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Hollis, Sacha --- "Old solutions to new problems: providing for intergenerational equity in national institutions" [2010] NZJlEnvLaw 3; (2010) 14 NZJEL 25

Last Updated: 30 January 2023

Old Solutions to New Problems: Providing for Intergenerational Equity in National Institutions

Sacha Hollis*

Concern for future generations or the concept of intergenerational equity is a fundamental tenet of environmental law, recognised in international declarations and national legislation. There is justification for protection of the environment for future generations from both religious and evolutionary perspectives. In spite of this, the rights of future generations that require protection are not always obvious, and as future generations are not represented in environmental decision- making or legal proceedings it is argued that these rights are not given effect to. This article traces the development of the theory of intergenerational equity through international law. Recognition of the rights of future generations in national law is then analysed and the effectiveness of implementation of these rights considered. Various options are also proposed with the aim of improving the implementation of the rights of future generations in the hope that this will assist with more effective environmental protection for all generations.

1. INTRODUCTION

Humanity is depleting the planet’s life-sustaining natural resources at an alarming rate. Half of the world’s original forest is gone and there are “now 200 ‘dead zones’ in the world’s oceans, covering tens of thousands of square miles”.¹

*Sacha Hollis, BA (Geography), LLB (Canterbury). Email sacha.hollis@gmail.com. Sacha is a solicitor who has practised in the field of resource management law. This paper was submitted as part of a Master of Laws degree at the University of Auckland in 2009.

1 Mary Christina Wood, “Advancing the Sovereign Trust of Government to Safeguard the Environment for Present and Future Generations (Part I): Ecological Realism and the Need for a Paradigm Shift” (2009) 39 Environmental Law 43, at 47.

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Many species are facing extinction resulting in a significant loss of biodiversity. Soils, lakes, rivers, oceans and the atmosphere are polluted. Climate change is resulting in rising sea levels which is already having a devastating impact on Pacific Island states such as Tuvalu.² Unrestrained development and the depletion of natural resources occur at the expense of other species and future generations of our own species. The ability of future generations to inherit the planet in a state that will sustain successive generations has already been severely compromised, and continues to be so. What is required is an enlargement of “our perspective to a concern for the inherent or intrinsic value of other species (i.e. a shift from anthropocentrism to ecocentrism or biocentrism) and to a concern for future generations of our own species [as this] would help us begin to grasp and deal with the full extent of the environmental problems facing planet Earth”.³

These environmental problems are not contained within political borders and as such adversely impact upon the common heritage of humanity. Therefore action is required at all levels (international, regional, national and local) to prevent or at least reduce environmental degradation. While it is not clear to what extent the law (international or national) can bring about the level of change required to protect the environment, effective implementation of existing environmental protection laws is crucial. International law provides the overarching framework in which state and non-state actors (individuals and organisations) must act to prevent environmental damage.

International environmental law has four main concepts aimed at environmental protection: sustainable development; the common heritage of mankind; common concern of humanity; and the rights of future generations.⁴ The concept of rights for future generations flows through the other concepts; and these rights, which are “given prominence in international environmental law, can constitute a general guideline for regulation and action”.⁵ Ensuring environmental decision-making accords with the needs of future generations is therefore necessary to prevent future environmental harm. This is an outstanding feature of many cultural traditions, where the rights of future generations “must be recognised in the present”.⁶ These cultures — “Hindu, Buddhist, Chinese, African, Melanesian, Polynesian and others — can contribute new

2. Alexandra Berzon, “Tuvalu is Drowning”, available at <http://www.salon.com/news/ feature/2006/03/31/tuvalu/> (last viewed 4 July 2009).
3. Jerry V DeMarco, “Law for Future Generations: The Theory of Intergenerational Equity in Canadian Environmental Law” (2004) 15 JELP 1, at 2.
4. Kiss & Shelton, International Environmental Law (2nd ed, Ardsley, New York, Transactional Publishers, 2000) at 248.
5. Ibid.
6. C G Weeramantry, “Cultural and Ideological Pluralism in Public International Law” in N Ando et al (eds), Liber Amicorum Judge Shigeru Oda (Kluwer Law International, 2002) 1491, at 1503.

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facets to public international law”,⁷ particularly in the realm of international environmental law by promoting an ethic of environmental stewardship.

Modern international law first acknowledged an obligation towards future generations in the Stockholm Declaration of 1972.⁸ The needs of future generations have since been recognised in further international declarations and conventions. Arguably the most well-known acknowledgement of future generations comes from the definition of sustainable development in the 1987 Brundtland Report.⁹ States have also argued for the protection of the environment for future generations in cases before the International Court of Justice.¹⁰

The development of the concept of intergenerational equity at international law has resulted in states making provision for future generations in domestic legislation and institutions. Acknowledgement of future generations at a national level has occurred by way of a variety of methods ranging from incorporating these obligations into state constitutions or legislation. National courts have also recognised the rights of future generations to a healthy environment.

The purpose of this article is to examine the obligations that exist at law to protect the environment for future generations and to consider the models for providing effective implementation of the rights of future generations. An area of potential development in legal institutions is the provision of a commissioner or ombudsman to review, report and intervene with regard to matters that affect the rights of future generations. The state of Hungary enacted legislation in 2007 which enables the appointment of a Parliamentary Commissioner for Future Generations. This resulted in the first ever Parliamentary Commissioner for Future Generations being appointed in May 2008. The appointment of this Commissioner represents an important development in the implementation of the rights of future generations in national legal institutions. The need for guardians or trustees to protect or advocate the interests of future generations will also be considered in this article. It is argued that these models can be developed at the national level to ensure that future generations’ rights are implemented. Ultimately this article will look at the development of various concepts in several jurisdictions and will consider the ways in which these models could be implemented at the national level, with a specific focus on

7. Ibid.
8. Principle 1 Stockholm Declaration of the United Nations Conference on the Human Environment, UN Doc A/Conf 48/14 (1972) (hereinafter the “Stockholm Declaration”), available at <http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=97 & ArticleID=1503 & l=en> .
9. World Commission on Environment and Development (1987), Our Common Future, “Brundtland Report” (Oxford and New York University Press), 65 defines sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.
10. New Zealand vs France (Nuclear Tests Case) 1995 ICJ Reports 339 (“Nuclear Tests Case”).

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improving the implementation of environmental protection legislation in New Zealand.

2. THE CONCEPT OF INTERGENERATIONAL EQUITY

Environmental law:¹¹

springs from the understanding that the environment determines the form and survival of an organism or community; thus national, regional and international efforts must be taken to ensure the continued viability of the planet and the sustainability of its myriad of species.

The concept of intergenerational equity seeks to ensure the continued viability of the planet by providing that each generation must protect the Earth’s resources for generations to come. The concept of intergenerational equity provides that:¹²

Each generation has an obligation to pass on the natural and cultural resources of the planet in no worse condition than received and to provide reasonable access to the legacy for the present generation.

This obligation can be seen as a moral obligation,¹³ but the need to conserve resources for future generations has also been argued to be necessary from an evolutionary perspective¹⁴ whereby: “Our prime normative obligation is to facilitate the survival, evolution and integrative expansion of our We.”¹⁵ Future generations’ need for a healthy environment arises from an interest in ensuring the survival of the human species and this “requires that ‘humanity’ be seen to include not only the present but future generations”.¹⁶ Concern for future

11. Kiss & Shelton, supra note 4, at 2.
12. Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity (United Nations University Press, Tokyo, 1989) at 37–38.
13. Bradford C Mank, “Standing and Future Generations: Does Massachusetts v EPA Open Standing for Generations to Come?” [2009] 34 Columbia Journal of Environmental Law 1, at 16.
14. Theodore P Seto, “Intergenerational Decision Making: An Evolutionary Perspective” [2001] 35 Loyola of Los Angeles Law Review 235.
15. Ibid, at 275. Refer also to ibid, at 253 where Seto views “We” as being any group which has achieved an ethos of co-operation in order to adapt and survive — for example, “We” has expanded from “the tribe to the city-state to the ethnic group to the nation-state to the species”.
16. Kiss & Shelton, supra note 4, at 15.

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generations is therefore implicit in protecting the environment and preserving natural resources, and this is particularly apparent in the concept of sustainable development.¹⁷

There are three legal questions regarding future generations that require clarification: “the definition of what is a generation, the content of the rights, and finally, the means for their implementation”.¹⁸ This article will attempt to address the latter two questions with a particular emphasis on the question of implementation.

In answering these legal questions, it is noted that firstly, the definition of future generations proposed is “future humanity as the holder of rights, recognizing the whole of humanity, including present and future members, as a legal person, subject to law and a potential bearer of rights and duties”,¹⁹ it being impossible to determine distinct generations at any point in time.

