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New Zealand Journal of Environmental Law |
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New Zealand Journal of Environmental LawLast Updated: 14 May 2024
115
An Eco-Constitution for Aotearoa New Zealand
Mark Howard*
The worsening global biodiversity crisis lays bare the anthropocentric inefficacy of environmental law. Reversing the crisis requires law and society be built around ecological integrity and within planetary boundaries. This article argues that eco-constitutionalism has unique qualities necessary to achieve such ecocentrism. It explores the contents of an ideal eco-constitution via global eco-constitutional trends. Aotearoa is obligated to adopt eco-constitutionalism through a kaitiakitanga-derived grundnorm preserved in article 2 of Te Tiriti o Waitangi, fused with cosmopolitan duties. Finally, it provides an overview of a proposed Aotearoa eco-constitution.
1. INTRODUCTION
Over 140 years ago, a kaituhi Māori known as Te Wehi lamented the ecological destruction of his homeland and reminded others of a duty to protect it:1
I entirely approve of protecting and preserving forests. It has ever been considered an important matter ... from the time of our ancestors down to the present ... We consider our forests a rich possession ... our rata trees, and our matai trees, our miro, pukatea, kahikatea, rimu, totara, maire, and all other kinds of trees upon which the birds of the forest feed, and also the karaka and kiekie which produce food for man. ... In the present day the birds are but few, and the kaka and the kakariki have almost disappeared. ...
*LLM with Distinction in International Law (University of Auckland). Mark is currently working in policy at Te Tāhuhu o te Mātauranga — the Ministry of Education. This article is based on a Master’s paper first submitted at the University of Auckland in 2021. Email: mark.v.a.howard@gmail.com.
1 Te Wehi “To the Editor of the Waka Maori” Te Waka Maori (New Zealand, 22 September 1874) at 239.
Today, Te Wehi’s experience has become globalised. Climate change and the exponentially worsening biodiversity crisis threaten the survival of humanity and countless other species. Thus far, our legal response has made little progress towards securing Earth’s future. This article explores eco-constitutionalism as a means of powerfully restructuring law and society upon truly sustainable foundations. First, it argues that eco-constitutionalism is a necessary response to the failure of conventional environmental law. Secondly, it explores the potential contents of a genuine eco-constitution through reference to constitutions and rights from around the globe. Thirdly, it argues that Aotearoa New Zealand should adopt eco-constitutionalism and indeed is obligated to do so. It concludes with a brief overview of the contents of an ideal eco- constitution for Aotearoa.
2. INTRODUCING ECO-CONSTITUTIONALISM
2.1 Setting the Scene
This article rests on five axioms. First, the Earth is undergoing an anthropogenic biodiversity crisis of apocalyptic proportions. Secondly, the severity of this crisis warrants a precautionary response, in line with the precautionary principle. Thirdly, reverting the crisis requires humanity respect ecological integrity as the prerequisite to sustainable life on Earth. Fourthly, law is key to humanity reverting the crisis. Fifthly, contemporary environmental law is insufficient to revert the crisis. These axioms are briefly introduced below. Other studies discuss each in greater detail.
The overwhelming scientific consensus is that global ecosystems are under- going exponential change, severely aggravated by human industry and resource consumption.2 Earth has entered the “Anthropocene” era in which humans are a major influence on the biosphere, as potentially catastrophic to life as the meteorites and super-volcanoes of prehistory.3 Our actions are driving
many species towards extinction at an abnormal rate, a trend scientists have labelled the “biodiversity crisis”.4 The subsequent ecological breakdown is exacerbating extreme weather events, resource scarcity and mass displacement with potentially disastrous consequences for humanity.5 Science has drawn its conclusion: we must protect endangered ecosystems or risk our downfall.6
Lack of unanimous consensus on the severity of the biodiversity crisis should not justify soft environmental law. This is the essence of the precautionary principle, enshrined in the 1992 Rio Declaration:7
Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
Recent analysis of global evidence by the Intergovernmental Panel on Climate Change found “high confidence” in human-induced climate change causing widespread damage and irreversible losses.8 The logical response to such strong consensus on the danger of climate change is to react quickly and proportionately to the threat’s severity.9 Although eco-constitutionalism challenges traditional law, our dire circumstances demand radical action:10
We simply cannot afford to take the risk that the sceptics are mistaken by refraining from taking bold steps to reduce GHG emissions. After all, if we would stick to business as usual and it would turn out the sceptics were mistaken, unnecessary and irreparable colossal damage would be done to a great many people, future and present.
The precautionary principle is not intended as a blanket response to any critique of eco-constitutionalism. Rather, it acts as a reminder of the need for powerful, transformative responses to climate change even when unanimous consensus is unavailable.
Ecological integrity describes ecological processes as being most resilient to harm when occurring within their natural ranges of variation.11 When an ecosystem’s chemical and biological components occur organically, that system has “integrity” and is predisposed to self-preservation.12 If Earth’s biosphere is the sum of its interconnected ecosystems, then ecological integrity is a necessary precondition to sustaining all life everywhere.13 Significant environmental interference — for example, mass deforestation — produces immediate gains but undermines the local and global ecological integrity on which life relies. Preserving ecological integrity requires humanity to grow within Earth’s “planetary boundaries”. This concept confines human development to ecological limits that are pushed by resource consumption and produce a world inhospitable to life if surpassed.14 Planetary boundaries present a scientific and ethical framework for encompassing our socioeconomic growth with the ecological needs required for human society to function.15
The biodiversity crisis demands regulation of human interaction with eco- systems. Free-market arguments to financially incentivise individuals and corporations to “go green” are unlikely to achieve the radical, imminent climate action necessitated by the crisis, particularly where such action threatens profitability.16 Similarly, solely relying on technological solutions is insufficient given the high costs and time required to develop technology capable of sufficiently offsetting anthropogenic climate change.17 Ultimately, human behaviour has expedited the biodiversity crisis. Securing a resolution without first regulating that behaviour is simply unfeasible.
Global environmental law has failed to secure a safe ecological future, as indicated by worsening climate change.18 Major multilateral environmental efforts: Rio, Kyoto, Paris, have attracted criticism from various experts.19 Even to the extent that these instruments have real potential, it seems increasingly unlikely that most nations will meet their current environmental targets.20 Political and economic factors are key drivers of inadequate environmental
UNTS 1 (opened for signature 22 April 2016, entered into force 4 November 2016); Brendan Fisher and others “Moving Rio Forward and Avoiding 10 More Years with Little Evidence for Effective Conservation Policy” (2014) 28(3) Conserv Bio 880 at 880; Amanda M Rosen “The Wrong Solution at the Right Time: The Failure of the Kyoto Protocol on Climate Change” (2015) 43(1) Politics Policy 30; Raymond Clémençon “The Two Sides of the Paris Agreement: Dismal Failure or Historic Breakthrough?” (2016) 25(1) J Environ Dev 3 at 19.
law, including the prioritisation of economic growth over sustainability.21 Modern environmental law is left vulnerable to political and economic interests. Resolving the biodiversity crisis requires reforming environmental law to defend planetary boundaries against reckless human growth; to place the prerequisite for life, ecological integrity, at its core.
