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Wild Law 2011 Dr Michelle Maloney Australian Earth Laws Alliance www.earthlaws.org.au What are ‘rights of nature’ laws? Where do they exist? How do they differ from existing environmental law? Can they make any difference to environmental protection? Can Rights of Nature legal approaches be of use to BBNJ Laws that aim to change the legal status of nature from being human property, to rights bearing entities of their own 2002- present - USA – more than 30 local laws passed by communities, asserting the rights of local people and natural communities 2008 - Ecuador – 2008 Constitution – rights of nature ◦ More than a dozen cases: including Vilcabamba River, Mangroves, Sharks 2010 - Bolivia – 2010 Act for the Rights of Mother Earth ◦ Universal Declaration for the Rights of Mother Earth (30,000 people) Since 2016 - Europe – pushing for an EU Directive for the Rights of Nature 2016 - Green Party of Scotland; Green Party of England and Wales – adopted Rights of nature policies 2017 - New Zealand – ◦ Whanganui River, Urewera Forest, Mt Taranaki – “legal personhood” 2017 - India – courts recognised two rivers have legal personhood (a second case said all of the ecosystems feeding the rivers – glaciers, mountains etc have legal rights) 2018 - Atrato River in Columbia – 2017 legal personhood Scotland – lawyers looking at legal rights for Ben Nevis mountain 2018 - Mexico City – new laws under development at present: rights of nature 2019 – Bangladesh – court case, river rights 2019 – Uganda National Environmental Protection Act Any future governance system must recognise the rights of the non-human world to exist, thrive, evolve “Rights exist where life and life supporting systems exist” bee rights’, ‘river rights’ Earth community = relationships We are a community of subjects, not a collection of objects ◦ Relationships – rights/duties ◦ ‘Standing’ Concept of Guardian at law ◦ Remedies? Injunction Compensation Restoration ◦ Long term ‘custodianship’? Guardianship? “The Lorax” – Dr Seuss Current western legal Earth Jurisprudence system 1. Human laws are the highest 1. ‘Great Law’ - laws of the authority natural world ‘higher’ than 2. Nature is a commodity for human laws human use – property law, 2. ‘Earth Community’ - other law reflects this community of interconnected subjects 3. Legal rights for humans, 3. Rights of nature corporations, ships - but not 4. Living within ecological limits natural world 5. Earth Democracy - 4. Pro-growth ideology encourages diversity in 5. Western legal systems “top human governance – cultural down” and often reject pluralism, indigenous cultural diversity (eg frequent knowledge, local custodianship exclusion of indigenous law) 6. Crime of ecocide to 6. Large scale damage to prevent/punish/restore large ecosystems is allowed scale destruction of natural systems “Rights of Nature” laws – positive laws ◦ “blanket” laws for ALL of nature, inside an entire jurisdiction – like a nation (Ecuador, Bolivia) or a local council jurisdiction (eg USA/CELDF) “Legal personhood” for nature ◦ Ecosystem specific – eg legislation New Zealand, court cases in India, Bangladesh, Colombia ◦ Nature recognised as having its own legal rights ◦ ‘same legal rights as a legal person’ Academic research exploring different/new aspects of ‘legal personhood’ – collective rights, law of obligations, other Community/grass roots movement ◦ Eg CELDF community based laws Rights of species – eg plants, animals ◦ Manoomin (“wild rice”) now has legal rights; tribal law in USA - This reflects traditional laws of Anishinaabe people, now codified by the tribal government. National “blanket” laws – eg Bolivia Laws created by First Nations Peoples, under Treaty provisions – eg New Zealand Constitutional reform – eg Ecuador Court decisions – specific ecosystems – eg India, Colombia Regional Convention for the Pacific Ocean International recognition/UN Every time we expand ‘rights’ there is resistance Ending slavery – changed world view from slaves as property, to slaves as human Votes for women (South Australia, 1894 – the rest of Australia, early 20th Century; USA 1920s) Constitutional recognition of First Nations people in Australia, 1962 ‘rights based’ approaches are western legal constructs ◦ Don’t reflect existing Indigenous law ◦ May represent ongoing ‘colonial project’ – imposing western constructs of knowledge and law ‘over’ existing legal systems ◦ Eg Australia – ancient first laws Rights based approaches focus on individual rights; adversarial, ‘my rights versus your rights’ Unless you challenge private property laws as well, what difference will it make? Within ‘top down’ western legal systems – people speaking for nature will face same problems as people defending nature now “Recognizing Rights of Nature does not put an end to human activities, rather it places them in the context of a healthy relationship where our actions do not threaten the balance of the system upon which we depend. Further, these laws do not stop all development, they halt only those uses of land that interfere with the very existence and vitality of the ecosystems which depend upon them.” ◦ Mari Margil, “Building an International Rights of Nature Movement” in M.Maloney and P.Burdon (eds) Wild Law in Practice (Routledge, 2014) Growing demands from Indigenous people, communities and courts for legal recognition of the rights of nature ◦ Some Indigenous Peoples see Rights of Nature as compatible with their ‘first laws’ Increasing body of law demonstrates shifting norms and expectations Increasingly demonstrates civil society will not tolerate damage to ecosystems Growing jurisprudence, articulating what rights of nature are, and how they can be enforced Emerging customary international law? Proposed Regional Convention for the Rights of the Pacific Ocean Work exploring possible Rights of Nature approach to areas beyond national jurisdiction RON laws challenge the notion that nature is human property High seas are not private property However RON also challenges human centred governance systems such as ‘the commons’ Dr Michelle Maloney Australian Earth Laws Alliance www.earthlaws.org.au www.rightsofnature.org.au [email protected] Follow us on facebook.
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