Secondly, it is noted that the rights of future generations are the subject of much debate. At the heart of this debate is the thesis that any protection of the rights of future generations must limit the development opportunities of those currently living. Suffice to say that the broadest possible interpretation should be given to these rights to “reflect the wider interests of future humanity”.²⁰

The rights of future generations are enunciated in Edith Brown Weiss’s three basic principles of intergenerational equity which provides for:²¹

(1) Conservation of Options — the diversity of the natural and cultural resource should be conserved so that the options of future generations are not unduly restricted. Future generations should be entitled to diversity comparable to that of previous generations.

(2) Conservation of Quality — the quality of the planet should be maintained so that it is passed on in no worse condition than the condition in which it was received.

(3) Conservation of Access — each generation should provide its members with equitable rights of access to the legacy from past generations and should conserve this access for future generations.

Some commentators have critiqued the theory of intergenerational equity as being concerned only for the welfare of humanity²² and that as such it does not go far enough to provide for environmental protection. However, while

17. Ibid.
18. Kiss & Shelton, supra note 4, at 255.
19. Ibid.
20. Ibid.
21. Weiss, supra note 12, at 38.
22. Klaus Bosselmann, The Principle of Sustainability: Transforming Law and Governance

(Ashgate Publishing Limited, Aldershot, Hampshire, 2008) at 33.

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the third principle of Edith Brown Weiss’s formulation of intergenerational equity appears to be anthropocentric, the former two principles “describe duties towards the community of life”,²³ and as such this concept of intergenerational equity imposes an ecocentric duty on each generation to protect the environment for the future.

Thirdly, it is argued that international instruments do not provide guidance for implementing these rights.²⁴ The implementation of these rights at the national level will be the subject of this article.

Vice-President Weeramantry of the International Court of Justice in Gabcˇíkovo-Nagymaros ²⁵ while considering the concept of sustainable development discussed the sources of international environmental law and considered that the court had a duty to draw upon the wisdom of the world’s civilisations, “where such a course can enrich its insights into the matter before it”.²⁶ In his decision Judge Weeramantry drew on principles from several of the world’s religions, making specific reference to the principle of guardianship in Buddhism²⁷ and Islamic law²⁸ where “land is held in trust, with all the connotations that follow of due care, wise management, and custody for future generations”.²⁹ He went on to state that “the ingrained values of any civilisation are the source from which its legal concepts derive”.³⁰ Intergenerational equity then, is a principle of natural law, a timeless obligation owed by each generation to successive generations. This has been recognised by the development of the concept of intergenerational equity in modern international law.

3. RECOGNITION OF FUTURE GENERATIONS AT INTERNATIONAL LAW

The rights of future generations were first recognised in modern international law in international declarations. The Stockholm Declaration on the Human Environment 1972 provides in Principle 1:³¹

23. Ibid.
24. Kiss & Shelton, supra note 4, at 256.
25. Case concerning the Gabcˇíkovo-Nagymaros Project (Hungary/Slovakia) 1997 ICJ, (1998)

37 ILM 162 (“Gabcˇíkovo-Nagymaros”), available at <http://www.icj-cij.org/docket/ files/92/7375.pdf> .

26. Ibid, at 97.
27. Ibid, at 102.
28. Ibid, at 108.
29. Ibid.
30. Ibid.
31. Stockholm Declaration, supra note 8.

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Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. (emphasis added)

Three international conventions also adopted the concept of protecting the natural environment for future generations more or less contemporaneously with the Stockholm Declaration.³²

Preserving natural resources for the benefit of future generations is one of four recurring elements that appear to comprise the legal elements of the concept of sustainable development.³³ The principle of sustainable development, the most accepted definition of which is found in the Brundtland Report as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”,³⁴ “exemplifies the consideration given to the needs of future generations”.³⁵ This consideration was again acknowledged in the Rio Declaration of the United Nations Conference on Environment and Development which declared “the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations”.³⁶ The United Nations Educational, Scientific and Cultural Organisation Declaration on the Responsibilities of the Present Generations Towards Future Generations also embodies this concern for future generations.³⁷

International environmental conventions have created an obligation on

32. Weiss, supra note 12, at 29. The Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, 15 February 1972, 26 UST 2403, TIAS No 8165; Convention on International Trade in Endangered Species of Wild Fauna & Flora, 3 March 1973, 27 UST 1087, TIAS No 8249; Convention Concerning the Protection of the World Cultural and Natural Heritage, 23 November 1972, 27 UST 37, TIAS No 8226.
33. Philippe Sands, Principles of International Environmental Law I: Frameworks, standards and implementation (Manchester University Press, Manchester and New York, 1995) at

199. The other elements comprising the legal concept of sustainable development are: the principle of sustainable use; the principle of intragenerational equity; and the principle of integration.

34. Brundtland Report, supra note 9.
35. Science and Environmental Health Network and the International Human Rights Clinic at Harvard Law School, “Models for Protecting the Environment for Future Generations” (October 2008), available at <http://www.la w .harvard.edu/programs/hrp> .
36. Rio Declaration on Environment and Development, principle 3, UN Doc A/CONF151/26 (Vol I) (1992) (“the Rio Declaration”).
37. United Nations Educational, Scientific and Cultural Organisation, Declaration on the Responsibilities of the Present Generations Towards Future Generations, Records of the General Conference, Paris, 21 October–12 November 1997, Arts 1–5, available at <http:// portal.unesco.org/en/ev.php-URL_ID=13178 & URL_DO=DO_PRINTPAGE & URL_ SECTION=201.html> .

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contracting parties to provide for the needs of future generations. Notably, Article 3 of the United Nations Framework Convention on Climate Change provides that:³⁸

The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. (emphasis added)

In the Preamble of the United Nations Convention on Biological Diversity (“Convention on Biological Diversity”) the contracting parties “determined to conserve and sustainably use biological diversity for the benefit of present and future generations”.³⁹ The UN Framework Convention on Climate Change (“UNFCCC”) and the Convention on Biological Diversity recognise not only the principle of intergenerational equity but also the concept of intragenerational equity, recognising the disparity between “inhabitants of the planet within a single generation and fairness to use the resources of the planet within this generation”.⁴⁰

The International Court of Justice considered the concepts of intergen- erational equity and sustainable development in its decision in the case of Gabcˇíkovo-Nagymaros.⁴¹ The Court stated:⁴²

Owing to new scientific insights and to a growing awareness of the risks for mankind — for present and future generations — of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past.

The majority of the Court in Gabcˇíkovo-Nagymaros took a conservative approach by refusing to recognise sustainable development as anything more than a “concept” of international law. This “spurred Judge Weeramantry, in his separate comments, to proclaim sustainable development to be much more

38. UN Framework Convention on Climate Change opened for signature 9 May 1992, 1771 UNTS 107 (entered into force 21 March 1994) (“UNFCCC”).
39. United Nations Convention on Biological Diversity opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993).
40. Dr Laura Horn, “Climate change litigation actions for future generations” (2008) 25 EPLJ 115, at 116.
41. Gabcˇíkovo-Nagymaros, supra note 25, at para 140 (emphasis added).

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than a concept”.⁴³ In the Separate Opinion of Vice-President Weeramantry the principle of sustainable development was considered to be so well recognised as to be a norm of customary international law.⁴⁴ Vice-President Weeramantry concludes that:⁴⁵

The principle of sustainable development is thus a part of modern international law by reason not only of its inescapable logical necessity, but also by reason of its wide and general acceptance by the global community.

The International Court of Justice had the opportunity to more specifically consider the position of future generations in the Nuclear Tests Case.⁴⁶ The case raised, “as no case before the Court has ever done, the principle of intergenerational equity — an important and rapidly developing principle of contemporary environmental law”.⁴⁷ New Zealand was seeking to continue proceedings it filed in 1973 against France for its nuclear testing in the South Pacific. One argument put forward by New Zealand was the impact that nuclear testing had on future generations. Judge Weeramantry considered that the effect of nuclear testing:⁴⁸

... does not relate only to the rights of people presently in existence. The rights of the people of New Zealand include the rights of unborn posterity. Those are rights which a nation is entitled, and indeed obliged, to protect.

The dissenting opinions of Judge Weeramantry in the foregoing cases from the International Court of Justice indicate that there is willingness to recognise the importance of intergenerational equity. Commentators on the decision in Gabcˇíkovo-Nagymaros have stated that “sustainable development has, therefore, sufficient normative character to justify its classification as a legal principle”.⁴⁹ The recognition of sustainable development as a principle of international law does not necessarily mean that sustainable development can be seen as forming part of customary international law.⁵⁰ To prove that a legal principle forms part of customary international law requires evidence of consistent

43. Prue Taylor, “The Case Concerning the Gabcˇíkovo-Nagymaros Project: A Message from The Hague on Sustainable Development” (1999) 3 NZJEL 109, at 115.
44. Ibid.
45. Gabcˇíkovo-Nagymaros, supra note 25, Separate Opinion of Vice-President Weeramantry, at 92, available at <http://www.icj-cij.org/docket/files/92/7383.pdf> .
46. Nuclear Tests Case, supra note 10.
47. C G Weeramantry, Universalising International Law (Brill Academic Publishers, Netherlands, 2004) at 257.
48. Nuclear Tests Case, supra note 10, Dissenting Opinion of Judge Weeramantry, at 341. 49 Bosselmann, supra note 22, at 56.

