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Environmental Justice in an Intercultural Frame – Empowering Local Communities for Sustainability

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Environmental Justice in an Intercultural Frame – Empowering Local Communities for Sustainability
Martin O’Connor, RCE Paris-Seine
Europe Regional RCE Meeting 2018
28-31 August, 2018, Vannes, France

Published in: Government & Nonprofit
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Environmental Justice in an Intercultural Frame – Empowering Local Communities for Sustainability

  1. 1. Environmental Justice in an Intercultural Frame Empowering Local Communities for Sustainability Presentation prepared for the European RCE Meeting (Vannes, France, 28-30 August 2018) Professor Martin O’CONNOR President of the Association ePLANETe Blue RCE Paris Seine (FRANCE 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 1
  2. 2. Winter Snorkelling at Motiti Island 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 2
  3. 3. Environmental Justice in an Intercultural Frame Empowering Local Communities for Sustainability 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 3 An ongoing collaborative learning programme, engaging: •  L’Association ePLANETe Blue (part of the RCE Paris Seine); •  Waikato University (RCE Waikato), in liaison with the MRMT (Motiti Rohe Moana Trust) This project engages, at a local territorial scale, with several facets of the justice and sustainability purposes of the New Zealand Resource Management Act (RMA) and related legislation. It is intended to provide teaching resources of usefulness (1) in the NZ context and (2) internationally, including for teaching in France.
  4. 4. Situating Motiti Island 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 4 Motiti Island is a small island 10 kms offshore from the city of Tauranga in the Bay of Plenty in Aotearoa (New Zealand). •  It has been inhabited for many generations by Maori. Present-day inhabitants can trace heritage to early settlements on the island as well as mainland communities. •  Current economic activities on the island include agriculture as well as tourism and fishing. The island is in a major commercial fishing zone and is also popular for recreational fishing, diving and other coastal activities. •  Motiti was recently a focus of attention due to the foundering of a commercial cargo ship which, until costly remedial actions were taken, threatened surrounding seabed, reef and coastal areas with serious chemical pollution. Several recent and ongoing court cases address intertwined questions of ecological sustainability, environmental justice, status of local Maori people (the Motiti tangata whenua) in historical and cultural context, empowerment for local development, and participation in territorial governance.
  5. 5. Environmental Justice in an Intercultural Frame Examples of ongoing Motiti legal battles 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 5 The two cases most directly informing this presentation are: •  Environment Court (The New Zealand Resource Management Act 1991): Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2017-2018]. NZEnvC 67 •  Waitangi Tribunal (The Treaty of Waitangi Act 1975): Te Moutere o Motiti Inquiry - MRMT (Motiti Rohe Moana Trust) seeking redress from The Crown [ongoing]. WAI 2521 NOTE: Several other recent and ongoing Motiti court cases are closely interlinked. In this presentation we refer also to a national-scale case : •  WAI 2358 — In the matter of the Treaty of Waitangi Act 1975 and in the matter of the National Freshwater and Geothermal Resources Inquiry.
  6. 6. MRMT versus BoPRC [Case NZ EnvC 67, 2017-2018] 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 6 The MRMT sought additional planning controls within the Bay of Plenty Regional Council’s proposed Environment Plan to avoid adverse effects on the outstanding and high values of the Motiti Natural Environment Management Area (MNEMA). The Court concluded in favour of the MRMT, ruling that changes to the Regional Coastal Plan would be appropriate. These include: •  Prohibition of any damage, destruction, removal of flora and fauna within three distinct areas of the MNEMA (surrounding the Astrolabe and Okaparu Reefs and Brewis Shoal; Schooner Rocks and Motunau Island); •  Imposition of further controls within the balance of the MNEMA, in relation to fishing methods that may damage the benthic environment or where they impact particularly on sea birds or other marine mammals.
