Nathaniel Falzon Conserving our Natural Environment and Sustainability: A Legal Rendition
Nathaniel Falzon acquired an LL.B (Hons) Degree from the University of Malta in 2018 and a Masters in Advocacy Degree in 2019. While pursuing his studies within the University of Malta, he served as Financial Officer and Vice-President of Għaqda Studenti tal-Liĥi, as well as Public Relations Officer of JEF Malta. Currently reading for a Master of Laws (LL.M) specialising in International Maritime Law at the International Maritime Law Institute and working within Transport Malta as a legal officer in charge of Data Protection and Compliance.
id-dritt
It is known that in nature there are neither rewards nor punishments, only consequences. – Robert G. Ingersoll
1. Introduction
T
hroughout these last couple of years, one topic has remained in the fulcrum of both local and international affairs, politics and public discourse. This topic has for long been considered as one of the pivotal discussions of our modern age and its repercussions are starting to affect us the more time passes and the situation continues to be exasperated. As a topic it has had its fair share of conspiracies and controversies, with the most notable of all being the ‘Leader of the Free World’ simply dismissing the whole topic and pinpointing the whole issue to his adversaries while dismissing it as a simple political ploy.1 On the other hand, the United Kingdom and Canada amongst other countries, have declared this as an emergency and urged comprehensive and holistic action.2 The topic is none other than the state of our natural environment and how human intervention is affecting the environment with the most notable symptom being that of climate change. The prominence of this issue has led politicians and individuals such as Greta Thunberg, to increase awareness on the topic and tackle the depleting natural environment while also minimising the effects of climate change. All of the above focuses on the natural environment and the need to ensure that it is not only looked after in the short term, but also induce more sustainable and eco-friendly lifestyles and means of living whereby it can be truly said humanity co-exists along with the natural environment. Bearing in mind the foregoing, the author also shares the opinion that this is one of the biggest issues facing today’s humanity and that something must be done. The author claims to have struggled to understand how humans can be indifferent to their surrounding natural ambient and how humanity could simply pursue their own egoistic and unbounded interests at the detriment of everything else. 1 <https://twitter.com/realdonaldtrump/status/265895292191248385?lang=en.> 2 Climate Emergency Declaration, <https://en.wikipedia.org/wiki/Climate_emergency_declaration.>
274
Environmental Law Recognizing that there are no clear-cut solutions to this ‘climate emergency’ yet willing to move beyond mere apprehension of this problem, the author has sought to explore and research the topic further and analyse what other jurisdictions around the world have achieved so far. This submission will explore existing and tentative legal frameworks which seek to balance out nature’s right to co-exist in today’s anthropocentric world and asses their viability in the local Maltese scene.
2. What are ‘Nature Rights’? Back in 2012, the International Union for Conservation of Nature declared that assigning rights to nature is a ‘fundamental and absolute key element for planning, action and assessment’.3 Various international organizations have committed themselves towards achieving and advocating such legal concepts on an international scale. Establishing the right to our natural environment has been described as means to ‘treat the disease, not the symptoms’.4 Yet realistically, what is its significance? In the philosophical discussion surrounding the concept of ‘rights’, one finds that the discussion is often compartmentalized into the ‘form’ and the ‘function’ of the rights. While the former focuses on the internal structure of the right, the latter considers the interaction for the right and the rights holder.5 When discussing the ‘form’ of the constitution of rights, the established Hohfeldian incidents are often quoted and consist of the privilege, the claim, the power and the immunity.6 In this particular scenario, the claim proposition is of relevance as by assigning rights to nature we, collectively as a society, would be recognizing that nature should be treated and allocated a number of rights which may hinge or limit other sets of rights.7 Yet in order for a thing to be considered as a rights holder, Professor Stone, who is one of the main 3 Darlene Lee, ‘Rights of Nature at the International Level’, (26 October 2017) available online on: <https://www.earthlawcenter.org/blog-entries/2017/10/rights-of-nature-withinthe-un-and-iucn.> 4 Ibid 5 Stanford Encyclopedia of Philosophy, (19 December 2005) available online on: <https://plato.stanford.edu/entries/rights/#2.2.> 6 Ibid. 7 Mihnea Tanasescu, The Rights of Nature in Ecuador (Palgrave Macmillan, London 2016).
