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New Zealand Journal of Environmental Law |
Last Updated: 21 January 2023
241
Injecting Sustainability into the Canterbury Earthquake Recovery
Jenny Hughey*
The recovery of the city of Christchurch has attracted significant attention following the Canterbury earthquakes and the enactment of the Canterbury Earthquake Recovery Act 2011. This article aims to explore developments in international environmental law, which have given rise to the soft law principles of sustainability. It is submitted that the local government arena in New Zealand has developed significant sustainability policies following widespread public consultation, which could inform a sustainable recovery in Christchurch. It is suggested that the Christchurch City Council sustainability policy contains the framework for the design of recovery legislation, which would achieve the rebuild of a green city following principles suggested by international research on disaster recovery, various international environmental soft-law documents and the residents of the city. Finally, the article provides suggested reform of the Canterbury Earthquake Recovery Act 2011 to pursue the purpose of a sustainable recovery.
1. INTRODUCTION
At present the New Zealand government faces a unique situation in the recovery of the country’s second largest city from the destruction of the Canterbury earthquakes of 2010–2011. It is unique in that the level of earthquake damage is unprecedented in New Zealand,1 the Christchurch central business district
*The author has worked in the public law arena for the past 30 years. She recently completed an LLM (Hons) at The University of Auckland. The author acknowledges Professor Klaus Bosselmann for his inspirational international environmental law lectures.
1 Cabinet Office Memorandum “Land Damage from the Canterbury Earthquakes” (June 2011) <http://cera.govt.nz/sites/cera.govt.nz/files/common/cabinet-paper-land-decisions- june2011.pdf>.
(CBD) lost 1,250 buildings,2 7,600 residential homes can no longer be lived in,3 and the patterns of the city have completely changed with the city requiring an almost complete CBD rebuild. This has occurred at a time when international concerns around the scarcity of natural resources and climate change demand that sustainability become an integral part of decisionmaking.4 In addition, the local civic authority, the Christchurch City Council (CCC), has a strong sustainability policy and framework. Supplementary to this distinctiveness, scholars identify that recovery from natural disasters is best undertaken in a sustainable governance model in which the local people are empowered to consider it is their recovery, their renewal.5The opportunity to respond is hampered by the slow global pace and depth of progress around sustainable development at a time when it is most urgent due to climate change and peak oil factors which are recognised internationally and in New Zealand.6 The people of Christchurch, having faced the earthquakes with resilience, expressed their desire in overwhelming numbers for a green city recovery in the first public consultation undertaken in Christchurch.7 Perhaps earthquake survival, the demolition of the CBD, use of sustainability language in New Zealand and climate change awareness compelled the people to act on behalf of the global environment and future generations. The people of Christchurch were clear, they wanted a green city for the future.
In responding to the distinctiveness of this disaster recovery the government needed a paradigm shift, a new way to see the world — more importantly, a new way to view the opportunity provided by the earthquake recovery based on the fundamental principle of sustainability. The New Zealand government could have chosen to move forward based on 20 years of national and local level developments around sustainability, which had their basis in international environmental law. The time and the exceptional circumstances following the
<http://www.un.org/millenniumgoals/2008highlevel/pdf/newsroom/mdg%20reports/ MDG_Report_2008_ENGLISH.pdf; 350.org.com> .
earthquake presented a possibility for sustainability to inform all areas of the law and practice around the earthquake recovery.This article assesses whether the current legal framework governing the Canterbury earthquake recovery adequately provides the citizens and society with a sustainable recovery. Further, this article will argue that given the international disaster recovery best practice together with developments in sustainability on the international, national and local levels the addition of a strong sustainable approach to the recovery will fulfil the desires of the citizens for a green recovery. This would provide a holistic and integrated outcome for society at a time when civilisation is facing a great challenge from climate change. In addition it will be argued that a sustainable approach will mean a paradigm shift for decisionmakers towards a greening of the law. Further consideration is given to how the application of a local governmentdeveloped sustainability policy could be implemented with regard to the earthquake recovery.
Part 2 of this article will provide a brief background setting regarding the Canterbury earthquakes. The evolution of the concept of sustainability on the international, national and local stage will be considered in part 3. In part 4, sustainable disaster recovery indicators will be discussed, setting the scene to discuss and apply a measurement tool in part 5. This tool will assess whether or not the current earthquake recovery is designed to be sustainable. A brief assessment of the primary earthquake legislation will be made in part 6. Given that the disaster recovery is being driven by a number of Recovery Plans, this article narrows the focus by choosing the important Draft Land Use Recovery Plan to assess the application of sustainability policy principles in part 7. In part 8 it will be argued that sustainability should be injected into the Canterbury Earthquake Recovery Act 2011 to drive a sustainable recovery. Finally, this part sets out proposals for amending the legislation.
2. BACKGROUND: THE CANTERBURY EARTHQUAKES
Canterbury has experienced a number of damaging earthquakes in recent years. While New Zealand is located in an earthquakeprone part of the world, this series of earthquakes and the aftershocks represent an unparalleled natural disaster in New Zealand since European settlement. The damage to community wellbeing and the physical damage to the central city of Christchurch and a range of suburbs was unprecedented.8
At 4.35 a.m. on the morning of 4 September 2010 a magnitude 7.1 earth quake struck with an epicentre at Darfield 40.2 kilometres west of Christchurch
city. It was a shallow earthquake only 10 kilometres below the surface and lasted for 40 seconds.9This event was followed on 26 December 2010 by a magnitude 4.9 aftershock with further damage caused to the CBD of Christchurch. On 22 February 2011 a 6.3magnitude earthquake at a shallow depth of 5 kilometres occurred at 12.51 p.m. centred 9.9 kilometres from the centre of Christchurch. Deaths occurred mainly in the CBD.10 Severe damage occurred throughout the Christchurch district to property and infrastructure. On 13 June 2011 two further earthquakes of magnitude 5.5 and 6.3 within half an hour of one another caused further land, building and infrastructure damage. One year on from the first earthquake, 7,497 earthquakes greater than magnitude 2 had occurred, around 20 each day.11 GNS Science reported that the peak ground accelerations were the highest ever recorded in New Zealand, and four times higher than the highest accelerations measured in the magnitude 9.0 earthquake off the east coast of Japan in March 2011.12
3. THE EVOLUTION OF THE CONCEPT OF SUSTAINABILITY ON THE INTERNATIONAL,
This part will briefly outline international development around the concept of sustainable development and the concepts of sustainability and provide an overview of the situation in New Zealand with regard to sustainability policy direction with a particular emphasis on the policy developments of the CCC.
3.1 Sustainable Development on the International Stage
A range of definitions have evolved around the meaning of sustainability. According to Professor Stephen Dovers and Robin Connor it is best understood as a:13
higher order social goal akin to other goals widely supported in a given society, such as democracy, equity, religious conformity, rule of law or justice. Such goals are contested and not quickly achieved, but are generational tasks to be pursued persistently over decades, through concerted learning and policy and institutional change.
Klaus Bosselmann concludes that “sustainability is a fundamental principle of law equal to other fundamental principles of law such as freedom, equality and justice”,14 and proclaims that it “refers to the duty to protect and restore the integrity of the Earth’s ecological systems”.15
Over the past 40 years sustainability has been discussed on the international stage in the form of the term “sustainable development”, which has evolved over time through various United Nations forums. The first international meeting on the environment was held at Stockholm in 1972,16 which created a new environmental agenda within the United Nations system and ignited the modern sustainability debate. In 1983 the United Nations established the World Commission on Environment and Development, which produced the report Our Common Future (the Brundtland Report) in 1987.17 This “laid the groundwork for global policy anchored on the principle of ‘sustainable development’”.18 According to David Grinlinton the release of the report ensured that sustainability became a central focus of reforms.19 The premise of the Brundtland Report was the need for economic cooperation to achieve
<http://www.un.org/en/globalissues/environment/> .
both intra and intergenerational equity in the sustainable management of resources. The Brundtland Report provided the following definition of sustainable development: “Development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” Following the Brundtland Report a series of conferences were held starting with Rio de Janeiro in 1992 and finally the Johannesburg conference in 2002. The Rio Declaration on Environment and Development specified principles of sustainable development for the next millennium, including the precautionary approach.20 Further, the Rio conference produced a document entitled Agenda 21 signifying the hope of bringing sustainable development into the 21st century. Sustainable development was incorporated as a goal into the Millennium Summit held in New York in 2000.In interpreting these developments around the meaning of sustainability Bosselmann points out that until 1992:21
Wherever the term “sustainability” was used, it had the meaning of ecological sustainability, and where the term “sustainable development” was used, the principle of sustainability was implied.
