Law at the End of the World
In this podcast, coming to you from the end of the world, Elizabeth Macpherson and Cristy Clark share developments and insights about how law is being used to support outcomes for the environment and those who depend on it - i.e. everyone.
Law at the End of the World
What everyone gets wrong about the rights of nature - Episode 19 (with Erin O'Donnell)
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In this episode, Associate Professor Erin O'Donnell (U Melbourne) joins us as a guest co-host to chat with us about the perils, pitfalls, and promise of researching in the burgeoning field of rights of nature. We discuss the top methodological challenges inherent in doing research about the rights of nature and legal personhood, and provide our thoughts about how to do this sort of work ethically and in a way that contributes to the scholarly field, the community, and nature itself.
As always, we round off with our updates about developments in environmental law including cases, legislation, and policy changes. Highlights include international pressure to implement the ICJ Advisory Opinion on climate change, climate litigation in Australia, and fisheries and conservation reforms and government interference with climate litigation in Aotearoa New Zealand.
People, Place and Nature in Indigenous-Settler Relations
UN experts urge states to support General Assembly resolution operationalising
ICJ Advisory Opinion on climate obligations
Climate Change in the High Court of Australia
Statutory Consultation open: Environmental Offsets Standard
River Thames in London gets first official bathing spot on Friday
3rd Global Citizenship Education Hub
Missed opportunities in the Fisheries Amendment Bill
The quiet but major shift slipped in among the conservation law reforms
New plans to encourage private investment in nature
Climate law changes have 'clearly struck a nerve'
MERCURY NZ LIMITED v MĀORI LAND COURT 2026-NZCA-91.pdf
Ours Not Mines Limited v Hauraki District Council [2026] NZCA 138
Recommendations-for-ethical-engagement-of-IKS-within-the-IPCC
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We would also like to acknowledge and thank our producer, Claire Burgess.
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It's the type of response that says, Rights of nature is so new, and I've just discovered it, my mind is blown, and I have to share my thoughts on this immediately without necessarily going and reading any other scholarship about it. So we are so far into Rights of Nature right now. There are 686 examples of this around the world. That we're no longer in the kind of mind-blown stage. We need to be talking about what comes next, what is it doing, what is the work that this particular law is doing? What did the creators of that law intend for it to do? There's so many sophisticated questions that we can be asking beyond, my goodness, is it possible? Because it is possible. 686 places say that it's possible.
SPEAKER_02Hi, and welcome to Law at the End of the World, where we talk about the future of environmental law. I'm Elizabeth McPherson, I'm a Pakia, a professor of law and a Rutherford Discovery Fellow at the University of Canterbury, New Zealand. University of Canterbury is located in the South Island of Aotearoa in the Tukiwa of Waitahu.
SPEAKER_04And I'm Christy Clark, an associate professor of law at Monash University, located on Boonaron Country in Melbourne, Australia. In this podcast, coming to you from the end of the world, we'll share developments and insights about how law is being used to support outcomes for the environment and the people who depend on it. And in this episode, we're joined by our friend, colleague, and former guest who I'll let introduce herself now.
SPEAKER_00Hi, I'm Erin O'Donnell. I'm a settler and an associate professor of law at the University of Melbourne, and I'm coming to you tonight from Unseated Wurundjry Woe Run Country. Liz, how are you? What have you been up to?
SPEAKER_02I'm good. I'm really busy again, actually. I've been quite busy with a bunch of law reform work, mostly because the New Zealand government just is really trying to cram through a lot of policy projects before the election, which is going to be in November of this year. So one of those things is an amendment to the Fisheries Act. I gave a submission today to Select Committee about that legislation, and I'll explain a bit more on my update later on what some of the issues with that legislation are. Otherwise, I've been doing quite a bit of field work for my Rutherford Discovery Fellowship, which we spoke about in the last episode of the podcast. And just working through some writing and publications, finally had a couple of articles that were in transnational environmental law come out, which was good because they've been a long time in the editing process, let alone the peer review process. But one was about the fast track legislation in Altieror, which we've spoken about a bit on the podcast. And actually, I'm pretty sure that was the first article to be published about that legislation. So it was nice to get something out there. Um, and another one with Julia Torres, my former PhD student and postdoc research associate, and that was about some river rights cases in Ecuador and Colombia. So otherwise, I've just been trying to keep track with policy developments and do a little bit of commenting in the media, but try not to do too much of that because it can be very time consuming. Um and speaking of time consuming, we're also looking at moving to a house a bit closer to the kids' school. So I've been spending a lot of time going, looking at open homes and doing a bit of research um as to exactly what we want to do. So that's about me. I might throw to you now, Christy. How are you and what have you been up to?
SPEAKER_04Well, before I talk about me, I just want to say sadness of saying goodbye to your beautiful view. Yes. But yes, I do think saving on all that, commuting to schools and things will probably be very uh worth it. So all the best uh with the house hunting. I am at the beginning of week three of a new job at Monash. And so mostly what I've been doing is going, ah because I think anyone that started a new job will know that it's just like there's so much to take in. It's been it's been really great, but part of the greatness has also been the reason why, like it's been a lot. On our first day, for example, um, there were eight of us starting at the same time. So we also met in the morning to be let in and get, you know, given the keys to our offices and things, and then we all got taken out for coffee. And then the dean very kindly encouraged people to drop by our offices to welcome us and to have a chat. And a lot of people followed up on that, which was delightful. But it was in this sort of series of conversations in the doorway of my office, and I think many of us, more particularly me, but awkward academic of not quite knowing how to end a conversation.
SPEAKER_03So then I'm just having all of these kind of introductory conversations and then sort of standing there going, I don't know what else to say now over and over again.
SPEAKER_04So it's been a big couple of weeks, but it's been really lovely. I've had a few articles that came back from journals with their kind of resubmission deadlines turnaround quite quickly during that same two-week period alongside sort of inductions and things like that. So there's been quite a bit going on in the background, which has been nice. And last weekend I went up to Canberra to attend the wedding of one of my past honours students, which was really, really delightful. And um, I don't know if you've seen Bride and Prejudice, Erin or Liz. Yeah. But um it it um at one point I very much felt like the white guy at the wedding in the dance. I was not talented, and the person who was attempting to instruct me in the footsteps gave up. Oh no. So there was that. So um good, but again, busy like you. Um, how about you, Erin? What have you been up to?
SPEAKER_00So I've actually got a really big week coming up. On Wednesday, May 20, I'm speaking at a Melbourne Design Week event that's being hosted by the National Gallery of Victoria, and they are running a series of panels on the theme of Symbiocene, which is a Glenn Albrecht idea. I think I think he was writing on this in about 2016, talking about a time in the future when life works with life to further life so that all can thrive. That's his definition. And so the idea of this event is that we time travel into 2100 and we explore different aspects of what society could look like at that time. So I said yes very much, having mine, having in mind, Christy, your work on Utopia as method. Because I find that these kind of co-design opportunities in public, where you get to articulate the kind of world that you can create together and how much better it could be, not in a kind of unrealistic way, but in a bridging way to say, here's how we might be able to get from where we are to 75 years into the future. It really anchors that for people. It gives them something to really aim for and to keep in mind. Like the world is sending us so many negative signals all the time that giving people something that is a little bit robust to hold on to as something hopeful and optimistic that they can have agency in creating can be really powerful. So that'll be Wednesday. And then Thursday, I'm launching my new edited collection called People, Place and Nature in Indigenous Settler Relations. So you guys have already mentioned that on the podcast. So thank you very much. But we are, yeah, finally having our official launch event. It's co-edited with one of my favourite collaborators and longtime friend Mel Kennedy, who's a tatty tattdy woman and who's currently completing her PhD at Monash Uni. So yeah, it's going to be a fun week of lots of fun events and kind of engagement-oriented activities. Liz, what are we here to talk about today?
SPEAKER_02Cool, and congratulations on that book. I wish I was able to be there for the launch. It's yeah, it's such a great book and such a topic that's close to all of our hearts. So I think we're all gonna, you know, want to get a it's a it's a physical book, isn't it? It's not just a yeah, we're all gonna want to get our hands on a physical copy. I've already got the library to get one.
SPEAKER_00And I've just put the website up today as well, which has short videos from all of the chapter authors talking about why their work matters and reading one of their favourite passages from their own chapters, which is just a lovely way to experience the author's perspective on their work.
