Blue carbon - harnessing the power of the ocean for climate and justice - Episode 18 (with Elizabeth Macpherson)

In this episode, Cristy interviews Liz about her Blue Carbon Futures research program. While it’s been claimed that blue carbon ecosystems can sequester up to 10 times more carbon than terrestrial forests, the legal frameworks needed to protect and restore them are fragmented, contested, and in many cases, underdeveloped. Liz unpacks how ownership disputes, traditional land law boundaries, and colonial legacies create hurdles for Indigenous communities trying to restore and finance these vital wetlands.

• Priority questions for the next decade of blue carbon science
• Te Rūnanga o Ngāi Tahu and Minister of Conservation 2026
• High Court pauses Ngāi Tahu challenge to Conservation reforms
• Smiler v Attorney-General [2026] NZHC 375
• Our Freshwater 2026 Tō Tātou Wai Māori 
• Australasian Centre for Corporate Responsibility v. Santos Ltd 
• UniSuper referred to ASIC over alleged greenwashing
• ACF adds new ground to North West Shelf case 
• MACH Energy Australia v DAMSHEG & Anor
• NT's McArthur River Mine
• The Future of Freshwater 
• 3nd Global Citizenship Education Hub
• Transforming food systems through human rights

Visit our podcast website - where you can find more information, including the show notes. 

You can also find us on the following platforms:

• LinkedIn - Liz & Cristy
• Bluesky - Liz & Cristy
• Our websites - Liz & Cristy 

Transcript

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SPEAKER_06 0:00

So from a legal perspective, are there things that make blue carbon distinctive? For example, compared to more familiar carbon sinks like forests that you mentioned or even other climate mitigation approaches?

SPEAKER_02 0:12

Yeah, I mean, a lot of the science that we hear, if you just Google blue carbon, it'll say, oh, well, blue carbon ecosystems sequester up to 10 times more carbon than terrestrial forests, for example. There are lots of sort of blunt claims made about the carbon sequestering power of these, or the carbon removal power of these ecosystems. But they also are in these kind of liminal zones where spatial boundaries are blurred, where ownership distribution is murky, where claims to land and to resources are contested. I've seen some unease with Indigenous peoples in terms of market-based frameworks, but also a lot of indigenous communities who are trying to restore places and need to raise finance in order to do it. It's not coming from the government right now. So where are they going to find it?

SPEAKER_06 1:03

Hi, and welcome to Laura at the end of the world, where we talk about the teacher of environmental law. I'm Christy Clark, an associate professor of law at the University of Canberra, Australia.

SPEAKER_02 1:14

And I'm Elizabeth McPherson, a professor of law and Brotherford Discovery Fellow at the University of Canterbury, New Zealand. In this podcast, coming to you from the end of the world, we will share our developments and insights about how law is being used to support outcomes for the environment and the people who depend on it. As you may have noticed in the opening clips, in this episode, we will be talking about blue carbon futures. How are you, Christy? What have you been up to?

SPEAKER_06 1:38

Liz, I've been moving and it's not gone smoothly. Um we um I've moved a lot. This is my 39th house. Yes, 39th. I have a problem. But this move was just less smooth than hoped. Mostly for like lots of mundane sort of reasons. Like we moved into a house that will be great, but the maintenance could have been attended to, and there were issues with like water and the heating not working, and flickering lights and door handles falling off, and we had to kind of stage our departure around different commitments in different countries, so we didn't all come together. And then my oldest dog, Chestnut, passed away one week before he was due to fly out. So we were all devastated, and it just kind of casts this big shadow over the whole thing. So that's been a lot. Um, but but we're we're picking we're picking ourselves up and and you know, maintenance is being done, and we're settling in, and we picked up our younger dog Pan from the quarantine on Monday, which was very relieving. He had 10 days there, and the poor bear, he has this really hoarse voice because he obviously spent the whole time barking outraged through his confinement. So it's been a lot, but we're um we're coming out the other side. In the background of the move, I also had an ARC application. So in Australia, our biggest, I guess, grant process is with the Australian Research Um Council and ARC. And one of the grant processes is called a discovery project, and they introduced a new process a few couple of years ago now where you put in an expression of interest and then they um and that's a like a two-pager, and then some of the expressions of interest are invited to go through to the second round, and then you put in an eight-page second round application, along with a lot of other documents, budgets, and and things like that. And so with uh Rachel Killeen, uh who we've had on the pod before, the our our expression of interest was accepted to the second round, which was brilliant, but the timing was literally over the move, so we were working on that the whole time. Um and we've now uh submitted that internally, so that's been a relief. Fantastic. And we've had a a number of article revisions come back as well. Um so you can't really ignore those. So try to deal with those. Um so yeah, lots of kind of uh kind of messiness that I think at the end of the day will all work out fine, but it's been it's been a fair bit. And then last night I attended an online civil society briefing about a new legal opinion that was commissioned by Climate Integrity. And it considers the implications of the ICJ's advisory opinion on climate change for director's duties in Australia. So, because particularly now they have new obligations around sustainability disclosures, the argument that they were making was that given some of the international law obligations articulated by the ICJ around climate change, they need to be taking into consideration risks to their projects where they are higher mid income companies that have come up. And the uh report itself is embargoed, so I'm not gonna say anything specific um about it, but it will be released publicly on Monday, and I encourage people to look at it. It was authored by three eminent barristers, Ruth Higgins, uh senior counsel, who I I believe is going to become Australia's next uh Solicitor General. Zoe Bush and Jennifer Robinson. So, yeah, that's that was the last thing that I did last night. How about you, Liz? What have you been up to?

SPEAKER_02 5:28

That's cool. And I should say the craziness of everything that you've been doing, Christy, and your move and and the massive grant application, that partly explains for our audience why we've been haven't been around for the last few weeks so much, but but also um I haven't really been putting any pressure on because after how intense the end of last year was, and in particular with organizing, hosting the LaSands conference, it was quite nice to just have a bit of downtime. So I kind of took advantage of it. I have been using this time to really concentrate on research and on my Blue Carbon Futures project, which we're going to talk about today. I've been writing lots of articles, some of them about blue carbon and justice implications for Indigenous people, some about ocean governance issues more broadly, some about Māori rights and interests in the marine and coastal area, and also developing some place-based case studies with local indigenous groups here in Aotearoa and also scoping out that sort of thing overseas. So we'll talk about that a bit more later on. But that's been a good opportunity for me to really just focus on my fellowship, which is the main thing that I, you know, that this my main area of concern. I did also get the opportunity to go up to Wanganui, up the Wanganui River, um a few weeks ago with our collaborator Hayden Tudor, um, his fano up there, and also Ken Mir. We were hosting a visiting group who came out through the University of British Columbia and they brought representatives of four First Nations in Canada who were really interested in indigenous rights and interests and kind of governance models, including legal personhood models like the Wanganui River in Altado in New Zealand. So they were coming on kind of a comparative exchange, and it was really cool. I got to meet a lot of the in-house lawyers for these First Nations tribes and talk about the sort of issues that they're dealing with over in Turtle Island. Um, and also just get together on the river and paddle down the river always is a good reminder of the challenges that are being faced by the Iwi and the Huppu up there. So that was really nice. So, Christy, do you want to tell us a bit more about what we're gonna focus on in today's episode? Yes.

SPEAKER_06 7:48

So I'm putting you back in the hot seat, Liz. We're gonna find out a little bit more about your rubber fit discovery project, something that we've been in intending to do since we started. And so we know from uh previous discussions, but anyone joining us today, Liz's uh Blue Carbon Futures project is based in Eltonor, New Zealand, and its um tagline is Law, Climate and Resilience. And so I thought I'd ask you a little bit about the project and also you know, some of the background things around, you know, where the idea came from and the process of obtaining it, but maybe even a bit of some stuff around some of the challenges and some of the impacts that you're you're hoping from the project. So let's see how we go. Cool.