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state practice.⁵¹ State practice can be discerned from several sources including national legislation and the decisions of national courts.⁵² States have developed and employed various methods to give effect to their international obligations to protect future generations within their own jurisdictions.

4. STATE IMPLEMENTATION OF THE RIGHTS OF FUTURE GENERATIONS

International law provides the foundation for protecting the environment through international declarations, conventions and even customary law. However, international environmental obligations are different from most obligations at international law, as states are called upon to “regulate the behaviour of non- state actors that are the source of most harm to the environment”.⁵³ Therefore a state’s obligations “must be implemented in national law to control the non-state actors within the state’s territory and jurisdiction”.⁵⁴ This section will consider the provision of rights for future generations in national law. Several theories proposed by international jurists as means of protecting the environment for posterity will also be considered.

4.1 Recognition in Legislation

The simplest method for protecting the environment for future generations is through legislation. Many states have enacted environmental protection legislation which includes references to future generations.⁵⁵ The USA federal National Environmental Policy Act 1969⁵⁶ is procedural only in that it requires agencies to consider the long-term environmental impacts of a project rather than providing any substantive rights of protection to future generations.⁵⁷

51. Sands, supra note 33, at 118.
52. Ibid. Other sources from which state practice can be discerned are: ratification of treaties; participation in treaty negotiations and international meetings; votes and other acts in the UN General Assembly; statements by ministers, and other governmental and diplomatic representatives; and legal opinions by government lawyers.
53. Kiss & Shelton, supra note 4, at 25.
54. Ibid.
55. By way of example: Resource Management Act 1991 (NZ) s 5; Natural Environment and Rural Communities Act 2006 (UK) s 2; National Environmental Policy Act of 1969 (USA), 42 USC § 4331(a) (2006); Canada National Marine Conservation Areas Act SC 2002 c 18 (Canada) s 4(3).
56. Ibid.

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Australia’s Environment Protection and Biodiversity Conservation Act 1999 includes in s 3 that one of the objects of the Act is:⁵⁸

(b) to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources; ...

The definition of ecologically sustainable development is provided in s 3A:⁵⁹

The following principles are principles of ecologically sustainable development:

(a) decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations;

(b) if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation;

(c) the principle of inter-generational equity — that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;

(d) the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making;

(e) improved valuation, pricing and incentive mechanisms should be promoted.

“Ecologically sustainable development” (“ESD”) has been criticised as “a vague, contradictory concept”⁶⁰ and this has led to, at the practice level, “very few examples one can point to of effective ESD implementation”.⁶¹ Therefore, despite the fact that “the development of the ESD concept in Australia seems impressive on the surface, there is little underlying substance when it comes to practical implementation”.⁶²

In New Zealand the purpose of the Resource Management Act 1991 (“the RMA”) provides in s 5:

5. Purpose

(1) The purpose of this Act is to promote the sustainable management of natural and physical resources.

(2) In this Act, sustainable management means managing the use, develop- ment, and protection of natural and physical resources in a way, or at a

58 Environment Protection and Biodiversity Conservation Act 1999 (Aust). 59 Ibid, s 3A (emphasis added).

60. Jacqueline Peel, “Ecologically sustainable development: more than mere lip service?” (2008) 12 Australasian Journal of Natural Resources Law and Policy 1, at 2.
61. Ibid, at 3.

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rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while—

(a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and

(b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and

(c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment.

In New Zealand all environmental decision-making must be consistent with the sustainable management purpose of the RMA. Whilst future generations are a matter to be weighed and considered when balancing the competing interests in s 5, the courts have arguably failed to adequately consider the needs of future generations and how best to provide for those needs in environmental decision- making.⁶³ Arguably this is largely because the RMA provides no guidance as to the rights or needs that could legitimately be expected to be upheld for future generations. Nor does the Act give any guidance as to the definition of future generations. Generally speaking, the rights of future generations is a matter which the court must consider; but in many cases a finding is made that the proposal before the court will not impact on the needs of future generations without the court making any detailed assessment as to what the needs of future generations may be. In order for the needs of future generations to be given adequate consideration environmental groups or individuals would need to advocate these rights before the court. Therefore, despite the provision in legislation for consideration of future generations’ needs, these needs are not adequately assessed and therefore are arguably not effectively implemented.

In spite of the recognition of future generations within legislation, effective implementation of these provisions is required to realise the rights provided at law. Courts and decision-makers currently engage in a balancing exercise weighing the needs of future generations against the development needs of the present; and “despite courts’ best efforts, the need to balance the rights of present and future generations and the reality of finite resources sometimes make future generations’ interests more aspirational concepts than self- executing and judicially enforceable obligations”.⁶⁴

63 For example, in Villages of NZ (Mt Wellington) Limited v Auckland City Council A023/09 (Judge L J Newhook) the Court anticipated that a designation for a sports field would meet the recreational needs of future generations. In Glentarn Group Limited v Queenstown Lakes District Council C010/09 (Judge F W M McElrea) an application to construct a dwelling in an outstanding landscape was not considered to diminish the potential of the land to meet the needs of future generations.

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4.2 Judicial Decisions

In some states, domestic courts have been willing, in some circumstances, to give consideration to the needs of future generations. Possibly the most important case which illustrates this is the decision of the Supreme Court of the Philippines in Minors Oposa v Secretary of the Department of the Environment and Natural Resources (DENR).⁶⁵ The case was brought by “Oposa, his children, other children and their parents, unnamed children of the future”⁶⁶ against the Department of Environment and Natural Resources for granting timber licensing agreements “for over 10 million acres of virgin timber”.⁶⁷ The Supreme Court, considering the argument raised by Oposa based upon Edith Brown Weiss’s concept of intergenerational equity, held that the country’s resources must be “equitably available to the present as well as future generations”.⁶⁸ The Supreme Court held therefore that each generation had a “responsibility to the next”⁶⁹ to preserve the environment. “This obligation was the basis for its standing to sue, for its own sake and for those to come.”⁷⁰ Having established that future generations had standing the Supreme Court then went on to hold:⁷¹

The right to a balanced ecology ... belongs to a different category of rights altogether for it concerns nothing less than the right to self-preservation and self-perpetuation ... the advancement of which might even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of mankind.

On this basis the Supreme Court stated that the timber licensing agreements could be withdrawn for the public welfare. Following this decision the annual rate of deforestation did fall; the reduction in felling was not ordered by the Court but the Court had provided a way of compelling the government to act.⁷² This case represents an enormous development in the concept of protecting the environment for future generations, particularly as the case was brought in a

65 Minors Oposa v Factoran 224 SCRA 792 (SC 30 July, 1193) reprinted in (1994) 22 ILM

173.

66. Oliver A Houck, “Light from the Trees: The Stories of Minors Oposa and the Russian Forest Cases” [2007] 19 Georgetown International Environmental Law Review 321, at 334.
67. Ibid, at 333.
68. Minors Oposa v Factoran, supra note 65, at 185; see also Houck, supra note 66, at 336. 69 Ibid.

70 Houck, supra note 66, at 336.

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country in which state-sanctioned environmental degradation had been taking place for decades.⁷³

The Supreme Court of Canada has also incorporated the principle of intergenerational equity in some of its decisions⁷⁴ and has referred to:⁷⁵

... the need to interpret statutes in conformity with international law, and thus, because numerous sources of international law and policy embrace the theory of intergenerational equity, there is an opportunity to use it in the same manner (i.e. as an interpretive aid).

The courts in Canada have therefore assisted with the development of concern for future generations in Canada by interpreting legislation having regard to the principle of intergenerational equity.

The Supreme Court has also taken this a step further in the Canadian Forests case through its discussion of the concept of the “public trust”. DeMarco considers that the Canadian Forests case invites “greater use of that doctrine to expand the ability of Canada’s common law to foster environmental protection”.⁷⁶ The public trust doctrine has been applied more widely in the United States of America. The doctrine has at its core the principle that “every sovereign government holds vital natural resources in ‘trust’ for the public — present and future generations of citizen beneficiaries”.⁷⁷

The public trust doctrine is an ancient concept. It has been acknowledged that “trust-like stewardship concepts have been central to indigenous governance back to time immemorial”.⁷⁸ The doctrine was recognised in ancient Roman law. The Institutes of Justinian “recognised that certain types of property were communal property for the benefit of the general public”.⁷⁹ The English courts later adopted the doctrine from the Romans and “gave the Crown possession on behalf of the public of the sea, the rivers and land underlying the waters seaward of the high water mark”.⁸⁰ The public trust doctrine was adopted in the United States of America in 1892 in the case of Illinois Central Rail Road Co v Illinois (Illinois Central) ⁸¹ where “the Supreme Court held that the shoreline of

73. For a discussion of the history of timber felling in the Philippines, see Houck, supra note 66.
74. Imperial Oil Limited v Quebec (Minister of the Environment) [2003] 2 SCR 624 and British Columbia v Canadian Forest Products Limited, 2004 SCC 38 (“Canadian Forests case”).
75. DeMarco, supra note 3, at 46.
76. Ibid, at 44.
77. Wood, supra note 1, at 45.
78. Ibid, at 69.
79. Mank, supra note 13, at 83.

