© 2013 Susan D. Shaw

Giving Nature a Voice - Granting Nature Legal Rights: a progressive path towards delivering a balance between people and the natural world?

July 11, 2018

Legal rights and personhood for Nature – an analysis of progressive legal developments in other jurisdictions where Nature Rights have been recognised in national constitutions, other domestic laws and litigation proceedings.

 

You can access a copy of the full Report here 

 

Building on our previous blog on the right to a safe and healthy environment, in this short video update we would like to share some of the latest legal developments and thinking surrounding the legal rights of and for Nature; a topic which is gaining increasing traction and debate globally.

 

Today, the impacts and price that Nature – and eventually also people – have been paying as a consequence of over exploitations, based on short-term and inequitable economic considerations, is increasingly apparent and a fact humanity can ill-afford to ignore. Humanity are already transgressing four critical Planetary Boundaries, which mean we are approaching and, in some cases already crossing, tipping points in the Earth-system. From ocean acidification, to mass deforestation, plastic and chemical contamination of major seas, rivers and lakes across the world, they all illustrate the urgency of the remaining challenge ahead. Continuing failures to act will result in possible non-linear feedbacks, with the result that impacts may not be reversible. The consequences of this are not only for healthy and well-functioning ecosystems, but also humanity’s very survival and international peace and security (water scarcity being an obvious example where Nature Rights and Human Rights intersect).

 

Yet, we also know that with purposive approaches and clear regulatory frameworks we can set the direction needed to implement system-level changes. Done correctly, these can turn the tide – recent examples of a little thought going a long way include the ban on single use plastic straws and clearly demonstrate that these changes can also be implemented in a way which makes economic sense.

 

It is clear that to actually implement the concept of Sustainable Development, both international and national environmental frameworks need to move far beyond their traditional approaches, which have thus far generally not halted the continuing decline in Nature. In response, the real-world impacts, such as of climate change, have spurred renewed momentum at the international level in recent years leading to increasingly high ambition and collaborative actions, such as the Paris Agreement and SDGs. Yet, it's fundamental to the real-world attainment of these international commitments that national laws also keep pace with this transformative shift to 'bend the curve' to societies within Planetary Boundaries.

 

That is why we are today launching a new Legal Report “Giving Nature a Voice – granting nature legal rights”,  which aims to promote debate in a key area where creative legal thinking has the potential to realise a better balance between people and the natural world, and also support fulfilling pre-existing Human Rights.

 

History has already demonstrated that progressive legal approaches, even if at first appearing too radical or unworkable, have subsequently become basic founding pillars of our current legal system. Without bold and visionary thinking, for example, we may not have been able to celebrate the centenary of women’s rights to vote in the UK this year. Or similarly have achieved universal rights of equality in race and gender in our legal system. When it is also understood that non-human entities, such as corporations, need the benefit of legal personhood and rights to protect them from arbitrary decision-making, increasingly the question arises: Why should Nature be different? Why should Government’s face legal action from fracking companies (even if proven erroneous) which claim their ‘Human Rights’ have been violated without a corresponding balancing rights of and for Nature? What is it that makes Nature less worthy of rights-based protections?

 

In section one of our Report, we provide a comparative legal analysis of key national jurisdictions that have already formally recognised Rights for Nature in their legislations, constitutions and judicial cases, as well as the rationale for doing so. Whether driven by traditional deep-rooted connections with the natural world or the strong influence of indigenous populations, it is undeniable how those countries, by considering Nature as a living entity capable of being represented before courts, have pushed the boundaries towards Sustainable Development one significant step further. Notwithstanding their own unique national characteristics, those examples all also support the conclusion that a safe, clean and healthy environment represents a pillar in the enjoyment of fundamental Human Rights, as also recently acknowledged by the UN Special Rapporteur on Human Rights and the Environment, John Knox.

 

It is important to stress, however, that our intention in publishing this Report is not to conclude that nature recognitions are an end point in themselves, nor to suggest that operationalising rights for Nature is completely straightforward. Indeed, we acknowledge the challenges that the jurisdictions we have studied have encountered in giving Nature a real voice and the ongoing importance of regulatory frameworks and controls which actualise Nature protections. And while mass-scale mineral exploitation, failures in enforcement and continuing environmental contaminations still persist also in these same praised countries, we rather suggest that these are the consequence of piecemeal approaches; as opposed to being an intrinsic flaw in the concept of Rights of and for Nature. Moreover, we do not believe that the challenges in implementing a Rights-based approach are insurmountable, particularly when taking a holistic vision in their development.

 

Rather, we suggest that formal recognitions of Nature Rights provides a clear normative shift and optic also for the interpretation of existing regulatory frameworks, similarly to the way in which other pre-existing rights’ based laws operate. And moreover, promotes legitimacy, democratic accountability and participation in decision-making, as well as supporting the aim of levelling the playing-field among corporate actors. Environmental Rights also allows conscious decision-making around questions such as – who should represent Nature and within what institutional frameworks? And the evidence increasingly tells us this optic-shift is much needed; for example, notwithstanding the world-wide perception of UK environmental law as being highly sophisticated, in 2016 the State of Nature Report found the UK’s environment to be among the most depleted globally. The practical reality that the UK River Tame has been ranked recently as the most polluted river in the world, is just one stark example of why increased debate on outcome-focused greener laws and policies also here in the UK is urgently needed. Combined with the ongoing debate on post-Brexit environmental protection frameworks and the prospect of a new Environment Act at Westminster, and similar opportunities needed within the Devolved Administrations to fill the 'governance-gap', this Report is therefore timely.

 

While the lessons from other national jurisdictions stress the importance of well-considered procedural requisites to concretely implement Nature Rights, the purpose of this Report is not intended to provide at this early stage a blueprint to operationalise Nature Rights in the UK. Nor to suggest inappropriate legal transplantation from other jurisdictions. Rather, we hope to encourage an evidence based, bold and visionary debate on the possibilities of 1) how Rights for Nature may stem the decline of our natural environment; 2) promote a greater balance between people and Nature to also support the attainment of fundamental Human Rights and Rights of the Child; 3) assist Governments to navigate complex decision-making in the Anthropocene where often competing and vested interests may be present; and 4) debate which Nature Rights could appropriately and realistically be conferred such protection.

 

We further provide some examples of how Nature Rights have in practice been implemented in other jurisdictions (for example via Nature Ombudspersons) and also analogies from other legal fields where procedural mechanisms have been developed to successfully overcome the practical difficulty of where a claimant is unable to physically represent itself in administrative and court proceedings. It is important to stress that this problematique is not unique to Nature Rights. For example, the revolutionary figure of the curator ad litem was developed for children who lack legal capacity. In this latter case, this too required to overcome major cultural resistance to the opening up of court procedures to these parties. What was once viewed as revolutionary is now mainstream.

 

The inescapable fact remains that the current state of our environment, severely degraded and overexploited, requires immediate and creative legal solutions. These changes are possible and have legal precedents to draw on in other fields of law. As this report is published, between the 4 and 6 July 2018, leading legal experts from around the world convened here in Scotland for the 2018 IUCN Colloquium hosted by the Strathclyde Centre for Environmental Law and Governance. Entitled “the Transformation of environmental law and Governance: innovation, risk and resilience,” it is notable that a number of sessions were also dedicated to this very topical issue and specifically including the possible role of Nature Rights in the field of climate litigation.

 

As the prominent Native American proverb says: “we do not inherit the earth form our ancestors, we borrow it from our children”. If we are to live up to those responsibilities, the issue of Nature Rights clearly merits further legal and policy debate to rise to the challenges of the Anthropocene.

 

 

 

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