Hide: environmental rights are a recipe for arbitrary judicial power

Rodney Hide dissects Sir Geoffrey Palmer’s new idea

The latest policy product on offer from Sir Geoffrey Palmer is “environmental rights” with the kicker that judges could strike out any law breaching the rights. Parliament could reinstitute the struck-out law but only with a 75% majority. It’s hard to see an opposition helping a government in such fashion.

Sir Geoffrey’s environmental rights would in effect trump Parliament.

He explains the need thus: “Modern people are very concerned about the quality of their environment. And one thing a modern constitution should do is offer some protection to the environment.”

It’s an odd thing peddling a “modern constitution” for a “modern people.” It sounds more like a pitch for this year’s washing machine than a scholarly argument for superior law. It’s also peculiar to make a pitch for “rights” simply because people are concerned. There are lots of things people are concerned about but that’s no argument for rights to a smartphone and 5G.

He’s not done yet…  

Sir Geoffrey formulates his environmental rights as follows: “Everyone has the right – (a) to an environment that is not harmful to his or her health or wellbeing; and, (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that – (i) reduce pollution and ecological degradation; (ii) promote conservation; (iii) pursue ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”

For a man given to worrying about “unbridled power” and constitutional niceties, Sir Geoffrey Palmer appears shockingly blank on rights. Simply asserting a right in a statute doesn’t make it one.

Legislating everyone has the right to an environment not harmful to his or her health or wellbeing means nothing because no duty to ensure that right is placed upon anyone. A right without a corresponding duty is not a right.

Rodney explains

I have a right to life only because there’s an enforceable duty on everyone not to take it. There is no duty on anyone to ensure I have a non-harmful environment. Indeed, if there was there would be no freedom: we would be consumed ensuring everyone’s environment was benign. It’s nonsense.

But it’s dangerous nonsense. Judges will make law out of such a declaration just as they made extensive law out of Sir Geoffrey’s equally facile “Principles of the Treaty of Waitangi.”

There’s more danger in what comes next. Imagine the Supreme Court trying to figure out if the Resource Management Act “pursue[s] ecologically sustainable development… While promoting justifiable economic and social development.” That wasteful legal behemoth should be immediately struck down as a waste of planetary resources.

In fact, the government itself would not survive such a test. Maybe Sir Geoffrey is on to something.

But no. There’s no test for sustainable development. Sir Geoffrey’s environmental rights are a recipe for arbitrary judicial power.

There are a lot of things in the past that were not sustainable, but then there was a technology shift.  I mean, at some point, we would have run out of whale oil to light our houses.


– Rodney Hide, NBR

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As much at home writing editorials as being the subject of them, Cam has won awards, including the Canon Media Award for his work on the Len Brown/Bevan Chuang story. When he’s not creating the news, he tends to be in it, with protagonists using the courts, media and social media to deliver financial as well as death threats.

They say that news is something that someone, somewhere, wants kept quiet. Cam Slater doesn’t do quiet and, as a result, he is a polarising, controversial but highly effective journalist who takes no prisoners.

He is fearless in his pursuit of a story.

Love him or loathe him, you can’t ignore him.

To read Cam’s previous articles click on his name in blue.