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Lake Michigan was held in public trust by the State of Illinois and could not be transferred out of public ownership to a private railroad corporation”.⁸²

Wood discusses how the public trust doctrine relates to each branch of government:⁸³

The legislature is the trustee of the assets in its role as primary governing branch of the sovereign. The executive branch is by nature an “agent” of the legislature. Thus on both the federal and state level, agencies are agents of the trustee, encumbered with the duty to carry out the sovereign trust obligations.

The judicial branch remains the ultimate guardian of the trust.

On the basis of the public trust doctrine the judiciary has the obligation of policing the legislature’s management of public resources. It is argued that an advantage of the doctrine, as a creation of common law, is its flexibility and therefore the doctrine is able to be adapted to societal needs.⁸⁴ However, in order for the judiciary to assert its role as guardian of the trust, the decisions of the executive (as manager of the trust’s assets) must be brought before the courts. The doctrine of the public trust is therefore dependent on there being willing litigants to bring decisions regarding the management of resources before the courts. Wood acknowledges that “the public has become disenfranchised within this system of environmental law”,⁸⁵ adding that “[m]ost individuals also lack the time or expertise to fully engage in the comment process”.⁸⁶ Therefore, while the common law provides a doctrine which charges the executive and legislature to protect the environment for its citizens — both present and future

— the enforcement of this doctrine is highly dependent on the public enforcing these trust obligations through the courts. In the United States, individuals are not likely to have sufficient standing to bring a suit against the government for failure to protect the environment for future generations.⁸⁷ Consequently, reliance on the public to have decisions of the government reviewed in order to protect the rights of future generations may render the public trust doctrine ineffective.

82. Wood, supra note 1, at 68.
83. Ibid, at 75.
84. Ibid, at 78.
85. Ibid, at 59.
86. Ibid.
87. For a discussion of standing, see Mank, supra note 13.

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4.3 State Constitutions

Protection of the needs of future generations has also been codified in state constitutions. While legislation can be substituted or repealed, constitutional recognition of future generations has two advantages:⁸⁸

(1) Constitutional laws take precedence over ordinary legislation; and

(2) It is more difficult to change the constitution than to enact ordinary legislation.

Several states have provided for protection of the environment and the protection of future generations as constitutional rights. The Constitution of the Philippines provides:⁸⁹

The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.

This provision in the Constitution assisted the Supreme Court of the Philippines in determining that:⁹⁰

Oposa had the right to represent his generation’s interest in environmental quality as well as that of succeeding generations. The right flowed naturally, in the Court’s mind, from the Constitution’s chosen language, “the rhythm and harmony of nature”.

The Constitution of Bolivia provides:⁹¹

Every person has the following fundamental rights ...

(m) to enjoy a healthy environment, ecologically balanced and adequate for his wellbeing, safeguarding the rights of future generations.

Japan recognises the rights of future generations in its Constitution:⁹²

88. Kristian Skagen Ekeli, “Green Constitutionalism: The Constitutional Protection of Future Generations” (2007) 20 Ratio Juris 3, at 380.
89. Constitution of the Philippines (1987) Art II § 1, Art XII § 4 (Phil). 90 Houck, supra note 66, at 336.
91. Constitución Política de la República de Bolivia, Art 7 (1967, as amended 2002), available at <http://pdba.georgetown.edu/constitutions/bolivia/consboliv2005.html> “Models for Protecting the Environment for Future Generations”, supra note 35, at 38.
92. Constitution of Japan, Arts 11 and 97 (3 November 1946), available at <http://www. constitution.org/cons/japan.txt> “Models for Protecting the Environment for Future Generations”, supra note 35, at 38.

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Article 11

The people shall not be prevented from enjoying any of the fundamental human rights. These fundamental human rights guaranteed to the people by this Constitution shall be conferred upon the people of this and future generations as eternal and inviolate rights.

Article 97

The fundamental human rights by this Constitution guaranteed to the people of Japan are fruits of the age-old struggle of man to be free; they have survived the many exacting tests for durability and are conferred upon this and future generations in trust, to be held for all time inviolate.

The Japanese Constitution does not specifically provide its citizens with rights to a healthy environment. Article 11 does provide that all fundamental human rights are conferred on future generations. It could therefore be argued that the right to a healthy environment is a fundamental right and therefore pursuant to the Japanese Constitution must be a right conferred on future generations of Japanese citizens.

The Constitution of South Africa recognises future generations’ right to have their environment protected. Section 24 provides:⁹³

Everyone has the right—

(a) to an environment that is not harmful to their health or well-being; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that:

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

The Constitution of Norway provides a substantive right to a healthy environ- ment for future generations. Norway’s Constitution also provides a procedural right to information on the state of the environment. It provides:⁹⁴

93. The Constitution of South Africa, s 24 (1996), available at <http://www.info.gov.za/ documents/constitution/1996/index.htm> .
94. Constitution of the Kingdom of Norway, Art 110(b) (1814, as amended 2007), available at <http://www.stortinget.no/en/In-English/About-the-Storting/The-Constitution/The- Constitution/> .

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Article 110(b)

Every person has a right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources should be managed on the basis of comprehensive long-term consideration whereby this right will be safeguarded for future generations as well.

In order to safeguard their right in accordance with the foregoing paragraph, citizens are entitled to information on the state of the natural environment and on the effects of any encroachment on nature that is planned or carried out.

The authorities of the State shall issue specific provisions for the implemen- tation of these principles.

Substantive environmental provisions in state constitutions “usually promote a certain level of environmental quality”.⁹⁵ However, often the “meaning and general aims of such substantive provisions are so vague, it is difficult to see how they can provide clear guidelines for judges in cases brought before the court”.⁹⁶

Ekeli proposes an alternative provision for inclusion in states’ constitutions. The provision, called the “posterity provision”, imposes a substantive duty on the state to:⁹⁷

Avoid and prevent decisions and activities that can cause avoidable damage to critical natural resources that are necessary to provide for the basic physiological (biological and physical) needs of future generations.

Such needs include the need for food, water, oxygen and protection from the elements.⁹⁸ The posterity provision also provides the following two procedural rights:⁹⁹

(1) The right to initiate legal proceedings on behalf of posterity.

(2) Constitutional courts’ right to require impact assessments, delays and referendums.

Ekeli considers that courts should have the competence to appoint guardians that are empowered to initiate legal proceedings for future generations, the

95. Ekeli, supra note 88, at 381.
96. Ibid, at 382.
97. Ibid, at 391.
98. Ibid, at 388.
99. For a discussion of these rights, see ibid, at 391–397.

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guardians being those private persons and organisations that care for the welfare of future generations.¹⁰⁰ The guardians would have the right to initiate judicial review of laws, regulations and administrative decisions. The second procedural right enables constitutional courts, as a result of guardians initiating legal proceedings, to:¹⁰¹

(1) Require state authorities to undertake environmental impact assessments, or

(2) Delay the final enactment of legislation where the court considers the law would cause damage to resources or

(3) Require a referendum on the law being proposed.

Ekeli states that “the posterity provision cannot guarantee that public authorities will not make decisions that can cause avoidable damage to critical resources”.¹⁰² However, the posterity provision could provide a method of importing future-oriented considerations into law and decision-making by providing a constitutional right to future generations.

The posterity provision put forward by Ekeli has some compelling benefits for ensuring the protection of the environment for future generations; however, to an extent this method is still reliant on private persons and organisations bringing these matters before the court. There are also difficulties with placing so much reliance on the court to interfere with decision- and law-making in relation to the environment. Frequently, there are long delays before cases are heard in court, and by the time a matter reaches litigation it may be too late to prevent damage to the environment. Also, in states that do not have a written constitution this provision will not have a significant effect.

4.4 Commissioners for the Environment

Commissioners for the Environment have been adopted in some jurisdictions. Two states in Australia have Commissioners for the Environment which provide evaluative and advisory functions to the state government. In the State of Victoria, the Commissioner for Environmental Sustainability Act 2003¹⁰³

100. Ibid, at 391.
101. Ibid, at 395.
102. Ibid, at 397.
103. Commissioner for Environmental Sustainability Act 2003, Act No 15/2003 State of Victoria, Australia, available at <http://www.legislation.vic.gov.au/Domino/Web_Notes/ LDMS/PubStatbook.nsf/f932b66241ecf1b7ca256e92000e23be/C2F668AFE3E426D1CA2 56E5B00214061/$FILE/03-015a.pdf> .

