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26 Mar 2019 17:24
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  •   Home > News > International

    There's a growing push to give nature legal rights, but what would that mean?

    Researchers argue that giving nature human rights could help ward off an impending 'planetary catastrophe'. But others say we aren't enforcing the laws we already have.

    Mother Earth, Gaia, Pachamama, Papatuanuku: different cultures have long used human metaphors to define nature.

    But while there's evidence that anthropomorphism can help foster empathy and respect for the environment, there's a movement of people arguing that metaphors don't carry the legal clout needed to ward off what the UN has described as an impending "planetary catastrophe".

    In a paper published in Science this week, ecologist Guillaume Chapron of the Swedish University of Agricultural Sciences outlined the case for enshrining the legal rights of nature in law; an equivalent of a Universal Declaration of Human Rights for the natural world.

    "We are well aware of the global biodiversity crisis that shows no sign at all of slowing down, so it's time to have a complete rethink," Associate Professor Chapron said.

    "As Einstein said, you can't solve a problem with the mentality that created it. The most radical shift we can envision is to consider nature as a person...and then to treat nature accordingly."

    The idea is fairly straightforward.

    Presently, nature in a legal sense is broadly treated as property or a resource, and damage to nature is considered in terms of its impact on its owners, managers or other interest groups.

    But by considering nature as a legal entity with inalienable rights, legal action against the perpetrators of environmental damage could be brought by citizens on nature's behalf, Dr Chapron said.

    "If the Australian government passes a law that says it's OK to clear forest in national parks, without rights of nature you don't have any recourse. That's a democratically elected government that enacts that regulation, you can't do much," he said.

    "But if you have rights of nature you can say that the government is violating fundamental rights and that law is illegal."

    A river with rights of a 'legal person'

    Giving nature the legal rights of a person might sound far-fetched, but while the concept isn't new, it has been gaining traction around the world.

    In 2017, New Zealand's parliament passed a bill declaring the Whanganui River system a legal person with "all the rights, powers, duties and responsibilities of a legal person".

    "Te Awa Tupua is an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements," a parliamentary statement said at the time.

    As part of that ruling, a $NZ30 million dollar contestable fund was set up that could be used to advance the restoration and health of the river.

    A Bolivian law from 2012 recognised the "rights of Mother Earth to life, diversity, water, clear air and restoration".

    And High Courts in India, Colombia and Bangladesh have all recognised natural assets as legal entities in cases in the last 12 months, according to Michelle Maloney, a lawyer and co-founder of the Australian Earth Laws Alliance.

    "What we're seeing really is one of the first global movements in the legal sense that we've seen in a very long time," Dr Maloney said.

    "The term 'rights of nature' is a spearhead concept. To think about it is to challenge the concept that nature is just property."

    Rights of nature would bring Australian law more into line with Indigenous lore in regards to our relationship with the natural world, according to Dr Maloney.

    "Rights of nature is not about stopping human interaction with the environment, it's about balancing our take," she said.

    Laws aren't the problem, enforcement is

    But while rights of nature may strengthen the legal position of those acting on behalf of nature, Chris McGrath, barrister and associate professor at University of Queensland's Global Change Institute, said that current Australian laws already give standing for environmental cases to be brought before the courts.

    The biggest impediment to the legal defence of nature in Australia is the lack of resources and enforcement of the laws we already have, he said.

    "Simply writing that nature has rights into an Act doesn't change the power dynamic. The power dynamic at the moment is weighted by who has the money," Dr McGrath said.

    "There's a massive case I'm involved with now and the mining company literally has a billion dollars. I'm representing the landholders and they've got nothing."

    Relying on volunteers and activists to pursue the rights of nature doesn't address that power imbalance, according to Dr McGrath.

    Those that would legally challenge developments such as coal mine applications, firstly need to raise the funds for legal proceedings.

    And in many cases, NGOs and individuals are cowed by the prospect of having cost orders brought against them, where they would be obligated to pay the costs of the defendant if they lose the case.

    Last year for example, Adani were seeking more than $600,000 from traditional owners, after the traditional owners took legal action in an attempt to stop the controversial coal mine in central Queensland.

    Dr McGrath said the priority in changing Australia's environmental regulations should be focused on establishing and properly resourcing government regulators to enforce the laws we have.

    He used the example of the Murray-Darling, in which an ABC investigation found that many water-pump meters that were supposed to be monitoring the amount of water irrigators were taking from the river, were turned off or not working.

    "The massive problem is that the laws are written on the assumption that they'll be enforced by a regulator that will act on the public good. But they're not," he said.

    "You need a regulator with the power to go onto property and enforce these rules. You've got to have a regulator that wants to do it, that understands that it's their job to do it, and then has the resources to do it."

    Australia has one of the highest rates of fauna extinction in the world, and land-clearing has been on par with some of the world's worst offenders over the last few years.

    Although conservationists don't all agree on the path to getting there, there's a consensus that something needs to change to turn around the dire environmental trajectory of Australia and the world.

    For many such as Dr Chapron, giving nature human rights is the place to start.

    "I think that conservationists have to get bolder. We have to consider that it's self evident that the natural world has rights, and it's a moral wrong to destroy it as we have been doing."

    © 2019 ABC Australian Broadcasting Corporation. All rights reserved

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