Biodiversity and Wild Law. Peter Burdon PhD Student, University of Adelaide, School of Law

Transcription

1 Biodiversity and Wild Law Peter Burdon PhD Student, University of Adelaide, School of Law

2 Outline 1. Introduce emerging movement in Wild Law. 2. Outline international developments recognising the rights of nature. 3. Explain the potential benefits of this approach for Australia.

3 Origin Earth Jurisprudence was first proposed by the late geologian Thomas Berry in The Dream of the Earth (1988); The Universe Story (1992); The Great Work (1999) &Evening Thoughts (2006)

4 International Network United States St Thomas and Berry University, Center for Earth Jurisprudence: Yale University, Forum of Religion and Ecology, Thomas Berry: Community Environment Legal Defence Fund: United Kingdom Earth Jurisprudence Resource Center: United Kingdom, Environmental Law Association: The Gaia Foundation: Schumacher College: Trees have Rights Too: Africa The African Biodiversity Network: Enact International: India Navdanya & Earth Democracy:

5 Wild Law in Australia

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7 Environmental Crisis UN Millennium Ecosystem Assessment Conducted in 2001, involved 1300 scientists from 71 countries. Assessment found that every living system in the biosphere was in a state of decline and the rate of decline is increasing. It further estimated that humans are responsible for the extinction of between 50 and 55 thousand species each year, a rate unequalled since the last great extinction, some 65 million years ago. See For updated information see World Watch Institute, Lester R Brown, Plan 4:0 Mobilizing to Save Civilization (2009).

8 Oil spills, endangered species, ozone depletion and so forth are presented as separate incidents and the overwhelming nature of these events means that we seldom look deeper. But these issues are analogous to the tip of an iceberg, they are simply the visible portion of a much larger entity, most of which lies beneath the surface, beyond our daily inspection. John Livingston, Arctic Oil: The Destruction of the North? (1981)

9 Anthropocentrism The Deepest cause of the present devastation is found is a mode of consciousness that has established a radical discontinuity between the human and other modes of being. Thomas Berry, The Great Work (1999) 4. Elements: Human beings are the central fact of the universe. Final aim and end of theuniverse. The earth exists to satisfy human needs and desires.

10 The Great Chain of Being Plants exist for the sake of animals, the brute beasts for the sake of man - domestic animals for his use and food, wild ones for food and others accessories of life, such as clothing and various tools. Since nature makes nothing purposeless or in vain, it is undeniably true that she has made all animals for the sake of man. Aristotle ( B.C.)

11 Connection to Nature Even to think we are separated from nature is somehow a thinking disorder *y+ou can t be separated from nature. Why we think that way is the interesting thing. James Hillman, The 11 th Hour (2007).

12 Should Trees Have Standing? What would a radically different law-driven consciousness look like?...one in which Nature had rights Yes, rivers, lakes, trees and animals? Christopher D Stone, Should Trees Have Standing: And Other Essays on Law, Morals and the Environment (1996) vii.

13 Community Environment Legal Defence Fund What our experience showed us was that our system of environmental laws and regulations don t actually protect the environment. At best, they merely slow the rate of its destruction. After several years, we stopped doing that work. We weren t helping anyone protect anything. -CELDF Associate Director Mari Margil

14 Regulating the Environment As conventional, traditional environmental attorneys...our job was to appear before the administrative law judge and argue over the permit. We d say: Your honor, this permit is missing what s required by 26 CFR, Section little 2, little c, little i, little a, little 2d...The judge would look back at us a number of times, and he d say: You re absolutely right. Little 2, little c, little 2, little d, little 2, little a is missing from this application. I m going to throw the permit out because it s not complete. The community group would invite us to the home of one of the leaders of the group, and we d have a victory party.

15 Three months later something curious would happen...the corporation would resubmit the application, and this time those gaps and omissions we had identified in the permit application weren t there anymore. The community group would come back to us...but we had to look at them and say: There s nothing we can do for you. All the gaps in the application are filled in...two months later...there was the toxic-waste incinerator in their community. This story was repeated more times than I care to remember. -CELDF Associate Director Thomas Linzey

16 Long-wall Coal Mining: Blaine Community, Pennsylvania, USA. Six to eight hundred feet below the earth's surface, depending on the seam, a machine moves across the face of the coal, grinding it up at tremendous speed. After the machines come through and remove the coal, the earth drops three to six feet above the seam. This is called subsidence. Thomas Linzey, Be the Change (2009) 5.

