New Zealand’s Public Trust Doctrine

Abstract

This paper presents an argument that there is a public trust doctrine which is part of New Zealand’s common law. The public doctrine imposes an obligation on administrative decision-makers, with respect to decisions that impact commonly held natural resources, to act in the interests of the public. I argue the doctrine was inherited by New Zealand in 1840, as part of the English common law, and that it has been subsequently recognised in the New Zealand common law. I also argue that the doctrine has not been extinguished by the Resource Management Act 1991 or the Marine Coastal Area (Takutai Moana) Act 2011: the common law doctrine supplements these regulatory regimes. My argument concludes that the doctrine is best conceived of as a ground of judicial review, perhaps under the heading of illegality, and that there are strong normative arguments for its augmentation by common law development or legislative codification.