Wild Law

In 2001 the United Nations Millennium Assessment undertook a four-year study, involving 1300 scientists from 71 countries, on the health of the planet. Their final report was released in March 2005 and found that every living system in the biosphere is in a state of decline and the rate of decline is increasing. It is 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. These systems and species provide the basis for all life and as we destroy nature we will unravel all life support systems on the planet.

Standing at the dawn of the 21st century there is no greater concern than the fate of our environment and the Earth community it supports. In response to this there is a growing recognition that our current approach to environmental law is insufficient and, as environmental lawyer Thomas Linzey notes, ‘according to every major environment statistic things are worse now than they were forty years ago’, when the first environmental protection legislation was passed. The reasons why our current system of environmental law is failing are rich and complex. However, I contend that one important reason is inherent to law itself. Indeed, in agreement with Thomas Berry, I contend that human beings have ‘rejected our role as an integral member of the earth community in favour of a radical anthropocentric life attitude’.

Anthropocentrism is defined by Albert Einstein as ‘an optical delusion of human consciousness’ where we come to regard ‘humanity as the centre of existence’. To this definition, I consider anthropocentrism as further encompassing the view that human beings are separate from the planet and all living systems, and the assumption that the universe exists to satisfy the needs and desires of human beings. The division of the world into human beings and nature forms the basis of the modern idea of property law.

Indeed, under Western law, nature is regarded as human property and by definition is a legal object that can be bought, sold, exploited and destroyed to satisfy human preferences. Nature receives its protection through the property rights of human beings, not because they have recognised value or legal rights.

Several problems flow from this framework. To begin, it may not be in a property owner’s economic interest to protect the environment; there might be disagreement over ownership, especially in regard to international waters; and the ecosystem may be unknown or of little recognised (known) value. More fundamental than these practical problems, the status of nature as property creates a fundamental disconnection between humans and the environment and, as David Suzuki notes in his 1999 book The Sacred Balance, this enables us to ‘act on nature, abstract from it, use it, take it apart; we can wreck it, because it is another, it is alien’. Property is the mechanism through which nature becomes vulnerable to human exploitation, further illustrated by Dr Paul Babie in his article ‘Private Property, the Environment and Christianity’ (Pacifica: Australasian Theological Studies, 2002):

All resources are allocated or distributed among people according to the private property concept. The earth is dying, therefore, because humankind sees it as private property, capital, valuable only if exploited for economic gain. The domestic legal system of every society that invokes the private property concept uses it as a rationale and justification for an exploitative stance toward the earth’s natural resources.

The perceptions that human beings are disconnected from the environment and that nature exists for human benefit are clearly outdated and harmful ideas. On this point, psychologists James Hillman claims that ‘even to think we are separated from nature is somehow a thinking disorder … You can’t be separated from nature’ (The 11th Hour, 2007) Certainly, modern science is illustrating that human exist as part of a broader ecosystem or web of relationships. Rather than evolving to reflect this knowledge out law remains trapped in a universe that no longer exists and as Cormac Cullinan notes in Wild Law (2002) ‘we continue to govern ourselves on the basis of a discredited understanding of how the universe functions’.

The status of nature as property not only enables human beings to exploit the Earth, it provides a weak framework for environmental protection. Under this framework we are forced to adopt a regulatory approach to environment law. This means that once a company has ticked the appropriate boxes, and so long as they stay within the prescribed legislative boundaries, the activity is acceptable. In response, the great majority of work done by environmental lawyers and the most obvious form of protection offered to communities is to monitor corporate activity and check license applications. In this sense, all environmental laws regulates are environmentalists. They regulate the way environmentalists respond, and this makes us predictable. Further, any resulting legal challenge is tax deductable for the corporation and in many instances money is set aside for this contingency.

This approach is further weakened when companies have ‘indenture acts’ that permit legal override of environmental laws. The most obvious and harmful example of this is the Roxby Downs Indenture Ratification Act 1982 (SA) that exists over BHP Billiton’s Olympic Dam lease and overrides the States Environmental Protection, Aboriginal Heritage, Natural Resource Management, Water Resources and Freedom of Information Acts.

In essence a regulatory framework for environmental protection is defensive in nature and is impeding our ability to protect the environment. On the other hand, ‘movements’ are driven by communities, unwilling to accept such a defensive role for themselves and move toward fixing the problems of governance that consistently shove them into that position in the first place. Indeed, people were once treated as property. In response, the abolitionists did not ask for a ‘slave protection agency’— they sought recognition of their rights in law. Securing rights means not fiddling around with regulating how that property can be used. It means changing the very framework of governance that defined those things as property in the first place.

It has been said that there is nothing as powerful as an idea whose time has come. In the past eight years there has been a groundswell of action in this area and communities have been driving rights for nature legislation into law. Some examples include Pennsylvania, where five municipalities (20,000 people) passed ‘rights for nature’ ordinances, saying nature has a right to exist and flourish and giving community standing to advocate the rights of nature. Further, in 2008 the constitution of Ecuador was amended to state that nature has the ‘right to exist, persist, maintain and regenerate its natural cycles, structure, functions and its processes in evolution’. To ensure these rights the government is responsible for ‘precaution and restriction measures in all the activities that can lead to the extinction of species, the destruction of ecosystems or the permanent alteration of natural cycles’.

Berry has coined the term ‘Earth Jurisprudence’ to describe this evolution in law. Earth Jurisprudence refers to legal philosophies developed by humans that are derived from and consistent with the laws of nature. The law of nature is termed the ‘Great Jurisprudence’ and it invites the human community to ‘take its lead from the universe and not from itself when establishing laws’. By understanding and respecting these processes, Earth Jurisprudence supplies the general principles out of which practical laws can be extrapolated. Two important consequences of this the contention that our law should evolve to reflect the inherent value of nature and that human beings are deeply connected and dependant on nature. This shift has the potential to protect our environment and shift our perception of nature in a way that a regulatory approach cannot.

While Earth Jurisprudence is a major field of research and environmental law internationally, very little has been done in this field within Australia. In response, from 16–18th October 2009 Friends of the Earth Adelaide, in partnership with the Conservation Council of South Australia and the University of Adelaide, Faculty of Professions, Research Unit for the Study of Society, Law and Religion (RUSSLR), will be hosting Australia’s first conference on Earth Jurisprudence.

For more information please visit www.adelaide.foe.org.au

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