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creates the office of the Commissioner for Environmental Sustainability. The office has the following objectives:¹⁰⁴

The objectives of the Commissioner are to—

(a) report on matters relating to the condition of the natural environment of Victoria;

(b) encourage decision making that facilitates ecologically sustainable development;

(c) enhance knowledge and understanding of issues relating to ecologically sustainable development and the environment;

(d) encourage sound environmental practices and procedures to be adopted by the Government of Victoria and local government as a basis for ecologically sustainable development.

The Commissioner’s role does not specifically include any obligation to protect the environment for future generations; however, the definition of ecologically sustainable development does refer to future generations and provides that:¹⁰⁵

(2) The objectives of ecologically sustainable development are—

(a) to enhance individual and community wellbeing and welfare by following a path of economic development that safeguards the welfare of future generations;

(b) to provide for equity within and between generations; ...

By encouraging decision-making that promotes ecologically sustainable development the Commissioner would be encouraging decision-making which “safeguards the welfare of future generations”. The functions of the Commissioner for Environmental Sustainability are restricted because there is no mandate allowing the Commissioner to investigate and report on environmental decision-making or to initiate the review of policies and legislation. Therefore, the Commissioner is unlikely to be able to effectively protect the rights of future generations.

The role of the Commissioner for the Environment in the Australian Capital Territory is even more restricted. The Commissioner for the Environment Act 1993¹⁰⁶ provides that the role of the ACT Commissioner is limited to investigating complaints and conducting investigations as required by the responsible Minister.¹⁰⁷

104. Ibid, s 7.
105. Ibid, s 4.
106. Commissioner for the Environment Act 1993, A1993-37, Australia Capital State, Australia, available at <http://www.legislation.act.go v .au/a/1993-37/current/pdf/1993-37.pdf> .
107. Ibid, s 12.

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In Canada the 1995 amendments to the Auditor General Act created the position of the Commissioner for the Environment and Sustainable Devel- opment.¹⁰⁸ The role of the Commissioner “provides parliamentarians with objective, independent analysis and recommendations on federal government’s efforts to protect the environment and foster sustainable development”.¹⁰⁹

New Zealand created the role of the Parliamentary Commissioner for the Environment in 1986.¹¹⁰ The Commissioner’s main role is to review environmental policy and report to government. However, s 16(g) of the Environment Act 1986 does provide a more general power:

(g) To encourage preventive measures and remedial actions for the protection of the environment.

Section 17 of the Environment Act 1986 sets out the matters the Commissioner must consider when reviewing environmental policies. Under s 17 the Commissioner is not required to consider the needs of future generations. However, the long title to the Act provides that it is an Act to:

(c) Ensure that, in the management of natural and physical resources, full and balanced account is taken of—

(v) The needs of future generations

It could be inferred from the long title to the Environment Act that future generations are also to be considered within the functions of the Commissioner; however, s 17 does not specifically provide this. In order to provide effective recognition for future generations, s 17 should explicitly refer to future generations as a matter to which regard should be given.

The difficulty with the various Commissioners for the Environment, as currently established, is that future generations are not specifically recognised as having an interest in the environment and the powers given to the Commissioners have been restricted. Commissioners have roles in which they must “encourage” or “promote” environmental protection. Arguably, these powers are weak and do not enable the Commissioners to actively provide for the needs of future generations. Active and effective protection is required to adequately provide for the interests of future generations. Therefore the current Commissioners for the Environment arguably provide a relatively ineffective means of protecting future generations’ environmental interests.

108. Office of the Auditor General, available at <http://www.oag-bvg.gc.ca/internet/English/ cesd_fs_e_29451.html> (last visited 14 June 2009).
109. Ibid.
110. Environment Act 1986, Part 1 (New Zealand).

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4.5 Problems with Existing Models

The various ways in which protection for future generations has been provided for within domestic legal institutions are dependent on individuals or organisations bringing matters concerning future generations before the courts. Legislation is not often effective unless it is tested and enforced by the judiciary. Legislation providing for the interests of future generations may be ignored unless there is a willing litigant to raise an issue before the courts. Constitutional rights for future generations also require enforcement through the courts in order for such rights to be effectively upheld.

Common law development in respect of future generations has been ad hoc and is wholly reliant on litigation to put into effect any legislative, common law or constitutional rights for future generations. Edith Brown Weiss proposes a strategy for making the present generation accountable to future generations.¹¹¹ One of the key components of this strategy is providing representation of future generations in environmental decision-making.¹¹² Currently, in most jurisdictions the only method by which to achieve this is by environmental groups or individuals becoming involved in environmental decision-making.¹¹³ In order to maximise the effectiveness of protection provisions for future generations, public participation in decision-making processes is vital.

However, there are several barriers which act to impede the effectiveness of public participation in environmental decision-making.

The case of Anderson v Director-General of the Department of Environmental and Climate Change ¹¹⁴ illustrates some of these concerns. The appellant applied for judicial review of a decision to allow a developer to “destroy, deface or damage” an Aboriginal object or place, on the basis that the decision-maker had not given proper consideration to intergenerational equity. The appellant was seeking to protect Aboriginal cultural heritage for the benefit of future generations. The concept of intergenerational equity includes not only the conservation of natural resources but also the conservation of cultural resources for future generations.¹¹⁵ The relevant law in the case provided that intergenerational equity was a principle to be considered when deciding whether an application was consistent with “ecologically sustainable development”. The Supreme Court of New South Wales dismissed the appeal

111. Weiss, supra note 12, at 119.
112. Ibid.
113. A discussion of those states that have an alternative model of representation for future generations is provided below.
114. Anderson on behalf of the Numbahjin Clan within the Bundjalung Nation v Director- General of the Department of Environmental and Climate Change [2008] NSWCA 337; (2008) 251 ALR 633 SC NSW.
115. Weiss, supra note 12, at 14.

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holding that “intergenerational equity requires an evaluative judgement”¹¹⁶ and that “the decision-maker is only required to consider the relevant matter; he or she is not required to adopt any particular outcome”.¹¹⁷ The basis of the Court’s finding was that a cumulative impact report prepared for the developer by an archaeologist had considered intergenerational equity and dismissed the importance of the particular site.

This case illustrates some of the difficulties in recognising and protecting the rights of future generations. Firstly, while in this case there was an appellant willing to bring the matter before the court, it is doubtful whether in every case where such interests are relevant there would be individuals or groups with the necessary financial capability to argue the matter. Secondly, the case relied on the expert evidence of an archaeologist. Arguably, reliance on such expert evidence fails to take into consideration the intrinsic cultural values and appreciation that people, particularly of non-European culture, associate with a place. A court requires evidence on which to base its findings, and subjective cultural values are difficult to quantify and prove, therefore resulting, as in this case, with a finding by an expert that because the interests could not be proven they were not able to be protected. The only way to counter such evidence is for an appellant to provide expert evidence at significant expense.

The use of expert evidence can have the effect of impeding public participation in environmental decision-making. Research regarding the use of expert witnesses in New Zealand found that there are often difficulties for appellants, particularly environmental groups, to obtain access to expert witnesses.¹¹⁸ The result is that in an adversarial system, without equal access to expert witnesses and without equal opportunity to present such evidence, “not being able to hire experts must raise questions about whether justice is being done”.¹¹⁹

Technical expert evidence presented by applicants for environmental permits often requires expertise in the field in order to understand the application.¹²⁰ The level of knowledge required to understand the application and its environmental effects is often not available to an environmental group or private individual; this, then, prevents people from participating in the process.

In certain jurisdictions public participation may even be discouraged. The Resource Management (Simplifying and Streamlining) Amendment Bill 2009 proposes to discourage “vexatious” participants in environmental decision-

116. Anderson on behalf of the Numbahjin Clan, supra note 114, at para 85. 117 Ibid, at para 86.
118. Su-Wuen Ong, “I’ve got more Witnesses than You: Experts and the Environment Court” (2001) 5 NZJEL 261, at 275.
119. Ibid.
120. Deborah Harten, “The Public Participation Requirement in Environmental and Public Land Decision-Making: Politics or Practice?” (1990) 11 Public Land Law Review 153, at 158.

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making in New Zealand.¹²¹ Whilst the Bill gives no guidance as to the type of appeal that may be considered vexatious, it allows parties to seek an order for security for costs. This method may be used by developers to discourage environmental groups from being involved in resource management litigation. In New Zealand, environmental groups can seek funding from the Ministry for the Environment to appeal a decision to the Environment Court provided that the matter relates to a matter of wider public interest.¹²² In order to obtain funding, environmental groups must already be a party to the case before the court. For environmental groups the decision to bring an appeal would generally be dependent on access to available funds to run the appeal. Any delays or uncertainty in obtaining funding is likely to dissuade such groups from appealing. The judicial system is acknowledged to be “expensive, slow and often impotent to review administrative action”.¹²³ Legal systems inherently act as a bar to enabling meaningful public participation, particularly by environmental groups and individuals, as illustrated in Anderson v Director-General of the Department of Environmental and Climate Change. Therefore, an alternative model is required to provide for future generations in environmental decision-

making.

