Law at the End of the World

Prefiguring a better, post-growth world - Episode 4 (with Birsha Ohdedar)

• Elizabeth Macpherson and Cristy Clark • Season 1 • Episode 4

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In this episode of 'Law at the End of the World', Cristy Clark and Elizabeth Macpherson explore the intersections of environmental law, climate change, and social justice. The episode particularly focuses on the significance of prefigurative politics and legalities in enacting change, and features a chat with Birsha Ohdedar, which explores his academic journey, strategies for balancing academic responsibilities with real-world impact, as well as his work on law and post-growth approaches. Reflecting on Birsha’s interview, Cristy and Liz discuss the challenges of parenting while navigating academia and the benefits of slow scholarship in a fast-paced academic environment. Finally, they highlight current developments in environmental law and future directions for research.

Our podcast website - where you can find more information, including the show notes - is located at https://lawattheendoftheworld.buzzsprout.com/

You can find us both on:

  • LinkedIn - https://www.linkedin.com/in/elizabeth-macpherson-90929117/ & https://www.linkedin.com/in/cristyclark/
  • Bluesky - cristyclark@bsky.social & prof-mac@bsky.social
  • Our websites - https://elizabethmacpherson.co.nz/ & https://cristyclark.wordpress.com/

Cristy (00:00)
Hi and welcome to Law at the End of the World where we talk about the future of environmental law. I'm Cristy Clark, an Associate Professor of Law at the University of Canberra, Australia.

Elizabeth J. Macpherson (00:10)
And I'm Elizabeth MacPherson, a Professor of Law and Rutherford Discovery Fellow at the University of Canterbury, New Zealand. In this podcast, coming to you from the end of the world, we share developments and insights about how law has been used to support outcomes for the environment and the people who depend on it. 

How are you, Cristy? What have you been up to?

Cristy (00:31)
Well, I've been marking exams and solo parenting, neither of which are my favourite activities. My partner was in, it's Recife in Brazil for the International Conference on Community-Based Adaptation to Climate Change, which he's been working on pretty solidly for a while now.

He was working very long days over there while over here I had this big stack of exam marking while holding down the fort and taking my teenager to medical appointments, picking up my 18-year-old from late shifts at the pub. So yeah, look, it wasn't my favourite week, but it's over now. He got home very early this morning and I'm relieved. So on to a new week. 

How about you? What have you been up to?

Elizabeth J. Macpherson (01:12)
Yeah, I also have had quite a busy week actually with some travel. I've been away at a conference in Auckland, Tamaki Makaurau in the North Island of New Zealand, which I think I flagged when I was going up to this conference. It's the Environmental Defense Society's conference that they hold every year. And it's kind of a place for people working on environmental policy, but across science and across law and across politics and activism and environmental organisations, they're all coming together to talk about kind of the current issues in terms of environmental management in Aotearoa. And as we've heard on this podcast, there've been quite a few of those quite political kind of developments happening here lately. So that got a lot of airtime. 

It's a conference that the ministers always come to. So we have the minister, know, the minister for the environment, the minister for climate change, for conservation, minister for oceans and fisheries, they tend to turn up and talk a bit about maybe the sorts of policy developments we might be expecting and get a bit of a grilling usually from the audience. And there were some really inspirational speakers who were talking about kind of what they're seeing as emerging issues in environmental policy and where we might see I suppose, where internationally change is being driven and how that's affecting us down here at the end of the world. 

And I would say definitely there was a big emphasis on growth and markets and what that means for the environment. Probably I suppose market-based and market-based solutions to environmental challenges, biodiversity credits, nature credits, carbon credits a little bit around you know carbon capture technologies that sort of stuff and also yeah there was a lot of emphasis coming from the government on the sort pro-growth discourse and it's kind of interesting to be reflecting on that as we go into today's episode because you'll introduce our speaker but probably coming from a slightly different perspective to that but I think it is really important to participate in those sorts of conversations and hear what the themes are that are coming through from policymakers and from politicians and from lawyers so that we can keep up with those developments, I suppose. 

So, yeah, so, do you want to tell us a bit more about what we're going to focus on today?

*Prefigurative politics and legality*

Cristy (03:39)
Yeah, absolutely. So lately I've been working a bit on the concept of prefigurative politics and the related concepts of prefigurative legality and theory. So prefigurative politics is kind of a complex term that's used to describe basically just activism that enacts the kind of future that the activists want to see in the present, even if just temporarily. So it often takes the form of encampments, for example, and a classic example is Occupy. So these were not just protest sites, they were also kind of these temporary embodiments of a kind of world that the protesters were trying to campaign for. So they were sort of trying to reject polarisation and extreme hierarchy. They were trying to engage really deeply with deliberative decision-making processes and embed that into the way that they did everything. And just to do the basics, like provide free food and medical care. And so they had, you know, free libraries and free medical tents and things like that. And these sort of became, even if it was for a month or a couple of months, while people were there, they could...

see a concrete example and experience a concrete example of the kind of future that they were really trying to campaign for and that made it more real and it made it more tangible. Another example from before Occupy was the World Social Forum and its slogan is a fairly kind of classic example, it's 'Another world is possible', and it's trying to show that through these kind of concrete, even momentary examples of those other worlds. And they've been really influential in environmental protests. So for example, in Australia, the Torrenia Creek and the Franklin Dam protests used a lot of prefigurative politics in the way that they fought their campaigns to protect forests and rivers.

Elizabeth J. Macpherson (05:39)
Mm-hmm.

Cristy (05:39)
So there's a related idea of prefigurative legality and it was coined by Bronwen Morgan and Amy Cohen. And they describe it as sort of similar strategies but ones that rely on legal language and legal forms to imagine alternative legal realities and to bring them into existence again, even if temporarily. And so one example that people might be familiar with is the use of people's tribunals which use kind of all of the forum and norms of

Elizabeth J. Macpherson (06:04)
Yeah.

Cristy (06:07)
official or state-based tribunals but they're actually created from the ground up. An example in our area is the International Rights of Nature Tribunal and the domestic equivalents that have been held as one for the Great Barrier Reef for example.

Elizabeth J. Macpherson (06:10)
Mm.

Mm-hmm.

Cristy (06:22)
So I've been interested in this kind of concept of prefigurative politics and legality and theory for a while, partly just because I grew up attending protests and camping on forest picket lines as a kid, but also because I really believe that law and political legitimacy are often created from the ground up and that it's sort of through these processes that we have the most chance of improving our society for the better. Of course they can be used in the other direction, they can be used in all sorts of ways, it's not always for progressive politics but I do think it is a really powerful medium for kind of enacting change and frankly it's really gruelling if we focus constantly on everything that's wrong with the system, if we focus constantly on kind of critique and then on tearing down without having any emphasis on what else we could do or what else is being done even on sort of small scales and even in these temporary moments. So I find it to be a real source of hope and optimism and this is a topic that comes up in the let's chat segment that I'll introduce in a moment.

Elizabeth J. Macpherson (07:21)
Mm. Yeah, it's really interesting. I have heard people use this word prefigurative and probably I've kind of skirted over it because I didn't exactly know what it meant. But the prefigurative, is there a dictionary definition of that? Is that trying to figure things out in advance? What does the prefigurative allude to?

Cristy (07:50)
I think it means that it's, we're hoping for something to exist in the future, but in the meantime, in the kind of pre time, we're going to create these, you know, these sort of figurative, these concrete examples in the present that are kind of give us a feel for them or can give us a kind of an opportunity to experiment with them and to really believe in them in order to make those things feel more possible

Elizabeth J. Macpherson (07:59)
Mm.

Cristy (08:15)
and in order to model them for other people to kind of come on board and to support them.

Elizabeth J. Macpherson (08:19)
So it has a bit more of a sort of a practical side to it than say like the concept of legal imaginaries that there's also been quite a lot of attention to which is more imagining a future world. This is sort of trying to build the future world on a small scale to see how that goes.

Cristy (08:30)
Yeah but interestingly it does get used in relation to theory. So Margaret Davies for example talks about prefigurative theory and that's probably much more akin to legal imaginaries and so I think we have this probably quite blurred line in the middle and I guess it's when the theory is quite practically oriented and it can be used yeah to enable our imaginations to see what is possible.

Elizabeth J. Macpherson (08:43)
Yeah. It also reminds me bit of another thing that comes up, a concept that's used quite a lot in the scientific context, which is the idea of living laboratories. And that's sort of an idea that on a small scale, you can kind of set up an empirical experiment for maybe the sort of

Cristy (09:06)
Yeah.

