The following is part two of my summary of “New Thinking on Sustainability”, the law conference hosted at Victoria University of Wellington from 14-16 February 2014. You can read part one here.
Following Linda Sheehan’s presentation, we were treated to another lecture from Professor Klaus Bosselmann, following up on his keynote speech of the preceding evening.
Bosselmann’s talk built on his identification of property rights as the key bar towards adopting the limits inherent in sustainability. His contention was that, while useful, the reference to rights for Mother Earth has the risk of coming across as too “hippy” – continuing the individual discourse of entitlement (“my right”) while alienating those with historical antipathy towards the environmental movement. Several members of audience echoed this in the various question sessions, although it was pointed out that rights for nature are just one tool working towards sustainability, and that the attendant nature of our problems requires multifaceted efforts.
Instead Bosselmann’s suggestion was that it is better for New Zealand to tackle property rights up front via the inclusion of duties. No property exists in isolation from its social context, and Bosselmann spent some time talking about what he called “onion theory”: the idea that all action is contained within a social and ecological context – building towards a dynamic concept of property and human rights. New Zealand has no explicitly recognised right to property in our existing Bill of Rights, suggesting that such a shift might be easier in New Zealand than in other countries.
Bosselmann concluded with two take home points: community as central, and the need for a constitutional moment. While greed was acknowledged as a pervasive barrier to change, the role of relationships and altruism within small communities plays a significant role in limiting its reach – suggesting that part of our efforts must address the centralisation so prevalent today.
This focus on community was built on later by Ben Gussen, who discussed how the principle of subsidiarity has the potential to produce better outcomes than those achieved under our current paradigm. Subsidiarity refers to empowering local communities to have a say in the laws that govern them, and reflects one of Nobel Prize winning economist Elinor Ostrom’s principles for successful commons management: autonomy.
In a nutshell, it comes down to responsibility. Under our current model responsibility is left to the state and individuals are free to give into our least productive whims. In contrast, interactions between related individuals, be it familial or otherwise, are governed by our better values as we seek to maintain the relationships necessary to sustain us. It is this focus on relationships (with each other, and the wider earth community on which we depend) that sustainability seeks to recognize. Gussen’s key point is that the nature of communal governance isn’t just conducive to sustainability, but that it actively produces it.
This resonated strongly with me. It is easy to feel alienated from our government and their dictates, but there are few who would deny a neighbourly request in an environment of repeated interactions, and fewer still who would ignore a changing future and the obvious implications it has for those you love. If empowered to address this, why wouldn’t you? Bosselmann talked of how the German system actively provides for this autonomy at a local level, and how the New Zealand shift back towards centralisation is stymieing sustainable initiatives where they might be best adopted.
His second key message, that of the need for constitutional change, can be seen as one way to produce an environment where this autonomy is recognised. Bosselmann pinpointed the powerful role of Maori within New Zealand politics and the future-orientated philosophy of tikanga Maori as cause for hope, with the guarantees under the Treaty of Waitangi providing the seeds for the shift. However, later speakers re-emphasised that this perspective isn’t unique to Maori. As such, we must work to reintroduce the European lineage of reverence for nature – not only increasing inclusion, but also ensuring that all parties feel that they have authority to speak up for nature. Exclusion helps no-one: our problems are collective, and consequently require collective solutions.
Bosselmann’s talk was followed by Joel Colón-Ríos, discussing the characteristics of the wave of Latin American constitutionalism of recent years that has culminated in recognition of rights for nature in Ecuador and Bolivia. These were shown to have several key characteristics: highly participatory procedures, including increased roles for indigenous groups; a focus on achieving social justice, via a new set of economic relations including the prohibition of some privatisation and a strong regulatory role for the state; and increased rights, including those collective rights aimed at protecting the natural world.
These constitutions go above other developments in this field by making explicit the primary role of nature, with Pachamama, or Mother Earth, name checked as giving citizens the power to create the constitution (by making them healthy and able to participate). Colón-Ríos made the crucial point that these constitutions are not just about rights, but about creating a legal framework that can give effect to them. He was also critical of those who attempt to dismiss rights for nature on the grounds that they have not been fully implemented in practice, stating that many social, economic, and cultural rights fall subject to the same criticism, but that that is no reason to abandon them.
Panel 2 focused on indigenous and critical perspectives, with Professor Gerald Torres giving his keynote from a snow-clad New York. His key point was that issues of environmental justice are issues of racial justice: the distribution of environmental burden is not equal, is easily identifiable, and is reflected in the racial composition of the United States. This reflects the general message of Torres’ famous book, The Miner’s Canary, in which he compares the status of vulnerable indigenous groups to the birds used by miners to monitor oxygen levels. While indigenous groups might be more vulnerable to environmental damage (due to historical marginalisation and higher direct dependence on the natural world), what happens to them eventually happens to us all.
Torres was followed by several speakers from Waikato University: Dr Jacinta Ruru, Andrew Erueti, and Linda Te Aho. Again it was pointed out that a cultural shift (in language: what we focus on and emphasise) is crucial to addressing our existing problems. Ruru noted gains for Maori in New Zealand is in some respects due to the influence of the Iwi Leaders Forum on government; however, it was acknowledged that there are multiple priorities in Maoridom.
The recent agreement to accord Te Urewera National Park legal personality, while positive, was described as a compromise. By allowing no-one to own the land it can be seen as a convenient tool by the government to sidestep issues of Tuhoe sovereignty and autonomy while placating their vocal demands for increased recognition (echoing a similar move made in respect of the foreshore and seabed). Eruti echoed other speakers when he said that the path to environmental justice is tribal autonomy, however he was honest in pointing out the barriers to this. Continuity seems to be a key hurdle: membership is from whakapapa, or blood – providing continuity – but these same requirements undermine political autonomy and independence.
The need to resist externally defined cultural ways of being indigenous was emphasized, tying back into what appears to be an emerging theme of subsidiarity and autonomy. We must all work together to achieve life with earth’s limits, but at the same time must be given space to come to these conclusions independently – irrespective of race or the means used to organise our communal groups.
Interested? Stay tuned for part three and more on climate change, earth jurisprudence and civil disobedience – coming soon.