< All media statements

EDS finds significant gaps in current law for managed retreat

30 May 2023

Watch EDS’s webinar ‘Aoteaora New Zealand’s managed relocation law: Is it fit for purpose?

EDS has released its second working paper as part of its Aotearoa New Zealand’s Climate Change Adaptation Act: Building a Durable Future project. The project is focussed on developing recommendations for the content of the new Climate Adaptation Act, which has taken on more urgency given recent climate-related disasters across the country.

Working Paper 2, co-authored by EDS Policy Director Raewyn Peart and Legal and Policy Researcher Benjamin Tombs, focuses on the extent to which current law and policy provides for managed retreat and identifies gaps which will need to be filled by the new Climate Adaptation Act or other legislative amendment.

“Recent events have focused the national consciousness on the need to move communities and infrastructure out of areas which are subject to growing climate-related risks,” said Ms Peart.

“Our review of current law and policy has demonstrated that we do not have adequate legislative tools in the legal toolbox to enable that to happen.

“Of particular concern is the lack of clear rules to prevent new or intensified development in areas subject to risk. What the Auckland Anniversary Day floods highlighted was the extent to which councils are still consenting development in high risk areas.

“We will also need to ensure that Māori are supported in adapting to climate risks, particularly where marae and other structures need to be relocated to safe locations which may not be currently owned by the affected iwi or hapū.

“There is a gap in responsibilities to identify and communicate risks to affected property owners and communities. Although we now have a mandated six-yearly national climate risk assessment, there are no similar requirements at the regional or local levels.

“We also lack a legal framework for adaptation planning including linking adaptation plans to funding. This means that community-developed plans can languish when it comes to implementation.

“The acquisition of affected land is also problematic under current law. It is unclear whether the Public Works Act can be used to acquire land for managed retreat and the compensation requirements, which relate to the market value of land at the time of transfer, are not well-configured to a managed retreat situation. At that stage, land may have little market value given the extent of the known risk.

“When it comes to management of vacated land, it would be helpful to have a reserve category under the Reserves Act focused on the restoration of previously occupied land. Restoration of these areas can help both address climate change and biodiversity risks.

“EDS acknowledges funding support for the project from ASB Bank, Beca, IAG New Zealand, Wellington City Council and Auckland Council.

“We welcome constructive feedback on our working paper which will be incorporated into our final synthesis report due later this year,” concluded Ms Peart.

A copy of the working paper can be accessed on our website here.