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University of Otago Law Theses and Dissertations |
Last Updated: 25 September 2023
Like an Onion, Ecological Law has Layers.
Fergus James Rowan Wheen Keiller
(Submitted in partial fulfilment of the requirements for the degree of LLB(hons) at the University of Otago, October 2022).
Acknowledgments
I am deeply grateful to my supervisor, Professor Ceri Warnock, for her guidance and much- needed grounding throughout all stages of writing this dissertation. I would also like to express my gratitude toward Marcelo Rodriguez Ferrere, for his thorough and constructive feedback following my seminar and to Metiria Stanton Turei, for her kindness in taking the time to patiently discuss topics with me of which I knew very little. I am also forever thankful to my mother, Nicola, for everything, but especially for always talking with me.
Table of Contents
Further separation – Environmental Law’s fragmentation of nature from nature and the holism of Ecological law 23
Introduction
This dissertation argues why a shift to ecological law from environmental law, particularly in Aotearoa, is now more pressing than ever. It will be argued that ecological law needs to be constitutional to be effective. Given Aotearoa’s developing constitutional context, it is important that if a supreme, written and entrenched constitution is on the horizon that it reflects an “ecological constitution”. I critique a number of current proposals for constitutional reform by assessing whether they are ecological in form and/or have the capacity to support ecological law.
It is also of important to note that this dissertation will not follow one sequential or causal line of thought, developed from beginning to end, as this is not a topic that lends itself to such a structure. Instead, I will outline the arguments for ecological law globally and locally, explain its fundamentals, and introduce current proposals for constitutional change in Aotearoa. I “layer” the discussion to build complexity and illustrate (by reference to environmental law’s flaws and principles of ecological law) why the current proposals do or do not have the capacity to be genuinely ecological. I discuss three “layers” to effective ecological law: first, that the law is built on clear ecological rights and principles; second, the importance of status to ecological law; and third, the need for institutional support.
The first chapter will set the overall scene of global and local environmental degradation, crossing planetary boundaries, and infringing on the biosphere’s integrity – such degradation is allowed under contemporary environmental law. The fundamentals of ecological law, its principles and constitutional mandate, can be described with reference to environmental law’s challenges. This chapter will finally set out some prominent proposals for constitutional change to later gauge whether incorporating those proposals would support or hinder an ecological transition. I consider proposals made by Geoffrey Palmer and Andrew Butler, Royden Somerville, and Matike Mai Aotearoa (MM).
The second chapter will illustrate some key principles of ecological law and the substance of ecological constitutions: the first “layer” of effective ecological law. It is important that ecological law is ecocentric and recognises the basic realities of the “Earth system”.1 Further,
1 Klaus Bosselmann “The framework of ecological law” (2020) 50(6) Environmental Policy & Law 479-485 at 482.
ecological law should give primacy to the natural world and provide for ecological justice. I explain how various proposals, such as Palmer and Butler’s proposal, do not contain ecological principles crucial to this “layer” and so remains anthropocentric.
The second “layer” concerns legal structures and hierarchies. In the third chapter I highlight the importance of status and hierarchy to ecological law. Supreme status is generally a requirement to give proper effect to core principles of ecological law, as ambiguity in interpretation can undercut the purpose of creating a law. Supremacy ought to avoid such ambiguity arising from interpretation with/against more anthropocentric law. I critique current proposals against this standard, for example, it is here that Somerville’s proposal – making the proposed Natural and Built Environments Act “constitutional” but not in the supreme sense – falls short of constituting genuinely ecological law.
The final chapter discusses the third “layer” of effective ecological law. This concerns the need for institutional support and shared ecological goals within the legal system. Ecological law interpreted in an overtly anthropocentric manner in legal, social, and political institutions may prevent its effective operation. Here, it will be shown that MM’s proposal for constitutional transformation may provide a vehicle for effective ecological law. The Māori worldview and tikanga Māori have synergies with principles of ecological law and, given the former are far broader than the latter, provide the institutional support for its effective application. Whether or not MM’s proposals would actually give effect to ecological law cannot be certain, but proposals based on tikanga at least have the capacity to do so. Unlike Palmer and Butler’s proposal and Somerville’s, Matike Mai’s proposal does not face a clear and theoretical wall to being truly ecological.
Chapter 1: New Zealand’s contemporary context – ‘Old’ Environmental Law and a New Constitution for Aotearoa
This chapter will provide background information about the drivers (from a harmful status quo) for ecological law, some important fundamentals of ecological law (what makes a “principle” of ecological law; what rights are “ecological rights”), the development of ecological constitutionalism, and the need for ecological law to be part of constitutional discourse in Aotearoa. Constitutional discourse is building in Aotearoa, ecological law would be far harder to achieve if an environmentally harmful legal system (within the “growth paradigm”2) is further entrenched.
The need for ecological law
Humanity’s untethered (economic/technological) growth, sanctioned by the limitless demand of a growing population, is becoming increasingly harmful. This conclusion has longstanding philosophical grounding in “Malthus’ (1798) vision of catastrophe due to excessive demand” being “inevitable for an isolated population having exponential growth while adhering to stereotypical production practices that deplete finite, non-substitutable resources”3 but has more recently been affirmed by scientific evidence.4
David Boyd writes that “[t]he hour is late”, despite warnings from international organisations since the 1970’s, “[h]uman actions have unleashed a tsunami of death and destruction upon the planet... causing the worst mass extinction in 65 million years”.5 The Anthropocene has seen “humanity ... violating multiple boundaries of biosphere integrity”6 by disrupting systems and crossing “planetary boundaries” into areas of recognised danger.7 Ongoing environmental degradation, specifically impacts on biodiversity, has had a cumulative impact on the resilience
2 Carla Sbert The Lens of Ecological Law: A Look at Mining (Elgar Online, 2020) at 46.
3 Bruce T Milne “Elements of a Holistic Theory to Meet the Sustainability Challenge” (2017) 34 Systems Research & Behaviour Sciences 553-563 at 554.
4 Climate Change 2022: Mitigation of Climate Change Summary for Policymakers (Working Group III contribution to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change, IPCC, 2022) at C.1.4.
5 David R Boyd The Rights of Nature (ECW, Toronto, 2017) at 219.
6 Julian Caldecott Surviving Climate Chaos: By Strengthening Communities and Ecosystems (Cambridge University Press, 2021) at 26.
7 Lynda Collins The Ecological Constitution: Reframing Environmental Law (4th ed, Routledge, New York, 2021) at 2 and Johan Rockström and others “Planetary Boundaries: exploring the safe operating space for humanity” 14(2) Ecology & Society 32-55 at 34.
of ecosystems.8 Climate breakdown, “compounded by the neoliberal effects of developing global economies”9 has had an ancillary effect “accelerating the extinction of known and unknown species that sustain the ecosystem”. So, some countries “such as the Republic of Ireland have declared not only a climate change emergency, but also a “biological diversity emergency”.10 Less diverse ecosystems are less equipped to respond to “system shocks that can radically alter the flow of ecosystem services, affecting associated livelihoods and the wellbeing of communities”.11
Knowledge of environmental degradation is not new. The Stockholm Declaration (1972) acknowledges the need for “the preservation and enhancement of the human environment”.12 The Paris Agreement (2015) more recently refers to the United Nations Framework Convention on Climate Change (1995) and recognises “the need for an effective and progressive response to the urgent threat of climate change on the basis of the best available scientific knowledge”.13 In Aotearoa, the Climate Change Response Act 2002 (and subsequent amendments in 2019) makes references to the Paris Agreement and provides that its purpose is to:
(aa) provide a framework by which New Zealand can develop and implement clear and stable climate change policies that—
(i) contribute to the global effort under the Paris Agreement ... and(ii) allow New Zealand to prepare for, and adapt to, the effects of climate change:14
Despite domestic recognition and incorporation, statements of danger continue to feature ubiquitously in both international and intranational environmental reporting. The Intergovernmental Panel on Climate Change reports that the growth rate of emissions lessened from the period 2010-2019 when compared to 2000-2009, perhaps buttressing the belief that
8 Joseph Holden (ed) An Introduction to Physical Geography and the Environment (4th ed, Pearson Education Limited, Harlow, England, 2017) at 10.2.4.
9 Robert Joseph and others The Treaty, Tikanga Māori, Ecosystem-Based Management, Mainstream Law and Power Sharing for Environmental Integrity in Aotearoa New Zealand – Possible Ways Forward (Ngā Moana Whakauka – Sustainable Seas National Science Challenge, 2019) at 26.
10 Royden Somerville “Resource Management Law: The next 30 years” (RLMA Salmon Lecture, Wellington Club, Wellington, 16 June 2022) at 11.
11 Transforming the resource management system: Opportunities for change (Issues and options paper, Resource Management Review Panel, 2019) at 11.
12 Declaration of the United Nations Conference on the Human Environment A/CONF.48 /14 and Corr.1, chap. 1 (1972), preamble.
13 The Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016), preamble.
14 Climate Change Response Act 2002, s 3 (my emphasis).
“we have the resources and expertise to transition to more sustainable modes of living”.15 Still, the net anthropogenic greenhouse gas emissions have continued to rise since 1850: in 2010- 2019 the highest rate of emissions (relative to any other decade) were recorded. A “radical” transition is yet to occur16 despite its recognised importance.17
In Aotearoa, indigenous forest land cover decreased by 12,869 hectares between 2012 and 2018.18 Agricultural land use has intensified (meaning irrigation and/or fertiliser input has increased to match a greater density of stock on land) in pursuit of greater financial gain. In fact, the “area of irrigated agricultural land almost doubled between 2002 and 2017 from 384,000 hectares to 747,000 hectares”.19 Land use change and intensification of use has increased pressure on Aotearoa’s unique ecosystems.20 Since measurements recorded in 1994, soil health in Aotearoa experienced no improvement across recordings taken up until 2018 (most recently).21
Ongoing degradation in the environment is evidence that law has not been effective or regulatory implements enforced. It is clear now, more than ever, that change to legal (and regulatory, management, governance) systems is needed.22 Incremental change within environmental law, and the wider legal system, has generally been ineffective and there is growing scholarship that argues for a systemic “paradigm” shift from an anthropocentric (environmental law) to an ecocentric (ecological law) one.23
Theoretical challenges in contemporary environmental law
15 Climate Change 2022, above n 4, at 9.B.1 and Collins, above n 7, at 2.
16 Climate Change 2022, above n 4, at 9.B.1
17 Joseph and others, above n 9, at 26.
18 Environment Aotearoa 2022 (Ministry for the Environment and Stats NZ, 2022) at 18.
19 Environment Aotearoa, above n 18, at 19.
20 Environment Aotearoa, above n 18, at 19.
21 In this period, dairy sites were the least successful at achieving macroporosity targets (with 65% of observed sites failing to meet targets). Macroporosity (the quantity and of large pore spaces in soil) is one indicator of soil health. It can be, and has been, reduced by more densely kept livestock in combination with a greater frequency of heavy machinery. Such intense use leads to soil compacting, making soil both less receptive to inputted nitrogen fertilizers while also increasing emissions of nitrogen dioxide (Environment Aotearoa, above n 18, at 28).
22 Joseph and others, above n 9 at 26.
23 Collins, above n 7, at 118; Helena R Howe “Making wild law work—the role of ‘connection with nature’ and education in developing an Ecocentric property law" (2017) 29(1) Journal of. Environmental Law 19-45 at 39; and Sbert, above n 2, at 83.
Environmental challenges are present within current legal systems. Legal systems not ultimately designed to protect the Earth will not prevent its destruction.24 Carla Sbert argues that our legal system exists to protect an “economic growth paradigm”, making a shift to a paradigm incorporating ecological boundaries – limiting growth to avoid climate crisis(es) – challenging.25
Contemporary environmental law been has built upon “anthropocentric, fragmented and reductionist” principles and ideas that are “blind to ecological interdependencies”.26 Correspondingly, law has failed to solve ecological problems as they arise. 27 Environmental law has largely been reactionary, aimed at mitigating symptoms of behaviour causing environmental degradation, rather than addressing the root practice itself. In Aotearoa, the Resource Management Act 1991 (RMA), for example, permits “adverse effects” to be “mitigate[d]” by those causing them but makes no attempt to address or question the cause of superfluous harmful activities.28 The environment still faces death by a thousand mitigated effects, rather than a few ones.
