In his seminal Environment Court decision, Marlborough Ridge v Marlborough District Council, Judge Jackson said “there is a distinct thread in the RMA which takes an economic approach to sustainable management of natural and physical resources.” In a later conference paper he expanded this argument, writing:

“The reason for my dealing with the subject of economics at all is that there is, from a lawyer's perspective, an economic “thread” running through the RMA. In fact, to continue the weaving metaphor, economics is more than a thread: it could be seen as the warp running at right angles to the weft of the law. Both make up the fabric of the Act.

A close reading of the RMA, and of sections 5 and 6 in particular, suggests that the economic and legal “threads” should be “coloured in” by drawing on the sciences, and especially the sciences of the biosphere.

Therefore you might expect university courses training students in Resource Management to be embedded in departments of economics or business, while drawing from a pool of graduate students with specialist knowledge in the relevant sciences.

But typically the staff employed in Councils’ “planning” departments have no training in either science or economics. Remarkably, the Auckland University “planning department” is housed within the National Institute of Creative Arts and Industries (NICAI). The Institute’s home page tells us:

NICAI brings together the University's School of Architecture and Planning, Elam School of Fine Arts, School of Music, the Dance Studies Programme and the Centre for New Zealand Art Research and Discovery (CNZARD) under one umbrella. It works from the principle that creativity emerges from drawing together different perspectives and types of specialist knowledge within an interdisciplinary framework.

This may well explain why most of our District and Regional planning documents are indeed works of Romantic aesthetism[i] rather than “a subset of economics” backed up by sound law, science, and engineering. Auckland University has decided that Resource Management is “a subset of urban design”.

Then Lincoln University’s course “ERST 601 – Advanced Theory in Resource Studies” includes the following topics:

Symbolic Interactionism,

Traditional ecological knowledge,

Feminist Epistemologies and methodologies.

Hermeneutics/Phenomenology

Dramaturgical Analysis

You get the drift.

The graduates of these planning schools should not be surprised if they find it difficult to find work in organizations actually trying to implement the RMA.

Curiously, when I studied for my Diploma in Town and Country Planning, during the early sixties, we students actually acquired some useful knowledge. Gerhard Rosenberg taught us much about the history of cities and introduced us to the theories of Christopher Alexander and others; Professor Ward grounded us in Cost and Benefit analysis; we had an excellent course in Traffic Engineering; Mike Prichard’s courses in Urban Geography opened the door to urban economics. We had lectures from valuers and surveyors, while the renowned lawyer Frank Haig taught us much about the legal framework of planning law, how to be a good witness, and so on.

This was a Graduate Diploma Course so we all came to the classes with an existing body of applicable knowledge. No one suggested our mission was to save the planet. We would have laughed out loud.

Graduates from a Business School or Economics Department, holding a Graduate Diploma or Masters Degree in real Resource Management will be snapped up by Councils desperate for people willing and qualified to implement the Act. Councils want them – but currently they search in vain.

As Director of the Centre for Resource Management Studies, I am currently part of a group taking a hard look at reforming the RMA. It is fair to say that all of us are aware of the crucial role of secure property rights in promoting social wellbeing, economic growth and development, as well as proper stewardship of the environment. We are all aware of the “tragedy of the commons” and the need to internalize externalities to improve the operation of markets. The Act presently makes it too easy to over-ride or ignore our rights in property. The main outcome of many hearings under the RMA is for rights in property to be taken for “the public good” without compensation even being considered – let alone offered.

It is easy to believe that such concerns will be “common ground”.

However, if we revisit Auckland University we find Prue Taylor, a senior lecturer in “Planning”, is quoted in the Alumni Magazine Ingenio (spring 2007) as “hard-hitting in her demands for change”. She says:

Quite simply we [humans] behave as if we were independent from the Earth’s systems, and as a consequence we plunder its fruits faster than they can be replenished and pollute its reserves of air, water, sea and land faster than these wastes can be absorbed.”

These claims are taken as self-evident truths. Ms Taylor is part of a team writing a book called “Carbon Neutral by 2020.” Presumably the authors have cracked the problem posed by calculating the carbon footprint of the simple pencil. We shall see.

In his chapter, Dr Klauss Bosselman, Director of the Centre for Environmental Law in the Faculty of Law, “strikes to the heart of the conceptual base on which civilization rests.”

This seems to make him happy. Some might beg to differ.

Sustainability, he asserts, “is as fundamental to human rights as justice or freedom.”

Now I happen to totally disagree, if only because “sustainability” is undefined and indefinable. However, the salvationist Dr Bosselman obviously believes his belief is beyond challenge, and goes on:

“Human rights are essential to the rule of law, and sustainability is essential to the concept of human rights. We have a fundamental requirement to sustain for the future.”

“Sustain what for the future?” one might well ask.

Just in case we miss the point, he adds that sustainability “has to be a legally binding requirement, extending beyond the limits of democracy,” and “Democratic models are not usually concerned with outputs. Democracy brings a deficit of long-term commitments.”

He concedes that New Zealand already has the Resource Management Act to promote environmental law, but he claims “it is weakened by its restriction to resource consents and by the primacy of property law.” Those property rights really are a bummer.

“This country puts few curbs on ownership rights and demands no duty of care for the land, which is built into the constitutions of many other countries.” My Google search reveals that Ethiopia and the Republic of South Africa do have such a duty of care built into their UN style constitutions. The Australian States talk about the idea – endlessly.

I am not highly motivated to join in.

However, we find the courts in Kenya acknowledge that the Anglo-American common law does embody a “duty of care” towards our neighbours’ quiet enjoyment of their own land. I suspect that few of us have any problems with this duty because such a “duty of care” arises out of a relationship between citizen and citizen. But Dr Bosseleman believes this is not enough for his brave new world and wants to codify a duty of care between the citizen and the state, within some constitutional framework.

And, along the way, he wants us to ditch our old-fashioned attachments to democracy along with our common law rights in property.

The Ingenio article is written in a wonderfully up-beat “jolly hockey-stick” style; Carbon Neutral by 2020 author Niki Harre writes:

“For me now, personally, almost everything I do has a consciousness about having an impact on the planet and on social justice. … Thinking about climate change makes you realize that at the bottom line each other is all we’ve got. And this incredibly positive project is not about anyone winning because either we all win or we all lose.”

Why do I feel so depressed?

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