5. ALTERNATIVE MODELS

Some alternative means of providing for future generations within existing frameworks, such as providing the “posterity principle” in state constitutions and the development at common law of the public trust doctrine, have already been considered. However, the effectiveness of these models is somewhat limited by reliance on the need for public participation to review environmental decision-making. The alternative models proposed below seek to overcome the limitations of the existing models in order to give effect to the principle of intergenerational equity.

5.1 Ombudsmen or Commissioners for Future Generations

The institution of an Ombudsman or Commissioner for Future Generations is a model proposed for institutionalising and protecting the rights of future

121. Resource Management (Simplifying and Streamlining) Amendment Bill 2009, Explanatory Note, General Policy Statement, available at <http://www.legislation.govt.nz/bill/ government/2009/0018-1/latest/whole.html#DLM1847901> (last visited 20 June 2009).
122. Ministry for the Environment website, Environmental Legal Assistance Fund, available at

<http://www.mfe.govt.nz/with y ou/funding/ela.html> (last viewed 8 July 2009).

123. Stephen Owen, “The Expanding Role of the Ombudsman in the Administrative State” (1990) 40 University of Toronto Law Journal 670.

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generations. This model proposes that an Ombudsman for Future Generations would be appointed by government, to act independently and provide evaluative and advisory functions to government.¹²⁴ An ombudsman may also on occasion have standing to sue on behalf of individuals or groups.¹²⁵

The role of ombudsman can vary greatly between jurisdictions. The origin of the term is Scandinavian and means “something in the nature of ‘entrusted person’ or ‘grievance representative’”.¹²⁶ Ancient Roman law provided for an office similar to that of an ombudsman. China and India also had special officials which functioned in a similar manner to ombudsmen over 3000 years ago.¹²⁷

The role of an ombudsman has been described by the Ombudsman Committee of the International Bar Association as:¹²⁸

An Office provided for by the Constitution or by action of the Legislature or Parliament and headed by an independent, high-level public official, who is responsible to the Legislature or Parliament, who receives complaints from aggrieved persons against Government agencies, officials and employees, or who acts on [his] own motion, and who has the power to investigate, recommend corrective action, and issue reports.

Generally speaking, in most countries where there is a separation of powers, the role of ombudsman is limited to reviewing decisions of the executive branch of government.¹²⁹ Recourse to an ombudsman is often available when “no parliamentary, legal or administrative recourse is available or practicable”.¹³⁰ The role of ombudsman also exists in many governments the world over,¹³¹ frequently as an independent body able to hold the executive to account if the exercise of its power is unreasonable or unfair to individuals.

Fair public administration incorporates policies and practices which include the provision of public access to government information and processes, avoiding arbitrary decisions through the application of objective standards to each individual situation, and ensuring public participation in administrative decisions.¹³² The function of ombudsman is “to advise on these types of policies

124. “Models for Protecting the Environment for Future Generations”, supra note 35, at 15. 125 Ibid.
126. Judge Anand Satyanand, “The Office of Ombudsman in New Zealand” [1997] 6 Canterbury Law Review 470.
127. Ibid.
128. Ibid, at 471.
129. Ibid, at 474.
130. Ibid, at 470.
131. Weiss, supra note 12, at 124.

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and practices”.¹³³ While in most states this role is not specifically directed at environmental protection, the role of ombudsman provides a safeguard against the exercise of state power against individuals. In this regard an ombudsman can assist with environmental protection, by ensuring the provision of information about the state and quality of the environment, by providing an opportunity for review of the executive’s decision to manage particular natural resources, and by enabling public participation in such decision-making.

An example of this is the office of ombudsman in the province of British Columbia, Canada. The office of the ombudsman provided such a function when a rapid transit system known as a Skytrain began operating in the province. Opponents of the Skytrain argued that it had negative impacts for the communities it travelled through. These negative impacts included noise, loss of privacy, reduced property values and lessened enjoyment of the area.¹³⁴ Instead of recommending compensation to those affected, which would not have prevented the continued deterioration of the community, the ombudsman’s report recommended a mitigation programme to address the effects,¹³⁵ thus improving the quality of the environment for those communities.

The role of the ombudsman in British Columbia is to investigate and report to the government. This is one of the traditional functions of an ombudsman. However, the role of ombudsman is expanding over time in some jurisdictions, from the role of a “generalist”¹³⁶ with the ability to consider administrative decisions to the creation of specialist ombudsmen that may investigate and report on particular fields. For example, in New Zealand, there are specialist positions in both the public and private sector which serve a role similar to that of an ombudsman.¹³⁷ The Banking Ombudsman, the Insurance and Savings Ombudsman and the Police Complaints Authority have the power to investigate and report on complaints within their respective fields.¹³⁸ Several jurisdictions have even appointed an ombudsman to investigate human rights abuses.¹³⁹

The expansion of the role of the ombudsman into the private sector would enable an ombudsman to hold private companies to account — for example, when “large resource-extraction companies in the forestry, mining, and fishing industries are exploiting public resources”.¹⁴⁰ The role of an ombudsman has also been acknowledged as being able to assist in disputes between individuals

133. Ibid.
134. Ibid, at 674.
135. Skytrain Report (Victoria: Office of the Ombudsman 1987); Owen, supra note 123, at 674. 136 Philip Joseph, Constitutional and Administrative Law in New Zealand (2nd ed, Wellington,

Brookers Limited, 2001) at 143.

137. Satyanand, supra note 126, at 472.
138. Ibid.
139. Ibid, at 473.

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and government over competing demands for public resources.¹⁴¹ Owen considers that litigation is often the least appropriate way to resolve public interest disputes¹⁴² as litigation imposes a decision on the parties, and does not result in an outcome which provides mutually acceptable trade-offs that are flexible to deal with changing circumstances.¹⁴³ Owen proposes that alternative means of dispute resolution provide solutions to public interest disputes that are flexible, enduring, self-regulating and mutually productive. The role of an ombudsman is seen as being able to expand to assist with dispute resolution of this nature.¹⁴⁴ As the need for environmental protection becomes increasingly pressing, the expanding role of the ombudsman within the area of administrative law suggests that there is opportunity to develop an Ombudsman for Future Generations at the national level.

Various commentators have considered the advantages that an Ombudsman for Future Generations would have for ensuring environmental protection. Edith Brown Weiss proposed that Ombudsmen for Future Generations “would be responsible for ensuring that the planetary obligations and rights, as detailed in positive law, were observed, for responding to complaints, and for alerting communities to threats to the conservation of our planetary heritage”.¹⁴⁵ She considered that ombudsmen could be developed at several levels, including internationally, regionally and nationally.¹⁴⁶ Indeed, the Brundtland Report recommended that countries provide ombudsmen at the national level.¹⁴⁷

Edith Brown Weiss proposes, in her Implementation Strategies, that Ombudsmen for Future Generations could provide several functions:¹⁴⁸

the first of which would be to ensure that international agreements and national laws incorporating planetary obligations and rights were properly executed. To carry out this function on a national level, ombudsmen for future generations would need to be able to intervene in administrative and judicial proceedings, just as ombudsmen for other substantive areas are currently able to do in some countries ...

... Another important task of ombudsmen would be to respond to citizen complaints about government actions by investigating them, mediating

141. Ibid.
142. Ibid, at 682.
143. Ibid.
144. For a discussion of this topic, see ibid, at 681–686. 145 Weiss, supra note 12, at 124.
146. Ibid.
147. Brundtland Report, supra note 9; and Weiss, supra note 12, at 124.

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disputes, and sometimes intervening in administrative or judicial proceedings

...

... A third function of ombudsmen would be to serve as watchdogs to alert the international, regional, national or local communities to impending problems affecting future generations.

While these functions would represent an expansion of the function of most states’ ombudsmen, there is significant support for the expansion of the ombudsman’s role. Indeed, there is currently one such ombudsman fulfilling similar functions to those proposed by Weiss. The Hungarian Parliament has adopted legislation which establishes a Parliamentary Commissioner for Future Generations.¹⁴⁹ The Hungarian Commissioner:¹⁵⁰

monitors, evaluates, and supervises the enforcement of those legal provisions, which ensure the sustenance and improvement of the condition of nature and the environment ...

The Hungarian Commissioner has the power to review and propose legislation, to initiate judicial review of decisions, to order those endangering the environment to stop their activities and restore the site, to evaluate proposed development, to initiate and participate in public hearings, and to comment on and monitor compliance with international treaties.¹⁵¹ The Commissioner will also undertake targeted research to “substantiate policy recommendations or simply to stimulate debate over critical issues relating to future generations”.¹⁵² The f irst Parliamentary Commissioner for Future Generations, an environmental lawyer, was appointed on 26 May 2008.¹⁵³ Given that the role of the Hungarian Parliamentary Commissioner for Future Generations is relatively recent, the effectiveness of the role remains to be seen. However, the appointment of the first Parliamentary Commissioner for Future Generations represents an important development in the implementation of the rights of

future generations.

