World-renowned environmental academic, Professor Liz Fisher, takes LawTalk through the role and responsibility of the professionin the critical area of climate change. Against a backgroundof unprecedented and tragicweather events in Aotearoa New Zealand and around the globe, she shares unique insights into what practitioners can do to help fight climate change.
Professor Liz Fisher is a Professor of Environmental Law at the Faculty of Law, Oxford University and a Fellow of Corpus Christi College since 2000. In September 2022, she visited New Zealand as a distinguished visiting scholar of the Borrin Foundation. During her visit, Professor Fisher delivered six public lectures on the topic of ‘Legal Imagination and Ecological Futures’ and met with members of the New Zealand legal community.
From her home base in Oxford, Professor Fisher connects with LawTalk to share insights on the role and responsibility of the profession in the critical area of climate change. She does so against a background of unprecedented and tragic weather events in New Zealand and elsewhere. In an era in which the impacts of climate change are being increasingly felt, the question of what role the legal profession plays is a particularly live one.
No magic wands
“Law cannot be a magic wand” says Professor Fisher, but law is vital in responding to environmental problems and to climate change. That is because law is a source of legitimate authority and can create frameworks for action and dispute resolution. “Law and the legal profession can’t save the planet, but they do have a necessary role to play.”
A challenge is that most of our laws were developed in an era when the type of environmental issues societies are now facing were absent, especially around agriculture and climate change. What is needed is thus some form of law reform. That reform needs to embrace the distinctive nature of environmental problems – they involve multiple parties, a significant role for science in assessing future risks, and socio-political conflict. Reform also needs to recognise that climate change is a new reality that is not going away.
It is common to think of the courts as the main forums for reforming environmental law. They are not irrelevant. They resolve disputes, are accountability mechanisms, and provide authoritative statements of the law. But Fisher urges those in the profession who think that law reform in this area can only be effected by judges to think again. Courts are not the only legal actors. Good legislation that clearly frames what the problem is has significant role in guiding action. Public administration is also important – although it is difficult to make good decisions when public bodies are under-resourced and are “already on their knees”. Private and commercial law is not out of the climate change picture. Wise legal advice from the profession to their clients about climate risks is crucial. And even if the focus is on the courts, “Judges within a common law system can only work with the arguments before them. Therefore, the focus needs to be on the lawyers, not the judges. We need a collective effort toward presenting better arguments.”
Professor Fisher counts Aotearoa New Zealand as being “ahead of the curve” in many ways when it comes to environmental law. It is a legal culture with a longstanding commitment to taking law and its potential seriously. Legal debate in relation to environmental problems is thoughtful. There is a willingness to acknowledge, accept and embrace principles of tikanga and consideration for a Te Ao Māori worldview. There is also a vibrant and highly skilled legal profession. In her travels around the country she was inspired by the lawyers and the legal scholars she met and the commitment to thinking through the difficult issues that climate change raises for societies. “The Borrin Foundation Fellowship has been one of the highpoints of my professional career,” she notes. “That is because of the truly amazing people I met.”
“Evolving law to meet the challenges of climate change is a group effort,” Professor Fisher says. It is not the province of a single group of lawyers or legal thinkers. “As a scholar, I see my role in fostering legal expertise in relation to complex problems. When a lawyer is in practice and opens a file, I want them to see that complexity and to bring their legal expertise to bear on it. But I’m not a practitioner – that is a separate body of expertise.” Both are needed in responding to climate change.
Evolving legal thinking
While much attention is currently directed to how environmental and climate change law can develop in the future, Professor Fisher argues it is important to also look to the past. Not for answers, but to understand the way in which legal imagination can and could evolve.
In a recently published article1 in the New Zealand Universities Law Review (NZULR) on environmental law reform she draws on an essay by Ursula Le Guin to make the point. Le Guin quotes from the introduction to Howard A Norman’s collection of narrative poems from the Swampy Cree Native Americans
The Swampy Cree have a conceptual term which I’ve heard used to describe the thinking of a porcupine as he backs into a rock crevice: Usà puyew usu wapiw!
‘He goes backward, looks forward.’ The porcupine consciously goes backward in order to speculate safely on the future, allowing him to look out at his enemy or the new day. To the Cree, it’s an instructive act of self preservation.2
In going backward, it can be seen how far societies have come in tackling environmental problems. Professor Fisher gives the example of Liverpool, England, where in 1842, the average life expectancy of a working class man was 17 1/2 years due to the dire living and working conditions that existed3. In relation to climate change, she notes “We have come a long way in seven years. When you consider that in 2015 the pre-Paris conference challenge was overcoming climate change denial. Fast forward to now and while there is still a long way to go, societies globally recognise there is an issue. With acceptance comes agreement on changing the way we do things.”
Reflecting on past experiences of how law has evolved can help show a path to the future. Thus in the NZULR piece she provides an example of tree preservation legislation in different legal cultures. But past experience also shows that it is not enough to pass a law and hope for the best. What is needed is active legal thought in which legal thinking is adapted in light of new problems and new laws.
Again, history shows there are many examples of this. Fisher points to the rich seam of case law concerning the Resource Management Act 1991 (RMA) and in particular, the judgment in Environmental Defence Society Incorporated v The New Zealand King Salmon Company Limited and Ors  NZSC 38. While the RMA regime is currently undergoing reform, it is vital any process of reform is grounded in lessons learnt from the past. “There is a temptation to think that environmental law reform must by radical – that current law is what got us in the mess in the first place – but to effectively address complex problems we need a more nuanced understanding of what did and didn’t work in the past”. Law is not so much a set of tools but a set of practices that allow communities to develop effective responses to problems. Those responses involve many different laws, many different actors, and many different institutions.
Overall, Fisher argues what is needed is a recognition that legal imagination – the mental constructs that lawyers use to reason with law – needs to evolve in light of new problems. “That evolution will likely be dramatic, but it is not revolution – many of the values embedded in the law, and most obviously the rule of law, continue to be important.” And history is full of examples of such evolution – planning law, waste law, nature conservation law. Legislation such as the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 is also instructive. It is an example of how (to paraphrase the sociologist Donna Harraway) lawyers can ‘imagine legal worlds otherwise’ and do so in rigorous and thoughtful ways. “To tackle climate change we need all the resources, creativity, and expertise of the legal profession,” she states.
“We underestimate environmental risks at our peril” Fisher says. “We need laws that recognise that the relationship between the environment and humanity is both crucial and complex.” Those laws can’t save the planet but they can ensure frameworks that allow societies to work towards ways of sustaining the environment. “There are no easy solutions,” she states, “but any genuine and meaningful response to environmental problems will have law in the mix.”
Elizabeth Fisher, ‘“Going Backward, Looking Forward”: An Essay on How to Think About Law Reform in Ecologically Precarious Times’ (2022) 30 New Zealand Universities Law Review 111.
Ursula K Le Guin’s “A Non-Euclidean View of California as a Cold Place to Be” in Dreams Must Explain Themselves: The Selected Non-Fiction of Ursula K Le Guin (Gollancz, London, 2018) at 109- 110
Edwin Chadwick, Report on the Sanitary Condition of the Labouring Population and on The Means of Its Improvement (House of Commons Session Paper, 1842) at 85.