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 1 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE
Winter Snorkelling at Motiti Island 2 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE
Environmental Justice in an Intercultural Frame Empowering Local Communities for Sustainability 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. 3 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE
Situating Motiti Island 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. 4 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE
Environmental Justice in an Intercultural Frame Examples of ongoing Motiti legal battles 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. 5 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE
MRMT versus BoPRC [Case NZ EnvC 67, 2017-2018] 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. 6 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE
Motiti Island – Value Overlays 7 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE
MRMT versus the Crown [ Waitangi Tribunal — Case Wai 2521 ] 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) 8 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE
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… [?] 9 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE
Methodology - Building the Problem Dimension of Structure The different “actors” or stakeholders and WHO? their roles/status WHAT? The objects of evaluation attention Framing the performance goals and WHY? challenges The type of indicators or other “signals” HOW? mobilised 10 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE
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 M OTITI T ANGATA W HENUA q The C ROWN (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…. 11 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE
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 S UBSISTENCE (individual/group health, comfort and security) Á E CONOMIC D ISTRIBUTION (stocks and flows regulated in money values) Á E COLOGICAL D ISTRIBUTION (environmental assets & services) Á R ECOGNITION (status within societal/cultural forms & groups) Á P ARTICIPATION (agency in governance and administration) Á C REATION (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). 12 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE
6 Dimensions of Capability & Deprivation A Generic Typology with Application to Justice/Sustainability 13 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE
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 of the status given to different Arguments under each framework, according to witnesses and in the eyes of each of the protagonists. ToW negotiations no one framing will provide an adequate picture. Essential insights are gained from comparison (or confrontation) 14 29/08/2018 European RCE Meeting 2018 – Vannes FRANCE
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