SPEAKER_02Yeah, that's so cool. Well, we'll definitely put a link to that in the show notes. Thanks, Erin. So lately I've been thinking about the proliferating body of literature about the rights of nature. I've been thinking about where this literature is coming from and it's sort of different variations and iterations and the trends in that body of literature. And there really is an absolute flood of requests for peer review that that people like us who are working in similar fields are getting to review articles that are referring to the rights of nature or legal personhood, or maybe they're framing it as the more than human or non-human rights or post-humanism, ecological jurisprudence, wild law. Have I missed anything? What are the other iterations of what this can be called? Legal subjecthood. Legal subjecthood. Yeah, so there are lots of these terms of art that are that are used to refer to overlapping theories in a field of scholarship. And a lot of this work is actually being published. We're seeing a lot of review requests, but we're also seeing things come out. And most of it is coming out of Europe in North America. I am seeing a lot of issues come up in this growing body of scholarship, which are evidence of methodological problems. And I really see these problems as a microcosm of the broader problems that we see with Eurocentrism affecting environmental and social justice scholarship. So obviously, with you, Christy and Erin, we've had lots of discussions about these issues and the way that they're manifesting in our field and related fields, and we thought it was just good to have a bit of a conversation about them. This conversation that we're having today follows on from a book chapter that's just been released as a pre-print on SSRN, which is going to be published in a book that Erin and Cameron Holly are co-editing and hopefully will be out soon as a physical book. But in the meantime, if people want to read the chapters, a number of them have been released as preprints. And we wrote one, Christy Hayden and I, as part of that book, which is raising what we see as some troubling aspects of the rights of nature or the legal personhood scholarship, but also trying to be quite constructive about how to manage the risks inherent in this sort of research. In my personal view and reflecting on this and advance of preparing for today, I think that most of the issues that we're seeing in this body of scholarship relate to three Ps. So the first P is positionality. It's probably been completely taken for granted in Western academic disciplines for a very, very long time that European or Western worldview is the dominant mode for setting out values or criteria in order to assess whether something, a governance framework, for example, is good or whether it's bad. So people who hold this Eurocentric worldview often aren't even aware that they have a position or a worldview, but they are using that position in order to examine or evaluate a system that is probably quite foreign to them. The second P, as I see it, is place. So a lot of the scholarship in this field is not parachute scholarship. We know what parachute scholarship is. We know when people parachute into a place, don't stay long enough to understand what's going on and then fly out. We're seeing a situation where the parachute hasn't actually got a plane and is living happily on the ground on the other side of the world. They're just nowhere near parachuting in, even. And it's quite a feat to do this from a comparative law perspective, let alone from a cultural or a linguistic one. So how could someone from Europe who's grown up and been trained in all of those systems assume to know much about, say, Aotearoa, for example, if they hadn't visited or lived here or trained here or spent a long, a long time here? For me, that's very hard to imagine because I've lived here my whole life and I still hardly know what's going on. This sort of research has been called the God trick or the view from nowhere by Donna Haraway. And I think it's quite a useful way to think about this research because it is really someone lifting themselves up and hovering as an eye of God and trying to kind of judge and evaluate some a system that they're not really connected to. And it also really often shocks me because often there are similar environmental challenges or governance issues everywhere, including the places where that researcher could be embedded, but they often choose not to work in their local area. And they and they might choose to universally work in areas that are not their local area, so that it's not an add-on even. I think the third P that can be a problem is privilege. So when you're doing research in a cultural, political, and legal context that you don't necessarily understand very well, your research can not only be quite unhelpful, it can actually be quite harmful. If you're unaware of the on-the-ground struggles in a place because you don't have relationships there, your research can undermine those struggles. For example, if you were writing an article trying to put an argument forward to say that legal personhood is actually a bad thing, that could get picked up by the media, it could influence politicians that are trying to attack legal personhood models, it could be read by judges and used in legal disputes, it could detract funding and attention away from real on-the-ground challenges. But because you have no skin in the game, you're coming from a position of privilege where you're not connected to those real world struggles, you wouldn't even know if that was the case. And you would be very unlikely to be held directly accountable. I see those issues with those three Ps come up on both ends of the spectrum of the scholarships. We see it with this research that says, oh, rights of nature is the answer to all of our problems. And we also see it in research that says rights of nature is fundamentally flawed, but I'm the only person to have thought of that. So here's my reason why in my paper. So both of those groups tend to be doing the same thing. It is rare that they would have any relationships to the places and the people that they're writing about, and they usually don't cite local knowledge holders as a general rule. So I know I'm massively generalizing, but I wanted to set up some parameters for a bit of a flowing conversation about this and how we're seeing it come up in our work. So today's episode is focused on what people keep getting wrong about the rights of nature. And I'm gonna kick over to Erin first for some of her reflections.
SPEAKER_00Thanks, Liz. And I think that kind of framing is incredibly helpful for people because it it gives us some jumping off points to move into this conversation with. And we're not here to tear people down for the sorts of research that they're doing, but we are here to ask them to really think hard about what they're doing. So I'm gonna start with saying I feel like you've outlined a spectrum there. I think there's almost a third type, which I'm still getting peer review requests for. And I'm gonna put it out there, guys. I'm just gonna reject these when they come in front of me. And it's the type of response that says, Rights of nature is so new and I've just discovered it, my mind is blown, and I have to share my thoughts on this immediately, without necessarily going and reading any other scholarship about it. Um, so we are so far into rights of nature right now. There are 686 examples of this around the world that we're no longer in the kind of mind-blown stage. We need to be talking about what comes next, what is it doing, what is the work that this particular law is doing? What did the creators of that law intend for it to do? There's so many sophisticated questions that we can be asking beyond, my goodness, is it possible? Because it is possible. 686 places say that it's possible. So my comments are going to be a bit methodologically flavored, but it's a reminder about why we start with a literature review, right? Like you need to be thinking about how are you building on the knowledge that is already present in this field? And it's not falling into the trap of saying I have to come up with a unique gap that I'm now filling. It's about saying a lot of people have contributed really interesting ideas. What do those ideas prompt in me? How do I build on them? How do I add to them? How do I expand? How do I identify the tension that's within them? So, yeah, the first step is we're very excited that you've discovered this field. It's a rapidly growing transnational field. Welcome to the conversation, but please join the conversation, don't create a new one. My second point about methodology then is to think about what kind of scholarship that we're actually doing. And I think so often these critiques of rights of nature get a bit stuck with some of their methodology. So it can be sociol and empirical, and it can be looking at on-ground outcomes. And that's where I think your book chapter is incredibly important because it gives people a bit of a reminder of the necessity of doing that well and doing that with integrity. It can also be focused on the doctrine. So there are a lot of people who come into Rights of Nature scholarship focused on the black letter law, focused on what they see as the legal theory questions that emerge from the specific laws themselves. And doctrinal work is something that legal scholars often feel like they can just do, right? They feel pretty comfortable with it, but they don't often think about how they're doing it or why they're doing it, or what that doctrinal analysis actually means. And in the rights of nature context, it's really not possible to do good doctrinal analysis without engaging with legal pluralism. And I know we'll be speaking a bit about that later, so I won't belabor that too much. But the question of whose law is really, really important. And I think the other part of that is thinking then about what are the unspoken assumptions that underpin these ideas in the law that we are now analysing using this doctrinal analysis. Legal personhood is this big idea. And Liz, you've just given us a whole bunch of terms of rights of nature. Rights of nature is often this umbrella term for a whole lot of stuff that sits underneath it. Legal personhood is a bit the same. So even when somebody's focusing in specifically on legal personhood, and we do see scholars critiquing rights of nature, saying it's just not possible for these particular entities to have rights or they shouldn't have rights, they're not engaging with the scholarship that unpacks what legal personhood actually means. And most doctrinal examples of legal personhood don't often articulate what it is that they mean by legal personhood in those circumstances. Sometimes they do, and there's, I feel like Wanganui is a really good example of actually articulating what it's talking about. But most of the time, particularly in judgmentate law, you're inferring a particular model of personhood from the context. And if we don't think about what those models are, then we can get stuck into some kind of what I call category errors that come through in this space. And so for me, I think starting with the work of Nari Nafine and Anna Greer in actually articulating the different ways that the common law, the Western common law frameworks, actually define and articulate and construct personhood can give us a really strong starting place for then making arguments or understanding arguments about rights of nature. So not to delve into this with too much detail because I think you could easily spend days talking about some of this legal theory around personhood, but Nafeen's 2003 paper articulated three different models for the way that law understands legal personhood. And one is the legalist model, in which it's really highly flexible, very plastic, can be applied to almost anything. One is the moralist model, a normative argument that's grounded in human values, where personhood is an extension and a reflection of the human. And then thirdly, the rationalist model, where you are creating a governable entity in law. And so she draws these models out from the scholarship and from the case law. So she says these are present in our legal frameworks. And positioning, understanding which one you're actually positioned in when you're having a conversation about personhood is crucial to actually mounting an argument or building a case for whether personhood is actually an appropriate response. So for instance, critics of rights of nature often include arguments of like natural entities like rivers and mountains just cannot be legal persons, either because they have no agency and no mind and therefore can't be rational persons, or because there's something offensive about extending the idea of personhood to an entity that is so very different to a human being, which is that moral argument. And yet it's very, very rare for any of these critics to actually articulate which model they're aligning themselves with and why they've chosen that model. They often seem completely unaware of Nafeen's work in this. And she's really the foundation on which we're all standing. So under a legalist framing, it's actually perfectly possible for nature to hold rights to have personhood. It's it's the decision of the people who make the law about who to extend that to. And so failing to engage with this scholarship leads us to try and we end up arguing either it's not possible for a river to be a person, at which point black letter law will in fact tell you that you're wrong, because 686 examples, over half of which are hard lore examples around the world. Or you end up arguing that a river shouldn't be a person, which is a moral argument, and you're free to make it. But we should be honest about the fact that that's what we're doing. We are then making a moral or a philosophical argument, an ethical. case about why rights of nature might be an inappropriate thing to do. So I think the other question for me here is around the idea of the problem that the rights of nature example that you're investigating is actually trying to solve. So I think too often people come in with an expectation that they understand what rights of nature is trying to do. It's trying to get nature into court or it's trying to increase environmental protection. And then if it doesn't do those things, or if it can't do those things, then it's somehow weak or ineffective or a failure. And so for me, again, this gets to the heart of the problem you're trying to solve. Do you need to go to court? Well yeah, then you probably do need legal personhood. But if you don't, personhood has many constraints and it creates problems in its own right. So maybe you need a different form. And an example close to home for me is Birarung, the river that flows through the heart of Melbourne, which in settler law is now a living entity but not a legal person. And it draws critique from legal scholars and from environmental advocates because this legal model doesn't create legal rights and legal personhood and they feel it doesn't go far enough. It's not powerful enough. But this critique then really fails to understand the problem that people were trying to solve in creating this legislation in the first place, which was that they wanted to address the relationship between people and the river. And these critiques therefore then overlook the powerful role that the legislation is actually playing in creating and shaping the relationship between people and the river.