Elizabeth J. Macpherson (09:13)
future systems change that you might be trying to enact through science. It also reminded me as you were talking of what we see a lot with Indigenous peoples' rights in different contexts around the world, including in Aotearoa New Zealand, where Indigenous First Nations groups are just... getting on and asserting their inherent authority and asserting their rights to govern themselves and their communities and their territories, even in situations where the government doesn't necessarily recognize that. And a good example of that in Aotearoa New Zealand is the exercise of customary rahui, which is a prohibition or a regulation or a restriction on the taking of natural resources. So often you'll see a rahui placed in a perhaps in a local community harbour or a bay on the taking of fisheries or shellfish after there's been some sort of over extraction of that particular species or for other reasons but often for those sorts of environmental resource management reasons and those are sort of acts of micro sovereignty I like to think of them as they're sort of situations where the government isn't saying okay you can have this regulatory power to to regulate fisheries in your own community but the indigenous community just gets on and does it anyway and we find that there are really high levels of societal compliance because the local community sees this and sees this as a really effective governance mechanism which is there for a good purpose and it's working well and so people just, so it has a normative force and a legal power and I wonder whether that's kind of the idea with some of these prefigurative legalities examples too, is that if people just get on and try and implement things in an ad hoc way at a small scale, then that might have a scaffolding effect of sort of a maybe inspiring change more broadly.

Cristy (11:12)
Yeah, absolutely. Beth Goldblatt and I wrote an article last year about prefigurative legality in the environmental space and some of the examples we used were from...

Elizabeth J. Macpherson (11:22)
That's where I heard the term. Of course I read your paper.

Cristy (11:27)
I believe you.

For example, we wrote about the Fitzroy River Declaration where the traditional owners of the Martuwarra or the Fitzroy River, they got together and they made a declaration and it was absolutely grounded in law. It was grounded in First Law and they made a declaration of the rights of the Martuwarra as a living ancestor and its rights to kind of live and flourish. But in some respects, they were prefiguring a colonial system that was going to respect that sovereignty and that was going to respect that First Law and since that that was in 2016 they have they've just got on with it they've created a governance body and and they engage using First Law and using that normative power to continue to assert not just the rights of the Martuwarra and the community who are sort of related to the Martuwarra but also to engage with colonial system as well and to use sort of do that bridging work in order to keep moving forward and to push for other people to come on board. And so what we were sort of saying is that maybe this kind of use of prefigurative legality creates this space in which these negotiations, these, yeah, these micro-assertions of sovereignty, I really like that way of putting it, can kind of have this sort of space that because it's operating slightly outside of the colonial legal system, it's not as subjected to what's sometimes called ontological submission or other words that are used to basically say that when ⁓ indigenous peoples, yeah, when indigenous peoples, I just knocked my microphone, have to kind of try to mesh themselves into sort of settler colonial systems, they end up

Elizabeth J. Macpherson (12:54)

of recognition.

Cristy (13:10)
compromising on their own law and they end up losing those parts of it that don't fit neatly into it by sort of separating it out into this more prefigurative legal space that there might be more scope for it to... to kind of negotiate on its own terms, to have its own space. And so we were sort of asking those questions and really asking what sort of the settler colonial system could learn from that and how it could, I guess, negotiate, sort of engage back in good faith and accept those bridges and move towards a more plural legal system in response. So yeah, absolutely. think that's where it does have sort of real scope to kind of think through sort of what's happening there and how we could build on that in a positive way.

Elizabeth J. Macpherson (13:53)
Yeah, cool. And you'll have to put that article in the show notes too for our readers. But what... Yeah, no, I've already read it. I've definitely read it. I've definitely read it. But I've also read about the idea of prefigurative, I don't know if legalities, but maybe the politics and a few other contexts. And it's something that I probably need to brush up on.

Cristy (13:57)
So you can read it.

Yeah

Hmm.

Elizabeth J. Macpherson (14:17)
But would you like to introduce us now to our guest in today's episode?

*Dr Birsha Ohdedar*

Cristy (14:22)
Yes, absolutely. So we're very lucky to have Dr. Birsha Ohdedar joining us for this episode. So Birsha is a senior lecturer in environmental and climate change law at SOAS, University of London, and the deputy director of the Law, Environment and Development Centre. His research critically examines the role of law within the broader political economy of environmental and climate crises, drawing on political ecology and critical geography.

He works across international and domestic legal frameworks with a particular regional focus on India. He's the director of the SOAS Environmental Law and Policy Clinic, where he works with students on environmental justice projects in partnership with NGOs and charities. And he's also a trustee of Legal Response International, an NGO that provides climate law advice and assistance to climate vulnerable developing countries and civil society actors.

Cristy Clark (15:16)
Birsha welcome to Law at the End of the World.

Birsha Ohdedar (15:19)
Hi, Cristy nice to be here.

Cristy Clark (15:20)
So I was wanting to start by asking you to share your story about how you ended up in academia. Was it always your plan?

Birsha Ohdedar (15:28)
No, definitely wasn't always my plan. don't know. There many people who kind of start off with the plan to go into academia. Yeah, kind of, guess I started studying, well, I studying my law degree, law and politics. I grew up in New Zealand, in Auckland, and I was studying at the University of Auckland. And then when I finished my degree, I became a that were practicing, that's what everyone's kind of seemed to be doing. So I went into a commercial law firm. I knew from when I started that that's not where I wanted to end up. And I think I found it quite difficult actually, going into that world and feeling very much like I wanted to do something else. And I was quite impatient in a way just to move on from there as soon as possible.

And it was there that I started to look for other avenues to go down. And I had a chat with a professor at the university, Jane Kelsey, who had taught me international economic law, looking at organisations I could work for and families from India. And so I wanted to also potentially go there and do some work. And I was very much interested in.

social justice issues, human rights, environmental justice. And so through kind of talking with her and gaining some contacts, I kind of ended up going to Bangalore in India and working at a place called Alternative Law Forum. And that was really kind of, yeah, quite, to say, or kind of really made a mark on my on the rest of what followed because I worked there with some really inspirational, fantastic human rights lawyers, scholars, activists, and worked on things like there was a right to food case going on at the time. I did these kind of visits to villages and places like that. And from there, kind of thought, it's time to do a, I should do a masters and that's when ended up there saw us doing the master's in environmental law. And it was probably there during the master's that I thought quite enjoyed some of the research aspects of it. So it still took me a couple of years after that, after the master's to kind of make the decision that I would go down the academic route. But it was, yeah, it was probably around that kind of period where I was doing the master's, doing a dissertation that I started enjoying research and thinking about academia and finding a way to also kind of think about having an academic career where I was still able to do certain things which were outside of like as in kind of having an impact outside of academia.

Cristy Clark (18:02)
It's a very familiar story, I have to say, including the impatience.

Birsha Ohdedar (18:04)
Yeah. Yeah. Yeah, exactly. Yeah.

Cristy Clark (18:09)
So Birsha you're currently working on a number of things, let's be honest. But one of them is an edited collection on law and post-growth approaches forthcoming with Edward Elgar. You're also working on a project on climate adaptation law and a monograph on the human right to water in the context of climate change. So I wondered if you could tell me a little bit about one or all of these projects and I guess really the background, like how did you come become interested in these particular issues?

Birsha Ohdedar (18:38)
Yeah, I should probably not put all of my kind of to-do list on my profile. But yeah, there's probably, I'm doing quite a few things at the moment, I think, kind of different projects, as you point out. But they're all kind of, in a way, interrelated. So if we go at the post-growth, projects first. There's actually two edited volumes that I'm working with some other academics on. So the first one is Law and Post-Growth, which is with Danwood Chirwa from the University of Cape Town, Roopa Madhav from National Law University Delhi, Clayton Fyock from Essex and Jude Bueno De Mesquita from Essex. So it's been really nice to work with, you know, four or five different people on this. We're doing an edited collection looking at kind of, I guess there's been this big, so significant amount of work being done on degrowth and post growth in the social sciences, primarily economics, geography, and so on. There hasn't been much engagement from legal scholars.

And so that's kind of where we are kind of trying to make an intervention. There's another volume with some of those editors on human rights and and post growth. So there's one focused on human rights and on law more generally. I think the kind of interest in that for me comes from, I guess, quite fundamentally as environmental lawyers or some people interested in environmental justice, climate justice.