2.2 Constitutional Law: Ramping up the Response
The compromise of conventional environmental law by economic interests necessitates a stronger legal response. This section explores eco-constitutional- ism as a means of centralising ecological integrity in law.
“Constitutionalism” is the doctrine by which governments continuously derive their legitimacy through conformity with the constitution of their state.22 A “constitution” is a set of fundamental rules that govern an entity.23 National constitutions impose the positive and negative obligations, the “dos and do nots”, on states. Through these obligations constitutions can, at least hypothetically, keep politics in check.24 Constitutional law is thus necessarily supreme over politics and all other law.25
Eco-constitutionalism merges constitutionalism with “ecology”. The word “ecological” is often used interchangeably with the word “environmental”. Biologically and legally, however, the two are different. “Environment” is defined as “[t]he physical surroundings or conditions ... in which a thing exists” while “ecosystem” refers to “a biological system composed of all the organisms found in a particular physical environment, interacting with it and with each other”.26 “Environment” thus infers a confined physical space in which human
activity has no wide-reaching consequences. By contrast, “ecology” denotes life-sustaining interactions within and beyond a given space. It warns against reckless activity for fear of destroying the delicate processes that comprise complex interconnected ecosystems. This distinction is increasingly used in law to demonstrate careless prioritisation of human interests over those of Earth:27
The difference between environmental law and ecological law is not merely a matter of degree, but fundamental. The former allows human activities and aspirations to determine whether or not the integrity of ecological systems should be protected. The latter requires human activities and aspirations to be determined by the need to protect the integrity of ecological systems. Ecological integrity becomes a precondition for human aspirations and a fundamental principle of law.
Environmental law merely regulates spatial activity in a vacuum. Ecological law regulates spatial activity in consideration of how it may impact other interconnected ecosystems.
Eco-constitutionalism thus demands “ecocentrism”. Ecocentrism is the rejection of a dichotomy between humans and nature, instead recognising humans as inseparable from the ecosystems in which we survive.28 The failure of Earth’s ability to sustain life would mean our undoing. Consequently, ecological integrity becomes the state’s primary obligation and a precondition for all state functions, society’s common ideology and ethical code.29 The state’s legitimacy rests upon recognising humanity as but one part of the global ecosystem rather than as an external ruler sitting atop it.
What makes constitutionalism a powerful means of reshaping environmental law? Grimm summarises the achievement of constitutionalism as eliminating the “arbitrary power of men over men”.30 By positing constitutional values as the supreme source of state legitimacy, constitutionalism empowers citizens to hold the state accountable to their collective expectations. Constitutions also possess unique weight within law. They are rooted in societal reflections
upon morality and justice.31 Even governments with little interest in abiding by the law will at least seek to justify their conduct by reference to the national constitution.32 Consequently, constitutionalism transcends human politics by creating a perpetual dimension of law that, rather than being subject to political debate, determines the order within which political discourse is carried out.33 Under conventional environmental law, humans still hold all the cards. Ecological safeguards are reduced to frustrating obstacles for those seeking economic growth. In eco-constitutional law, ecological integrity transcends law and politics as the foundation on which law and policy are constructed.
2.3 Eco-Constitutionalism: Challenges and Tensions
Eco-constitutionalism has its fair share of obstacles and criticisms. This section analyses the most prominent and seeks to provide counter-arguments.
Constitutional law as it commonly exists across the globe has a deeply anthropocentric history, driven by human needs and interests. Indeed, if we are to label ecologically responsible constitutions with an “eco” prefix, traditional constitutions could be labelled “anthropo-constitutions”. Eco-constitutionalism seeks to transplant the human heart of anthropo-constitutions for one that respects life at large. Therefore, it must overcome society’s deep idealisation of conventional constitutionalism. Various scholars have alleged that societies often surround their constitutions with sacred discourse that supplements their legitimacy.34 Abat i Ninet argues that constitutions in the West are often conceived as the Messianic saviours of democracy.35 Thus the conventional anthropo-constitution is sanctified. Attempts at transformative constitutional reform can be emotively, impulsively dismissed. Through this constitutional sanctity, eco-constitutionalism is quickly attacked as “anti-human” and “anti- democratic”, two claims that this article now explores and refutes.
Eco-constitutionalism would not completely subjugate human interests to ecological needs but rather challenges the automatic presumption that the former should precede the latter.36 After all, ecology encompasses all life, including humanity. Our basic interests such as safe housing, clean water or mental well-being do not inherently contradict ecological needs because they are ecological needs. Eco-constitutions simply attach responsibilities to these interests to prevent them from unconditionally overriding the ecological integrity on which all life relies.37 This is no more unusual than the common practice of limiting the exercise of human rights where that exercise may unreasonably impede on the rights of others; for example, restricting free speech from being used to cause excessive noise or incite violence.38
Thus eco-constitutions limit human activities within their ecological context.39 Ecocentrism would not require humanity to keep all ecosystems perfectly pristine.40 Rather, it may entail human activities proactively demon- strating that their socioeconomic value outweighs the risks they may pose to local ecosystems — for example, through a mandatory environmental impact assessment regime. Where these cost-benefit analyses indicate a high risk of ecological harm proportional to the human needs fulfilled, ecocentrism may require mitigation or remediation of the harm. Ecological integrity becomes a starting point rather than afterthought, creating a higher threshold for socioeconomic development to prevent it from recklessly endangering life.
This article argues that adopting eco-constitutionalism is an obligation. Within societies that idealise contemporary anthropo-constitutions, this notion may be taken as anti-democratic sacrilege. After all, democracy has long been deemed fundamental in legitimising constitutions as sources of higher law.41 Constitutions are exclusively created by the constituents; the sacred notion of “we the people” possessing the ultimate authority to determine our highest
37 At 131.
law.42 A critical exploration of this idea, however, justifies the role of democracy in constitutionalism being joined by something far greater: cosmopolitanism.Cosmopolitanism posits humanity ultimately belonging to the same global community, regardless of identity or affiliation.43 Cosmopolitanism critiques traditional democracy as majoritarian. Somek argues that traditional democracies fail to reflect the will of “we the people” because they actually empower a dominant majority to influence society, law and constitutional values.44 Meanwhile, marginalised identities are institutionally excluded from “we the people” and left less able to influence constitutional formation.45 Several studies indicate that marginalised identities are underrepresented in participation, and hence outputs, in many contemporary democracies.46 Where the concept of “we the people” primarily serves the interests of dominant identities, the constitutional republic ironically begins to mirror the very majoritarian state it was intended to resist. Traditional democracy hence becomes flawed as a sole source of constitutional legitimacy.