The definition of sustainability took a step further when, as a result of the two Rio conference softlaw documents emphasising “the interconnectedness of environmental, social and economic concerns”,22 a campaign was launched to draft an Earth Charter. The charter, which was pursued by nongovernment organisations (NGOs), placed ecological sustainability at the centre of “everything, poverty eradication, socioeconomic development, human rights and peace”.23 It was finally signed at The Hague in 2000. The Earth Charter contains a broader consensus on sustainability principles than had been achieved in any other agreement.24
Bosselmann argues that the Brundtland Report provided the first two elements of sustainable development — namely, the concern for the poor, and the concern for future generations.25 Further, Bosselman points out that a third
for a Sustainable Society (2nd ed, New Zealand Centre for Environmental Law, Auckland, 2013) ch 2 at 27.
22 At 672.
23 At 673.
24 At 674.
25 Klaus Bosselmann “A Legal Framework for Sustainable Development” in Klaus Bosselmann, David Grinlinton and Prue Taylor (eds) Environmental Law for a Sustainable
element must be included — the concern for the planetary ecosystem — which is expressed in only one international agreement — namely, the Earth Charter.26 In regard to the United Nations conference documents, 10 years later conclusions were being drawn that it was clear that sustainable development goals were not on track to be met.27 Patricia Romano draws the conclusion that these conferences produced vague goals with no concrete plan of action.28 On the other hand, the conferences led to the general acceptance of the sustainable development concept by many of the 180 countries that attended, through the development of policies and networks.29 For example, the New Zealand Office of the Parliamentary Commissioner for the Environment (PCE) pointed out in 2002 that sustainability is a fundamental principle for society and the NewZealand economy, which will require a shift of values and policies.30
Over the past 20 years the United Nations acknowledges it has become accepted that sustainable development calls for the convergence between the three pillars of economic development, social equity, and environmental protection.31 Further, the United Nations in assessing the goals of sustainable development in 2010 pointed out that:32
Sustainable development is a visionary development paradigm; and over the past 20 years governments, businesses, and civil society have accepted sustainable development as a guiding principle, made progress on sustainable development metrics, and improved business and NGO participation in the sustainable development process. Yet the concept remains elusive and implementation has proven difficult. Unsustainable trends continue and sustainable development has not found the political entry points to make real progress.
Society (2nd ed, New Zealand Centre for Environmental Law, Auckland, 2013) ch 9 at 169.
26 At 169.
Further, it is recognised that two concepts of sustainable development compete with each other: one is considered a “weak” and the other a “strong” form of sustainable development. The weak model assumes that each of the social, economic and ecological sectors is of equal importance, while the strong model, as pointed out by the New Zealand PCE, recognises:33
that the economy is a subset of society (i.e. it only exists in the context of a society), and that many important aspects of society do not involve economic activity. Similarly, human society and the economic activity within it are totally constrained by the natural systems of our planet. The economy may expand or contract, and society’s expectations and values may change over time, but to function sustainably we must not exceed the capacity of the biosphere to provide for and absorb the effects of human activities. This requires integrating ecological thinking into all social and economic planning. Strong sustainability requires maintaining the parts (i.e. society, the economy and the environment) in good condition, as well as the whole. One part cannot be substituted for another, and in some situations there is only limited sustainability even within parts. (citation omitted)
According to Bosselmann, overall these developments demonstrate that the “international community is committed to sustainable development and its implementation, at least at the level of abstract policy development”.34
The debate around the meaning of sustainability has been extended by consideration of an ethics component. For example, Westra argues for sustainability together with ecological integrity.35 This debate includes new governance for sustainability, which has:36
its origins in holistic awareness and responsible values, [whereas] the current emphasis on economic governance is the product of values that place personal, shortterm gain over social equality and human security.
Governance for sustainability would take a holistic view of all laws and practices through the lens of ethical sustainability. The Earth Charter is viewed as the bestpractice governance model for sustainability and is an example of the capacity of civil society when engaged in a process to generate social
change.37 However, a full discussion of the Charter is outside the scope of this article.The United Nations acknowledges that a “huge constituency around the world cares deeply and talks about sustainable development, but has not taken serious action on the ground”.38 To enable the necessary changes, the United Nations indicates that massive “structural changes are needed in the way that societies manage their economic, social, and environmental affairs; and hard choices are needed to move from talk to action”.39
The need to proceed on a different level has been widely acknowledged by many including academics and NGOs. For example, Carroll argues:40
The key to making the world “feel the burn” toward sustainable development is to allow each individual upon whom the implementation of sustainability relies to have a hand in developing the solution.
The future direction and implementation of sustainability strategies must be developed at the local and community level and this is the opportunity that arose with the Christchurch earthquake recovery. In the discussion below it will become clear that local and national policies and strategies were in place to inform a sustainable recovery.
3.2 The Development of Sustainable Environmental Policies in New Zealand
The Brundtland Report in 1987 became a central focus of the reforms of the fourth Labour government41 in the mid1980s which saw New Zealand become one of the first countries to “attempt to integrate the concept of sustainability into an enforceable domestic environmental and resource management regime”42 with the enactment of the Resource Management Act 1991 (RMA).43 Further, the RMA provided for public participation in policy developments and application of the precautionary principle to resource consent proposals. In addition, local government was required to prepare regional policy statements and stimulated to adopt related sustainable policies and strategies.
The New Zealand government ratified the Kyoto Protocol,44 a United Nations measure designed to ensure compliance with sustainability goals, in December 2002. It has had mixed reviews, criticised as “toothless” on the one hand,45 while on the other it has been hailed as the best hope for achieving a solution to climate change.46 Socorro47 points out that the Protocol has created momentum, which has resulted in many positive developments in parallel to the Kyoto Protocol, and therefore the signing should be viewed as a positive action. For example, the Kyoto Protocol was used as a stimulus towards the development of the Sustainable Energy Strategy for Christchurch 2008–18 by linking it to the CCC corporate environmental policy statement, which states: “the Council shall respect international and national policies as they relate to the city and to any agreements”.48 Further, the agreement to reduce greenhouse gas emissions back to 1990 levels by the year 2012 is cited as evidence backing up the Council’s decision to adopt the strategy.49Sustainability was further integrated by amendments to the Local Govern ment Act 2002 (LGA). The LGA required in both the purpose and in relation to decisionmaking processes strong elements of sustainability. Section 10 of the LGA contained the purpose statement as follows:50
The purpose of local government is—
(a) to enable democratic local decisionmaking and action by, and on behalf of, communities; and(b) to promote the social, economic, environmental, and cultural well being of communities, in the present and for the future.
These developments led to local councils in New Zealand developing sustain ability policies as overarching policy frameworks designed to be given effect through council strategies, plans and actions and as a means of testing and evaluating current and future council actions. The CCC adopted a sustainability
<http://www.dw.de/interview kyoto isnt a toothless tiger/a 2237705> .
policy, which demonstrates the fundamental importance of sustainability to the CCC decisionmaking process, stating in part:51
The policy forms an important part of the Council’s commitment to sustainability. It has been designed to capture both the moral and legal responsibilities of Council in terms of incorporating sustainability into its activities and decisionmaking.
At the heart of a democratic society is the responsibility for community leaders to make decisions on behalf of, and in the best interests of, present and future generations. Democratic governance therefore encompasses key elements of sustainability, such as, stewardship for the community and for the environment on which it depends.
The CCC policy is a powerful tool, and with any departure from the policy there would need to be clear explanations as to how and why the departure is required. Sustainability was further integrated into the CCC approach with the adoption of the Sustainable Energy Strategy for Christchurch 2008–18 and the Climate Smart Strategy 2010–2025 in 2010. The Climate Smart Strategy report to the Council points out that the strategy:52
is a non statutory document, which establishes a vision, goals, objectives and targets for the community and sets out the Council responses to the issues and opportunities presented by Climate Change.
The report states that the strategy is a response to the legal obligations placed on the Council to consider the effects of climate change on the Council functions and activities.53 The report cites provisions of the LGA 2002 and the RMA 1991 (s 7) as evidence that the Council is required to have particular regard to the effects of climate change and renewable energy and the Civil Defence Emergency Management Act 2002 which requires the Council to manage risks to people and property and enhance community preparedness and resilience. In addition, the Climate Change Response Act 2002 is included which requires the Council to measure and report greenhouse gas emissions from Council
operations. Overall the sustainability policy was developed as part of the Council’s Long Term Council Community Plan 2009–2019 (LTCCP). The report stated that the strategy aligned with the Greater Christchurch Urban Development Strategy (UDS ).
