May 2024
All over the country people are angry that nature is being abused – houses are built on valuable habitats, rivers and the sea are being polluted with sewage, pesticides are killing bees. Nature is being depleted of the plants and animals we need to survive under climate change. Nature’s voice needs to be heard above big business and other harmful economic activity. Political systems have largely ignored these serious problems but now attempts are being made to get more traction using the law.
Two legal strategies 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, to persist, to regenerate and to evolve . The second originates in the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters known as the Aarhus convention. This gives the public and Environmental NGOs, rights to information about, and rights to intervene in, decisions which are detrimental to nature.
But will Rights to Nature (RoN) fit with current legal systems? Clearly rivers and bees cannot speak for themselves, so arrangements would have to made to appoint to 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.
The second concern is how would conflicts between the RoN and other rights such as Human Rights or property rights be decided? Circumstances where the Human Right of peaceful enjoyment of your property conflicts with the Nature’s Rights are not difficult to imagine. So, should nature’s rights must take precedence or “trump” other rights? Would countries like the UK have enough political will to allow Nature’s Rights to trump Human Rights and property rights?
The third concern is that “rights” do not redress social inequalities. For example, in the UK, Human Rights Act has never given anyone access to housing or ended child poverty. So, why would giving nature rights give precedence to nature? Nevertheless, incorporating the Rights of Nature into law English Law may lead to a fundamental change in the way people understand their relationship to nature.
But there are other ways of giving nature stronger legal “legs.” Currently, people do not have the right to bring a Judicial Review unless they can show a "sufficient interest" known as “standing” in the decision, act, or failure to act they wish to challenge. It is also currently not possible to bring a private law claim for nuisance against a private water company for sewage discharges into rivers or the sea. The Environmental Rights Bill would change this. If passed the Act could be used as a vehicle to guarantee a broad right of standing in Judicial Review and confirm a public right to bring private law claims in nuisance against, for example, water companies for unlawful sewage discharges.
The bill, promoted by Wildlife and Countryside Link, has the following aims. To enshrine in English law both the right to clean, healthy and sustainable environment and the procedural rights in the Aarhus Convention - the right to know, the right to engage and the right to challenge. Both the public and Environmental NGOS would have the right to be fully involved environmental decision making by local authorities and other public bodies including the drafting of new regulations.
The public and Environmental NGOs would also have the right to challenge decisions in the courts with the costs capped. The Bill would also seek to ensure that individuals and Environmental NGOs seeking to protect the environment were not subject to harassment and persecution. The enhanced environmental governance network created would empower public participation in the environmental decision-making.
In theory, these rights exist already in the Aarhus convention which the UK signed in 2005. While some wildlife campaigners have been successful in using the Aarhus Convention, the government can in effect ignore many substantive issues as there is no recourse to domestic law to hold them to account. When public bodies do not comply, the public currently has no option but to submit a complaint Aarhus Convention Compliance Committee - a non-judicial UNECE body. Incorporating in English law would mean that citizens, public groups, and NGOs could bring cases of noncompliance 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.
Taken together these strategies are game changers which will greatly enhance the capacity to give nature a powerful voice. Both need greater engagement, publicity, and support.
Susan Kerrison PhD is a policy analyst with a particular interest the effects of global heating on the coastal and marine environment.
A version of this article was originally published in Sussex Bylines.
The opinions expressed in this blog are the authors' and not necessarily those of the wider Link membership.
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