SPEAKER_04So I think one of the things that I keep coming back to and it it feels like really boring response but but both of you have touched on it so I'm in good boring company. Which is just it's so important to do the work. One of the biggest things that I find unhelpful about scholarship that might sort of be coming out maybe a bit too early for peer review or or sometimes published is that there seems to have been sometimes an attempt to come in fresh and revolutionize the field without engaging with the existing scholarship and also without engaging with the context of the legal arrangements. Because even doctrinal scholarship, as you said, it needs to contend with legal pluralism. But in contending with legal pluralism, you need to actually contend with the context of those other legal systems and those other legal arrangements because otherwise you're using the wrong interpretive lens to interpret the legislation that you're even looking at or what it's doing, what it's trying to do, what it's capable of doing. But the the context includes you know it's history, the politics and then deeper issues which get quite jargony like epistemology and ontology. And these issues around the nature of knowledge or how we define knowledge and how we define reality itself mean that it just makes it really easy to get things wrong because we simply don't know what we don't know. And so we may think that we've covered all of the issues but if we haven't contended with the fact that we're for example defining knowledge in a totally different way or defining reality in a totally different way, we can't even begin to understand all of the errors that we're making in that interpretation. In our chapter in terms of the way that we um talked about this and and Liz you touched on this we talked about this in relation to the outsider gaze and basically saying that it's inevitable that when we engage in research that we're going to bring along our own ontological and epistemological assumptions. We're going to bring our own understanding of what the world is and the world that we live in and we're going to bring our own ideas about what knowledge means, how we categorize knowledge, how do we define and test knowledge and then we're going to bring those to the question of what makes a good legal arrangement or governance arrangement, what enables good environmental, social or economic outcomes and how those could be measured or evaluated. And probably most importantly in certain contexts the kind of timeframes that we would be expecting to even be able to engage in those judgments. And I think the really important fact here is that the solution to this isn't to attempt to rid ourselves of these biases. Like yes we should but that's never going to be the solution because we actually can't and that's the solution. The solution is to acknowledge that we can't that we're incapable of being neutral that we cannot adopt a view from nowhere and that we need to bring some humility to our scholarship and to acknowledge the limits of our position. And I think people are starting to get a handle on the idea of positionality statements but perhaps not the why. So they almost become like a statement of credibility or a statement of guilt or a statement of here's a bit of my personal history just so you know like they kind of like they kind of just sit there like a kind of I don't know what I'm doing but just by the way my middle name's Penvose. Like it's kind of this sort of like little sharing moment. And in fact one of the main benefits of a positionality statement is to say I acknowledge I cannot be neutral. I do not have a God view of this situation. Here are some ideas that are relevant to this particular research and this particular piece of writing that I'm doing that tell you what some of my assumptions and limitations are likely to be as far as I can articulate them. So that you can read what I've written and we can share the knowledge of my limitations together and we can know that this is a partial view coming from from these assumptions. You can read it through that lens um and and by bringing it to the forefront I can be more aware of it and more reflexive of it as I go through the paper. That can be that can be very helpful and that's why I think they go hand in hand. The flip side is not just coming in with this kind of God view, but actually saying I'm here to discover the truth because what it implies is there is such a thing as an objective truth and that you could have any sort of access to it. Another one that we mentioned was an entitlement to knowledge. I think it goes along with some of the things that we've been talking about beforehand. Western academia and Western scholarship tends to tell us that we we not only um can research anything and anywhere, but in fact we are obligated to and we should we need to bring ourselves to every conversation and I think recognizing that sometimes we're not entitled to certain kinds of knowledge and that therefore we probably need to not step on that area, that we need to actually step outside of that area is a really, really difficult thing for a lot of us Western scholars to do. But it's something to really carefully be reflexive about in this space. There are some things that just don't need us and being aware of that is important but it I'm not going to pretend it's easy. It's actually not always easy to know when that's the case and I think people're entitled at least questioning whether or not you are actually adding any value and whether or not you have anything to offer in a reciprocal sense I think is an important consideration to bring to the question. And then linked to the other one but we brought it in in at its own heading within the chapter is this idea of metrics and evaluation. A real tendency that we have um in legal scholarship particularly I think in environmental areas and Liz you you mentioned this at the at the outset is the question of like is it working yet? And there are so many things to consider when asking that question. Time is obviously massive like on what time scale and and how would we expect changes to be visible within the time frames that we're looking at by and large we couldn't. Two is what working yet? And that goes to your point Erin like what was actually being sought to be achieved because if if it was a transfer of authority and you're measuring whether the water's cleaner like you're talking about two different things. And then three by what metrics maybe there are completely different ways of measuring benefit that you that you don't actually have access to and so you may not be in a position to be actually espousing any viewpoints on whether something is working or not. And Liz you mentioned this before the harm factor I think it's in this evaluation and metrics area that can be particularly harmful because Western scholarship is given a lot of credibility and a lot of authority and the risk of somebody coming and making an evaluation on the wrong terms with the wrong kind of concepts of time and purpose or aims and declaring something to be working or to not be working in a way that completely undermines what in fact people need to happen on the ground is a genuine risk and you probably don't know that you're actually able to do that unless you're on the ground and part of those conversations. So we turned in the article from there to making a number of suggestions for more ethical research and I should really foreground here that in talking about all of the mistakes that can be made, we were drawing just as much on our own mistakes. This wasn't just like pointing fingers at others and saying this is what you all got wrong. We were reflecting on things that we had gotten wrong as well. And so in looking at suggestions for more ethical research or ways of actually engaging in this in a positive way we were looking at some of the lessons that we'd learnt from our own mistakes. But something that I did just want to raise which was someone else fixing this issue or or attending to this issue is that there are some really lovely emerging examples of people studying things closer to home. So I mentioned last year Liz about marking a PhD thesis and going to Oslo for the defense and this was Katarina Hobden's PhD thesis. And she was European but she'd lived for quite some time in England as well. So she'd picked up three case studies in England and Europe meaning that her research was adding a really novel dimension to the literature that existed at the time and that she could draw from a really deep understanding of the legal, cultural and ontological context of the case studies that she was looking at. And one thing I really enjoyed in the thesis was that we often talk about relationality as a key feature of many of these new governance arrangements and we contrast it with a kind of nature as resource or extractive approach of a lot of Western law. And in her analysis she argued that nature as resource is a form of relationality that it's a relation of severance and that it's that severance that's being foregrounded but in seeing it as part of relationality it allowed you to step behind what was being foregrounded and see the history of other kinds of relationality that not only had existed but that continued to exist alongside the severance that was being foregrounded and privileged. And so you could dig into the history of the place itself to discover sources of alternative ways of relating and I think that that left a lot of room for kind of digging into that history into those local cultural stories and narratives and assumptions that drew from place.
