Too busy to save the world? It’s time to make time.
Through legislation, common law, regulatory change and social norms, new sustainability expectations are impacting our use of land. And that impacts property law.
These new responsibilities are not add-ons, they are underlying paradigm shifts, changes to the lens through which you will view property, property development and property law. Ignoring them might be like sticking with your fountain pen, your stamped envelopes, and your landline.
If you’re reading this blog, chances are you’re interested or qualified in property law, and how it relates to sustainability (as slippery as that word is).
My intention is to introduce you to some of those changes, to start conversations and educate, to set the ideas in a legal context – where my speciality is property law. It’s an opportunity for us as a profession to look ahead, to see what's coming – so we can provide the most informed advice. But also to check out what's already here. What you may not have noticed before.
In future articles, we’ll look in more detail at specific issues.
But first, some broad background. And some recent history.
In September 2015, the New Zealand government bought into a bunch of goals around sustainability. We signed up to the United Nations Sustainable Development Goals (SDGs) and this commitment underpins our legislative framework around sustainability. Read about the UN SDGs here. The 17 Goals are all interrelated and evenly weighted. Climate Action is number 13.
Last year New Zealand produced a report on our progress in implementing the goals. We're not doing that well. Nonetheless, political and legal commitments, both internationally and locally are influencing how we do business. That impact will only continue to grow.
In October 2016, we ratified the Paris Agreement – a global agreement between nations on climate change that took effect from 2020. Our goal under the Agreement – our Nationally Determined Contribution (NDC) – is to reduce our greenhouse gas (GHG) emissions to 30% below 2005 levels. We're to do this over the next 10 years and that goal is now enshrined in our law. Methane emissions are addressed separately.
Track how we and others are meeting Paris Agreement commitments here.
Currently what we say and what we do don’t align. Our policies are insufficient to enable us to meet our targets. So you can expect change.
We’re obliged by law to assess and report on our nation's progress in dealing with climate change risk, and in August the government released our first such report. It sets out the most significant risks, based on consequence and on urgency. Extreme risks at the highest urgency level were identified in relation to potable water and the built environment. But of particular interest is that risks across the board are exacerbated due to the lack of readiness in institutions (including government and funders). Changes in conduct are required. Expect reports, policy statements and enquiries setting criteria to ensure such changes happen.
In July 2020, MBIE produced Building for Climate Change: Transforming the Building and Construction Sector to reduce emissions and improve climate resilience. As the name suggests, the report anticipates bold transformation: not just in the way buildings are built and how resources are used, but in attitudes and beliefs throughout the building supply chain. You can expect changes to the regulatory framework around both operational efficiency of buildings and reducing the GHGs they produce.
Government procurement rules released in 2019 specifically mention the need for suppliers to address certain SDGs. The foreword to the rules states "Through these Rules, government contracts will now be more explicitly leveraged to support broader outcomes. This entails leveraging contracts to promote the transition to a net zero emissions economy, supporting New Zealand businesses, promoting skills development, and ensuring compliance with health and safety standards".
You may have heard of the "Managed Retreat Due to Climate Change Act". Still an idea rather than legislation, it would provide a means for local and central governments to mandate relocations away from climate risk.
There’s a push for the introduction of a legislated right to a sustainable environment, and hope that changes to the Resource Management Act (RMA) might incorporate such a principle.
All of this impacts hugely on property investment, property development, property law and as a consequence property lawyers. An understanding of the trends, the possible outcomes, the expected behaviour, is becoming fundamental to the giving of relevant and cogent advice. Particularly so, given the timeframes within which change is expected. They are short. Ten years. And the clock is ticking. With the need for such significant change in such a short period, there's little about the status quo that we can rely on; possibly not even an existing resource consent if it threatens sustainability.
A version of his article first appeared in The Property Lawyer and is published with the consent of the NZ Law Society, Property Law Section.
© Debra Dorrington 2021.