Systemic problems in environmental law are deep-set, as Sbert puts it: “the core of this crisis is the intensification of materials and energy use since the 1950s resulting from an economic model based on constant and unlimited economic growth. An anthropocentric, mechanistic worldview underlies this economic paradigm and its response to environmental harm”.29 This view rests in large part on “pre-Copernican astronomy, Christian theology, and Cartesian philosophy” and persists as the orthodox today despite losing “its basis in science in the wake of theories of relativity, evolution, ecology, chaos, complexity, self-regulating life (Gaia hypothesis), and others”.30
Still, legal and political priority arrangements within contemporary legal frameworks (part of a “neoliberal capitalist agenda”31) have persisted in, generally, failing to give adequate primacy to the environment thus reducing their capacity, dampening available responses, to
24 Collins, above n 7, at 3-4.
25 Above n 2 at 46.
26 “The Oslo Manifesto” (21 June 2016) <www.oslomanifesto.com> at 4.
27 Bosselmann, above n 1, at 479.
28 Resource Management Act 1991, s 17(1).
29 Above n 2, at 4.
30 Above n 2, at 5-6.
31 Howe, above n 23, at 44.
harm. Assessment of whether a rearrangement of those priorities, or further, a re-formation of the legal systems that label and order them (or even further, a re-imagining of what “law” and its purpose is), is necessary.32
Sbert consolidates some other more general “fundamental problems” of environmental law, they are:
(1) “Nature is self-regulating and complex; we cannot influence the laws of nature”; (2) “Many environmental problems are invisible”; (3) “Many environmental problems are marked by uncertainties”; (4) “Nature cannot itself act legally; nature, the environment, does not itself have a voice in decision-making”; (5) “Many environmental goods and services are public goods in the economic sense”; (6) “Environmental values—and environmental harms—are difficult to price correctly in decision-making”; (7) “The problem of ‘the small decisions paradox’”; (8) “Many environmental problems cross economic and social sectors both in their causes and their effects”; (9) “The most serious environmental problems cross administrative borders”; (10) “Many environmental effects are long term”; (11) “Corruption”; and (12) “Plurality of values and complexity in decision-making”.33
The following chapters will discuss some of the broad systemic and theoretical issues that exist within environmental law along with some of the responses of ecological law. Many of the principles within ecological law have come from observing “problematic assumptions” and measurable holes in environmental law in specific contexts.34 So, isolating and defining a full and common framework for ecological law across scholarship is difficult considering its contextual nature.35
What is a principle of ecological law?
Collins suggests that environmental law ought to be re-imagined as ecological law, because contemporary environmental law regimes are “wholly inadequate when assessed against the
32 Above n 2, at 15.
33 Above n 2, at 15 note 75, citing Hans Christian Bugge “Twelve Fundamental Challenges in Environmental Law,” in Christina Voigt (eds) Rule of Law for Nature: New Dimensions and Ideas in Environmental Law (Cambridge; New York: Cambridge University Press, 2013) at 9–21.
34 Michael M'Gonigle and Paula Ramsay “Greening Environmental Law: From Sectoral Reform to Systemic Re-Formation” (2004) 14(1) Journal of Environmental Law and Policy 331 at 335
35 Sbert, above n 2, at 5 and 77.
crucial parameter of sustainability”.36 Broadly speaking, “a principle of ecological law is ... a statement of a core value to guide behaviour toward the objectives of ecological law”. These objectives, it is argued, can be “summarized as: (1) constraining the economy within ecological limits, (2) restoring ecological integrity, and (3) enabling an ecologically just society or mutually enhancing human–Earth relationship”.37 However, as will be shown, effecting these principles may require external support from the wider legal system, constitutional framework, governance and its institutions to be effective.
A wide incorporation of ecological law would certainly mark radical change not only in environmental law as a specific field, but in whole systems of law.38 To this point, environmental law has resisted a radical shift – to address the “root” or social, behavioural, drivers of environmental issues – instead aiming to achieve sustainability “by tinkering at the margins of existing social, economic, and legal systems”.39 This reactionary symptom-treating, tinkering is called “The Marginal Fallacy” by Bratspies. 40
Development of ecological law to ecological constitutionalism
The development of ecological law, as a response to environmental law’s challenges and the resultant ecological crisis, has led to the development of ecological constitutionalism as the vehicle for the true recognition of ecocentrism – and a requirement of holism – within ecological law.41 As Boyd writes:
Nature is not merely a commodity for humans to exploit but rather an extraordinary community to which we are blessed to belong... Humans, like all forms of life, require a healthy bio- sphere to survive, prosper and flourish. Ecological constitutions, by recognising scientific reality, offer one of humanity’s last, best hopes for overcoming our self-destructive hubris and securing a sustainable future.42
36 Collins, above n 7, at 3.
37 Sbert, above n 2, at 73.
38 Above n 2, at 16.
39 Above n 2, at 73.
40 Rebecca M Bratspies “Sustainability: Can Law Meet the Challenge?” (2011) 34(2) Suffolk Transnat’l LR 283-317 at 292
41 Sbert, above n 2, at 4.
42 David Boyd, writing in the Preface for Collins, above n 7, at xi.
Constitutionalising ecological law is necessary to achieve movement from the “growth paradigm”43 and to be genuinely ecological in its approach, scope, and application. Constitutionality impacts ecological law’s ability to affect structural change to best meet ecological objectives. Constitutional or supreme law is also widely applicable, with the potential to restrict; so, shape social behaviour and guide exercises of public power from all sectors of society.
Given our context of both global and local environmental degradation, producing more positive environmental outcomes should be the only requisite justification for ecological law and its application through ecological constitutions. In 2012, “at least 92 countries included an individual right to a healthy environment” in their law – regardless of the human right to a healthy environment being categorically anthropocentric, objectifying nature and tethering its right to be healthy to human use, Boyd’s research showed “environmental outcomes or performance in those countries with such constitutional provisions are superior to those without”.44 Still, now ten years on from his research, planetary boundaries continue to be crossed and the natural world degraded. The broader justification for a radical shift from environmental law today beyond current tinkering is found in the ineffectualness of our contemporary approach.
Boyd’s findings, that constitutionalised environmental rights (even in an inadequate form) do produce more positive environmental outcomes, carry weight. It follows that forming constitutions with better ecological principles and protections – aligned with the outlined principles of ecological law – should produce better outcomes, for both people and the natural world, than ones formed on less-than-ideal protections.
Contemporary constitutionalism in Aotearoa
Discourse surrounding constitutional transformation in Aotearoa has long been brewing. Scholarship is flush with proposals for, and discourse about, constitutional change. The recent
43 Sbert, above n 2, at 46.
44 Chris Jeffords “On the relationship between constitutional environmental human rights and sustainable development outcomes" (2021) 186 Ecological Economics 107049 at 3 citing Boyd.
passing of Queen Elizabeth II has given fresh contextual relevance to the discussion of whether a shift to a republic of Aotearoa ought to occur.45
Generally, a written constitution will contain a nation’s fundamental laws and may give them supremacy over laws from any branch of government.46 The bulk of written constitutions theoretically exist to attribute coercive power to the State, to define and restrict that power, so as to provide societal stability through government.47
In Aotearoa, sovereignty resides in Parliament, rather than in the people via a written constitution. Select enactments of Parliament are still considered foundational “and hence lie at the heart of the constitution understood in a broad sense.”48 Allan considers the Constitution Act 1986, New Zealand Bill of Rights Act 1990, Reserve Bank of New Zealand Act 1989, Fiscal Responsibility Act 1994, Electoral Act 1993, and the Treaty of Waitangi as the sources that may represent a “quasi-written constitution” in Aotearoa.49 Bulmer defines the United Kingdom constitutional context, similar to ours in Aotearoa, as a “constitutional order” distinct from traditional, written, constitutional contexts.50
Palmer and Knight sketch a more layered vision of Aotearoa’s current constitution (or “constitutional order” as Bulmer calls it51): an amalgam of principles and conventions, backed by legislation. They are: (a) representative democracy, (b) legislative supremacy, (c) Sovereign’s obligation to act on ministerial advice, (d) collective Cabinet responsibility, (e) individual ministerial responsibility, (f) public service neutrality and loyalty, (g) Rule of Law and judicial independence.52
Democracy is the “underlying principle” of Aotearoa’s unwritten constitution and is maintained by majority trust in, and reliance on, the Government as a protector of rights and
45 Giles Dexter, Anneke Smith, Katie Scotcher “Queens death reignites discussion over constitution and Te Tiriti” (17 September 2022) RNZ < www.rnz.co.nz> and Andrew Geddis and Sarah Jocelyn “How a passive, avoidant NZ can become a republic” (16 September 2022) NewsRoom < www.newsroom.co.nz>.
46 James Allan "Why New Zealand Doesn't Need a Written Constitution." (1998) 5(4) Agenda 487-494 at 491 47 Martin Edelman "Written constitutions, democracy and judicial interpretation: the hobgoblin of judicial activism." (2008) 68 Alb L Rev 585-596 at 587.
48 Allan, above n 46, at 491.
49 At 491-493.
50 William Elliot Bulmer Westminster and the World (Cambridge University Press, Cambridge 2020) at 41.
51 At 41.
52 Matthew Palmer and Dean Knight The Constitution of New Zealand: A Contextual Analysis (Hart, Oxford, 2022) at 5.
interests as well as a solver of issues.53 Palmer and Knight identify “egalitarianism, faith in authority, fairness and pragmatism” as constitutional norms that “pull in contradictory directions” and shape Aotearoa’s constitutional “culture”.54
Palmer and Knight argue that “[i]ncremental reform has been a key aspect of New Zealand’s constitutional tradition” and pushing the boundaries of “pragmatic tinkering” with Aotearoa’s constitutional framework is unlikely to garner public approval.55 Flexibility is often cited as a benefit for an unwritten constitution56 yet, this constitutional flexibility has clearly not produced adaptable and effective environmental governance. Statistics (from the Intergovernmental Panel on Climate Change Assessment Report 6) suggest that these boundaries need to be pushed – contemporary constitutional arrangements have not produced ecological law or positive ecological outcomes in response to environmental harm. Further, far more than pragmatic tinkering in response climate breakdown is necessary is to achieve Collins’s ecological constitution and shift to an ecological paradigm.57
The tendency of decision makers to prefer incremental (not radical) change in environmental law has been noted by commentators and evidenced in organisational reporting.58 Bratspies’s idea of “marginal” tinkering with environmental law compounds with Palmer and Knight’s position that “pragmatic tinkering” around constitutional change in Aotearoa is favoured. A shift is needed – neither environmental nor ecological constitutionalism is a new proposition, but degradation is ongoing, and change now well overdue.59
Current proposals for constitutional change in Aotearoa
Three current proposals for constitutional change in Aotearoa will be discussed and evaluated with an ecological lens in this dissertation. It is first helpful here to set out the basics of the three selected proposals in brief.
53 Palmer and Knight, above n 52, at 5.
54 At 5.
55 At 247.
56 Pavlos Eleftheriadis “Two Doctrines of the Unwritten Constitution” (2017) 13(3) European Constitutional Law Review 525-550 at 544.
57 Above n 7 at 118 – 119.
58 Kati Kulovesi and Sebastian Oberthür “Assessing the EU’s 2030 Climate and Energy Policy Framework: Incremental change toward radical transformation?” (2020) 29(2) RECIEL 151-166 at 164.
59 Somerville, above n 10, at 21.
Sir Geoffrey Palmer & Andrew Butler’s Proposal for a Constitution for Aotearoa New Zealand
Palmer and Knight, without offering clear support for either, set out two proposals for constitutional change in Aotearoa: the first from Palmer and Butler, the second from MM (an independent working group). Palmer and Butler’s is considered the “leading blueprint” and is centred around what would need to be in a written/entrenched constitution.60 While Palmer and Butler’s proposal may have collateral environmental benefits, it is clearly not its purpose. Palmer and Butler’s proposal is summarised by Palmer and Knight as:
There is a question as to what rights would be included in Palmer and Butler’s hypothetical entrenched bill of rights. But, the proposal does include “an environmental right” as follows:
(1) Everyone has the right—
(a) to an environment that is not harmful to their health or well-being; and
60 Above n 52 at 244.
61 Above n 52 at 243.
(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that—(i) prevent pollution and ecological degradation:
(ii) promote conservation and biodiversity:
(iii) secure ecologically sustainable development and the use of natural resources in a manner that is managed to maintain the equilibrium of the environment:
(iv) include kaitiakitanga, which is the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Māori in relation to natural and physical resources.