SPEAKER_02Yeah I really enjoy the research that looks at relational governance or the potential for rights of nature or legal personhood or other arrangements in other parts of the world because I can learn a lot from that. We don't have a lot of literature about a lot of those places but the deep connections to water for example they're there anyway. It's quite refreshing when you get one of those peer review requests and it sometimes you can't do it because you don't know enough about that place. But you're like it's great that you're doing it. And I think too yeah when Erin was talking about you know the examples that you were giving Erin um and referring to the scholarship too and then at the end you came back to Burrong because of course that's like that's the one that you are immersed in every day the river that you're most connected to and so you're seeing this play out like in real time in front of you in terms of the local context in. And I think what we're saying like we're we're we're we're not trying to say that you can't do research in places that you're not fully inducted. We're not saying that at all but we're just saying just being aware about where you're coming from is quite useful and much more useful than this kind of Eurocentric approach that we seem to be coming across more often than not these days. Also with Hayden and Christy we we ended up talking about more ethical research because I think we're conscious that this is really hard for all of us and I don't want to claim that there's a way to do this that's perfectly ethical but I think there are better ways we we can do it better. And so in that chapter we gave a few pointers about what we'd learned along the way about more ethical ways to engage. And first of all we did refer to the large body of work that's come before us, as you should do, in terms of frameworks for ethical research. So there are lots of frameworks and guidelines for how to do research in relationship with communities, for example, indigenous communities or local communities and we refer to those in the research. There are also a lot of frameworks that are about sort of weaving indigenous knowledge and or multiple knowledge systems. And so we've referred to those a lot of those have been developed by indigenous researchers who are also working with Western science or Western law and trying to figure out how these different knowledge systems interact. So I think researchers can start by digging a little bit into that methodological research. I even actually think that the comparative law methodological research is really useful and I know I use this example all the time but it helps me so much is the story of the Odyssey and how we think of it as being a journey to distant foreign exotic lands but it's really about coming back home. It's really about learning from our engagements with other people and other communities in order to better understand ourselves. The destination really is to come home and make life a little bit better for our own community and and the people around us, I think. So starting with those frameworks and then especially for Christy and Erin and I like we we talk a lot about relationality because thinking of these governance approaches for freshwater as being relational is more helpful to us than thinking about rights of nature or legal personhood a lot of the time as a kind of a collective descriptor. So we talk about relationality these are frameworks that are based on a close relatedness between people and place. But we can also take that same relational approach to how we conduct research. So we talk about this in the article and I think I've for sure learned a lot from Hayden about this around applying the colour that are the foundation of the Teotupur model to just everything that you do in life because that relatedness helps us engage better with other humans as well as you know the more than human if we call it that. Definitely studying yourself first. So what what you were saying Christy around acknowledging the biases and the lenses that you bring, I think just engaging in an exercise around that, even if you don't end up oversharing your positionality statement in your publication is still a really useful reminder of how you're looking at things um how you might limit the conclusions that you draw as a result. So we talk about that in the article. We also talk about minimising your burden um and I think this is the other side maybe of of the privilege and the place stuff that I spoke about at the beginning. Because there's a large body of work that's come before you can choose to rely on some of those findings that have that have been developed by earlier researchers. You can collaborate with researchers in the field. One thing that that we do quite a lot is we co-author with people who are more knowledgeable and more connected to the places where we are researching if there are cultural differences. That's always really useful if there are language differences. And then obviously data sovereignty data research best practice research ethics free prior and informed consent respecting the autonomy, the authority and the sovereignty of the communities that we're researching with is a non-negotiable one point I made at the beginning was around how often you see with the more sort of Eurocentric Brights of nature scholarship, it might be about the global south but it's still citing predominantly almost entirely European authors. So I do think that making a conscious effort to make sure that if you're talking about indigenous systems that you're citing indigenous knowledge holders, they are the best authority of their own legal system in history. I mean that I can't believe I even have to say that but I think it's something that I'm always very conscious of when I'm doing peer review is what's the authority for some of these claims that are being made.
SPEAKER_00Yeah I've got like a kind of a few thoughts there. I think Liz you're absolutely right in terms of citing indigenous scholars there is such a wealth of indigenous research out there that we are so lucky to be able to go and read and learn from that we need to be citing these scholars. Citation politics is a thing and people need to be aware of that and consciously choosing who they are citing and why. And your positionality statement helps you with that as well because it shows you where your blind spots are and it helps you think about well who's whose voices do I need to seek out in order to address the things that I don't know. I also just want to highlight again yeah totally agree with Christy's point about novel cases and working close to home. I was recently an examiner for Cyril Fayet's thesis in which he looked at the possibility of personhood for the Rhone River. So the Rhone River doesn't have legal personhood but it is something that communities are advocating for. And so he could then ground his work in the laws, the landscapes, the languages and the people that he was very familiar with. And he's produced some really interesting findings that add real richness to the scholarship on rights of nature. So I think people are often a bit afraid to step away from what has rapidly become some of the canonical cases. But actually this is where the really interesting work is happening and it enables you to then bring new perspectives on the established cases. And my final comments then really are going to center on the idea of agency because I think this is something that trips scholars up in their kind of critical approach whether they're being critically pro or critically against rights of nature. And I see it coming up in two quite distinct ways. So firstly it's that human agency that is central to the creation of those rights of nature laws. They're not emerging in a vacuum and that's something you guys point out in your chapter as well is that these laws are created by human beings who are responding to specific contexts, often trying to solve really urgent problems and they're constrained in their solution space. So trying to think about who is doing it and why they're doing it. Judgmate laws for instance are responding to individuals and communities who bring that case before the court so there's agency both from the judge as well as from the community. Legislation can be a negotiated process that has a long incubation period and there's often a great deal of care that has gone into crafting specific language and legal frameworks about personhood. I think you guys have both written about the institutional thickness that surrounds Wanganui's personhood, for instance. So paying attention to that and the agency of the humans involved in creating these legal frameworks. I think secondly there is this ongoing debate about the agency of natural entities. And again we see this in particularly Eurocentric scholarship that really struggles with the idea that a river or a mountain or a lake can have rights, can exercise agency. And there is an ontological dimension there, as Christy's already talked about. But there's also colonialism. And I think to assume again that that white Eurocentric worldview is objective or applicable or justifiable when engaging with legal personhood laws coming from indigenous people or global majority countries is a form of colonialism. You're taking their work and applying it within your framework without acknowledging that that's what you're doing. But even within white Western scholarship there are models for engaging with agency of the more than human. And we should be paying attention to that work as well. So my starting point for that is Margaret Davies, particularly her work on her book Eco-Law. Her analysis of agency and the normativity of law is a really helpful starting point within the kind of what in Australia we call settler colonial legal frameworks, but would, you know, globally might be talked about as global north or western legal frameworks. And it is a way of thinking more broadly and more interestingly about this question of agency and who has it and who doesn't. So I think there's a lot that we can begin to grab hold of in this space. There's enormous depth here and so it's a matter of just choosing to engage with it and seeing the sophistication of the scholarship in the rights of nature field.
SPEAKER_04Thank you so much, Erin. And yeah, I I totally agree and incredibly briefly because I will um wrap this up while also giving you a moment to respond, Liz. Um, is just that one of the things I think that is really beneficial about case studies that people bring that are closer to home is that it focuses their attention on the other sources of understanding agency and understanding relationality closer to home. And that's not to say that those are more important or that they're more significant. But I think it closes the gap a little bit. Because I think that there's a tendency to think of um a Western ontology or Western lore even and culture as being entirely captured by modernity and by severance and by dualism. But we don't have to go very far back into our own history to find a world that was, you know, enchanted, to find a world where agency existed and where those relationships were incredibly tangible to people and where people felt at home in the world, not outside of the world in that God viewed not only do we not have to go very far back in history to find that, but we don't have to go very far in time, like in location now to find examples where people are still engaging with those same beliefs, where they're still doing things which indicate that that continues to be present in people's rituals and ways of engaging with the world today. And so the the gulf that we might perceive as existing is not as big and it's not as difficult for us to actually start to build those ontological bridges because our ontologies aren't quite as alien to each other as we might first assume if we accept this kind of dominant, very dualistic, very kind of nature as resource view, which I don't think many people really wholeheartedly subscribe to. Like you scratch the surface and it's just not there. And that's something that I confess to have been a little bit obsessed with and that I think is is a really interesting thing and that I think provides for richer, more interesting conversations to take place in relation to the comparisons that can then be made.