149 “Models for Protecting the Environment for Future Generations”, supra note 35, at 17. 150 Ibid.

151. Ibid.
152. Office of the Parliamentary Commissioner for Future Generations, available at <http:// www.jno.hu/en/pdf/Kiadvany.pdf> (last visited 21 June 2009).
153. Axel Gosseries and Benedek Jàvor, “First-ever Ombudsman for the Future”, Wednesday 9 July 2008, available at <http://www.alternati v es.ca/article3932.html> (last visited 30 May

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5.2 Guardians or Trustees

Review of government decisions is possible either by referral to an ombuds- man¹⁵⁴ or through the courts. Whilst an Ombudsman for Future Generations would be intended to reduce the need for the courts to hear matters concerning future generations’ rights, it is likely that cases would still come before the courts. Therefore, it has been proposed that as future generations are unable to represent their own interests before a court that guardians or trustees should be appointed and given standing to sue parties that have infringed upon the rights of future generations.¹⁵⁵

Guardians act as advocates¹⁵⁶ (in contrast to an ombudsman) “to maximise the best interests of those that cannot speak for themselves”.¹⁵⁷ The concept of guardians providing a “voice” for those that cannot speak for themselves originates from the doctrine of parens patriae. The doctrine originally concerned the King of England holding authority to protect incompetent persons such as minors and those that were mentally ill or incapable.¹⁵⁸ The role of a guardian is to “fill the role of a parent and ‘act in the ward’s best interest’”.¹⁵⁹ Currently, guardians are appointed by courts to act for children¹⁶⁰ — for example, in child custody hearings. It is proposed that courts could also appoint guardians in the same manner to represent future generations.¹⁶¹

The Indigenous Environmental Network Bermiidji Statement on Seventh Generation Guardianship¹⁶² sets out indigenous peoples’ explanation of the need for a guardian for future generations,¹⁶³ recognising that:¹⁶⁴

The health and wellbeing of our grandchildren are worth more than all the wealth that can be taken from these lands.

154. The case for providing an Ombudsman for Future Generations for this purpose has been discussed supra in section 5.1.
155. Ekeli, supra note 88, at 385; and “Models for Protecting the Environment for Future Generations”, supra note 35, at 19.
156. “Models for Protecting the Environment for Future Generations”, supra note 35, at 19. 157 Ibid.
158. Mank, supra note 13, at 78.
159. “Models for Protecting the Environment for Future Generations”, supra note 35, at 20. 160 Ibid, at 21.
161. Ekeli, supra note 88, at 385; and “Models for Protecting the Environment for Future Generations”, supra note 35, at 19.
162. Bermiidji Statement on Seventh Generation Guardianship (6–9 July 2006), available at

<http://www.ienearth.org/ien-old/bemidj_statement_7th%20gen_guardianship.pdf> . 163 “Models for Protecting the Environment for Future Generations”, supra note 35, at 21.

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The guardians envisioned by the Bermiidji Statement on Seventh Generation Guardianship do not yet exist within any national institution.¹⁶⁵ However, the doctrine of parens patriae arguably has been adopted in the United States of America through individual states enforcing the rights of their citizens against the federal government. The Supreme Court in Massachusetts v EPA ¹⁶⁶ held that the State of Massachusetts had standing to challenge the Environmental Protection Agency’s refusal to regulate greenhouse gas emissions from new cars.¹⁶⁷ Based on computer modelling Massachusetts argued that the greenhouse gases from new vehicles were causing climate change and sea levels to rise, which would damage the coastline of Massachusetts.¹⁶⁸ Mank argues that the Massachusetts case presents the possibility of states being able to serve as representatives for future generations on the basis of the public trust doctrine or the parens patriae doctrine.¹⁶⁹ However, in the USA only states have standing to enforce the rights of future generations against the federal government, as the rules governing standing prevent an individual from bringing a suit unless there is a substantial probability of the harm complained of eventuating.¹⁷⁰ Therefore, in the USA, at least, there is difficulty in individuals representing future generations.

In spite of this, court-appointed and government-funded guardians could provide an effective means of ensuring that the rights of future generations are advocated in environmental decision-making in the same way that guardians currently represent the needs and concerns of minor children in family disputes.

5.3 Courts of Inquiry

Another method of providing protection for future generations is to permit courts hearing environmental cases to operate as commissions of inquiry. If this were to happen, the courts would have the ability to call witnesses where a gap in evidence is discovered.¹⁷¹ This inquisitorial style of court is less concerned with finding favour with one or other party to a hearing and more concerned with finding the truth.¹⁷² In this model the court is granted wider powers than in a traditional adversarial judicial system, in an effort to discover the truth.

In the New Zealand context this method could have some success because

165. Ibid.
166. 549 US 497, 127 S Ct 1438 (2007). For a full discussion of this case, see Mank, supra note 13.
167. Mank, supra note 13, at 7.
168. Ibid.
169. Ibid, at 95.
170. For a complete discussion, see Mank, supra note 13. 171 Ong, supra note 118, at 279.

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the Environment Court already has quasi-inquisitorial powers including the power, if it considers necessary, to call its own witnesses.¹⁷³ This power could be used to assess the effects of a certain proposal on the rights of future generations.

Arguably, however, courts will still be required to balance competing interests; and despite providing courts with wide powers to investigate environmental issues before them, including impacts on future generations, without a representative advocating the rights of future generations, there may continue to be a risk that these rights would be overlooked.

5.4 Summary

The alternative models proposed overcome the problems that existing institu- tions pose with respect to the protection of the rights of future generations.

In respect of the proposed institution of Ombudsman for Future Generations, the role has several advantages in that ombudsmen are a common institution throughout the world. The role of ombudsman is flexible and has the ability to expand as circumstances require. Ombudsmen already exist in the private sector as some states provide for ombudsmen in specific areas such as banking and policing. The provision of an Ombudsman for Future Generations would be an expansion of an already existing institution in a number of states.

The institution of ombudsman has the credibility to provide important functions such as the investigation of complaints, making recommendations, and persuading parties to enter into some kind of resolution.¹⁷⁴ Those functions provide an effective means of protecting the rights of future generations. In order to implement these institutions, states should either appoint an Ombudsman for Future Generations or the powers of existing Commissioners for the Environment should be expanded to encompass the protection of future generations.¹⁷⁵ Drawing upon the literature, such ombudsmen or commissioners should have the following functions:

1. To monitor state compliance with international obligations and declarations, and to report to government or review government decisions or legislation that are not compliant with international obligations to future generations;
2. To actively monitor, investigate and make recommendations to the public

173. Resource Management Act 1991, s 276(1)(c); Ong, supra note 118, at 279.
174. Satyanand, supra note 126, at 479.
175. In the New Zealand context there is support for this approach in respect of the New Zealand Parliamentary Commissioner for the Environment in Gary Hawke (ed), Guardians for the Environment (Institute of Policy Studies, Victoria University of Wellington, 1997); referred to in Ong, supra note 118, at 282.

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and the private sector (where necessary) regarding environmental issues affecting future generations;

100. To investigate complaints regarding environmental damage and the rights of future generations and make recommendations for resolving the dispute in a manner that protects the rights of future generations including assisting with mediation of disputes;

4. To undertake targeted research regarding issues that affect the rights of future generations and to educate and raise awareness of the importance of conserving resources for future generations.

The role of ombudsman need not be limited to the review of governmental decisions but could be extended to also review the decisions or actions of large corporate bodies that are exploiting natural resources.

In fulfilling these functions an Ombudsman for Future Generations would provide an independent and effective means of ensuring that the rights accorded to future generations in legislation or a state’s constitution would be considered. Recourse to an ombudsman would also reduce the need for individuals to bring such matters before the courts. As the role of an ombudsman is independent of the judiciary, an ombudsman can be a last resort where all other remedies have failed to provide adequate protection for future generations.

In jurisdictions where the public trust doctrine is undergoing development as a means of providing environmental protection the executive acts as the manager of the trust property (the environment). An ombudsman can enhance the effectiveness of the public trust doctrine by providing a further mechanism for ensuring that the state fulfils its trustee obligations as all decisions by the executive could be subject to investigation by the ombudsman. If a decision was not made in the interests of the beneficiaries (including future generations) the ombudsman could review and report to the government on such failings.

In spite of the advantages of the institution of ombudsman there are likely to be some circumstances where such matters affecting future generations are brought before the courts. If this is the case, then the court, as proposed by Ekeli,¹⁷⁶ should have the power to appoint guardians to advocate on behalf of the rights of future generations. This ability is not unusual as courts have the capacity to appoint guardians in other areas of law such as family law. The appointment of a guardian would ultimately enable the court to balance the interests of future generations against the interests of all other parties. This currently does not occur.