SPEAKER_02 8:29

Yeah, it's good because I've mentioned it quite a few times on the podcast, but I've people are probably wondering, you know, what actually is it? Like what what is the what does this mean? Like what is this project? So yeah, it's good to thank you for the opportunity to talk about it.

SPEAKER_06 8:43

So let's start with the obvious. Can you explain what blue carbon actually means and why it's become such a hot topic more recently?

SPEAKER_02 8:54

Yeah, so blue carbon is a term of art really. It become increasingly popular. It it was first referred to in a United Nations Environment Program report in 2009, so it's entered into the policy lexicon relatively recently. Um, it's thrown out and thrown around quite a bit, and people often m have quite different meanings of the term when they use it. But generally it refers to the fact that oceans and coastal wetlands have a particular function in terms of climate change. So they sequester large amounts of carbon and they also help with climate adaptation in terms of being kind of buffer zones for the in-climate change, for example. So the idea of blue carbon is in particular that saline wetlands, so salt marshes, mangroves, seagrass habitats. Basically, these blue carbon habitats are carbon sinks. But they're not just sinks for CO2, they also, you know, are areas where we have a lot of biodiversity, they're areas where local communities attach particular values and have particular relationships with these places, especially indigenous peoples and especially in countries like Ao Tearua, where a lot of Iwi and Hapu Maori have concentrated their settlements around the coast and around wetlands, which are Mahingakai. They are food baskets full of you know birds and eels and plants, edible plants, and all sorts of other things. So these are really, really valuable places. And traditionally, our climate mitigation regimes, as well as our climate adaptation regimes in law, have not done a good value, uh done a good job of recognising the value of these places. So our emissions trading schemes in most parts of the world have are disproportionately focused on terrestrial forestry, on trees as carbon sinks. And they don't recognise the value of oceans and coasts. But increasingly, in some of the international court decisions that we're seeing come out of, for example, the International Tribunal for the Law of the Sea, or um even the even some of the inter-American court decisions, we're seeing a growing recognition of the value of oceans in terms of being a critical part of our solution to climate change. So the idea that the people who talk about blue carbon are referring to is that we can kind of leverage this value that these ecosystems have in order to find new ways to restore them. And that includes trying to raise finance in order to restore them because a lot of these marginal habitats have been drained. They are being farmed, or they have cities, or they have hard infrastructure in those spaces. So people who are talking about blue carbon are often talking about re-wetting wetlands, bringing back wetlands, um, reintroducing tides to where they used to be before the ocean and rivers around the coast and wetlands were all kind of held back to enable people to develop those areas. So, in terms of doing research around blue carbon, it's really fascinating from a scientific perspective, but any of our listeners who are legal scholars or interested in environmental or climate justice or indigenous justice can already see the sorts of legal issues that would be thrown up in terms of how these how blue carbon can be reflected in our legal systems in ways that are also fair and respect that depth of human connection to those places. Yeah.

SPEAKER_06 12:38

So I guess that raises my next question, which is really like from a legal perspective, are there things that make blue carbon distinctive, for example, compared to more familiar carbon sinks like forests that you mentioned or even other climate mitigation approaches?

SPEAKER_02 12:54

Yeah, I mean, a lot of the science that we hear, if you just Google blue carbon, it'll say, oh, well, blue carbon ecosystems sequester up to 10 times more carbon than terrestrial forests, for example. There are lots of sort of blunt claims made about the carbon sequestering power of these, or the carbon removal power of these ecosystems. But they also are in these kind of liminal zones where spatial boundaries are blurred, where ownership distribution is murky, where claims to land and to resources are contested. In Australia, for example, and in Altier or New Zealand, there are ongoing disputes between the state and indigenous peoples in terms of who actually owns the land in this around the coast, who owns the land underwater, under wetlands and under the fortrone seabed. That's still not resolved. So there are all sorts of legal issues that are thrown up in terms of addressing the legacies of colonization. But there are also legal issues thrown up just in terms of how do you even determine who owns land at the coast, where are the boundaries? The boundaries around water are inherently difficult to pin down because water moves. And the common law has evolved, you know, since the time of the Magna Carta and the Forest Charter to develop all of these doctrines to try and determine where land stop and water begins. But anyone who works in these zones know that those are very imperfect schemes and there are lots of legal disputes that come up in terms of how to fix those boundaries. And I would say too that there are also a lot of legal issues around who has the right or the permission to undertake restoration projects in these zones because they are these spaces in between spaces and between land and ocean, they trigger many, many, many permit requirements for permissions in order to just do things that are positive like restoration. So you could have permissions triggered under environmental laws, you could have permissions triggered under heritage laws, because these are places where there are, you know, historically mid-ins and historical sediment, um, settlements and all sorts of archaeological richness in these zones. You could have requirements under marine protection legislation, you can have requirements under conservation legislation, you can have requirements under, you know, rules around sulfate-rich soils and ancient infrastructure, drainage infrastructure that no one knows who owns anymore because it was built 200 years ago. So the potential for legal disputes, for issues of nuisance or tort to come up, and for permissions complications are really high because our legal frameworks have developed in this very fragmented way, and they haven't developed with this sort of restoration in mind. The idea that we want to undo some of the damage that's been done through colonization and rewild these places or bring back wetlands, however you want to term it, is a relatively new phenomenon. So our legal frameworks are really not fit for purpose. So it's the perfect zone for a research project.

SPEAKER_06 16:13

So I guess that raises the next question, which is if we go back to the origins of this project, what made you first become interested in blue carbon as a legal issue? Like was there a moment or a problem that sparked the idea for the project?

SPEAKER_02 16:29

Yeah, I have been working on issues related to water and the fortress and seabed since I started my legal career at um the early 2000s. I came into a job as a lawyer. I worked on the um the sort of final stages of the Natiapa decision, which was our landmark decision that came out in 2002 from the Court of Appeal, which recognized that Māori still held customary title to the Forsher and Seabird, or at least that it hadn't been extinguished, and so they could go to the Māori land court and seek determinations that they held rights to the land in that zone between the high watermark and the low watermark. And I was fascinated by this. You know, it was really a landmark decision, it was a leap forward in terms of what we could achieve through the courts in terms of responding to the loss of Māori interests around, well, not the loss, the taking and the assumption of taking of Māori rights in that zone. And I've spent a lot of time working on freshwater issues, as we know. What I really like is that this concept of blue carbon brings together freshwater and marine. It's really focused on the interconnections between those two places. In terms of this particular programme that I'm working under at the moment, it's really grown out of my collaboration with NITAHO, our Iwi here, that their land and territory is most of the South Island of Altero and New Zealand. And they have been working on some claims through the MACA process, um, the sorry, the Fortune Seabed legislation recognition process. And they've also been pursuing claims related to freshwater. So as part of my collaborations with them, we framed out that a project like this would be worth pursuing and was more of a research gap and perhaps less kind of politically controversial than some of the freshwater stuff, which and not so much politically controversial, not just politically controversial, but also a competitive zone. Like freshwater is quite a competitive zone to be doing research in. Oceans and coasts have far less saturation in terms of researchers who are looking at those issues. So it was a great way for me to focus on things that I'm interested in to develop a project with the EWE to respond to issues and concerns that they have because they are very concerned to take care of these coastal wetlands and see them restored. Um also, yeah, to kind of capitalise on some of that knowledge, which is quite a niche field. Like there aren't that many people who really concentrate on these zones in between land, ocean, and freshwater.

