The voice of nature is drowned out by the power of big business and harmful economic activity. Houses are built on valuable habitats, the sea and rivers are being polluted with sewage, and pesticides are killing bees. Plants and animals needed for us to survive under climate change are disappearing. Political systems have ignored or been very slow to act on these serious problems.
As a response to this situation two legal strategies have been developed which are potential game changers. The first is a movement to give nature “rights.” This worldwide movement – Global Alliance for the Rights of Nature (GARN) – argues that nature has the right to exist, persist, regenerate and evolve.
The second legal strategy originates in the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. Known as the Aarhus Convention after the Danish city, this gives the public, and environmental NGOs, rights to information about, and rights to intervene in, decisions which are detrimental to nature.
Nature guardians
The EU has recently commissioned work to understand how the Rights of Nature (RoN) movement might fit with EU legal systems. Clearly rivers and bees cannot speak for themselves, so arrangements would have to made to appoint nature “guardians” – people to speak in court on behalf of nature. This is not a unique situation. For example, there are well developed systems to allow others to speak for people who lack capacity. However, it will require organisational arrangements to ensure the probity and knowledge of “the guardians.”
A second concern is how conflicts between the RoN and other rights such as human rights or property rights would be decided. Proponents of the RoN movement argue that nature’s rights must take precedence over other rights. However, would EU countries and the UK have enough political will to allow nature’s rights to trump human rights and property rights?
While “rights” in and of themselves do not redress inequalities, supporters argue that as well as giving nature a voice, incorporating the RoN into English law would change the way people understand their relationship to nature.
Enhancing public participation in environmental decisions
But there are other ways of giving nature stronger legal “legs.” Currently, people do not have the right to bring legal cases or intervene unless they are personally affected by the matter. So, for example, if you are concerned that the sea is polluted, you cannot bring a case against the water company unless you can prove the pollution has damaged you or your interests. The Environment Rights Bill would change this. Promoted by the Wildlife and Countryside Link, an umbrella organisation of some 83 wildlife and nature NGOs, the bill has two aims.
First, it would enshrine in English law the right to a clean, healthy and sustainable environment; and secondly it would ensure that Environmental NGOs had a right to be involved in environmental decision making. NGOs and the public would be given the right to information, to engage, and to challenge. Local authorities and other public bodies would be required to fully involve citizens groups and NGOs in decisions.
This would include the drafting of new regulations and the right to challenge decisions in the courts with the costs capped. The enhanced environmental governance network created would empower public participation in environmental decision-making.
Incorporating the Convention into UK law would strengthen it
In theory, these rights already exist in the Aarhus Convention which the UK signed in 2005. While some wildlife campaigners have been successful in using the Convention, the government can in effect ignore many substantive issues as there is no recourse to domestic law to hold them to account. When local authorities and other bodies do not comply, the case has to be taken to an International Court.
Incorporating the Convention into English law would mean that citizens, public groups, and NGOs could bring cases of non-compliance with the Convention in domestic courts with greater ease and fewer costs.
Critics of the Aarhus Convention argue that it does not give nature any substantive rights. Environmental NGOs may be allowed to intervene in courts but then they can just be ignored. Others question whether environmental NGOs will be compromised in their actions as they often receive considerable funding from government.
But taken together, these strategies have the potential to be game changers, greatly enhancing the capacity to give nature a powerful voice. They need greater engagement, publicity, and support.
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