Rights of Nature: Can we protect our nature by giving it legal rights?

It is known that in nature there are neither rewards nor punishments, only consequences. – Robert G. Ingersoll 

Our natural environment and its protection have been a common centrepiece in most policy decisions throughout the last couple of years. A few days ago, the Maltese Government launched a public consultation document outlining Malta’s economic vision for the upcoming 10 years whereby the environment featured as one of the five main pillars underpinning the same vision. Bearing this in mind, as a society we often question how we can balance societal and economic interests on the one hand and the protection of our natural environment on the other. This submission intends to explore this balance further by proposing the concept of assigning legal rights to our natural environment and analysing how this was implemented around the world.

The concept of assigning a set of legal rights to our natural environment seeks to give our natural environment the same legal standing as us humans and challenge the century-old anthropocentric legal frameworks. By assigning rights to our natural environment, our environment is no longer treated as an object to be used and exploited by humans but as an equal to us humans. At face-value one may deem this a no-brainer however in order to understand the implications of this concept, one would do best to analyse it in practice.

Nature Rights in Practice: The Ecuadorian Experience

Ecuador was one of the first nations to promulgate and enshrine these legal rights to their natural environment. Following a successful referendum in favour of amending the Ecuadorian constitution to recognise nature, so called ‘Pacha Mama’, the Preamble section of the Ecuadorian Constitution was amended to describe the natural environment as ‘vital for our existence’ and a ‘new form of coexistent citizenship, in diversity and in harmony with nature, to achieve the good life’ was established. Article 72 of the same Constitution goes further by enshrining that ‘Nature has the right to be restored [and] in those cases of severe or permanent environmental impact, including those cause by the exploitation of non-renewable natural resources, the State shall establish the most effective mechanisms to achieve the restoration and shall adopt adequate measures to eliminate or mitigate harmful environmental consequences’.

Who and How Can Someone Invoke Nature’s Rights Successfully?

A famous case which exemplified the practicality of prescribing rights to the natural environment was the Vilcabamba River case. The case revolved around a project widening the Vilcabamba-Quinara road, during which project vast quantities of excavation materials ended up being deposited in the Vilcambama River which in turn caused an increase in the river flow and subsequently caused the river to overflow, causing further erosion of the riverbanks. The real significance of the Court’s decisions was in the fact that the Court departed from the traditional anthropocentric value-system and recognised nature as a rights holder and established that the project had violated the constitutional rights of the natural environment.

It is to be noted that according to the Ecuadorian model all ‘persons, communities, people and nations’ can ‘call upon public authorities to enforce the rights of nature’ which means that every Ecuadorian citizen has the right or capacity to bring an action (the legal locus standi) to enforce the natural environment’s rights. This framework incorporates an actio popolaris mechanism whereby all citizens are tasked with the responsibility of acting as the ‘guardian’ of the natural environment and its rights.

Nature Rights in Practice: The New Zealand Experience

An alternative model would be the ‘Guardianship’ framework which has been implemented in various countries such as New Zealand. Professor Christian D. Stone, who is one of the main proponents of this concept, advocates for the setting up of a guardianship model to represent the natural environment’s rights by creating a ‘continuous supervision over a period of time [and] assure the courts that the plaintiff has the expertise and genuine adversity in pressing a claim which are the prerequisites of a true ‘case or controversy’’. According to Professor Stone, the concept of prescribing rights to nature should incorporate three constituent elements: the ‘environment’, or rather its guardian, ‘can institute legal actions at its behest’, ‘that in determining the granting of legal relief, the court must take injury to it into accounts’ and ‘that relief must run to the benefit of it’.

In New Zealand’s Te Uruwera Act of 2014, the forest is also prescribed its own legal personality ‘and has all the rights, powers, duties and liabilities of a legal person’, in order to ensure that the forest is and remains ‘a place for public use and enjoyment’. However, the Act prescribes that the forest’s legal personality ‘must be exercised and performed on behalf … Te Urewera by the Te Urewera Board and in manner provided for in this Act’. The Board is responsible for a number of functions such as management of the area, ongoing monitoring as well as proposing any sort of modifications to the Te Urewera forest. The spirit of co-management and governance is also a distinctive feature of the New Zealand model whereby unanimous decision-making or consensus decisions are the norm to ensure that all decisions are compromise-driven to ensure that all Board members and therefore all stakeholders support the decisions taken.

Quo Vadis Malta?

Drawing back to the local scene, according to Article 9 (2) of the Maltese Constitution the ‘State shall protect and conserve the environment and its resources for the benefit of the present and future generations’. However, the Article is limited in its enforceability found under Article 21 of the same Constitution which declares that provisions under the Declaration of Principles ‘shall not be enforceable in any court but the principles therein contained are nevertheless fundamental to the governance of the country’. This can also be seen in the Environment Protection Act (Chapter 549 of the Laws of Malta) and the Development Planning Act (Chapter 552 of the Laws of Malta).

Environmental protection as a concept is already present, in various forms and means, in our current legislative framework. However, it is also abundantly clear that Maltese society as a whole desires that more must be done in order to protect our natural environment and its conservation. May this publication serve as an inspiration as well as a call to our legislators on both sides of the aisle to reflect their electorate’s wishes and legislate on the matter by elevating these ‘principles’ to a set of legally enforceable provisions which provide for legal recourse and thus providing a higher degree of accountability and enforceability. While it is to be noted that this will not in and of itself save all our natural environment’s conservation problems, it can be a much-needed tool whereby State authorities as well as natural and legal persons can be held accountable for their actions or omissions affecting our natural environment and provide adequate compensation for its wellbeing, conservation and regeneration.

May we one day live in a society which recognises and provides legal protection to the ‘extreme and radical’ idea of adequately safeguarding our natural environment. 

 

Dr Nathaniel Falzon is a lawyer with an avid interest in anything thought-provoking.

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