It is time to give the ocean its own legal voice



While we discuss how Aotearoa New Zealand can move towards a significantly decarbonised world and how we can achieve a “just transition” in the process, we also need to plan other important environmental changes. This also includes how we deal with our oceans.

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

But in 2019 a joint report by the New Zealand Department of Environment and Statistics painted a worrying picture.

Biodiversity is declining, onshore activities are polluting oceans and coasts, and pest species are a significant and growing threat. Climate change affects the temperature and acidity of the sea, and ultimately the marine life that can thrive here.

There are also important questions about how best to use scarce and controversial marine resources. It is time to reflect on whether a fundamental shift in marine management is overdue.

In a recent article in Policy Quarterly, I outlined the different types of justice we can use to see if change is necessary for our seas. These include distributive justice (or intergenerational justice), environmental justice, intergenerational justice, ecological justice and procedural justice. All of this permeates te Tiriti o Waitangi and indigenous justice.

The distinction between environmental justice and ecological justice is particularly interesting. These may sound similar, but are generally discussed very differently.

Environmental justice is usually people-centered and deals with injustices in who bears the cost of environmental degradation. This can manifest itself in health and wellbeing impacts borne by poorer people who live closer to harmful industrial facilities.

But it is also important in the marine world. Many of the real costs of environmental degradation, including harmful fishing practices and land-based discharges into the oceans, are being shared among New Zealanders as a whole.

We do not internalize the real cost of resource use with the polluters, and the polluter does not pay – society does. Future generations will do the same. Coastal communities, Māori, and others that rely on the sea for food and wellbeing are often disproportionately affected by such damage in their water-rich backyards. For some, including the Māori, this damage can also have a spiritual or metaphysical component.

In short, we have yet to have a real discussion about who should bear the cost of our use of the oceans. It is a question of environmental justice.

Ecological justice is different. It is more about the interests and rights of nature itself and about opportunities to give nature a “voice” in its own future.

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

This is not a whole new way of thinking. The existing ban on hunting marine mammals, for example, is not only so because many are threatened or endangered, but also because their deliberate killing is viewed as morally “wrong”. Dolphins are treated as different or special by our current laws and deserve justice closer to that enjoyed by humans. Maybe it’s because they’re more like us humans than a gurnard or crab.

But the idea can be carried further. Perhaps nature as a whole should be recognized as a unit with identifiable rights that can be defended in court, just as humans can seek justice for violations of property rights (vandalism) or human rights (discrimination). Why should humans – a (albeit intelligent) primacy among many forms of life – be viewed as “superior beings” with a monopoly on access to justice?

Instead, humans could be seen as part of a complex web of relationships with the natural world that must be respected. We are not just resource users. The environment is not just a supermarket shelf. This view is more in line with te ao Māori, who regards whakapapa and whanaungatanga (kinship relationships) as the heart of environmental management, with moana holding 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 personality model developed as part of the Te Urewera and Te Awa Tupua / Whanganui River settlement procedures? As a legal entity, we could grant moana a variety of rights and powers.

Granted, there can be significant challenges in giving legal personality to the oceans as a whole. It is a large area with many existing interests and regional differences that need to be clarified. But there are also interesting options.

For example, instead of requiring a resource rent or tax to be returned to the government, we could treat this as compensation for past damage or as a “payment” or koha to nature for their services. It could be invested in regeneration projects that benefit the Moana as a person with their own dignity – a kind of livelihood for the sea. Or imagine that the oceans have the ability to take common law action, such as trespassing.

Ecological justice shifts the focus from regulating human activity to reflecting on what results from the interests and inherent dignity of the environment itself. It becomes like a person: a subject with agency, not an object that can be used.

Of course, care is the order of the day. Changes can be more difficult in the marine environment than on land, where assumptions about the status quo (such as the primacy of fishing rights over other uses or the ocean as wilderness) have taken longer to be seriously challenged.

The idea that the sea can hold back human invasion goes against economic orthodoxy (although it is perhaps better known in the Te ao Māori world). And every transition to a new system must also be fair for the people, including under te Tiriti.

But is it time to invite the marine environment and its inhabitants to play their own role in our exclusive human community – to seek their own kind of ecological justice?


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