This factsheet is intended as a plain English explanation of a particular area of law. Whilst all care has been taken in its preparation, it is not a substitute for legal advice as legal details have been omitted to provide a brief overview of this area of the law. If you require legal advice relating to your particular circumstances you should contact EDO or your solicitor.

Overview

Jurisdictions across the world have taken varying approaches to grant increased legal protections to nature including legal personality for natural ecosystems and rights to nature. This fact sheet explores the varying approaches of next generation nature laws in the aim of identifying an approach which may be implemented in Australia to protect the Great Barrier Reef and other natural ecosystems.

The Great Barrier Reef is under threat

Queensland’s Great Barrier Reef (‘GBR’) is one of the seven natural wonders of the World. World Heritage-listed for its ecological significance, exceptional biodiversity and natural beauty; the GBR is the world’s largest coral reef ecosystem. In 2019 the outlook of the GBR was categorised as ‘very poor’(1) due to devastating losses from climate change, coral bleaching, coastal development, agriculture irrigation and chemical run off, increased shipping traffic and port expansions. These impacts are killing the balance of the ecosystem and decreasing the natural habitat of the significant species that directly contribute to the GBR’s health and wellbeing. Each of these has a negative effect on the GBR’s resilience and significantly extends its recovery cycle.

Who stands for the Reef’s protection?

The Government of the day, both State and Federal, is obligated to weigh economic benefits against environmental degradation as one of its priorities when making decisions such as permitting activities that may harm the GBR. Marine Park Authorities manage activities within the GBR but are funded by the same bodies that make economic decisions, causing conflict in their decision-making process.

How can the Great Barrier Reef be protected?

The Australian Panel of Experts on Environmental Law (‘APEEL’) has stated (through a series of reports(2))that lawmakers in Australia should explore ‘rights of nature’ and ‘legal personhood’ for nature laws as a means to protect the GBR. Many countries across the world are now adopting either approach, including New Zealand, Ecuador, and the US, just to mention a few.

What’s the difference between ‘rights of nature’ and ‘legal personhood’ for nature laws?

Rights of Nature laws recognise that the living world has a right to exist, thrive and evolve and also that it is not an object or human property (in other words, it recognises that nature has a set of rights that must be respected and enforced).

Legal personhood for nature laws, on the other hand, make certain elements in the living world, such as rivers and mountains, to have rights at law (in other words, it gives them ‘standing’.(3)

Differences between these two concepts is important because ‘legal personhood’ for nature laws recognise that nature has the same rights, duties and liabilities as a person or corporation, and can technically be sued for damage it causes etc., whereas the Rights of Nature approach does not see placing ‘liabilities’ on the natural world as necessarily relevant.(4)

International approaches to nature laws

Many countries around the world have adopted one approach or the other. Examples that can be quoted are the following:

a.Rights of Nature:

  • United States of America: a local government in US was the first jurisdiction in the world to adopt a ‘rights of nature’ approach through a series of local ordinances drafted thanks to the advice provided by the Community Environmental Legal Defense Fund (CELDF). A notable example is the Lake Erie Bill of Rights,(5) which was passed on February 2019.(6)
  • Ecuador: several provisions included in the 2008 Ecuadorian Constitution recognise the inalienable rights of ecosystems, give individuals the authority to petition on the behalf of ecosystems, and require the government to remedy violations of nature’s rights, including ‘the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution’. More importantly, it states that ‘nature shall be the subject of those rights that the Constitution recognises for it’ (Article 10).
  • Bolivia: this country has given ‘nature’, through national legislation passed in 2010 and 2012,(7) the same rights as enjoyed by humans.

b.Legal personhood

  • New Zealand: in New Zealand, three ecosystems have been recognised as right-bearing entities, holding ‘personhood’ status: the Te Urewera forest (formerly a national park), the Whanganui River and Mount Taranaki.
  • Colombia: through one important decision (T-622 of November 2016), the Constitutional Court of this country has recognised legal personality of the Atrato River. This decision was adopted in a complex case about illegal mining, in which several fundamental rights were at stake.
  • India: the High Court of Uttarakhand in India recognised the legal personality of the Ganga and Yamuna rivers. Shortly afterwards (through another decision), the same court extended legal personality to the glaciers that feed these two rivers, as well as associated ‘rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests wetlands, grasslands, springs and waterfalls’.(8)
  • Bangladesh: In January 2019, the High Court of Bangladesh granted the Turag river the status of ‘legal person’ to save it from encroachment, and also stated that such status will be applicable for all rivers across the country.(9)

The situation in Australia

In Australia, there has not been any judicial decision or law that recognises rights of nature or legal personality of natural resources. Nevertheless, different First Nations initiatives and law reform include reference to the Rights of Nature.