275
id-dritt
proponents advocating for the assignment of rights to nature, describes three intrinsic elements which must be considered and included in the discussion: ‘the thing can institute legal actions at its behest, second, that in determining the granting of legal relief, the court must take injury to it into account, and third, that relief must run to the benefit of it’.8 Simply assigning rights to nature and thus considering nature as a rights holder, yet not recognising and providing solutions to the foregoing three characteristics would prove futile. In order to better exemplify his ideas Professor Stone makes use of the current example: To illustrate, even as between two societies that condone slavery there is a fundamental difference between S1, in which a master can (if he chooses), go to court and collect reduced chattel value damages from someone who has beaten his slave, and S2, in which the slave can institute the proceedings himself, for his own recovery, damages being measured by, say, his pain and suffering. Notice that neither society is so structured as to leave wholly unprotected the slave’s interest in not being beaten. But in S2 as opposed to S1 there are three operationally significant advantages that the slave has, and these make the slave in S2, albeit a slave, a holder of rights. The above example depicts how our current legal system (S1) treats nature as indeed our ‘slave’ in today’s anthropocentric society and how the current legal frameworks protects our natural environment yet without wholly considering the environment as a rights holder in its own right. By assigning rights to nature, we are moving away from a century-old approach by allowing courts to recognise nature’s inherent value and whose value is quantified according to its own merit rather than upon consideration to our human value system.
3. Nature Rights in Practice: The Ecuadorian and Bolivian Experience The first jurisdictions which sparked off this movement were Ecuador and 8 Christopher D. Stone, Should Trees Have Standing? – Toward Legal Rights For Natural Objects (Southern California Review) 45 (1972).
276
Environmental Law
Bolivia back in 2008 and 2010 respectively. An important consideration which needs to be borne in mind is that common to both of the abovementioned countries, one finds a vast and rich natural eco-system as well as different sects of indigenous local people and tribes who live in small communities and have a spiritual connection to their natural environment. These communities pursue what they refer to as ‘Sumak Kawsay’ which translates to ‘good living’ or the ‘good life’.9 One of the central elements of this way of life is the importance of living in harmony with nature in such a way as to be ‘able to preserve their unique culture and identity, and care for an environment that they know will provide for generations to come’.10 This ‘way of living’ is deeply rooted into ancient Quechua people of the Andes and focuses on living sustainably in harmony with Pacha Mama, which according to ancient Inca mythology, refers to the ‘goddess of Earth, life and harvest’ more often termed as ‘Mother Nature’. This presents a different socio-economic perspective which challenges the dominant anthropocentric world view which perceives people’s rights and interests as the be all and end all. Ecuador’s natural environment and its indigenous communities were also adversely affected by various ecological disasters over the years, the most famous one being the oil dumping case of Chevron/Texaco in the lakes and rivers of Lago Agrio region.11 Naturally enough, such disasters laid waste to different ecological ecosystems and thus affected public perception and led to more political consciousness and awareness on such exploits by large conglomerates while also heightening awareness of the need to better protect the natural environment in pursuit of ‘Sumak Kawsay’. All of the above, amongst other considerations, laid the groundwork towards the 64% referendum result in favor of amending the Ecuadorian constitution to recognize nature or ‘Pacha Mama’ as a rights-holder. The Preamble section of the Constitution was amended and nature was described as being ‘vital to our existence’,12 and as a ‘new form of coexistent citizenship, in diversity and in harmony with nature, to achieve the good life, 9 ‘Sumak Kawsay: Ancient Teachings of Indigenous Peoples’, <https://www.pachamama.org/sumak-kawsay. 10 Ibid. 11 ‘Chevron wins Ecuador rainforest ‘oil dumping’ case’ (BBC News, 2018) <https://www. bbc.com/news/world-latin-america-45455984>. 12 ‘Ecuador: 2008 Constitution in English’ <http://pdba.georgetown.edu/Constitutions/ Ecuador/english08.html>.
