I want to talk a bit about a media project that I started work on over the summer, which is part of a larger project the Faculty of Law at Canterbury is carrying out, investigating the many legal issues that have arisen from the earthquakes.
Though rare and unpredictable, earthquakes can and do cause catastrophic destruction when they impact unprepared and vulnerable communities. Extensive damage and failure of vulnerable buildings is a key factor which contributes to seismic-related disasters, making the proactive management of these buildings a necessity to reduce the risk of future disasters arising. The devastating Canterbury earthquakes of 2010 and 2011 brought the urgency of this issue to national importance in New Zealand. The national earthquake-prone building framework came into effect in 2017, obligating authorities to identify existing buildings with the greatest risk of collapse in strong earthquakes and for building owners to strengthen or demolish these buildings within a designated period of time. Though this framework is unique to New Zealand, the challenge of managing the seismic risk of such buildings is common amongst all seismically-active countries. Therefore, looking outward to examine how other jurisdictions legally manage this challenge is useful for reflecting on the approaches taken in New Zealand and understand potential lessons which could be adopted. This research compares the legal framework used to reduce the seismic risk of existing buildings in New Zealand with that of the similarly earthquake-prone countries of Japan and Italy. These legal frameworks are examined with a particular focus on the proactive goal of reducing risk and improving resilience, as is the goal of the international Sendai Framework for Disaster Risk Reduction 2015-2030. The Sendai Framework, which each of the case study countries have committed to and thus have obligations under, forms the legal basis of the need for states to reduce disaster risk in their jurisdictions. In particular, the states’ legal frameworks for existing building risk reduction are examined in the context of the Sendai priorities of understanding disaster risk, strengthening disaster risk governance, and investing in resilience. While this research illustrates that the case study countries have each adopted more proactive risk reduction frameworks in recent years in anticipation of future earthquakes, the frameworks currently focus on a very narrow range of existing buildings and thus are not currently sufficient for promoting the long-term resilience of building stocks. In order to improve resilience, it is argued, legal frameworks need to include a broader range of buildings subject to seismic risk reduction obligations and also to broaden the focus on long-term monitoring of potential risk to buildings.
Media law developments have continued across many areas in the period to mid-2013. In defamation, the New Zealand courts have begun to consider the issue of third party liability for publication on the internet, with cases involving Google searches and comments on a Facebook page. A parliamentary inquiry into a case that restricted parliamentary privilege has recommended a Parliamentary Privilege Act containing a definition of ‘proceedings in Parliament’. A satirical website increased its popularity when it fought off threatened defamation proceedings. In breach of confidence, a government body, the Earthquake Commission, obtained an interim injunction prohibiting publication of information accidentally released that dealt with the repair of earthquake-damaged properties in Christchurch, and a blogger made the information available online in breach of the order.
The 2010–2011 Canterbury earthquakes and their aftermath have been described by the Human Rights Commission as one of New Zealand's greatest contemporary human rights challenges. This article documents the shortcomings in the realisation of the right to housing in post-quake Canterbury for homeowners, tenants and the homeless. The article then considers what these shortcomings tell us about New Zealand's overall human rights framework, suggesting that the ongoing and seemingly intractable nature of these issues and the apparent inability to resolve them indicate an underlying fragility implicit in New Zealand's framework for dealing with the consequences of a large-scale natural disaster. The article concludes that there is a need for a comprehensive human rights-based approach to disaster preparedness, response and recovery in New Zealand.
