finding ecological justice in New Zealand Claire Browning with the support of the New Zealand Law Foundation Produced and published by Claire Browning, with support of the New Zealand Law Foundation. Copyright © Claire Browning, 2017 Claire Browning asserts her right under the Copyright Act 1994 to be identified as the author of this work. ISBN: 978-0-473-41596-9 (softcover) ISBN: 978-0-473-41597-6 (pdf) For the young ravens. Psalm 147:9. “Whether you will or not You are a King, Tristram, for you are one Of the time-tested few that leave the world, When they are gone, not the same place it was. Mark what you leave.” — Edwin Arlington Robinson quoted from Tristram (MacMillan, 1927) in Leopold, A. A Sand County Almanac (1949) Tūngia te ururua, kia tupu whakaritorito o te harakeke: Set alight the overgrown bush, to let the new flax shoots spring up. — A whakataukī PART 1 In the beginning 1 The morning Whina Cooper led her toddling moko by the hand on to a gravelled Far North road, their destination lay beyond her sight, a long way to the south. 1 Whina, then in her eightieth year, led her people in a hīkoi, a long march in protest to New Zealand’s Parliament, that coincided with establishment of the Waitangi Tribunal and the first steps for Crown-Māori reconciliation on the aching slow path towards justice. This is a story about environmental law and ecological justice in Aotearoa. It may seem odd, and profoundly wrong, to begin it by naming Dame Whina Cooper. I want to pay tribute to this wahine toa—to the resolution, hope, and weariness of this bent and patient woman, walking on a rough road with the little child. The road goes on from Whina Cooper’s cry of alienation and the demand for justice. We are still travelling on it, and have some way to walk yet. In this story, I’m seeing Pākehā New Zealand as the child. In 2017, the rivers and streams that run through this country like veins approached their point of collapse. “The signs say there’s a river here, but no one’s seen it in months,”2 wrote Christchurch Press reporter Charlie Mitchell, documenting Canterbury’s collapsing Selwyn River. A photo from 30 years earlier shows a line of little children in clear, pretty water in their togs.3 Two children, this summer, “bravely launched a boat. They floated quietly up the river, through the tangled mats of green slime, under strict instructions not to touch the water”, water described as having “broth-like consistency”.4 Dead and dying endangered longfin eels, “massively long and likely 1 Te Ara. www.teara.govt.nz/en/photograph/29689/whina-cooper-and-her-moko (retrieved July 11, 2017). Moko or mokopuna – grandchild. 2 Road or river? Barren Selwyn reaches new low. (December 2, 2016). www.stuff.co.nz/environment/86992441/Road-or-river-Barren-Selwyn-reaches-new-low-swimming-spot-stagnant (retrieved January 16, 2017). 3 No longer swimmable: A community mourns its lost river. (September 29, 2016). www.stuff.co.nz/environment/84116972/No-longer-swimmable-A-community-mourns-its-lost-river (retrieved January 16, 2017). 4 ‘Just not good enough’: Summer slow at polluted Canterbury river. (January 8, 2017). www.stuff.co.nz/environment/88188743/just-not-good-enough-summer-slow-at-polluted-canterbury-river (retrieved upwards of 70 years old”, would not survive to breed. There were phormidium toxic algae warnings at multiple sites along the river, including stagnant former swimming spot Coe’s Ford. Flow would officially cease at the ford at 2 pm, February 24, 2017. 5 The following weekend, the last of summer, as volunteer rescuers scrabbled to retrieve stranded dying eels and juvenile galaxiids (native fish), pools dried up around them.6 “It was pretty horrible. Even as we were there, the pools were starting to shrink,” said Mike Glover, a volunteer. “As the sun heated up the water, inanga (whitebait) started dying... there were a lot of dead fish”. In Havelock North an aquifer which fed the town’s drinking water supply became contaminated after heavy rain. Subsequent investigation would trace the source and cause of contamination to animal faeces from surrounding paddocks and a pond.7 In the outbreak of gastrointestinal illness that followed, 5,500 people—more than a third of the town’s population of 14,000—fell sick. Three deaths were linked to the outbreak,8 two people developed Guillain-Barre syndrome,9 six months afterwards large numbers of elderly people were reported to be still recovering.10 Following tripling of stock numbers in the catchment, local farms were believed to be a cause of E.coli from cow faeces washing into the Waiotahe estuary, polluting pipi beds that had been a source of kaimoana—once thriving waters, formerly also home to lamprey.11 Lake Forsyth is one of two customary lakes in New Zealand from which it is an exclusive right for local Māori to take tuna, in a harvest practised for hundreds of years. A rāhui now placed on the lake saw eeling cease due to toxic algal blooms, January 17, 2017). 