Time to give the ocean its own legal voice

Sea-change in marine management is overdue, argues Dr Greg Severinsen.

While we debate how Aotearoa New Zealand can move towards a significantly decarbonised world, and how in doing so we can achieve a “just transition”, we need to plan for other important environmental transitions too. That includes how we manage our oceans.

Aotearoa New Zealand is a maritime nation and our people have strong ties to the sea. We have jurisdiction over a very large marine area, about 20 times the size of our land.

But in 2019 a joint report by the Ministry for the Environment and Statistics New Zealand painted a concerning picture.

Biodiversity is in decline, activities on land are polluting the oceans and shorelines, and pest species are a significant and growing threat. Climate change is affecting the sea’s temperature and acidity, and ultimately what marine life can thrive here.

There are also important questions about how we make best use of scarce and contested marine resources. It’s time to consider whether a sea-change in oceans management is overdue.

In a recent article in Policy Quarterly, I outlined the different kinds of justice we can use to scrutinise whether change is necessary for our seas. These include distributional (or intragenerational) equity, environmental justice, intergenerational justice, ecological justice, and procedural justice. Cutting across all of these is te Tiriti o Waitangi and indigenous justice.

There is a particularly interesting distinction between environmental justice and ecological justice. These may sound similar, but they’re generally talked about quite differently.

Environmental justice tends to be human focused, and is concerned with inequities in who bears the cost of environmental degradation. It can manifest as health and wellbeing impacts being borne by poorer people living closer to harmful industrial facilities.

But it’s important in the marine world too. Many true costs of environmental degradation, including damaging fishing practices and land-based discharges to the oceans, are dispersed among New Zealanders as a whole.

We don’t internalise the true costs of resource use to those causing damage, and the polluter doesn’t pay – society does. So too do future generations. Coastal communities, Māori and others who rely on the ocean for food and wellbeing are often disproportionately affected by such damage in their watery backyards. For some, including Māori, this harm can also have a spiritual or metaphysical component.

In short, we have yet to have a proper discussion about who should bear the costs of our use of oceans. That’s an issue of environmental justice.

Ecological justice is different. It is more about the interests and rights of nature itself, and looking at ways we can give the natural world a “voice” in its own future.

Some have suggested that traditionally human-centric concepts like justice can be useful starting points for a more ecocentric view of the world. We can see the natural world as an actor within, not an object outside, the human community of justice.

This is not an entirely new way of thinking. For example, the existing prohibition on hunting marine mammals is not just because many are threatened or vulnerable, but also because intentionally killing them is seen as morally “wrong”. Dolphins are treated by our current laws as different or special, and deserving of a justice closer to that which humans enjoy. Perhaps it’s because they’re more like us humans than a gurnard or crayfish.

But the idea can be taken further. Perhaps nature as a whole should be recognised as an entity with recognisable rights that can be defended in court, just as people can seek justice for an infringement of property rights (vandalism) or human rights (discrimination). Why should humans – one (albeit intelligent) primate among many life forms – be assumed to be “superior beings” with a monopoly on access to justice?

Instead, humans could be viewed as part of a complex web of relationships with the natural world that needs to be respected. We are not just resource users. The environment is not just a supermarket shelf. That view is more consistent with te ao Māori, which considers whakapapa and whanaungatanga (kinship relationships) to be at the heart of environmental management, with the moana taking pride of place as an ancestor.

So should society build institutions that give the oceans a voice of their own? Could this build on the innovative legal personhood model developed as part of the settlement processes for Te Urewera and Te Awa Tupua/Whanganui River? As a legal person, we could give the moana a variety of rights and powers.

Admittedly, there may be significant challenges in giving the oceans as a whole legal personhood. It’s a large space, with many existing interests and regional differences to sort through. But there are interesting opportunities, too.

For instance, instead of requiring that a resource rental or a tax go back into the public purse, we could treat that as compensation for past harm, or a “payment” or koha to nature for its services. It could be invested in regeneration projects that benefit the moana as a person with its own dignity – a kind of living wage for the sea. Or imagine the oceans having the ability to take action in common law, like trespass.

Ecological justice shifts the focus from regulating human actions to thinking about what flows from the interests and inherent dignity of the environment itself. It becomes like a person: a subject with agency, not an object to be used.

Of course, care is needed. Change may be more difficult in the marine realm than on land, where assumptions about the status quo (such as the priority of fishing rights over other uses, or the sea as a wilderness) have taken longer to be seriously questioned.

The idea that the sea can push back against the encroachment of people is subversive of economic orthodoxy (although perhaps more familiar to the world of te ao Māori). And any transition to a new system has to be equitable for people too, including under te Tiriti.

But has the time come to extend an invitation to the marine environment and its inhabitants to play their own role in our exclusive human community – to seek its own brand of ecological justice?

Read the original article at Newsroom.

Dr Greg Severinsen has a PhD in resource management law from Te Herenga WakaVictoria University of Wellington and is a senior policy adviser at the Environmental Defence Society.