Cristy Clark (19:51)
Hmm

Birsha Ohdedar (20:16)
the real kind of, well, one fundamental issue is the social economic system that underpins loss. So I kind of had a real interest in going deeper with my own understanding of that. And that kind of took me to these kind of post-growth approaches. And within that, I guess there's also a feeling of with degrowth and post-growth, it's about there's, guess, two things. One is the critique of the current capitalist world system. And then the second is trying to kind of create something different. And it's that second part that I'm also very interested in because often, especially with teaching, you know, often when I'm teaching students, they come into the program. Firstly, they want to use the law to dismantle the system in a way, and then we kind of critique it all, critique the law, critique the system. And then at the end, they're kind of feeling quite in despair, like, what do we do now? The economic system sucks, the law sucks every day. So it's a little bit about also trying to reimagine the world, rebuild the world trying to, it's, you know, it is quite utopian in some ways, but it's important to kind of have those discussions, have those ideas. And so a lot of it is also from an interest of trying to come up with something different and what that would look like and the place for law and human rights in that. So that's that project of two projects in a way. Then there's the kind of climate adaptation work that you you've certainly been involved a little bit yourself. So that is stemmed out of a few papers that I've written recently on climate adaptation, where, again, looking at some of the work on climate adaptation by political ecologists, geographers that have critiqued the way adaptation has been done. so kind of looking at that from a legal perspective.

And particularly in the current moment, internationally, as countries are developing more climate adaptation laws and policies, trying to kind of also have some what of the input on that, which has led me to kind of work with an organization called Legal Response International on also taking that academic scholarship and turning it into things that, yes, practitioners, civil servants and so on can also read about. And then finally, there's the kind of human right to water, which is actually my PhD was on the right to water in the context of climate change, looking at South Asia and India in particular. And so I've been thinking for a while on what to do and whether I want to write. I'm kind of been writing, slowly writing, chipping away at turning it into a book, but probably in a quite different form to what the thesis was, partly because I think things have moved on in terms of some of the debates and partly because my interest has also expanded in a way to look at different things. Yeah.

Cristy Clark (23:15)
Yeah, I mean, I can very much relate to the last one when I finished my PhD. people suggested, you know, now it's time to publish it as a monograph. And I thought, my goodness, if I have to look at that document, even for another minute, it's not going to be pretty. I really needed a good break from it and to do a number of other things and then

Birsha Ohdedar (23:30)
Yeah.

Cristy Clark (23:36)
Yeah, I did come back to a lot of the topics in a book that I'm literally submitting the proofs now. A very, very long time later with a very different, I guess, yeah, we're bringing in a different context to that research and not feeling as frankly nauseous looking at the work. But I'm hugely admiring of people who can

Birsha Ohdedar (23:53)
Yeah.

Cristy Clark (23:58)
turn around and go straight into a book, but the human right to water particularly is such a fast moving debate and field that I think it's a particularly challenging one to do that. I think, yeah, there's some real merit in allowing it to marinate, let's say, and think through those approaches.

Birsha Ohdedar (24:18)
Yeah, definitely. think, you know, there's also a kind of I didn't want to, I'm kind of off the mind that not to just publish things for the sake of or write things for the sake of writing it and to get, you know, another publication under your belt or another thing. So it's kind of to potentially take a little bit longer and have something that you're proud of and that you know, it reflects a better quality rather than just having, you know, a quantity of number of things. that was my, that's the reason I've been, yeah, taking a while sometimes to do things, but yeah.

Cristy Clark (24:52)
So you mentioned the Legal Response International, an organisation that you're a trustee of and that gives legal advice on climate change law to small island developing states, least developed countries and civil society actors. So how did it come about that you got involved with that organisation and what kind of activities has that sort of involved for you?

Birsha Ohdedar (25:13)
Yeah, so Legal Response International is an organization that was started in 2009, I think. And they started to kind of work in giving legal advice during the climate negotiations. Typically, think, yes, I think it started after the Copenhagen COP and give pro bono legal advice. They were based in London.

And I first heard of them when I was doing my masters, where I was doing a course on climate change law. And it was mentioned as an opportunity to kind of, you know, if you wanted to get involved in some work. And I tried to kind of contact them then and we get much. I didn't think I heard back. But I happened to after my masters be working at a law firm called Simmons & Simmons. I was just doing some temporary work for initially, and I noticed that they had their office right there. And they had a kind of, you know, two person office. So I just went in and started chatting to them and said that, know, did this Masters, I did my, my, my dissertation, my Masters dissertation on loss and damage, which was becoming a particular issue at that time, and whether there were opportunities to volunteer. And so I started volunteering after that. And I went with them to a few of the cops and intercessionals providing legal advice, essentially legal assistance to, yeah, primarily least developing countries, small island states, sometimes civil society organisations. So that was, you know, that was quite, it was really great to kind of be involved with and see how those negotiations run, like really be in the front line and you kind of really understand how these treaties and how these different documents that you read kind of get created, the politics behind it, why that it's so messy, things like that. And then slowly through time I've developed, I've worked with them quite a bit and now I'm a trustee. So now I'm doing less of the kind of legal advice aspects and more of the, I guess, strategic, and governance side of things. But then I'm still working with them as an ancient project, like the Planet adaptation project. So the role of LRI is also shifting after the Paris and the NBCs to also now start to work on the implementation of new climate laws or the design of new climate laws. So it's gone from advising at the international level, particularly if you think 10 years ago, we're trying to get a Paris agreement to now actually implementing a Paris agreement. So yeah, so it's, yeah, it's been really nice to kind of have that relationship for a long period of time. And they've got some fantastic lawyers doing, yeah, doing some great work. The big thing that I think LRI tries to address, which is quite important, I think, is that different countries at negotiation have to take on at these negotiations have hugely unequal amount of resources. So large countries have significant amount of resources to devote to experts, diplomats, lawyers, and smaller countries have, you know, often one person who's gone to the negotiations, trying to keep track of multiple negotiating streams. So LRI's small role in a way is trying to address that injustice that is happening at the liberal elections.

Cristy Clark (28:27)
So I wonder, one of the things that we've found is sort of coming up in the themes is that a lot of academics who are working in this sort of environmental justice space is that balance between the really theoretical parts of academic work and research and that really strong passion to engage with the real world impacts and to do that work on the ground. How do you find, I guess, the synergies between those two and sometimes the tensions between those two? What are some of the ways that you've found of negotiating those two aspects?

Birsha Ohdedar (29:03)
Yes, that's a really great question. It's something I, it's constantly kind of, as we say, like trying to do a little bit of both in a way and manage some of these tensions. like, I really enjoyed the theoretical aspects of law and studying law and understanding, well, not just law, but environmental justice issues. And I think it's really important to kind of continue with that, to maintain that kind of critical lens that you see that you understand and see the world. It's difficult in it's quite difficult, say, in current kind of academic in our jobs in a way, right, to find time to then also do other other things. There's the teaching and there's kind of research related objectives or goals you might have or boxes you might need to tick. And so it's been difficult sometimes to kind of find time to do other work that intersects with that. So in my case, I've, yeah, I've found, well, one is this project that I mentioned, but also there's a legal clinic that I started at, Soas Environmental Law and Justice Clinic.

So we've been working, well, obviously students are the primary people doing the work in that, but I provide a lot of the oversight. But again, trying to engage in interesting projects that are doing some level of real world impact in a way. But it's, yeah, for me, it's a constant, it's something that I, you know, It's something that I keep in the forefront of my mind, I guess, as I'm trying to like, flat map out my, my career or map out the next steps is kind of trying to find ways to use the scholarship academic work, the critical theoretical work to kind of make some somewhat of an impact outside of academia. Yeah.

Cristy Clark (30:59)
Yeah, it's a really, it's a tricky one. And there's obviously clear synergies and benefits to both, but the finding time component and the knowing when that they're really tricky questions. Yeah.

Birsha Ohdedar (31:12)
Yeah, think it's, yeah, I think, yeah, it would be great if, you know, we would have more discussions around around this as well and trying to find ways to find spaces because I think there are lots of us wanting to do more of it, finding it difficult to kind of find time, find collaborators as well sometimes. And yeah.

Cristy Clark (31:34)
Yeah, absolutely. So I guess it relates to my next question, which is, what's your kind of drive or what keeps you really motivated and interested in your research?