This paper presents the preliminary conclusions of the first stage of Wellington Case Study project (Regulating For Resilience in an Earthquake Vulnerable City) being undertaken by the Disaster Law Research Group at the University of Canterbury Law School. This research aims to map the current regulatory environment around improving the seismic resilience of the urban built environment. This work provides the basis for the second stage of the project which will map the regulatory tools onto the reality of the current building stock in Wellington. Using a socio-legal methodology, the current research examines the regulatory framework around seismic resilience for existing buildings in New Zealand, with a particularly focus on multi-storey in the Wellington CBD. The work focusses both on the operation and impact of the formal seismic regulatory tools open to public regulators (under the amended Building Act) as other non-seismic regulatory tools. As well as examining the formal regulatory frame, the work also provides an assessment of the interactions between other non-building acts (such as Health and Safety at Work Act 2015) on the requirements of seismic resilience. Other soft-law developments (particularly around informal building standards) are also examined. The final output of this work will presents this regulatory map in a clear and easily accessible manner and provide an assessment of the suitability of this at times confusing and patchy legal environment as Wellington moves towards becoming a resilient city. The final conclusion of this work will be used to specifically examine the ability of Wellington to make this transition under the current regulatory environment as phase two of the Wellington Case Study project.
The Canterbury earthquakes in 2010 and 2011 had a significant impact on landlords and tenants of commercial buildings in the city of Christchurch. The devastation wrought on the city was so severe that in an unprecedented response to this disaster a cordon was erected around the central business district for nearly two and half years while demolition, repairs and rebuilding took place. Despite the destruction, not all buildings were damaged. Many could have been occupied and used immediately if they had not been within the cordoned area. Others had only minor damage but repairs to them could not be commenced, let alone completed, owing to restrictions on access caused by the cordon. Tenants were faced with a major problem in that they could not access their buildings and it was likely to be a long time before they would be allowed access again. The other problem was uncertainty about the legal position as neither the standard form leases in use, nor any statute, provided for issues arising from an inaccessible building. The parties were therefore uncertain about their legal rights and obligations in this situation. Landlords and tenants were unsure whether tenants were required to pay rent for a building that could not be accessed or whether they could terminate their leases on the basis that the building was inaccessible. This thesis looks at whether the common law doctrine of frustration could apply to leases in these circumstances, where the lease had made no provision. It analyses the history of the doctrine and how it applies to a lease, the standard form leases in use at the time of the earthquakes and the unexpected and extraordinary nature of the earthquakes. It then reports on the findings of the qualitative empirical research undertaken to look at the experiences of landlords and tenants after the earthquakes. It is argued that the circumstances of landlords and tenants met the test for the doctrine of frustration. Therefore, the doctrine could have applied to leases to enable the parties to terminate them. It concludes with a suggestion for reform in the form of a new Act to govern the special relationship between commercial landlords and tenants, similar to legislation already in place covering other types of relationships like those in residential tenancies and employment. Such legislation could provide dispute resolution services to enable landlords and tenants to have access to justice to determine their legal rights at all times, and in particular, in times of crisis.
Earthquakes impacting on the built environment can generate significant volumes of waste, often overwhelming existing waste management capacities. Earthquake waste can pose a public and environmental health hazard and can become a road block on the road to recovery. Specific research has been developed at the University of Canterbury to go beyond the current perception of disaster waste as a logistical hurdle, to a realisation that disaster waste management is part of the overall recovery process and can be planned for effectively. Disaster waste decision-makers, often constrained by inappropriate institutional frameworks, are faced with conflicting social, economic and environmental drivers which all impact on the overall recovery. Framed around L’Aquila earthquake, Italy, 2009, this paper discusses the social, economic and environmental effects of earthquake waste management and the impact of existing institutional frameworks (legal, financial and organisational). The paper concludes by discussing how to plan for earthquake waste management.
