Responsible transitions in the cross currents of change: thinking ecologically

Betsan Martin, August 2017

The references for this paper include Law and governance, with an interest in how we recognize interdependence in governance and in law.

Interest in the interface between Water and climate – changes to water - ice, rain, draught, water temperature, sea levels, ocean acidification are the main signs of climate impacts.

Public Trust and Responsibility

Public Trusteeship especially for water, also for climate; and the significance of responsibility. The theme of transitions is included – thinking of transitions to zero carbon, and also, less conventionally, of the transitional process of change towards ecological systems in governance.

Some of the thinking comes from our book – the Transformative Power of Law / Good Law for Water and Climate.

During a meeting of coalition partners on waterways, we were discussing governance, and a proposal was made to consider public trusteeship of water. This came from research and ongoing contact I have with Kapua Sproat, an indigenous Hawaiian legal expert who led the Public Trust litigation in Hawaii. I will mention this further below.

The proposal for public trusteeship part of our interest in looking at alternatives to the present regime and in further exploring forms of governance for public good that also respect and uphold Maori interests.

Quest for new forms of governance

The quest for new forms of governance comes in response to the failure of government to safeguard environmental interests, and in recognition of the inadequacy of elected governments for short terms to address long term and intergenerational responsibilities. We see this in NZ in the proposals for Commissions – a Commission for the Future, Commission for Waterways, Commission for Climate Change – along lines of Parliamentary Commissioner for Environment.

Commissions, like Public Trust, provide institutional and legal frameworks that are more enduring than governments, and might carry a mandate for long term interests and safeguards.

With regards to climate change, and the Conference of Parties negotiations, we also recognize that governments are mandated to negotiate in their national self interest. As I heard it said at COP21, in 2015, there is no-one here to negotiate for the planet. A step towards partially remedying this came from the Marrakesh COP where new recognition of non-state stakeholders was given form in the Marrakesh partnerships for Action on Climate Change. Fiji hosted the first Marrakesh Partnership meeting in May.

We have begun research on Public Trust and Legal Personality for our book Responsibility and the Transformative Power of Law (eds. Martin, Te Aho, Humphries, forthcoming). I will give some initial points of interest.

Public Trust & Legal Personality, Rights of Nature

As I look further into Public Trust, Legal Personality, and the growing interest in the ‘rights of nature’ I am trying to make sense of my reservations about the rights approach, and to understand why the effort to give legal standing to nature is both important, yet seems to be inadequately confined to the conceptual frameworks of liberal legal tradition.

Mention Rights of Nature – anticipating Geoffrey Palmer. I see there are three forms of Law:

  • The Great Law, or Law of Nature – this is a reference in the Thomas Berry, Peter Burdon work on Earth Jurisprudence

  • Indigenous Law – as it was prior to European settlement and is emerging into greater public view n common law cases such as the two cases taken by Maori in respect of rivers: Huakina in 1987, and Paki vs Attorney General in 2012.

  • Political law – the law of England, its development in New Zealand, and North American US law

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