The UDS commenced with a community consultation process in 2005, which received 3,250 submissions from the community and was developed into a community charter. The UDS involved all councils in the greater Christchurch area and took a longterm view until 2041. The evolution of this strategy provides recognition that resources are not unlimited and that growing societies are straining the environment. It provides a “broad scale, longterm, landuse strategy” for good urban design with a recognition of higher densities and was prepared under the LGA 2002.54 The guiding principles help with decisions on investment and implementation of the strategy:55
Sustainable prosperity is the overarching principle achieved through Strategy partners committing to providing leadership, and to work in partnership with each other and the community, and taking responsibility for decisions. Decisionmaking will be based upon the need for resilience, adaptability to change, the need for innovation to find creative approaches, and through integration between partners, plans and processes. In so doing we must value and look to the restoration of our natural systems.
This article will now return to the CCC sustainability policy, which is integral to other policies and strategies. The policy states that it was established due to the fact that the LGA “places a legal imperative onto the Council to adopt a ‘sustainability approach’”.56 The policy defines the relationship between the four components that the CCC is required to take into account — the social, cultural, economic and environmental wellbeing components. The four must be integrated when thinking about sustainability, and the relationship between the four starts with the position that the earth (the environment) sustains all life. It follows that a “subset of that life on earth is our society, which includes our various cultures and beliefs”.57 A subset of our society is our economy. These elements are often referred to as “Planet / Place, People and Prosperity”58. In
and LGA, ss 10, 14 and 77.
addition, the policy states: “The Council recognises that sustainability is a journey, not a destination.”59The policy specifies that for “our society to be on the pathway towards sustainability, its goals and actions must adhere to the sustainability definition and principles contained in [the policy]”.60 Further, it recognises that achieving this might require “a step change in the way we do things, not just incremental advances”.61 For example, the policy states: “simply reducing the use of toxic substances is not sustainable, [as] they should be eliminated altogether”.62
The policy defines sustainability as follows:63
A dynamic process of continual improvement that enables all people, now and in the future, to have quality of life, in ways that protect and enhance the Earth’s life supporting systems.
The definition of sustainability contains three integral parts — the earth’s lifesupporting systems, the quality of life criteria, the process of continual improvement described above — and a set of principles. The principles include stewardship and kaitiakitanga, anticipation, holism, precaution, equity and justice, collaboration, and improved valuation, which are to be considered as a whole package in working towards sustainability.64
The first integral part includes recognition that the earth’s life-supporting systems of society must be “Efficient, Cyclic, Solar, Safe and Social”.65 The second integral part includes the recognition that “quality of life means [that] all people can meet their needs, both now and in the future. Should any of these human needs not be met then, the society is not sustainable.”66 The needs include: subsistence, security, freedom, understanding, identity, affection and leisure. The third integral part is the process of continual improvement.
Further, the sustainability policy framework has its origins in the Natural Step67 and the Manfred MaxNeef 68 classification of fundamental human needs. The Natural Step is a globally recognised brand representing a network of non profit organisations with the core purpose of “accelerat[ing] the shift towards a sustainable society, where human beings live within the capacity of the Earth to
59 At [4.2].
60 At [4.2].
61 At [4.2].
62 At [4.2].
63 At [5.].
64 At [7.].
65 At [6.].
66 At [6.2].
67 Christchurch City Council “Origins of the Christchurch City Council Sustainability Policy”, above n 51, at 3.
68 At 4–5.
sustain us”.69 The Natural Step originating system is founded on a set of natural laws that relate to living on planet earth and recognises that the earth has limits, which must be lived within. Consequently, there are four rules, which must be lived within, namely:70
(1) Depletion is not sustainable.
(2) Pollution is not sustainable.
(3) The degradation of ecosystems is not sustainable.
(4) Selfishness is not sustainable.
It is clear that the CCC has adopted a “strong” form of sustainability based on community consultation and feedback. The evidence of community support for the adoption of the CCC’s interwoven package of sustainability policies and strategies is importantly recorded in all documents. An excellent example is the report to the formal Council meeting, which adopted the sustainability policy. Records show that the public consultation strategy included seven focus groups, a telephone survey of 770 people on climate change and sustainability, stakeholder workshops with over 100 people in attendance, and councillor working party meetings. Further, the report outlines that the policy is based on a:71
[n]ational and international literature search of other sustainability policies and strategies and concepts. The basis of the policy comes from the Natural Step ... and adopts internationally recognised principles and approaches to sustainability.
A second example, illustrating the spread of the consultation, is the stakeholder groups included in the consultation the CCC undertook towards the adoption of the Climate Smart Strategy 2010–2025. The consultation was described in the report to the CCC decisionmaking meeting as follows:72
Public and staff engagement took place throughout the strategy development process and a six week formal consultation process commenced on 22 March
2010 ... The Council established a Sustainability and Climate Change Working Party comprising of [sic] representatives from the City Council, Environment Canterbury, Canterbury Employers Chamber of Commerce, Canterbury University and Sustainable Otautahi Christchurch who met each month to develop the draft strategy. Consultation included four public information sessions in key locations, presentations and discussions with key stakeholders and interest groups including the Mahaanui Kurataiao Limited Board, Canterbury University, Christchurch Polytechnic Institute of Technology, Canterbury Public Health and at a joint Transition Towns meeting. A Hot Topic public forum was held on 24 March 2010 to launch the consultation period.
All reports to the CCC decisionmaking Council meetings include coverage of consultation fulfilment and the outcome. The report covering the adoption of the Climate Smart Strategy records that:73
Overall the Strategy was strongly supported with 82 per cent of the submitters agreeing with the strategy vision and the Council’s proposed approach to leadership and to enhancing understanding. Thirty eight percent [sic] of submitters disagreed with the proposed targets, wanting much stronger targets that tie into Strategy actions while also taking account of a greater range of greenhouse gas emissions.
Taking a wider view, the adoption by the CCC of this strong policy indicates an ethical step taken by the CCC decisionmakers to value the environment as a total of everything on the planet including the human sphere.74 The CCC policy is an example of the strong model of sustainability that the New Zealand PCE states represents “the limits within which the economy and society must operate if we are to function in a sustainable way”75 as discussed above. Importantly, Bosselmann points out that this notion “challenges the whole economic paradigm within which we presently operate”76 because it “encourages (economic and social) development within the parameters of ecology”77.
New Zealand, drawing on international developments of ecological sustainability in the Brundtland Report and the Rio Declaration, together with the signing of the Kyoto Protocol, has been clearly travelling the road to a sustainable future for over 20 years. Sustainable development is recognised as
Climate Smart Strategy 2010–2025” above n 72, at 139.
77 At 104.
a principle of international law78 and from this New Zealand has developed the RMA as well as a range of softlaw documents. The principle of sustainability has been consulted on widely within the local community. Sustainability was given an even more powerful driver when the then New Zealand Prime Minister stated in 2006: “Why shouldn’t New Zealand aim to be the first country which is truly sustainable ...?”79 It is clear that sustainability is a wellestablished principle sitting behind every decision of the CCC and integral to other strategies adopted by the CCC since 2002. Sustainability for human life was a clearly established background and, importantly, sustainability principles contained in the Kyoto Protocol were a continuing commitment of the National Partyled government of New Zealand when the Canterbury earthquakes hit in 2010–2011. The stage was set for the operating policies of sustainability to lead recovery legislation — the only requirement was for the key decisionmakers to make an ethical shift towards a truly green recovery.
4. SUSTAINABLE DISASTER RECOVERY INDICATORS
The earthquakes of 4 September 2010 and 22 February 2011 occurred at a time when there was significant international research around disaster recovery best practice, an unprecedented global crisis facing humanity with regard to climate change, and 20 years of sustainability debate at local community level in New Zealand. In particular, recent community participation in decision making around sustainability policies led by the CCC was evident. A quick survey of CCC policies as outlined above readily indicates a sustained period of community involvement and support, which would have led to the conclusion that the residents of Christchurch would most likely want a sustainable recovery. This proved to be correct when overwhelming support for a green city to replace the destroyed CBD was demonstrated during the first community conversation around the direction for the recovery.
The first indicator pointing towards a recovery based on sustainability is founded in the expertise of the Earthquake Commission’s (EQC) Chair in Natural Hazards Planning Professor Bruce Glavovic. Based at Massey University, he provided early advice around the principles of bestpractice disaster recovery. He spoke about local empowerment, innovative organisation
and leadership, and sustainability planning as forming best practice. He listed the following recovery principles:80
These principles align with the CCC sustainable policy principles as described above. His presentations shortly after the initial earthquakes emphasised the empowerment of local people. Academics organised conferences around bestpractice recovery. An example of the sentiment at one such seminar was recorded as follows:81
Though public engagement may appear to cause delays and generate high costs, international lessons suggest a number of benefits including political stability, community buy-in and support for new initiatives, the identification of workable solutions, and a generally positive recovery that promotes confidence in both the process and the likely end result. Such confidence is essential in terms of social and financial investment in the city and surrounds. Successful recovery therefore requires greater clarity around the development and implementation of a vision which, in turn, depends on good information flows (both up, down and across the system) and the translation of generalised aspirations into acceptable choice sets synthesised through mutual deliberation and informed exchange.