The timeliness and quality of recovery activities are impacted by the organisation and human resourcing of the physical works. This research addresses the suitability of different resourcing strategies on post-disaster demolition and debris management programmes. This qualitative analysis primarily draws on five international case studies including 2010 Canterbury earthquake, 2009 L’Aquila earthquake, 2009 Samoan Tsunami, 2009 Victorian Bushfires and 2005 Hurricane Katrina. The implementation strategies are divided into two categories: collectively and individually facilitated works. The impacts of the implementation strategies chosen are assessed for all disaster waste management activities including demolition, waste collection, transportation, treatment and waste disposal. The impacts assessed include: timeliness, completeness of projects; and environmental, economic and social impacts. Generally, the case studies demonstrate that detritus waste removal and debris from major repair work is managed at an individual property level. Debris collection, demolition and disposal are generally and most effectively carried out as a collective activity. However, implementation strategies are affected by contextual factors (such as funding and legal constraints) and the nature of the disaster waste (degree of hazardous waste, geographical spread of waste etc.) and need to be designed accordingly. Community involvement in recovery activities such as demolition and debris removal is shown to contribute positively to psychosocial recovery.
Mr Wayne Tobeck, Director of Southrim Group (SRG), sponsored this 2013 MEM Project titled; A Technical and Economic Feasibility Study for the Integration of GSHP Technology in the Christchurch Rebuild. Following the recent Christchurch earthquakes, a significant amount of land has become too unstable to support traditional building foundations. This creates an opportunity to implement new and unique foundation designs previously unconsidered due to high costs compared to traditional methods. One such design proposes that an Injection Micro-Piling technique could be used. This can also be coupled with HVAC technology to create a Ground Source Heat Pump (GSHP) arrangement in both new buildings and as retrofits for building requiring foundation repair. The purpose of this study was to complete a feasibility study on the merits of SRG pursuing this proposed product. A significant market for such a product was found to exist, while the product was also found to be technically and legally feasible. However, the proposed product was found to not be economically feasible with respect to Air Source Heat Pumps due to the significantly higher capital and installation costs required. Further analysis suggests GSHPs may become more economically attractive in operating temperatures lower than -9oC, though the existence of markets with this climate in NZ has not been studied. It is therefore suggested that SRG do not proceed with plans to develop a GSHP coupled foundation solution for the Christchurch rebuild.
The 2010–2011 Canterbury earthquakes, which involved widespread damage during the February 2011 event and ongoing aftershocks near the Christchurch Central Business District, left this community with more than $NZD 40 billion in losses (~20 % GDP), demolition of approximately 60 % of multi-storey concrete buildings (3 storeys and up), and closure of the core business district for over 2 years. The aftermath of the earthquake sequence has revealed unique issues and complexities for the owners of commercial and multi-storey residential buildings in relation to unexpected technical, legal, and financial challenges when making decisions regarding the future of their buildings impacted by the earthquakes. The paper presents a framework to understand the factors influencing post-earthquake decisions (repair or demolish) on multi-storey concrete buildings in Christchurch. The study, conducted in 2014, includes in-depth investigations on 15 case-study buildings using 27 semi-structured interviews with various property owners, property managers, insurers, engineers, and government authorities in New Zealand. The interviews revealed insights regarding the multitude of factors influencing post-earthquake decisions and losses. As expected, the level of damage and repairability (cost to repair) generally dictated the course of action. There is strong evidence, however, that other variables have significantly influenced the decision on a number of buildings, such as insurance, business strategies, perception of risks, building regulations (and compliance costs), and government decisions. The decision-making process for each building is complex and unique, not solely driven by structural damage. Furthermore, the findings have put the spotlight on insurance policy wordings and the paradoxical effect of insurance on the recovery of Christchurch, leading to other challenges and issues going forward.