In response, Somek introduces “constitutionalism 3.0”. Here, cosmopoli- tanism is the ultimate legitimising force behind constitutions, rather than democracy.47 This is justified via a “transcendence” argument: human rights are inherent and universal and so transcend domestic democracy, but paradoxically rely on their realisation by individual democracies.48 Where majority identities dominate democracies, they have the power to restrict inherent minority rights. This paradox can be resolved if rights are constructed by the collective voices of humanity; that is, in a cosmopolitan rather than traditionally democratic way.49 Through cosmopolitanism, principles of universal importance to humanity cannot be eliminated by simple democratic majority because “we the people” is replaced as a source of legitimacy by “we, all people everywhere”.50 Domestic lawmakers should weigh majoritarian preference against this source, informed
45 At 72.
48 At 178.
49 At 178.
50 At 183.
by reference to popular foreign precedent and international legal norms.51 Constitutionalism 3.0 thus affirms those principles, rights and norms widely upheld as fundamental across humanity, obliging states to comply with these.Cosmopolitanism is the mechanism by which the adoption of eco- constitutionalism becomes an obligation of states. This is because ecological integrity, as the prerequisite for life, is the most fundamental, universal cosmopolitan value of all. By pointing to science, ethics and common trends in international law Kim and Bosselmann posit the existence of a global ecological grundnorm, a Kelsenian concept that forms the epistemological starting point for all other law.52 The ecological grundnorm is justified by the fact that ecological integrity and planetary boundaries “set a non-negotiable bottom line for all human activities”, essential for all life, including humanity, to survive and thrive.53 The rational conclusion, therefore, is to build human society upon the cornerstone of ecological integrity.54 Because “all people everywhere” clearly have a stake in protecting ecological integrity, affirming this grundnorm becomes a cosmopolitan source of constitutional legitimacy and hence an obligation of all states. Judiciaries would gradually build jurisprudence, informed by international law and science, to ensure local legislation broadly aligns with the eco-constitutional grundnorm. Beyond this, democracies would operate conventionally.
2.4 Critiques of Eco-Constitutionalism
Having addressed allegations that eco-constitutionalism is anti-human and anti-democratic, this article now addresses two other common criticisms of the concept: that perpetual, supreme eco-constitutionalism is dangerous; and that its ambiguity risks opening the judicial floodgates.
Perpetuity refers to constitutionally entrenched clauses being difficult to remove or amend without significant political consensus. Supremacy refers to constitutional law being dominant over any other law. Perpetuity and supremacy
51 At 17.
protect inalienable rights from state encroachment. Simultaneously, however, they restrict lawmakers from easily interpreting constitutional law within the contemporary social context, sometimes with unexpected results.55 For example, the right to bear arms in the United States was originally intended to preserve a state militia but now limits the nation’s ability to regulate individual firearm ownership.56 Similar concerns may arise regarding a perpetual and supreme eco-constitution’s adaptability to future, unforeseeable social or scientific developments.Perpetuity and supremacy-based critiques are fairly levelled against human rights because they are particularly dynamic, perpetually evolving against a social context.57 Ecological integrity is a more static concept by contrast, built on the overwhelming scientific consensus on the need to preserve biodiversity and mitigate climate change to secure humanity’s survival.58 Of course, science and technology are constantly evolving. Well-drafted eco-constitutional provisions should permit flexible interpretations in response to such evolution.59 However, contemporary science seems certain that humanity will always need to live sustainably within planetary boundaries. Future technology may help humanity easily mitigate or remedy its ecological impact, but this would not vitiate planetary boundaries; it would simply widen their limits. The eco- constitution should flex to become more lenient of human industry in response to this technology, but the ecological grundnorm would ultimately remain a valid prime directive. Eco-constitutionalism is therefore more resilient to perpetuity-based critique than the human rights we already willingly entrench.
Some critics allege that eco-constitutionalism is such an ambiguous concept that it could risk an unbearable flood of litigation upon the courts.60 This argument is counterbalanced, however, by the substantive ambiguity of human rights. Debates on the meaning of rights such as free speech or freedom from discrimination have continued for decades, often through litigation, but few would argue that this is reason enough to strike those rights. Eco-constitutional
provisions will doubtlessly undergo similar discussion. Indeed, their scientific, rather than social, base may grant them an objectivity that reduces the scope for debate as to their interpretation. Provisions such as environmental personhood may raise particularly complex legal questions. These will be addressed below. Broadly speaking, however, fear of opened floodgates should not restrict the implementation of eco-constitutional provisions any more than it does for human rights.
3. WHAT’S IN AN ECO-CONSTITUTION?
This part of the article explores common provisions within contemporary environmental constitutions so as to better understand the potential contents of the ideal eco-constitution.
3.1 Principles, Rights & Responsibilities: An Overview
Modern constitutions typically contain three distinct types of provision: principles, rights, and responsibilities. Principles are powerful ideas, more broad than other provisions, and often represent values without which the constitutional structure cannot be conceived.61 In written constitutions, principles are generally found near the beginning, with wording that infers their centrality to the wider text. Take, for example, art 1(1) of the German Grundgesetz: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”62
By contrast, rights make up the primary content of most constitutions and are more specific than principles. Rights are often described as derived from a higher law and merely represented in positive law, making them inalienable and universal.63 They thus prescribe unconditional entitlements that can only be limited by other rights or principles. Finally, constitutional responsibilities are simply duties imposed upon entities, usually states, which dictate how they must conduct certain affairs.64 Though breaching such duties can carry legal ramifications, responsibilities do not generally bear the same weight as deeply revered principles or rights.
64 Arthur Selwyn Miller “Toward a Concept of Constitutional Duty” (1968) 1968 Sup Ct Rev 199 at 200.
3.2 Ecological Principles
Principles are common in international environmental law, though rare in national constitutions. This article previously referred to two ecological principles: the precautionary principle and ecological integrity. This section describes four more: sustainable development, the participatory principle, intergenerational equity, and intragenerational equity, in order to understand the principles that might underpin an ideal eco-constitution.
Though frequently invoked, the precise definition of the sustainable develop- ment principle is contentious. The United Nations 2030 Agenda describes sustainable development as “balancing” the three pillars of economic, social and environmental development.65 This exemplifies anthropocentric, “weak” sustainability, where socioeconomic interests lead the way while respect for ecological integrity is reduced to an often tokenistic aside.66 The 1992 Rio Declaration is slightly better, referring to sustainable development as environmental protection being integrally, inseparably tied to broader human development.67 However, the ideal eco-constitution pursues “strong” sustainability, in which ecological needs encompass human development rather than accompany it.68 Such development is inherently sustainable because it provides a framework in which socioeconomic growth is only acceptable when it occurs within ecologically informed planetary boundaries.
Economy
Society
Environment
Environment Society
Economy
Figure 1. Representation of three-pillar “weak” sustainability versus ecologically encompassing “strong” sustainability.69
The participatory principle calls for environmental self-determination via rights to information about, and an entitlement to direct participation in, state environmental decision-making.70 Principle 10 of the Rio Declaration provides an example:71
Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision- making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.