SPEAKER_06 19:18

So you describe the project as teteruti-led. So in practice, what does that mean for the way that it's that you know the research is designed or the way that it's carried out?

SPEAKER_02 19:31

Yeah, and I would say that it's kind of an anomaly. It's a bit unusual in the blue carbon context because most people who are writing about blue carbon, actually really anywhere in the world, they're very much coming from a Western scientific basis. They are very concerned with, you know, ecosystem services and ecosystem values, and they are very much bringing kind of a Western ontology around conservation and restoration, which is great. We do need those places to be restored. Indigenous peoples in many situations have been quite suspicious of this framing and ultimately the idea that market-based frameworks and carbon credits and all those sorts of things are wrapped up in this concept of blue carbon. So taking a lens that treats indigenous knowledge, science, and law as a primary source of information that feeds into the research program is probably quite unusual. Being Tidity led means that the proposal, the funding proposal that funds this five-year programme that I'm undertaking, was co-written with the tribe, with Gaitahu. That there are there's funding set aside for their engagement and collaboration. They are involved at all steps of the program. Um, and we determine the research questions, the area of focus, the case studies together. I have two wonderful Māori researchers who are involved in the project, um, John Reed from the Gaetahu Research Centre and our friend Karen Fisher, who's been on the podcast from University of Auckland. And we, yeah, it's just very much a conscious effort to de-center Western or European scientific perspectives or their legal system, which is really dominant in all of these conversations around blue carbon. So it's not to say that blue carbon scientists and researchers aren't interested in collaborating with Indigenous peoples. They absolutely are because they recognise that it's indigenous peoples who are living in these places and who care about these places. But I a lot of those projects are still very like top-down, externally imposed. It's kind of like we've got the sites, we'll tell you what you need to do, like you. Whereas what we're doing through Blue Carbon Futures is much more trying to bring it from the ground up and only do things that that are useful to local people. So If there's an aspect of the programme that I've misunderstood as being relevant or important or in line with um Ranga Titatanga, which is, you know, the authority and and um this you know, the so the ongoing sovereignty really of of Iwe and Hapoo and of Maitahu, then I would pivot and I would, you know, not look at that thing anymore, look at something else that's more important. So that's kind of what it means to be Tidisi led. It's grounded in Tititisi or Waitangi, the Treaty of Waitangi, the recognition of Ranga Titatanga, ongoing political and legal authority of Iwi and Hapu. Um and it's very much it, you know, attempting to do a project on a partnership basis, which is not that easy. It takes a long time, and it requires a lot of building of trust channels and relationships and letting go of control in ways that researchers are probably used to working. Um and probably making mistakes and learning from them and adjusting. Um, but it's definitely the core foundation of of the pro of the program. And when we developed this program, we adopted a methodological approach called Hewaka Totua, which was developed by Maxwell and Awateri and some other researchers in the Sustainable Seas National Science Challenge that was involved in, which is the idea of the Polynesian double-hulled canoe. So you have two hulls which are lashed together for a common purpose. One of those hulls is indigenous knowledge, indigenous law. The other one is Western knowledge, Western law. And they are sort of tied together. We talked about this. Linda Faulkner talked about this on the Oceans of Knowledge episode. So they're lash together for a common purpose. But it doesn't mean that one of those hulls tries to outperform the other one. Like they've got they've got to be moving together equally, or else it's not going to go in a straight line, it's going to go around in circles. So that's very much sort of the underpinning approach of the way that we designed the program was to do justice to both of these knowledge systems. Because in a settler colonial context, if we're going to achieve anything, given the ongoing legacy injustices in this zone, we have to do it that way.

SPEAKER_06 24:20

What that occurs to me is that in freshwater, we've seen a totally incomplete, but we've seen a cracking open of some of the assumptions around Western law and Western ontology being the only framework through which these issues should be researched and considered and that the law should be framed. Of course it's incomplete, but there's a a kind of surprisingly broad acceptance of at least engaging in that space in a different way. But it's not as common in relation to blue carbon or even sort of oceans generally. And I wonder when you step outside of your local context and you engage in those academic spaces, do you find that there's a tension in terms of people missing what you're saying or or missing the actual ontological reality and legal reality that you're coming from? That they're not seeing that you're coming from a different perspective and instead that you've got their law wrong, for want of a better word.

SPEAKER_02 25:22

Oh my goodness, yes. And I would say that it's an interesting space to be working in because I am Pakia. I'm not an indigenous person. I'm trying to say that the knowledge systems and the legal systems that I am versed in and are trained in are no more important than Mari Law, Tikanga. And it in fact, there's a lot that we can learn from Tikanga and Mataranga, Mari knowledge, Māori law. So that's already a tense position to be in, right? In terms of my positionality. And I'm not trying to speak for Indigenous people. I'm trying to confront the assumptions of my own legal system, which is fundamentally flawed. But when I go into some of these spaces, and in particular, and you'll be expecting me to say this, but the law of the sea. The law of the sea, I think, based on everything that I've seen in my career, is potentially the most colonial legal space that I have ever entered into. I think that that is shifting slowly, and there are some researchers making their way into this space, but it is certainly still a space very much dominated by Europe, very much dominated by colonial understandings of space, ignorance of justice issues, ignorance of indigenous perspectives. Um, and so sometimes I find myself in these sort of oceans law spaces that feel very unfamiliar to, yeah, what I recall in freshwater. And there's still lots of issues in freshwater, for sure. I think um it it's kind of like the the oceans people have kind of been like off doing their own thing. And maybe working in an international fora where they're less connected to indigenous peoples and indigenous knowledge. Yeah. And absolute props to the international fora who are inviting Indigenous peoples and and Pacific peoples to go and speak to them because there's a there's a lot of capacity building and upskilling that needs to happen in those spaces. Yeah.

SPEAKER_06 27:30

So you've talked a little bit about your methods, but could we go a little bit further into the methods that you've sort of chosen for this project and what's led to your the decision to choose those particular methods?