  7. 7. Motiti Island – Value Overlays 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 7
  8. 8. MRMT versus the Crown [Waitangi Tribunal — Case Wai 2521] 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 8 The MRMT Contention: Failure to Recognise and Engage with Ngā Hapū o Te Moutere o Motiti §102. The isolation and geographical separation of Motiti have resulted in Ngā Hapū o Te Moutere o Motiti forging their own distinct island identity and culture. §103. The Crown has never properly understood the mana motuhake and identity of Ngā Hapū o Te Moutere o Motiti, and has consistently failed to recognise Ngā Hapū o Te Moutere o Motiti as tangata whenua of Motiti Island/ tangata moana of the Motiti Rohe Moana, or to engage with them as a Treaty partner. §105. The uniqueness and isolation of Motiti Island imposes on the Crown a duty to engage directly with the tangata whenua of the island in actively protecting their interests. SECOND AMENDED STATEMENT OF CLAIM (14 November 2017)
  9. 9. WAI 2521 - Ngā Hapū o Te Moutere o Motiti Claim Tribunal Statement of Issues (9/3/18) 1. Who are the tāngata whenua of Motiti Island? (a) According to history and whakapapa, who are the tāngata whenua associated with Motiti Island; and (b) who continues to hold that status on Motiti island? 2. Did the settlement of the Ngāti Awa historical claims, in the Ngāti Awa Claims Settlement Act 2005, settle Motiti Island claims based on whakapapa from Te Hapū? 3. How has the Crown engaged with the tāngata whenua of Motiti Island? 4. Through its “kinship review”, has the Crown adequately or properly informed itself of the interests of the tāngata whenua of Motiti Island? 5. If the Crown has failed to recognise, or has not adequately or properly informed itself of, the interests of the tāngata whenua of Motiti Island, what prejudice has been caused to the claimants as a result? 6. Subject to §§1-5, should the Tribunal make recommendations, and if so, in what form, on […] How the Crown should engage with the tāngata whenua… [?] 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 9
  10. 10. Methodology - Building the Problem Dimension of Structure WHO? The different “actors” or stakeholders and their roles/status WHAT? The objects of evaluation attention WHY? Framing the performance goals and challenges HOW? The type of indicators or other “signals” mobilised 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 10
  11. 11. Who are the parties? (Case Wai 2521) The protagonists, in the context of the hearing on status/ injustice under the Treaty of Waitangi, are: q  The MRMT (Mohiti Rohe Moana Trust) claiming to represent legitimate MOTITI TANGATA WHENUA q  The CROWN (an abstract legal entity, whose duty is to assure governance for the 1840 Treaty of Waitangi parties), expressed as NZ Government and rule of law. q  Ngãti Awa / Te Patuwai (tribal groupings/affiliations based on neighbouring mainland NZ) q  …. and perhaps other interested parties having standing…. 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 11
  12. 12. What’s the problem? (Case Wai 2521) The dimensions of justice/injustice, to be addressed: The conditions of the Motiti tangata whenua, which are to be appraised for their qualities in respect for or violation of ToW obligations, are considered along six systemic axes, or dimensions of WEALTH/IMPOVERISHMENT. These are: Á  SUBSISTENCE (individual/group health, comfort and security) Á  ECONOMIC DISTRIBUTION (stocks and flows regulated in money values) Á  ECOLOGICAL DISTRIBUTION (environmental assets & services) Á  RECOGNITION (status within societal/cultural forms & groups) Á  PARTICIPATION (agency in governance and administration) Á  CREATION (contribution to others’ opportunities and wealth) These six dimensions overlap; but are relatively complete in the sense that they give access to the different material & existential dimensions of being and capacity (or deprivation). 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 12
  13. 13. 6 Dimensions of Capability & Deprivation A Generic Typology with Application to Justice/Sustainability 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 13
  14. 14. What Basis for Judging? (Case Wai 2521) On what basis should respect for, or violation of ToW value obligations, be addressed and adjudged? (A) Examples of Generic Frameworks and Concepts…. Á  Respect of the rule of law (as understood in prevailing legal traditions); Á  Sustainability Quality/Performance Multiple Bottom Lines (QPMBLs) Á  The Social Dimension of Deprivation (e.g., Max-Neef, Sen, Eurostat…); Á  ‘Living Standards’ Frameworks (e.g., Current Wellbeing & 4 Capitals); Á  Material exploitation (cf., the 4 Cheaps of Jason Moore (nature, work, energy, food; sometimes enlarged to include ‘care’ as a category of service); Á  Respect/exclusion (cf., UN Declaration on the Rights of Indigenous People); Á  Pertinent Western theories/principles of Justice & Responsibility (e.g., Rawls, Jonas) These frames of rightness and wrongness overlap. Any one could be adopted as a preferred reference system. But, in the context of ToW negotiations no one framing will provide an adequate picture. Essential insights are gained from comparison (or confrontation) of the status given to different Arguments under each framework, according to witnesses and in the eyes of each of the protagonists. 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 14