SPEAKER_02Yeah I think that's quite a hopeful note to finish on too because I think that part of the reason why this area of scholarship has taken off in the way that it has is because so many people are looking for better ways that we can get better outcomes for environmental law, for example, but they're also just looking for a connection. I think people are are desperate to rebuild that severed connection if they feel like it's been severed or to or to find that it was never severed. So to build that relationality I think people are really drawn to that idea and that anyone can benefit from that reconnecting to place and to nature. I think too I mean um Kanichi Matsui who's the professor who hosted me when I went to Japan a few years ago he said to me everyone's searching for authenticity and it really stuck with me when he said that. It took me a while to understand what he meant but often people are sort of fascinated by indigenous culture for example because they see a more authentic connection to nature and they would like to have that too. But I do really firmly believe that we can all have that and as you say Christy we don't have to travel far in time or far in distance in order to to find that connection. So let's hope we're seeing more postgraduate students come through doing projects that are relational in other places around the world so that we can kind of build that you know coalition of hope, right? As Anne Paulina says because it's going to take all sorts of people in all sorts of places in order to shift the dial. Yeah. So let us all just thank you so much, Erin for jumping into this conversation with us. We didn't want to have it without you and you've added some really interesting dimensions to our thinking both in terms of theory and doctrine and not just the really sort of legal geography lens sometimes that that Christy and I are thinking in when we're doing that place-based work. And you do a lot of place-based work too but I think that the doctrinal and the theoretical contributions that you've made today around that scholarship were really useful. That's the big thing that I took away.
SPEAKER_00Thank you so much for yeah for having me as part of this and I think just to pick up on the point that you kind of you both made there about the importance of this work and the search for connection, collaboration is also the way forward. Like we all work together with so many scholars and so many communities and the kinds of work that we do. And that collaboration is still a little bit frowned on within legal scholarship but to me it's also the best way of you know finding out what you don't know creating a space for a conversation that's a lot richer than it sounds just with your voice talking. Totally agree. Absolutely thanks so much guys.
SPEAKER_02Thank you. So what's new in environmental law? In this next section we discuss any developments in environmental law including legislation, judgments, publications and news. So Christy, do you have any updates to share?
SPEAKER_04I do have a few. So I want to start with the United Nations because many people will be familiar with the fact that the International Court of Justice handed down its climate advisory opinion in the middle of last year. And it was an incredibly important advisory opinion talking about state obligations in response to climate change. Talking about how climate law could not be interpreted in isolation but needed to be understood holistically and that included human rights. And talking about you know the fact that essentially failing to make the most ambitious efforts possible under the Paris Agreement and and failing to prevent further climate change could in fact be an internationally wrongful act. So it was a really significant climate advisory opinion. And then when the conference of the parties took place towards the end of the year, it was very, very difficult for campaigners or or those states who had really been pushing for the climate advisory opinion to get much traction on the text during the Conference of the parties or the COP, which given the timeframe between the two is probably not surprising but it was quite disappointing. And partly in response to that but partly also because the advisory opinion was in response to a UN General Assembly resolution requesting that the opinion be given, there has been a campaign to bring a resolution to the United Nations General Assembly acknowledging the advisory opinion, welcoming the advisory opinion on states' obligations in respect of climate change and then further calling on states to comply with their now acknowledged binding legal duties to prevent and repair climate harm, including in relation to human rights and to further request that the Secretary General submit a report focused on how to operationalise the advisory opinion notably within the existing budget. Which I think speaks to how significant the budget crisis at the UN is at the moment. So that's going to the General Assembly on the 20th of May there's been an enormous amount of politics in the background around trying to get people signed on to agree and really unsurprisingly probably to anyone listening the major stumbling block is the US at the moment. It's not necessary at the UN General Assembly to have a unanimous vote in order for a resolution to get up but unanimous votes are preferred for obvious reasons. Where there's not a unanimous vote the next preference is for those people who don't agree to abstain. But it is still possible to have a resolution with people voting against. It's not a situation where there is a veto like in the Security Council. But the more people who dissent or abstain, the weaker the resolution tends to be and the less real impact that it can have going forward in in international law and I guess just in international relations more broadly. So that's happening on Wednesday and I think it will be very interesting to see how people line up and several people, several states not people, but several states will almost certainly line up before the United States because they do see the risk of voting against them as being not worth it. But other than that I'm just not I don't know specifically how some of the bigger states are going to go yet. So that will be interesting and hopefully it will still provide some opportunities for some work to continue and for things to move forward. I know in relation to the advisory opinion there is a lot of work going on to bring the text to not just the Conference of the parties for the Paris Agreement but also for all of the other international environmental law fora that relate now to this very holistic advisory opinion. So in relation to biodiversity, in relation to oceans, in relation to all of those things with the view that some of these are going to be more amenable than others because some are just less political, they're less high level and that any progress is still progress. And that the more this kind of whole architecture can kind of be lobbied, the more likely it is that this stuff can actually start to kind of move its way through the system. So this is just one of many pieces of action. But I think I think it would be quite telling. Yeah yeah yeah absolutely and so on that point I've mentioned it before but last week what is widely considered to be the High Court of Australia's first climate change um first climate case was heard. So in Australia our peak court is called the High Court. It is the the sort of the point of last appeal and so this um this case which is known as the Denman case it's MAC Energy Australia and Denman Aberdeen Musselbrook Scone Healthy Environment Group and another is being what was heard last week and on Wednesday in the High Court. And interestingly because it's such a significant moment I guess in Australian climate litigation quite a number of amicus submissions from experts on the issues were um accepted by the court and for those non-lawyers who might be listening amicus or amicus curiae is essentially a friend of the court and so they're people who will provide expert evidence submitted in writing to the court rather than necessarily being a witness being called by one or the other side. A central question for this case is whether a decision to approve a coal mine extension should have considered the mine's scope three emissions. And you'll remember that scope three emissions are those that are created by burning the fossil fuel, in this case coal, that's been dug up at the mine and exported elsewhere. And it's one of those ones that states and a lot of coal mines for example like to pretend have no relevance like we didn't create that, the person burning it created it. And so it's whether those emissions should be considered and whether the climate impact of those emissions can be considered impacts at a particular locality in this instance the locality of the mine itself and the local community. So we've been seeing and we've discussed a lot this increasing trend of courts being willing to consider scope three emissions in the consideration of impacts and this is including in Australian jurisprudence, particularly in relation to coal mines, the question of linking those impacts back to a particular locality that kind of causation issue historically was considered to be much trickier. It's attribution science, right? But for example the Sabine Center and the Centre for Climate Engagement from Cambridge put in an amicus submission on this issue and they noted that this test for causation that's actually been established both by the New South Wales Land and Environment Court, which is where this is being appealed from and by the full federal court which is our other, you know, the next highest court below the High Court at the Commonwealth level has found that the impact doesn't actually have to be measurable. You don't have to say this is going to produce a climate impact and it's going to be felt in this location at 0.x degree heating or whatever whatever. The test is actually just whether there's a real chance or possibility of impacts and that they have actually already accepted that there's a near linear relationship between emissions and global warming. And that there's a near or approximate linear relation between warming and climate impacts not just at the global but also at the local and regional level. And so there's now this body of jurisprudence which says actually this test for causation is not very strict and to the extent that we need to prove causation the science is pretty clear now. It's going to cause an impact like we know that it's near linear. One of the interesting things I think about this argument is that it actually draws from a number of unsuccessful cases and these were in torts for example in Sharma and Pabay Pabay. So they were unable to be successful because they couldn't establish a duty of care in both cases. But in the meantime what was established in these cases was this clear causal relationship between fossil fuel extraction and local climate impacts. It's these that we're building on now with these cases which will hopefully not being based in tort have different approaches. There's also been successful cases particularly in New South Wales with for example Gloucester Resources and the Minister for Planning but also the Warata Coal case where again scope three emissions were considered to be relevant and where this nearlinear impact was considered to be sort of sufficient as noting a local impact. This is obviously very significant for Australia and we'll have to wait for the judgment but I think it's globally significant because this is still a developing body of jurisprudence around the significance of scope three emissions and in a kind of sad sense because Australia is a massive exporter of fossil fuels. And so what happens locally in relation to limiting the development of fossil fuel production in Australia is globally significant. That's how bad we are and so it's a local decision but I think it's quite significant internationally and that's why we're seeing this international interest. Can I ask you a question Christy is this a is this a public law case?