Territorial authorities in New Zealand are responding to regulatory and market forces in the wake of the 2011 Christchurch earthquake to assess and retrofit buildings determined to be particularly vulnerable to earthquakes. Pending legislation may shorten the permissible timeframes on such seismic improvement programmes, but Auckland Council’s Property Department is already engaging in a proactive effort to assess its portfolio of approximately 3500 buildings, prioritise these assets for retrofit, and forecast construction costs for improvements. Within the programme structure, the following varied and often competing factors must be accommodated: * The council’s legal, fiscal, and ethical obligations to the people of Auckland per building regulations, health and safety protocols, and economic growth and urban development planning strategies; * The council’s functional priorities for service delivery; * Varied and numerous stakeholders across the largest territorial region in New Zealand in both population and landmass; * Heritage preservation and community and cultural values; and * Auckland’s prominent economic role in New Zealand’s economy which requires Auckland’s continued economic production post-disaster. Identifying those buildings most at risk to an earthquake in such a large and varied portfolio has warranted a rapid field assessment programme supplemented by strategically chosen detailed assessments. Furthermore, Auckland Council will benefit greatly in time and resources by choosing retrofit solutions, techniques, and technologies applicable to a large number of buildings with similar configurations and materials. From a research perspective, the number and variety of buildings within the council’s property portfolio will provide valuable data for risk modellers on building typologies in Auckland, which are expected to be fairly representative of the New Zealand building stock as a whole.
The Canterbury earthquakes of 2010 and 2011 caused significant damage and disruption to the city of Christchurch, New Zealand. A Royal Commission was established to report on the causes of building failure as a result of the earthquakes as well as look at the legal and best-practice requirements for buildings in New Zealand Central Business Districts. The Royal Commission made 189 recommendations on a variety of matters including managing damaged buildings after an earthquake, the adequacy of building codes and standards, and the processes of seismic assessments of existing buildings to determine their earthquake vulnerability. In response the Ministry of Business, Innovation and Employment, the agency responsible for administering building regulation in New Zealand, established a work programme to assist with the Canterbury rebuild and to implement the lessons learned throughout New Zealand. The five primary work streams in the programme are: • Facilitating the Canterbury Rebuild • Structural Performance and Design Standards • Geotechnical and structural guidance • Existing Building Resilience • Post Disaster Building Management This paper provides more detail on each of the work streams. There has been significant collaboration between the New Zealand Government and the research community, technical societies, and engineering consultants, both within New Zealand and internationally, to deliver the programme and improve the resilience of the New Zealand built environment. This has presented major challenges for an extremely busy industry in the aftermath of the Canterbury earthquakes. The paper identifies the items of work that have been completed and the work that is still in progress at the time of writing.
In September 2010 and February 2011 the Canterbury region of New Zealand was struck by two powerful earthquakes, registering magnitude 7.1 and 6.3 respectively on the Richter scale. The second earthquake was centred 10 kilometres south-east of the centre of Christchurch (the region’s capital and New Zealand’s third most populous urban area, with approximately 360,000 residents) at a depth of five kilometres. 185 people were killed, making it the second deadliest natural disaster in New Zealand’s history. (66 people were killed in the collapse of one building alone, the six-storey Canterbury Television building.) The earthquake occurred during the lunch hour, increasing the number of people killed on footpaths and in buses and cars by falling debris. In addition to the loss of life, the earthquake caused catastrophic damage to both land and buildings in Christchurch, particularly in the central business district. Many commercial and residential buildings collapsed in the tremors; others were damaged through soil liquefaction and surface flooding. Over 1,000 buildings in the central business district were eventually demolished because of safety concerns, and an estimated 70,000 people had to leave the city after the earthquakes because their homes were uninhabitable. The New Zealand Government declared a state of national emergency, which stayed in force for ten weeks. In 2014 the Government estimated that the rebuild process would cost NZ$40 billion (approximately US$27.3 billion, a cost equivalent to 17% of New Zealand’s annual GDP). Economists now estimate it could take the New Zealand economy between 50 and 100 years to recover. The earthquakes generated tens of thousands of insurance claims, both against private home insurance companies and against the New