  15. 15. (B) RIGHTNESS CONSIDERATIONS SPECIFIC TO AOTEAROA / NEW ZEALAND Á  The Treaty of Waitangi (ToW, signed in 1840) ; Á  Respect of the rule of law (as understood in legal traditions carried by the Crown) ; Á  Upholding Mana maori / Tikanga (as linked with taonga, tino rangatiratanga, kaitiakitanga, etc., under the ToW; and with contemporary references e.g., Ruruku Whakatupua - Te Mana o Te Awa which upholds the mana of the Whanganui River (WhRC Settlement Act 2017) ; Á  Sustainability QPMBLs as framed in the NZ RMA (Resource Management Act 1990). 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 15
  16. 16. How? (Case Wai 2521) The signals mobilized for the issues appraisal are discursive “ARGUMENTS”, obtained through discourse analysis & synthesis of evidence presented by WAI 2521 parties to the Waitangi Tribunal. Á Arguments are mobilised within the KerBabel DELIBERATION MATRIX framework, by/for each protagonist [WHO], relative to defined dimensions of evaluation attention [WHAT], with reference to the various justification frameworks [WHY]. Á This framework (WHO x WHAT x WHY) gives visibility to points of overlap, and also to disagreements and their reasons. The Arguments are catalogued and classified in a KerBabel Indicator Kiosk (KIK) and the ASSOCIATED KERBABEL REPRESENTATION RACK (KRR) . These cataloguing systems are relational data bases that can be maintained and renewed through time (for Motiti), and that could potentially also be extended across other analogous cases. 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 16
  17. 17. The KerBabel Deliberation Matrix : A Structure for Assessment of (In)justice 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 17 X-axis — WHO ? The Protagonists or Stakeholders Y-axis—WHAT? DimensionsofWealth Z-axis — WHY ? Frameworks for Judgement
  18. 18. REFLEXION / DISCUSSION SUSTAINING WHAT ? What x Who (& by/for Whom) x Why Considerations that can be identified in / from the New Zealand Resource Management Act (1990) 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 18
  19. 19. The New Zealand Resource Management Act (1991) Part 2 — Purpose and Principles •  RMA s5 Purpose •  RMA s6 Matters of national importance •  RMA s7 Other matters •  RMA s8 Treaty of Waitangi Source: The primary legislation is: The Resource Management Act: An Act to restate and reform the law relating to the use of land, air, and water, 1991 No.69, 22 July 1991. Wellington, New Zealand House of Representatives. 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 19
  20. 20. The NZ RMA (1991) - s5 Purpose 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 20 1. The purpose of this Act is to promote the sustainable management of natural and physical resources. 2. In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while: (a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and (b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and (c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment.
  21. 21. The NZ RMA s6 - Matters of national importance 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 21 In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance: (a) The preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use, and development: (b) The protection of outstanding natural features and landscapes from inappropriate subdivision, use, and development: (c) The protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna: (d) The maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers: (e) The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga. [(f) the protection of historic heritage from inappropriate subdivision, use, and development.] — added 2003 [(g) the protection of protected [formerly ‘recognised’] customary activities.] — added 2004; amended 2011.
  22. 22. The NZ RMA - s7 Other matters 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 22 In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall have particular regard to— (a) Kaitiakitanga: [(aa) The ethic of stewardship:] — inserted 1997 (b) The efficient use and development of natural and physical resources: [(ba) The efficiency of the end use of energy] — added 2004 (c) The maintenance and enhancement of amenity values: (d) Intrinsic values of ecosystems: (e) Repealed [supplanted in 2003 by §6 (f), and later also §6 (g) at a higher status]. (f) Maintenance and enhancement of the quality of the environment: (g) Any finite characteristics of natural and physical resources: (h) The protection of the habitat of trout and salmon: [(i) the effects of climate change:] — added 2004 [(j) the benefits to be derived from the use and development of renewable energy.] — added 2004
  23. 23. The NZ RMA - s8 Treaty of Waitangi 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 23 In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi). NOTE: The Treaty contains three sections, sometimes described as the kawanatanga (governance) article, the rangatiratanga (Maori chieftainship) article, and the tikanga (customary practices) article. See: https://www.waikato.ac.nz/pod/modules/tiriti/treatymao.html#maori
  24. 24. Example: What might Water Governance entail? 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 24 Q1. Does the Crown accept the finding that water bodies were taonga for Maori over which hapu or iwi exercised te tino rangatiratanga and customary rights in 1840 ? WAI 2358 — In the matter of the Treaty of Waitangi Act 1975 and in the matter of the National Freshwater and Geothermal Resources Inquiry. Presiding Officer: Chief Judge Isaac. Extract from the Memorandum of Counsel for the New Zealand Maori Council setting out cross-examination questions for the Crown on the Tribunal’s Stage I findings. Dated: 22 August 2018.
