The other side of environmental justice—finding ecological justice in Aotearoa

Finding Ecological Justice in New Zealand, a new report about to be published with thanks to the New Zealand Law Foundation, looks at environmental law and injustice in Aotearoa through a lens of environmental justice. 

It argues that environmental law exists to deliver justice. The environmental justice movement, a groundswell of peoples of colour who demanded through their recognition and participation an end to environmental discrimination against them, has parallels for New Zealand – and particularly, with finding justice and restoration for Maori. 

The report focuses on kaitiakitanga as the Waitangi Tribunal described it in a 2011 report Ko Aotearoa Tenei, arguing that not only does this resemble environmental justice claims; it is in kaitiakitanga that we will find ecological justice in Aotearoa. 

Other parts of the work look at the function of the Resource Management Act in delivering justice (which doesn’t use the word), erosion of people’s participation, and efforts to find superior legal protections that are ‘weapons of the weak’ – like the doctrine of the public trust, and environmental rights. It finds some ambivalence about the public trust, as an answer to anything. It looks at the balance, in our constitution and the law more generally, of property protection to environmental constraints, now that the ground of our place’s stability is shifting to environmental and ecological defence.

Altogether, it demonstrates how much of our thought is human-centred. Calls for non-human “justice”  are in hope of finding something that is an obligation, to allow some distribution to others of what they need. This is difficult for justice theory. Recognition of Tuhoe homelands Te Urewera and the Whanganui River Te Awa Tupua, as other entities follow in the same model and start to speak as legal persons, will start to transform our law.

But through a fuller and accurate understanding of kaitiakitanga, we may most closely approach it. At this moment for our environmental law in Aotearoa, we’re in a time of transition through another phase of major reforms where steps toward this could be possible.

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My report published today, with thanks to the New Zealand Law Foundation, looks at environmental law and injustice in Aotearoa through a lens of environmental justice. It’s called Finding Ecological Justice in New Zealand.

It argues that, objectively, environmental law exists to deliver justice, even while we might not think of it that way, and the RMA for example never uses the word. We’re in a place where ideological sands are shifting from beneath property, and a law that enlarges individual freedom, to enlarging thought—and where social stability rests now in environmental and ecological defence.

Through different aspects of the law it looks at recognition, participation, and hopes of delivering justice between peoples, generations, and sentient and non-sentient others alive in the world.

It tries to peel back some of the layers, to show just how much of our law and logic—whether in justice theory, the doctrine of the public trust, environmental human rights, sustainability, even the RMA idea of kaitiakitanga itself—is human-centred.

The report focuses, in particular, on kaitiakitanga as developed by the Waitangi Tribunal. It does so for two reasons, both linked to environmental justice.

First, it offers a challenge for environmentalism, in claiming this as a space for justice—to go back to the start, as James Baldwin once urged, and tell the truth about it. It describes historical and not-so-historical tensions, between environmental justice and big, popular environmentalism. We have rarely acknowledged, for example, the role of environmental law in displacing Maaori from their homelands, and place as kaitiaki.

Kaitiakitanga is like environmental justice claims: resting health and survival of a people in their participation and journey back to mana motuhake, self-determination. Not, however, participation merely in human processes.

It is in kaitiakitanga that we will find ecological justice in Aotearoa, and which arrives there with the simplicity and elegance and rightness that laws have struggled to grasp.

The scholarly reaching after “justice” for all with whom we share land, waters and sky is in hope of finding something that is an obligation, to allow some distribution to them of what they need. “We must do right by other life-forms, but in a precise kind of way…” (from Baxter, 2005).

In kaitiakitanga, for Maaori in Aotearoa, resides the obligation—the practice of "close observation of the kaitiaki creatures, that informed Maaori of whether all is well in the world or whether some action is needed" (from Durie et al, 2017).

There we find the mutual care and return of deference for the creatures, birds, and others who were, themselves, kaitiaki—them as caretakers of us and vice versa—and on whom survival depends.

In kaitiakitanga, we might navigate the rocks and shoals of, for example, Wildlife Act reform, so essential to ecological justice. We must.

As I was finalising this work in late October, chief negotiator for Tuuhoe Taamati Kruger was giving his koorero to the Bruce Jesson memorial lecture in Auckland; his talk published on the website e-Tangata two days after I had completed it (I urge anyone reading this to please, go over to e-Tangata and read and reflect on Koia Maarika—So it is, so much more intelligent and eloquent than anything I can convey).

In it he spoke of the Tuuhoe view, that we might all one day be taangata whenua, and that Maaori and Tuuhoe would lead us to this place.

Apprehensively, hesitantly, my report has tried to shine a little bit of light on kaitiakitanga, and ask for space to be made for it to move into our circle.

It recognises, also, that this is tikanga that is Maaori, practised in the bush and water where it was born—that is not for Paakehaa to take or trample on, and has no life in its abstraction to lines on a legal page. My hesitance is about the risks of doing greater harm, by doing this delicate thing badly—the obligation is to Maaori first, with a hope that in time this may grow.

I hope we might come to understand it, though, as tikanga for taangata whenua who have been made by this land—believing myself more strongly every day that standing in a place, the right way, hearing the voices of its creatures and listening to it breathing, something of the spirit enters in.

I have hoped and believe that standing as taangata whenua might be possible, in time, for a Paakehaa.

We are at a time in NZ law that makes it possible to see kaitiakitanga lifted up in the law—as, for example, in the preamble suggested for a new draft constitution, where we the people affirm our values.

I hope, when that happens, it might stand alone and be left free come alive, not crippled by lawyers’ definitions of it, but there, just as it is.

We might approach a time when it emerges as more for Aotearoa than a Maaori word, alongside a Paakehaa word; instead an imperative understood and joined—including, as part of its Treaty obligations, by the Crown. 

I think at this moment in our environmental law, we are standing on the edge of the possibility of this transformation—there, but just a little bit beyond our grasp. What I’ve written is with hope but no great optimism, that we—by ‘we’ I mean we Paakehaa—will see what is standing quietly, just there; or let it continue just to stand there, quietly, in its right place, slowly coming alive again, while we sort out the human side of ourselves.

But if we begin, as the preamble to a new draft constitution has done, by putting one thing alongside another to sit there together for a while, we have opened a little space so that in time, the thing might grow. In the quiet, we would find ecological justice there, as it was always there, beside us.

Claire Browning is a former lawyer and policy analyst, senior adviser to the New Zealand Law Commission and, more lately, environmental advocate. She was, for four years to 2015, advocate and adviser for conservation charity Forest & Bird. Her work in 2017, Finding Ecological Justice in Aotearoa, was possible through financial support of the New Zealand Law Foundation.

The report is available to read here, and print here. Hard copy numbers are limited, but may be available on request.

Claire Browning