Sunday, 28 October 2018

Legal rights for nature: understanding the paradox

I had the pleasure of delivering a keynote presentation at the Australian Earth Laws Alliance international symposium on the legal status of nature in Brisbane last week.

It was an honour to share the stage with leading international researchers and activists who have been advocating for more effective legal protection of the environment for decades, including Cormac Cullinan, Klaus Bosselmann, Michelle Maloney, Professor Mary Graham, Justice Brian Preston, and Jacinta Ruru.

The AELA conferences are always a joy to attend, particularly since they have been hosted at the Griffith University Eco-centre on the beautiful Nathan campus. There is a great mix of academics (both Australian and international), as well as community groups, and, increasingly, First Nations and Indigenous peoples.

Understanding and improving the legal status of nature requires a deeper understanding of First Nations law and ethics, which emphasise an ongoing relationship with land and water. It was a particular privilege to hear Professor Graham's discourse on the changing ethic of our collective relationship to country, as we move from a survivalist ethos (which often places us into conflict and competition with each other, and nature) into a relational ethos that emphasises our relationship with nature, and our obligations to nature.

I presented my research findings on the unexpected challenge that can arise when nature's rights are recognised in a Western legal framework (with its emphasis on individuality), and the paradox which can result: increasing nature's legal rights can weaken the willingness of communities to protect nature.

The paradox of legal rights: as legal protection goes up, this can lead to increasing complacency and an abdication of our responsibilities to look after the environment
Understanding this paradox requires going back to basics, and considering how the environment has been constructed in law over time. My new book explores this in detail, concluding that although there are myriad and widely different definitions of the environment in law, there are three main constructions of the environment in law: (1) a socio-ecological concept, (2) a legal object, and, most recently, (3) a legal subject.

Understanding the paradox of legal rights for nature requires an understanding of how the environment is constructed in law
By focusing on the way the environment is constructed in law, we can also start to identify the underlying cultural narratives, and the way those narratives can shape our legal response (and even drive legal reform). The legal object has no rights of its own, and links the concepts of legal weakness with the idea of being 'worthy' of protection. Alternatively, the legal subject does have legal rights, and transforms this narrative into one where the environment can, and thus should, look after itself. These tensions have specific consequences for the environment, because of the initial construction as a highly flexible socio-ecological concept - it can be whatever it is defined to be, but it is only ever what we articulate it to be. As a result, the overarching concept of what the environment is, and why it matters, is highly vulnerable to shifting social values. Changing cultural narratives can lead to large shifts in law.
Tensions between the different constructions of the environment in law can lead to significant shifts in the broader socio-ecological concept
This paradox is not, of course, a foregone conclusion of granting legal rights to nature. The rivers that have received legal rights over the past couple of years have taught us some important lessons.

We can mitigate this paradox by:
(1) centering First Nations values and perspectives, as happened for the Whanganui River;
(2) connecting people and place, as happened for the Rio Atrato in Colombia; and
(3) explicitly engaging in (and continuing) the difficult questions of why the environment needs protection, as well as how it can best be achieved, as happened in the Yarra River, Australia.

We can also mitigate the paradox by ensuring that when rivers are expected to compete for their own outcomes, and look after themselves, that they have adequate institutional support to give those legal rights force and effect, including funding, organisational identity, and governance arrangements.

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