Bestpractice recovery principles are based on numerous studies which have been undertaken following international disasters. For example, Garnett
and Moore identified key themes and promising practices relevant to disaster recovery. They state:82
International experiences with disasters present a variety of valuable lessons for
... disaster recovery ... including the three key themes of local empowerment, innovative organization and leadership, and planning for sustainability.
Local community leaders voiced their belief that the local community should have a say and that a holistic pathway should be followed in the recovery. For example, the Very Reverend Peter Beck said in October 2010:83
The role of urban planning ... is to uphold and strengthen the character of particular places. So it’s vital that communities here have a voice in the design, and it’s not left to the powers that be in Wellington, who may not balance the vital economic needs with an [sic] holistic understanding of the aspirations and wellbeing of this particular set of communities. ... A consultative, inclusive process is the way forward.
A further indicator in consideration of a sustainable recovery is the current identified threats to life on the planet. For example, the planet’s biodiversity is threatened with the most severe extinction event in 65 million years. According to the International Union for the Conservation of Nature (IUCN) Red List, 17,291 of the 47,677 assessed species are threatened with extinction and there is a growing body of evidence that climate change is accelerating these extinction rates.84 Additionally, according to the Intergovernmental Panel on Climate Change in 2009 the most recent available trends show that climate change is having a significant impact on biodiversity and biological resources that sustain livelihoods and economies.85 Compounding this is recognition that today’s human population of 7 billion persons already has an ecological
<www.academic.udayton.edu/richardghere/emergency%20mngt/2010%20emer%20 management/Garnett%20and%20Moore.pdf>.
footprint significantly larger than the earth itself.86 The Global Footprint Network reports “humanity uses the equivalent of 1.5 planets to provide the resources we use and absorb our waste”.87 Further, compounding these factors was the announcement in May 2013 that atmospheric levels of climatewarming carbon dioxide in the atmosphere had passed the milestone level of 400 parts per million (ppm).88 There is increasing effort by global politicians to advance international agreements to redress this situation. For example, Edward Davey, the United Kingdom’s Energy and Climate Change Secretary, said in response to the milestone 400ppm carbon dioxide levels in the atmosphere:89
This isn’t just a symbolic milestone, it’s yet another piece of clear scientific evidence of the effect human activity is having on our planet. I’ve made clear I will not let up on efforts to secure the legally binding deal the world needs by 2015 to avoid the worst effects of climate change.
The Parliamentary Commissioner for the Environment in New Zealand has reported on numerous occasions that climate change is the biggest challenge we face.90 The evidence at the time of the earthquakes clearly indicated that climate change ought to be a consideration in the recovery.
A further factor driving the recovery towards the central focus on sustainability is the wellrecorded desire of the residents of Christchurch for sustainable development, which was confirmed in the outcome of the first round of consultation around the rebuilding of the Christchurch CBD. The residents of Christchurch shared over 100,000 ideas during the first “Share an Idea” consultation. The residents were empowered to speak up and overwhelmingly expressed a desire for a green recovery. People wanted:91
These ideas drove the initial masterplans developed for the CBD by the CCC. However, the government intervened directing that a new one hundredday planning process92 should be used for the development of a blueprint plan for the CBD.
The public response to the CBD consultation calling for a green recovery was also evident in statements by the building industry calling for sustainable building recovery, and these have continued. For example, in June 2013 the New Zealand Green Building Council announced a new energyuse rating scheme for commercial property rebuilding in Christchurch. “[T]he scheme will lead to a more sustainable built environment”, and in Australia the scheme has “transformed the way energy is used in commercial office buildings across Australia, leading to lowered operating costs, increased occupancy rates and higher capital values on buildings with good ratings”.93 Another development by the New Zealand Green Building Council and the CCC is “Legacy”, a new building industry campaign designed to build a sustainable city and encourage others to follow suit. It has the support of the Canterbury Chamber of Commerce and Ngāi Tahu Property Limited.94
By February 2013 it was reported in the Christchurch newspaper The Press that many people considered a green recovery was being overlooked.95 Research into the introduction of sustainable practices at the local level identifies the attitudes of local residents as one of the major factors which works against the introduction of sustainable practices.96 In Christchurch this was clearly not a factor. Further, during this period the Green Party expressed its view that the only way forward was a sustainable one, and it has continued to raise sustainability as the key to recovery.97
<http://issuu.com/waterfordpresslimited/docs/business_south_ _issue_3/26> at 26.
Since the Brundtland Commission report in 1987 it has been recognised that the concepts of sustainability and sustainable development have found “enormous political support”.98 In the example of the Christchurch earthquakes, the international debate on sustainability found expression through New Zealand disaster recovery experts, and the community demonstrated a high level of awareness of sustainability ideas, indicating an overall community awareness of the crisis of global warming.99 Local residents faced with an unprecedented disaster proactively expressed a desire for a green recovery. This is an excellent example of “[t]he solution lies in empowering ordinary people, through education and awareness, to ‘feel the burn’ toward environmental sustainability”.100 The factors powerfully point towards decisionmakers developing a legislative recovery practice based on sustainable recovery and leading the world in disaster best practice.Clearly, an important set of evidence in favour of a sustainable recovery pathway has been identified, but one final point needs to be considered — namely, the ethical choice of the decisionmakers mentioned above. The United Nations has pointed out that sustainable development is a visionary development paradigm, which over the past 20 years governments, businesses and civil society have accepted as a guiding principle. At the same time, the United Nations pointed out in 2010 that “[s]ustainable development has not found the political entry points to make real progress”,101 concluding that as a result “climate change has become the de facto proxy for implementation of the sustainable development agenda”.102 The convergence between the three pillars of economic development, social equity and environmental protection has not taken place, and sustainable development has been compartmentalised as an environmental agenda. Significantly, the UN Secretary-General released a report entitled Sustainable development: Harmony with Nature in 2011. This report endorses a holistic concept in harmony with nature as a way forward for international and national legislation.103
As recurrent financial crises constantly remind us, a socio-economic system based on material growth is not sustainable, just as striving for infinite growth in a world of finite resources is contradictory. We need to transform our
needs to focus on sustainability” (press release, 29 March 2011) <www.greens.org.nz/ pressreleases/christchurchearthquakerecoveryauthorityneedsfocussustainability>.
society into one in which all forms of life are revered. Only such a society can truly be wholesome. In order to achieve this, we must revisit not only the existing economic paradigm but also the moral values that support it. Wealth, knowledge and technology make valuable contributions. But they alone will not save humankind from its excesses and its deleterious impact on Mother Earth. We are witnessing an accelerating deterioration of the health of our Mother Earth. We must accept that we ourselves are an intrinsic part of nature. By contaminating and depleting Mother Earth, we are also contaminating and depleting ourselves. We are contributing to the forces and imbalances that cause the increasing natural disasters that are affecting us.
The Earth Charter contains an ethical vision rephrasing the clear independ ence between environmental protection, equitable human development, human rights and peace. In doing so it formulates a clear ethical framework for thinking about future generations and caring for the “community of life with understanding, compassion and love”.104 The need to move rapidly to change civilisation’s priorities has been widely documented. For example, Mikhail Gorbachev and Maurice Strong organised a public forum aiming to:105
[m]obilise global public interest and action to promote three important objectives essential to the future of humanity: averting the ecological disasters which threaten our planet; fighting the plague of poverty; and acting to ensure truly sustainable development.
In the preamble to this meeting entitled the Earth Dialogues Forum in Lyons, France in 2002, Gorbachev and Strong state:106
There is an urgent need to change our priorities, to correct the forces that promote material wealth over global welfare and justice, and to reinforce the fundamental values that form the basis of human civilization all over the planet — compassion and respect for each other and the natural environment, tolerance and solidarity, and the pursuit of peace. The Earth Charter was welcomed as a peoples’ document providing an ethical framework equally applicable to guiding the choices of individuals, companies and states.
The question of ethics has been identified as one of the keys to a sustainable future,107 the indicators all pointed toward a bestpractice sustainable recovery, and all that was required was for the decisionmakers to make an ethical choice and base the recovery on sustainable principles.