SPEAKER_01If it's not a talk case?
SPEAKER_04No it's just planning an environment law Right. I mean it's administrative law so I guess yes it's public yes but it it's it's planning an environment it's basically whether or not the approver the APA in this instance failed to consider a relevant consideration in this instance being the local impacts of scope three emissions due to climate change.
SPEAKER_01Okay great.
SPEAKER_04Yeah so still on Australia but not in jurisprudence per se. I mentioned last year that our big Commonwealth environmental protection and biodiversity conservation or the EPBC Act had been amended and no one was very happy with the amendments. Well now the government has released a new national environmental standards for matters of environmental significance for public consultation. So these are new regulations that sort of follow from the EPBC Act amendments. Fundamentally these are about our standards for environmental offsets so when a development is going to have an impact on matters of national environmental significance. This is around how the environmental offsets that are proposed as part of the project are to be assessed. The overarching objective of the act and of these regulations, it's supposed to be that it's focused on net gain, that it needs to be a net gain for restoration, recovery and enhancement in order to be approved. But these are in the current form or the current draft has been criticized by a number of environmental groups. They've argued that really it's much more procedurally focused than it is focused on this substance and that there's a real risk that it will lead to the approval of developments that do in fact damage the environment including threatened species so long as they go through the right procedures, which is this common problem that we have with environmental law that it becomes around whether or not all the boxes were ticked rather than whether or not a good decision was actually made. And so it's considered to be like a process of managed destruction rather than actually operating to protect let alone to restore or recover or enhance the environment. They've also noted that cumulative impacts are very poorly captured by the standard. And again this is an ongoing impact with environmental law that you know Beck Nelson for example has done a lot of good work on. And then on a more positive note in the Australian state of New South Wales the Parliament is considering a draft bill to adopt our Human Rights Act. Now I do have to preface this with the fact that this is actually a draft bill from the Greens. So the likelihood of it in fact passing is minimal nonetheless. These things build up their own momentum and this is kind of a process that sort of can bear fruit you never know what will happen. The bill's out for public consultation at the moment and perhaps unsurprisingly given the originators of the bill but I was very pleased to see that it does include a right to a healthy environment as well as the right to water. Australia's a real outlier globally I think in having a pretty impoverished human rights culture and and sort of legal system. We don't have a national bill of rights but we've also been really reluctant to adopt socioeconomic rights. And so the fact that this contains a full suite of socioeconomic rights is is really interesting and I think shows that we are even if this doesn't come from the sitting government that there's some shifts happening in our legal culture.
SPEAKER_01And then finally to end on a genuinely hopeful note does New South Wales have a Labor or a Liberal government enforcement It has a Labor government at the moment.
SPEAKER_04But that doesn't mean a lot by the time I'm trying to understand whether there is any chance. It doesn't seem that they're massively on board at the moment with this particular bill. But I'll be interested to see how the consultation goes the fact that it's going out to consultation is positive. Let's put it that way. Yeah and then I'm no longer living in England but I just wanted to bring in a little note of happiness for the end back on my outdoor swimming thing. There's been 13 new designated bathing spots declared in England last week and one of them is the first one to be declared on the River Thames in London. Oh wow so there are some bathed spots on the river Thames upstream including in Oxford for example but this is the first one in London. Now London obviously has a long history of people bathing in the Thames but there's been a more recent history of this not being seen to be okay and so this kind of bringing it back is largely a really positive thing. There are some concerns that by designating some spots you're kind of delegitimizing existing ones that I don't have that designation that that that that it's kind of reducing rather than opening up opportunities. But for some people this is going to be the green card or the green light that they need to get in the water. And what it means is that the water quality will be monitored and this creates significant additional pressure on the water corporations to stop dumping sewage and other contaminants in the river. And we we have seen that so a a spot in Yorkshire for example in North Yorkshire that was designated five years ago because of the monitoring and the transparency that was created around water quality issues there. Yorkshire Water has spent, I think it's like $58 million or 65 or something upgrading their filtration and their and their treatment processes in order to create better water quality at that spot because of the pressure that's created through this process. And this gives people a lot more confidence about getting in the water and about swimming outdoors and and then forming those relationships of care with the river and and you know being part of that process of seeking change. One of the other 13 spots is in Panbrook Meadow in Berkshire and this is the spot that inspired the novel The Wind and the Willows which I think it was probably pretty strong featured in in in many childhoods and I just love that literary connection because I think you can find a lot of evidence of the history of outdoor swimming in England through literature and that's just sort of an example you know that there's the scenes on the boats and falling in the water and playing in the water within the book and it shows how normal it was at that point.
SPEAKER_02Yeah well now you're in Melbourne you can go and watch the Wind and the Willows at the Botanic Gardens. They do they do a production and they they're in the in the pond there um which is very cool with little kids but I'm sure big kids might like it too. It might just be me that's right. You'll love it. But also um one thing I forgot to put in my update at the beginning was a couple of weeks ago I was lucky Enough to be on a panel that Nitahu had organised that was about the future of Rangatiratanga and the law. It was framed around an exhibition that was related to the court case, which I had mentioned, the water case. But the panel discussion, there, you know, the bunch of Nitahu experts there, and and I was lucky enough to be invited along as well. Um, and these wonderful photos by Anne Noble, who's a really incredible photographer, a real treasure of the New Zealand photography scene, probably one of our, if not our most famous photographer. And she had taken all of these photos of Nytahu people in in water, around water, and of the concerns with water, of watery places that are contaminated, but also watery places that people are still connected to and um how they're continuing to still food gather and and do other sort of cultural activities and things. And I had to remark in the panel that this kind of moving people's hearts and minds stuff through art, through literature, through people feeling a connection to story, um, I think that's one of the most important things that we can do. You know, like mass swim-offs and trying to just just take back the power to swim in places. I feel like maybe we should be trying to do that more here in Aotearoa as well, because I mean, England's not a particularly warm place. But they're so they're really putting their money where their mouth is jumping into some of those waterways. Um and I really hope that you're continuing to do your work on the right to swim, Christy.
SPEAKER_03Yes.
SPEAKER_02And adapting it to new places.
SPEAKER_03Well, the adapting will have to occur going forward. Yes. Yeah. No, that's really So New Zealand, I understand, has been busy, Liz. Do you want to give us some updates?