Three of these are the Fitzroy River Declaration, the Union of Sovereign First Nations of the Northern Murray-Darling Basin, and the Yarra River Protection (Wilip-gin Birrarung Murron) Act2017 (Vic).The importance of this Act lies on the fact that ‘…it identifies the Yarra River and the numerous parcels of public land it flows through as one living, integrated natural entity for protection and improvement’.(10) Furthermore, it gives the Wurundjeri people a voice in its management and protection.

These approaches, especially the last one, could be important for the adoption of next generation nature laws that recognise protection of the GBR.

Where to from here?

Different countries have adopted different approaches to protect nature in general, or specific natural resources. In Australia, there has not been any judicial decision or legal instrument that recognises, specifically, legal personality of natural resources. Nevertheless, local communities have started to express their concerns about damage to specific natural resources and the Victorian Government has already acknowledged that the Yarra River has a certain set of rights.

When formulating next generation nature laws, the protection of natural resources should take into account the rights of Aboriginal and Torres Strait Islander peoples’ rights. In this context, it is advisable to work with local First Nations Peoples to support their efforts to be recognised as custodians of their traditional estates and other initiatives that recognise sovereignty.(11)

References

  1. Great Barrier Reef Outlook Report 2019
  2. APEEL reports may be found here: http://apeel.org.au/papers
  3. This last approach is largely based on the approach taken by Christopher Stone, who, in 1973 wrote ‘Should Trees Have Standing? Toward Legal Rights for Natural Objects’, arguing that the environment itself should have standing to sue to protect itself.
  4. Michelle Maloney, ‘Rights of Nature 2018. Information for Australian Communities’, Australian Earth Laws Alliance: https://rightsofnature.org.au/wp-content/uploads/2018/06/Rights-of-Nature-2018_Information-for-Australian-communities_20-June-2018.pdf, page 8.
  5. See https://celdf.org/2018/12/press-release-rights-of-lake-erie-one-step-closer-to-the-ballot-one-step-closer-to-recognition/.
  6. See ‘Lake Erie Bill of Rights headed to Feb. 26 ballot’. The Blade(Newspaper), 21stDecember 2018: https://www.toledoblade.com/local/environment/2018/12/20/lake-erie-bill-of-rights-headed-to-february-ballot/stories/20181220139.See also Samuel Sigal, ‘Lake Erie just won the same legal rights as people’. Vox(Newspaper), 26 February 2019: https://www.vox.com/future-perfect/2019/2/26/18241904/lake-erie-legal-rights-personhood-nature-environment-toledo-ohio.
  7. The 2010 Law of Mother Earth (Ley de Derechos de la Madre Tierra,Law 071) and the 2012 Framework Law on Mother Earth and Integral Development for Living Well(Ley Marco de la Madre Tierra y Desarrollo Integral para Vivir Bien, Law 300), respectively.
  8. Lalit Miglani v State of Uttarakhand & others (30 March 2017), WP (PIL) 140 of 2015 (Uttarakhand High Court, India). See also Renata Colwell and Savannah Carr-Wilson, ‘Legal Personality of Natural Features: Recent International Developments and Applicability in Canada’, Environmental Clinic, University of Victoria, September 2017: http://www.elc.uvic.ca/wordpress/wp-content/uploads/2018/05/2017-02-03-LegalPersonalityNatural-Features_web-version.pdf, page 15.
  9. Turag given ‘legal person’ status to save it from encroachment’ Dhaka Tribune(Newspaper), 3 April 2019: https://www.dhakatribune.com/.
  10. ‘Yarra River Protection (Wilip-gin Birrarung murron) Bill passes’, Imagine the Yarra(28 September 2017): https://imaginetheyarra.com.au/news/bill-passes.
  11. Maloney, supra n 2, page 13

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