Birsha Ohdedar (31:48)
Yeah, guess, yeah. I overall there's this, guess, kind of embedded notion of justice that kind of drives some of these questions. And then there's the curiosity, I guess, it's not just kind of, yeah, to do good research, I guess you need to be constantly curious about things. And so there's a curiosity that drives that, but there's also a sense of seeing the world and a lot of the injustices that happen and your curiosity gets driven by some of those things that happen. So, you know, in my case, I think during the PhD, it was, you know, spending four years just doing one thing was meant that there was a lot of unexplored aspects to that PhD that kind of I'm continuously curious about. So there are, I published a paper recently that took, you know, took several years to essentially kind of complete because it took a while to ruminate on and to kind of finally get through. But then there's, that was from one, one of the four sites that I did field work during my PhD. And then there are other aspects to this, you know, there are three or four other sites that I still have lots and lots of questions and lots and lots of things that I want to explore. So I feel like there's a lot of things that I wish I just had endless time to kind of keep doing, you in a way, and endless different avatars that could continue to do that research. But so in a way, you know, it's yeah, but overall, it's driven in a sense by a sense of curiosity, also a sense of just, you if look at the world today and the amount of destruction and injustice and kind of unfairness and things that are happening, and it's difficult to not at least, I mean, it's difficult not to have questions. Even obviously it's difficult to not also be in despair in some ways, but it's difficult to not be driven by questions and be driven by ways to explore how to change things or how to, you know, why things are the way they are and how things can get better.

Cristy Clark (33:56)
Hmm. It's not how things can get better. That part of the curiosity that is perhaps you alluded to this earlier in relation to the teaching and to the post growth. It's a bit of an antidote to despair in some respects. Do find that looking at those answers of not just the critique, the critique is necessary, but then the, what do we build? What do we even just prefigure here as ways forward can help to counter some of that paralysing despair that might otherwise sort of creep in.

Birsha Ohdedar (34:30)
Yeah, mean, own work here has been quite, yeah, on this as well, right, with the prefiguring of legalities and kind of rights of river. I think that, yeah, that's an important aspect of it. I think, you know, at some stage we, the system that we have will not exist. So what comes after?

And so it is important to kind of have that kind of thinking and that kind of also I say like practicing that kind of, you know, the examples from a lot of the scholarship and degrowth or rights of nature, et cetera, is about communities that are practicing an alternative or building an alternative. And it doesn't obviously happen overnight. And but at some stage things suddenly change. And these kind of alternatives are models that need to be continued to practice and continue to be replicated and continue to be worked on. So in a way, in terms of scholarship or as academics, I think it's important to kind of highlight some of these and use our, we're in a privileged place that we can spend a lot of time looking into these things, thinking about these questions. And, and so as much as we want to, obviously, we should be critiquing the current system. And that's, that should be that's of primary importance. It's also important to give people some level of hope and also some level of, you know, even drawing on smaller examples to say that, you know, these are small examples from different parts of the world. But this is what communities are doing to resist or to create new ways of governing water or governing a natural resource or something like that. think it's really important for, in terms of academia, to not be completely in despair as well. It's important for us to kind of, yeah, not just to kind of, to provide alternatives and to provide rays of hope.

Cristy Clark (36:30)
So you have a young family and you're involved in, as we discussed already, a significant number of different research activities and volunteering and teaching work. So can we talk a bit about just the juggle and how you carve out some breathing space, how you make it all come together?

Birsha Ohdedar (36:49)
I'm not sure if we can make it all come together. It's quite chaotic. And I think, and I know that you can kind of, you know that experience, so you know that kind of phase in life. Yeah, I have two young sons. One is five and one is one. And it is quite chaotic, me and my partner work full time. So it's kind of juggling careers and juggling childcare and juggling family stuff. And I think the biggest thing as academics or as an academic for me is on the one hand, you have a lot of freedom to, you know, it's not like a work in a factory where I have to be there from particular hours and physically be somewhere at particular hours. So I can kind of sit around my work sometimes around childcare things. The biggest thing is the difficulty to carve out time where you can really focus and get that kind of deep work that you really need for good scholarship, right, to be able to read and focus and in the way that I might have been able to do before kids and kind of ruin your attention in a way or your ability to kind of really focus in. 

And a lot of the time, I'm quite tired, really just constantly tired. So it's yeah, so for me, it's it's trying to find ways to carve out quality time to do work. I've kind of given up on the ability to have lots of quantity of time. I know that there's really fixed times where I cannot be doing anything about work related.

And also I think for me, it took a while, but it's kind of being okay with plans just constantly changing. So, know, like this morning I woke up, I try and wake up early to try and get a little bit of reading or work done before the kids are awake, because that's also the time where your brain might be able to function a little bit better. But inevitably one or both of them, today it was both of them, up very early and we're all over. Yeah, so it's constantly kind of being like, okay, well, this is not happening today. We'll try again tomorrow. But it's also kind of, I think at the same time, there's a couple of things. One is, I know from talking with colleagues who are, who have older kids that it's a phase, as in there's different phases of parenting from, and again, you would know better than me, Cristy, but different challenges that happen as you go as they grow older. And currently, it's more kind of physically and mentally exhausting in a way. And then also, it's you do enjoy the time you have with them at the end of the day, like it is nice to kind of be like you do switch off completely when you're not, you know, on the weekend, I cannot do any work, but I'm just I have to be present with them. And that's that's really nice. 

And, I had, I was able to take some parental leave. My employer has a quite generous policy. So I was able to take a couple of months and have just time with my younger one last year. And that was really nice. And that was worth doing. I mean, on the one hand, it was like, well, I could do a bit more work if I write in the summer. But then you're never going to get, he's never going to be eight months or nine months again. And it was, yeah, it was great having the summer, just spending the summer with him. So I guess putting, kind of putting it all in perspective. And of course, I'm in a fortunate position that I was able to get a permanent job in academia while I had young when I had young children. So, you know, I'm not in a precarious situation. But yes, so it's kind of putting everything into context in a way.

Cristy Clark (40:27)
Yeah, it's about having foxes, isn't it? I mean, there's a certain gift in being taught how to be in the moment because it's not possible not to be.

Birsha Ohdedar (40:33)
Yeah. Yeah, I mean, I think you mentioned once about writing papers and swimming classes or something like that. I mean, I think you were doing a PhD or something while you were... Yeah, so that's crazy. Yeah. But you do find yourself sometimes, you know, like...

Cristy Clark (40:43)
Yeah, the back of playgroups. Yeah. It's not the most responsible thing.

Birsha Ohdedar (40:57)
picking up my son from school and it's, and I'm, you know, reading a paper just outside the classroom or something like that. And see it kind of switching, you know, your brain is also switching, honestly. It's probably not like, it's not something that's recommended in a way, but you kind of have to, you have to kind of do what you have to do in a way to get the things done, right? And it's okay if it's you know, everything isn't perfect.

Cristy Clark (41:16)
Yeah.

Birsha Ohdedar (41:21)
That's just not possible. So yeah.

Cristy Clark (41:23)
Yeah, absolutely. So it kind of comes back to another question which is around priorities. You know, there are endless projects that could be taken on for research or for impact or engagement, you know, with the world. So how do you decide which projects to pull your sort of time into? Do you have a kind of a process of working out where things, you know, whether they come to the top of the pile really?

Birsha Ohdedar (41:46)
Yeah, this is a hard one. I know you've shared your struggles with this as well, Cristy But it is difficult, I think, because, and it's something that I'm still, I mean, I'm still taking on too many things, probably, than what I'd like to. And it's difficult to say no to things. And also you sometimes say yes to things, thinking that deadline is far away, I'll get it done. You, you realise three weeks before the deadline that you thought it was it was far too ambitious. I think what I'm trying to do at least yet for the last few years is trying to reduce the number of new things I'm taking on, but also trying to find things which are all broadly aligned in a way so that you're kind of Yeah, you're building on one thing on the other, so not starting a new project on a completely new set idea or completely new thing that you might be interested in, but actually it's going to take you hours and hours and hours to read up on it. And as I said, it's impossible. It's difficult enough to do all of the things that you have to do in our current jobs because of different responsibilities add to that young children, family things. So I think for me, I think I'm trying to say no to more things, if I can, know, gently. But also trying to find things which, if I am saying yes to things, they kind of are building on or aligned with things I'm currently working on. I'm, so I'm, yeah, so I'm kind of using my time in a sense, efficiently.

And also, guess, doing a little bit of planning in terms of thinking a few years ahead, like where is this work going to be building towards a few years ahead, not just, that would be an interesting thing to spend the summer thinking about and then just leaving it there. Yeah, so that's kind of my current process is just to kind of think about how things are connecting in my work and if they're building on things that I'm currently.

Thank you.

Cristy Clark (43:44)
Yeah, that makes a lot of sense. So are there areas that are those, I guess, those shiny things that you're at the moment perhaps interested in, but holding back until they start to connect in to your current work? Are there things that are kind of coming up in your field that you're finding intriguing or areas of development that are sparking your interest at the moment?

