Under our law both nature and non-human animals are property, which by definition can be bought, sold, exploited or destroyed in satisfaction of human preferences. The notion of ‘rights for nature’ is an emerging theory of law termed Earth Jurisprudence which challenges us to shift our thinking and law to an Earth centred approach.
Currently in Pennsylvania five separate municipalities, encompassing a population of more than 20,000 people, have passed ‘rights for nature ordinances’ which state that “[n]atural communities and ecosystems possess inalienable and fundamental rights to exist and prosper, and no corporation or business entity – or persons acting in corporate or business capacities – shall deny those rights, or interfere with the vitality or functioning of those communities or ecosystems”.
Local community groups are provided legal standing to sue for the enforcement and protection of these rights1.
Environmental regulation
This radical shift in law has been driven by a growing recognition that a regulatory approach to environmental protection is inadequate and indeed in the past 40 years since the first legislation was passed, environmental harm has actually increased. While this is consistent with growth in technology and industry it also points to systemic weaknesses inherent to our legal system. The greatest weaknesses to regulation are that once an activity is prescribed by legislation it is acceptable. Often the greatest protection available to communities is to ensure a company has obtained the appropriate licences and ticked the right boxes. Further, a regulatory or responsive approach does not challenge and in fact perpetuates the underlying presumptions of western law i.e. that nature exists for human benefit; law exists to protect and ensure the wellbeing of humans; nature is property. Finally, companies can override environmental protection laws i.e. Roxby Indenture Ratification Act 1982 (SA).
Nature in western jurisprudence
In order to move away from this responsive, defensive and arguably ineffective regime, we must understand the status of nature in western jurisprudence. Under our law both nature and non-human animals are property, which means that they are legal objects, which by definition can be bought, sold, exploited or destroyed in satisfaction of human preferences. They receive their protection through the property rights of human beings, not because they have recognised interests. People were once property and treated in exactly the same manner. In response, the abolitionists did not ask for a ‘slave protection agency’ – they sought recognition of their rights in law. Securing rights means not fiddling around with regulating how that property can be used, but instead, it means changing the very framework of governance that defined those things as propertyin the first place. This has been the1 great tactic of all successful movements and has caused Pennsylvania lawyer Thomas Linzey to state, “there has never really been an environmental movement”.
The right of nature
The notion of ‘rights for nature’ is captured in an emerging theory of law termed Earth Jurisprudence which challenges us to shift our thinking and law from a human-only orientation to an Earth centred approach, based on an understanding of ourselves as an inextricable part of Earth’s living system. This is premised on an understanding that law and governance should protect the wellbeing and integral functioning of the planet so that all components of the Earth Community live in healthy ecosystems that sustain the diversity of the natural world. To this end, Earth Jurisprudence calls for a revision of law so as to foster mutually enhancing relationships among humans and nature, based on reciprocity, restraining potentially damaging human activities and recognising the rights of nature.
From 16-18 October 2009 Friends of the Earth, in partnership with the Conservation Council of South Australia and the University of Adelaide, Faculty of Professions, Research Unit for the Study of Society, Law and Religion (RUSSLR) will be hosting Australia’s first conference on Earth Jurisprudence. At this early stage we can confirm the following speakers: Dr Paul Babie, Associate Dean (Research), Director or RUSSLR, University of Adelaide, School of Law; Elizabeth Rivers, UKELA and Coordinator of their Earth Jurisprudence Conference; Rebecca Butler, Anindilyakwa Land Council NT; Julia Pitts, National Environmental Law Association, ACT Government; and Mark Parnell, MLC Australian Greens.
Peter Burdon is a PhD candidate at the University of Adelaide, School of Law; coordinator of Friends of the Earth Adelaide. He sits on the board of the Conservation Council South Australia and the University of Adelaide, Research Unit for the Study of Society, Law & Religion. His thesis is on Earth Jurisprudence and its application to Australia.
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