277
id-dritt
the Sumak Kawsay’13 was established. A whole chapter is dedicated towards the Rights of Nature according to which ‘Nature or Pacha Mama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution’.14 All ‘persons, communities, peoples and nations’15 are considered to have legal standing in order to ‘call upon public authorities to enforce the rights of nature’.16 The aforementioned persons, communities, peoples and nations have a right to ‘benefit from the environment and the natural wealth enabling them to enjoy the good way of living’.17 The State is tasked with promoting and motivating individuals to represent natural rights, apply any precautionary or reactionary measures for the wellbeing of nature and its species and decide exclusively on the use, production and exploitation of environmental services.18 The State is also the designated regulator for production, use and development of environment services and management.19 However, one specific article which is of particular relevance to the discussion on the topic of Rights to Nature is Article 72. The mentioned Article reads: ‘Nature has the right to be restored. This restoration shall be apart from the obligation of the State and natural persons or legal entities to compensate individuals and communities that depend on affected natural systems’. In those cases of severe or permanent environmental impact, including those caused by the exploitation of non-renewable natural resources, the State shall establish the most effective mechanisms to achieve the restoration and shall adopt adequate measures to eliminate or mitigate harmful environmental consequences.20 This article embodies the concept of Rights to Nature as it not only establishes that Nature has a right to co-exist and flourish but rather, it has the right to be restored and compensated which right is distinct from the restoration and compensation to be granted to any individuals or communities. Therefore, harm towards nature is not to be quantified in terms of the harm caused to individuals and communities affected but quantified 13 14 15 16 17 18 19 20
Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid.
278
Environmental Law
on its own merits and solely upon Nature’s terms. Bolivia opted to pursue a different legislative approach by passing legislation rather than entrenching the rights to nature into their constitutional framework. Albeit this difference, however, they still incorporate similar themes which feature in the Ecuadorian framework. These include the concepts of ‘Sumak Kawsay’ and ‘their indigenous concepts that view nature as a sacred home, the Pachamama (Mother Earth) on which we intimately depend’.21 The ‘Law of the Rights of Mother Earth’ (Law 071) was passed in December 2010 by the Bolivian Plurilateral Legislative Assembly and consists of ten articles. Notably, among this Legislative Act, one finds a set of principles which need to be respected such as the guarantee of the regeneration of Mother Earth and that human activities should balance and co-exist in harmony with Nature.22 The rights of Nature must be protected and guaranteed for the ‘well-being of current and future generations’23 and its rights are to be enforced through collective public interest as ‘all Bolivians exercise rights under this Act, in a way that is consistent with their individual and collective rights’.24 The rights granted to Nature include the right to life, diversity of life, to water, to clean air, to equilibrium, to restoration and to pollution-free living.25 The subsequent Article of the Law of the Rights of Mother Earth establishes a set of obligations imposed on the state government and duties on the society at large. The Bolivian state is tasked with developing policies and ‘forms of production and patterns of consumption’26 which balance ‘the needs of the Bolivian people to live well, while safeguarding the regenerative capacity and integrity of the cycles, processes and vital balance of Mother Earth’.27 In this pursuit of sustainability, the State is also expected to invest in the ‘gradual incorporation of clean and renewable alternative sources into the energy matrix’28 and ‘promote peace and the elimination of all nuclear, 21 Nick Buxton, ‘The Law of Mother Earth: Behind Bolivia’s Historic Bill’ <https://therightsofnature.org/bolivia-law-of-mother-earth/>. 22 ‘Law of Mother Earth, The Rights of Our Planet, A Vision from Bolivia’ <http://www. worldfuturefund.org/Projects/Indicators/motherearthbolivia.html>. 23 Ibid. 24 Ibid. 25 Ibid. 26 Ibid. 27 Ibid. 28 Ibid.