Birsha Ohdedar (44:04)
Yeah, I think like everyone there's always different, you know, there's lots of new things that we are constantly, you know, interested in as academics and researchers, when probably naturally quite curious. Through my teaching, because I teach on, I teach across the environmental law program. So I teach on climate change law, natural resources law, environmental or international environmental law, there's a lot of different topics that I have to cover within that field. So that in itself has led me to like, often when I'm preparing for a class on something, I'm having to read on something new, and then suddenly get interested in new aspects to that. it's all and there's one of the problems I mean, going relates to the previous question in the way you it's the new shiny toy, the new shiny subject is what you want to delve into and you just leave the other ones, get the other ones to kind of sink in a little bit once you've done enough reading about it. So it's difficult to kind of balance that. I think there are some topics that are coming up now, which I'm quite interested in, but I have held back doing much work on. One is rights of nature, for instance. I'm teaching on it. 

So I limit my research to what I need for teaching. But yourself, Liz and others doing all the work that you are on, Rates of Nature, has been really great to work on. And also through the clinic, I've been able to work on it, but I've limited my research on it because I think there's too many other things and there's a lot of people, great people working on it already. Another one, for instance, again, it's the new shiny toy for everyone has been things like AI and and so I started this happened the other recently where I was looking at a master's student that we had on a dissertation on bioacoustics and the recording of recording of yes sounds in in the Amazon and places like that and the use of AI and so I started to do a little bit of research on that for teaching and that was that was quite cool but again it's like you limit yourself.

Cristy Clark (46:04)
Mm-hmm.

Birsha Ohdedar (46:11)
And then there's, you know, I had spent a little bit of time working on climate litigation and had written some papers. But again, I kind of after doing a little bit of work on that, I kind of stopped myself because I think they were taken up. was a constant. It was an area where there was a lot of work already being done. So there's lots of opportunities to write on it because there's people often publishing special issues or book chapters. But on the other hand, if I wanted to do the if I wanted to explore some of the questions which were less explored in the literature, which I really was interested in, then my time would have been taken up just doing that. But it's an area that I'm still, you know, I kind of track, but I don't really I don't really write much anymore.

Cristy Clark (46:59)
Yeah, it's one of the biggest challenges I think is that there is the self-discipline required not to go down the shiny, new path and every now and then I give in. But limiting that I think is the kind of a survival, the necessity of survival because there are so many interesting areas that you could work on and explore.

Birsha Ohdedar (47:10)
Yeah.

Cristy Clark (47:23)
That's where teaching can be such a blessing really, because it allows you that bounded reason to kind of just start to engage in a way that makes, yeah, that that's kind of mapped out in some respects.

Birsha Ohdedar (47:33)
Yeah, yeah, no, I really admire people who are able to kind of stick to one area and kind of, you know, publish for years on one particular area and really limit there and then become complete experts on that one one area. I find myself just kind of constantly looking at different areas, but also different like law, but also geography, political ecology, things like that. So that also then takes you into different rabbit holes in a way useful often for your writing and thinking, but it does mean that you become a kind of jack of all trades in a way, you kind of mixing lots of different things in trying to understand the world.

Cristy Clark (48:14)
Absolutely. So on another related question and you talked about this before in terms of really thinking through where will this take me in say three years time? What do you think or at least hope will be the focus of your work in three to five years time? Where do see the direction of your research going at the moment?

Birsha Ohdedar (48:32)
Yeah, so very much, I guess there's probably two or three different strands, which should also come together in a way. But one is, yeah, so I worked a lot on water, but it was very much looking at it through an environmental justice kind of lens. But related to that is the critique of, yeah, kind of political economy critique of how natural resources that governed and used and distributed, how borders use distributed and so on. So I guess first, yeah, where my work seems to be going, where I'm kind of towards is one, this kind of post-war political economy critique of current capitalist system and how that relates to environmental law or water law or human rights law. And then related, relatedly how things can, I guess, in a way change. And, yeah, that's kind of where that's, yeah, that's broadly where my where I'd like my work to go. And just but just getting in a way getting deeper in that field, getting kind of more theoretically deeper, but also empirically, I've done a lot of field work during my PhD and it's something that I'm hoping to do once my children are a little bit more self-sufficient again, efficient so that I can go off. But yeah, I spent a lot of time in India, particularly in West Bengal and looking at places like in coastal areas as well as river, riverine areas, exploring things there. kind of, yeah, taking the theory, applying it to things happening and trying to understand things at a broader scale than just that local, but using that as an example to draw up.

Cristy Clark (50:17)
Yeah, it makes a lot of sense. So my final question for you Birsha is, do you have any tips for other researchers, especially ECRs, perhaps things that you've learnt the hard way or even have stumbled across and it's worked out quite well?

Birsha Ohdedar (50:31)
Yeah, it's difficult giving advice, but like basically, for me, I think it's important to kind of, I found it's been important, it's been an important learning to try and plan out where things, where you want things to be, not just a year from now, but you know, say like three, five years and so on. It sounds a bit...appreciate in a way, but yeah, it's important to kind of have a plan and then try and think about when you're taking on new opportunities or taking on new planning, new publications or whatever to try and think where does this kind of fit in. And then another thing that's really helped me is to try and build a community of people. And that's difficult in academia because you're kind of isolated often, depending on your institution, it might be a small institution or maybe a small department, or you might not have many people who work on your topics. But you can build community outside of your institution, but even within the institution, even if it's not people working on your topic, but building people that you just are writing together with or are even just spending time talking about how your work is going, and so on. think, yeah, I think it's, it's probably something that needs more often, particularly after the pandemic, to try and rebuild some of the community that might have been lost. And then lastly, I think for me, the big one of the big breaks, well, one of the big kind of switches in my mentality in the last two to three years has been just to slow down a little bit, concentrate on quality, be so worried about putting out lots of publications or keeping up with the fact that, you know, on social media, lots of people are putting out lots of new things or doing things. You might be in a stage of life like for myself with a young family that things are a little bit slower than you want, you think it could be or you want it to be. But that's okay. And then also that good scholarship can take time. It's not a factory production line kind of thing. It might take years to write something really good and that's fine. It's not a race. Yeah.

Cristy Clark (52:44)
Excellent advice. Well, Birsha thank you so much for taking the time to come on as a guest at Law at the End of the World. It's been lovely.

Birsha Ohdedar (52:48)
No, thanks a lot, Cristy Thanks for having me.

*Reflections*

Cristy (52:54)
So just like with our other guests, I really liked hearing about the ways that Birsha's worked to find how he can use his scholarship, including kind of really critical theoretical work to make an impact outside of academia. And in this case, it was through particularly his work with the Legal Response International and with the Law and Policy Clinic that he runs at SOAS.

And I always find listening to those sort of how people have worked through that tension, I find it really inspiring because I'm always looking for ways of, you know, how I can kind of navigate that and what kind of options that people find. And I do think that really being clear about your sort of select projects and really committing to them and deepening that commitment is one really viable way of making that work.

Last year, Birsha invited me to present at a workshop on legal approaches to climate adaptation in Bonn. And this was with the Legal Response International project. And, the workshop brought together researchers, policymakers, practitioners and civil servants and diplomats, trying to improve the understanding of the legal frameworks and the related policy issues around climate adaptation. And, it was held on the day before the Bonn Climate Change Conference with a kind of view to kind of shaping some of the thinking that might then be taken into that conference that week, which was really focused on adaptation and also on loss and damage at the time.

Elizabeth J. Macpherson (54:19)
Mm-hmm. Yeah.

Cristy (54:20)
Another thing I did like was hearing a father talk about the challenges of balancing parenting work with career aspiration. I mean, it's an issue that does affect all parents, but it is usually women who end up talking about it and statistically who do still do the bulk of the care work that does have to be accounted for somewhere in this messy mix that we keep talking about.

And I do think that having more fathers step wholeheartedly into the role and into the conversation can help it move beyond being considered as a women's issue. And let's face it, that means it's not often taken very seriously. To being an issue for all parents, which is a much more significant issue that workplaces might need to make bigger adjustments for. And of course, we've seen changes, but I'd like to see bigger changes and bigger understanding that, you know, people have...

Elizabeth J. Macpherson (54:53)
Mm. Yeah.

Cristy (55:11)
So yeah, ⁓ I...

