedents can be traced all the way back to Runnymede, the particular approach taken to the protection of liberty in the NZBORA is unusual in international terms. Specifically, the NZBORA does not contain a general right to liberty, instead preferring to delineate and protect specific instantiations of the right (such as the right to be free from arbitrary detention and the right to freedom of expression). The article places this somewhat idiosyncratic approach in its historical context, and outlines the reasons for it. It examines the significance of this approach for New Zealand law and, ultimately, questions whether it ought to be sustained.

This article considers how principles of New Zealand's environmental law can be applied to novel or emerging technologies. Specifically, it considers the example of regulating a novel technology called carbon capture and storage (CCS). The technology is one way to mitigate anthropogenic climate change, by capturing carbon dioxide (CO2) emissions at point sources (such as power or industrial plants) and injecting them into deep underground geological formations. It is already happening in many parts of the world. CCS can have adverse impacts on the local environment, but it also provides an opportunity to assist in mitigating global climate change. International experience of CCS reveals that the law can struggle to regulate novel technologies having environmental impacts. In many countries, law and policy makers have found themselves in a reactive position; industry has pressed forward with deployment, with government rushing to put appropriate environmental legal frameworks in place ex post facto. This regulatory panic has meant that choices of legal frameworks have not generally been based on close consideration of environmental legal principles, but rather on pragmatic questions of time, the location of technical expertise and resourcing. This can produce unexpected and undesirable results, as environmental laws designed for one context are applied to a completely different one. New Zealand, like some other countries, is in a fortunate position. This is because CCS has not yet occurred in its territory. There is a potentially brief but vital window of opportunity to consider how the technology should be regulated. This article argues that a close assessment of legal principles is required as a normative guide to CCS regulation, but that it can be extremely difficult to translate those principles to novel technological contexts. Nevertheless, it is an exercise well worth doing if the climate benefits of CCS are to be realised. It is also a conversation that is essential when countries are regulating novel technologies more generally. We live in an age where many such technologies are emerging — especially as responses to global environmental problems — and laws need to adapt in considered and principled ways.