The participatory principle thus aids eco-constitutionalism by empowering constituents to hold the state accountable to its ecological grundnorm
(Cambridge University Press, Cambridge, 2015) at 75.
obligations. This principle can also assist in countering “we the people” majoritarianism by empowering minority identities. For example, the principle may require fairer distribution of environmental decision-making authority between majority identities and indigenous communities.72 This empowers crucial decolonisation efforts while benefitting ecological integrity through the unique insights into local ecosystems that indigenous knowledge can provide.73
Intergenerational equity seeks to sustainably distribute quality natural resources across present and future generations in recognition of humanity’s future needs.74 Recklessly consuming resources today denies our descendants’ rights to a clean, healthy Earth that continues to provide the necessities of life. The ideal eco-constitution favours less anthropocentric manifestations of this principle, such as found in the Earth Charter’s call for states and people to share responsibility for the future well-being of “the human family and the larger living world”.75 Similarly, art 4(b) of the Charter requires the transmission to future generations of “values, traditions and institutions that support the long- term flourishing of Earth’s ... ecological communities” demonstrating a more ecocentric application of the principle.76
By contrast, intragenerational equity ensures that resources are accessible to people regardless of their wealth or influence: no one part of humanity may deprive another part of such access.77 This also applies to burden sharing between developed and developing countries in recognition of the disproportionate effects of climate change on the latter.78 It ties in with the concept of “common but differentiated” climate responsibilities; the recognition that all nations are contributing towards and being affected by climate change,
but to different degrees and with different capacities to mitigate climate change.79 Developed countries therefore bear greater responsibility to contribute towards climate action, and refrain from the reckless consumption of resources and destruction of ecosystems.80 Domestically, this may impose such weighted responsibilities upon wealthier citizens or corporations, given the aggravated impacts of climate change on socioeconomically marginalised groups.81
Nearly 20 national constitutions mention sustainable development, though these provisions are plagued by soft wording such as “aim”, “endeavour” and “pursue”, by which states may evade stringent judicial enforcement.82 Eleven constitutions mention participatory principle ideals of citizen involvement in environmental decision-making.83 Twelve use language indicative of the intergenerational principle, with references to the need to “protect”, “safeguard” and “hold in trust” resources and the environment for the “necessities” or “benefits” of future generations.84 The intragenerational principle is regularly inferred, with environmental rights almost universally being guaranteed for “everyone” or “all peoples”.85 Express duties to protect equitable resource access are rarer, with just over one-third of constitutions protecting fair distribution of water.86 Direct reference to the precautionary principle is rare, although the French Charter for the Environment requires its consideration by public authorities when adopting measures to prevent environmental damage.87 Regrettably, no constitution expressly upholds any environmental principle to the fundamental degree that anthropocentric principles are enshrined elsewhere — for example, the primacy of human dignity in the German Grundgesetz. Environmental principles are therefore universally perceived as mere concepts to be balanced with non-ecological values, rather than as constitutional cornerstones.
83 At 372.
84 At 263.
85 At 281.
86 At 72.
87 Charter for the Environment 2005 (France), art 5.
3.3 Substantive Environmental Rights
The most common substantive environmental right is that to a healthy or decent environment, currently found within over 100 national constitutions.88 Other substantive environmental rights, such as those to clean water, generally accompany the healthy environment right.89 Boyd argues that the right provides an impetus for expanding environmental legislation, alongside an onus on states to refrain from rolling back ecological protections.90 The right, however, is ultimately for humans to enjoy, providing for liberty and property over ecological needs.91 For example, the 2021 United Nations Human Rights Council resolution on the right recognises its importance to the enjoyment of other human rights.92 It does not recognise a healthy environment as a right important to the integrity of life at large. The United Nations General Assembly’s recent recognition of the right similarly fails to recognise the importance of a healthy environment to any species beyond humanity.93
This anthropocentric lens on environmental health is problematic because it enables lawmakers to protect ecosystems only insofar as human interests require. For example, in 2006 the South Korean Supreme Court affirmed that salamanders whose habitat was threatened by human industry did not have a right to a healthy environment because they were natural objects rather than humans with enforceable interests.94 The case highlights the short-sightedness of anthropocentric “healthy environment” rights, where protection of biodiversity depends on humans being proximal to the environmental harm.95 Had it been humans whose enjoyment of the environment was being threatened by industry, it is more feasible that they would have had an enforceable claim. As it was, there was no biological assessment of the long-term impacts that the extinction of these salamanders may have had on the integrity of their local ecosystems, and the species reliant on the health of those ecosystems — likely including
local humans. A more ecocentric approach would be to balance these human rights with rights inherent to nature via environmental personhood — a concept discussed below.
3.4 Procedural Environmental Rights
An eco-constitution cannot sufficiently provide substantive rights without protecting their realisation via procedural rights. For example, without government transparency, victims of unlawful ecological harm by the state may be unaware that their right to a healthy environment is being breached at all. A right to environmental information increases awareness of the state’s treatment of the environment, thus empowering citizens to protect it by enforcing their substantive rights.96 Environmental information rights are common, being present in over 50 national constitutions.97 Further, as noted above, a right to environmental decision-making can enhance social justice and ecological well-being. This right, however, is only expressly protected in 11 constitutions and is seemingly limited exclusively to consultation.98 Colombia’s constitution vaguely guarantees environmental decision “participation”, while Finland’s affirms the “possibility” to influence outcomes.99 The ideal eco-constitution provides both an information and decision-making right, with the latter providing clear criteria for genuine authority where both society and ecology benefit from enhanced community involvement.
3.5 Environmental Personhood
One answer to the anthropocentric qualities of human environmental rights is to constitutionally recognise the inherent rights of nature itself via “environmental personhood”. This concept lends nature rights usually attributed to humans; those of dignity, bodily integrity and well-being. To date, only Ecuador’s constitution expressly provides such attribution:100
Nature, or Pachamama, where life is reproduced and created, has the right to integral respect for her existence, her maintenance, and for the regeneration of her vital cycles, structure, functions, and evolutionary processes.
98 At 372.
art 20.
The Bolivian constitution comes close, referencing sacred Mother Earth as a unique entity and attributing rights to her in supplementary lesser legislation.101 Aotearoa has granted two specific natural entities, Te Awa Tupua comprising the Whanganui River, and the Te Urewera National Park, legal personhood and all associated rights.102 Personifying nature provides ecosystems with unique legal protection that is not reliant on proximal human interests. If effectively implemented into constitutional law, environmental personhood could achieve the ecocentrism that environmental human rights have not. Simultaneously, the concept has been met with substantial critiques, some of which are examined and responded to below.
Despite constitutional environmental personhood, ecological degradation continues in both Ecuador and Bolivia.103 Neither nation is progressing especially quickly towards the environmentally focused Sustainable Development Goals (SDGs), and both have seen worsening deforestation in recent years.104 At face value this suggests that environmental personhood has insufficient effect.