SPEAKER_02 27:46

Because El Tiero is quite a bit quite a bit further behind than some other countries in this blue carbon space, right? We have we have some climate laws, we have an emissions trading scheme, but it only applies to terrestrial forests. We have very fragmented legal frameworks in terms of restoration, and we don't have clear permitting regimes. We also don't have resolved Māori rights and interests in this zone. Like we have ongoing litigation happening in this space. So what that really means is that there's a lot that we can learn from other places in the world. And as you know, I'm a comparative researcher. I'm always interested in what's happening overseas. So a large part of the program is trying to learn from what's happening overseas, in particular in the Americas, in Canada, in Latin America, where I've done lots of research before, and there are lots of blue carbon things going on over there. And also Australia, which is great because it gives me reasons to stay connected to you, come visit. Um, Australia does have a tidal restoration method, which is part is included in the emissions trading scheme in Australia. So you're a bit fur further ahead. But I would say at the same time, I think that Australia is behind when it comes to the recognition of Indigenous and First Nations communities, rights and interests in this zone. So there are little bits and pieces that we can learn from different places. Comparative is part of it. And I have some funding in the program to take someone from Nitaho over and study regimes in other countries, and that's going to be fun. I need to get onto planning that. Part of it is place-based studies too. So because land tenure is generally the basis for being able to undertake these projects, maybe with partnerships with local government or with or conservation organizations or local indigenous groups, but generally land tenure is really important. It's also important in terms of having the right to earn a carbon or a biodiversity credit that could help finance those sorts of restoration projects. And because that land tenure is so varied around the coast, it's not like you can just answer a question, you know, on a universal basis of, well, what do what do you need in order to be able to earn a carbon credit? And I think partly too, I probably didn't answer at the start, but part of me getting pulled into this blue carbon stuff was my friends who are scientists coming to me and saying, we know that we can do this great restoration, we can get rid of these tidal gates, we can bring the ocean back in, we can restore this historically significant wetland that's really important to this Ewi or Hapu. But we're a bit worried about the law. We're not we're not sure if we have the right or the permissions, if we could get prosecuted for doing it. We're not sure it um who's the landholder and if they own who owns this particular. We're not even sure who owns it. Um and we're not sure if we could get in trouble if we remove title barriers that could be owned privately by someone, and we don't know who owns them anymore because they were put in 150 years ago. So there are all these legal issues. What's happening? Because there's a MACA claim, there's a claim under the Fortune and Seabed legislation by the local EWE, and we don't know. So that's kind of where a lot of the legal issues came up. But I think they wanted me to give them a simple answer. And there really is no simple answer because it's place it's contingent on these patchwork of land tenure arrangements around the ocean and coasts. And so you have to do place-based studies. So at the moment, when I've been saying in the podcast, I'm trying to develop these place-based studies, that involves a lot of collaboration with local groups to, you know, to get that trust in order for me to be scoping out some of those land tenure arrangements in a particular place. Yeah. Yeah. So place-based studies are very important. So comparative studies, place-based studies, the wakatoda approach, the collaboration, co-design, co-development with My Tahoe. Um, and there is really a hope that the program is going to be able to feed into law reform. So a lot of what I'm doing too is engaging with policymakers across scales, across local government, central government, trying to get in the right rooms to influence because it's kind of a hot topic. Blue carbon is a hot topic, even in Altieron now. Um, so trying to have an influence on policy design is really important too. Yeah, it makes a lot of sense.

SPEAKER_06 32:13

So your project is funded by a Rutherford Discovery Fellowship, which we've talked about briefly before on the pod, but this is a really highly competitive uh fellowship in in New Zealand. Not many are handed out each year. I wondered if you could tell us very briefly what the application process involved and how long it actually took to develop the proposal and to go through that process.

SPEAKER_02 32:41

Yes, it is a Rutherford Discovery Fellowship, and I'm really lucky to have that because they actually no longer exist. They have been replaced by another scheme that's called Tafia Temana Research Fellowships, which are also, you know, great and quite similar. But the Rutherford Discovery Fellowships were named for Ernest Rutherford, who split the atom. And the idea behind these fellowships is that they're discovering kind of the next generation of leading researchers in Alteroa across all fields. Um they're administered by Taparangi, which is the Royal Society, and they are super competitive. So they, when they were awarding the Rutherford Discovery Fellowships, they only awarded 10 per year across all fields in Aotearoa. So I'd be competing against, you know, rail scientists and, you know, people who are curing cancer and all that sort of thing. So really lucky to get it. The application process was gruelling, I would say. I don't think I've ever spent more time on anything. Um you can probably relate to that having just go gone through a grant process. Um, it was the second time that I applied. The first time I applied, I had a slightly different project or program framed up, which I don't think told a strong enough story. It was about, you know, all the issues with environmental law. And it wasn't kind of concrete enough, whereas blue carbon is something that people can grasp. It sounds novel, it sounds interesting, it sounds controversial. So I reframed, I went back to the drawing board and and together with Naita who we we reframed the program. But it involved there wasn't an expression of interest, it was just a full application, and then I was invited to an interview and I had to do 10 minutes standing up in front of a panel of quite intimidating people, and I had 10 minutes to the to the second to give this presentation. I had to mem I memorized the entire presentation so I could speak without notes. I did have, I was only allowed to have, I think, four or five PowerPoint slides, and I literally I've never prepared more for anything in my life in terms of remembering the whole thing and just trying to look like it was impromptu, but it really wasn't. Um and then yeah, I was really thrilled when I got it because they are they're early to mid-career. So I was getting in on the mid-career path. I was an associate professor at the time that I got them. And these fellowships are amazing because they fund my salary almost entirely for five years so that I can work on this program. They fund the time of John and Karen to work with me. They also fund a PhD position, which is Claire Burgess doing her project about um blue carbon in Australia, um, research fellows and research assistants, as well as a small amount for collaboration, field work and travel costs. But they really are a way of opening doors to other collaborations because once people know that you're a Rutherford Discovery Fellow, they'll ask you to do other things. So RDFs tend to, you know, lift disproportionately weight in terms of attracting other funding and other opportunities. Um, and it also allows you into a network of absolutely phenomenal researchers who are working across fields. And we all get together once a year towards the end of the year, and you get to hear about the research that other people are doing. You get to hear what they're doing in terms of impact or publications or how how they're dealing with issues at their institution or even just in man managing a large research program with their personal life. So it gives you a good network, good support network. So I feel incredibly grateful to have this opportunity and the ability to really level up my research.

SPEAKER_06 36:33

Um So do you have any advice for other people who are thinking of applying for something similar, like major fellowships or or major grants of this kind?

SPEAKER_02 36:44

Yes, uh absolutely go for it. I think so. I think just go for it. I think talk to people who have had them before and know the ways that these need to be framed and be prepared to apply a few times because you're probably not gonna get it the first time. Have good support networks, and I think too, I mean, I think that's kind of the lesson when it comes to applying for grants generally. Like you can't give up when you miss out on one. You might miss out on three and then you might get the next one. So you've got to build some resilience to that. And also I think engaging with a wide range of other people in relation to what you're planning to do is really useful because you'll get, especially for these sorts of fellowships where you've got an interdisciplinary panel, engaging with a wide range of people who are outside your field who can say, Oh, wait a minute, I don't really understand the way you explain to me what the legal issues are. Like, you're gonna have to explain that to a geophysicist. Like, so getting that wide range of feedback and critical feedback and being prepared to embarrass yourself by doing a rehearsal and a bunch of people saying that you sound terrible and you need to improve it is useful. So develop a thick skin, take it on board. I've observed in my career that a lot of people are not willing to put themselves out there like that. They don't want, they can't handle the rejection, they don't want the negative feedback, and that really is a limit on their personal growth because we all can be criticized. So I think being able to do that is really useful. And you would have noticed that, Christy, when you've just gone for this grail. Like you guys went wide in terms of your engagement. And sometimes people come back and go, I don't know why you did that. That looks that looks dumb. I don't understand what you're saying, you know. And you've got to be able to go, okay, well, clearly I didn't get my point across. So I need to reframe that. Yeah. Yeah.

SPEAKER_06 38:36

That's absolutely true. And yeah, I have a weird level of detachment with my stuff that I write. Like I don't it doesn't really bother me if people um criticize that I just see it as as an opportunity. And unless I think that they're kind of something from a racist position or something like that. Then I'm like, ugh, but that's a different matter. Alright, so let's come to challenges. Are there tensions, and I think you hinted at this. So there are tensions between blue carbon as a climate solution and the risks of commodifying coastal ecosystems.