Environmental protection legislation in New Zealand illustrates how an ombudsman and/or guardians could assist with effective implementation of the law. The use of natural resources is governed by the Resource Management

176 Ekeli, supra note 88, at 391.

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Act 1991. All decisions made under the Act allowing the use of natural and physical resources must meet the sustainable management purpose of the Act.¹⁷⁷ The definition of sustainable management includes reference to meeting the needs of future generations. Section 7(a) of the RMA incorporates the concept of “kaitiakitanga”, which in Maori is the exercise of guardianship. The kaitiaki (guardians) must make sure that the mauri (vitality or life force) of their taonga (treasured possessions including land and fisheries) is healthy and strong.¹⁷⁸ Section 7(aa) also incorporates the ethic of stewardship. In spite of the recognition of these concepts in legislation it has been observed that in relation to New Zealand’s environmental performance “the most obvious deficiency is the gap between theoretical ambition and practical implementation”.¹⁷⁹ Consideration of the interests of future generations has been “largely absent from public decision-making”.¹⁸⁰ It is therefore crucial that in New Zealand the existing role of Parliamentary Commissioner for the Environment is strengthened in order to fill this void.

Strengthening the role of the Parliamentary Commissioner for the Environment was considered at a symposium to mark the first decade of the office. One view arising from the symposium was that the relevant legislation did not require amendment to enable the Parliamentary Commissioner for the Environment to ensure the implementation of the concepts of guardianship. Instead, all that is required is “political and financial commitment”¹⁸¹ from the government. However, the Environment Act 1986 does not specifically refer to the rights of future generations. Further, the RMA does not expressly provide any ability for the Parliamentary Commissioner for the Environment to intervene in decision-making. The limited resources available to the Parliamentary Commissioner has meant that the Commissioner must be selective and focus on key deficiencies of the system.¹⁸² Strengthening the role of the Parliamentary Commissioner for the Environment and providing that the Commissioner must also act as a guardian for future generations would allow the Commissioner to report on specific cases where the rights of future generations may be impacted on. The Commissioner could also investigate and report on decisions of the Environment Court to ensure that sufficient consideration is being given to the needs of future generations when deciding upon the allocation of resources.

177. The definition of sustainable management is found in s 5 of the Resource Management Act 1991 (reproduced in section 4.1 of this article).
178. Andrée Mathieu, “Kaitiakitanga — Safe guarding our Future”, available at <http://www . kaitiakitanga.net/stories/origins%20research.htm> (last visited 4 July 2009).
179. Klaus Bosselmann, “The Environmental Commissioners — A Guardian of the Environ- ment?” in Hawke (ed), supra note 175, at 42.
180. Ibid, at 37.
181. Ibid, at 41.
182. Ibid, at 43.

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New Zealand, when compared with other states, has significant legislative protection for the environment; however, the difficulty is bridging the gap between legal provisions for the environment and the implementation of these provisions in practice. This clearly illustrates the importance of the role of an ombudsman or commissioner in order to ensure the effective implementation of environmental protection laws, particularly where the rights of future generations are concerned.

Finally, it is proposed that courts charged with environmental decision- making should be granted broader powers to act as courts of inquiry, able to call witnesses regarding the rights of future generations. Courts would need to be satisfied that all information pertaining to the rights of future generations was considered before making a decision that may affect future generations. This method is likely to be most effective when combined with a guardian advocating for the rights of future generations.

6. GUIDANCE FOR OMBUDSMEN AND GUARDIANS

There is one outstanding question to consider when seeking the advancement of the rights of future generations against the rights of current generations — what rights or needs do future generations have that require protection?

Whether rights should be afforded to future generations is a contentious subject; in part, because the present cannot predict the needs of the future. It is also not clear “how the same amount of space, wilderness, clean water, and biological diversity can be guaranteed to endless generations if they themselves consist of increasingly large numbers of individuals”.¹⁸³

It is on the basis of this uncertainty that it has been argued that the needs of future generations should be discounted. A common model used for intergenerational decision-making is the use of the discounted cost-benefit analysis.¹⁸⁴ The model:¹⁸⁵

converts all costs and benefits (including lives lost) into dollar amounts, discounts future costs and benefits to present value using an appropriate discount rate, and selects the course of action with the highest resulting net benefit or lowest resulting net cost.

This discount model favours the present and enables the continued exploitation of resources. A common assumption is that in the future, technology will

183. Kiss & Shelton, supra note 4, at 256.
184. Seto, supra note 14, at page 240.
185. Ibid.

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provide an economically viable substitution for resources that have been depleted.¹⁸⁶ From a historical and evolutionary perspective these models and assumptions cannot work.¹⁸⁷ From an evolutionary perspective the present “is only important insofar as it makes the future possible”.¹⁸⁸ Therefore we should only deplete resources if “the resulting net benefit to the future will outweigh the future cost”.¹⁸⁹ Using the knowledge currently available, it is possible to assess the needs of future generations and the action required to be undertaken to protect these needs.¹⁹⁰

There is sufficient scientific knowledge about the physiological needs of humanity (the basic physical and biological needs for humans to survive) to identify those resources critical to survival.¹⁹¹ On this basis, current generations can be held responsible for damage to “ecosystems that are crucial for meeting future physiological needs”.¹⁹² This knowledge can provide ombudsmen and guardians with a baseline which must be maintained to ensure the rights of future generations.

Other principles or concepts of international environmental law may also assist decision-makers when it is not clear what the likely impacts will be on future generations. For example, the precautionary principle which is found in Principle 15 of the Rio Declaration provides:¹⁹³

In order to protect the environment, the precautionary approach should be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

The precautionary principle “can give direction, it can set the tone, and most importantly it can provide a fundamental commitment to act aggressively in regulatory domains where scientific uncertainty is the norm”.¹⁹⁴ Therefore, the precautionary principle could be invoked by guardians as a reason for preventing activities that could potentially harm the environment where there is uncertainty as to the level of harm such activity may cause to future generations.

186. Ibid, at 273.
187. For a full explanation, see ibid. 188 Ibid, at 274.
189. Ibid.
190. Ibid, at 275.
191. Ekeli, supra note 88, at 388–389.
192. Ibid.
193. Rio Declaration, supra note 36.
194. John S Applegate, “The taming of the precautionary principle (Symposium: Rio +10: Preparing for the Earth’s Environmental Future Today)” (2002) 27 William and Mary Environmental Law and Policy Review 13, at 77.

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The concepts of guardianship or stewardship have been adopted for many centuries by traditional cultures and therefore the wisdom from traditional cultures — for example, the Maori concept of kaitiakitanga — can provide guardians with guidance when advocating the needs or rights of future generations. So too can the knowledge from world religions assist guardians to advocate and protect the rights of future generations.

Most commentators agree that the current generations of humanity have an obligation to “pass on the natural and cultural resources of the planet in no worse condition than received”.¹⁹⁵ This includes conserving a variety of options for future generations.¹⁹⁶ Given the state of the environment currently, an obligation to pass on the planet’s resources in no worse condition than received is unlikely to be adequate. An obligation to actively improve the quality of the environment is also required in the short term, at least until those resources that have been depleted or polluted have recovered.

7. CONCLUSION

Concern for future generations is a common theme running through the principles of international environmental law. The obligations owed to future generations have moral and evolutionary justification. Traditional cultures have long recognised the importance of protecting and caring for the environment for the benefit of future generations. World religions such as Islam and Buddhism have an ethic of environmental stewardship.

These concepts have been recognised in modern international environmental law. Firstly, in the Stockholm Declaration in 1972, and since then in a myriad of international conventions and declarations. Concern for the rights of future generations is a key element of sustainable development. There is some justification for the proposition that concern for future generations as a part of the principle of sustainable development has become a principle of international customary law. While there is ample evidence that states have enacted various provisions recognising the rights of future generations within their constitutions or legislation, effective implementation of such provisions is required to prevent environmental harm being carried out by non-state actors.

This paper has considered states’ constitutions, statutes and case law that recognise the rights of future generations. Several models that attempt to implement these rights have been considered. The public trust doctrine and the posterity provision require concerned environmental groups or individuals to

195. Weiss, supra note 12, at 37–38.
196. Ibid, at 40.

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enforce these rights in court. It is argued that reliance on public participation to enforce the rights of future generations through the courts is ineffective.

Therefore, independently funded legal institutions are required to provide this function. It is proposed that Ombudsmen for Future Generations could intervene in administrative decisions regarding the environment and investigate and report on issues affecting future generations. An ombudsman could also be a last resort for resolving environmental disputes. A well-resourced ombudsman with the ability to investigate all matters affecting future generations would reduce the need to rely upon public participation in court to enforce the rights of future generations. It is also proposed that where a matter affecting future generations comes before the courts, the courts should be able to appoint a guardian to advocate for the rights of future generations.

Ombudsmen (or similar offices) and guardians have been used in law for centuries although not traditionally in the realm of environmental protection. The longevity and familiarity that these institutions provide mean that ombudsmen and guardians could be simply and effectively incorporated into states’ legal systems. In this sense, they present old solutions to the environ- mental problems we are currently facing.