Courts as Decision-Makers on Sea Level Rise Adaptation Measures: Lessons from New Zealand

Abstract

New Zealand has an extensive coastline, and most of its cities, significant infrastructure and population are located in low-lying coastal areas. Sea level rise is already impacting on coastal communities, and a sea level rise of one metre would have a devastating impact on the country. Cohesive and appropriate adaptation measures are urgently needed at both central and local government level to reduce the impact on communities, protect against potential loss of life, and limit economic losses. However, responsibility for climate change adaptation measures in New Zealand has been devolved to local government without any significant direction or guidance from central government. This has produced climate change adaptation policies that vary significantly across the country and leaves councils vulnerable to legal action. This paper addresses legal challenges to sea level rise adaptation measures in New Zealand. It adopts a case study approach, discussing four decisions in cases where a precautionary sea level rise adaptation measure taken by a territorial authority was challenged by a holder of property rights in the coastal area. The paper explores the broader lessons they offer for decision-making on climate adaptation measures. While the decisions are grounded in New Zealand’s particular legal framework for resource management, they offer broader insight into the types of issues that arise in adaptation decision-making and how to overcome them. It suggests some lessons that are applicable beyond New Zealand—lessons that better enable appropriate sea level rise adaptation measures and thereby increase the resilience of coastal communities to climate change.