Zealand Earthquake Commission, a government-owned statutory body which provides primary natural disaster insurance to residential property owners in New Zealand. These ranged from claims for hundreds of millions of dollars concerning the local port and university to much smaller claims in respect of the thousands of residential homes damaged. Many of these insurance claims resulted in civil proceedings, caused by disputes about policy cover, the extent of the damage and the cost and/or methodology of repairs, as well as failures in communication and delays caused by the overwhelming number of claims. Disputes were complicated by the fact that the Earthquake Commission provides primary insurance cover up to a monetary cap, with any additional costs to be met by the property owner’s private insurer. Litigation funders and non-lawyer claims advocates who took a percentage of any insurance proceeds also soon became involved. These two factors increased the number of parties involved in any given claim and introduced further obstacles to resolution. Resolving these disputes both efficiently and fairly was (and remains) central to the rebuild process. This created an unprecedented challenge for the justice system in Christchurch (and New Zealand), exacerbated by the fact that the Christchurch High Court building was itself damaged in the earthquakes, with the Court having to relocate to temporary premises. (The High Court hears civil claims exceeding NZ$200,000 in value (approximately US$140,000) or those involving particularly complex issues. Most of the claims fell into this category.) This paper will examine the response of the Christchurch High Court to this extraordinary situation as a case study in innovative judging practices and from a jurisprudential perspective. In 2011, following the earthquakes, the High Court made a commitment that earthquake-related civil claims would be dealt with as swiftly as the Court's resources permitted. In May 2012, it commenced a special “Earthquake List” to manage these cases. The list (which is ongoing) seeks to streamline the trial process, resolve quickly claims with precedent value or involving acute personal hardship or large numbers of people, facilitate settlement and generally work proactively and innovatively with local lawyers, technical experts and other stakeholders. For example, the Court maintains a public list (in spreadsheet format, available online) with details of all active cases before the Court, listing the parties and their lawyers, summarising the facts and identifying the legal issues raised. It identifies cases in which issues of general importance have been or will be decided, with the expressed purpose being to assist earthquake litigants and those contemplating litigation and to facilitate communication among parties and lawyers. This paper will posit the Earthquake List as an attempt to implement innovative judging techniques to provide efficient yet just legal processes, and which can be examined from a variety of jurisprudential perspectives. One of these is as a case study in the well-established debate about the dialogic relationship between public decisions and private settlement in the rule of law. Drawing on the work of scholars such as Hazel Genn, Owen Fiss, David Luban, Carrie Menkel-Meadow and Judith Resnik, it will explore the tension between the need to develop the law through the doctrine of precedent and the need to resolve civil disputes fairly, affordably and expeditiously. It will also be informed by the presenter’s personal experience of the interplay between reported decisions and private settlement in post-earthquake Christchurch through her work mediating insurance disputes. From a methodological perspective, this research project itself gives rise to issues suitable for discussion at the Law and Society Annual Meeting. These include the challenges in empirical study of judges, working with data collected by the courts and statistical analysis of the legal process in reference to settlement. September 2015 marked the five-year anniversary of the first Christchurch earthquake. There remains widespread dissatisfaction amongst Christchurch residents with the ongoing delays in resolving claims, particularly insurers, and the rebuild process. There will continue to be challenges in Christchurch for years to come, both from as-yet unresolved claims but also because of the possibility of a new wave of claims arising from poor quality repairs. Thus, a final purpose of presenting this paper at the 2016 Meeting is to gain the benefit of other scholarly perspectives and experiences of innovative judging best practice, with a view to strengthening and improving the judicial processes in Christchurch. This Annual Meeting of the Law and Society Association in New Orleans is a particularly appropriate forum for this paper, given the recent ten year anniversary of Hurricane Katrina and the plenary session theme of “Natural and Unnatural Disasters – human crises and law’s response.” The presenter has a personal connection with this theme, as she was a Fulbright scholar from New Zealand at New York University in 2005/2006 and participated in the student volunteer cleanup effort in New Orleans following Katrina. http://www.lawandsociety.org/NewOrleans2016/docs/2016_Program.pdf
