Zoya Husain

Environmental Rights Strategy for Nature: Australia

As the sixth-largest country in the world, Australia is recognized as megadiverse with a range of habitats
containing rich flora and fauna as well as diverse marine, tropical, and alpine life (Ecological Society of
Australia, 2020). However, Australia’s abundant biodiversity has experienced the negative effects of
climate change through heightened temperatures resulting in the bleaching of corals in the Great Barrier
Reef and the increasing frequency of bushfires ravaging the nation. In order to preserve its biodiversity,
the Australian government will need to challenge the notion of objectifying nature for human use in its
current environmental policies. By using the Rights of Nature paradigm in its environmental legislation,
Australia can build on the traditional knowledge of their First Nations peoples and grant rights to nature.

In 2017 Australia passed its first legislation which recognized the rights of nature, the Yarra River
Protection (Wilip-gin Birrarung murron) Act 2017, acknowledging the Yarra River as “a living and
integrated system, [affirming] the river’s intrinsic and human values” (Gleeson-White, 2018). This brought
on a shift from how the Australian legal system, like most Western legal systems, viewed nature as
property and rightless in the court of law. The act also recognised the Wurundjeri people, who were the
traditional guardians of the Yarra River, as custodians of the land and had the Yarra Riverkeeper
Association dedicated to monitoring the river’s health (ibid). Australia’s First Nations peoples have always
had a deep connection and understanding of the landmass’ natural environment, something that was
essential for their survival prior to colonisation (Hinchley & Woods, 2019). Thus, this act was a landmark
victory for steering Australia towards incorporating rights of nature into their environmental policy,
however Australia still urgently needs to give their natural environment more protections from
anthropogenic change through the creation of an environmental rights strategy for nature.

Current environmental law has been unable to stop the degradation to Australia’s natural environment
because it has allowed for the continued objectification of nature through business as usual, without
taking a hard line on protecting the damages to it. Thus, developing an environmental rights strategy for
nature in Australia would first and foremost entail that the country recognize all of its natural environment
as legal stakeholders. Much in the way that human beings are recognized in the court of law, nature would
also possess “inalienable rights in environmental law proceedings” (Ito, 2017). This would give nature an
equal legal standing with humans and corporations by allowing it to be a plaintiff, spurring a synergistic
relationship between the three and changing the view of nature as just property or capital (ibid).
Ultimately, Australia needs to recognize the hierarchy in the Rights of Nature paradigm, in which nature’s
needs are paramount and human needs are then reconfigured inside of nature’s limits. This would be
essential for preserving nature by allowing First Nations peoples to defend nature and preserve its
integrity for current and future generations.

When developing Australia’s environmental rights strategy for nature, there needs to be the inclusion of
the specific rights that nature will be granted. If we look at Ecuador, which was the first country to
recognise Rights of Nature in its constitution, it acknowledged nature’s “right to exist, persist, maintain
and regenerate its vital cycles” (Global Alliance for the Rights of Nature, 2019). Australia could build on
this by prioritising nature’s right to flourish and recognising “various subsidiary rights, such as the right to
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restoration, the right to its natural processes, and the right to ecosystem functioning without
interference” (La Follette, 2019). Granting these rights would allow for humans and nature to rely on one
another, rather than the one-way exploitation of nature by humans for resources. Providing these rights
would let Australia take a hard line in terms of the Rights of Nature paradigm, in which its government
would be able to “prohibit mitigation or substitution [of nature] for monetary or political gain [and]
maintain biophysical integrity” throughout any development process (La Follette, 2019).

For Australia, the ultimate purpose of this strategy should not just be about protecting the natural entity
itself, but looking at the deeper interconnectedness of other forms of life that rely on this natural entity
(Gleeson-White, 2018). Taking the example of a tree in a forest, Australia should look to offer protections
to this tree for the moss that grows on it, or the birds that build their nests on it, or the humans that get
oxygen from it. It is important to build a strategy “that is earth-centred rather than human-centred,” so
that nature is given the ability to fight for its own preservation (ibid). This is especially important for
extractive activities, seeing as Australia is rich with minerals such as aluminium ore, iron, lithium, gold,
etc, and has over 350 operating mines (Australian Government, 2020). Such activities need to ensure that
extraction will not have detrimental effects for the local communities, such as in the case of lithium mining
in the Atacama Desert of Chile, in which an unsustainable amount of freshwater was used in the process
of extracting lithium and left indigenous communities lacking freshwater (International Rights of Nature
Tribunal, 2019).

In order to ensure that nature’s rights are truly protected, the Australian government can implement and
enforce its environmental rights strategy for nature in various ways. It can look to constitutional reform,
much like Ecuador, taking a top down-approach that implements nature’s rights first at the Federal level
in order to allow for the then seamless implementation at the State level. The government could “use
western legal constructs, such as personhood and rights-based approaches, to shift the status of nature
from property to a subject in law” (Gleeson-White, 2018). This reform could guide change by enforcing
the precautionary principle for any type of development project being undertaken that has the potential
to threaten biodiversity (La Follette, 2019). The Australian government can incentivise businesses to
innovate and find alternative solutions to work alongside nature rather than exploiting it, through
“decoupling growth from the destruction of nature” in legislation (Ito, 2017).

Once Rights of Nature are recognised at the National and State levels, the Australian government should
encourage local community participation across the country in order to create opportunities for
implementation of these rights in local laws and ordinances (Australian Earth Laws Alliance, 2020). The
communities that comprise of First Nations peoples could incorporate their traditional laws on nature into
new local laws protecting nature’s rights. Encouraging community participation could also mobilise
activist groups to rally together and challenge wrongdoings against nature. Much like they did for the case
of the Yarra River, the Australian government could provide their natural entities with human guardians,
who would oversee the health of the entity and would have the right to take legal action should there be
a violation of this entity’s rights. This would allow for ecological governance, in which humans would be
speaking on behalf of nature, in a similar way to which lawyers speak on behalf of corporations (Stone,
1972).
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The Australian government could look to creating laws that recognize “the intrinsic value of nature” by
giving it legal personhood, and therefore a violation of this personhood would entitle nature to
reparations (Ito, 2017). These reparations, which would be paid for by the offender, could go directly into
restoring or preserving the natural entity (Stone, 1972). This could be done for Australia’s Great Barrier
Reef, which has been failed by both government and industry in their continued support of fossil fuel and
coal projects (Ritter, 2017). The guardians representing the reef could seek reparations to help reduce
greenhouse gas emissions and help preserve what coral is left.

The creation, implementation and enforcement of an environmental rights strategy for Australia would
give nature personhood and in turn, would change the way that Australians view their relationship with
nature. It would spur a shift from the Western ideology of viewing nature as an object and would allow
for First Nation ideology to shape the future of environmental governance. In doing so, this recognition
has the potential for bringing attention to the discourse of other rights, such as the First Nation rights to
land, by recognising the importance and value of indigenous knowledge and laws (Gleeson-White, 2018).
In the short term, giving rights to nature may result in an economic loss for Australia, but it will incentivise
businesses and corporations to find long-term solutions for alternatives to consuming nature for human
gain. Ultimately, giving rights to nature would protect the integrity of the Australian environment for
current and future generations.