The issue, however, lies not with environmental personhood but with its contemporary anthropocentric subjugation. Ecuador limits all constitutional rights, including Pachamama’s, where they might “exclude the other rights stemming from the dignity of persons, communities, peoples and nations that might be needed for their full development”.105 Water consumption is prioritised over “ecological wealth” without reasonable limitations as to consumption rates.106 Some courts have even conflated Pachamama’s intrinsic rights with a human right to a healthy environment, suggesting a continued favouring of
anthropocentric views.107 Political and judicial corruption in Ecuador further drives interpretations of the constitution that favour humans and corporations over nature.108 Similarly, Bolivia’s Mother Earth is trumped by the Bolivian constitution’s placement of “the highest value on human beings” and imposition of a state responsibility to “promote primarily the industrialisation of renewable and non-renewable natural resources” for economic and social consumption.109 These limitations reduce nature’s rights — reduce ecological integrity — to simply another set of interests to be balanced against all others.Aotearoa fares no better. Unlike the all-encompassing Pachamama or Mother Earth, Te Awa Tupua and Te Urewera are constrained to local ecosystems beyond which nature remains humanity’s object. Nor are these entities’ rights entrenched, rendering them without the supremacy or perpetuity of constitutional law. Further, both entities are anthropocentrically constrained. Te Urewera’s personification does not trump the Crown’s ownership over New Zealand minerals, leaving it potentially vulnerable to mining exploitation.110 Te Awa Tupua’s rights are expressly unable to affect existing state-owned enterprises and resource consents over the Crown- owned parts of the Whanganui River.111 Environmental personhood has been anthropocentrically warped, with nature’s rights consistently coming second to humanity’s economic desires. The ideal eco-constitution expressly prioritises nature’s rights in recognition of the ecological grundnorm. Human rights retain great importance but are appropriately limited within planetary boundaries.
In 2019 the Supreme Court of Bangladesh moved to protect personified rivers by ordering the eviction of riverside slums, threatening impoverished communities nationwide.112 This sparked concerns that broad environmental personhood could empower unelected judges, rather than an accountable legislature, to order significant changes to law, policy and even human rights.113
Supreme Court of Bangladesh 13898/2016, 31 January 2019 [Turag River].
These concerns are not groundless, nor easily addressed. As addressed above, ecocentrism does not mean the complete replacement of human rights with ecological needs. Environmental personhood is simply a powerful way of informing the law to contain human rights within planetary boundaries. The Bangladesh case has several unique features that produced its particularly radical decision with respect to the rights of riverside slum inhabitants. First, riverside slums had already been declared unlawful at a judicial and legislative level, even before those rivers were personified.114 Had these residences been lawful, the judgment may have sought entirely different means of enforcing the rivers’ rights. Even constitutional, ecocentric environmental personhood is unlikely to result in judiciaries overturning established, lawful human rights overnight. Secondly, the enforcement of river rights was completely unprecedented in Bangladesh.115 The development of comprehensive ecological jurisprudence over time is likely to help contain the risk of judicial overreach.116 This should be guided by regular reference to international precedent and the views of local and indigenous groups with special relationships to the natural entity in question.117 The latter can be achieved through appropriate guardianship models as a means of realising nature’s standing.
“Standing” refers to a claimant’s ability to bring a lawsuit based on alleged harm to their legal interests. To have standing, a claimant must therefore establish sufficient connection between an adverse impact on their legal interests and the defendant’s unlawful conduct. Environmental personhood raises necessary questions around the functionality of standing for natural entities. It is not contentious that natural entities cannot communicate the alleged injury themselves. Western law readily accepts claims from non-human entities such as corporations or estates.118 However, such entities have easily identifiable representatives. Who is best suited to represent nature’s interests? Uncertainty on this question has hindered Pachamama’s ability to enforce her rights in Ecuador and is thus important to resolve.119
Personhood Protect the Environment? Affording Legal Rights to Nature” (2021) 45 Fordham Intl LJ 315 at 373.
115 At 167.
One solution is “open standing”; allowing anyone to bring a claim on nature’s behalf. One provincial Ecuadorian court has already granted open standing for representation of Pachamama’s rights.120 Open standing is simple, making it easy to legally implement, and by allowing anyone who has identified a potential breach of ecological rights to bring a claim it gives nature wide opportunity to be heard.121 One risk is that such openness may enable vexatious or self-interested claims.122 Some jurisdictions have successfully mitigated this possibility through imposing conditions on standing.123 Australia, for example, grants open standing for environmental judicial review to any citizen who has engaged in recent ecological conservation.124The glaring, unresolvable issue with open standing is its disregard of communities with long histories of cultural guardianship over natural entities, notably indigenous peoples. Allowing a large class of people to claim on nature’s behalf may drown out uniquely insightful indigenous knowledge, derived from millennia of localised ecological interactions, that could otherwise greatly aid nature’s representation.125 Further, it directly disempowers indigenous peoples’ connection to their ancestral land. An alternative approach to standing that mitigates this unacceptable risk is the “guardianship” model. Introduced in Stone’s seminal work “Should Trees Have Standing?”, this model appoints specific guardians to natural entities— for example, a board or trust — with fiduciary duties to represent that entity’s interests in litigation and beyond.126 Aotearoa has adopted guardianship standing via the Te Urewera Board and Te Pou Tupua, entities responsible for acting “on behalf of, and in the name of, Te Urewera” and being “the human face of Te Awa Tupua”.127 India has appointed state representatives as guardians of personified rivers.128
Who then is qualified to be a guardian? Stone proposed guardians be selected from “friends” of the entity; that is, individuals with special knowledge of, and interest in, the entity’s well-being.129 Indigenous people with close
relationships to the entity make exceptional candidates under this qualification, simultaneously resolving the risk of losing indigenous peoples’ insights posed by open standing. Indigenous guardians may, however, lack the resources and expertise to actively represent the entity. Public funding could resolve this issue but raises valid concerns about guardians’ ability to act independently from the state’s interests, together with the difficulty of limitations on the public purse.130 Mixed guardianship bodies of state and local representatives such as Te Pou Tupua and the Te Urewera Board provide a reasonable compromise. Such bodies, appointed by and accountable to their respective representees, may benefit from indigenous knowledge supplemented by state-funded expertise where required.131 In line with the participatory principle, these bodies should provide reasonable transparency and opportunity for public scrutiny, particularly when representing state-spanning entities such as Ecuador’s Pachamama.
Despite its criticisms, constitutional environmental personhood shows ecological promise. One Ecuadorian court recently found that Pachamama’s rights imposed an onus on local government to protect endemic frogs; a stark, ecocentric contrast to the aforementioned South Korean salamander case.132 Calzadilla and Kotzé argue that, while progress is slow, the Bolivian protection of “Mother Earth” could still fundamentally shift law from a “growth- without-limits paradigm” towards strong sustainability.133 Other critiques of environmental personhood exist beyond this article’s scope: for example, questions of nature’s culpability or transboundary harm. However, as with the major critiques analysed here, solutions are emerging.134 Considering the progress made to date, the case for constitutional ecocentric environmental personhood should not be dismissed for fear of leaping some jurisprudential hurdles.