(2) The Commissioner for the Environment may, if the Commissioner considers it appropriate to do so,—
(a) conduct litigation to safeguard the rights contained in this Article:(b) intervene in litigation in which issues relating to those rights are raised.62
It can be shown that the configuration of this right is anthropocentric, reflective of failing environmental law systems. Further ecological rights may hypothetically be included but none exist now in the New Zealand Bill of Rights Act 1990.
Dr Royden Somerville KC proposal to constitutionalise the proposed Natural and Built Environments Act
Royden Somerville argues that now “is an opportune time to incorporate environmental constitutionalism into the resource management law reform project”.63 Somerville’s proposal consists primarily of elevating the proposed Natural and Built Environments Act (NBA) to “constitutional” status in combination with some additional suggestions to “strengthen the scheme of the proposed NBA to reflect its eco-constitutional law status”.64 Somerville’s proposal is not for an entrenched ecological constitution, rather it would give the NBA status similar to other legislation with “constitutional status” for example, “the Treaty of Waitangi Act 1975, the Constitution Act 1986 , the New Zealand Bill of Rights Act 1990, and the Human
62 Geoffrey Palmer “Can Judges Make a Difference? The Scope for Judicial Decisions on Climate Change in the New Zealand Domestic Law” in Costi & Renwick (eds) In the Eye of the Storm–Reflections from the Second Pacific Climate Change Conference (SPREP, University of Wellington and NZACL, 2020) 107 at 121.
63 Somerville, above n 10, at 21.
64 At 26.
Rights Act 1993”.65 The NBA would be regarded as an important statute in constituting law in Aotearoa but would still be ordinary legislation.
The purpose of the NBA is set out in Part 2, clause 5 which states:
(1) The purpose of this Act is to enable—
(a) Te Oranga o te Taiao to be upheld, including by protecting and enhancing the natural environment; and(b) people and communities to use the environment in a way that supports the well-being of present generations without compromising the wellbeing of future generations.
(2) To achieve the purpose of the Act,—
(a) use of the environment must comply with environmental limits; and(b) outcomes for the benefit of the environment must be promoted; and
(c) any adverse effects on the environment of its use must be avoided, remedied, or mitigated.
(3) In this section, Te Oranga o te Taiao incorporates—
(a) the health of the natural environment; and(b) the intrinsic relationship between iwi and hapū and te taiao; and
(c) the interconnectedness of all parts of the natural environment; and
(d) the essential relationship between the health of the natural environment and its capacity to sustain all life. 66
Te Oranga o te Taio prima facie encapsulates some intrinsic rights of nature. Furthermore, clause 8 of the NBA requires a list of “environmental outcomes” are “promoted” while clause 8(b) specifies “ecological integrity” as such an outcome. Clause 9(1) mandates a national planning framework and clause 11 attributes the framework/policy regulatory status. Clause 12(1) and clause 13(1) allow for the prescribing of “environmental limits” and require directed outcomes within the national planning framework, respectively.
65 At 21-22.
66 Natural and Built Environments Bill: Government Bill (New Zealand Government 29 June 2021) (my emphasis).
Somerville supports the ecological idea that “ecocentric-based rights should be accorded to nature, as a rule of law”, so that nature has “the inherent right to defend itself from harm”.67 Accordingly, he proposes that, in tandem with elevating the NBA’s status, an “additional risk management framework process provision... that recognises the rights of nature” be included. The framework would “provide of the appointment of guardians” over the “natural environment” whose scope of duty “would be restricted to the health and well-being of the natural environment governed by the laws of nature”.68
In addition, Somerville suggests the Environment Court should be elevated to the High Court level, while remaining specialist (in its jurisdiction). Further, he argues Environment Court judges should be appointed as members of the judiciary “pursuant to the Constitution Act 1986 and the Senior Courts Act 2016” and “should preside in a Natural and Built Environment’s Division.” He suggests elevated Environment Court status would better “[reflect] the significance of the existential threats and the complexity of the issues”.69 Indeed, perhaps an elevated Environment Court would better reflect the gravitas of the climate crisis, but this would not be to the extent of giving it primacy in the Court hierarchy or giving it power to strike down legislation.
Matike Mai’s Proposals
MM make the most compelling proposition for constitutional change in my view. MM are an independent working group established by the Iwi Chairs Forum currently chaired by Margaret Mutu (having been convened by Moana Jackson). Their report argues for constitutional transformation (in the “radical” sense) through six models – all of which exist outside of the “current Westminster constitutional system”.70
MM’s models vary slightly between each other but are all based on Te Tiriti o Waitangi. Critically, each entails a reconfiguration of core law-making institutions. Three models suggested are “tricameral or three sphere”. In these models, one sphere could be an “Iwi/Hapū assembly (the rangatiratanga sphere)”, another “the Crown in Parliament (the kāwanatanga
67 At 23.
68 At 26.
69 At 29.
70Palmer and Knight, above n 52, at 244.
sphere)” and then a final “joint deliberative body (the relational sphere)”. 71 One “multi-sphere model” is suggested:
consisting of an assembly of Iwi/Hapū and other Māori representation (the rangatiratanga sphere) and the Crown in Parliament (the kāwanatanga sphere). It also includes a relational sphere which would have two parts – a constitutionally mandated set of direct Iwi/Hapū -Crown relationships to enable direct Iwi/Hapu-Crown decision-making, plus a unitary perhaps annual assembly of broader Māori and Crown representation.
A two-sphere model similar to the above, without the relational sphere, is put forward too. Contrastingly, one “unicameral or one sphere model” (“consisting of Iwi/Hapū and the Crown making decisions together in a constitutionally mandated assembly”) which consists only of the “relational sphere” and “does not have rangatiratanga or kāwanatanga spheres”.72 This institutional character is a critical component of the proposal and important to discussions about ecological law, as I explain in chapter four. A clear mandate for tikanga Māori in the law-making process may help a shift towards ecological law.
It is difficult to fully appreciate the degree of legal and jurisprudential transformation entailed in a wholesale constitutional transformation as proposed by MM through a European lens.73 Traditional positivist views, of law being sourced solely from “centralised state institutions”, cannot properly recognise the values of Tikanga which have “flown down” (like positivist law) through the Māori legal tradition (MLT), order, system, principles and law, because “tikanga emerges from the community”.74 Moreover, many of the conceptual tensions between eco- centricity, which we must move toward, and the anthropocentricity of the current (Westminster) constitutional model may be resolved, reconciled, or avoided all together with Māori jurisprudence, as I discuss in chapter four.75
71 The Report of Matike Mai Aotearoa – The Independent Working Group on Constitutional Transformation
(2017) at 104 -105.
72 At 105.
73 Selwyn Hayes “Defining Kaitiakitanga and the Resource Management Act 1991” (1998) 8(3) ALR 893-905 at 893 and Joseph and others, above n 9, at 10-12.
74 Metiria Stanton Turei “The Visual Literacy of Māori Law” (LLM thesis, University of Otago, 2021) at 33 and 35-36.
75 Joseph and others, above n 9, at 30.
Conclusion
This chapter has aimed to set the scene of a progressively harmed environment, the fundamentals of ecological law and its principles – and so the argument for ecological constitutionalism – and then map some current proposals for constitutional change in Aotearoa. The following chapters will seek to add further “layers” of complexity to the discussion of ecological law by reference to contemporary environmental and constitutional law and rights. Reference to these proposals will be made throughout this dissertation for two reasons. One, to underline the more crucial elements for impactful ecological law through an “ecological constitution”. Two, for consideration as to whether the proposals themselves constitute an “ecological constitution” and, if not, whether they would have the capacity to be one.
Chapter 2: The need for clear ecological principles – a first layer to ecological law
What then makes a principle “ecological” for the purposes of ecological law? Sbert proposes that three key principles, not meant as an “exhaustive list” and only as “tentative contributions” to ecological law’s “evolving theory”, form “the lens of ecological law”.76 They are: “ecocentrism, ecological primacy, and ecological justice”.77 Other important principles (“Democracy, Nonviolence, and Peace” for example, that are present in the Earth Charter) are not featured here not to subjugate their importance but because they are not an express:
principle that states a core value that guides behaviour towards ecological law’s objectives of constraining the economy within ecological limits, restoring ecological integrity, and enabling an ecologically just society or mutually enhancing human–Earth relationship.78
Sbert acknowledges, in configuring her principles, that authors of Earth jurisprudence or Wild law discuss similar yet slightly different principles to her, but that theirs are generally aimed at building an ecological law framework “rather than at serving as analytical tools” for critical legal analysis.79 Principles “should: (1) be normative rather than descriptive [and] (2) reflect one or several values that are critical to ecological law as an alternative to environmental law” so as to allow them to act as a check on supposed ecological law.80 Law that is not aligned with these principles will not be genuinely ecological.
Certain types of laws, including rights, will work better towards ecological outcomes than others but ecological laws will not be impactful in isolation. In her book, The Ecological Constitution, Lynda Collins describes at various stages an “ecological constitution’” as containing:
76 Above n 2, at 77.
77 At 77.
78 At 77-78.
79 At 77.
80 At 78.
Collins argues for the ““ecological transformation” of domestic constitutions in order to align the highest forms of domestic law with the non-negotiable laws of nature”82 so as to meet ecological law’s “aims to constrain the economy within ecological limits”.83 Such a shift will, of course face some well-established theoretical and real-life challenges.
Anthropocentrism and a paradigm of separation from nature in Environmental Law
It is key that ecological rights are born from an ecological, rather than anthropocentric perspective and that the environment is viewed as it is in reality – as a whole.
Philosophical Roots of “separation”
Tension is inherent between environmental law’s (Western) philosophy and the ecological idea that “the source of the law is the land, nature itself” – instead, environmental law conceptualises separation and dominium over nature.84 One of the core differences between theoretical ecological law and contemporary environmental law is that ecological law denotes rights where nature as a whole is the subject and bearer of rights (humans are included in this), while the latter separates then objectifies nature relative to the human subject bearer of rights.85
81 Boyd, writing in the Preface for Collins, above n 7, at x.
82 Above n 7, at 2.
83 Sbert, above n 2, at 61.
84 Sbert, above n 2, at 56.
85 Geoffrey Garver “The Rule of Ecological Law: A Transformative and Institutional Framework for the Human-Earth Relationship” (Master of Laws thesis, McGill University, Montreal, 2011) at 84.
This traditional Western view of nature is anthropocentric.86 Proponents of ecological law would not separate nature but consider “‘nature or the natural world”’ as including “all biotic and abiotic life” and seek to “locate humans as part of nature, no separate from it”.87 Moreover, the human separation from nature and land, allows for humanity to provide itself as its own source of law rather than conceptualising the land as the ultimate source of law and its boundaries.88
Bosselmann argues that ideas of separation are two-fold: first, “humans are perceived as being separate from nature” while “Nature is ‘the other’” and second, nature is “only noted in its segments” – animals (usually totally separated from land) “plants, landscapes, water, air, etc”.89 People are at the centre of this imagined separation and “nature’s value is seen in terms of its human benefit; its value lying in its role as a resource” and capacity to improve human quality of life.90
The first aspect of this separation is between people and, the other, nature (the second being the fragmentation of nature into parts). Bosselmann calls the governing legal curricula, promoting the separation of the “world of ecologies” and the human “world of economies”, “absurd” and indicative of a “paradigm of separation”.91 For Cullinan, this separation paradigm represents the “core falsehood” permitting the ongoing ineffectiveness of environmental law – that “humans are separate from the environment”92 – in reality, environmental issues are human issues too.93 In other words, “polluting the river is no different to slashing your arm, it’s fundamentally self-defeating, self-harming, and misguided”.94
Further separation – Environmental Law’s fragmentation of nature from nature and the holism of Ecological law
86 Collins, above n 7, at 3.
87 Howe, above n 23, at 21 (my emphasis).
88 Sbert, above n 2, at 56, 60, and 61.
89 Above n 1 at 479.
90 Howe, above n 23, at 22.
91 Above n 1, at 481.
92 Cormac Cullinan Wild Law: A Manifesto for Earth Jurisprudence (2nd Ed, Siber Ink, Cape Town, 2011 at 44.
93 Robin Attfield “Environmental Problems and Humanity” in Environmental Ethics: an overview for the twenty-first century Cambridge UK Polity Press (2003) at 2-3.
