The EJ Series, part 11: the other side of environmental justice—finding ecological justice in Aotearoa

By Claire Browning, author and environmental advocate

Thanks to a research grant from the New Zealand Law Foundation, in 2017 I was gifted some time to examine environmental law and injustice in Aotearoa* through an environmental justice lens.

My report, Finding Ecological Justice in New Zealand, looks at how ideological and legal sands are shifting around justice – relocating stability in environmental and ecological defence, and demanding enlargements in perspective and thought.

The report focuses on a Maori concept of ‘kaitiakitanga’.* It challenges environmental advocates, as James Baldwin once urged, to go back to the start: to acknowledge injustice done through environmental law, and rethink assumptions about who holds the knowledge, and who is in charge.

Kaitiakitanga, as the Waitangi Tribunal of 2011 described it in a weighty report Ko Aotearoa Tenei that took 20 years to complete and has all but sunk from view, is like environmental justice claims.

The Tribunal located health, flourishing and being for Maori, the indigenous people and tangata whenua (people of the land) of Aotearoa, in being able to live in the right way in relation to a Maori spiritual and physical world – ones who have passed and to come, to non-sentient but old, deep beings in mountains, waters, ancient trees – not just in clean air, clean water and clean land.

It described degrees of Maori involvement, from simple ‘meaningful participation’ where Maori can offer a Maori view to other decision-makers, to being restored to equal partnership and autonomy in “the ongoing work of looking after things” according to tikanga* Maori, taking back the function usurped by environmental advocates and governments.

Two glib paraphrases of kaitiakitanga are often used. First, ‘guardianship’ (whereas we can all be guardians, to be kaitiaki is uniquely Maori). Another phrase – rejected by Maori for its master-servant implications, or caretaking for someone’s property – tried to sum it up inaccurately as an ‘ethic of stewardship’.

Kaitiakitanga moves past environmental justice, past participation in people’s processes. In Finding Ecological Justice, I set out to show how kaitiakitanga finds ecological justice with the simplicity and rightness that Pakeha laws have resisted, or struggled to reach.

In particular, to understand it as Maori do, not as an ethic, but an obligation: the “the obligation side of rangatiratanga” (which is chieftainship, being sovereign, or in charge). Baxter and other scholars tried to find through the language of non-human justice this kind of an obligation, to recognise and allow some distribution to others of what they need. “We must do right by other life-forms, but in a precise kind of way…” (Baxter, 2005).

The focus has been on its human importance, for Maori. Yet this is also, simultaneously a tikanga that imbues with dignity and standing others with whom we share land, waters and sky – creatures, birds and others who, themselves, are kaitiaki. As suggested by Durie (et al, 2017), the practice of “close observation of the kaitiaki creatures… informed Maori of whether all is well in the world or whether some action is needed”. Kaitiakitanga sees and returns mana to these other vital beings, as our own caretakers and vice versa, on whom survival depends.

How do we take this forward, in Aotearoa?

The first answer is that only Maori, with others’ support, can do so, and Maori are. An example is the Auckland and Northland iwi, battling for support from a sluggish government to try and halt transmission of disease to dying kauri* trees – Te Roroa, formally recognised as kaitiaki through their Treaty settlement, whose lands include the mighty Northland kauri Tane Mahuta; and Auckland’s Te Kawerau a Maki, leading in setting in place a rahui closing the Waitakere Ranges to walkers.

Examples include the Tuhoe homelands Te Urewera, the Whanganui River Te Awa Tupua and, most recently, Taranaki maunga*. Acclaimed for showing how we might remake our law by allowing parts of the living world to speak as legal persons, they are also a living expression of kaitiakitanga, through the iwi-led negotiation to get to this legal place, and the new governance for those entities.

Authors of a new draft Constitution Aotearoa have suggested kaitiakitanga in its preamble (“kaitiakitanga and sustainability”) among values that “we, the people” might affirm (Palmer and Butler, 2016).

On one level this drafted phrase is no more than a simple reflection of biculturalism. Yet  in this seemingly very small, but also powerful legal move, the mist might part for a minute and we can glimpse the road in front.

Endeavours, previously, to recognise kaitiakitanga in law have largely failed through bad drafting and casual understanding. “We do not want to be ventriloquists… where we are using somebody else’s words and we’re just moving our lips,” Tuhoe chief negotiator Tamati Kruger recently said (Kruger, 2017). But Maori, and most eloquently Kruger himself, are also speaking with hope of shared solutions in a Maori world, and of Maori leading both peoples to it – insisting, accurately, that these are contemporary, not quaint indigenous customs in a ghetto, and this is not life only for Maori, but life for us all.

There is a possibility of stitching and strengthening this tikanga through the fabric of environmental laws being rewritten in Aotearoa, so that we might approach a time when it emerges as more than some passing acquaintance with a Maori word.

In a whisper of a promise, Pakeha* too might begin to learn the language and share the obligations of a speaking land.

<sup>* Aotearoa is the Maori name for New Zealand.
* Kaitiakitanga refers to guardianship, by tangata whenua (ie, Maori) according to tikanga Maori.
* Tikanga refers to the customary system of values and practices that have developed over time and are deeply embedded in the social context – to do things in the right way.
* Kauri (Agathis australis) is the largest forest tree found only in the northern North Island.
* Maunga is a mountain.
* Pakeha is a word used to describe a New Zealander of European descent.
These definitions were sources from Maori Dictionary.</sup>

Claire Browning is a former lawyer and policy analyst, senior adviser to the New Zealand Law Commission and environmental advocate. She was, for four years to 2015, strategic adviser for New Zealand’s oldest and largest conservation charity Forest & Bird, and a recent co-contributor with colleague Mike Joy to the conference hosted by the Sydney Environment Institute: Environmental Justice—Looking Back, Looking Forward. Her work in 2017, Finding Ecological Justice in Aotearoa, was possible through financial support of the New Zealand Law Foundation. The report is available here.

Header image:  by Tim Marshall via Unsplash.