<www.decoin.org>; “Rights of Nature upheld by Ecuadorian provincial court ruling” (30 October 2020) Rainforest Concern <www.rainforestconcern.org>.
3.6 Environmental Responsibilities
National constitutions commonly impose environmental responsibilities on governments. Some are mere policy directives, technically binding but also not judicially enforceable.135 Examples include Timor-Leste’s constitution: “The State recognizes the need to preserve and rationalize natural resources”, or that of Belgium: “in exercise of [its] respective competences, the Federal State ... pursue[s] the objective of sustainable development”.136 Others use mandatory, enforceable language; for example, the Greek constitution: “The protection of the natural ... environment constitutes a duty of the State”; or Honduras: “The State shall maintain a satisfactory environment for the protection of everyone’s health.”137 Several constitutions impose environmental obligations on private persons. Examples include The Gambia: “people of The Gambia shall strive to protect, preserve and foster ... (our) natural ... heritage”; and Tajikistan: “The protection of natural ... heritage shall be the duties of everyone.”138 Responsibilities usefully regulate interaction with the environment but lack the absolutism and universality of rights. Because each responsibility is specific to its respective state, courts cannot interpret them via international precedent and are thus bound by state-determined semantics.139 For example, a nation committed to passively “preserving” the environment may have a lesser burden than a nation committed to actively “protecting” it. The ideal eco-constitution uses responsibilities to supplement rights or support initiatives not attributable to rights, taking care to use enforceable, ecocentric language.
4. THE ECO-CONSTITUTION OF AOTEAROA NEW ZEALAND
Having established the need for eco-constitutionalism and explored its ideal composition, this article now examines its potential for implementation within Aotearoa New Zealand.
4.1 Constitutionalism in Aotearoa New Zealand
The constitution of Aotearoa is found across numerous sources, judicial decisions and accepted conventions.140 McLean describes three underlying elements of New Zealand’s constitution: parliamentary monism, Te Tiriti o Waitangi, and cosmopolitanism.141
Parliamentary monism dominates these elements. Whereas most legislatures must justify their law against broader constitutional values, a simple majority in New Zealand’s Parliament is sufficient mandate to take nearly any action.142 This absolute majoritarianism stems from a unique and long-standing trust that democracy will motivate Parliament to act fairly.143 Transferring constitu- tional power away from Parliament towards predetermined values would thus needlessly undermine the mercurial will of “we the people”.144 Traditional democratic processes almost exclusively legitimise any substantive outcome, although this is tempered by features such as regular elections and the use of mixed-member proportional representation.145
Weighing somewhat against monism is Te Tiriti o Waitangi, increasingly recognised as integral to New Zealand’s constitutional arrangements and capable of influencing majority decision-making.146 The exact extent of this influence remains contentious.147 Clearly, monism remains supreme.148 Simultaneously, however, the Supreme Court’s default constitutional assumption is that Parliament will respect Te Tiriti unless clearly expressed otherwise, and that the legal interpretation of Te Tiriti articles should be “broad and generous”.149 As the judiciary further recognises the constitutional power
325.
145 At 327.
[2021] NZSC 127 at [151].
of Te Tiriti, so too grows its capacity to affirm certain state obligations in the absence of expressly contrary legislation.150Finally, cosmopolitanism reflects the influence of internationally recognised norms on New Zealand’s constitution.151 Customary international law obligations, for example, are automatically incorporated into domestic law subject to express exclusion by Parliament or prior judicial decision.152 The more fundamental an international norm, the harder for Parliament to justify its exclusion. The Court of Appeal has even suggested that certain common law rights, such as freedom from torture, are so fundamental that the courts would refuse to uphold contradicting legislation.153 If this obiter extends to well- established international norms, it would infer an ability for cosmopolitanism to potentially trump the majoritarian monism of Parliament.
Supreme parliamentary monism frustrates eco-constitutionalism because it equips Parliament with a majoritarian mandate to disregard the ecological grundnorm, despite the cosmopolitan duty to protect humanity against the biodiversity crisis. Parliament could recognise this duty and initiate the development of an eco-constitution for Aotearoa, but domestic majoritarianism would likely restrict any such efforts. Consequently, this article proposes that the global obligation to adopt eco-constitutionalism be realised within Aotearoa through a constitutional restructure. This could be achieved by the judiciary tempering the pillar of parliamentary monism with an ecological grundnorm drawn from the pillars of Te Tiriti and rights cosmopolitanism. From here, Parliament and the executive could build law and policy around this grundnorm, ideally including an entrenched, written eco-constitution, via regular democratic functions.
4.2 Ecological Aspects of Te Tiriti and Tikanga Māori
Interpretation of Te Tiriti yields crucial implications for eco-constitutionalism in Aotearoa. The courts have long recognised a Te Tiriti-sourced Crown obligation to consult with Māori on environmental policy.154 Te Tiriti imposes a Crown duty to protect taonga, including land, water and lifeforms.155 Such an interpretation represents constitutional recognition of the participatory principle
and a state responsibility to protect the environment. Alone, however, they do not justify ecocentrism.Instead, ecocentric obligations under Te Tiriti arise through tino rangatira- tanga and tikanga Māori. Tino rangatiratanga, or “sovereignty”, is guaranteed by Te Tiriti for Māori to exercise over their land.156 Tikanga Māori is described by Williams J as New Zealand’s first law, the legal system of pre-colonial hapū society.157 In contrast to Western law’s comparative rigidity, tikanga provides tools of thought and understanding to facilitate flexible decision- making.158 As the first law of Aotearoa, tikanga underpinned pre-colonial Māori constitutionalism.159 Rangatiratanga could only be exercised by a leader with the necessary mana, which in turn required adherence to tikanga.160 When Māori leaders signed Te Tiriti, their understanding was that art 2 would preserve their tino rangatiratanga as it existed in hapū society, including the tikanga from which it is sourced.161 Consequently, the Supreme Court has found that tikanga or tikanga-derived principles are “part of the fabric of Aotearoa / New Zealand’s law and public institutions” through the constitutional pillars of Te Tiriti and cosmopolitan duties arising from the United Nations Declaration on the Rights of Indigenous Peoples.162 Although still subject to monism, tikanga is now recognised within our constitutional framework. To the extent that tikanga has ecological elements, so too does New Zealand’s constitution.
The validating obligation of rangatiratanga was to heed the voice of the people and care for them.163 Through tikanga, caring for the people was deemed inseparable from caring for Papatūānuku, the personification of the Earth itself and origin of all life upon it.164 One could not claim rangatiratanga without land to stand upon: thus, mana was sourced from leaders’ ability to protect the whenua their people inhabited. This duty of environmental protection was embodied through the tikanga principle of kaitiakitanga, often translated to “guardianship” although that word fails to capture its spiritual relevance.165 The Waitangi Tribunal’s renowned report Ko Aotearoa Tēnei (Wai 262)
160 At 34.
161 Dominic O’Sullivan and others “A critical review of the Cabinet Circular on Te Tiriti o Waitangi and the Treaty of Waitangi advice to ministers” (2021) 21(6) Ethnicities 1093 at 1096.