94 Cormac Cullinan “Cormac Cullinan: the philosopher of wild law” (2014) Kanopy <www.kanopy.com> at
11:40.
Western understandings of land and property that manifest in domestic legal systems are not “ecological” in and of themselves. Brower and Page refer to property rights as “tool[s] designed to enable exploitation of natural resources” that do not reflect the interconnected, ecological, reality of land and the environment.95 As Barham puts it: “Ecology is, above all, a theory of interdependence ... a picture of how things work as a system rather than as discrete components.”96 Lacunae exist between what we understand the natural world – its ecosystems and internal processes – as needing, and what we provide for it.
Bratspies’s second fallacy (responsible for environmental law’s failings), that environmental issues can be “splintered” into “discrete pieces” also contributes to the law’s capacity to respond to issues (“the Splintered Fallacy”).97 A holistic approach in law, not a splintered one, is necessary to reflect ecological reality that the law needs to recognise so as to adapt to dynamic biodiversity and climate issues.98
For Milne, holism is the “coherence and internal consistency represented by the element of openness, and its complement closure, as a frame for understanding ... subject identity through relationship and mutual contextualization”.99 Proper “openness”, and its incorporation into law, is key to the full recognition of environmental problems and possible response.100 Openness is unavailable in Aotearoa – decision-making bodies must assess and respond to environmental issues through parameters, set by law, that do not mandate (or allow) Milne’s level of openness. Holism could guide responses to environmental problems; where appropriate, “closure” requires the “grounding of economic, environmental and social aspects in material and energy budgets”. 101 The range of suitable strategic responses to environmental challenges in the dairy industry may be gauged differently if “thermodynamic verisimilitude [were] a requisite in the selection of strategic alternatives for sustainable development”.102 In law, “openness” could look like a broad principled approach in the context of assessing and responding to activities
95 Ann Brower and John Page “Property Rights across Sustainable Landscapes: Competing Claims, Collapsing Dichotomies, and the Future of Property” in David Grinlinton and Prue Taylor (ed) Property Rights and Sustainability (Brill, 2011) 305-321 at 306.
96 Elizabeth Barham "Ecological boundaries as community boundaries: the politics of watersheds." (2001) 14(3) Society and Natural Resources 181-191 at 182.
97 Bratspies, above n 40, at 292.
98 Sophie Adams “The pragmatic holism of social-ecological systems theory: Explaining adaptive capacity in a changing climate” Progress in Human Geography vol 45(6) 1580-1600 (2021) at 1583.
99 Above n 3, at 554.
100 Milne above n 3, at 554.
101 Milne, above n 3, at 561.
102 Milne, above n 3, at 561.
with a recognised or potential environmental impact. Openness would then require tethering to the nine recognised planetary boundaries (at minimum), so as to be sufficiently “closed” or “grounded”.
Despite a balancing process (and some belief that this is holistic103) the “overall broad judgment” approach, employed under the RMA in Aotearoa, is not holistic according to Milne’s definition. This approach sees decision-makers balancing the (likely competing) matters in the RMA, ss 5, 6, 7, and 8 and making an overall broad judgment to allow, or not to allow, the use or development of land, air or water. The “overall broad judgment” approach is “open” only to recognition of the problem insofar as Part II, of the RMA, allows. Further, the breadth of matters considered within Part II is “closed” by (or grounded in) orthodox principles of statutory interpretation.104 A truly holistic approach is not achieved despite good intentions and the law, in application, so is far from ecological.
I refer to examples in both global and domestic law to further illustrate the breadth and depth of anthropocentric principles in contemporary environmental law. A shift to principles ecological law can be argued for largely on the basis that these anthropocentric principles have failed.
Recognition of harm, and challenges, in International Law
Human environmental rights and obligations began to garner formal international recognition in 1972 after the United Nations Environment Programme (“UNEP”) Stockholm Conference produced the Stockholm Declaration, its first principle states:
Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.105
103 Tracy D Hester “Green statutory interpretation by environmental courts and tribunals” (2017) 29 ELM at 5. 104 Part II contains ss 5, 6, 7, and 8. The sections contain, respectively, the RMA’s: “purpose”; “matters of national importance”; “other matters”; and “Treaty of Waitangi” considerations.
105 Above, n 12, at principle 1.
Clearly this formulation is anthropocentric, not ecocentric, in its focus. Moreover, the right to an environment is tied to the individual, rather than the group. By contrast, the African Charter on Human and Peoples’ Rights (1981) provides that “[a]ll peoples shall have the right to a general satisfactory environment favourable to their development”106and so, unusually, confers the (human) right to an environment to a group, rather than individuals, but remains anthropocentric. The African Charter, in plain language, isolates and separates people from the nature.
The World Commission on Environment and Development’s Our Common Future report (1987) (the Brundtland Report) followed a similar approach. The Brundtland Report was published by the World Commission on Environment and Development (the Brundtland Commission) and is focussed on the idea of “sustainable development” (SD). SD, “[r]ooted in anthropocentrism”,107 has ultimately been ineffective in achieving its (well-intentioned) purpose of protecting nature.108
The Brundtland Report states that “[s]ustainable global development requires that those who are more affluent adopt life-styles within the planet's ecological means”.109 Still, anthropocentrism is maintained in describing SD as “not a fixed state of harmony, but rather a process of change in which the exploitation of resources... and institutional change are made consistent with future as well as present needs”.110
The Rio Declaration on Environment and Development (1992) recognises the presence of global environmental declaration and proclaims that “[h]uman beings are at the centre of concerns for SD. They are entitled to a healthy and productive life in harmony with nature”.111 Human-nature separation and human orientation is plainly made-out and is barely fettered by being in “harmony” with nature. Moreover, Agenda 21 further promotes this anthropocentric separation from, then domination of, nature in providing for the “integration of environment
106 Art 24.
107 Yann Aguila and Jorge E. Viñuales A Global Pact for the Environment-Legal Foundations (University of
Cambridge, C-EENRG report, 2019) at 44.
108 Klaus Bosselmann “Property Rights and Sustainability: Can They be Reconciled?” in David Grinlinton and Prue Taylor (ed) Property Rights and Sustainability (Brill, 2011) 23-42 at 35,
109 World Commission on Environment and Development Our Common Future (1987) at [29].
110 At [30] (my emphasis).
111 Rio Declaration on Environment and Development A/Conf/151/26 (1992), principle 1.
and development concerns... better protected and managed ecosystems and a safer, more prosperous... global partnership for sustainable development”.112
Rights to information about environmental harm, to supplement substantive environmental goals, have also been internationally recognised within the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998) (the Aarhus Convention). Aotearoa is not a party to the Aarhus Convention which contains procedural environmental rights, focussing on “access to information, public participation in decision making and access to justice in environmental matters”.113 Notably, research has shown a tangible connection “between having a procedural environmental right to information and environmental justice outcome”.114 In Aotearoa, the Official Information Act 1982 regulates access to information. While the Aarhus Convention mandates the release of information about environmental harm (including corporate harm) to those that may be impacted115, the Act does not apply to the private sector and conversely provides several reasons why such information may not be disclosed (such as, where it would disclose a “trade secret”116 or if a disclosure would “damage seriously the economy”117). Likewise, the RMA can protect commercially sensitive information from public disclosure.118
The Earth Charter (2000) specifically recognises ecological integrity and requires “sustainable development plans” are adopted.119 The intrinsic value of nature is recognised, in principle, relating to the interdependence of “all beings”120 and the importance of intergenerational equity is captured.121 The Earth Charter arguably conceives less rigid separation in the human-nature sense, but still clearly separates nature into constituent parts to treat symptoms of environmental harm – select “reserves”, “wild lands”, and “marine areas” are safeguarded to allow for location-specific changes in practice, so as not to affect development practices wholesale.122
112 Agenda 21: Programme of Action for Sustainable Development A/Conf/151/26 (1992) at 1.1.
113 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (signed 25 June 1988, entered into force 30 October 2001), art 1.
114 Jeffords, above n 44, at 3.
115 Article 5(1).
116 Section 9(2)(b).
117 Section 6(e).
118 Section 42(1)(b).
119 Earth Charter Commission “The Earth Charter” (29 June 2000) <www. earthcharter.org>, arts 5a and 6.
120 Part I, art 1.
121 Part I, arts 1 and 4.
122 Part II art 5B.
For nearly 50 years international environmental law and declarations have recognised, and failed to prevent, environmental harm resultant from a post-industrial reign of untethered global development. Countries overseas have also recognised the importance of protecting the environment from harms resultant from development.
Constitutionalised environmental rights abroad
Environmental rights have found footing in domestic constitutions overseas. Norwegian politician Gro Harlem Bruntland chaired the Bruntland Commission. The Constitution of the Kingdom of Norway 1814 states that:
Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations ... for future generations as well. ... citizens are entitled to information on the state of the natural environment and on the effects of any encroachment on nature that is planned or carried out.123
In Norway’s Constitution, environmental protection is clearly tied to the human subject, rather than to nature itself, which is categorised as an exploitable “resource”.Similarly, Germany also recognises constitutional-level environmental rights: the Basic Law for the Federal Republic of Germany states that the state, “[m]indful also of its responsibility towards future generations... shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order”.124 It would be difficult to find a more anthropocentric framing of an environmental right – nature is both objectified to the human subject, then splintered, and limited by the human framework of constitutional order.
123 Article 112 (my emphasis).
124 Article 20a (my emphasis).
South Africa’s constitution once garnered “[m]uch attention” due to an impressive “commitment to human rights”125 but it contains environmental protections too. The Constitution of the Republic of South Africa 1996 states that:
Everyone has the right— (a) to an environment that is not harmful to their health or wellbeing; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that— (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.126
Nature is still the object, denoted as “natural resources”, but ecological integrity is recognised to an extent. The wording here could then be argued as being less anthropocentric than the Norwegian and German formulations.
The human-nature separation is widely conceived internationally. A shift to ecological law would be difficult to achieve if an anthropocentric conception of nature were reinforced, as would occur if such rights were incorporated into a written constitution in Aotearoa.
People are plainly not bound to conceptualise themselves as separate from the natural world by their nature or psychology, so, a shift from this paradigm is possible. Many Indigenous world views do not conceptualise such separation and instead “ecological integrity is at the heart of ... systems governing interactions with nature”.127 In Aotearoa, the Māori world view emphasises the interconnectedness of all things.128 Still, “[e]ven in non-Indigenous Western thought, the idea of human separation from (and dominion over) the natural world is a relatively new phenomenon.”129 Giving effect to MM’s transformational proposals, may encourage, catalyse, or even represent, a shift from this separation paradigm towards an ecological one. This will be further discussed in the chapter four.
Ecological law will require a constitutional shift from anthropocentric to ecocentric principles.
125 Geoffrey Palmer "The Hazards of Making Constitutions: Some Reflections on Comparative Constitutional Law" (2002) 27 VUWLR at II.
126 Constitution of the Republic of South Africa 1996, ch 2 s 24.
127 Howe, above n 23, at 32.
128 Collins, above n 7, at 65-66; MM, above n 72, at 81-82; Joseph and others, above n 9, at 9; Hayes, above n 73, at 893.
129 Collins, above n 7, at 66.
Moving to an ecocentric grundnorm and toward Ecological law
In shifting from the anthropocentric view clearly manifest in environmental law (such as the constitutions discussed above), it is crucial, Bosselmann puts forward, that the law realises ecological realities and behaviour has grounding in an eco-centric “grundnorm”:
A grundnorm [is] a basic norm to bind governmental power in the same sense as the rule of law is generally perceived as a basic norm to bind governmental power. This understanding differs from Kelsen’s definition and is closer to Immanuel Kant’s: argument that any positive law” must be grounded in a “natural” norm of general acceptance and reasonableness.
