Harnessing the law to ensure that humans respect all of nature and its ecological limits

[Lisbeth]

By Cormac Cullinan - 16 Mar 2023
Cormac Cullinan is a director of Cullinan & Associates Inc. He is the author of “Wild Law: A Manifesto for Earth Justice”, and founder and director of the Wild Law Institute, which advances and defends the Rights of Nature.

Current legal systems are inadequate to protect life on Earth. We need to find a new way: one that recognises and respects the inherent value of our natural world and reorients legal systems towards guiding people to co-exist harmoniously within nature.
_____________________________________________________________________________________________________________________________
For centuries, many societies have treated the natural world as a resource to be exploited and controlled. Political, economic and legal systems that define nature as baskets of commodities for people to use and trade became entrenched.

This legitimised and accelerated the destruction of nature and gave rise to disastrous consequences such as the climate crisis, the biodiversity crisis and the Covid-19 pandemic.

Reversing this harm will require recognising the reality that nature and everything it encompasses – from animal and plant species to rivers, mountains, oceans and more – are not simply objects which exist for our use. They co-evolved with us within the community of life that sustains us all, and they have inherent rights to exist, just as we have inherent human rights.

The worsening impacts of the climate crisis and environmental degradation make it alarmingly clear that current legal systems are inadequate to protect life on Earth.

We need to find a new way: one that recognises and respects the inherent value of our natural world and reorients legal systems towards guiding people to co-exist harmoniously within nature.

This approach, known as Earth Jurisprudence (EJ), has ancient roots in indigenous traditions that revered nature, recognised its interconnectedness with human life and considered nature a living entity.

Protecting nature’s rights

Recognising and respecting the Rights of Nature (RoN) is one way of applying EJ. EJ and RoN recognise the reality that all beings and systems in the natural world are interconnected, interdependent and advocate that legal systems should recognise and protect their rights to exist, and fulfil their ecological roles.

Today, the RoN approach is fast gaining momentum globally as it becomes clearer that existing governance systems are failing to protect and preserve the natural world for future generations – of all species. The United Nations Harmony with Nature programme tracks how EJ is transforming legal systems, as the recognition of human rights once did.

RoN is already recognised by a number of countries (including in Ecuador’s constitution) and the approach is beginning to win global recognition.

In December 2022, at the biodiversity COP15, nearly 200 countries signed off on the landmark Kunming-Montreal Global Biodiversity Framework which commits them to protecting 30% of land and sea area by 2030. The progressive framework is also the first international agreement to refer to the value of implementing Rights of Nature.

Through the work of the Wild Law Institute and the Biodiversity Law Centre, RoN language has already found its way into South African draft policy, specifically the draft white paper on sustaining our country’s biodiversity, but much work remains to be done.

Most of the human activities that are causing the climate crisis are perfectly legal. Because nature does not have rights, there is no universal duty on people, governments and companies to avoid harming nature (for example, by causing climate change).

If human activities are causing serious disruptions, unless those responsible can convince a court that the disruption is essential to protect important human rights, the court could stop them on the basis that they unlawfully contravene Rights of Nature.

In legal systems that recognise RoN, lawyers can represent and defend ecosystems, rivers and wildlife in court just as we protect humans against human rights violations.

Recognising that nature is a community of subjects also requires us to consider how we relate to them, and to take their interests into account when making decisions.

Read more in Daily Maverick:

Rights of Nature’: A fundamental challenge to the world as we know it

Everything is linked to money’ – lawyers discuss Mantashe’s upcoming appeal against Shell oil and gas exploration ruling

It is going to take many tools to tackle the climate crisis, including conserving our planet’s most biodiverse ecosystems. According to the RoN, an ecosystem is entitled to legal personhood status and as such, has the right to defend itself in a court of law against harms, including environmental degradation caused by, for example, a development project or climate change. Already, a number of RoN cases explicitly relate to climate change.

Ensuring respect

RoN laws typically recognise that an ecosystem has the right to exist, flourish, regenerate its vital cycles and naturally evolve without human-caused disruption. If human activities are causing serious disruptions, unless those responsible can convince a court that the disruption is essential to protect important human rights, the court could stop them on the basis that they unlawfully contravene RoN.

In this way courts can be used to ensure that humans act in ways that respect all of nature and ecological limits. It also creates more powerful legal tools to address the climate and biodiversity crises simultaneously.

Read more in Daily Maverick: Horrific cruelty – legal trade and lack of protection are decimating South Africa’s primates

Nature rights are often associated with human rights, especially the right to a clean and healthy environment. Over the past decade, courts, legislatures and various bodies of government in countries around the world have sought and won ecosystem protection through nature rights, including in New Zealand, Canada, several cities in the US, Ecuador and Pakistan.

On 1 March 2023, The Guardian reported that the River Ouse is on course to be the first river in England to be granted legal rights, as part of a growing movement in that country to bolster protection for nature through the law.

Better solutions, approaches and ideas to the planetary crisis are needed, so it is encouraging to see these examples of nature placed in its rightful, central position through the recognition of the Rights of Nature. OBP/DM

https://www.dailymaverick.co.za/opinion ... of-nature/