SPEAKER_02 39:10

Yeah, and I have gone around and around and round and round and round in circles on this particular point. Yes, you're right. There are also, there's, there are all sorts of risks, threats, and opportunities involved in this space, and especially for Indigenous peoples, which, you know, as I said, I'm not an Indigenous person, but my partners are, so I'm very much sort of trying to look out for issues for Indigenous communities of engaging with these frameworks. There are issues with carbon markets broadly and biodiversity markets, which we've spoken about on the podcast. But I I was reading an article the other day that I thought was quite interesting. Actually, Ritordi, who um who was our second episode two guest, he shared an article, I can't remember it now, but I'll look it up for the show notes, saying that a lot of the critical kind of markets research has actually come out of the global south. And so there, of course, there are definitely lots of issues with kind of parachute tactics by NGOs and extractive projects by governments and by private industry, which are really scam projects around carbon markets for sure, coming out of those places because there are sometimes there aren't strong environmental regulations. But because blue carbon has been slower to progress in the global north, you can't necessarily apply across all of those assumptions. So it's it's not necessarily as, I think, as cut and dried as that to start off with. Secondly, I've seen some unease with Indigenous peoples in terms of market-based frameworks, but also a lot of Indigenous communities who are trying to restore places and need to raise finance in order to do it. It's not coming from the government right now. So where are they going to find it? So they are looking to these market-based frameworks. And I think it's also a little bit reductive and kind of insulting to Indigenous peoples to say, oh no, they don't want to have anything to do with markets. Deeply involved in markets because our whole system globally is framed around markets. Yep. So saying that Indigenous peoples some somehow have to take the higher ground and not engage with those frameworks is, I think, naive to say the least. Um I think that it's possible that these that governments could be trying to use blue carbon as a way of meeting the government's obligations under the Paris Agreement and their nationally determined contributions, because they can be like, oh well, we don't have to cut, we don't have to worry about agriculture and deforestation because we're completely surrounded by the ocean, and that's a massive sink. So we've actually sequestered all this carbon. So that is definitely a risk, but also it could be a leverage point for some local communities. And it could be a leverage point in support of the broader struggle to get coastal land back and and to get authority over ocean back. So I think there are all sorts of tensions for sure, and are the exact sorts of tensions that make for a really great research project. Absolutely.

SPEAKER_06 42:20

So, how are you thinking about impact uh in this project? What's sort of you know a dream outcome in terms of some of the impacts that this project might lead to in relation to law and policy reform locally or maybe even uh internationally? What are your hopes?

SPEAKER_02 42:38

Yeah, I hope to be able to have an influence on the development of these incipient legal frameworks in Aotearoa, for sure. And also, if there is an ability to influence those legal frameworks in Aotearoa in order to better ensure, you know, justice and equity outcomes for Māori, Iwi, and Hapoo and for local communities, then those are really important lessons to share with the world too, because I think in Aotearoa we're really uniquely placed. Like we do have this kind of trail-blazing record of achievements. And so if we're able to attend to some of the injustices locally, then that provides some really useful lessons globally. So I'm hoping that. And I'm also hoping because this is a program, a research program that covers my time for five years, that not just the idea of blue carbon, not just the idea of carbon credits or biodiversity credits, that I'm able to work on and progress the underlying issues, which are the fact that the Crown has still not responded and settled fairly the ongoing rights and interests that Awi and Hapu Māori have in the ocean, in the coast, and in freshwater. So those are all contingent, like underlying themes that still need Need more attention and more research. And so through the program, I'm trying as much as possible to focus on that as a necessary precondition to any sort of a framework that could be just where my my interest is, that's where my experience comes from. So I'm trying not to get too pulled into some of this kind of like offsets saving us stuff. Because there are plenty of other people who are working in that space. I can work on the on the land tenure stuff, on the rights and interest stuff, and and to an extent, I think on the planning stuff. I think that's definitely within my expertise. Um and I don't need to get into market design and the economics of it. Um so that's kind of where I'm focusing. And it's also helped me in my framing of comparative studies. So in terms of what I'm looking at in Canada, I'm really interested in emerging common law jurisprudence around Aboriginal title to submerged lands. Because in in Canada, that's an evolving and emerging area in terms of both First Nations Aboriginal title claims to freshwater and to marine areas. So that's kind of what I want to focus on. I don't want to focus on all the restoration projects in Canada. So I'm trying to restrict myself to the area where I think I can have the most impact. In order to do that, I need to be really deliberate about the sorts of research outputs that I'm producing. So, yes, I have to produce lots of journal articles. And I would say at the moment, I have so many journal articles that are just like about to click go. I don't know why. They're all just stuck in the final like impress phase or the final stages of peer review. But so I do have to keep meeting those benchmarks in terms of producing high-quality journal articles. But the podcast is an output for the program and making sure that I'm able to produce things like policy briefings, guidance, submissions, webinars, present at more accessible fora, that sort of thing. So I have to, if I want to have the impact that I want to have, it's not just a standard approach to a research project.

SPEAKER_06 46:18

So finally, what excites you the most when you think about the next few years of this project?

SPEAKER_02 46:24

I think what excites me the most is that I just really love water a lot. I and I don't even really know why, but I just really am excited about being able to do more work that's about wetlands, the ocean, rivers. Um trying to see real improvements in these spaces and improvements in terms of the way that they're governed and the access and the authority that local Indigenous people have over them, because I really strongly believe that they're the best people to be governing these places. And to s and to s yeah, to see the health improve over time. To be able to go out and do work in the field, that's in in the ecosystems that I really, really enjoy and enjoy being connected to. That's what keeps me going for sure. Makes sense. Thanks, Liz.

SPEAKER_06 47:22

So our next section focuses on questions of what's new in environmental law. In this section, we discuss developments in environmental law, including legislation, judgments, publications, news, and policy. And I should just caveat this by saying because of my move, we've had a two-month gap. And so we're gonna have to catch up gradually. But but we're gonna start today with you, Liz. Do you have some updates to share with us?

SPEAKER_02 47:56

I do. I hope our audience is not sick of hearing from me yet, but I'll I'll give it a go. So we've had some cases come out of the High Court in Altier, New Zealand, which are quite interesting in recent weeks, and I just want to touch on a couple of them. So the first one is Tadunanga Ungaitahu and Minister of Conservation. And this was actually an interlocutory proceeding, which related to a broader proceeding that was about the Crown's reform program for conservation law. And the interlocutory was actually an application by the plaintiff that the proceeding be set down for an urgent fixture. And I think that was because the conservation reform program was progressing, but that then allowed the defendant, the crown, to oppose that application and cross-apply for an interim stay of the proceedings. So the interlocutory became about whether these proceedings should continue given that there was a law reform proposal coming before Parliament. So it really gets into some areas of public law between the role of the executive and the role of the judiciary, and then ultimately the role of the legislature. So the the substantive proceedings, as I mentioned, really hinged on um Nytahu's treaty settlement, in which the Crown entered into a range of obligations under the deed of settlement and the settlement legislation, in which it recognized Naitahu's Rangatita Tanga, or political and legal authority, and it um undertook, you know, a range of obligations in relation to engaging with its treaty partner, which held Rangatita Tanga, and also in context of conservation. And Naitahu felt that because the government was proceeding in the way that it was with this conservation reform, that that wasn't giving effect to the Crown's obligations to its treaty partner. And in particular, the Conservation Act has a provision in section four, which is our strongest treaty course, which says that the Crown has to give effect to the principles of the Treaty of Waitangi. And the Crown was proposing to amend that to sort of codify what section four requires, which we know in other contexts is like a really dangerous path to go down, right?

SPEAKER_05 50:09

It limits it.

SPEAKER_02 50:10

Yeah, it tends to be a limiting, a limiting kind of an effort. And so um Gitahu had a range of calls of action in relation to um what that action by the Crown was meaning in terms of their settlement and also kind of their their expectations as to how the Crown would conduct itself in relation to its treaty partner. And Gaitahu was seeking declarations as its form of relief. So the minister in that case sought a stay until after the legislation was before Parliament, or a stay until the legislation was not before Parliament. In this situation, it wasn't that there was a bill that had been introduced yet or anything. There were just a range of kind of discussion documents in which the Crown was saying that wants to modernize, which again, massive red flag, the conservation system. But the court said that actually that did meet the threshold of when an issue was before parliament and would breach the principle of parliamentary privilege and the principle that the courts don't interfere with the work of parliament. So the this the and it was just an interlocutory, I remember, but the case really looks at when have you crossed the line in terms of something being before parliament versus not before parliament. So can I just back up for a moment?