The first step is to recognize the reality of a complex Earth system ... recognition of planetary boundaries sets a non-negotiable bottom-line for human activities. More particularly, and in the context of the concept of sustainable development, it demands a hierarchical order of its element’s ‘environment’, ‘economy’ and ‘society’: ecological integrity has priority and sets the parameters for social and economic development.
The second step is to integrate responsibilities for ecological integrity into the design and interpretation of laws governing human behavior. International law and municipal law alike need to incorporate ecological sustainability as a fundamental norm or grundnorm. ...the physical reality of a finite planet ... require[s] all social and legal norms to be informed by it. In this vein ... keeping within planetary boundaries and protecting the integrity of ecological systems are a fundamental requirement for all human actions. Surely, ecological sustainability has grundnorm qualities that any legal norm, including the rule of law, ought to respect.130
Bosselmann’s “grundnorm” recognises planetary boundaries as Collins suggests.131 The grundnorm also aligns with Cullinan’s stated principles regarding “the role of non-human members” of the Earth community and “a concern for reciprocity... dynamic equilibrium”.132 Moreover, the idea that ecological rights may limit human rights is not new – the European Court of Human Rights has found that environmental protection is a legitimate aim in
130 Above n 1 at 482 (my emphasis, footnotes omitted).
131 Collins, above n 7, at 2.
132 Above n 92 at 134-135.
potentially restricting rights such as those contained in article 8 (“the right to respect for his (sic) private and family life”) of the European Convention on Human Rights (1950).133
Constitutionalising ecological law, whether in the entrenched sense or not, would also involve a shift to ecological constitutional principles or ideas. The Rule of Law is, for example, a part of both written and unwritten “constitutions” and a “pillar” of democracy, but it is focused on people.134 Ecological law would require different “pillars” to support environmental governance and equitable access. A written constitution is simply a means of entrenching a new set of rules or principles, but not all principles are equal. Both the ecological substance and application of principles is critical to ecological law.
The United Nations Environment Programme through the Environmental Rule of Law: First Global Report (ERL Report) also sets out core elements of an “environmental rule of law” as: “fair, clear and implementable environmental laws”;135 “access to information, public participation”; 136 “accountability and integrity of institutions and decision makers”;137 “coordinated mandates and roles, across and within institutions”;138 “accessible, fair, impartial, timely, and responsive dispute resolution mechanisms”;139 “recognition of the mutually reinforcing relationship between rights and the environmental rule of law”;140 and, “specific criteria for the interpretation of environmental law”.141 The laws discussed in the ERL Report in reference to contemporary environmental law. So, although the ERL Report argues for a holistic application of its elements, the principles themselves are anthropocentric and fragmented, rather than holistic and ecological.
133 Guide to the case-law of the European Court of Human Rights (European Court of Human Rights Registry (20 April 2022) at 58.
134 Dylan Lino “The Rule of Law and the Rule of Empire: A.V. Dicey in Imperial Context” (2018) 81(5) The Modern Law Review) at 740.
135 United Nations Environment Programme “Environmental Rule of Law: First Global Report” (24 Jan 2019) at 20.
136 At 21.
137 At 21.
138 At 24.
139 At 25.
140 At 25.
141 At 26.
Garver discusses and argues for ten core features of a global worldview aligned with “rule of ecological law” which “combines the notion of ecological law with the notion of the rule of law” (that is, law that is genuinely ecological, applied to everything, everywhere).142
Within Garver’s rule, there are principles that could initially be incorporated domestically even if some require international coordination.143 Sbert summarises those points, I have included those principles relevant only to the domestic constitutional context:
Garver’s “Rule of Ecological law” provides a theoretical example of a non-anthropocentric constitutional norm or principle, and shares objectives similar to Bosselmann’s “grundnorm”145
– both could constitute a part of Collins’s ecological constitution. The common objectives across scholarship shape the developing principles of ecological law. An ecological constitution should give effect to principles of ecological law.
Ecological law may be undercut within a fragmented or splintered legal system
Even law that confers ecological rights may not be ecological in its scope. Fragmentation may occur within a legal system if only parcels of nature are conferred intrinsic rights. The advantage of constitutionalising ecological rights is that they may more readily be granted to the whole of nature without regulatory gaps. For example, the Te Urewera Act 2014 does grant some ecological rights with Te Urewera as the subject. The Act recognises some intrinsic, ecological, rights. Section 4(b) states that the purpose of the Act is to “establish and preserve” Te Urewera’s legal identity to preserve “the natural features ... of Te Urewera, the integrity of
142 Garver, above n 85, at 11.
143At 325–330.
144 Sbert, above n 2, at 70.
145 Bosselmann, above n 1 at 482.
its indigenous ecological systems and biodiversity, and... heritage”.146 The Act only extends rights to the parcel of Te Urewera and still operates within the RMA, so, although nature has its own subjectivity within a designated area, it is backdropped by objectification by the wider legal system. The Act “splinters” the environment and represents only “marginal” tinkering by arbitrarily restricting recognition of personhood to Te Urewera. No ecological boundary could be said to justify partial recognition of personhood but the broader objectification of nature outside of the Act’s scope – the boundaries set by law are purely anthropocentric even if the framing of the law is not.
Constitutionalising ecological rights in the natural world, developing its “personhood”, could prevent their parcelling or “splintering” by ensuring they apply to all of nature. Further, the existence of ecological rights would be more than “marginal” tinkering as systems would have to adapt practice to recognise nature’s status in law. In order to make law ecocentric, with an unpolluted aim to achieve ecological justice, ecological primacy will need to be ensured both high (as supreme law) and wide (across the whole system).
While the Te Urewera Act represents nature being fragmented by a legal system, two countries in particular have made efforts to ensure ecological principles are present and plentiful throughout their entire legal system: Bolivia and Ecuador.
Bolivia’s “Law of the Rights of Mother Earth”
Bolivia (Plurinational State of)’s Constitution of 2009 does not expressly recognise ecological rights but does aim for the construction of a “harmonious society” that pushes for “responsible” resource use and environmental protection.147 In 2010, however, Bolivia’s legislative assembly passed the Law of the Rights of Mother Earth with a state-wide scope148, ecological principles149, and rights attributed with nature as the subject.150 The laws apply to all nine of Bolivia’s departments.
146 The Te Urewera Act 2014, s 4.
147 Bolivia (Plurinational State of)’s Constitution of 2009, art 9.
148 Art 1.
149 Art 2.
150 Art7.
Ecuador & sumak kawsay
The Constitution of Ecuador (2008) in the preamble aims to build “[a] new form of public coexistence, in diversity and in harmony with nature, to achieve the good way of living, the sumak kawsay”. The Constitution’s second chapter contains “Rights of the way of good living”, including the “human right to water” and the personal and community group right to food.151 Article 14 recognises sumak kawsay and:
conservation, the protection of ecosystems, biodiversity and the integrity of the country's genetic assets, the prevention of environmental damage, and the recovery of degraded natural spaces are declared matters of public interest.
Article 14 protects intrinsic ecological rights. Article 15 appears to establish environmental bottom-lines requiring that the Ecuadorian government does not “detriment... food sovereignty” or the right to water in the interests of “energy sovereignty”. Then, expanding on this, article 15 states (my emphasis):
The development, production, ownership, marketing, import, transport, storage and use of chemical, biological and nuclear weapons, highly toxic persistent organic pollutants, internationally prohibited agrochemicals, and experimental biological technologies and agents and genetically modified organisms that are harmful to human health ... or ecosystems, as well as the introduction of nuclear residues and toxic waste into the country's territory, are forbidden.
Despite this, resource exploitation and threats to conservationists have continued to degrade the wider environment in Ecuador. Despite actualising movement for a constitution built around sumak kawsay, Rafael Correa’s government continually has had its “commitment to Earth jurisprudence ...thrown into question”.152 Ecuadorians in 2013 would have seen police raids ordered on the offices of a group that had loudly supported the rights of nature in the Constitution.153 Further, the International Court of Justice ruled that the Ecuadorian State
151 Section 1, art 12 and 13.
152 David Humphreys “Rights of Pachamama: The emergence of an earth jurisprudence in the Americas” (2017) 20 Journal of International Relations and Development 459-484 at 475.
153 Humphreys, above n 152, at 473.
government should have consulted with the local Sarayaku people prior to burying thousands of kilograms of pentolite, at multiple sites on Sarayaku territory, for oil extraction.154
Despite ecological law in place, Bolivia and Ecuador have still failed to halt an onslaught of environmental harm. Ecological law has been stymied in areas by conflicting law and at times misinterpreted for anthropocentric purposes.
Conclusion
This chapter has discussed the fundamental requirements of principles of ecological law by reference to challenges within contemporary environmental law and wider legal systems. The next chapter will serve discuss the importance of constitutional; supreme, status being given to ecological law.
154 Kichwa Indigenous People of Sarayaku v Ecuador (Merits, Reparations, Costs) IACHR Series C No 245, 27 June 2012, at 249.
Chapter 3: The requirement for supreme status – a second layer to ecological law.
A system of ecological law requires more than ecological rights granted to nature. Equally as important is that these rights are protected and not encroached upon (by misinterpretation or conflict with other, more anthropocentric, rights). The status of ecological law is important to its ecological application (being holistic) and function (being ensuring ecological primacy). Moreover, it seems that behaviour changes are more easily achieved when policy incorporation is “multifaceted” and instruments support an ecological purpose.155 Ecological principles with supreme status will be more widely and deeply influential.
Ecological principles need to be at the forefront of, and maintained in, law
Environmental protections exist in both international law and Aotearoa’s law, but have been tangential to the development of law through the “Great Acceleration” and have fallen short of being ecological.156 As described, environmental law globally has been characterised by fragmented, narrow and anthropocentric approach that is unsupportive of the interconnected reality of nature.157 The described international conventions and domestic constitutions do not mesh with the outlined theoretical principles of ecological law. There has been criticism of attempts to tinker in efforts to “green”, rather than challenge, capitalism’s systemic flaws within the same system.158
The most famous example of such tangential environmental protection is the modern legal idea of “sustainability” and its dilution to “sustainable development” (as in the Bruntdland Report) or “sustainable management” (as in the RMA). Sustainability has come to mean a balancing of interests. Without Garver’s “rule”/Bosselmann’s “grundnorm”, ecological primacy is not achieved by simple reference to sustainability.159
155 Hyunjung Ji "How Do Different Types of Local Governments' Sustainability Programs Relate to Their Environmental Outcomes" (2020) 48(4) Policy Studies Journal 1023-1053 at 1027.
156 The Oslo Manifesto, above n 26, at [2] – [4]. The “Great Acceleration” includes the characteristics, for example, “economic growth, population development and overconsumption” (at [2]).
157 Collins, above n 7, at 9 and The Oslo Manifesto, above n 26, at [4].
158 Humphreys, above n 152, at 475; Sbert, above n 2, at 64; M’Gonigle and Ramsay, above n 34, at 12 n 32.
159 Garver, above n 85, at 14.
SD is perhaps more readily criticised as a flawed aspect of environmental law, rather than a manifestation – or result – of environmental law’s systemic deficiencies. M’Gonigle and Ramsay note that “legal academics have begun to debate the merits of an environmental law “paradigm” that treats sustainability as a technical rather than systemic problem”. 160 They argue SD typifies environmental law, as “an especially ironic form of self-regulation that asks a benevolent state to regulate against its own long history of economic growth and expansion, and its own (self-conceived) self-interest”. 161 Nevertheless, SD is prolific in international environmental law, and has inevitably been absorbed into domestic law, including in Aotearoa.
A lack of primacy given to ecological principles in Aotearoa mandates a constitutional shift
In Aotearoa, it is argued that “[t]he underlying causes of poor [environmental] outcomes are wide ranging: the legislation, the ways it has been implemented and how the institutions are arranged”.162 The “legislation” contains diluted definitions of sustainability (sustainable “management”) and wider flaws of environmental law – the “pervasive influence of neoliberal ideologies” – are rife here, as elsewhere.163 Aotearoa’s legislation can be critiqued in more detail by reference to ecological principles.
