Rights of Nature Tribunals

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22nd October, 2016, Banco Court, Brisbane

The Global Alliance for the Rights of Nature is described as ‘a worldwide movement’ seeking to create ‘human communities that respect and defend the rights of nature.’ A founding member of this alliance is the AELA or Australian Earth Laws Alliance. Both organisations have held Rights of Nature (RON) tribunals, the most recent of which took place in the smart, modern surroundings of the Banco courtroom in Brisbane’s civil law precinct. Some 150 people were in attendance for this serious, yet inspiring and well-organised event. The day opened with a dance and welcome to Yuggera country by the Nunakal Yuggera Dancers. After brief opening remarks by the forum chair, Dr Michelle Maloney, the first of four sessions got under way. The program was as follows:

  • Session 1: Mardoowara / Fitzroy River (Western Australia) VS Federal and State Governments;
  • Session 2: Forests of Australia VS Federal and State Governments;
  • Session 3: Great Artesian Basin VS Federal and State Governments and the Unconventional Gas Industry; and
  • Session 4: Great Barrier Reef and Atmospheric Commons VS Federal and State Governments and Fossil Fuel Industries. (The full brochure is here… )

The format consisted of opening statements by representatives of each natural constituency. This was followed by questions / comments from the panel, and expert testimony from a variety of people with close knowledge of each area. Foremost among these were people of the land whose laws and practices to protect and sustain it go back thousands of years. Supporting them were other workers in those areas, scientists and legal representatives. Each case concluded with a summing up phase during which details of specific actions, policies and recommended changes to laws and regulations were put forward. This deliberately formal structure proved much more effective than the usual lecture or panel since it brought into play a whole series of overlapping accounts, each representing a different aspect of the area and the issues it faces.

forest_community_2016_smallSome of the key points that emerged are as follows.

  • Instead of using the broad-brush term ‘environment’ which is arguably too static, we could usefully refer to our ‘life-support system.’
  • Terms like ‘Gaia’, ‘Mother Earth,’ ‘nature spirits’ may be too amorphous to have sufficient impact. We could perhaps ascribe to certain natural features the status of ‘a living person.’ This would help us to recognise the living, systemic qualities of, for example, the Great Artesian Basin, the Great Barrier Reef and what remains of Australia’s ancient forests. There’s an ironic precedent here in that companies were provided with this very status by a US court many years ago, with predictably disastrous results.
  • In the Bunya Mountains near Brisbane there’s an interpretive sign that explains how clearing the forest replaces biotic volume with mere area. During the second session a similar point was made – the older forests are far richer in terms of species requirements, services, niches for life, carbon uptake, resistance to fire and so on. The current policy, however, is to replace old forests with new ones that are essentially monocultures set out in rows (for easier harvesting). There’s thus a double loss of volume and rich diversity that city dwellers are unlikely to appreciate.
  • For native peoples their law is the only law that matters because it is based on caring for and protection of the land. Post-colonial laws have proven to be inadequate and primarily address how the land and its resources are to be harvested, dug up or otherwise exploited.
  • Even though laws, regulations and legally binding agreements exist they are routinely ignored by federal and state governments. (Hence the need for RON forums.) In the case of forests, for example, existing laws provide triggers and referral options that are devolved to states. But they are seldom applied or enforced because the latter have unresolved conflicts of interest between development and protection. De facto exemptions that circumvent attempts to protect natural features are regularly provided to large-scale, commercial operators. This is another legal failing but it could, in principle, be corrected.
  • The overall lack of interest by the Federal government is demonstrated by the fact that the Forestry Act currently in use dates back to 1959.

Toward the end of the third session one of the panel members identified the central issue that underlay much of the detail of the day. The point was made that the multiple failures of law and administration noted throughout were ‘not accidental.’ They were and are direct consequences of a system that’s primarily evolved to serve the rich and powerful. Furthermore, the worldview of the latter could not be more different to that of native peoples.

Reflection, Critique and Paradigm Formation

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Post-colonial law is a law for the rich as defined by Western Colonial interests. It is also founded on Judeo-Christian culture that embodies an injunction to ‘subdue’ the Earth and its creatures for human use. We now know that the utilitarian principles that emerged from this culture and permeate its worldview are utterly unsuitable for our present world, its natural features, the people who are alive today and their descendants. By contrast, the laws, rules and practices of the world’s native peoples should be respected and given new legal standing. A combination of science, rights of nature law reform and the leadership of native peoples are needed to make this happen.

Richard A Slaughter, Brisbane, 23rd October 2018

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