SPEAKER_02Yes, I'll give you some updates. And the law reforms face in a couple of cases, just quickly. But as I mentioned at the start, we're really full steam ahead because we've got elections in November, and it seems like this government just really wants to push a bunch of environmental reform proposals through before the end of the year. I'm sure they're working in other spaces too. I'm just trying to keep up with the environmental things. So today I gave a submission to the Parliamentary Select Committee on the Fisheries Amendment um bill, as I mentioned earlier, and I did that with Conrad Pilditch, who's the director of the Institute of Marine Sciences at the University of Auckland, and we did a lot of work together when I was working in the Sustainable Seas National Science Challenge. So it was quite cool to be back with him again because the challenge would roll us out. So Conrad's the science person, I'm the law person, and we would give these submissions on various law reform proposals. Um science, the science side of it was all covered very extensively by Conrad, and I got to come in at the end and speak about the law. In terms of fisheries, the New Zealand courts have quite rightfully interpreted our domestic marine laws in light of our international law obligations. So that includes things like the precautionary principle, you know, the requirement to manage cumulative effects in the environment, which you mentioned before, and the need to take an ecosystem-based management approach, the Pluto Pays principle, and the need to manage the impacts of climate change on the ocean in particular, because in Al Teotrowa, our ocean is warming at a rate 34% higher than other parts of the world. So we've got massive issues with ocean warming. But this new bill undermines the ability for our decision makers to give effect to those obligations in line with sort of best practice marine management and international law. The Fisheries Act, as it stands, includes some really important sort of opening and overarching purpose provisions. So they include, you know, a requirement to only utilize resources while ensuring sustainability. And our courts have emphasized that sustainability really is a bottom line in that context. Some environmental principles, including not just that we manage a fish stock, but we manage like the broader biological diversity of the ecosystem that the fish are in and seek to actively protect their habitat. So it's not just about managing a particular species of fish. It's about managing a whole ecology that's around that fish and that's affected by how many fish we take out of the ocean. And also section 10, these are information principles which link directly to the precautionary approach and of being used by our courts in that way. So, you know, the act as it stands doesn't go far enough, but it's great that it's got those hooks at the beginning of that legislation. They've been used by the courts to ensure that decision making around fishing quota amounts, for example, are compliant with our international obligations and do apply the best available science and information. So what this bill does is that it adds in a new provision that says that when decision makers are setting total available catch, which is then the number of fish that you can take out of the ocean for any particular stock or species, they don't have to take into account those environmental principles. They just have to take into account standard factors, which are specified in the bill. But those standard factors are much more narrowly focused on the impacts on the particular stock. So say you're setting a quota for orange ruffie for a fish that's very sort of endangered, no terror. You only have to look at kind of the environmental impacts on that particular stock. You're not looking at, you know, broader interconnected food webs in the broader environment. And you might be able to take into account the impacts of climate change, for example, but only in terms of the impact on that particular stock. It does include predator and prey relationships, but only to the extent relevance to determine how abundant that stock will be within the management area. So it takes us very far away from an ecosystem-based management approach. And with Conrad, we were part of this challenge, the Sustainable Seas National Science Challenge, which went for 10 years and developed all these recommendations for government about how to implement an ecosystem-based management approach. So this is literally doing the exact opposite of that. The other thing that the bill does, I mean, it does a lot of other things. We just focused on a few key concerns. But the bill was specifically devised in order to interfere with the role of the courts. The government was not happy that there have been these court decisions that have not allowed, you know, what the government wants to happen in terms of fishing decision making. And so they've deliberately brought this case to try and prevent those sorts of court cases in the future, including limiting judicial review to 20 working days after the decision is made in a privative clause. Yeah, which is completely unworkable because you can't get a judicial review administrative law case together in that amount of time. You can't even, if you're doing freedom of information requests in order to get the information you need in order to form and develop the case. So it's really concerning that this is happening, um, that the government is really trying to limit the supervisory function of the courts and of the senior courts in particular. And I see quite firmly at the seat committee today that I don't think we want to be in a situation where the government of the day, any government, wants to stop the courts from supervising it in any way. I don't think that's a New Zealand that we want to be a part of. I also think that the idea that this is going to decrease legal uncertainty is also misguided. I think if anything is going to increase legal uncertainty because the legislation is becoming internally inconsistent, as between the purpose provisions and the operative provisions, and also out of line with international law, including, you know, the International Tribunal of the Law of the Sea advisory opinion about the need for states to manage the impacts of climate change on the ocean. So that one's a bit disappointing. We've also had a reform of the Conservation Act introduced. I mentioned that in relation to a case. We knew it was coming. That's now been introduced. Um I haven't had a chance to have a good look at it, but I have had a brief look at it. And the explanatory note makes it clear that the purpose of the law reform here is to streamline the management of conservation land, to better enable appropriate use of conservation land and support more effective administration. And it introduces a new purpose for the Department of Conservation in section six, which is to recognise the economic opportunities that arise from the use and development of conservation land and to enable that use and development to the greatest extent practical under the Act. So i.e.
SPEAKER_03not to conserve?
SPEAKER_02No, no, not to conserve, to develop. So yeah, I mean, need to have a bit more of a look at it. Concerning from a lot of from a conservation perspective, also concerning from a Māori rights and interests perspective, given that a lot of Māori land is looked up in the conservation estate and there are treaty settlements pending. The government this week also announced, and this this got more of a positive reception, but I think it's the devil's in the detail in relation to this one. The government announced that it's backing voluntary carbon and biodiversity credit markets to be developed and some sort of verification process for good carbon and biodiversity credit markets. Yeah, so I gave an expert reaction to that for the Science Media Centre earlier in the week, and we can link to that in the show notes. Probably many of our listeners have heard about the climate change case. Well, not case actually. They'll probably heard about the case. We had a case on foot, which was a tort case, which was supposed to be going to the ordinary courts in order to determine whether there could be liability in tort for climate-related harms. That case specifically concerned Fonterra, which is a large agricultural and dairy organization in Altera, New Zealand. And it was brought by Mike Smith, who is an IWI leader and a climate advocate in Alteroa, New Zealand. So the court had said that that case could proceed to be heard, and the government has indicated that it will be passing a legislative amendment in order to limit the ability of the courts to make any findings of liability under tort law for climate change damage caused by greenhouse gas emissions. So again, very concerning with the executive trying to intervene with the functions of the court and very concerning from a rule of law perspective more generally, and also that announcement would have retrospective effect. So even though Smith could have made out his case potentially based on the law at the time that he filed proceedings, it would have retro retrospective effect so that he would no longer be able to bring those. So there's a bunch, there have been a bunch of media pieces and open letters that have been sent about that, and we'll just have to wait and see what happens. In terms of case law, there were two cases that I wanted to mention. One of them is a water case, another water case. It's Mercury and the Māori Land Court. And this is a case that's come out of the Court of Appeal. It's a long line of litigation that goes back to the Pucky case, which people might remember a decision of the Supreme Court that came out in 2014, which concerned Māori customary title in the bed of the Waikato River. So this is the latest iteration in that litigation, which is going up and through the courts in terms of whether the Māori land court has jurisdiction to hear the claims.
SPEAKER_04So it's a it's not going to hear the merits, it's about jurisdiction.
SPEAKER_02Yeah, this this was about jurisdiction, and if it was determined that the Māori Land Court did have jurisdiction, it would go back and be heard in the Māori Land Court. Yeah. Gotcha. The result, the result is that in the Court of Appeal, it could be appealed to the Supreme Court, but in the Court of Appeal, they've said the Māori Land Court does not have jurisdiction to hear claims in relation to customary title to the bed of the Waikato River. The claimants had also, in this case, the Poakani claimants had were seeking a determination of Māori customary land under the river and where dam infrastructure is based. But they were also seeking declarations that the Crown holds title to the riverbed as a fiduciary, so a fiduciary duty claim. And also they also were seeking a determination from the Māori Land Court that they owned the river water, which was flowing above the riverbed. And the Court of Appeals held in the negative for all three questions. So this was essentially an appeal to a strikeout. So the Pawakani claimants originally went to the Māori Land Court. There's a strikeout application, it sort of gone around the mill a bit. And on the first question of whether the Māori Land Court has jurisdiction to consider the water claim, the court said that it didn't matter that in Tia Māori or the Māori world, um, water is inherently connected with land, it's still, the Māori Land Court still didn't have jurisdiction to consider a claim relating only to the water under the Māori Land Act, Tatutou-Fenu and Māori Act. They said they could go to the High Court, so the Māori Land Court wasn't the right place because the jurisdiction of the Māori Land Court is established by Tatutou Fenu and Māori Act, and it didn't, it wouldn't allow a hearing just in relation to water. They similar result in relation to fiduciary duty, said that the Māori Land Court didn't have jurisdiction to hear a fiduciary duty claim and they were applying some previous precedents in that regard. But again, they said that could be heard by the High Court. And they also said that the customary land claim, so assuming that the water claim in the fiduciary duty claim can't go to the Māori Land Court, well, a land claim can go to the Māori Land Court because it's the Māori Land Court, they said that in that case that wasn't possible because of the doctrine of indefeasibility under our torrent system. And because there had been actual certificates of title granted to the Crown in that case, that the Māori Land Court didn't have any jurisdiction to determine that it would whether it was Māori customary land. So I'm not sure, I wouldn't be surprised if it gets appealed to the Supreme Court or whether there's a way to shift it over into the High Court and argue those things. So anyway, interesting, interesting one to see. Another case I just wanted to briefly mention because it's so cool. This one's great. I've got to figure out how to either write something about it or I don't know, teach something about it, because it's a cool one. It's called Ours Not Mines, Limited, and Hodaki District Council. Again, it's a decision of the Court of Appeal. Now, in this situation, the Hodaki District Council in the North Island owns an unformed or paper road running through Farikera Uponga Forest in the North Island, which is part of so once an unformed or paper road, is that like a dirt road? Oh yeah, it's a New Zealand thing, maybe. So it's a road on a map, but it's not it doesn't exist in reality. So there's a road on the map, a legal road, but it's just got bush on it.
SPEAKER_04Oh so it's like overgrown. It just it doesn't actually function.
SPEAKER_02It probably never functioned as a road, but it was surveyed and it was intended to set aside as a road. So we've got paper roads all through the country.
SPEAKER_03Wow.
SPEAKER_02Yeah.
SPEAKER_03That must be really confusing for visitors using your maps.