Elizabeth J. Macpherson (55:11)
Yeah, and I think leading by example is so important, isn't it? If you're a man and you're a father. Because the more fathers who feel comfortable talking about the load of parenting, the more others who are going to feel like that's a normalized role.

Cristy (55:30)
Yeah, absolutely. And even just, you know, out of the recorded conversation, Birsha and I talked about some of the implications, meaning that, you know, sometimes those evening events really weren't possible, because the kids needed someone to give them dinner and put them to bed and you can't always just... go back onto campus to host an evening event or to do a drinks function. And I do remember when I first started in academia, I had a three year old and a five year old. And I was the only parent of very young children in my faculty. And when there were evening events or evening expectations,

Elizabeth J. Macpherson (56:03)
Mm.

Cristy (56:08)
I felt it I found it really awkward to say that's going to be really hard for me to attend because it means that I'll miss bedtime and I'll miss putting my you know giving my kids dinner and putting them to bed I want to have seen them all day and and I'd really rather that these weren't scheduled as often and things like that it the more that those conversations take place and the more that other people beyond young women, other ones having to kind of put them on the agenda, the more it creates a safe environment for everyone.

Elizabeth J. Macpherson (56:34)
Mm. Mm.

Cristy (56:40)
And the other thing that I liked and I think it relates to it was the commitment to slow scholarship that Birsha talked about as part of his way of dealing with these demands. And I think it is just also a really healthy approach to academia. There's enormous pressure to just ramp up and ramp up and ramp up and slowing down takes a lot of commitment. takes a lot of sort of careful thought. And I chose the word slow as my word for 2025. I reflected on that when I was thinking about it, I was thinking, it's possible that I have failed thus far. Yeah, it's probably not a natural.

Elizabeth J. Macpherson (57:08)
Yeah, I was gonna ask you if you thought you'd achieved that. That word goal.

Cristy (57:24)
affinity of mine. But I do want to consciously slow down the pace of life and of my work. And I did find it a useful reminder of that decision, something that I need to reflect on more and to think through how I can kind of implement that alongside all of the things that I find interesting and want to engage with.

Elizabeth J. Macpherson (57:48)
But I think even just having going a bit slower as a goal, even if you don't 100 % achieve that, will help to maybe lower the pressure that we can put on ourselves. Because in academia there absolutely is this publish or perish mentality. Everybody knows that about academia and it's really true. And it can lead to a situation where you're doing too much and you're also chasing too many grants because you think that's suddenly going to free you up more to achieve your publishing goals and actually just creates more admin and more meetings and things. I think that there's a real tension between that going slow and meeting the benchmarks that we have in order to progress. it's really nice also to normalise going slow and quality because quality does take longer. It's easier to churn out papers that are of a lesser quality. So I think that's useful advice for all of us.

I also thought with Birsha I mean, he definitely brought through this theme that keeps coming up with people that we're talking to of the pracademic and people who are interested in making a difference in the real world, but also people who are really, are achieving, you know, really interesting things in terms of theory and doing some very deep conceptual theoretical work as well as doing practical stuff and Birsha talked about that a bit and I've been reflecting on I was talking about this last week and feeling moderately traumatized about what you said about pracacademics being derided within and I was like, oh no, well, maybe I don't want to go that way. But I think that the secret here is to have both. If you can find the time to be both thinking very deeply and conceptually and be across the theoretical debates in your field and also involved in some way with the implementation of those theories on the ground. And I know there are only so many hours of the day, but if you can do that, then I think that's the really powerful work. And I think that's where I want to be with my work is a little bit of both.

Cristy (59:58)
Yeah, I think it makes a really powerful combination, but I was reflecting on that too and I was thinking that also that if we take a less individualistic approach to these things, then I think that we can say that, you know, it's the work of academia as a whole to both think really deeply and to be really practical and to make an impact.

Elizabeth J. Macpherson (1:00:12)
Yeah.

Cristy (1:00:24)
But that one person doesn't have to do all of that, that collectively, you know, we should be aiming to do all of that. And I know some academics who are just, you know, brilliant people and who do make a massive difference in the world, but they're not themselves very engaged with that kind of practical implementation side. What they do is they really do the conceptual theory work and then I mean, maybe I need to take it back around the not being involved in because what they do do is that they work to really develop other scholars and particularly junior scholars and to support them in their thinking and in how they make those links between the thinking and the application. And in that more kind of collective sense, it all comes together. And I mean, I think it goes back to that issue of balancing and that issue of slow scholarship. It's very difficult to go slow and to have balance if we think that we as one person have to in one moment embody all of those things all together. But if we do take a more collective approach, we can do it in seasons or we can do it as suits our own interests and strengths and then together bring all those kind of together. So I was reflecting on that a little bit more as well.

Elizabeth J. Macpherson (1:01:37)
Hmm. Yeah, I mean, because we're also all parenting too and looking after our elderly parents. So yeah, how many hours are there in the day? And we're not all parenting, but you know, even if we're not parenting, we're probably helping our friends who have children or elderly parents or looking after pets or, you know, we have other other responsibilities in our lives to fit all of this stuff in. And the other thing that Birsha spoke about a lot and I enjoyed hearing him speak about are these theories of degrowth which are sort of related to the prefigurative like how can you imagine a world that's a better world and how can you start to build it in small ways and that is probably the one thing that I have found challenging for me with degrowth is that our entire economic framework depends on the idea of capitalism at the moment and it's very hard to imagine capitalism being placed to one side in order for these other sorts of theories to emerge. And that's probably been the reason why I haven't always engaged very deeply with the degrowth literature is that it feels a little bit utopian to me. But I think that Birsha had a way of explaining it and that felt less unattainable. And I think too, Cristy by you pulling it together with this idea of prefigurative legalities and, I suppose, experiments that are prefigurative, it maybe helps me more clearly be able to see ways in which I could look at degrowth more in my own work and in the research that I'm doing.

Cristy (1:03:14)
Yeah, I've decided alongside slow to embrace utopia as well. Because I can't cope otherwise. need to, I need to focus on, you know, the possible and the positive and how we can get there even if it's in these, yeah, in these little moments or little pilots or experiments. It's just too overwhelming otherwise.

Elizabeth J. Macpherson (1:03:18)
Yeah, great

Cristy (1:03:37)
And, also, I guess it kind of feels a bit nihilistic if you just focus on what's wrong. think finding those cracks in the system and thinking of what kind of gold we can fill them with is just more nourishing as a way of engaging with the world and engaging with scholarships so I'm fully embracing utopia going forward.

Elizabeth J. Macpherson (1:03:42)
Mm-hmm. Alright.

Cristy (1:04:00)
So yeah, absolutely.

*What's new in environmental law*

So our next section is focused on what's new in environmental law. In this section we discuss developments in environmental law, including legislation, judgments, publication and news. So Liz, do you have any updates to share?

Elizabeth J. Macpherson (1:04:17)
Yes, I do, because I'm in Aotearoa, New Zealand, and it seems every week, if not every day, there's some new environmentally related political scandal. I've got a few things to update people on this week.

In terms of legislation, the New Zealand government introduced a new bill that has attracted quite a lot of political controversy. I think it was introduced just today, actually, but it's called the Regulatory Standards Bill. And this bill sets out a series of principles that all legislation is supposed to comply with. And these principles reflect values that really are not already in our constitutional framework. Maybe they are to an extent, they include recognising the rule of law, for example, but a bunch of other sort of themed principles that are not in the New Zealand Bill of Rights Act, for example, which is our main constitutional sort of Bill of Rights, human rights type document that is intended to have an influence on the process of developing policy and legislation. Instead, the values and principles that are set out in this new regulatory standards bill have a particular libertarian flavor. They're referring to personal liberties and freedoms and property rights. It feels quite an American kind of set of principles and values.

My take on this legislation, which I have commented on publicly, is that it looks to me to be a backhanded way of circumventing the New Zealand Bill of Rights Act, which doesn't recognise the right to property, for example, or those other sorts of liberties. And instead of doing it through those channels, which would be to get the requisite majority needed to amend a constitutional law and do it that way, it's been presented as another piece of legislation with the seemingly benign title of the regulatory standards bill. And the thing that I'm mostly concerned about with this piece of legislation is not that it has really strong teeth. It sets up some processes by which people who developing policy and legislation need to consider whether these principles are complied with and to report on that to the Parliament. But I'm more concerned about the kind of under the radar impact of those values on the early stages of policy development. And this is something that I, when I'm teaching the Bill of Rights Act, which I have done in public law in the past, and because I have a background working in government and the development of legislation and policy. I've seen the way that those sorts of policy directives do have a real dampening effect on policy development. And they do have, they do affect the very early stages of coming up with policies in ways that don't make their way into the courts. And so we never see it. But if you're actually working in the halls of government, you see that happen every day. So I do think it is a quite a concerning piece of legislation. There's been a lot of commentary on it from constitutional experts. 