Currently Aotearoa’s legal system is a long way from resembling the ecocentricity within Garver and Bosselmann’s proposals. The principles of our “amalgam”/constitutional backdrop164 do not yet resemble either Sbert’s ecological principles165 or the fundamentals of Collins’s ecological constitution.166
First, as discussed, sustainability is not a constitutional imperative in Aotearoa and its consideration is limited to when statute requires this expressly or by necessary implication.167 Bratspies argues, “[s]ustainability is a structural choice—one that involves reorienting the deep
160 At 10.
161 At 12.
162 RM Review Panel, above n 11, at 7.
163 MM, above n 72, at 82.
164 Palmer and Knight, above n 52, at 5.
165 Above n 2 at 73.
166 Above n 7 at x.
167 Similarly precautionary principles (in dubio pro natura) must be made out in statute to be applied and planetary boundaries will be recognised only so far as they are in legislation.
structure of ... law”.168 Second, human rights are recognised in law and must direct the interpretation of legislation, but are not limited by ecological realities unless these are prescribed in law and demonstrably justified..169 Third, intergenerational equity is recognised to an extent but, like sustainable management, only where relevant legislation so requires.170 Although Somerville argues that clause 5(1) of the proposed NBA is “about the goals of ecological and intergenerational justice”,171 rights of nature currently only exist within Aotearoa in specific areas of the environment and as allocated by statute.
In Aotearoa’s legislation, nature is defined as a resource. In Aotearoa, 18 Acts reference “sustainable management”, but only four define it. All four define it in a way that means that ecological interests are balanced against other interests, so that any “bottom lines” are negotiable despite the reality that planetary boundaries are not. The Forests Act 1949, amended in 1993 to include a sustainability regime for indigenous production forests, balances the need to maintain a forests’ ability to “provide a full range of products and amenities” with its “natural values”.172 The Fisheries Act 1996 balances the two competing priorities of utilisation of fisheries and sustainability.173 The Exclusive Economic Zone and Continental Shelf Act 2012 (“EEZA”) aims to “achieve a balance between protecting the environment and exploiting it for economic gain”.174 The RMA places restrictions on land use, subsection (1) specifically denotes no one may “use land in a manner that contravenes a national environmental standard unless the use – (a) is expressly allowed by resource consent”.175 The recognition of a bottom- line for land-use activities is open to negotiation through the resource consenting process that balances individual, economic, interests with environmental rights. The breadth of considerations in the consenting process has been characterised by the court’s “overall broad
168 Bratspies, above n 40, at 16.
169 For example, civil and political rights are protected under Part II of the New Zealand Bill or Rights Act 1990, however, may be subject to limitations under Part I.
170 RMA, s 5(2)(a).
171 Somerville, above n 10, at 8.
172 The Forests Act 1949, s 2.
173 Section 8 and New Zealand Recreational Fishing Council Inc and NZ Big Game Fishing Council Inc v Sanford Ltd and Others and the Minister of Fisheries and Another (SC 40/2008) [2009] NZSC 54 at [39].
174 Section 10(1)(a) and Trans-Tasman Resources Ltd v Tarankai-Whanganui Conservation Board and others
[2021] NZSC 127, [2021] 1 NZLR 801 at [241] per Glazebrook J.
175 Resource Management Act 1991, s 9(1).
judgment” approach.176 Bottom lines can be created but these need not necessarily be ecological, and this is the exception, not the rule.177
To further illustrate the lack of commitment to ecological limits in Aotearoa’s law, consider the following cases.
Greenpeace New Zealand Inc v Genesis Power Ltd178 (Greenpeace) concerned a proposal by Genesis Power Ltd (Genesis) to build an electricity generating plant fuelled by gas, resulting in discharge of greenhouse gases. In the Supreme Court, Greenpeace appealed the Court of Appeal’s declaration that “in considering the application ... the [consent authority] must not have regard to the effects of that discharge on climate change.”179 At issue was the correct interpretation of section 104E of the RMA:
When considering an application for a discharge permit or coastal permit to do something that would otherwise contravene [this Act], a consent authority must not have regard to the effects of such a discharge on climate change, except to the extent that the use and development of renewable energy enables a reduction in the discharge into air of greenhouse gases, either–
(a) in absolute terms; or(b) relative to the use and development of non-renewable energy.
Genesis’s argument was that s 104E means consent authorities can consider reductions in greenhouse gas discharges only for proposal involving the use of renewable energy and, since its application involved non-renewable gas, the authority was barred from considering that its proposal would not reduce in greenhouse gas emissions. Genesis argued that s 104E was “a factor which can be considered in favour of an application that it will use renewable energy,
176 Consider, for example, RJ Davidson Family Trust v Marlborough District Council [2019] NZRMA 289; [2018] 3 NZLR 283; [2018] NZCA 316; BC201861130 where the overall broad judgment approach was reconciled, by the Court of Appeal, with the Supreme Court decision of Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 38; (2014) 17 ELRNZ 442; [2014] NZRMA 195; [2014] 1 NZLR 593; [2014]
NZSC 38; BC201461160. In Davidson the Supreme Court’s “bottom-line” approach to environmental standards (that had been outlined in the New Zealand Coastal Policy Statement) was reduced in scope. The Court of Appeal held that the overall broad judgment approach ought still to apply (under the RMA) without policy guidance from the national level indicating otherwise.
177 King Salmon above n 176 and Nicola R Wheen “Sustainability, Indeterminacy, and the Abdication of Environmental Responsibility” in Sam Bookman and others (eds) Pragmatism, Principle, and Power in Common. Law Constitutional Systems: Essays in Honour of Bruce Harris (Intersentia, Cambridge, UK, 2022) at 73.
178 Greenpeace New Zealand Inc v Genesis Power Ltd [2008] NZSC 112, [2009] 1 NZLR 730, (2008) 15
ELRNZ 15.
179 Greenpeace, above n 178, at [44].
but there is no corresponding disadvantage to an application which chooses to use only non- renewable energy.”180
Elias CJ held that the Court of Appeal was “wrong to exclude from consideration by the consent authority the benefits of any reduction in greenhouse gases enabled through the use of renewable resources.” She reasoned that Court’s approach would:
make it irrelevant to the determination ... that the Genesis proposal chooses to use non- renewable energy despite the potential greenhouse gas advantages acknowledged by the express terms of the legislation to be enabled through the use of renewable energy.181
The Majority, Blanchard, Tipping, McGrath and Wilson JJ together drew on various approaches to statutory interpretation and held that when s 104E is:
interpreted by reference to its text and its purpose, and the record of the passage through Parliament of the legislation of which it formed part is considered, the outcome is clear; the exception within [s 104E] applies only to applications involving the use and development of renewable energy.182
This bears little relation to reality: we really need to do everything possible to curb greenhouse gas emissions. Enabling the development of gas-fired power plants by reading the legislation so that is does not “disadvantage” applications which use only non-renewable energy (in Genesis’s terms) is senseless. Such an interpretation would be unlikely if ecological rights were protected in Aotearoa’s constitution informing not only the interpretation of legislation but its configuration in the first place.
New Zealand Recreational Fishing Council Inc and NZ Big Game Fishing Council Inc v Sanford Ltd and Others and the Minister of Fisheries and Another considered the meaning and impact of “sustainability” in the Fisheries Act within the context of a Ministerial decision concerning the distribution of total allowable catch (“TAC”) across recreational and commercial fisheries. Section 20 requires the Minister to set the TAC for each relevant stock
180 At [8].
181 At [11].
182 Greenpeace, above n 178, at [65].
each year. Section 21 states that in doing so, the Minister “shall have regard to the [TAC] for that stock and shall allow for” non-commercial fishing interests in the stock and “all other mortality to that stock caused by fishing”.183 The central issue in Sanford was whether in setting the TAC, and having allowed for non-commercial interests and other mortalities, the Minister is required to allocate the whole of the remaining TAC to commercial fishing, or whether, they can reserve a portion of the stock for sustainability or other environmental purposes.
The majority held that the Act’s overall purpose of “provid[ing] for the utilisation of fisheries while ensuring sustainability”184 was “not of direct relevance to decisions under s 21”185 and did “not accept ... that s 21 permits the Minister to set a [TACC] that is less than the difference between the [TAC] and what the Minister allows for the non-commercial interests and other mortality.”186 Instead, it held that the TAC “is available in full for utilisation.”187 Only Elias CJ, dissenting, applied the Fisheries Act’s s 8 purpose to s 21 and therefore only she allowed for a “buffer” between the stock to be fished and the TAC. The majority insisted that the Minister must allocate the whole TAC, which is arguably a derelict response given it reduces the protection for fish stocks which is risky given the extent of the recognised information deficit that exists in fisheries management in Aotearoa.188
Consider also an application of the EEZA by the Supreme Court in Trans-Tasman Resources Ltd v Tarankai-Whanganui Conservation Board and others.189 There, Trans-Tasman Resources Ltd had applied for marine consents and marine discharge consents relating to its proposal to mine iron sands in the Taranaki bite.
The issue in Trans-Tasman of particular note was whether the EEZA precludes the grant of consents where a discharge will cause environmental harm even if there are economic and other benefits to a proposal. This issue focussed on the interpretation of the EEZA’s purpose, set out in s 10, is to:
183 Fisheries Act 1996, s 21(2).
184 Section 8(1).
185 Sanford, above n 173, at [60].
186 At [62].
187 At [62].
188 Elisabeth Slooten and others “Evidence of Bias in Assessment of Fisheries Management Impacts” (2017) 114 PNAS E4901–E4902 at E4901.
189 Trans-Tasman Resources Ltd v Tarankai-Whanganui Conservation Board and others [2021] NZSC 127,
[2021] NZSC 127; [2021] 1 NZLR 801.
(a) to promote the sustainable management of the natural resources of the exclusive economic zone and the continental shelf; and
(b) in relation to the exclusive economic zone, the continental shelf, and the waters above the continental shelf beyond the outer limits of the exclusive economic zone, to protect the environment from pollution by regulating or prohibiting the discharge of harmful substances and the dumping... of waste.
The Court was split on whether para (b) establishes a bottom line, or creates a balance of interests.
William Young and Ellen France JJ held that s 10(1)(b) “does not set an environmental bottom line [so] material harm was not automatically decisive”. The justices said that the focus in s 10(1)(b) on “protection and other elements of the statutory scheme meant the balancing exercise may well be tilted in favour of environmental factors [but that] decision, however, would need to be made on a case-by-case basis.”190
Conversely, Glazebrook J (with whom Williams J concurred), having observed that s 10(1)(a) “uses language of compromise between economic and environmental needs”,191 determined that s 10(1)(b) “creates an environmental bottom line in the sense that, if the environment cannot be protected from material harm through regulation, then the discharge or dumping activity must be prohibited.”192 The Chief Justice agreed with this,193 but both she and Glazebrook J also expressly stated that the purpose of s 10(1)(b) is not to protect the environment from immaterial or insignificant harm, with Winkelmann CJ adding that there is “no utility” in protecting the environment from such harm.194 This is despite there being plenty of evidence that significant cumulative environmental harm can be caused by many individually insignificant effects, and the EEZA expressly including cumulative effects.195
The legislative framework in Aotearoa is plainly anthropocentric and its interpretation has followed suit. Palmer and Butler’s proposals (mentioned prior) do not move past this framework – rights conferred to nature are anthropocentric and fragmented – so this proposal
190 At [7] of the Court’s Summary of the Result, referring to [102] of the judgment.
191 At [241].
192 At [3] of the Court’s Summary of the Result, referring to [245] of the judgment.
193 At [305].
194 At [308].
195 EEZA, s 6(1)(d).
would not mark a radical shift to ecological law. Moreover, Somerville’s suggestion still exists within this current framework, so, any ecological rights within the NBA have their application limited by status or hierarchy. The status of ecological law has impacted its effectiveness in Bolivia, for example, despite its recognition as some of the most ecologically principled law in the world.