Coastal margins are exposed to rising sea levels that present challenging circumstances for natural resource management. This study investigates a rare example of tectonic displacement caused by earthquakes that generated rapid sea-level change in a tidal lagoon system typical of many worldwide. This thesis begins by evaluating the coastal squeeze effects caused by interactions between relative sea-level (RSL) rise and the built environment of Christchurch, New Zealand, and also examples of release from similar effects in areas of uplift where land reclamations were already present. Quantification of area gains and losses demonstrated the importance of natural lagoon expansion into areas of suitable elevation under conditions of RSL rise and showed that they may be necessary to offset coastal squeeze losses experienced elsewhere. Implications of these spatial effects include the need to provide accommodation space for natural ecosystems under RSL rise, yet other land-uses are likely to be present in the areas required. Consequently, the resilience of these environments depends on facilitating transitions between human land-uses either proactively or in response to disaster events. Principles illustrated by co-seismic sea-level change are generally applicable to climate change adaptation due to the similarity of inundation effects. Furthermore, they highlight the potential role of non-climatic factors in determining the overall trajectory of change. Chapter 2 quantifies impacts on riparian wetland ecosystems over an eight year period post- quake. Coastal wetlands were overwhelmed by RSL rise and recovery trajectories were surprisingly slow. Four risk factors were identified from the observed changes: 1) the encroachment of anthropogenic land-uses, 2) connectivity losses between areas of suitable elevation, 3) the disproportionate effect of larger wetland vulnerabilities, and 4) the need to protect new areas to address the future movement of ecosystems. Chapter 3 evaluates the unique context of shoreline management on a barrier sandspit under sea-level rise. A linked scenario approach was used to evaluate changes on the open coast and estuarine shorelines simultaneously and consider combined effects. The results show dune loss from a third of the study area using a sea-level rise scenario of 1 m over 100 years and with continuation of current land-uses. Increased exposure to natural hazards and accompanying demand for seawalls is a likely consequence unless natural alternatives can be progressed. In contrast, an example of managed retreat following earthquake-induced subsidence of the backshore presents a new opportunity to restart saltmarsh accretion processes seaward of coastal defences with the potential to reverse decades of degradation and build sea-level rise resilience. Considering both shorelines simultaneously highlights the existence of pinch-points from opposing forces that result in small land volumes above the tidal range. Societal adaptation is delicately poised between the paradigms of resisting or accommodating nature and challenged by the long perimeter and confined nature of the sandspit feature. The remaining chapters address the potential for salinity effects caused by tidal prism changes with a focus on the conservation of īnanga (Galaxias maculatus), a culturally important fish that supports New Zealand‘s whitebait fishery. Methodologies were developed to test the hypothesis that RSL changes would drive a shift in the distribution of spawning sites with implications for their management. Chapter 4 describes a new practical methodology for quantifying the total productivity and spatiotemporal variability of spawning sites at catchment scale. Chapter 5 describes the novel use of artificial habitats as a detection tools to help overcome field survey limitations in degraded environments where egg mortality can be high. The results showed that RSL changes resulted in major shifts in spawning locations and these were associated with new patterns of vulnerability due to the continuation of pre-disturbance land-uses. Unexpected findings includes an improved understanding of the spatial relationship between salinity and spawning habitat, and identification of an invasive plant species as important spawning habitat, both with practical management implications. To conclude, the design of legal protection mechanisms was evaluated in relation to the observed habitat shifts and with a focus on two new planning initiatives that identified relatively large protected areas (PAs) in the lower river corridors. Although the larger PAs were better able to accommodate the observed habitat shifts inefficiencies were also apparent due to spatial disparities between PA boundaries and the values requiring protection. To reduce unnecessary trade-offs with other land-uses, PAs of sufficient size to cover the observable spatiotemporal variability and coupled with adaptive capacity to address future change may offer a high effectiveness from a network of smaller PAs. The latter may be informed by both monitoring and modelling of future shifts and these are expected to include upstream habitat migration driven by the identified salinity relationships and eustatic sea-level rise. The thesis concludes with a summary of the knowledge gained from this research that can assist the development of a new paradigm of environmental sustainability incorporating conservation and climate change adaptation. Several promising directions for future research identified within this project are also discussed.