And, the Waitangi Tribunal convened itself in quite some urgency in order to release a report on this legislation before Cabinet made a decision to introduce it to Parliament, on Monday I think it was. And, the tribunal recommended in very strong terms that the government stop all work on this legislation and undertake targeted consultation with Māori because the Crown had breached its partnership obligation and had not consulted with Māori on this legislation. And there are definitely some concerns about the impacts that this sort of legislation, quasi-constitutional legislation could have on the rights and interests of Māori, the partner to the Crown under our founding constitutional document. Yeah, so that one's been big news.

Cristy (1:07:54)
Mm. What's the scope for challenging that on a constitutional basis? I mean, you sort of have a partly unwritten and then several constitutional documents in New Zealand. How does it work to kind of challenge something on a validity basis under the Constitution?

Elizabeth J. Macpherson (1:08:03)
Mmm.

Yeah, mean, challenging the legislation itself once it's been introduced to Parliament is very difficult. But it might be that... I I haven't looked at this in any detail, but it might be that decisions that are taken under that legislation, if it gets passed, could be challenged on the basis of inconsistency with other constitutional principles, in particular Te Tiriti o Waitangi, which is the founding constitutional document, but also the other...

Cristy (1:08:38)
Yeah, yeah.

Elizabeth J. Macpherson (1:08:46)
human rights protections that are set out in the New Zealand Bill of Rights Act, which also refers to international law and the treaties that the New Zealand government signed up to. So I could see it being challenged in that context. You know, there are also other ways in which people can go and ask the court under its inherent jurisdiction for a declaration that something's infringing on rights and interests. I think that there will be a select committee process for this legislation. understand. So it hasn't, it's not like the legislation we had last week that just went straight through under urgency. ⁓ So I think that the debate on this legislation has just really started. So yeah, hopefully, yeah, hopefully there is

Cristy (1:09:22)
Yeah. Okay. Yep.

Elizabeth J. Macpherson (1:09:30)
robust debate on that and that some of our constitutional experts come out and help the public understand what this legislation with a very boring name might mean and where the values that we're supposedly going to hold all of our laws to come from because they don't feel like they come from this place to me. So that's the big thing. Also out of Colombia

Cristy (1:09:37)
Yeah.

Elizabeth J. Macpherson (1:09:56)
We saw just in the last few days a presidential decree which has recognised various indigenous environmental authorities in the Amazon. It's recognised both their land titles but also their power to self-govern and the public funds that they are entitled to in order to undertake their functions as an administrative entity. This is a presidential decree which gives these indigenous communities in the Amazon the same level of authority as other public environmental agencies and it's been hailed as a really progressive development in the Amazon region compared to some of Colombia's neighbouring countries. So I think that's a really interesting one. I did take a look at the Spanish version because I didn't want to just rely on translations in the in the mainstream English-speaking media. So it looks like it's definitely worth taking a bit more of a look at.

In terms of case law, I might have mentioned in an earlier episode, but we have a case that's just come before the High Court in ELI and Canterbury Regional Council and MHV Water Limited, which is brought by this environmental law initiative that's taking all these environmental test cases. And that has just started. It's a judicial review of a decision of our local authority, Environment Canterbury, to grant a consent to a large irrigator to discharge nitrates into water and the arguments include that the decision maker didn't consider the impact that that might have on the drinking water supply and there's some quite terrifying research coming out about the impacts of nitrate on the water that we drink and links to certain cancers so that's definitely one to keep an eye on.

Elizabeth J. Macpherson (1:11:37)
In terms of literature, I've been reading a book that Bruce McIvor who's a First Nations lawyer and academic from Canada, sent to me, which is called Indigenous Rights in One : What You Need to Know to Talk Reconciliation. And it's just been published by Harbour Publishing.

I was really impressed by this book because it's not written for lawyers, it's not written for academics, but it's written for anyone in the community or out there, you know, in a practical context who maybe wants to know more about Indigenous rights or might be working in ways that come up against Indigenous rights and the peoples who hold them. And it sort of follows a format of trying to talk about the main concepts in Indigenous rights and also some of the main legal cases in Indigenous rights and it just gives each of those things a page. And it's written without references or you know there's a bibliography at the back but it just summarises, you know, what's the Dalgamot case and why is it important? What are inherent rights and interests of Indigenous people and what does that mean? So there are just, there's just each page is a question and then a summary and then people can go away and read more if they want. But it really reminded me of this kind of challenge of, you know, it's like our equivalent of science communication. It's like, how do we communicate really complex legal research and scholarship for an audience that can actually do something with it to make a real difference?

Cristy (1:13:12)
Hmm.

Elizabeth J. Macpherson (1:13:13)
And I think it would be great to see a book like that come out of Australia or Aotearoa New Zealand too because a lot of these concepts are a mystery to people. yeah, so there's been a lot of talk about that book on the internet and I'd recommend picking up anyone to pick up a copy when they can.

Cristy (1:13:18)
Yeah. We'll pop a link in the show notes.

Elizabeth J. Macpherson (1:13:29)
Yeah, that's good.

And, the other book that I saw, and I haven't had a chance to start reading this yet, but I do want to get a copy, is called Higher Expectations. Have you heard about this book? And it's a book that's written about, it's intended to provide a practical guide to people navigating academia. And

Cristy (1:13:42)
No.

Elizabeth J. Macpherson (1:13:51)
I just want to read a little bit from the kind of summary or abstract for the book. It says universities are

Cristy (1:13:56)
Yeah.

Elizabeth J. Macpherson (1:13:56)
broken. They're built on systems that are discriminatory, hierarchical and individualistic. This hurts the people who work and learn in them and limits the potential for universities to contribute to a better world. So that sounds a bit nihilistic, but it then says, we can raise our expectations. Hawkins and Kern, who are the authors of the book, envisage a university transformed by collaboration, care, equity, justice and multiple knowledges. Drawing on real-world international examples where people and institutions are already doing things in new ways. High Expectations offers concrete advice on how to make those transformations real issues in academic's life as diverse as course design, conferences, administration, managing research teams, managing workloads and more. And it's designed for faculty or graduate students or post-doctoral researchers or anyone really working in universities. So I think we should definitely be reading it.

Cristy (1:14:56)
Absolutely. Sounds like prefigurative politics for higher education.

Elizabeth J. Macpherson (1:15:01)
Yeah, it does definitely. So I just wanted to mention it maybe we can talk about it more in another episode depending what we find out of it. Yeah and do you have any updates to share for us Cristy?

Cristy (1:15:09)
Yeah, that sounds great.

Yes I do. So if I start off on the home front Australia's new Environment Minister Murray Watt has confirmed that the government does intend to continue with its originally shelved plans to modernise our Environmental Protection and Biodiversity Act, the EPBC Act, which is 25 years old now. It was actually reviewed under the coalition government and the report on the review was handed down back in the middle of 2020, so five years ago now, recommending quite extensive changes. And it's been a source of a lot of frustration to many, particularly environmental groups and Indigenous peoples and communities who are working with this kind of...

Elizabeth J. Macpherson (1:15:48)
Yeah.

Cristy (1:16:01)
not as effective as it ought to be piece of legislation, but nothing really has happened on this front. There was quite a bit of action in the early part of the last term of government. They got as far as negotiating a new bill and then it got shelved by the Prime Minister, apparently to the surprise of the then environment minister Tanya Plibersek. So having it confirmed that there is an intention to start that process again is hopefully positive news but it's at least a watch this space news.

Elizabeth J. Macpherson (1:16:33)
Can I ask, that also being accompanied by a commitment to continue with the nature repair legislation?

Cristy (1:16:43)
Yes, it seems to be part of the same process. 

And then the less positive news, the Queensland State Government have decided to stop funding the EDO, which is the Environmental Defenders Office. And this is very unfortunate news. So the EDO provide legal advice, they're a community legal centre. And they provide legal advice to farmers, to Indigenous peoples, to regional communities around environmental law. And this plays a really crucial role in supporting the community to participate in environmental decision making that directly affects them and in their capacity to push for environmental law to be upheld. So cutting this funding is really bad for democracy broadly and for regulatory compliance in relation to environment and planning law. And I hope the government reconsider, but in the meantime, if people are interested in supporting that work, they can donate to the EDO to keep their doors open.

