Forest and Bird to explore ‘Rights of Nature’

This weekend I was invited to be a guest speaker at the Royal New Zealand Forest and Bird Society‘s Annual General Meeting and Conference.

The transcript can be downloaded from here. (Michael Tavares 2015 forestandbird rightsofnature address)

I have been a member of the society for a few years now, and have previously served on the committee of the Waiheke based Hauraki Islands Branch.

I was introduced as the man who sat in the Kauri for three days until the landowner relented on felling it, however I used the opportunity to speak on the issue of natures standing in law, and proposed that the Society look into advocating for a ‘bill of rights for nature’ and outlined why in my view it may be the game changer in both conservation and treaty relations in this country.

Before starting, I pointed out a trend that I noticed growing in the world of laws, and that is the almost unchallenged view of the rights of corporations.

Unbridled rights to make money, and through trade negotiations negotiated in secret, to place the rights of corporate money making higher than the rights of sovereign nations to regulate and legislate in the public interest, and how this should be of major concern to conservationists.

To counterbalance, and give strength to resist that encroaching power, the concept of rights of nature is:

Rights of nature define legal rights for ecosystems “to exist, flourish and regenerate their natural capacities.”

These laws challenge the status of nature as solely property and while not stopping development, recognising legal rights of nature stops the kind of development that interferes with the existence and vitality of ecosystems.

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Then I outlined the problem with how nature is viewed by the current legal paradigm:

In most of today’s legal systems, decisions that harm ecological communities have to be challenged primarily on the basis of whether or not the correct procedures have been followed.

there could be a range of fully legally compliant uses of a landscape contributing to its worsening, but empowered only by regulation ‘box ticking’

the idea of rights of nature is to change it in law from an object to subject.

Cormac Cullinan, “Wild Law”

You see, currently we can end up in situations where everyone has done everything by the book, to the letter of the law, but where environmental outcomes fail.
My action in the tree was a perfect example of that! Everyone had done everything right by the law. The landowner, the council officers granting the consent, everyone except me.
Yet because the trees were according to the law the landowners property, an object rather than a subject, it had no standing, and its interests could not be defended in a court of law.
The only actors in the case were John Lenihan as the landowner, and me as a trespasser.

An academic from the University of Southern California working three decades ago, Chris Stone, put forward the proposition that:

“courts should grant legal standing to guardians to represent the rights of nature, in much the same way as guardians are appointed to represent the rights of infants.

In order to do so, the law would have to recognize that nature was not just a conglomeration of objects that could be owned, but was a subject that itself had legal rights and the standing to be represented in the courts to enforce those rights.”

So what would be different if nature did have legal rights, and what might we expect to see?

Ecuador passed Rights of Nature laws into its constitution in 2008, and the first case of its use was in 2011, when a local government roading project was damaging a river:

“In 2011, a major development project impacted the flow of the Vilcabamba River.  Local residents filed a suit against the developer on behalf of the river. At the conclusion of a court trial, the river won.  The judge awarded damages to the river and restoration is currently in process. (http://therightsofnature.org/first-ron-case-ecuador/)

The idea is a radical rethink of how we view nature in law, but interestingly we have a local precedent. The Whanganui river and Te Urewera have legal identity, established as part of treaty settlement processes.

Tūhoe-Crown settlement – Te Urewera Act 2014

Te Urewera, named a national park in 1954 and most recently managed as Crown land by the Department of Conservation became Te Urewera on 27 July 2014: “a legal entity” with “all the rights, powers, duties, and liabilities of a legal person” (section 11(1)).

I’m calling for a Bill of Rights for Nature to be developed in Aotearoa New Zealand.

A law that recognises nature as a legal entity in the manner of the Whanganui and Te Urewera Acts, which establishes responsibilities of the state and the population and which allows those rights to be advocated for. I believe this presents a wonderful opportunity for Tino Rangatiratanga and good partnership Kawanatanga.

Legal identity could be given to all manner of Maunga, Awa and Whenua, and Kaitiaki guardianship fully recognised, as promised by Article 2 of Te Tiriti O Waitangi.

We might see Waikato Tainui put a case against Landcorps planned dairy intensifications plans on behalf of the River. We might be able to see ecological values defended from what would otherwise be quite legal yet destructive practices.

I believe that the idea of land and nature being simply property without consideration for its needs and our responsibility to care for it is a foreign Pākehā concept which we would do well to abandon.

Right now, under law, nature is variously seen as property, as something from which to extract value, and as somewhere to dump waste.

This is not how nature is seen in Te Ao Māori, and it is not how it is seen to a growing number of people who are recognising that everything in nature is interconnected, and that resources and capacity are finite! Even the Vatican gets this now!

What is needed is a change in that attitude, and a recognition that for us all to survive and thrive, the capacity and integrity of natural systems needs to be maintained and defended. By recognising those rights of nature in law, we both announce our commitment to upholding these rights, and create the mechanisms by which we hold ourselves and our society accountable.

Yes it may seem that this whole idea may serve to line the pockets of lawyers, but the truth is that we cannot sit in every tree that has been legally consented to be felled, when ecologically it should stay. We cannot physically with our bodies block all environmental vandalism and misuse.

But what we can do is work to make sure those rights of nature to to exist, persist, maintain and regenerate its vital cycles have meaning and teeth. And that action can be taken when those rights are violated.

Establishing the recognition of rights of nature in law will not be easy, but it will be a key factor, I believe, in empowering the guardians of the natural world, the indigenous peoples of the world and all of us who care, to be able to press back against the interests and so called rights of multi-national corporations to exploit, consume and destroy with impunity.

That is why I was thrilled to learn that today, at their Annual General Meeting, the Council of the Royal Forest and Bird Society voted unanimously for its board to fully explore the idea of rights of nature, and its potential for conservation outcomes in New Zealand.

This is an amazing development. I look forward to working with the board, speaking with environmentalists and Mana Whenua across the nation to further this idea.

Toitū Papatūānuku

He waka eke noa

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