  25. 25. What does Water Governance Entail? - SUBSTANCE 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 25 Q2. Does the Crown accept the finding that Maori had both a physical and a metaphysical relationship with water under tikanga? Q3. Does the Crown accept the finding that Maori rights in respect of water included authority and control over access to the resource and use of the resource? Q4. Does the Crown accept the finding that Maori authority in respect of water was sourced in tikanga and carried with it kaitiaki obligations to care for and protect the water? Q7. Does the Crown accept the finding that water was vital for the sustenance of the life and health of the person, both in body and spirit? Q8. Does the Crown accept the finding that water bodies had their own mauri (life force), which was so tied to that of the people that if it sickened they did too? Q9. Does the Crown accept the finding that for Maori water bodies are indivisible regimes, encompassing banks, bed, water, fish, aquatic plants and spiritual plants (taniwha), and with no element being severable? [… / …]
  26. 26. What does Water Governance Entail? - PROCEDURE 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 26 Q5. Does the Crown accept the finding that sometimes authority and use was shared between hapu, but was always exclusive to specific kin groups? Q6. Does the Crown accept the finding that access to water resources and use for outsiders required permission and often payment of a traditional kind? Q10. Does the Crown accept the finding that ‘full-blown’ ownership of property in the English sense was the closest legal equivalent for Maori cultomary rights in respect of freshwater in 1840? Q11. Does the Crown accept the finding that te tino rangatiratanga was also more than ownership, and encompassed the authority of hapu to arrange and manage their affairs in partnership with the Crown? Q12. Does the Crown accept the finding that Maori did not see the sharing of their water bodies as a relinquishment of tino rangatiratanga but rather an exercise of tino rangatiratanga? Q13. Does the Crown accept the finding that while thre might be a general expectation of access and use for non-commercial purposes, access would be on Maori terms until such time as Maori chose to make a Treaty-compliant alienation, and Maori could say no? Q12. Does the Crown accept the finding that it has a duty to actively protect Maori development rights in water bodies to the fullest extent reasonably practicable?
  27. 27. Building Knowledge Partnerships around Environmental Justice Conflicts •  The documentation of issues and arguments will provide valuable clarity and visibility for the Motiti Island tangata whenua in their efforts to sustain livelihood, culture and ecosystem viability. •  Over and above the insights obtained specifically for the WAI 2521 case, the Motiti study will act as a pilot or demonstration study for the documentation and analysis of environmental justice or other situations of controversy. •  We can also, for example, make the link to work carried out in the recent EC funded EJOLT project (see http://www.ejolt.org/ and http://www.envjustice.org/), and ongoing in the framework of the EJAtlas (see https://ejatlas.org/). 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 27
  28. 28. Building Knowledge Partnerships for Sustainability – Tools & Terrains •  Collaborative tools provided by the platform ‘ePLANETe’ allow STAKEHOLDERS (including experts and decision-makers) to build and share perspectives on situations of controversy. •  Going beyond documentation, we are exploring ways that stakeholders can exploit collaborative IT to propose and appraise ACTIONS that — in their views — might or should be components in empowering, environmental justice & sustainability scenarios. 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 28
  29. 29. ePLANETe – Knowledge Partnership Tools That’s all for now! 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 29 Martin O’CONNOR Scientific Director — RCE Paris Seine Email : Tesseract.REEDS@gmail.com Association ePLANETe Blue Dampierre-en-Yvelines, France.
  30. 30. Seabird Feeding Frenzy – Fish off Motiti Island 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE 30 Kia mau ki te mauri (hold fast to the life-force) Thank You

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