5. A DISCUSSION OF MEASUREMENT TOOLS TO DRIVE AND ASSESS SUSTAINABLE RECOVERY
The next consideration that arises is the question of what tool should be used to measure whether or not sustainability principles are in place in the earthquake recovery. It was recognised early that tools to measure sustainable development were problematic,108 and consequently there have been many attempts to develop overarching measures since the United Nations conference in 1992. For example, an international conference to develop measurement tools was organised by the International Institute for Sustainable Development in 1999,109 and since then a wide range of indicators have been developed as measurement tools. These include the Environmental Sustainability Index,110 the Environmental Performance Index,111 the Index of Sustainable Economic Welfare,112 and the Ecological Footprint113 and its derivative the Carbon Footprint.
An excellent starting point to determine suitable indicators is the definition of strong sustainability outlined above from the Parliamentary Commissioner for the Environment under the objectives of the Environment Act 1986. The PCE recognises the difficulty in developing sustainability indicators. However, in 2003 the PCE praised the work of local governments in developing
<envirocenter.yale.edu/?page=environmentalsustainabilityindex>.
sustainability policies and definitions, under the LGA 2002, in terms of indicators for use in working towards achieving sustainability.While recognising that there has been indicator work carried out by a number of New Zealand government departments and others such as the 12 cities “Quality of Life” indicators,114 it can be concluded that there are no suitable national indicators in New Zealand that could be used to measure sustainable recovery. Therefore, noting that the resident expert, Bruce Glavovic, points out that sustainable recovery fits best-practice disaster recovery, the next point of reference would be the CCC sustainability policy which covers the local community requirements and other elements recommended by the EQC professor and discussed above.
The work of local government in developing sustainability policies and indicators has been recognised as valuable by others working towards sustain ability measures. For example, the New Zealand Society for Sustainability Engineering and Science organised a workshop in 2007 recognising:115
Unlike other countries that have had to start from scratch to engage com munities to identify a set of sustainability indicators, [New Zealand] has the advantage of building on the work already carried out throughout the country on engaging communities in the Local Government Act 2002 (LGA) community outcomes project.
The CCC’s broad policy sits well with developments at the international level reflecting a strong sustainability model. The strong model as described above recognises that the environment and a healthy society are dependent upon the limits of the natural environment.116 Further, the CCC policy suits the decisionmaking process around development of a legislative strategy and practice for sustainable recovery because it was developed as a decisionmaking tool for city councillors and to guide sustainability practices across the entire local government parameters. While the CCC does not employ a measurement tool such as the Ecological Footprint to measure a landuse footprint, this method could be employed following the example of the Waikato Regional Council, which uses the tool for planning purposes.117 A much wider footprint tool would be required to assist planners undertaking earthquake recovery
<www.waikatoregion.govt.nz/PageFiles/6025/tr0650.pdf>.
because the limits to growth under the strong CCC sustainability policy would require a more holistic analysis methodology than merely a landuse approach. However, a complete evaluation of the type of model best employed is outside the scope of the present article. Further, the CCC sustainability policy fits in with the wider development around the Earth Charter.A measure which must not be overlooked in adopting a strong sustainable model is a safe minimum standard.118 However, applying the precautionary principle — which according to Cameron and Abouchar has evolved to become a general principle of international law119 — is imperative to ensure that decision-makers faced with scientific uncertainty apply the guiding principle that:120
ensures that a substance or activity posing a threat to the environment is prevented from adversely affecting the environment, even if there is no conclusive scientific proof linking that particular substance or activity to environmental damage.
Cameron and Abouchar further point out that nationstates embraced the principle at the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro in 1992 with all of the binding legal agreements signed except the Statement on Forest Principles, including the precautionary principle.121 The precautionary principle would be a highly ethical application for decisionmakers in relation to earthquake recovery given the unpredictability of both the initial earthquakes and the long period of severe aftershocks and the unknown risks of future earthquakes given the fault lines identified directly under the city of Christchurch.
For the purposes of this article the CCC sustainability policy and other integrated CCC policies and strategies will be used as the framework to critically review and measure the degree of sustainability contained in the Canterbury Earthquake Recovery Act 2011 and the Preliminary Draft Land Use Recovery Plan.122 This will be linked to the need for a hardlaw response under an amended Canterbury Earthquake Recovery Act 2011. With the introduction
120 At 30.
121 At 37–38.
122 Environment Canterbury Preliminary Draft Land Use Recovery Plan <http://www. developingchoices.org.nz/docs/prelim draft lurp 210313 software read vers.docx> .
of sustainability principles to the Canterbury recovery legislation, further measurement tools would need to be designed within its parameters to ensure compliance with the purpose and to meet the unique factors of the Christchurch earthquake recovery.
6. ASSESSING THE APPLICATION OF SUSTAINABILITY WITHIN THE
PRIMARY EARTHQUAKE RECOVERY LEGISLATION
In order to set the scene for an examination of the question of whether or not the principles of sustainability are being applied to the earthquake recovery it is important to briefly discuss the overall tenor of the primary legislation.
The government responded to the earthquakes with legislation that gave it exclusive control of the earthquake recovery. First, the Canterbury Earthquake Response and Recovery Act 2010 allowed regulations to be created, repealed, or amended without reference to Parliament. Parliamentary process was ignored and power was placed in the hands of one Minister and the executive. Strong criticism followed with 27 academics writing an open letter to the government on 28 September 2010123 expressing concern about the nature of the legislation. Likewise, Jonathan Temm, the New Zealand Law Society president, criticised the legislation, stating, “powers delegated to ministers by the act are potentially at odds with the principles of the rule of law”.124 Overall, the concerns focused on the power given to the Minister to change New Zealand statutes, with no role for the courts to examine the reasons, and the ability to grant Orders in Council with full legislative force over inconsistent parliamentary enactments. Second, in May 2011 the government repealed the 2010 legislation and replaced it with the Canterbury Earthquake Recovery Act 2011. It retained the wide powers for the Minister to exempt, modify, or extend provisions of any enactment by Order in Council.125 Further, measures designed to review the powers of the Minister were included. First, a provision for a Canterbury Earthquake Recovery Review Panel, designed to review draft Orders in Council,126 and second, a requirement
for the Minister to consult a crossparty forum.127 However, this second piece of legislation also faced heavy criticism. For example, Dean Knight observed:128
In my view, the new review panel is mere windowdressing. It is a poor substitute for the more legitimate democratic processes that usually accompany lawmaking and lawchanges. There is a disappointing lack of democratic scrutiny of the legislative changes ...
The primary check against the inappropriate use of the powers given to the Minister remained the provision that they must be exercised for the prescribed purposes of the legislation and where considered reasonably necessary.129 Urgency powers were utilised to rush the legislation through Parliament with the Green Party opposing it on the grounds that it gave “unbridled power to the Beehive for five years”.130 The background papers reveal that Cabinet was advised that the legislative principles provided in the proposed legislation followed:131
lessons learnt from international experience and from the recovery planning after the 4 September earthquake including the strong indication to have a single entity in charge of and responsible for the recovery efforts ...
Turning to the purpose of the Canterbury Earthquake Recovery Act 2011, it is clear that on its face the purpose is extremely broad, providing in part:132
(a) to provide appropriate measures to ensure that greater Christchurch and the councils and their communities respond to, and recover from, the impacts of the Canterbury earthquakes:
(b) to enable community participation in the planning of the recovery of affected communities without impeding a focused, timely, and expedited recovery:
...
(f ) to facilitate, coordinate, and direct the planning, rebuilding, and recovery of affected communities, including the repair and rebuilding of land, infrastructure, and other property:
(g) to restore the social, economic, cultural, and environmental wellbeing of greater Christchurch communities:
First, community participation is clearly established as a purpose of the legislation. The explanatory note provided with the legislation explained that the Bill “is founded on the need for community participation in decisionmaking processes while balancing this against the need for a timely and coordinated recovery process”.133 Further, the note explains that:134
Cantabrians will also be able to provide their input via a community forum made up of representative community leaders and through a crossparty forum of Canterbury Members of Parliament that will advise the Minister for Canterbury Earthquake Recovery and CERA, as well as through public consultation processes.
