Webinar on Rights of Nature: Taking Action when Nature is Harmed
For responses from our panel of experts to the questions posted by participants during the event, please see the end of this blog.
On 29 May, Conservation-Litigation.org co-hosted a fast-paced global webinar with leading scholars and practitioners to explore the Rights of Nature - what they mean, how they relate to existing legal avenues, and how they can be operationalised to remedy harm to nature.
Moderated by Jacob Phelps, the webinar featured an international panel of speakers: Yaffa Epstein, Blair Atwebembeire, Gerthie Mayo-Anda, Philippe Cullet and Maribel Rodriguez.
There were some insightful questions posted in the chat during the webinar - please scroll down to view the answers to the ones we didn’t manage to respond to on the day.
The event was co-hosted in coordination with the IUCN World Commission on Environmental Law's Biodiversity Law Specialist Group and Task Force on Rights of Nature.
Q&A
Many thanks to all those who posted questions in the chat - answers from our panel of experts below.
“There has been environmental litigation across countries, using the right to a healthy environment, right to life, environmental NGO standing and other legal tools to pursue remedies. What is the added value for these countries to also adopt rights of nature? Is it necessary or are the existing tools enough? ”
Maribel: Rights of Nature are like a big box of legal tools at our disposal. Right to a healthy environment, right to remedies, legal personhood… for me they are all part of Rights of Nature. To answer your question, one would need to look into the specific context, as the reply depends on the country you target. In my opinion, there are two important criteria that need to be present in law: first, a wide legal standing that recognises the rights of civil society at large, including affected communities and citizens (this can be presented as a “right to a healthy environment” like in Uganda, or “citizen suits” like in the Philippines, and second, a legal system that guarantees sufficient legal protection when Nature is harmed. If both are there, then it is worth assessing if more rights are needed (such as giving legal standing to Nature itself). As you’ll see, the answer to this question is not simple, it will certainly change from country to country and even from context to context. The really important element for me, is that whatever you do, you have to do it strategically, considering and combining all the tools the law offers. An informed decision is always the best possible decision, especially when biodiversity is being lost at such an alarming rate.
Yaffa: I agree with Maribel! One more point is that some aspects of the environment, such as biodiversity, may be more difficult to argue from a human rights perspective, so RoN may particularly add tools to address harms to these types of natural entities.
Philippe: Another dimension is that there will be situations where an entry point through an anthropocentric framing (e.g., human right to environment) may not lead to the same result as with an ecocentric entry point.
“Is there any standard to define and quantify “harm” to nature, as it will determine how we trigger liability and the scope of remedies?”
Jacob: There is no standard, and we see very different approaches across countries. For example, in Cameroon you can be held legally responsible for harm to the environment, so long as the plaintiff making the claim can demonstrate a clear relationship between the defendant’s purported action and the harm caused to the plaintiff (i.e. there is no strict definition or standard, and it is really up to the lawyers to argue). In contrast, in Indonesia legislation has established a set of definitions for harm (e.g., amount of forest canopy cover that has to have been harmed, or the amount of a pollutant that has to have been released). Yet other countries determine harm and liability based on the monetary value of the resources injured.
“How do we ensure timely remedies to harm to nature, as the speed of legal action is usually slower than the rate of environmental destruction?”
Jacob: In many countries this can involve the use of injunctions / injunctive relief. In cases where the plaintiff is concerned that the court proceedings will be too slow to avoid imminent environmental destruction, they can ask the court to order a temporary injunction to suspend harmful actions until after the court decision is made. This can apply to both harm that is currently happening, or actions that are likely to cause harm. However, because this can represent big monetary losses to the defendant, it is important to consider the strength of the plaintiff claim. And, in the event that the defendant is not found guilty or liable, they may bring a counter-action to seek to recover any monetary losses. This an example of the risks that need to be considered.
Yaffa: I add that two interesting and important outcomes of Rights of Nature laws and cases are that 1. rights of nature laws often include some sort of system or body responsible for monitoring, thus potentially allowing for prevention or harm or earlier response to harm and 2. a frequent remedy ordered by courts has been action plans for repairing damage to the natural entity and preventing harm going forwards. Of course enforcement is another question, but these plans at the very least enable future litigation to enforce them.
“How can we advance the role of Indigenous people in upholding the rights of nature? Is it true that rights of nature seems to be more embraced in countries with large communities of Indigenous people”
Yaffa: It is true that Indigenous leadership has been important in many of the countries that have established rights of nature laws, and may further inspire these laws in other countries. I believe these laws can be embraced in and can work well in “Western” legal systems as well.
