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

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
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2. Winter Snorkelling at Motiti Island
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3. Environmental Justice
in an Intercultural Frame
Empowering Local Communities for Sustainability
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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. Situating Motiti Island
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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. Environmental Justice in an Intercultural Frame
Examples of ongoing Motiti legal battles
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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. MRMT versus BoPRC
[Case NZ EnvC 67, 2017-2018]
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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. Motiti Island – Value Overlays
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8. MRMT versus the Crown
[Waitangi Tribunal — Case Wai 2521]
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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. 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…
[?]
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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
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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….
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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).
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13. 6 Dimensions of Capability & Deprivation
A Generic Typology with Application to Justice/Sustainability
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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.
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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).
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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.
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17. The KerBabel Deliberation Matrix :
A Structure for Assessment of (In)justice
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X-axis — WHO ?
The Protagonists or Stakeholders
Y-axis—WHAT?
DimensionsofWealth
Z-axis — WHY ?
Frameworks for Judgement

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)
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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.
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20. The NZ RMA (1991) - s5 Purpose
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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. The NZ RMA s6 - Matters of national importance
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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. The NZ RMA - s7 Other matters
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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. The NZ RMA - s8 Treaty of Waitangi
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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. Example: What might Water Governance entail?
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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. What does Water Governance Entail? - SUBSTANCE
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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. What does Water Governance Entail? - PROCEDURE
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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. 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/).
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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.
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29. ePLANETe – Knowledge Partnership Tools
That’s all for now!
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Martin O’CONNOR
Scientific Director — RCE Paris Seine
Email : Tesseract.REEDS@gmail.com
Association ePLANETe Blue
Dampierre-en-Yvelines, France.

30. Seabird Feeding Frenzy – Fish off Motiti Island
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Kia mau ki te mauri (hold fast to the life-force)
Thank You