This indicator demonstrates that the community participation element of international research around disaster recovery best practice was the intention of Parliament. This reveals that the principles of the CCC sustainability policy with regard to the requirements for community consultation under the LGA 2002 are met.135
The legislation and the background documents make no reference to sustainability or sustainable development. This seems an extraordinary omission given the 20year history of sustainable development debate both internationally and nationally as discussed above. Further, the extraordinary nature of this omission is emphasised since New Zealand enacted the RMA in 1991 with the clear purpose of promoting “sustainable management” of natural and physical resources,136 defined to include “... land, water, air, soil, minerals, and energy, all forms of plants and animals ... and all structures”.137
The government was prepared to enact strong legislation without any reference to sustainability principles being applied. Cabinet background papers refer to “lessons learnt from international experience and from the recovery
planning”.138 Given the research advice from the EQC professor for natural disasters Bruce Glavovic, discussed above, it is clear that sustainable practice would have been central to the recommendations for a bestpractice recovery. In addition, the background Cabinet papers make no reference to the wider international and national literature on climate change or peak oil. Further, following the earthquake, New Zealand experts in a wide range of disciplines related to a holistic recovery have undertaken research and given advice about the considerations the government should be taking into account with regard to the recovery work of the Canterbury Earthquake Recovery Authority (CERA) which was established pursuant to the Canterbury Earthquake Recovery Act 2011. An excellent example is the report generated by a workshop organised by the New Zealand Centre for Sustainable Cities and Landcare Research held in April 2011. It stated in part:139
[B]uilding a sustainable Christchurch demands that we take a highlevel view of all the key dimensions of sustainability. Towns and cities are crucial sites for addressing climate change, the key environmental issue of our age. Energy security is now also widely seen as critical for sustainability: the International Energy Agency’s chief economist has explicitly stated that we are past peak conventional oil and planning for a future city needs to build in energy resilience for economic security. (footnote omitted)
The conclusion can be drawn that the exclusion of sustainability principles is most likely to have been a deliberate political decision in the Cabinet background discussion papers and more importantly the draft legislation. The National Party government of New Zealand is not afraid to concentrate the recovery power in the hands of one Minister without the normal safeguards of the parliamentary system, while on the other hand it is not prepared to follow international or national advice and provide elements of either “weak” or “strong” sustainability in the recovery legislation.
The Canterbury Earthquake Recovery legislation fails the test when assessed against the CCC sustainability policy. No provisions suitable for a strong sustainable recovery practice are included in the primary legislation. The next step in an assessment of the recovery against fundamental goals concerning sustainability is to turn to one of the most significant Recovery Plans, the Preliminary Draft Land Use Recovery Plan (Draft LURP).
Book11.pdf> at 7.
7. ASSESSING THE APPLICATION OF SUSTAINABILITY WITHIN THE PRELIMINARY
The Canterbury Earthquake Recovery Act 2011 provides that recovery will be developed through a longterm Recovery Strategy,140 which will be developed by CERA. Underneath this Recovery Strategy provision is included for draft Recovery Plans,141 which would set out the detail of the needs and implementation of the recovery. It is to these Recovery Plans that this article will now turn, in making an assessment of a sustainable recovery. This article takes a narrow focus of CERA earthquakerelated Recovery Plans, given that there are number of plans, by focusing on the significant Draft LURP.142 The Draft LURP, as pointed out by the CCC Planning Committee Chair, “is an important document, designed to assist in decisionmaking around land use and infrastructure investment in the short to medium term, postearthquake”.143 To address landuse recovery the government used the Canterbury Earth quake Recovery Act 2011 provisions to amend the Canterbury Regional Policy Statement (RPS), which had been developed pursuant to the UDS. There was a successful judicial review144 of the changes to the RPS and following this the Draft LURP was developed for public consultation. There was a first short consultation around the Draft LURP and a second round of consultation open until 2 August 2013.145 This article will give consideration to the first Draft LURP and covers the timeframe until the close of the first consultation period on 22 April 2013. The evaluation will be made primarily against the CCC
sustainability policy and related documents.
First, evaluation of the Draft LURP demonstrates shortcomings with the consultation process, which mitigate against the principles of the CCC sustainability policy discussed above. The consultation was short with few opportunities given for the public to be informed and the language was highly
technical. This was reflected in the submission provided by the Eastern Vision group, which stated in part:146
We have severe reservations about the communication and consultation processes provided for in the drafting of such a significant recovery plan. There has been very minimal engagement and participation of the community in the development of the Plan for a number of reasons: the very tight time frames; the complexity of the Plan; the language in which it is couched; the lack of direct, effective and inclusive communication with communities; and the lack of real opportunity to assimilate, review and respond.
Second, the purpose of the Draft LURP, which is to ensure “a timely and expedited process for recovery from the effects of the Canterbury earthquakes”,147 will be considered under the CCC sustainability policy. The plan is designed to “identify critical actions required over the next 10–15 years to coordinate land use decision making”,148 which seems a very short timeframe given the ambit of the Draft LURP. The final Land Use Recovery Plan (LURP) will be able to direct changes to instruments created under the RMA, LGA and the Land Transport Management Act 2003 (LTMA).
It should be noted that with regard to the key dimensions of sustainability the Draft LURP follows the Canterbury Earthquake Recovery Act 2011 by making no reference to the view that towns and cities have been widely identified as key sites for addressing the environmental issues of our age: climate change or peak oil issues. The report, which contains a synthesis of the submissions made during the consultation undertaken on the Draft LURP, reveals that sustainability matters were raised as one of the common themes during the consultation. The report states in part:149
Deliberately planning to reduce the impacts of environmental change that will occur as a consequence of climate change and sea level rise was seen as an opportunity to rebuild [for] a sustainable future, which should be taken by the LURP. Specifically for the current rebuilding situation, not rebuilding on unsuitable land was stressed.
<www.scoop.co.nz/stories/AK1305/S00150/callforareturntoneighbourhoodvillages. htm>.
<http://cera.govt.nz/sites/default/files/common/development of the draft land use recovery plan a summary .pdf> at 1.
recoveryplanconsultationreportround220130525.pdf> at 5.
One of the organisations to raise this issue was Sustainable Otautahi Christchurch, which actively works to achieve longterm sustainability for New Zealand.150 Overall, Sustainable Otautahi described the Draft LURP as a “developer’s dream and a sustainability nightmare”.151Returning to the purpose of the Draft LURP, the document describes a wider ultimate purpose in the following words:152
... to facilitate earthquake recovery, and in doing so create a vibrant, successful urban environment for people to enjoy. This will enable greater Christchurch to recover as a place to be proud of — for us and our children after us.
This longerterm aspirational statement indicates that the Draft LURP has an important longterm and more visionary function than the shortterm 10–15 year focus as described at the beginning of the purpose statement. Assessing this shortterm focus against the CCC sustainability policy, the Draft LURP would need to indicate in the purpose that the vision was for the next 100 years and more while making reference to specific sustainability principles. Since this is a onceinalifetime opportunity to rebuild almost the entire city and its support systems, a 100year strategy would be advantageous measured within the terms of the CCC sustainability policy.
Measuring the Draft LURP against the CCC sustainability policy it is clear that it fails to follow the natural laws on which the policy is based. These natural laws are:153
... based on the fact that the Earth is essentially a closed system, powered by the sun and that we have only one planet which must last us forever. The Earth has limits, which we must live within. The Earth has been compared to a “lifeboat in space”, on which we must live and share with all the people, plants and animals — forever.
The CCC sustainability policy origins document cites four rules which must be adhered to for this reality to be met — namely, depletion is not sustainable, pollution is not sustainable, the degradation of ecosystems is not sustainable,
LURP.pdf> at 3.
and selfishness is not sustainable. There is no reference in the Draft LURP to considerations of this nature. Neither is there discussion of the package of principles of the CCC sustainability policy.It could be argued that the Canterbury Earthquake Recovery Act 2011 requirement that CERA produce a general recovery strategy covers the high level values behind the recovery.154 Thus, turning briefly to examine the content of the Recovery Strategy, the guiding principles state that “development and recovery initiatives should be undertaken in a sustainable manner”,155 which sounds promising, but once again there is no general discussion of the principles of sustainability as contained in the CCC sustainability policy. Further, the word “sustainable” is mentioned on fewer than 10 occasions in the entire plan. Reference is made to the need for the transport system to provide sustainable choices,156 the economy and business growth to be sustainable,157 waste to be managed in a sustainable manner,158 and twice to the sustainable management of the natural environment.159 While some of the principles of the CCC sustainability policy are mentioned within the vision and goals section of the Recovery Strategy, it can be described as a “weak” model as it shows a diagram with each component meeting in the centre overlapping where the negotiation and tradeoffs between the components will occur. However, it should be noted that the community is shown at the centre of the overlapping components, which are economic, built environment, social, natural, and cultural.160 It is clear that this is not a model of recovery based on the “strong” model of sustainability as contained in the CCC sustainability policy and recommended by the PCE as the way forward for New Zealand.
