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It’s time to give the ocean its legal voice

It’s time to give the ocean its legal voice


While we are discussing how Aotearoa NZ can move towards a significantly reduced carbonised world and how to achieve a just transition in this regard, we must also plan for other important environmental transitions. That includes how we manage the oceans.

Aotearoa New Zeland is a maritime nation. Our people have strong ties with the sea. We have jurisdiction over a large marine area that is 20 times larger than our land.

However, a 2019 joint report by Statistics New Zealand and the Ministry for the Environment painted a disturbing picture.

Biodiversity is declining, land activities are polluting the oceans, shorelines, and pests are a growing threat. Climate change is affecting sea temperature and acidity and ultimately the marine life that can thrive there.

It is also important to ask how we make the most of our limited and contested marine resources. It is time to think about whether there has been a sea-change with oceans management.

I recently wrote in Policy Quarterly about the different types and methods of justice we can use when examining whether change is necessary for our oceans. These include intergenerational, intergenerational, ecological, procedural, and distributional equity. These are all interconnected by te Tiriti o Waitangi (indigenous justice).

The distinction between environmental justice (or ecological justice) is particularly interesting. These terms may sound similar but they are often referred to in a different way.

Environmental justice tends towards being human-focused. It is concerned with inequalities in who bears the costs of environmental degradation. It can result in poorer people living near to industrial facilities suffering from negative health and wellbeing effects.

It is also important in the marine environment. The true costs of environmental degradation include harmful fishing practices and land-based pollution to the oceans. These costs are shared by all New Zealanders.

We don’t understand the true costs of resource usage to those causing damage. The polluter doesn’t pay society. So too do future generations. These damages often affect coastal communities, Mori, and other people who depend on the ocean for their food and wellbeing. This harm can also have a spiritual and metaphysical component for some, such as Mori.

We have not had a good discussion about who should pay for our ocean use. This is an issue of environmental justice.

It is different. It is more about nature’s rights and interests, and it is about looking at how we can give the natural environment a voice in its own destiny.

Some people suggest that traditional human-centric concepts such as justice can be useful starting points to a more ecocentric view. We can see the natural environment as an actor within the human community of justice, and not an object.

This isn’t a new way of thinking. This is why the current prohibition against hunting marine mammals is not only because they are endangered or vulnerable but also because intentionally killing them would be considered morally wrong. Our current laws treat dolphins as special and different, and they deserve a justice that is closer to the one humans enjoy. Maybe it’s because they are more like us than a gurnard and crayfish.

However, the idea can be extended. Nature as a whole could be considered an entity with identifiable rights that can be defended in courts, just like people can seek justice for infringements of property rights (vandalism), or human rights (discrimination). Why should one primate (albeit intelligent) among many life forms be considered superior and have monopoly access to justice?

Instead, humans might be seen as part a complex web with the natural world. This web needs to be respected. We are not resource users. The environment isn’t just a shelf on the supermarket shelves. This view is more consistent when viewed from te Ao Mori, which considers whakapapa, whanaungatanga (kinship relations) to be at heart of environmental management. The moana takes pride of place as an ancestral.

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So society should create institutions that give oceans a voice. This could be a continuation of the innovative legal personhood model that was developed in the settlement process for Te Urewera/Whanganui river. We could grant the moana various rights and powers as a legal entity.

Although it is possible to give the oceans legal personhood, there are likely to be significant difficulties. It’s a large area with many interests and differences. There are many interesting opportunities.

Instead of requiring that resource rentals or taxes be returned to the public purse, we could consider that compensation for past damage or a payment or koha for nature’s services. It could be used to fund regeneration projects that benefit the moana, a person with its own dignity and a living wage for the ocean. Or, imagine the oceans being able take action under common law, like trespass.

Ecological justice shifts focus from regulating human activities to looking at what flows out of the inherent dignity and the interests of the environment. It is like a person.

However, it is important to exercise caution. Change may be more difficult in a marine environment than it is on land. Here, assumptions about the status quo (such a priority of fishing rights over other uses or sea as a wilderness), have taken longer to be challenged.

The idea that the sea can impede the encroachment on people is subversive to economic orthodoxy (although it may be more familiar to the world te ao Mori). Transitions to new systems must be fair to all, including those living under te Tiriti.

Is it not time to invite the marine environment and its inhabitants into our exclusive human community to play their part in achieving ecological justice?

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