The looming climate catastrophe has engendered the "Rights of Nature" movement, which strives to redefine the relationship between humanity and the world we inhabit. The natural world is arguably recognised as a living entity with legal "personhood" and the same rights as humans to be protected, 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. (Please 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 rapidly. Land users, scientists, policymakers, academics and activists are all too aware that our unique 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 the view that humanity is just one member of the wider earth community, alongside plants, animals and living environments like mountains, rivers and reefs.
The Rights of Nature 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 by according "personhood" status to the natural environment.
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". Unfortunately for our beloved pets, "things" can be owned by humans with little regard to recognising or protecting their rights.
Simply put, domestic pets are considered to be property in NSW and most of Australia, much like your car or TV. (For more information please 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
It is true that in recent times there has been growing impetus to ensure the proper treatment of our beloved pets and to bring an end to practices that are harmful to animals.
While society is indisputably far 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". However, 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.
It notes 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?
Giving nature and the broader natural environment the same legal rights as humans to exist and flourish is gaining popularity as a new 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 do 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 Master of It. (See Rights of nature.)
Many indigenous 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.
This contrasts with the culture and legal systems that are dominant in western industrialised nations today, which treat plants, animals and entire ecosystems as objects and human property. (Please see Eco Jurisprudence Monitor.)
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. (Please see Ecological governance, Earth jurisprudence and rights of nature, ipbes, 9 October 2019.)
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". (Please see Bolivia - national rights of nature legislation.)
New Zealand grants personhood status to Whanganui River
Closer to home, in 2017 New Zealand granted "personhood" status to the Whanganui River. (Please see Innovative bill protects Whanganui River with legal personhood, New Zealand Parliament, 28 March 2017.)
This groundbreaking and generational shift in legislation arose from the negotiations of the Treaty of Waitangi. (Please see New Zealand - legal rights for forests and rivers.)
New Zealand's laws recognise Indigenous people's 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 the ultimate protection in the form of "personhood" status.
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. (Please see Rights of nature, Blue Mountains City Council, 16 November 2021.)
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. (Please see What would happen if the environment was recognised as a legal person, UNSW Sydney Newsroom, 17 February 2023.)
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". It will ensure that people can no longer own nature and 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 driven by communities and individuals who have been impacted by environmental degradation or climate change and who are continually 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.
Dion Bull
Planning and environment
Stacks Law Firm
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