Elizabeth J. Macpherson (1:17:39)
And is that seen to be kind of a political attack on undermining the ability of the EDO to do its work or is it a funding thing?

Cristy (1:17:45)
Yeah so last time the Liberal government were in power in Queensland, they also cut the funding to the EDO. And so this isn't the first time that this has happened. They've been very active in Queensland, particularly on trying to protect the Great Barrier Reef, including in relation to sort of coal mine expansions and Adani and things like that. So they, you know, they are seen as being a barrier to this kind of growth agenda and of getting in the way. 

They also do support environmental activists. So they do provide support when activists are arrested under kind of quite draconian laws that have criminalized environmental protest in most of Australia. And so you can see how from a political perspective they would be seen as a nuisance. But the system works most effectively when everyone can have those opportunities to participate in the dialogue and to participate in the decision making process and it really loses its legitimacy when you cut off those opportunities.

Elizabeth J. Macpherson (1:18:47)
Yeah, I totally agree, yeah.

Cristy (1:18:48)
So looking across to the United Kingdom, I just wanted to note that there's a new UK Rights of Nature network that's been established. It's supposed to be a hub for UK-based people who are participating in rights of nature related campaigns and research and creative projects. So I'll put that website in the show notes. They have a form there where you can join their mailing list if you're interested in their kind of upcoming activities and events.

And also in the UK, there's a recent Court of Appeal judgment in the Secretary of State for the Environment, Food and Rural Affairs and Pickering Fishery Association known as the Pickering case. So this decision upheld an earlier High Court judgment and it was focused on a particular set of facts. So a local fishing group challenged the development of a river basin management plan or the adequacy of a river basin management plan for the Humber that would have resulted in a body of water in North Yorkshire that's known as the Costa Beck becoming even more polluted under the plan. And they argued that the regulator, essentially the government, was actually obliged to develop a specific program of measures or a POM as they're called that focuses on delivering environmental objectives for rivers and that it was really failing to do so.

Cristy (1:20:02)
In response, the government argued that these are really supposed to be just sort of aspirational or high level strategic documents. And they could be in very general terms, it really just pointed to the intention to implement these river basin management plans. But the court, the High Court and now the Court of Appeal disagreed. They found the government is actually obliged under Articles 4 and 11 of the Water Framework Directive to develop separate implementable POMs. And that these need to identify a program or a scheme of actions for each water body in England and Wales in order to develop its environmental objectives by 2027. So given the kind of very poor state of rivers across England and Wales apparently 14 % really are considered to meet the standards that are really supposed to be legislated for this is kind of a glimmer of hope that maybe that some of those things will turn around and this very hands-off like regulatory approach might start to change.

So on this subject of cleaning up rivers, the city of Paris have recently announced three new natural swimming areas on the river Seine that will open from the 5th of July for summer as part of a broader strategy to create over 30 bathing sites on the rivers Seine and Marne across greater Paris. And apparently this is a legacy of the 2024 Olympic and Paralympic Games, which is a really nice legacy.

I love seeing all these new swimming sites in urban rivers particularly being opened up where these rivers were once too polluted for swimming. I think it's a very positive way of enabling people to connect back to their rivers and catalyzing action to improve the quality of water and to do sort of clean up and to change those regulatory approaches. We have this very short period really, but we have this period of human history where rivers have been treated as drains, just as places to dispose of waste and contaminants. And turning that around is gonna really involve changing those relationships and changing those understandings of what the river is there for.

Elizabeth J. Macpherson (1:22:01)
Mm.

Cristy (1:22:09)
And so there's a Swimmable Cities Summit being held from the 22nd to the 24th of June in Rotterdam and the City of Paris will be presenting there but there's a whole range of activities happening and I'm really hoping to get along but I have some negotiations to do on the home front because that's Climate Week in London so I'll see how I go there.

Elizabeth J. Macpherson (1:22:31)
Good

*What's on the horizon?*

Cristy (1:22:31)
How about you? What are you working on? What's coming up for you on the horizon?

Elizabeth J. Macpherson (1:22:35)
Yeah, so my trip to Nice for the One Ocean Science Congress is creeping up. It's going to be on us before we know it. So I need to do some work getting ready to present there. I'm going to be talking about some of the legal and policy issues related to blue carbon or the idea that the ocean and coastal areas have a really important role to play in terms of our response to climate change.

So I'm actually going to be, yeah, I'm involved in three papers that have been presented at the One Ocean Science Congress. And also there are a range of different side events, of which you know about Cristy. And also, this is an important podcast planning session that we're to be having in Nice. And also, yeah, I'm also chairing a session.

Cristy (1:23:10)
A very important sign of that is dinner with me.

Elizabeth J. Macpherson (1:23:22)
on climate adaptation. I need to do a bit of prep work for that. But I'm looking forward to it because there are so many people who are going to be in Nice around about that time because there is obviously the One Ocean Science Congress and then the United Nations Oceans Congress. And there are people just coming from all around the world to talk all things oceans. And I'm getting to catch up with some people I haven't seen for a while, some old friends.

I'm looking forward to the energy of it and also course cashing out with you. As part of this, and I suppose it's a bit like when you sign yourself up for a marathon so that you do a bit of jogging. I'm also working on my article about Blue Carbon that's sort of underpinning what I'm going to say at these conferences. So just trying to make sure that I set enough time aside to do the actual research is a bit of a challenge that I have at the moment.

Elizabeth J. Macpherson (1:24:15)
I'm also presenting on the same research and this is related to my Rutherford Discovery Fellowship, Blue Carbon Futures. I've been accepted to present a paper at the Adaptation Futures Conference, which is the United Nations Adaptation Conference, which is going to be hosted here in Christchurch from the 13th to the 16th of October. So I'm also sort of preparing for what I'm going to say there. And I think there will also be a really awesome energy of people coming here from all around the world who are concerned about climate policy. And just another plug, of course, in case our listeners have forgotten that we are hosting the Law and Society Association Conference in Christchurch from

Cristy (1:24:46)
Hmm.

Elizabeth J. Macpherson (1:24:58)
2-5 December of this year and the theme is Rights, Relationality, Resilience, Reciprocity. We'll have a link to the conference website in the show notes. You can see our wonderful keynote speakers and we've got already an awesome energy, lots of people who want to come to the conference. So I encourage everyone to get your abstracts in and come along down here. Yes, you need to, you need to. So what about you? What else have you got coming up?

Cristy (1:25:18)
I've got to do that.

Well tomorrow evening I'm planning to attend the Oxford Energy Network's annual lecture Power to the People, Civic Freedoms, Climate Justice and the Century of the Citizen. It's been the lectures being done by the chief executive of the New Economics Foundation. And as you know, I'm really interested in the role of democratic rights in confronting the climate crisis. And so I'm looking forward to listening to that lecture. And then on Wednesday morning, I'm actually going to Paris, which I'm excited about. And that's not for work, but I think I might take a little walk along the river Seine ⁓ as part of my couple of days there.

Elizabeth J. Macpherson (1:25:59)
Not a swim?

Cristy (1:26:02)
I might walk but I'll see. The swimming pool places don't open until the 5th of July so think right now perhaps it won't be encouraged. And then we have some visitors coming to stay which will be lovely.

Elizabeth J. Macpherson (1:26:07)
So before we wrap up, we wanted to mention for our listeners that we received a really lovely message via Buzzsprout from Anthony McLeod who's listening in Canberra, Australia. And Anthony wrote, excellent podcast, many thanks. And we wanted to say to you, Anthony, that we really appreciate that you got in touch and that you're enjoying the podcast. It's been so exciting for us to get feedback and like constructive feedback is really useful too if there are things that we can work on. But we've had such a positive response to the podcast and people are tuning in from all around the world. We have listeners from every continent and our listening base is increasing with every episode, which is so cool. But if you are like Anthony and you're enjoying the show, please consider leaving us a review in Apple podcasts or on Spotify, or sending the link to a friend. Or just get in touch with us privately via the 'send us a text' button at top of our show notes.

Cristy (1:27:13)
Yes, please do. So that's all from us. Thank you for joining us for this episode of Law at the End of the World. You can find the show notes, which we've mentioned a few times from each episode, at lawattheendoftheworld@buzzsprout.com. And you can find both of us on LinkedIn and on BlueSky. Liz is there under the username prof-mac.bsky.social and I'm the very inventive cristyclark.bsky.social. That's all from us today. Thank you.

Elizabeth J. Macpherson (1:27:47)
Thanks, Cristy. Bye.

Cristy (1:27:49)
Bye.