17 Blaine Ordinance ecosystems including wetlands, rivers, and streams, possess inalienable and fundamental rights to exist and flourish within the Township of Blaine. Further provisions provide that: The people of Blaine had the ability to defend the rights of ecosystems without having to prove standing; Damages are measured by harm caused to the ecosystem itself.

18 Barnstead, New Hampshire Natural communities and ecosystems possess inalienable and fundamental rights to exist and flourish within the Town of Barnstead. Ecosystems shall include, but not be limited to, wetlands, streams, rivers, aquifers, and other water systems.

19 Spokane, Washington Ecosystems, including but not limited to, all groundwater systems, surfacewater systems, and aquifers have the right to exist and flourish. River systems have the right to flow and have water quality necessary to provide habitat for native plants and animals, and to provide clean drinking water. Aquifers have the right to sustainable recharge, flow, and water quality.

20 Constitution of Ecuador In 2007, Ecuador began the process of drafting a new constitution. We thought that we d have an uphill battle trying to explain to this former minister of energy and mines why communities in the U.S. were adopting laws recognizing ecosystem rights. But before we had a chance to say anything, he told us that to his mind, the law treats nature as a slave, with no rights of its own. We had found a meeting of the minds in one of the most unlikely, but most critical of places. -CELDF Associate Director Mari Margil

21 Constitution of Ecuador Art. 1: Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. Every person, people, community or nationality, will be able to demand the recognitions of rights for nature before the public organisms. The application and interpretation of these rights will follow the related principles established in the Constitution. Article 2: Nature has the right to an integral restoration. This integral restoration is independent of the obligation on natural and juridical persons or the State to indemnify the people and the collectives that depend on the natural system. In the cases of severe or permanent environment impact, including the ones caused by the exploitation of non-renewable natural resources, the State will establish the most efficient mechanisms for the restoration, and will adopt the adequate measures to eliminate or mitigate the harmful environmental consequences.

22 UN Declaration of Planetary Rights Mother Earth has the right to exist, to persist and to continue the vital cycles, structures, functions and processes that sustain all beings. Every being has: the right to exist; the right to habitat or a place to be; the right to participate in accordance with its nature in the everyrenewing processes of Mother Earth; The right to maintain its identify and integrity as a distinct, selfregulating being; The righto be free from pollution, genetic contamination and human modifications of its structure or functioning that threaten its integrity or healthy functioning; and The freedom to relate to other beings in accordance with its nature.

23 Application to Australia Throughout legal history, each successive extension of rights to some new entity has been, thereto, a bit unthinkable each time there is a movement to confer rights onto some new entity, the proposal is bound to sound odd or frightening or laughable. This is because until the entity in question is recognised as having rights, we cannot see it as anything but a thing for the use of us those who are holding rights at the time. Christopher D. Stone, Should Trees Have Standing? Toward Legal Rights for Natural Objects (1972)8.

24 Rights and Human Responsibility Recognising the rights of nature, place duties on human beings. Greatest consequence is for human property rights. The concept of rights only has meaning in the context of human interaction.

25 Competing Rights There are two ways to resolve such a dispute: 1. Human beings exist as one part of the greater living system, and that the health and functioning of this system is primary. 2. Rights more accurately can be described in terms of relationships i.e. whenever somebody has a right, someone has a duty, whenever someone has a power, someone has a liability and visa versa.

26 Conclusion Here s to the crazy ones. The misfits. The rebels. The troublemakers. The round pegs in the square holes. The ones who see things differently. They re not fond of rules, and they have no respect for the status quo. You can quote them, disagree with them, glorify, or vilify them. About the only thing you can t do is ignore them because they change things. They push the human race forward. And while some may see them as crazy, we see genius. Because the people who are crazy enough to think they can change the world, are the ones who do. -Jack Kerouac

27 Additional Resources Contact: UK Environmental Law Association, Wild Law, Is There Any Evidence of Earth Jurisprudence In Existing Law and Practice (2009) Thomas Berry, The Great Work (1999); Evening Thoughts (2006) Peter Burdon, Wild Law: Essays in Earth Jurisprudence (forthcoming 2010) Cormac Cullinan, Wild Law: A Manifesto for Earth Justice (2002) Aldo Leopold, A Sand Country Almanac (1966) Thomas Linzey & Anneke Campbell, Be The Change: How to Get What You Want in Your Community (2009) Roderick Nash, The Rights of Nature (1986) Christopher D. Stone, Should Trees have Standing? And Other Essays on Law, Morals and the Environment (1996)