Philippe: This has been more true in some countries than others (say less in South Asia where for now formal recognition is not particularly centred on Indigenous peoples) and confirms that this is not necessarily just about indigenous peoples but about people living in close connection with their environment, people whose livelihoods/lives depend on a specific element of nature etc.
Jacob: In many of the countries where Conservaiton-Litigation.org has done research, Indigenous and other local communities have broad legal rights to bring forward cases where nature is harmed – not only in cases where their private interests have been harmed (e.g., their livelihoods or health were damaged), but also where they are acting in the public interest independent of their private interests (e.g., harm to biodiversity or a forest).
“Considering the non-retrospective principle, how can we enforce that rights of nature for past harm? ”
Maribel: Context is everything, but in general, one would have to look into two important elements: the first is to assess what laws were in place at the moment the harm took place and whether you are able to use that law to claim remedies for that harm. Those are the applicable laws in that case. Second element, once the harm is caused, we should ask ourselves whether the law in that country provides for a “statute of limitations” for the claim, in other words, whether there is a maximum time after which legal proceedings may be initiated. If the answer to that question is yes, then the claim must be prepared strategically to ensure that the specific deadline is respected. This is why it is really important to understand the laws at stake in every situation.
Philippe: This may be more difficult in certain cases, easier in others. Also, it’s not black and white. For instance, with the Biodiversity Convention, it’s difficult to go back to pre-1993 since the convention puts a baseline but at the same time, this is now 30 years ago and a lot of harm has happened since then.
“What is the relation between rights of nature and ecocide? ”
Jacob: As a non-lawyer, I understand this distinction as mostly in terms of 1) scope/breadth, and 2) level in the legal hierarchy
Ecocide is narrower than rights of nature, in that it is specifically about criminalisation of harm to the environment, and look to punish offenders. Meanwhile, rights of nature is much more expansive in terms of nature's right to exist, to thrive, and to be remedied when it is harmed.
Discussions about ecocide are usually about recognising harm to nature as an international crime, i.e. international law. Meanwhile discussions about rights of nature are usually at the national or sub-national level.
Maribel: This is a great answer. The hierarchy point is tricky, because some countries have already recognised ecocide in their domestic legal system. In those cases, there is no hierarchy issue, as probably both RoN and Ecocide are at the same hierarchical level.
Yaffa: I agree, I see ecocide as a subset of rights of nature, in a criminal, rather than tort law, context. Ecocide laws may not use the term “rights”, but because it criminalizes harm to nature itself rather than to human interests, I consider it a type of rights of nature.
“Across jurisdictions, the right of nature is recognised through both legislation and judicial decree. Which type of recognition is better/stronger to enforce the rights of nature (e.g to grant easier legal standing)?”
Yaffa: It of course depends on the law and the ruling, but written legislation may lead to more predictable results.
Philippe: Both can take the discourse forward but where the recognition is limited to case law, there may be limited relevance on a daily basis (the same has been true for environment-related rights recognised over the past few decades by courts where governments have not ensured their translation in administrative practice.
“What happens when two rights of nature collide with each other? How should we consider this (e.g. when the rights of certain wildlife collide with habitat restoration)?”
Yaffa: Rights conflicts exist in most legal disputes. It’s hard to answer the question generally, except to point out that resolving rights conflicts is a normal function of courts.
Jacob: In resolving this type of conflict, my understanding is that courts would likely rely not only on the law, but on scientific experts to help them understand the priorities for conservation.
“Many environmentally detrimental development projects cannot be stopped because the government said the impacts can be “mitigated”. How should we address this issue? Can the right of nature provide an innovative argument on this “mitigation” argument?”
Yaffa: I think this is a good point that legal rights of nature may help respond to this type of argument, depending on how the law is formulated.
Philippe: This is indeed one of the potentially central points of the rights of nature discourse. If it leads to effective prioritising of nature, then it makes a difference with existing framings, where ‘mitigation’ is more likely to be the outcome in terms of balancing ‘development’ and other priorities.
“Is there any difference/pattern on court rulings in countries that recognize the right of nature vs. countries that do not recognize them (e.g., in terms of remedies, etc)?”
Maribel: There is still a great deal to be done in terms of research about these cases, especially cases that relate to remedies. In those in particular, there are certainly different patterns, but not necessarily related to RoN. In our research, we have found great cases in countries that do not recognise any RoN in the law, and for which standing is really limited, but in which the court has applied general principles without hesitation such as the polluter pays principle and the precautionary principle. At the same time, other countries with much more “Nature-friendly” laws, have never applied those provisions. A key factor is certainly the capacity and understanding of environmental issues of Courts.