SPEAKER_06 51:32

So this isn't even a bill yet. No You guys are a lot like us in that there is an enormous amount of parliamentary, I'm gonna call it term of art bluster. Which never goes anywhere. There's even bills that never go anywhere, they never even get to a second reading. That bluster to be considered essentially the preliminary stage of legislation before parliament, which would pause illegal proceedings, it just in terms of what that incentivizes, in terms of the kinds of thought bubbles that might be bandied about in order to prevent ongoing legal action relating to the current legal the current law that is in fact in place, that's a very concerning outcome.

SPEAKER_02 52:21

Yeah, I absolutely agree. It's a concerning precedent. And you'd probably be interested to read the arguments that the the lawyers for Gayaho put forward in terms of the reason why this didn't breach that principle because it wasn't before Parliament. So all the sorts of arguments that you're making. But ultimately the court and we're seeing some quite conservative decisions come out of our High Court at the moment. And you're the next one, too. But that's what the court decided, and they they ordered this stay until such time as the bill is not before parliament, which is interesting terminology. So I'm gonna link in the show notes to a commentary by Simpson Greesson, because they're interpreting this as meaning that it doesn't mean that the Crown isn't held by its obligations to its treaty partner. It means that the case will be revived once the legislation's passed and then will be scrutinized in terms of its compliance with treaty principles and treaty settlement obligations, which I think is really interesting, actually, because I didn't necessarily get that precise wording from the way that the orders were made by the court, but that's the inference that Simpson Gerson are taking. And they're also saying here, um, so this doesn't give the Crown a get out of jail free card, that there could be consequences in terms of enactment. So what might that mean for the way in which the Crown's progressing the legislation?

SPEAKER_05 53:50

Yeah. So the case is squarely about the contents of the legislation, is that correct?

SPEAKER_02 53:58

Or is it about other contents of the R. Without a bill being no, there was no bill that was before the court, but it is very much in relation to what the Crown is intending to do in terms of its reform of the conservation system and the obligations that that means the Crown, the obligations that the Crown has by virtue of the treaty settlement that it's entered into with NITO.

SPEAKER_06 54:22

So that would mean that one of the arguments I'm assuming that the Crown put before the court was that in order for that question to be tried under the current situation, potentially cabinet documents would be the most illuminating source of what they were intending to do, and that would be highly problematic for the court to be kind of delving into that zone.

SPEAKER_02 54:43

And there were public there were there were um cabinet submissions, yeah. Yeah, right. Yeah. But then keep keep in mind here too that this is just an interlocutory. It's not a long, it's not a long case. So yeah, I think it's interesting it could be appealed. I haven't heard if it's going to be appealed yet. Um it yeah, I thought that I thought that the Simpson Greson commentary was particular interest too. And they said, you know, there's still a pattern that the Crown are being increasingly held accountable for their commitments and treaty settlements. And they can use this principle of parliamentary non-interference to delay court scrutiny, scrutiny, but they can only do that temporarily. And once the legislation is passed, the courts are back in play. So that's a that's an interesting constitutional kind of outcome. So I think it's one to watch for sure. Yep. The other case that I wanted to mention is a water case. This is again a high court case. It's SmyLer and Attorney General. I referred to it earlier on the podcast as it's one that those of us who are working in the water space have been watching. And it was brought by Smiler on behalf of uh a number of Māori land interests, land trusts, and also um representative bodies, the New Zealand Māori Council joined. And it concerned assurances given by the Crown about Māori freshwater rights and interests in a very famous case back from 2013, which was the New Zealand Māori Council and Attorney General case, which is known as the Māori River Power case. And that case related to the partial privatization of the major hydroelectric power generators in New Zealand. And the New Zealand Māori Council took this case to say, no, you can't go ahead and divest yourself of those assets and those interests before you've resolved outstanding Māori freshwater rights and interests. During that case, the Crown, including ministers and maybe even the Prime Minister, um, gave some assurances at that time that they about what they were going to do in terms of Māori freshwater rights and interests. And this case was turning on what the legal effect of those assurances were and what would be required of the Crown in order to respond or continue to take action in those assurances. So the applicants in the case claimed that those assurances were to the effect that the Crown would progress resolving Māori freshwater rights and interests issues, and that that was a solemn promise. And they framed that argument with reference to Tikanga or Māori Māori law in terms of if you make a promise, you know, what does Tikhunga require you if you're sort of, you know, two, if you're the government and indigenous Rangatira, like what what what is what are the what's the consequences of making that sort of a promise? Um and the applicants sought directions that the Crown should prepare a scheme of safeguards to ensure that it wouldn't prejudice Mori rights and interests in future water allocations in particular. And the applicants filed quite a lot of evidence in this case, including expert evidence about the nature of Maori rights and interests in fresh water and issues with water governance and allocation more broadly. And the applicants were seeking, again, declarations that the Crown had breached these assurances, that they breached Trek Tikanger and that they breached the treaty. Now, I would say that this is another example of quite a conservative case coming out of the High Court. We're not always seeing such conservative legal judgments once they get up to higher courts, but I think there were also perhaps some issues with the way that this case was argued and the channels that it pushed the court down. But the court approached the case in terms of legitimate expectation with respect to the assurances. They the court said, sorry, the judge said that the assurances did not have the meaning that were claimed. They were limited to the effect of the implementation of this partial privatization of hydrogenerators and in particular of Mighty River Powers' partial privatization, and that they didn't extend to broader assurances that mighty freshwater rights and interests would be resolved. The court didn't consider that Tekanga changed the nature of assurances in any way, that Tekanga couldn't displace well-settled principles of the common law, and that the treaty didn't help because there wasn't a particular decision at issue. And I think reading the judgment of the court there, it suggests a pretty unbalanced approach to legal pluralism. Like when I was talking earlier in this about indigenous law being a being, you know, an equal source of law with the common law. This one's kind of saying, oh, we're only going to recognize it if it dovetails really nicely within the common law. So it was quite an unbalanced app.

SPEAKER_06 59:33

I mean in a very, very specific context. In a very specific in each individual case. We're not going to step back and look at broader principles.

