by Deborah Lockhart and Grace Wallman[1]

Introduction

Confining discussion of mediation to its benefits in family or commercial settings would be to omit one of the most important roles that ADR is likely to play throughout the next century – its potential for effectively resolving environmental disputes. In the past year alone, humanity has experienced the devastating impacts of our changing climate – from wildfires in Maui, to life-threatening heat waves and drastically decreasing biodiversity in the Antarctic, and beyond. By their very nature, environmental disputes can have wide-ranging effects on the interests of individuals, communities, corporations and nations, – adding additional layers of complexity to dispute resolution.

Despite the challenging, dynamic, and multifaceted nature of environmental conflicts – mediation, has been effectively used in a diverse range of contexts. A key strength of mediation in these contexts is the opportunity to inform the dispute resolution process with interdisciplinary research and knowledge from a wide range of disciplines such as public-administration, law, anthropology, applied psychology, industrial relations, public health, communications and cultural studies, geology, hydrology, and the gambit of science knowledge systems.

Informed by a breadth of knowledge, practitioners in the environmental disputes space can retain a rigorous and robust practice, as well as facilitating the space for creative approaches and options that account for a complex context that a litigation process may be too rigid to address effectively (if at all accessible!).

The Australian Disputes Centre (ADC) has been privileged to be at the forefront of the ADR industry for nearly 40 years – and over this period of time, to be a part of the growing use of ADR for Environmental Justice. This paper presents one of three case studies, presented to the National Mediation Conference in 2023, that ADC has been involved in reviewing or evaluating in different jurisdictions that illustrates how interdisciplinary knowledge systems offer an incredible opportunity to ADR practitioners and all stakeholders involved in resolving environmental disputes.

Legal Personality Case Study

In 2017, the Whanganui River in New Zealand’s North Island was given Legal Personality, in a world first decision that has been followed by similar decisions in India and most recently in the Amazon.

For over 140 years, representatives of local Māori groups were fighting for the legal recognition of the Whanganui River, which within their customary law and culture is not just a geographical feature of the natural environment, but a tupuna (ancestor), which is imbued with mauri (life force) and is sacred. Despite this, the river was historically subjected to significant environmental degradation, particularly through commercial development, farming, forestry, and chemical runoff, risking both the ecological health of the river and the rights and interests of the Māori people local to the area.

In announcing the legal move, Chris Finlayson, then Attorney General of New Zealand, stated that the river “Will have its own legal identity with all the corresponding rights, duties and liabilities of a legal person,”. These resolutions were solidified through the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017.

The local Māori’s interests, chrystallised throughout the ADR process, were reflected even in the name of the legislative mechanism itself with ‘Te Awa Tupua’ being a Māori phrase that refers to the indivisible and living nature of the Whanganui River, including both its physical and metaphysical elements, as well as its interrelationship with human life. Globally, only four rivers have been granted legal personality: the Whanganui River in New Zealand, the Ganga and Yamuna Rivers in India and the Komi Memem River in the Western Amazon. Legal personality has also been extended to other kinds of environmental features internationally, including the Yamunotri and Gangotri glaciers in India.

This legislative intervention is not itself an ADR mechanism, but the work leading up to the passing of legislation is certainly an example of the application of ADR principles to a complex environmental dispute – as well as the use of different knowledge systems to achieve equitable and effective outcomes through the dispute resolution process.

The legislative mechanism and reform were a consequence of long and complex negotiations between the Crown and Māori tribes. In the third reading of the Te Awa Tupua (Whanganui River Claims Settlement) Bill in parliamentary debates, Finlayson stated:

The Whanganui negotiators have been unrelenting in the pursuit of this settlement…They reminded the Crown of its obligations and held it accountable for its action, and the result is a truly unique settlement. The framework for the river would not have been possible without the support of all iwi with interests in the Whanganui River catchment.

The granting of legal personality creates new avenues and considerations for dispute resolution with matters now able to be brought in the name and interest of the river.

The ADR process surrounding the creation of the Te Awa Tupua Act 2017 demonstrates the importance of utilising a deep understanding of the cultural context and the long-held ecological knowledge of local Māori groups. It enabled the possibility of finding creative outcomes that effectively addressed the complex environmental dispute in question that was not conventional within the mainstream legal system but addressed the grievances of the impacted Iwi with specificity, centering the interests that were most important to them.

The Whanganui River Case Study highlights the opportunities for mediation as a tool for informing legislation and other forms of policymaking. Even if legislative interventions are not themselves ADR mechanisms, getting there can be. The ability of stakeholders most deeply impacted by certain kinds of policy to directly voice their interests, including complex interdisciplinary knowledge and cultural knowledge that may not be obvious to policymakers allows more effective resolutions to be found and enables equitable participation in the legislative process for groups historically marginalised within the mainstream legal system.

Conclusion

The span of environmental law, the entrenched and complex issues that are often central to these disputes, and the multitude of stakeholders who may be party to the dispute resolution process are significant challenges, but mediation practitioners do have tools to help overcome them.

The fundamental characteristics of mediation as a flexible, collaborative, and consensual process evidence the deep opportunity of this process to be used as a tool for finding doable and durable solutions to environmental conflicts. Increasingly, the role of ADR is being recognised by governments and solidified in policy as a tool for dispute resolution.

One of the most important tools for ADR stakeholders is interdisciplinary knowledge that informs our understanding of environmental justice. When environmental disputes involve nuanced and interrelated issues, knowledge systems can help stakeholders find effective and sometimes unconventional solutions that may not be as accessible through litigation.

In a world that is increasingly grappling with the impacts of global warming, the role of mediation practitioners in resolving environmental disputes will grow and develop. At ADC, we believe that this is not just a challenge for mediators, but an opportunity to embrace.

 

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[1] Deborah Lockhart, CEO and Grace Wallman, Associate of the Australian Disputes Centre.