The next consideration that arises is to discuss several specific features of the Draft LURP to measure whether or not a sustainable recovery is being proposed. First, the UDS, as discussed above, aimed to prevent urban sprawl, but, on the contrary, the Draft LURP promotes urban sprawl. The Draft LURP proposes greenfield developments with a total of 40,000 sections becoming available most of which require long car drives to access the city areas. This is a far greater number of sections than is required to replace houses damaged by the earthquake.161 Taking a longerterm view, it is clear that peak oil has already
156 At 1, 2, 14, 28, 42 and 44.
157 At 28.
158 At 44.
been reached and consequently proposing new greenfield developments, which rely on private motor vehicle transport, is unwise. Promoting urban sprawl results in a larger urban footprint with the consequent increase in infrastructure and transport costs. International best practice has identified the redevelopment of brownfield sites through regulation as a means of containing urban sprawl. For example, the abandoned dockside site in the city of Victoria in Canada,162 which has been developed with a strong commitment to sustainability principles. It demonstrates how local governments are able to use a range of responses to achieve sustainability through landuse regulation. In this instance, the city entered into agreements and strict sustainability requirements, which brought together planners, development economists, engineers and financial personnel from within the city, as well as representation from the local community association which had the power of veto over the project,163 to develop a business case study for the site. It is now a successful example of the sustainable development of a brownfield site.The second specific feature to assess in the Draft LURP is the recom mendation for the provision of legislative force to ensure the implementation of the earthquakegenerated masterplans developed by the CCC in the worst hit suburban commercial centres.164 An excellent example is the Sydenham masterplan that was developed by bringing together experts from a wide range of disciplines relevant to the regeneration of the nowdemolished area, through community consultation. This area is identified together with adjacent brownfield sites in the Draft LURP,165 and with appropriate incentives and regulation would be a sustainable development site. This could be considered under changes to the District Plan, however the Draft LURP does not recommend a specific sustainability package to direct that this occur. Further, the Draft LURP’s proposal to rezone greenfield sites for residential purposes would negate any brownfield development incentives unless there were strong incentives and plans to implement them in suburban areas.166 There is insufficient regulation and incentive provision to ensure sustainable development.
The third specific assessment consideration is the provision of an integrated city plan and a specific sustainability building code. The CCC recognised in its response to the Draft LURP that a review of the District Plan assisted by the statutory provisions under the Canterbury Earthquake Recovery Act 2011
above n 150, at 4.
163 At 559–564.
164 Environment Canterbury Preliminary Draft Land Use Recovery Plan, above n 122, at R37. 165 At 11.
166 Sustainable Otautahi Christchurch Inc, above n 150, at 3.
presented the CCC with an opportunity to “provide a comprehensive, integrated City Plan framework for the city moving forward into recovery”.167 However, many submitters recognised that the required guidelines are not provided to ensure sustainable recovery, as the consultation summary notes:168
Many submissions across the board ... commented that the urban design guidelines are too weak and need to have more teeth to ensure a sustainable focus is maintained throughout and reflected in the rebuild.
Further, the summary consultation report stated that:169
Submitters commented that regulations and incentives should be established for the incorporation of systems such as solar panels, grey water and rain water. Multiple submitters suggested a sustainable building code.
There is no reference to a sustainable building code in the Draft LURP that is contrary to earthquake recovery following the CCC sustainability policy.170 The question that arises is will the CCC, in developing an integrated city plan framework and in the amended District Plan under the final LURP, follow the CCC sustainability policy?
A fourth specific feature to consider is the development of neighbourhood villages and the need for community development considerations. There is no provision in the designs for subdivisions for neighbourhood village concepts nor local amenities; instead there is a concentration on mall developments.171 This is despite the fact that a significant amount of urban land will be rebuilt due to the earthquakes. A Christchurch city councillor, as spokesperson for the Eastern Vision group, emphasised the need for community development when he stated:172
We need to be building communities, not just subdivisions and infill developments. Masterplans need to be overarching Outline Development Plans for neighbourhood villages rather than narrowly focused on a few key business zones without reference to the residential communities they serve.
169 At 61.
170 Environment Canterbury Preliminary Draft Land Use Recovery Plan, above n 122, at R31. 171 Sustainable Otautahi Christchurch Inc, above n 150, at 5.
172 Peter Beck, spokesperson for Eastern Vision “Call for a return to neighbourhood villages”, above n 146.
There are opportunities with the recovery in the suburban masterplans for the development of suburban village concepts. This approach fits in with the sustainable development plans for Christchurch city which have been developed prior to the earthquakes and which could be used if the opportunity for a sustainable recovery was pursued. For example, Professor Susan Krumdieck, of the University of Canterbury Department of Mechanical Engineering, a specialist in sustainable energy and transport solutions, has been working since 2003 on a model of a renewable energy revisioning of the suburb of Burnside.173 The features would contribute to the reconstruction of a new, viable Christchurch. Krumdieck explains that since the old CBD attracted a lot of commuters every day, a sustainable approach to the “rebuild would take advantage of the underlying pattern of smaller towns that have become the suburbs”.174 The model is ready for implementation and could be used to develop the necessary legislative changes towards urban renewal in, for example, the Sydenham masterplan. Redevelopment of the Sydenham area as a neighbourhood village could be linked to other urban village developments and to the CBD, which would fit brilliantly within the parameters of the CCC sustainability policy.A fifth sustainability consideration is that the Draft LURP does not provide for sustainable transport corridors. There is no provision for land to be provided for new transport opportunities, although planning for such corridors needs to be made in the early stages. Given that climate change and peak oil are major sustainability issues, there is no provision in the Draft LURP for a reduction in the dependence on private motor cars. Overall, with regard to the specific features considered, the Draft LURP fails the core tests under the CCC sustainability policy; it does not even address the core first integral part that society must be “Efficient, Cyclic, Solar, Safe and Social”.175
Of significant concern to the recovery is that the Draft LURP fails the test of providing an integrated plan, although there is a diagram that shows links with other CERA Recovery Plans.176 For example, the Eastern Vision group’s submission to the Draft LURP consultation pointed out:177
at 99.
The LURP lacks clarity with regard to its interrelationships and linkages with other planning documents, strategies and programmes. ... There is therefore no overriding sense of, or confidence in, a cohesive integrated urban planning framework for the recovery of Greater Christchurch and particularly the eastern suburbs.
In addition, with regard to the lack of integration, the CERA Natural Environ ment Recovery Programme (NERP) has not been given the same statutory power as is attached to the Draft LURP. It is therefore of concern that the natural environment is not considered of sufficient importance to require a statutorily driven recovery plan. The NERP identifies risk from natural hazards, flood risks and mitigation, and planning for stormwater networks. Further, the NERP includes reference to the need to include resilient and sustainable infrastructure in the rebuild. In light of the CCC sustainability policy and related documents, the Draft LURP does not provide for a holistic integrated recovery. Further, it fails to meet the provisions of the CCC Climate Smart Strategy, which is a response to climate change with targets for a reduction in total greenhouse gas emissions from Christchurch of 20 per cent by 2020 and a 50 per cent reduction by 2050.178 Stronger targets were set that include “total greenhouse gas emissions targets for Christchurch and for each of the major sources of emissions”,179 than the levels consulted on in the draft, because of the supportive response from submitters.180 It is not surprising that the National government would not support such sustainable policies in the Recovery Plans given that in December 2012 it announced that New Zealand would back away from the Kyoto Protocol, which put the country at “odds with Australia and 36 other industrialised nations who have signed up to binding emission cuts by
2020”.181
The CCC sustainability policy endorses the use of the precautionary principle in its overall definition and with specific reference to the principle of “precaution”.182 While the Ministerial Direction states that considerations must include “avoiding or mitigating the changed or heightened risk of natural hazards”,183 there is no reference to existing developments. This is a serious omission given that there is heightened risk to existing properties due to
178 Christchurch City Council, Council Agenda 12 August 2010, [28.] “Adoption of the
Climate Smart Strategy 2010–2025”, above n 72, at [6.].
179 At [11.].
180 At [9.], [25.] and Table 2.
significant land movement as a result of the earthquakes184 and the predications of future climate changerelated waterlevel changes.185 The consultation summary reports that submitters to the Draft LURP raised the need for planned retreat,186 with regard to sealevel rise due to climate change and as a result of the earthquake land movements. The need to retreat from some areas of the city should be considered in the Draft LURP as an essential part of the recovery. Planned retreat from lowlying areas has become accepted internationally into planning for climate change.Overall, the CCC sustainability policy definition of “continual improvement that enables all people, now and in the future, to have quality of life, in ways that protect and enhance the Earth’s life supporting systems”187 is not contained in or applied with the Draft LURP. Further, applying the CCC sustainability policy together with its integrated bank of sustainability policies would have enabled the government to draw on policies and strategies which clearly have widespread community support. This is disappointing since all New Zealand citizens expect democratic involvement in local government as it is ingrained in the national psyche.188 However, the consultation on the Draft LURP may lead to significant changes in the final plan.
