This year’s LAWASIA Conference in Kuala Lumpur offered a rich array of sessions on diverse legal challenges, and one of the most impactful presentations came from Deborah Lockhart, CEO of the Australian Disputes Centre (ADC). Deborah’s speech, “Leveraging Interdisciplinary Knowledge Systems for Sustainable Coastal Management,” underscored the potential of Alternative Dispute Resolution (ADR) processes to address environmental conflicts, with a focus on coastal management. In presenting three case studies – from China, New Zealand, and Cambodia – Deborah illustrated how ADR can creatively resolve complex environmental disputes.
ADR as a Tool for Environmental Justice in the Asia Pacific
ADR’s growth in the Asia Pacific region is significant not only because of its global rise but due to the region’s unique set of environmental challenges. Rapid urbanisation, expanding tourism, and commercial activities increasingly strain coastal zones, where disputes impact communities, corporations, and governments. Deborah noted that ADR’s flexibility makes it ideal for managing these layered disputes, which often involve a web of issues spanning science, sociology, economics, and legal principles. Environmental disputes are rarely straightforward: for one party, it may concern property rights; for another, it could involve health risks or cultural preservation. Here, ADR’s flexibility in adapting its processes across interdisciplinary knowledge systems can be particularly impactful.
Blue Carbon Justice in China: A Multifaceted Approach to Coastal Protection
Deborah’s first case study highlighted “Blue Carbon Justice” in China. Here, coastal courts have creatively addressed environmental disputes related to marine and coastal ecosystems by combining legal remedies, market-based solutions, and mediation. At the heart of this innovative approach is the concept of “blue carbon”- the carbon captured and stored by ocean ecosystems like seagrass beds, mangroves, and salt marshes.
In Blue Carbon Justice, Chinese courts evaluate the ecological damage of incidents such as illegal mangrove logging and translate it into a financial equivalent of blue carbon credits. Offenders are encouraged to purchase these credits through carbon trading institutions rather than paying a traditional fine. These funds are then channelled into restoring the damaged ecosystems.
Deborah also pointed out the unique role of mediation in this process. Judges often serve as mediators, guiding defendants to voluntarily purchase blue carbon credits. Though courts cannot mandate these purchases directly, the mediated settlement is viewed favourably, as it reflects the defendant’s willingness to contribute to environmental restoration. This not only benefits the ecosystem but incentivises defendants by potentially reducing their penalties. Through Blue Carbon Justice, Deborah explained, ADR illustrates how market-based solutions and mediation can creatively address complex environmental challenges.
Whanganui River in New Zealand: Recognising Rights of Nature
The second case study delved into the groundbreaking legal recognition of the Whanganui River in New Zealand as a legal entity. This legal status, granted in 2017, emerged from extensive negotiations between the Māori community and the New Zealand government, recognising the river as a “tupuna” (ancestor) with “mauri” (life force) that holds cultural and spiritual significance.
Deborah emphasised that, while not itself an ADR measure, the process leading up to the river’s legal personhood was rooted in ADR principles. The granting of legal status to the Whanganui River set a precedent for integrating indigenous knowledge into legal frameworks, facilitating cooperation, and fostering sustainable environmental practices. Deborah noted that this legislative framework has inspired similar initiatives globally. This includes the Ganges River in India, the Sundarbans Mangrove Forest in Bangladesh, and the Amazon River in Ecuador, which have been granted legal personhood, acknowledging their ecological and cultural value.
By granting legal rights to natural entities, New Zealand and other jurisdictions have introduced a new approach to environmental protection. This model opens the door for ADR practitioners to engage with environmental issues through culturally sensitive frameworks, which address indigenous communities’ historical grievances while ensuring the sustainable management of natural resources.
Te Awa Tupua (Whanganui River Claims Settlement) Bill Parliamentary Debates
‘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.’
– Chris Finlayson, Attorney General, New Zealand
For the Maori of the Whanganui River, the first major infrastructure project in line with the values set by Te Awa Tupua is a purpose-built marine precinct at the mouth of the river. In October 2022, this project won first prize in the Best Practice Collaboration category at the Economic Development NZ Awards. This short video shares some insights on the positive impact of the Te Awa Tupua Act 2017.
CLAIM Mediation in Cambodia: Collaborative Solutions for Complex Land Disputes
Deborah’s final case study showcased the Cambodian Land Dispute Mediation Project (CLAIM) published report drafted by ADC is 2022. The mediations involved a complex multi-stakeholder mediation project aimed at resolving a long-standing land conflict involving a global agribusiness and five Bunong villages in Cambodia’s Mondulkiri Province. This conflict, rooted in competing land claims and longstanding historical issues, had resulted in years of contention.
CLAIM exemplified how ADR processes can be tailored to manage complex environmental and social disputes. Before the mediation process formally began, CLAIM spent over a year preparing – teaching villagers land mapping techniques, training them in negotiation, and building a robust understanding of land rights. The preparation stage was instrumental in ensuring the villagers were equipped to negotiate effectively.
Moreover, ADC’s evaluation of the CLAIM project highlighted how interdisciplinary knowledge systems, such as geography, political science, negotiation theory and conflict capability upskilling, enhanced the mediations’ success. This approach empowered villagers to participate effectively in the mediation process, resulting in settlements that balanced commercial and community interests.
Deborah emphasised the role of interdisciplinary expertise in CLAIM’s success. The project engaged various stakeholders, including local government officials, to foster legitimacy and trust. By integrating technical expertise, political insights, and cultural sensitivity, CLAIM not only resolved the immediate dispute but also provided a blueprint for managing similar conflicts in the Mekong region and beyond.
Interdisciplinary Impact in ADR for Environmental Conflicts
Deborah underscored how interdisciplinary knowledge strengthens ADR’s effectiveness in environmental disputes. ADR’s adaptability allows it to integrate insights from various disciplines, accommodating the unique characteristics of environmental conflicts that may involve overlapping regulatory, scientific, and sociocultural issues. As environmental issues grow more complex and multi-jurisdictional, ADR practitioners are well-positioned to use these interdisciplinary insights to craft innovative, durable solutions.
The Role of ADR in Sustainable Coastal Management
Deborah concluded her speech by reiterating the transformative potential of ADR in environmental justice. The Asia Pacific region faces pressing environmental challenges, especially in coastal areas, where competing commercial, cultural, and ecological interests create fertile ground for disputes. Traditional litigation often lacks the flexibility to address these disputes effectively, whereas ADR offers customisable processes that accommodate multiple perspectives.
The LAWASIA Conference provided a powerful platform for ADC’s CEO to share these insights. Deborah’s presentation highlighted that ADR is not only a tool for efficient dispute resolution but also a framework for inclusive and sustainable coastal management. By drawing on interdisciplinary knowledge systems, ADR practitioners can help craft solutions that are practical, culturally respectful, and environmentally sound.
As environmental challenges continue to mount, especially in fragile coastal zones, the use of ADR will undoubtedly play a crucial role in achieving balanced, equitable solutions. Deborah’s speech serves as a call to action for ADR practitioners to continue innovating, to meet the evolving needs of environmental and coastal management in our time. The Australian Disputes Centre remains committed to this mission, leading the way in leveraging ADR for a more sustainable future.