Lessons from Bolivia – the importance of supreme status
As previously mentioned, one of the reasons for environmental law’s failure to deal with environmental problems is Bratspies’s “Splintered Fallacy”. A constitutional approach to ecological law is arguably necessary to achieve law that is genuinely “ecological” – a wide scope and holistic approach is crucial.196 A fragmented or splintered approach can allow for incursions outside of the scope decision at hand to undermine the decision. If “Hardin’s pasture can be seen as the global commons of oceans, water, soils, forests, biodiversity, eventually the entire biosphere” then leaving an area unregulated, or perhaps “unguided”, risks tragedy manifesting.197 A higher law would apply everywhere in Aotearoa and would not need to compromise to fit with the Acts regulating different spaces (conservation areas, fisheries, forests).198
Sbert’s principles of the “lens of ecological law” are best given effect when the status of the laws which gives them effect is clearly supreme in both reach and interpretation, this will be shown through her analysis of the Bolivian context; specifically, the interaction between their Laws of the Rights and their Constitution (2008). As described above, Sbert’s lens refers to three principles: ecocentrism, ecological primacy, and ecological justice.199
Sbert applies her aforementioned lens to how rights of nature and mining have interacted in Bolivia. Vivir bien (“to live well”) is reoccurring in the Bolivian constitutional framework200
196 Collins, above n 7, at 21.
197 Bosselmann above n 108, at 24.
198 The RMA regulates land, air, and water throughout Aotearoa. Nevertheless, it is an ordinary Act and does not trump the legislation that applies to spaces/resources within the RMA’s scope. Deciphering the relationship between the RMA and other resource management legislation have been a source of significant litigation – see Nicola R Wheen “The Protection and Conservation of Ecosystems and Spaces” in Peter Salmon and David Grinlington (eds) Environmental Law in New Zealand (Thomson Reuters, Wellington, 2015) at 858-859.
199 Above n 2, at 77.
200 At 167-169.
and “is a concept rooted in Indigenous Andean worldviews”.201 Vivir bien could represent a shift from a growth paradigm and it is diluted by other constitutional aspects in Bolivia – Sbert notes: “those who see vivir bien as an alternative to development consider the Bolivian framework’s linking of vivir bien with the concept of integral development as a betrayal of the former”.202 Broadly speaking, the principles of ecological law in Bolivia are balanced against competing human rights and constitutional support for the exploitation of nature.
In considering Bolivia’s alignment with ecocentrism, Sbert notes that the “framework under consideration here has elements of both anthropocentrism and ecocentrism”. Bolivia’s Constitution makes reference to “Mother Nature” exclusively in the preamble and recognises “the diversity and interconnectedness of all beings”. On the other hand, “the Constitution declares that “[t]he State holds the human being as the highest value” and contains many clauses pertaining to the objectification of nature for resource use. Other examples of legislation from the plurinational legislative assembly are more exclusively ecological and discussed.203 Sbert considers these slightly-less-than-supreme constitutional aspects of Bolivia’s legal framework “from the perspective of the principle of ecocentrism... are well aligned with ecological law” even if the Constitution is not.204
Sbert argues ecological primacy was recognised in Bolivia for three reasons, first:
three of the rights recognized in Article 7 relate to ecological integrity: the right of Mother Earth to life... the right to equilibrium... and the right “to timely and effective restoration of living systems affected directly or indirectly by human activities”. In addition, the [Framework Law of Mother Earth and Integral Development for Vivir Bien (2012)] provides that “[t]he integrity of the zones [of life] and living systems [of Mother Earth] shall be guaranteed”.205
Second and third, respectively, Sbert argues that “there are several ways in which the laws under review recognize ecological limits” and are “generally consistent with the aim of the principle of ecological primacy to restore and maintain ecological integrity”.206 However:
201 At 170.
202 At 171.
203 At 176.
204 At 178.
205 At 178-179.
206 At 179.
the Constitution provides that the exploitation of natural resources is a key goal of the state and the economy” creating complications that are “problematic from the perspective of ecological primacy... the legal mandate for resource extraction is firmly established in the Constitution, while legal support for ecological constraints is only generally delineated in the Framework Law and the Rights of Mother Earth Law, which are hierarchically inferior to the Constitution.207
In sum, Sbert argues that aspects of ecological primacy are found in Bolivia’s legal framework but that “the Constitution sets an extractivist/productionist role for the state and direction for the economy that are generally contrary to this principle” thus limiting the influence of said aspects.208
Ecological justice is the third principle for applied consideration within Sbert’s lens. Sbert argues here again that there is conflict between Bolivian law, its adoption of the notion of vivir bien, and the comprehensive definition of “natural resources” in the Constitution [art 348 and 249], and the appropriation of nature by humans” that “emphasizes property and dominance by humans over other members of the Earth community”.209
Sbert argues “the Bolivian framework emphasizes intragenerational equity... potentially bounding the creation of wealth within social and ecological limits”.210 Duties that reflect components of intergenerational and interspecies equity are also present in the Constitution. Further, nonhuman subjects are mentioned within the Constitution’s right to a healthy environment, recognising a broader recipient ecology for ecological justice.211
Sbert argues that while the equitable distribution of environmental harms may be provided for by the Constitution,
the approach of these laws to natural resources does not fully align with ecological justice because the Framework Law’s prescription to exploit natural resources in harmony and equilibrium with Mother Earth is hard to reconcile with the approach of dominance by humans
207 At 184.
208 At 185.
209 At 186.
210 At 187.
211 Art 33 and Sbert, above n 2, at 189.
over other members of the Earth community and prioritization of resource extraction in the
Constitution.212
I would argue this, again, highlights the importance of plain supremacy (over other laws) in ecological law being ecological. Ecological primacy can be given greater effect if the laws that shape it are supreme.
Applying lessons to our context in Aotearoa
Like Bolivia’s, Somerville’s proposal does not give supreme legal status to the rights of nature/ecological limits in a written constitution. Rather, he proposes the new NBA is elevated, making it “constitutional”, but not to the point where it may act as a judicial check on Parliamentary supremacy or to the point it could override other similar legislation or determine the interpretation of all legislation. Somerville’s proposal does seem to capture and recognise some ecological principles, but its lack of supreme status means these are difficult to actually give effect to. Similarly, Bolivia’s Laws of the Rights would do better achieving ecological objectives if the Laws had supremacy.
Despite (arguably) the presence of some of Collins’s ecological principles in the proposed NBA, effective ecological law in Aotearoa will require a more holistic and constitutional incorporation of ecological principles. Giving effect to ecocentric rights requires recognising their necessary primacy and allowing conflict with other law could derail ecological objectives.
In summary, despite supremacy given to ecological law in Ecuador, there are issues as to the specific definition of nature and, despite ecological rights being given to nature in Bolivia, issues around the ecological interpretation and weight of those rights have arisen.213 These issues highlight a final requisite “layer” to effective ecological law through an ecological constitution – jurisprudential and institutional support. Both will be necessary to effect more than the typical “marginal tinkering” (within environmental law) Bratspies describes.214
212 At 190.
213 Discussed above in Chapter Two (Humphreys, above n 152, at 475).
214 Discussed above in chapter one (Bratspies, above n 40, at 292).
Chapter 4: The need for institutional and wider systemic support – a final layer to ecological law?
Despite containing ecological principles in their law, serious adverse impacts from human activity in Bolivia and Ecuador continue. There may be many reasons for this, but clearly there has also been institutional misapplication of ecological law for anthropocentric purposes. Humphreys discusses how then-president, Evo Morales, had “voice[d] a surprising interpretation of Mother Earth that relates to Bolivia’s fossil fuel industry” stating he would “‘thank the Mother Earth, the Pachamama, and ask her that the oil continues to appear’”.215 This suggests that, without institutional support, ecological law may be misappropriated by an anthropocentric focus and application.
Irrespective of the aim to protect nature, Ecuador’s Constitution does not specify or define what nature is and Ecuadaor’s legal system does not provide wider jurisprudential or institutional support for those ecological principles. Ambiguity in defining “nature” can lead to presumptions of permissible ecological harm being derived from some material benefit, clearly beyond the ambit of what could be constituted as part of the natural world. There has been suggestion nature is intentionally undefined in Ecuador’s constitution to allow for a depiction of natural interests that align with corporate interests. Questions such as whether “felling timber in virgin rainforest [can] be justified for freeing land for ‘nature’ such as palm oil plantations” persist.216
How do we move toward a system wherein ecological rights and protections achieve their purposes and do not diverge to ulterior, exploitative interests? As discussed, SD (by no means pure) has worked against its initial purpose. How then, do we realise and administer the apparent need to reorientate our law – from an anthropocentric machinery – to an eco-centric “grundnorm” that respects planetary boundaries and encourages diversity (and so resilience) in the natural world?217 How do we avoid situations, like that in Ecuador and Bolivia where ecological law, even at the constitutional level, exists in some forms but is not realised in practice?218
215 At 473.
216 Humphreys, above n 152, at 473.
217 Bosselmann, above n 1, at 482.
218 Humphreys, above n 152, at 473.
It is a huge task to achieve “radical” change into the relative unknown. But scholars have pointed out, in general, many Indigenous legal systems illustrate we are not working from scratch in working toward ecological law.219 The sheer amount of Māori jurisprudence and scholarship in Aotearoa allows us to dive deeper into MM’s earlier discussed proposal. Insofar as the proposal gives greater effect to principles of tikanga, which may align with those of ecological law, MM’s proposal may represent for a shift to ecological law.
Institutional “tension” between adopted ecological rights and a political focus “on delivering economic and social rights, largely funded by the exploitation of finite resources such as oil in Ecuador... and natural gas and lithium in Bolivia” illustrates the importance of ecological principles within wider (social and political) institutions.220 It is important that MM’s proposals suggest institutional transformation, likely entailing more tikanga-based law and decision- making, as well as legal transformation.
Principles of Tikanga Māori
Tikanga Māori is a “wide concept... that includes but is not limited to law”.221 In tikanga, “values, ethics, practices and rules” are “very much interrelated” unlike “Western culture” which “tends to make a clear distinction between morality and the law”.222 Exceptionally broad, “tikanga encompasses Māori law but that it also includes ritual, custom, and spiritual and socio-political dimensions that go well beyond the legal domain” whereas the “Māori legal tradition” (“MLT”) is “the aspect of tikanga that has a legal quality, including Māori legal practice, principles, processes, procedures, and Māori legal knowledge”.223 Tikanga is “the system by which correctness, justice or rightness is maintained”.224 Foundational principles of the MLT – “from which the law flows” – are “derived from the values of tikanga and developed through Māori social, political and spiritual institutions”.225
219 Cullinan, above n 92, at 97 and Sbert, above n 2, at 57.
220 Nin Tomas “Māori Concepts of Rangatiratanga, Kaitiakitanga, the Environment, and Property Rights” in David Grinlinton and Prue Taylor (ed) Property Rights and Sustainability (Brill, 2011) 219-248 at 225.
221 Turei, above n 74, at 75.
222 Joseph and others, above n 9, at 12.
223 Turei, above n 74, at 43.
224 Joseph and others, above n 9, at 10.
225 Turei, above n 74, at 75.
Clearly, an in-depth discussion of tikanga and Māori jurisprudence would exceed the scope of this dissertation. I will, however, aim to highlight (as best as I can226) the similarities between some foundational principles of the MLT and ecological law.
Working from a broad scholarly basis, Turei identifies, within the MLT, “seven core principles whose legal aspects confer binding legal rights and responsibilities” as “Whanaungatanga... Kaitiakitanga... Manaakikitanga... Mana... Rangatiratanga...Utu” and “Tapu”.227
How these principles relate to principles of Sbert’s lens of ecological law, and whether they fit her definition provided for ecological principles228 or gel with the contents of Collins’s “ecological constitution”229 should offer some guidance as to the likelihood of MM’s proposals (and so theoretically more tikanga-based decision-making) having aspects of an ecological constitution. It is important to consider that “customary management practices may reflect [an ecosystems-based management system] in some ways” but that these practices are independent
– synergy results from alignment with ecological realities and we cannot assume any law, by merit purely of its source, is ecological without analysis.
Defining nature & recognition of ecological realities
As discussed, current environmental law and Western legal systems take an anthropocentric and fragmented view of nature, not reflective of basic ecological realities – it was briefly mentioned that the Māori worldview does not create such separation or fragmentation. Instead, the Māori would view, and so its law, is built “on three foundational ideas”: first, “that humans are part of an ongoing process that originates from a world of nonphysical existence or ‘wairua’ that is beyond consciousness, time, or space;” second, “that natural connections exist between ‘te ao wairua ’ (the realm of nonphysical or spiritual being) and ‘te ao marama ’ (the material world of physical being);” and third, “that ‘whakapapa’ (genealogy) informs and links all things into a natural order”.230 This worldview emphasises a more holistic approach to
226 I am not Māori nor am I an expert on tikanga Māori. A comprehensive discussion of tikanga would far exceed this dissertation’s scope, especially considering the contestable and contextual nature of tikanga within the Māori worldview and between scholars.
