Rights of nature
4th May 2023
The looming climate catastrophe has engendered the ‘Rights of Nature’ movement, which strives to redefine the relationship between humanity and the world we inhabit, arguing that the natural world is a living entity with legal ‘personhood’ and the same rights as humans to survive and thrive.
Climate change and ecological deterioration
Chances are that you have experienced or know someone who has experienced a climate-induced weather event – whether this is a bushfire, flood, cyclone or drought. (See ‘Drought, flood, bushfire and insurance risk – the impact of climate change on property transactions’.)
The health of our global ecological communities continues to deteriorate. Land users, scientists, policymakers, academics, and activists are all too aware that biodiversity is heading towards catastrophe. Fortunately, it is not too late to change the fundamental relationship between humanity and the natural world to protect our environment for future generations.
What is the Rights of Nature movement?
The Rights of Nature movement asserts that humanity is just one member of the earth’s wider community, alongside plants, animals and living environments, like mountains, rivers and reefs.
The movement argues that humankind depends on a healthy and interconnected relationship with all other life on the planet. This world view places Mother Earth at the centre of the relationship, with humans and the earth’s flora, fauna and ecosystems forming an interconnected web of support networks.
Across academia and the law, there is growing recognition that we must fundamentally change the relationship between our own species and the natural world. Making this fundamental shift means recognising our dependence on nature and respecting our need to live in harmony with the natural world. It also means legislating to recognise and protect nature.
Current classification of animals under Australian law
Animals have been classified as property under Australian law since the country’s colonisation by the British. The legal status of animals across the country is a legacy of the colonial common law system, which saw everything categorised as a person, thing or action.
Under this system, animals are ‘things’ that can be owned by humans with little recognition or protection of their rights. (See ‘Is your companion animal your property? Or a beloved family member?’ and ‘The dog’s mine – you get the goldfish’.)
Australian laws changing in response to community sentiment
While society is indisputably less tolerant of animal cruelty than it was 50 years ago, domestic animals remain their owner’s property.
The law regarding the ownership of wild animals differs – they cannot be classed as property, although little is done to protect their rights.
However, as community sentiment changes, so do our laws. For example, the ACT recently became the first jurisdiction in Australia to recognise legally that animals are ‘sentient beings’ in an amendment to its Animal Welfare Act 1992. Section 4A notes that animals can ‘subjectively feel and perceive the world around them’, something every pet owner and farmer already knows.
A way to protect the natural world
But what would happen if animals and plants, even nature, had legal rights?
This notion, giving nature the same legal rights as humans to exist and flourish, is gaining popularity as a strategy to protect the natural world from destructive forces such as climate change and overdevelopment.
As argued by the Australian Earth Laws Centre:
‘nature deserves to be valued for its own inherent worth. Legally recognising the rights of nature is not about ‘conferring rights’ on nature but giving legal recognition to what is already there. Recognising that the natural world is just as entitled to exist and evolve as we are, necessarily changes how humans act. We can refer to Earth-centred cultures around the world for guidance as to how humans treat the natural world when they see themselves as merely part of it – rather than the masters of it’.
Many First Nations cultures see plants and animals as relatives, members of an interconnected community of life that is self-sustaining and deserves respect. Such societies draw from the natural world in order to live, but do not harvest more than the natural system can sustainably provide.
Global Rights of Nature movement gaining momentum
As the Rights of Nature movement continues to gain momentum both locally and globally, nations around the world are taking steps to create new laws granting nature similar fundamental rights to humans. The first notable breakthrough occurred in 2008 in Ecuador, where courts of law provided constitutional rights and protections to the environment to ‘exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution’. Other countries have since followed suit, with Bolivia passing similar laws that recognise the rights of Mother Earth.
New Zealand grants personhood status to Whanganui River
Closer to home, in 2017 New Zealand granted ‘personhood’ status to the Whanganui River.
This ground-breaking and generational shift in legislation arose from the negotiations of the Treaty of Waitangi. New Zealand’s laws recognise First Nations peoples’ deep cultural connections with the river and its surrounding environment. The effect of the Treaty was that the river is now deemed to be a living being – from its mountain streams to the sea, including its physical elements and deep cultural heritage.
New Zealand and India set example for Australia
Around the same time as the breakthrough legislation in New Zealand, India’s High Court granted personhood status to the Ganges River, arguably paving the way for Australia’s most iconic river system, the Murray Darling Basin, to be granted this ultimate protection.
Other Australian environments that could benefit from being granted personhood include the Great Barrier Reef, the Blue Mountains and Tasmania’s alpine old-growth forests.
It is important to put these lofty legislative hopes into context. Australia does not even have a national statutory Bill of Rights for humans. It is therefore difficult to imagine that in the current political climate an Australian government would support a mechanism that provides personal rights to our animals, plants and waterways in the immediate future. However, legislation is a powerful tool which can provide practical protections to our most endangered natural systems.
Environmental degradation and climate change lead to radical shift in thinking
As stated by Dr Marc De Leeuw from the University of NSW, the Rights of Nature movement is an exciting ‘attempt to reimagine’ what environmental law should be.
Recognising the Rights of Nature represents a radical shift from human-focused law to a law centred on the natural world, overcoming the fundamental difference between persons and ‘things’, so that our rivers, plants and animals are no longer seen as objects or human possessions.
Fortunately, the Rights of Nature movement is not a top-down, government-led initiative. Across the world, environmental change and the Rights of Nature movement are being driven by communities and individuals who have been impacted by environmental degradation or climate change and disappointed by conventional environmental and planning laws.
It is now up to Australian communities to lead the way and call for meaningful change to protect our environment for future generations.
This is an edited version of an article first published by Stacks Law Firm
The ALA thanks Dion Bull for this contribution
Dion Bull has as a Bachelor of Environment (Marine) Science and Management as well as an Honours degree in law. He works in the Forster office of Stacks Law Firm on personal injury and workers compensation matters. Believing that everyone has a right to justice, he has a strong interest in criminal law. Dion appreciates the importance of the natural and built environment and enjoys working on environmental law and local government matters. He is an advocate for Indigenous rights, sustainable development and water security.