162 Ellis v R [2022] NZSC 114 at [126].
163 Matike Mai Aotearoa, above n 159, at 34.
164 At 34.
165 Waitangi Tribunal, above n 155, at 105.
provides invaluable insight into the relevance of kaitiakitanga to Māori constitutionalism:166
[T]hose who have mana ... must exercise it in accordance with the values of kaitiakitanga ... Mana and kaitiakitanga go together as right and responsibility, and that kaitiakitanga responsibility can be understood ... as a system of law.
Kaitiakitanga involves a duty to nurture the physical well-being and mauri, the essential lifeforce, of things with which one has a kin relationship.167 Tikanga explains that tangata whenua have this kin relationship with the natural entities of their homeland: mountains, rivers, plants, animals and more, all of which are interconnected through a web of common descent to Papatūānuku and her sky-personifying spouse Ranginui.168 In this way, kaitiakitanga forms an ecological grundnorm within the Māori constitution. There can be no mana, no rangatiratanga, without first acknowledging the interconnected nature of all life and the land and then upholding a consequent duty to nurture, respect and protect it. The Supreme Court has found that recognition of Te Tiriti must include recognition of kaitiakitanga.169 Through Te Tiriti o Waitangi, an ecological grundnorm has thus survived into modern Aotearoa constitutionalism.
4.3 Is Aotearoa New Zealand Obligated to Adopt Eco-Constitutionalism?
If an ecological grundnorm is fundamentally entangled within the consti- tutional pillar of Te Tiriti, is Aotearoa obligated to recognise it via eco- constitutionalism? The short answer is no; the pillar of parliamentary monism is supreme over all others. Were the constitutional pillar of Te Tiriti granted primacy, all law in Aotearoa would be required to align with its articles and, by extension, the ecocentric grundnorm of kaitiakitanga. Ruru and Kohu- Morris recommend the courts recognise Te Tiriti as having special sui generis authority, as Canada’s judiciary have afforded Crown–indigenous treaties.170 Such authority could realise the foundational, constitutional nature of Te Tiriti as supreme law.171 Parliament’s legitimacy would then primarily stem from adherence to Te Tiriti and the tikanga inseparably connected to it. Crucially,
166 At 23 (emphasis in original).
167 At 23.
168 At 23.
kaitiakitanga would be revived as the foremost source of governing legitimacy and eco-constitutionalism would once again take root within Aotearoa.Of course, it would be unprecedented for the courts to recognise an ecological grundnorm with primacy over Parliament via Te Tiriti. Such a declaration could risk judicial legitimacy and a constitutional crisis unless grounded in a range of powerful justifications.172 Fortunately, such justifications are available. First, recall that New Zealand and the United Kingdom are constitutionally unique in that neither nation binds its legislatures to “superior law”.173 To subject parliamentary monism to a higher source of law would be the norm, not the exception. Secondly, weight must be given to the fact that recognition of Te Tiriti, as New Zealand’s second constitutional pillar, requires recognition of a kaitiakitanga-inspired grundnorm.
Thirdly, as discussed above, an obligation to recognise the ecological grundnorm exists through cosmopolitanism, New Zealand’s third constitutional pillar. Protecting ecological integrity is a matter of such apocalyptic importance to humanity that it must form the normative basis of all law.174 Cosmopolitan constitutionalism holds that “we the people” of Aotearoa are bound by an extraterritorial responsibility to “all people everywhere” to respect the ecological grundnorm.175 Even disregarding Somek’s claims, the cosmopolitan element of New Zealand’s constitution must consider this grundnorm to be of such weight that the courts would be justified in refusing to uphold contradicting legislation. Such a finding could broadly align with Cooke J’s long-standing obiter on the unenforceability of torture.176 Combined with the ecological weight of Te Tiriti, a uniquely powerful obligation is imposed on Aotearoa to recognise the protection of ecological integrity as a constitutional bottom line. There is no reason to delay this recognition. The judiciary-initiated enforcement of an internationally informed, tikanga Māori-derived eco-constitution in Aotearoa could begin today.
Of course, the courts will likely remain wary of independently giving effect to eco-constitutionalism in Aotearoa. If necessary, civil society should seek eco-constitutional reform through conventional means — for example, lobbying for greater recognition of Te Tiriti o Waitangi, tikanga and cosmopolitanism. The ongoing reform of the Resource Management Act 1991 shows at least some appetite within Parliament for powerful ecological values. Notably, the exposure draft of the Natural and Built Environment Bill expressly seeks to promote ecological integrity and introduces quasi-environmental personhood at
172 At 568.
176 Taylor v New Zealand Poultry Board, above n 153, at 398.
a national scale through the concept of Te Oranga o te Taiao, the “well-being of nature”.177 It seeks to balance human development with “environmental limits”, a concept clearly inspired by planetary boundaries.178 Although far from perfect, the Bill at least represents a realistic foothold by which civil society can pursue eco-constitutionalism even under the dominion of parliamentary monism.179
5. THE IDEAL ECO-CONSTITUTION OF AOTEAROA NEW ZEALAND
This article has argued that eco-constitutionalism is a necessary, obligatory step for environmental law in Aotearoa. The final part of the article will explore the nature and contents of an ideal New Zealand eco-constitution.
5.1 The Role of Tikanga Māori
Given that kaitiakitanga is the vessel by which ecocentrism has survived within New Zealand’s constitution, implementing tikanga Māori into the ideal eco-constitution is essential. Simultaneously, however, such implementation requires caution. Tikanga is fundamentally a Māori concept. Kaitiakitanga, by its very definition, can only be practised by those with a relationship of whanaungatanga, or kinship, to the land:180
Kaitiakitanga is really a product of whanaungatanga — that is, it is an intergenerational obligation that arises by virtue of the kin relationship. It is not possible to have kaitiakitanga without whanaungatanga. In the same way, whanaungatanga always creates kaitiakitanga obligations.