SPEAKER_02 59:41

And the court actually makes some fairly unhelpful obiter comments while it's doing so it in making those and making those statements about the value of T Kanga in the treaty. So I'm not I'm not going to lie, this is a problematic case, both in terms of the way it was argued, I think, but also some of these comments by the court, especially obiter comments, which I don't actually think was strictly necessary. But the court clearly felt deeply uncomfortable about crossing over into matters of policy. Yeah. And the court says here, you know, the court's ill-equipped to deal with the multi-f multifaceted and complex matters inherent in the general systemic reforms required. The processes involved are political and are underway in parliament at present, and it would be inappropriate for the court to influence those processes even by way of a declaration. So the court's again applying this principle of non-interference, and it's it's suggesting that the claimants can go to the Waitangi Tribunal, which I personally think is also really problematic because the Waitangi Tribunal doesn't have binding powers in this context. So it kind of leaves them with the claimants with nowhere to go. The Crown lawyers also, and the High Court agreed with this, wanted to distance the approach in Al Tedo from Canadian jurisprudence. And I think this is another example of sort of, you know, a bit like the way you argue these cases can can sort of come back to bite you. Like the applicants were relying on some really useful Canadian jurisprudence, and the court just says, oh, well, they've got section 35 of the Constitution Act in Canada, they've got a very different constitutional situation, it's not applicable here. I fundamentally disagree with that. I think that in Aotearoa and New Zealand, we do have a constitutional backstop. It's tatidity or whitangi. That is our constitutional backstop. And so I think that the Canadian jurisprudence is actually quite useful. And they have we have a long tradition of our senior courts looking to Canadian and even Australian jurisprudence. So I I think that was unfortunate. The claimant lawyers also rightfully referred to the United Nations Declaration on the Rights of Indigenous Peoples. The court, again, was quite dismissive of those claims. Says that UNDRIP's not domestically binding. Courts could have regard to it in developing the common law, but it didn't add anything here. I think that it'll be interesting to see if it gets appealed. I think it probably will, and how it's handled in more senior courts. But these two cases are an interesting snapshot into how the lower courts are dealing with these sorts of cases. Yeah, so those are my case law updates. I did want to mention in terms of policy that the government's just released its state of the environment report for freshwater, our freshwater 2026. And this was really painting a picture of freshwater crisis in Alteotua. There are we have some improvements in some areas, but overall freshwater quality and quantities declining throughout our Teodua. We have eutrophication, we have increased nitrogen levels in lakes, rivers, and groundwater. More than half of our rivers are showing nutrient enrichment. Most lakes are in poor health, and many rivers are unsuitable for recreation because of elevated levels of E. coli. It's a really sad report to read because a lot of this degradation is as a result of the intensification of agriculture. And that is still happening. And that has happened since really the 1990s. So it's not like this is ancient colonization stuff. This is ongoing impacts on our freshwater as a result of the decisions that are being made now. And the report clearly, um, you know, it's not, it doesn't give policy recommendations, but the authors have done a good job here to recognize that we need to look at freshwater as an interconnected system where we have multiple pressures accumulating across time and space and said that there needs to be more attention done, more attention given to data gaps and need for better coordination of water governance. At the same time, the government is continuing to channel research funding away from projects that are looking at environmental issues, and in particular away from projects that draw on the humanities and social sciences to try and look at some of these coordination issues, these governance issues. We're really out of step with what scientists are saying internationally, which is that we can't just techno fix our way out of this problem. We need to be looking at what people are doing. We need to be looking at land use decisions that people are making and how that's impacting our freshwater and why. What's the economics of it? What's the culture of it? What are the political dynamics that are influencing these outcomes? So, yeah, I'm hoping that allows more debate and discussion around freshwater because it is an election year. We're also, though, carrying on with the same tendency. We no longer have a ministry for the environment at Altiodor. Can you believe that? By legislation, the Ministry for the Environment has been disestablished, or there's a bill before Parliament disestablishing it. And we're going to have this new mega ministry, which is going to be, you know, infrastructure development, something like that. We also no longer have a minister in cabinet. The minister for the environment has been put outside cabinet now. We have a new minister. And she's outside cabinet. So the potential for environmental factors to have really any influence over major strategic political decisions in Aotearoa is really minimal. Again, it's an election year. These things, you know, hopefully might change. I also wanted to briefly mention something that's had quite a lot of press globally, which is around the rights of whales and whale personhood. And I'm looking at this for an article that we've actually just submitted that's hopefully going to be under peer review soon. But I thought it was worth mentioning because there's been some quite misleading commentary by the international press and commentators in relation to what's going on. So in February, the New Zealand Greens Party launched a members' bill, the Tohora Oranga Bill, which means like whale. Health Bill, which according to the party website will recognise Wales as legal persons with inherent rights. He looked at the actual bill. The overarching concept of the bill is Timana or Titohora, which recognises the mana, the prestige, authority, and wider spirit of Tohora, Wales, and their fundamental importance to the health and well-being of the wider environment. And it sets out some fundamental principles which reflect Timana or Tohora. So for anyone who sort of looked at Ao Toroa's governance models, this looks a little bit like some of the treaty settlement legislation, like for the Wanganui River, where you have Tupatikawa, which has these main principles. But when you actually drill down into the fundamental principles that are set out in Tamana or to Tohora, they look very much like Western scientific or governance principles that look more like ocean science or the law of the sea. So they're referring to freedom of movement and migration, protection of natural behaviours, protection of social and cultural structures, right to a healthy environment, a right to restoration and regeneration of habitats and ecosystems. That very much looks like rights of nature jurisprudence coming out of Latin America. So in some ways this looks like an ocean law that that's trying to be, you know, relational, but I think when you get down into the the depths of it, it falls down in several respects. It also doesn't include the kind of thick governance structures that we see in things like Teawatupua, the Wanganui River Claims Settlement Act, which is based on this relatedness between kinship groups and the river. It doesn't actually recognise legal personhood for whales either. It recognises rights for whales. And yeah, as I said, these fundamental principles don't look very, very relational. They seem to reflect Western conservation values when you look at the subtext of each of those headings that I read out. And I think that probably this is the result of the influence of North American researchers and NGOs in the Pacific whale rights movement. And they're sort of transposing or transporting models from other places which are not really fit for our local purpose once you get down to the fine print. Also, too, the bill, the way it's framed, it sort of has an an an awkward relationship with other legislation. It provides a list of acts that are relevant to this legislation, but it requires the decision maker to really act primarily in accordance with the purposes of that other legislation. So it's not really clear the impact that this act will have in actually shifting anything that's already happening. And the list of legislation that this is relevant to doesn't include oil and gas and mineral exploration, which in the context of what's going on in the world and you know the push for critical minerals and oil and gas impacting ocean health, I thought that was an interesting oversight. But ultimately, this is a private member's bill and being proposed by a minority party, and so it it's probably unlikely to go anywhere too far. But I think it it's interesting, but I think that more work needs to be done in order to make this really be anchored in our place-based uh circumstances here in Aotearoa. So those are my updates. What about you, Christy? Do you have any updates to share?