227 Above n 74, at 78
228 Above n 2, at 73.
229 Above n 1, at x.
230 Tomas, above n 220, at 223.
environmental issues231 where people are “subjects of the environment”.232 This is quite distinct from the watered down holism in the “overall broad judgment” approach under the RMA, for example, and instead more aligned with Milne’s holism as it is characteristic of a holistic view shaping the law, rather than reductionist law limiting the scope of the holism available.233
Fundamental, “core principles” of the MLT presume and promote the interconnectedness of all things while recognising the value of the diversity inherent between individuals. The first of the “Rangatahi values” recognised as vital and suggested as a constitutional principle in the MM report is the “health and wellbeing” of Ranginui and Papātuānuku.234 A paramount principle, reflected in the legal tradition; system, is that relationships connect all things – “[w]hanaungatanga is a fundamental principle at the “core of the [Māori] socio-political system””, it is “derived from whakapapa... and is the organising principle of tikanga Māori”. Turei suggests “whanaungatanga plays a role in the Māori legal tradition similar to the role that justice plays in the Pākehā state legal system”.235
Whakapapa, by emphasising a deep genealogy, provides for the interconnectedness of all things in a way that is inherently holistic in recognition; ecocentric in definition, vis a vis the human-nature relationship:
Maori attitudes towards the natural world reflect the relationships created through Ranginui (Sky father) and Papatuanuku (Earth mother). This interconnectedness by way of whakapapa (genealogy) explains why Maori relate to the environment from a position of parity rather than ascendancy. Everything is inherently tapu (sacred) and is to be respected. This creates obligations on tangata whenua to respect all things within this genealogical matrix.236
The concept of tapu also further emphasises this interconnectedness within the Māori worldview. Tapu could be described (perhaps inadequately), in Western terms, as the inherent sanctity of all things within universal systems. Tapu is a concept that, in Tohe’s words is:
231 Joseph and others, above n 9, at 9.
232 Tomas, above n 220, at 226.
233 Milne, above n 3, at 554.
234 MM, above n 72, at 94.
235 Turei, above n 74, at 79.
236 Hayes, above n 73, at 893 (my emphasis).
universal in scope. All things, be they material or ethereal, are tapu and can be subjected to further tapu. People regardless of rank, sex, age, or even race are tapu. Knowledge is tapu and words themselves can be subject to tapu. Tapu operates and is perceived on many different levels. At the most fundamental level, all things are inherently tapu. At another level, all objects, activities, persons and places may be made subject to tapu in the form of restrictions.237
All other concepts in Maori society are linked to or derive their meaning and existence from tapu. Concepts such as utu and kaitiakitanga are founded on tapu and therefore must be treated in accordance with that tapu. For example, utu ensures that balance is maintained, that the tapu is satisfied. Kaitiakitanga protects the tapu or sanctity of the land. Other Maori constructs of social order and control, such as manakitanga, aroha, rahui and muru can also be linked to the concept of tapu.238
The Māori worldview also recognises the importance of preserving the mauri, the intrinsic spirituality, of all elements of the natural world – “rules governing conduct are established to ensure that human use of a resource does not affect its mauri.”239 It is argued the Māori legal system “recognises that it is necessary to balance human need with the preservation of the resource and the protection of its mauri”.240 A genuine focus, “from a position of parity”241 in protecting the ecological integrity of nature, captured within the concept of mauri, seems ecocentric and aims to achieve ecological justice, thereby could align with principles of ecological law (and Sbert’s lens).242
Turei also argues that “kaitiakitanga is a much deeper principle than the care and protection of natural resources”243 as it has been reduced to in its RMA-context.244 Kaitiakitanga is, she argues:
a principle that stems directly from whakapapa and concerns both tangible and intangible whānau relationships across time and generations. Kawharu says that kaitiakitanga is an ethic not only found in the “biophysical environment”. The concept of sustainability incorporated in
237 Pierre Tohe “Maori Jurisprudence: the Neglect of Tapu.” 8 ALR 884 (1998) at 890.
238 At 891 (footnotes omitted, my emphasis).
239 Hayes, above n 73, at 894.
240 Hayes, above n 73, at 894.
241 Hayes, above n 73, at 893.
242 Sbert, above n 2, at 77.
243 At 83.
244 Joseph and others, above n 9, at 23.
kaitiakitanga is an activation of the kaitiaki | trustee responsibilities to people individually and collectively, to the natural environment and its creatures, to the atua | deities and to the ancestors.245
The interaction between kaitiakitanga and whanaungatanga, for example, characterises intergenerational equity (what Collins calls the “public trust doctrine”246) and its importance to the ongoing health of nature. The emphasis on reciprocal relationships (including with nature) and guardianship obligations is holistic and ecologically focused:
Kaitiakitanga can be considered an exercise of whanaungatanga because of the intergenerational caring obligation created by whakapapa. Kaitiakitanga is an application of kinship reciprocity across both time and place.247
Interconnectedness is a reoccurring principle in the Māori legal system, but so too is the maintenance of reciprocity and balance of those relationships. Turei defines utu as “mean[ing] to make a response, to balance or provide reciprocity in some form”248 and
associated with the concept of ea, which is the resolution and restoration of relationships – demonstrating a purpose directly linked to whanaungatanga. Utu then is a core means by which whanaungatanga is restored where a hara|harm or breach of Māori law has occurred.249
Not all offences require utu250 but utu “ensures that balance is maintained, that the tapu is satisfied”.251 To Cullinan, this “concern for reciprocity and the maintenance of a dynamic equilibrium” determined by what is best for the (Earth/environmental) system as a whole is a key foundational principle of ecological law and governance.252
245 At 83 (footnotes omitted).
246 Above n 7 at 56.
247 Above n 74 at 84.
248 At 91.
249 At 92.
250 Tohe, above n 237, at 888.
251 Tohe, above n 237, at 891.
252 Above n 92 at 135.
How Matike Mai’s proposal could represent a shift to an ecological law paradigm
As discussed, ecological law is hard to accurately and totally define: the principles, objectives and outcomes of the law characterise whether it is “ecological law”.253 The specifics required of ecological law may vary contextually, but core principles run cross-context. The actual process, or form of the law, is less important than substantive “ecological justice” being achieved, and “ecological primacy” being recognised. Ecological principles are outcome, rather than process focused. By contrast, “tikanga Māori focuses on relationships and the physical and metaphysical world” so “process is as important as the outcomes sought to maintain mana (rights, interests and responsibilities), rangatiratanga (authority) and tautuutu (reciprocity and balance)”.254 Principles of tikanga may then readily be able to provide the basis for the contextual application of ecological law in Aotearoa, provided the law keeps within principles of the ecological lens.255
Nin Tomas argues – in-line with Sbert’s lens principles of ecocentricity (viewing nature as a whole) and ecological primacy (upholding ecological interests) – that:
[a]ny Maori constitutional framework would also naturally accept, as Ecuador has done despite its President’s statements, that Papatuanuku is a living organism whose protection is a fundamental aspect of any good system of governance and law. Any rules, principles, or practices constructed within this broader framework would, first and foremost, uphold her value as an integrated system... further, they would also accept that human needs are subservient to those of the integrated whole.256
Ecological law would also need to manifest itself in context-specific, ecosystem-based management (“EBM”) and:
253 Sbert, above n 2, at 73.
254 Joseph and others, above n 9, at 30.
255 Sbert, above n 7, at 77.
256 Tomas, above n 220, at 225-226 (my emphasis).
Tikanga Māori ... could correlate harmoniously with EBM generally by focusing on what EBM is striving to achieve, not necessarily how to achieve its ends .... a similar advantage of tikanga Māori is also its flexibility, which is context specific.257
The synergy between principles of ecological law and principles of tikanga Māori suggests that the laws provided by tikanga could constitute (at least partly) the more context-specific, applied law, working toward those ecological (also Māori) objectives. What those specific laws are is not relevant to this dissertation.258 What is important is that those laws flow from principles that recognise ecological realities and align with ecological objectives.259 In relation to kaitiakitanga, Turei cites (among others) rāhui as employable in carrying out kaitiaki obligations (preserving mauri). Rāhui can involve “ritual prohibition over land, rivers, the ocean and other natural resources to protect them from depletion”.260 While rāhui is typically “a temporary form of prohibition that is often used to preserve birds, fish or any natural product, particularly during the procreation season to encourage rejuvenation”, stricter regulation or even “absolute prohibition” is also available within the concept of tapu.261 Hard-line ecological protections align with Sbert’s ideas of ecocentricity and ecological primacy (to achieve ecologically just outcomes) present in the lens of ecological law (discussed above).262
It follows that, if there is strong synergy between principles of tikanga Māori and of ecological law, then the adoption of MM’s proposals (which includes further discussion as to the details of the proposals263) could catalyse a shift – from the contemporary, “growth paradigm”264 to an ecological one if tikanga is allowed to influence law to be ecological. Ecological law would still need to have an ecological nature, characteristics, and constitutional status, but much of this may be effectuated by, tikanga-driven legal, social and political institutions. It is critical that MM’s proposal includes institutional reconfiguration, allowing for foundation and infusion of tikanga Māori in higher level decision-making, as this would appear to be a move toward ecological constitutionalism.
257 Joseph and others, above n 9, at 30.
258 But is discussed further in-part by Turei, above n 74.
259 Sbert, above n 2, at 73.
260 Turei, above n 74, at 83.
261 Hayes, above n 73, at 894.
262 Above n 2 at 77.
263 At 10-11.
264 Sbert, above n 2, at 46.
Conclusion
MM’s proposal does not explicitly suggest an entrenched, written, constitution is necessary to effect proposals. Still, I assume that any fetter on Parliamentary supremacy in Aotearoa would be impossible without an entrenched, constitutional document. MM’s “spheres” of decision- making would be undermined (and not “constitutional”) if current arrangements were kept – the Crown through Parliament still be the ultimate arbiter.
Nor do MM’s proposals expressly constitute ecological law – at best they entail more tikanga- based decision-making which seems to be inherently ecological. MM’s proposals have the capacity to constitute an ecological constitution and its incorporation would be unlikely to expressly prevent ecological law being further developed in Aotearoa. Palmer and Butler’s proposal would likely further entrench a harmful environmental paradigm. Adopting Somerville’s proposal may be less anthropocentric, but incorporation may build complacency and stall effective change being made at the supreme law level. This is also not to suggest that MM’s proposals could not be more ecological by suggesting a wholesale (rather than partnered, “relational spheres”265) adoption of tikanga is necessary.
Tikanga has the capacity to be “ecological law” in principle and MM’s proposal would presumably require supreme status to be effective. This combination, with an incorporation of ecological jurisprudence inherent in tikanga processes of law could mean MM’s proposals present the path of least resistance regarding an effective incorporation of ecological law in Aotearoa.
265 MM, above n 72, at 9.
Conclusion
At the beginning of this dissertation, I outlined the severity of global biospheric breakdown, noting that Aotearoa is not exempt either from blame or harm for this. I argue our current, global and local, state of affairs justifies response, but that past and present responses have failed. I have illustrated how and why ecological law has aimed to address environmental law’s challenges. Further, I have argued that there are three “layers” to effective ecological law: one, ensuring there are clear principles of ecological law (substantive law); two, that ecological principles are entrenched as supreme law (legal status); and three, that institutions to support ecological law’s aims are created.
By reference to proposals for transforming Aotearoa’s constitutionalism, I have attempted to show fundamental errors in two constitutional proposals (Palmer and Butler’s, as well as Somerville’s) due to theoretical conflict with principles of ecological law. In the last chapter, I describe how, prima facie, this theoretical conflict does not exist within MM’s proposals. In fact, principles of tikanga Māori – whose uptake is presumed to be inherent in MM’s proposals
– gel neatly with those within ecological law.
In doing this, I have answered not only the question of “why is a shift to ecological law important?” but also whether “proposals for constitutional change (in Aotearoa) represent a shift to ecological law” – I have found that MM’s proposals would likely constitute a shift in theory due to its foundations on tikanga.
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