Environmental ethics and the statutory incorporation of intrinsic values

Abstract

The key inquiry of this paper is whether the reference to the intrinsic values of ecosystems in section 7(d) of the Resource Management Act 1991 ("RMA") could support a legal challenge in the current ethical climate. The links between environmental ethics, morality and values are an integral part of this discussion. This includes the distinction between values which are assigned by humans (ie. instrumental values) and those which exist inherently in an entity (ie. intrinsic values). The recognition of the latter could support a change in the current ethical climate from anthropocentrism to eco-centrism. This is referred to in this paper as 'a process of transformation' and is seen as crucial in halting the increasing environmental degradation. As corollary points of discussion, the political and judicial processes are analysed in order to make transparent the prevailing constraints on any subsequent interpretation of the RMA. To this end, the policy making process of incrementalism is examined as well as the process of judicial reasoning. Other matters which act to further limit a robust RMA jurisprudence from developing are also highlighted. The possibility and likely benefits of creating rights for nature in terms of enforceable legal protection is part of this debate. The process of weighting conflicting values in judicial fora is also examined. To this end, a variety of cases are analysed. This is set against a detailed legal analysis of Part II matters in the RMA as well as how the reference to the intrinsic values of ecosystems is statutorily incorporated. A further relevant matter is access by the public to the judicial system and the policy making process. It is seen as crucial that barrierless public participation is ensured. The concluding part of this paper looks at possible legal remedies available to public interest groups seeking to challenge a decision which has or could result in inappropriate resource use. This includes an examination of the option of initiating judicial review proceedings in the High Court.