SPEAKER_06 1:09:29

So I'm just gonna provide a few quick updates today, and they're all focused on Australia, because there's just been too much going on to branch out further afield. The first one is the Australasian Centre for Corporate Responsibility and Santos. And this decision was actually handed down on the day that we recorded our last episode, which was two months ago, but it's a really big one, and I did want to cover it. Um, essentially, this was a case about alleged greenwashing. So the Australian Centre for Corporate Responsibility, a shareholder advocacy group, commenced proceedings in the Federal Court of Australia, alleging that Santos, which is a large Australian oil and gas company, had engaged in misleading or deceptive conduct against both Section 18 of the Australian Consumer Law and Section 1041H of the Corporations Act, by making representations in its annual reports, in its investor briefings and corporate communications, which described natural gas, one of its main products, as a clean fuel providing clean energy. And also by stating that it had a clear and credible plan to achieve net zero emissions by 2040. But those plans sitting alongside plans to expand gas production while relying heavily on carbon capture and storage technologies and other assumptions that the claimant claimed were not adequately disclosed. Unfortunately, in my personal opinion, the federal court dismissed the application. So on the 17th of February, Justice Markovic held that the relevant statements did not constitute misleading or deceptive conduct when read in context. So, for example, Santos's statements that described natural gas as a clean energy were often accompanied by explanations that did acknowledge the emissions associated with natural gas, but framed it as a comparatively cleaner than other fossil fuels such as coal. The court also concluded that Santos had established reasonable grounds for its claims, that it did have a clear and credible plan to achieve net zero emissions by 2040, and that these included internal planning and modeling and the proposed use of measures such as carbon capture and storage, in addition to electrification of operations and other offsets. This was a disappointing outcome. I think the idea that carbon capture and storage could be described as credible is becoming more and more uh tenuous. But I didn't hear the evidence in court, and the judgment did note that Santos's claims again were coupled with disclaimers about the fact that this was emerging technology. Perhaps more concerning was the industry response to this case, with the chief executive of Australian Energy Producers using it as an opportunity to accuse the Australasian Centre for Corporate Responsibility of so-called lawfare, something that comes up in Australia every so often, and calling for a crackdown on activist groups misusing the courts to target essential energy projects and companies. They also called for increased transparency about who was funding these civil society organizations, attempting to frame the need for corporate transparency about the impacts of their operations on the climate as somehow being equivalent to transparency around who's funding these actions, which are really around protecting the climate. Nonetheless, despite this loss, in another case or another legal situation which is coming up at the moment, Mr. John Dixon, who was the former head of human resources at Sydney University, has referred a case to ASIC, alleging that Unisuper may have misled its members by continuing to market its global environmental opportunities product as sustainable and environmental, even after changing the underlying rules. So originally these rules allowed it to invest in companies with a minimum of 40% of revenue linked to environmental themes, but in March 2025 it reduced this to as little as 20%, but kept the name of the option, the marketing, and made minimal notification to the fund members around these changes. And the Environmental Defenders Office is representing Mr. Dixon in this referral to ASIC. In another case, I've talked a number of times around the Australian Conservation Foundation's challenge to the Federal Minister for Environment's approval of the Northwest Gas Extension. In this case, they've added a new ground of apprehended bias. They're arguing that the minister made his final approval decision before there was a real opportunity for the community to review or challenge the minister's earlier decision about the key environmental matters that required assessment because the minister elected not to publish the reasons for this initial decision until months later, after granting the final approval. So the ACF argue in this context that this could be seen as an attempt to minimise legal challenge to the project and that this was an indication of a lack of impartiality during the decision-making period, leading to apprehended bias. In another case, the MAC Energy and Denman Aberdeen, Marcelbrook Scone, Healthy Environment Group, and another. This is going to the High Court. So back in 2022, the New South Wales Independent Planning Commission approved an expansion of MAC Energy's Mount Pleasant open-cut coal mine. This is near the Hunter Valley, which is a very beautiful farming region and wine-growing region north of Sydney. But it's also a region that unfortunately has a lot of mines due to a large coal scene. So a group of residents who live near the Mount Pleasant mine applied for judicial review of the approval in the landed environment court. They were seeking a declaration of invalidity due to the health impacts of the mine on the community, the indirect impacts on the local environment, and importantly, environmental impacts from the scope three emissions of the mine. And they argued that all of all three of these impacts, including the scope three emissions, had not been given adequate consideration by the Commission in its approval. They were unsuccessful at first instance, but they won on appeal last July. And earlier this year, MAC Energy appealed that win to the High Court of Australia and were granted special leave. So the High Court will hear the case in May, so next month. And it's widely considered to be the first climate mitigation case that will be heard in Australia's highest court. And so it's definitely one to keep an eye on. And then finally, just to end with some positive news. Traditional owners in the Northern Territory have taken the Northern Territory government to court. They initially started this claim back in 2020, arguing that the establishment and expansion of Glencore's MacArthur River mine near Burrulura in the Gulf of Carpentaria has caused significant cultural, spiritual, economic, and environmental damage to community and country. And in late February this year, the federal court found in their favour and awarded a record 54 million for non-economic or cultural loss and a further almost 750,000 for economic loss plus interest. Justice Banks Smith said in her assessment in relation to the cultural loss that she had regard, amongst other things, to the irreversible spiritual damage caused by the diversion of the Macarthur River back in 2007 to expand the mind. She noted the impossibility of placing a real monetary value on the damage caused, but said that she took into consideration the way that mine operations prevented access to sacred sites, reduced opportunities to continue to transfer knowledge and custom across generations, and the cultural sensitivities that flow from what's regarded by some as a failure to care for country, i.e., that people were prevented from caring for country by not being able to access the site. So that was a positive news. It's only one of two cases that has considered cultural loss in relation to native title damage claim. And hopefully this is going to put companies and governments on notice that they can't continue to trample over them in the way that they have historically. So, Liz, what are you working on? What's coming up on your horizon?

SPEAKER_02 1:18:11

Well, tomorrow actually, I am going to be on a panel. I'm very privileged to be invited to be on a panel discussion, which is taking place at the art gallery in Christchurch, which is called Unutai Unutai Air, and it's the future of freshwater tanga by Ngaitahu, which is a discussion that relates to an exhibition of photos by Anne Noble, one of our very famous and talented photographers, which looks at the decline of freshwater in Tawai Po Namu, the South Island, and also kind of is a framing for the High Court case litigation that I was involved in as an expert witness last year. So it's really cool to be able to speak on that panel with some Gaitahu leaders and also political candidates who are going to be there about just broadly, you know, where we're at in terms of freshwater and you know what what we need to do to get to where we need to be in terms of Altero generally, right? So I'm looking forward to doing that tomorrow and to engaging with that wonderful exhibition in a much broader audience than an academic audience. I've still got some other expert witness work that I'm trucking along with, which I'll be able to talk about at some point. And just carrying on with field work and writing, which I've explained earlier. How about you, Christy? What have you got coming up?

SPEAKER_06 1:19:34

Uh well next week on Tuesday, I'm speaking very briefly about the recognition of the right to a healthy environment in the ACT. Um, I've been invited to speak about that by the UNU of Melbourne. There's a webinar on transforming food systems through human rights. And it's really looking at the role of human rights in promoting dignified and equitable access to food and resilience, particularly given cost of living pressures, and then wanting to draw on other developments around the recognition of socioeconomic rights and similar and how that could be leveraged in the Victorian context around, I guess, the right to food. So that will be interesting. I'm wrapping up at UC at the University of Canberra over the next couple of weeks, and that's mostly going to involve making the finishing touches on a new unit on environmental justice that I'll be handing over, and it's been really fun to create that unit. And then I'm officially starting at Monash at the start of May. I'll talk about that a bit more later. And in May, um I'm speaking on a panel which is on the third Global Citizenship Education Hub. So it's cooperation between Hamburg Sustainability Conference and UNESCO Institute for Lifelong Learning. And it's focused on agency and earth system governance as subjects of global citizenship education. But I'm going to be talking really about weaving sort of utopian and prefigurative theory and politics into units that are focused on environmental justice or climate justice or related issues of environmental human rights. And just the way that that provides a bit of a source of hope for students in amongst all the kind of doom and gloom of the critique that might otherwise be the focus.

SPEAKER_02 1:21:18

Cool. I'll have to get you to send me a link to the Melbourne webinar because I'm sure my Living Relations, which is decolonizing food sovereignty project, would be really interested to hear about that and watch it, especially. Yeah, it's a webinar, it's recorded, they can watch it over in their time. My Canadian partners. Sounds good. Um you'll be busy. As usual. Um before we wrap up, I just wanted to thank all of you who have continued to give us fan mail and said that you enjoy listening to the show or dropped us a line. We really enjoy it. If there's anything you think we need to change, please let us know because we are trying to find new ways to reach a broader audience and in different ways. So some more news coming on that later. But if you do enjoy the show, please consider leaving us a review on Apple Podcasts or sending the link to a friend. On Spotify, you can give us five stars. Just get in touch with us privately via the send us the text button if you want to, which is at the top of the show notes.

SPEAKER_06 1:22:21

And that's all from us. You can find the show notes from each episode at lore at the end of the world at ussprout.com. And you can find both of us on LinkedIn and on Blue Sky. Liz is on Blue Sky under the username prof Mac.bluesky.social, bsky dot social. And I'm at Christy Clark one word.bsky dot social. And that's all from us. Thanks, Liz. Bye.