5 Mitchell, C. (February 24, 2017). twitter.com/comingupcharlie/status/835024329704251392 (retrieved March 4, 2017). 6 Eels and whitebait rescued from disappearing Canterbury river. (March 1, 2017). www.stuff.co.nz/national/89880500/eels-and-whitebait-rescued-from-disappearing-canterbury-river (retrieved March 4, 2017). 7 Tests reveal source of Havelock North water contamination. (February 2, 2017). www.radionz.co.nz/news/national/323594/tests-reveal-source-of-havelock-north-water-contamination (retrieved February 2, 2017). 8 Third death linked to Havelock North gastro outbreak. (October 29, 2016). www.newshub.co.nz/home/new- zealand/2016/10/third-death-linked-to-havelock-north-gastro-outbreak.html (retrieved January 12, 2017). 9 Havelock North’s water gastro bug puts people in Hawkes Bay hospital. (August 13, 2016). www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11693172 (retrieved January 12, 2017). Havelock North water inquiry would look at fault, but not liability. (October 27, 2016). www.stuff.co.nz/national/health/85777428/Havelock-North-water-inquiry-would-look-at-fault-but-not-liability (retrieved January 16, 2017). 10 Water inquiry told large numbers of elderly are still recovering. (February 9, 2017). www.radionz.co.nz/national/programmes/checkpoint/audio/201832627/water-inquiry-told-large-numbers-of-elderly- are-still-recovering (retrieved March 4, 2017). 11 Kaumātua blames local farms for Waiotahe pipi bed pollution. (April 26, 2017). www.maoritelevision.com/news/regional/kaumatua-blames-local-farms-waiotahe-pipi-bed-pollution (retrieved July 5, 2017). Water fools? Sacred pipi beds polluted. (April 24, 2017). www.radionz.co.nz/programmes/water- fools/story/201841352/water-fools-sacred-pipi-beds-polluted (retrieved July 5, 2017). believed to be caused by phosphorous-rich sediment at the bottom of the lake from deforestation early last century.12 Fishing continues in the treasured food basket of Te Waihora (Lake Ellesmere) at the bottom of the Selwyn catchment, though its once clear waters are sediment-filled, making tuna and flounder fishing by spear as customarily no longer possible in water that ought to be clear to the bottom.13 As dairy expansion booms, New Zealanders at the ‘bad end’ in regions where land use is changing—the lowland or coastal end of rivers at the bottom of catchments—have seen water quantity and quality in decline.14 Cow numbers across the country since 1985 have doubled;15 dairy cow numbers in Canterbury are up by more than a million since 1994, each cow producing 14 times the effluent of one person, putting it straight on to the land.16 “Fifteen years ago, when I started to guide in the region, there was not a river where I would hesitate to have a drink of the water,” fly-fishing guide Serge Bonnafoux told the Wall St Journal. “Nowadays there are only rivers in remote areas, where I know there are no cows above me...”.17 New Zealand has used its rivers as sewers and drains, pouring down them primary processors’ waste from timber mills, meatworks and tanneries, and outflow from human sewage treatment. Over objection from Ngāti Rangitihi and others, discharge into the Tarawera River from the Tasman Pulp and Paper mill in Kawerau was allowed to continue for another 25 years; the loss of food resources would cost local families about $50 million, estimated Ngāti Rangitihi leader Tipene Marr, yet the mill also makes jobs for local people. There was “no scientific evidence of poisoning of aquatic life”, perhaps because, after six decades’ discharge of industrial sludge into a river now called the ‘Black Drain’, there isn’t much aquatic life left.18 12 Eeling stops in poisonous Canterbury lake as new agreement signed. (April 4, 2017). stuff.co.nz/environment/91197943/eeling-stops-in-poisonous-canterbury-lake-as-new-agreement-signed (retrieved July 5, 2017). Tuna – eels. 13 Pātiki – Ngāi Tahu Mahinga Kai. youtu.be/tRQN2Qolj2s (retrieved August 16, 2017). 14 Dr Mike Joy, commenting in: Lord of the Rings actor says NZ tourists shocked by polluted ‘sewer’ Middle Earth. (December 18, 2016). Sunday Star Times. www.stuff.co.nz/environment/87554686/Lord-of-the-Rings-actor- says-NZ-tourists-shocked-by-polluted-sewer-Middle-earth (retrieved January 16, 2017). 15 Intensive dairy farming threatens NZ’s clean, green image: Greenpeace. (March 9, 2017). www.stuff.co.nz/business/farming/88562531/dairys-hive-of-industry-or-stress-fest (retrieved March 9, 2017), quoting livestock figures from Dairy NZ. 16 Statistics New Zealand.