8. A PROPOSAL TO INJECT SUSTAINABILITY INTO THE EARTHQUAKE RECOVERY
It is inconceivable that the earthquake recovery legislation developed in 2011 would ignore the principle of sustainability, but, on the other hand, given the paradigm shift required to adopt strong sustainability into the recovery as discussed above, it is not surprising. The traditional approach of balancing the national economy ahead of sustainability has resulted in an allpowerful, overriding piece of legislation, which is destined to forge ahead despite public support for a sustainable recovery.
The most significant proposal this article advances is a number of amend- ments to the Canterbury Earthquake Recovery Act 2011, which would become the parameters for the development of Recovery Plans.
The severity of the earthquakes placed New Zealand on the international disaster recovery centre stage and there is an opportunity to lead the world in disaster recovery. All the factors point towards applying the principles of sustainability. An opportunity exists for New Zealand to trial a truly sustainable approach to the disaster, given that the literature points towards sustainable development being in the first instance an ethical principle.189 The responsibility is with Parliament and the opportunity exists for decisionmakers to make the moral choice of following the template of the CCC sustainability policy. This would require a paradigm shift by the decisionmakers and a greening of the overarching legislation. The amendments to the recovery legislation should be based on the CCC sustainability policy, which lines up with the principles of strong sustainability and values contained in the Earth Charter, support for which has already been demonstrated by the citizens of Christchurch and could form the basis for legitimate amendments to the Canterbury Earthquake Recovery Act 2011.
8.1 Need for Overarching Sustainability Legislation — A Comment
Overall, it is acknowledged that the best method of ensuring sustainability in New Zealand would be for it to be entrenched in a legislative instrument such as a future constitution. This constitution would be best to reflect the principles and values set out in the NGOdriven Earth Charter, which is accepted as a guiding framework for sustainable development.190 This would require future Parliaments to assess recovery legislation against the constitution and against which the judiciary could hold the executive to account. The direction of natural disaster recovery along sustainable principles would be assured.
8.2 Potential Amendments to the Canterbury Earthquake Recovery Act 2011
Given the broad nature of earthquake recovery and the current situation with the development of the principles of sustainability in New Zealand, as set out previously, some apparent proposals include the following as a means of injecting sustainability into the recovery.
First, the Canterbury Earthquake Recovery Act 2011 needs to be amended so that sustainability is embedded in the overall regime of the legislation, to prevent it being traded off against other objectives such as the need for a speedy recovery and economic factors. Setting a bottom line with a legislative definition of sustainability would avoid trade-offs between the environment and
the economic parameters of the recovery on a casebycase basis as the recovery proceeds. To ensure a sustainable recovery it is clear that the legislation must include a model of strong sustainability as opposed to weak sustainability.191 In addition, it would be wise to include a requirement that the entire recovery undertaking be subject to the precautionary principle.This could best be achieved by altering and including in the s 3 purpose of the Canterbury Earthquake Recovery Act 2011:
The purposes of this Act are subject to ensuring strong sustainable recovery, which means a dynamic process of continual improvement that enables all people, now and in the future, to have quality of life, in ways that protect and enhance the earth’s lifesupporting systems.
In addition, s 4 would be amended to include in the definition section the following:
The definition of sustainability is supplemented by the definition contained in the Parliamentary Commissioner for the Environment definition of strong sustainability192 and the supplementary CCC sustainability policy, which means the CCC sustainability policy in its entirety,193 as set out in Schedule 1.
The broad CCC sustainability policy would require substantial changes to the earthquake recovery legislation. It may be best to retain the statutory scheme contained in the legislation that permits the GovernorGeneral to make Orders in Council on the recommendation of the relevant Minister to exempt, modify, or extend provisions of any enactment thereby providing a means of ensuring sustainable recovery in a holistic manner across all relevant pieces of legislation. For example, amendments would be required to the Building Act 2004 to include a sustainable building code. However, the Orders in Council provision should be subject to the provisions of the new purpose and collaborative management arrangements in a newly amended s 8 and s 9. These amendments, together with extensive changes to provisions requiring community engagement, would need to be negotiated on an ongoing basis through a collaborative board established to ensure integrated Recovery Plans and practice.
The role of the Minister and the chief executive of CERA should be amended in s 8 and s 9 to ensure an integrated and collaborative recovery by requiring the two senior decisionmakers to work collaboratively with a
191 At 35.
192 At 35.
193 Christchurch City Council Sustainability Policy, above n 56.
decisionmaking board which would need to have a power of veto over the Minister’s development of Orders in Council in compliance with the principles of the CCC sustainability policy. To ensure collaborative governance, this board should be made up of the Minister, the chief executive of CERA, Christchurch City Council elected members, Environment Canterbury elected members, and representatives of the Christchurch business community, the local iwi, and a Sustainable Otautahi Christchurch nominee. Details of the board would be negotiated under the sustainability policy with each sector. This arrangement would reflect the earthquake recovery best practice of making the recovery a locally driven recovery “for the people, by the people”.With regard to citizen involvement, collaborative popular participation would be used, whereby public representatives act as:194
negotiators with power to assure that agencies act on the basis of their preferences. In short, citizen representatives not only evaluate information but also negotiate the resolution of conflicting ideas and priorities.
Further, elements of direct citizen participation through voting referenda could be provided on locallevel projects to approve or reject project plans. These mechanisms would fit in with the CCC sustainability policy principles and the Earth Charter provisions related to principle 13b, which stipulates: “Support local, regional and global civil society, and promote the meaningful participation of all interested individuals and organisations in decision making.”195
The sections of the legislation related to the Recovery Plans would be redrafted pursuant to the purpose of the legislation and thus would have built in sustainability. Further, in order to ensure the application of sustainability as defined under the amended legislation and to avoid one of the recognised reasons for the failure of the application of the principle of sustainable development under the RMA, amendments to the earthquake recovery legislation should require ongoing education of all levels of officials and elected members working on the earthquake recovery. Building this into the overarching legislation will assist to ensure that the required paradigm shift needed for the implementation of the new legislation is understood and applied as intended by Parliament.
A new start recovery programme for a green recovery and reflecting the Parliamentary Commissioner for the Environment’s sustainability best practice would be a sensible change in approach, which could be justified by recognition
of the recent recordings of atmospheric carbon dioxide at levels of 400 ppm,196 and the demands of the citizens of Christchurch for a green recovery.197Within the general framework, a holistic direction would need to be developed in response to specific elements of the recovery. A sustainability approach to recovery would have farreaching outcomes for the whole direction of the governance of New Zealand as the earthquake recovery is interconnected with the future wellbeing of the nation. The application of sustainability to earthquake recovery in a major city where most of the CBD has been demolished would place New Zealand at the centre stage of global disaster recovery. All that is required is the moral courage to make the shift.
9. CONCLUSION
It is clear that the earthquake recovery is interwoven with a sustainable environment and New Zealand’s future depends on developing sustainable cities. This presents a grand opportunity to apply a legislative sustainability framework to the recovery. International environmental law direction has pointed towards sustainable development for the past 20 years. Climate change indicates a need for civilisation to adopt a sustainable pathway, natural disaster recovery literature points to bestpractice sustainable recovery, the people want a sustainable recovery and, most importantly of all, the local authority has adopted a sustainable policy. All the factors point towards a decision for sustainable recovery. Although blinded by the glare of opportunity, the National government chose to walk away from sustainability, the window of opportunity is still ajar.
To turn the legislative framework of the Canterbury earthquake recovery around, a mind shift of seismic proportions is necessary. There is no reason why the government should dither over this, because they are governing on behalf of the people and they have a moral obligation to deliver sustainable decisions for future generations. With climate change and peak oil already indicating poor prospects for the future of civilisation on earth, the time to act is now.
To achieve a truly sustainable recovery, those exercising powers pursuant to the Canterbury Earthquake Recovery Act 2011 and the CCC need to work in tandem with the citizens of Christchurch guided by the CCC sustainability policy. This article is proposing that the government do more than barely scratch the surface of sustainability and leave it to commercial companies to construct sustainable buildings if they choose. It is proposing that the government work with the CCC sustainability policy by embracing its key components
and adopting a sustainable recovery pathway by making the choice that it is important enough to do so. It is recognised that civilisation is facing the greatest challenge humans have ever faced as a species, and this opportunity for the Canterbury earthquake recovery to focus on sustainability could lead the way in natural disaster recovery for Christchurch and the world.
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URL: http://www.nzlii.org/nz/journals/NZJlEnvLaw/2014/9.html