SPEAKER_02Yeah, I mean it might be it's it's basically within a national park. So I don't know whether or if yeah, it's basically within a forest park and conservation land. So I don't know whether anyone would find it on a map. But we do have lots of paper roads, which are probably quite confusing. I mean my grandfather's house, he had a paper road next to his house and he used it for grazing. It was never a road. I don't know if this is in New Zealand, like like curiosity or not. Maybe one of our listeners could tell us, or we could do, I want to do some research on it. It's fun. Um Yeah, it is. But so so there was this paper road going through the Coromandel Forest Park. The forest park otherwise is conservation land. The council just happens to own this paper road. So Oceana Gold, who are a large mining company, they have a mining permit permit in respect of the ore body underneath this forest park. But their permit only covers exploration and mining activities beneath the surface of the land. They didn't have a right to undertake any mining activities or infrastructure on the surface. So in order to conduct, in order to conduct or extend their mine under the forest land, they had to build four vents which would have to go through the surface. And they wanted to do that in an area that was including this paper road. Um so instead of trying to apply to the minister for conservation for, you know, permits under the Conservation Act in order to build these mine shafts, they thought, oh, well, there's this paper road here. We'll just go and talk to the council. I'm sure they'll give us the right to build our um our vents and relationshafts. And so they did that and they did a deal with the council, and then they got both license from the council for a term of 40 years in order to build and operate these mine shafts. So ours, not mines limited, is an environmental interest group, and they challenged the council's decision to grant the licence to Oceana. And at first instance, the court held that the council was acting within its powers and the licence was lawful, so they appealed to the court of appeal. And on the question of whether the council had the power to grant the license, the court said they didn't. The council-owned roads were held on trust for a public purpose, namely to facilitate public right to pass and repass over the road. So accordingly, the council could only grant a licence over the road if the licence activities or structures would not appreciably interfere with the public's right of passage. Otherwise, the they would be authorized in a public nuisance, which would be beyond the scope of the council's common law powers as landowner. And they cited a whole bunch of old authorities in in reliance on, you know, to yeah, to back up the court's reasoning. So the court found that these proposed events would constitute an appreciable interference with the public right of passage. So the decision to grant the licence was declared unlawful and it was set aside. So they now can't develop the mind. Love it. I know. I bet like whoever thought that one out, you know, the the lawyers are probably feeling quite good about themselves right now. Um, and the only other thing to briefly mention is just that our friend Ritordi Chakra Borty, who we've had on the podcast, he and a bunch of his colleagues, Reed, Schupa, and Karmuna, have developed a policy guide for the ethical and equitable engagement of Indigenous peoples and their knowledge systems within the United Nations Framework Convention on Climate Change. So we'll link to that. It was funded by the Welcome Trust, I understand. Um, and yeah, it's a really cool piece of work. And I think there's a bunch of other work that's um been done in that space because when I posted it on LinkedIn, Bradley Moggridge came up and said he was part of a delegation of Australian First Nations who um yeah had done some work around First Nations.
SPEAKER_04The tort change, yes. I mean I I just think it points to this kind of very unfortunate period of time that we're in at the moment where the rule of law is under quite a lot of strain and this sort of, I guess, more cowboy approach is becoming more common. But also that you know, both of our countries, our our governments are kind of looking at the science, looking at the um ICJ's climate advisory opinions, looking at these things that are coming out and the litigation that is winning for good reason and going, actually we're just gonna use the law to just push on with this business as usual, knowing full well the impacts that this is having. Um and and you know, we'll even do it by overriding the rule of law to do so. And it it is very concerning and that that's why I think it is really important to then turn to these other sources of power and of law and of hope. Um and to remind ourselves that that's not the full picture, that there's a lot else going on and that there's a lot else that's possible. Um and that while that while we are seeing some really concerning developments, we're also simultaneously seeing these sort of possibilities and hope and that sometimes it's around where we train our attention and where we put our energies that that matters in that context. And just on the two reports that are coming out in relation to this ethical engagement with Indigenous peoples and their knowledge systems. I'm really looking forward to reading them. I know that there's been a lot of really good work going into developing these reports and going in to try and shift the way that these processes are actually responding to and dealing with indigenous peoples and their knowledge systems and and just generally not having such a division between what they call science and what they then call like culture or something else, but really understanding the significance of these.
SPEAKER_02I feel like we're in a strange time because there is this widening chasm between some of the directives that we're getting at the international level and some of the upskilling that's happening in the international level in terms of diversity and knowledge and those sorts of things. But then we're also seeing this unraveling of the international order. So if we're thinking oh well you know it doesn't matter too much the some of the stuff that's happening domestically because things are improving internationally and it'll trickle down but then if the international system disintegrates then we're just left with you know sort of rogue states doing what they want to do in their own spaces.
SPEAKER_03It's a genuine risk. I guess Keith's reminding me of the now is the time of monsters like we're definitely in a period of change.
SPEAKER_02Yeah. Yeah and and tens tendencies towards autocracy which is quite frightening. So Christy what are you working on? What's coming up on the horizon for you?
SPEAKER_04So this week I'm attending Erin and Melissa's book launch of course for their editor collection People, Place and Nature and Indigenous Settlement Relations which I'm really looking forward to taking advantage of being in Melbourne. And next week I'm giving a talk on the role of utopian and prefigurative theory in teaching environmental justice. And this is for the Global Citizenship Education Hub. The main topic of the day is agency and earth system governance as subjects of global citizenship education. It's being held in Hamburg on the 26th of May but I'm joining online I'm not getting on a plane. So I'm looking forward to that although it's always a bit of a different experience kind of beaming in than being part of those conversations and I'm I'm a bit aware of that. I'm exploring in that talk how foregrounding prefigurative politics and utopian approaches when teaching environmental and climate justice units or even human rights units that are focused on those issues can help students to move beyond critique and sometimes that kind of quite depressing deconstruction of everything and empower them to also imagine a flourishing future for themselves and for the planet. But just that it's a clear-eyed commitment to building a better future that you know about where you're going to put your energy and about claiming agency. I guess on that note I'm also getting my units ready for semester two. So I'll be teaching the law of climate change and international environmental law and I'm trying to bring that awareness to how I'm looking at those two units. You know there's they could both be quite depressing units and quite you know sort of examples of failures of implementation, failures of operisation, breakdowns of negotiation, etc, etc But I want to tell a bit of a different story. I don't want to like leave out the you know the relevant detail or I ignore those issues. But I also want to find areas where we can see opportunities um for action and um so to try and get that balance right and that's um that's the fun task ahead. How about you Liz? What have you got coming up?
SPEAKER_02I was just gonna say you're probably gonna end up doing a bit of ocean stuff with that topic, Chrissy. I might have some references for you to to start with I had other plans for you.
SPEAKER_01Really? If you have other plans for me that's all good. You'll be beaming in. I'll be beaming in fair enough.
SPEAKER_02I actually did a really cool I did a I think I told you I did a guest lecture for Claudia Parlwasel's students over at University of Innsbruck in Germany a week or two ago and she's such a big name in the border governance world so it's cool to be able to you know still be connected to her but they were very engaged very interested in um river governance in New Zealand and other places in the world. But for the next little while I'm just still in this intensive research phase. So I'm trying to do lots of writing I'm doing a lot of field work and engagement with community and things. I'm I'm trying not to do too much travel. I think I told you that but I am going to Berlin at the end of June to sit on a panel for a funding body. That's one of the trips that I'm doing this year. Otherwise I'm yeah just doing a lot of engagement and planning and also lots of references and support for other researchers which I really enjoy. I'm in a phase where I've got a few promotion applications to to review for people at other universities to support as an independent person and you know references, people going for grants and stuff like that. It's time consuming work but I always feel so grateful to be able to do it because it's my way of paying it forward for all the wonderful people who have done that for me.
SPEAKER_04Excellent. Well before we wrap up I want to say thank you to everyone who's made it this far for listening we really appreciate it. If you do enjoy the show please consider leaving us a review. You can do that for example in Apple Podcasts or just send the link to a friend or get in touch with us. You can do that privately via the send us a text button at the top of the show notes or I'm sure you have many other ways of reaching out to us.
SPEAKER_02And finally just a reminder that the views and opinions that we express on this podcast are our own and that's all from us. Thanks for joining us for this episode of Lore at the end of the world. You can find show notes from each episode at law at the end of the world at buzzprout.com and you can find both of us on LinkedIn and on blue sky. I'm there under the username at prof dash Mac dot BSKY dot social and Christy is there under at christyclark.bsky dot social.
SPEAKER_04Thanks Liz bye bye
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