Given that Māori have a far longer history of relationship with the land of Aotearoa, the practice of kaitiakitanga by Pākehā may amount to an appropriation of mātauranga Māori, a harmful form of neo-colonisation.181 Indeed, even attempting to apply kaitiakitanga in a uniform way throughout
the eco-constitution may be appropriative, given the lack of a universal definition of kaitiakitanga between hapū and iwi.182 To confine kaitiakitanga to a single definition and require its practice by all New Zealanders could risk the unacceptable outcome of alienating Māori from their own cultural heritage.183 How then can tikanga be expressed in the eco-constitution of Aotearoa?The best solution is to respect tikanga for what it is: a taonga Māori rather than a Pākehā tool. The constitutional inquiry of Matike Mai Aotearoa notes that tikanga should not be expressed as rigid prescriptions within a constitution.184 Rather, tikanga should be a key source of the eco-constitution’s underlying values that contextually guide its interpretation.185 Kaitiakitanga, for example, should not be tightly defined within the constitution’s text but instead inspire a value of “place” that fundamentally informs respect for Papatūānuku and Ranginui.186 “Place” is useful because it honours the Ao Māori view that all people should help enhance the life-support systems of Papatūānuku and Ranginui, without appropriating the sacred connection between kaitiakitanga and tangata whenua.187 Kaitiakitanga could exist within the eco-constitution, but as a principle to be exclusively exercised by kaitiaki Māori — for example, the empowerment of kaitiaki decision-making authority over their respective ecosystems.188 In this way, tikanga can simultaneously form the basis of New Zealand’s eco-constitution without subjugation to incompatible Western ideals. Of course, any incorporation of Māori cultural concepts into an eco- constitution should only occur with the wide support of tangata whenua, obtained through a comprehensive co-design process.
5.2 The Eco-Constitution of Aotearoa New Zealand
This section summarises the contents of an ideal eco-constitution for Aotearoa. It exclusively focuses on elements of ecological significance. Of course, any constitution will address non-ecological aspects of governance and rights. Other sources, notably Palmer and Butler’s seminal A Constitution for Aotearoa New Zealand, explore such aspects in detail.189 As to the form of the ideal eco-constitution, Palmer and Butler argue that a written constitution is more accessible than an unwritten one, allowing the public to build familiarity with
185 At 70.
186 At 81.
187 At 83.
(Victoria University Press, Wellington, 2016).
the constitution.190 Such understanding builds public trust in the constitution that begets genuine, institutional respect towards its tenets.191 For this reason, this article favours a written, entrenched eco-constitution.The ideal eco-constitution of Aotearoa begins with a preamble that defines the ecological grundnorm as the fundamental responsibility to protect ecological integrity, with which all other law must align. It notes that this grundnorm in the Aotearoa context is derived from Te Tiriti o Waitangi and cosmopolitanism. The eco-constitution then presents the protection of ecological integrity as the foremost value of law and source of governing legitimacy. An ecological rewording of art 1 of the German Grundgesetz would be appropriate:
Ecological integrity shall be inviolable. To respect and protect it shall be the duty of everyone. The people of Aotearoa acknowledge ecological integrity as fundamental to life, and thus the basis for all state authority.
The eco-constitution proceeds to affirm Te Tiriti o Waitangi as its foundational document. Broader reasons as to why a New Zealand constitution should be Te Tiriti based are discussed elsewhere.192 From an eco-constitutional per- spective, Te Tiriti possesses unique value as the source by which tikanga and the kaitiakitanga-inspired ecological grundnorm manifests within contemporary law. New Zealand’s ideal eco-constitution thus honours Te Tiriti at its core.
Next, the eco-constitution sets out tikanga-informed values such as those recommended by Matike Mai Aotearoa.193 The first of these is the kaitiakitanga- informed value of “place”. An alternative term might be “Te Oranga o te Taiao” as used in the Natural and Built Environment Bill exposure draft.194 This value requires respect towards Papatūānuku and Ranginui as a primary source of government legitimacy and a responsibility for all New Zealanders.
This value then justifies a range of subsidiary principles and rights central to the eco-constitution and informed by international law. The precautionary principle expressly requires the state to act with precaution when assessing ecological risks as within the French Charter for the Environment.195 An expressly “strong” sustainable development principle is set out, along the lines of art 5(a) of the Earth Charter: “Adopt at all levels sustainable development plans and regulations that make environmental conservation and rehabilitation integral to all development initiatives.”196 The participatory principle informs
190 At 10.
191 At 25.
192 Matike Mai Aotearoa, above n 159, at 57.
193 At 68.
a procedural right to ecological information for all citizens. It also sup- plements an exclusively Māori principle of kaitiakitanga that informs equitable, authoritative participation in environmental decision-making for kaitiaki Māori over natural taonga. Finally, the inter- and intra-generational principles are recognised in relation to natural resources and the health of ecosystems. This involves the express recognition of environmental rights applying to “future generations” and annexes rights to fair, equitable distribution of resources for socioeconomically marginalised peoples.The eco-constitution may include a human right to a healthy environment but must place heavy emphasis on the rights of nature through environmental personhood. In this regard, Matike Mai Aotearoa speaks favourably of a dual recognition of Papatūānuku and Ranginui.197 In terms of representation, a guardianship model has important advantages over open standing, as described above. Given the all-encompassing nature of these entities, a single guardianship body might sit at a national level, or various regional bodies might be appointed. Each should be co-governed by Crown representatives and kaitiaki Māori, an approach aligned with the Waitangi Tribunal’s recommendations on contemporary exercise of kaitiakitanga.198 In order to maintain appropriate checks on judicial interpretation of these rights, the eco-constitution provides clear criteria on how Papatūānuku and Ranginui’s needs should be balanced with those of human well-being.
Finally, the eco-constitution imposes responsibilities on the state and constituents arising from the previously affirmed rights and principles. If included in a written constitution, such responsibilities should not be exhaustive but rather act as a guide for the ideal, restructured anthropo- ecological relationship. Generally, these responsibilities will help support the reasonable preservation of planetary boundaries. In consideration of the intragenerational principle they require the state to maintain equitable access to essential ecosystems. Kenya’s constitutional directive to: “put in place affirmative action programmes designed to ensure minorities and marginalised groups ... have reasonable access to water” provides a sound example.199 Given that art 2 of Te Tiriti o Waitangi protects access to taonga for Māori, the Aotearoa eco-constitution should expressly affirm such responsibilities towards tangata whenua.200 Responsibilities should use mandatory language to ensure compliance.
6. CONCLUSION
Sceptics might call eco-constitutionalism a wild idea. In doing so, they are somewhat poetically correct. As demonstrated throughout this article, eco- constitutionalism is a champion of the “wild”. It demands humanity recognise the gross fallacy that is our perceived mastery over a complex, delicate global ecosystem on which, in reality, we utterly rely. We are nature and nature is us. Positing ecological integrity as the foundation of global legal systems stands to drive regulatory and ideological shifts far more likely to protect life on Earth than current environmental law ever could. Through accepting this integrity as a prerequisite to life, we realise humanity’s obligation to adopt eco-constitutionalism via the ecological grundnorm. This conclusion carries great weight for Aotearoa New Zealand, particularly because a tikanga-based ecological grundnorm has survived through Te Tiriti o Waitangi. Aotearoa is thus uniquely positioned to adopt eco-constitutionalism. Our challenge lies with implementation. This article has proposed that the courts imminently declare the grundnorm as a limit to parliamentary supremacy, followed by the legislative adoption of an entrenched, written eco-constitution. Deeper exploration of how either of these ideals might be achieved is warranted in future studies. In any case, the urgent message of eco-constitutionalism is clear. For all our technological expansions, our needs remain perpetually connected to Earth’s needs; we have not conquered the wild but remain part of it. It is time to ensure that our law recognises this fact.
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