Calling all Earth Lawyers
By Paul Powlesland - also available on Counsel Magazine
The Bar prides itself on the fact that it has helped to spread the rule of law and notions of justice around the world. Members of the Bar were crucial in seeding notions of the rule of law, freedom of speech and other fundamental rights into legal systems and constitutions around the world, most notably in the US.
However, the Bar also had a significant role in establishing a far more insidious idea and, through British colonialism, spreading it around the world. This is the idea of nature as mere property, a dead resource from which humans are separated and which can be used however we see fit.
Of all illustrious barristers, few are as revered as William Blackstone, author of the Commentaries that became the foundation of English legal education. Blackstone’s ideas and principles became some of the fundamental features of English common law and thus also of the many countries around the world that have based their laws and legal system on ours.
Blackstone gave the justification for private property rights as:
‘In the beginning of the world, we are informed by holy writ, the all-bountiful Creator gave to man “dominion over all the earth, and over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth.” … The earth, therefore, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the Creator.’
This idea, translated to the modern age, means that we now live in a legal system where an entirely fictional entity that you can create online for £12 in less than an hour has more legal rights and standing than living organisms which pre-date our entire civilisation (sometimes by thousands of years) and which we fundamentally rely on for life.
It is perhaps a testament to the intelligence and creativity of English lawyers that we helped to give rights to fictional entities centuries before extending them to real, living beings. The absurdity of the fact that nature, whether in the form of trees, rivers, animals or birds has no rights or standing while companies and corporations do, has been growing in the consciousness of both radical lawyers and the wider public for decades.
The first work that really caught the public’s attention was Should Trees Have Standing by Christopher Stone, published in 1979. Following on from this, particularly in the last two decades, there has been a blossoming of Rights of Nature discourse, ideas and laws around the world. These range from the constitutions of Ecuador and Bolivia, which recognise the rights of nature, to the granting of rights to rivers in Bangladesh or to the Whangannui River in New Zealand. The idea of Rights of Nature has been developed to encompass many different concepts, including standing, substantive rights, self-ownership and guardianship.
While these developments are to be welcomed, we need to increase the pace at which Rights of Nature are recognised. The idea of nature as mere property and a resource is now arguably a key root cause of many of the interlinked crises (commonly referred to as the Climate and Ecological Emergency) that threaten to kill millions, make huge areas of the world uninhabitable and potentially cause the collapse of our civilisation.
There is no one solution to implement the Rights of Nature, or to bring about a legal system that properly protects nature. Instead, we need an ecosystem of legal interventions from the international level to the local, protecting nature’s rights in the same way that we have a legal framework for protecting humans and their rights.
The Fifth Crime: Ecocide
Starting at the international level, the Stop Ecocide campaign was founded by the late barrister, environmental campaigner and visionary Polly Higgins, and aims to add the ‘missing crime’ of Ecocide to the Rome Statute. The Stop Ecocide campaign has been building support around the world over the past decade, with diplomatic efforts spearheaded by the small island states who have so much to lose from the climate and ecological crisis.
In an exciting development earlier this year, a panel of experts came up with a definition of the crime of Ecocide for the first time: ‘unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment caused by those acts’.
If this definition of Ecocide were introduced as an amendment to the Rome Statute, it would allow Ecocide to be prosecuted at the International Criminal Court. Such a development would have a huge impact in upholding and protecting the Rights of Nature at an international level.
New Zealand are Legislative Pioneers
There are movements towards enacting Rights of Nature at an EU level. Nature’s Rights published Towards an EU Charter of the Fundamental Rights of Nature in 2020. It is hoped that such a charter would embed the Rights of Nature into the EU and its jurisprudence in the same way the European Convention on Human Rights did for human rights.
At the national level, the example of the Whanganui River is particularly instructive, given the similarity of the New Zealand legal system and jurisprudence to that of the UK. By way of the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, the New Zealand Parliament declared the Whanganui River to be ‘a legal person and has all the rights, powers, duties, and liabilities of a legal person’ and the title to the riverbed was vested in the river itself.
When Policy Blocks Progress
While this may seem revolutionary from our perspective in the UK, it seems that the obstacles to us doing the same for the River Thames, River Wye or River Roding are political rather than legal. A key difference between the situation in the UK and that in New Zealand is the existence of the Maori people, who never relinquished their deep connection to their river and demanded its rights be granted in any settlement with the New Zealand government and the Crown.
Crucially, the Maori people, like almost all of the indigenous peoples of the world, never believed in the Western idea of nature as a dead resource to be used, or mere property. To effect such change at a national level in the UK therefore, we need a movement of citizens who connect deeply once again to nature and use their political power within the current system to demand that rights be given to our trees, rivers and wildlife.
The UK is Making Small Steps
At a local level, there have been attempts to introduce the Rights of Nature through local byelaws. Frome Town Council passed byelaws giving rights to the River Frome, although these were subsequently vetoed by central government. There are further moves (particularly in Northern Ireland at the moment) to introduce Rights of Nature at a local level.
Aside from legal and statutory interventions at the various levels, there is also a big role for ordinary people to play, as activists and campaigners for the Rights of Nature and as guardians of the natural world. The role of guardianship is a key part of the legal interventions giving rights to nature around the world.
We All Have a Part to Play
In the UK there is huge potential for ordinary people to act as guardians of the natural world and to protect its rights; whether that’s in upholding the plethora of environmental legislation that already exists but is not enforced, or in taking practical action to restore our rivers and protect nature.
Noting that ordinary people have a role to play in being guardians for nature and making its rights manifest, does not lessen the important role that lawyers can play in bringing about the Rights of Nature. We need to go beyond the usual conception of ‘environmental lawyers’ who apply environmental laws and regulations to the natural world based on who is most willing to pay them.
A Call To Action Like No Other
We need ‘wild lawyers’, ‘lawyers for nature’ or ‘earth lawyers’: those committed to enacting and upholding the Rights of Nature through whatever legal avenues and means that are available. For some, that might be protecting trees, rivers and green spaces through the planning system, for others it might be defending peaceful nature protection activists in court and for others it might be finding clever legal mechanisms to give rivers and other forms of nature legal personality and self-ownership within the current legal paradigm.
Hopefully, many of you reading this might consider what role you want to play. You might be inspired by an existing love of nature to get involved with enacting its rights. You might be tempted towards involvement by the sheer interest of being involved in a new and developing area of law; it feels increasingly clear that the Rights of Nature may well be to the 21st century what human rights were to the 20th century.
The possibilities are legion and there is so much vital work to be done.
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