279
id-dritt
chemical, and biological arms and weapons of mass destruction’.29 On the other hand, the legislative framework imposes a set of duties on the Bolivian society such as to support the sustainable use and rights of nature and adopt ‘production practices and consumer behavior in harmony with the rights of Mother Earth’.30 Lastly, an Office of Mother Earth is established in order to promote and ensure compliance to provisions found in the legislative framework. This approach, particularly the last sections of the Bolivian legislation, contrasts with the abovementioned Ecuadorian model. By opting for legislating on the topic rather than passing constitutional amendments on its existing constitution, the Bolivian legislator had more ‘legislative discretion’ in order to provide a more holistic and extensive framework for the protection of the natural environment. The legislator ventured beyond the assignment of rights to nature and sought to tackle other ancillary issues most notably sustainability by means of assessing the feasibility of fossil fuels as energy sources and pollution of water and air. This approach has led environmentalists to consider this legislative framework as ‘not just an idea, more than a vision’.31
4. Who and How Can Someone Invoke Nature’s Rights Successfully? Following Ecuador’s constitutional reform in 2008 to incorporate nature’s rights, the Ecuadorian Courts did precisely so in the famous Vilcabamba River case.32 In the mentioned case, the Court decided in favor of the river as a holder of rights since such rights were considered as contravened and thus demanded that the municipal government provide compensation for its actions when attempting to widen the road and various construction material were deposited into the riverbed. The significance of this case was in the fact that the court departed from utilizing its more traditional anthropocentric and 29 Ibid. 30 Ibid. 31 Peter Neill, ‘Law of Mother Earth: A Vision From Bolivia’ (HuffPost, 2015 <https:// www.huffpost.com/entry/law-of-mother-earth-a vis_b_6180446?guce_referrer=aHR0cHM6Ly9kdWNrZHVja2dvLmNvbS8&guce_referrer_sig=AQAAAG4NUc2kyaXqxWgN36B8hU_HRf97BHbIKuHjai9wDyvLtxbd5HJQJLkoOuuaUW6gwdZG0LJDEzcCLRILPYd_6_ApJSeTiJWENhiX7di7pVZdG4oLzyTWt7YyNRptDHh-F3FqwifjiY1ELZnGNS8zFbesXaaaHm_erO3eCbt6Cxlt&guccounter=2> 32 Richard Frederick Wheeler y Eleanor Geer Huddle c/ Gobierno Provincial de Loja, juicio 11121-2011-0010 (30 March 2011) < https://www.elaw.org/content/juicio%2011121-20110010>.
280
Environmental Law
riparian value-system to quantify environmental damages of the sort and instead focus on nature as a rights holder in itself and its damages suffered. According to the Ecuadorian and Bolivian models mentioned above, citizens have the necessary locus standi to represent nature and its rights as established in the Ecuadorian constitution or respective Bolivian legislation. This framework incorporates a comprehensive actio popularis mechanism whereby citizens are tasked with safeguarding the rights prescribed to nature. While this was successfully invoked in the Vilcabamba River case as featured above, this may not always be the case and thus unveils how this model can in itself act as a ‘double edged sword’. Citizens may not always have the interests of nature at heart, and while controversial projects having a detrimental impact on the natural environment may be deemed as necessary for the regeneration or economic growth of a region, they may however go unnoticed and uncontested by citizens, thus once again omitting nature’s interests and rights from the equation. In light of the foregoing, such mechanisms can bring about a situation whereby it will be utilised selectively and not effectively as a legal safeguard to protecting our natural environment and its wellbeing. Professor Stone suggests assigning a ‘Guardianship’ model to represent nature’s rights and interests and alleviate the Ecuadorian and Bolivian model’s shortcoming of public enforcement.33 This would also prove to be a comprehensive solution to avoid a flood of litigation as different individuals would seek to initiate separate legal proceedings even though other individuals or NGOs would have already pursued the path of legal redress and thus bypass the rules of res judicata. This approach according to Professor Stone would ensure: [A] continuous supervision over a period of time, with a consequent deeper understanding of a broad range of the ward’s problems, not just the problems present in one particular piece of litigation. It would thus assure the courts that the plaintiff has the expertise and genuine adversity in pressing a claim which are the perquisites of a true ‘case or controversy’.34 Stone compares this guardianship concept with the same legal procedure 33 Christopher D. Stone, Should Trees Have Standing? – Toward Legal Rights For Natural Objects (Southern California Review 45 (1972). 34 Ibid.
281
id-dritt
employed when a company is declared bankrupt and a trustee (provisional administrator or liquidator in our legal system) is assigned to secure the interests of the creditors and process of winding-up.35 This highlights how indeed prescribing rights to nature would not be the end of the discussion but rather laying the groundwork towards furthering our pursuit towards sustainability and better ecological and natural management of our environment.
5. Guardianship Model Even though an analysis of local legislation and frameworks will be dealt with in a distinct section of this submission, I feel that this sub-section is more relevant in this context of the discussion as it relates directly to a tentative guardianship model for nature. On the topic of a ‘Guardianship’ model for Nature, it is appropriate to mention the Maltese proposal for the 1992 Rio Earth Summit whereby the Maltese delegation had proposed the setting up of a Guardianship of Future Generations.36 The Maltese proposition reads: We declare that each generation has in particular, the responsibility to ensure that in any national or international forum, where it is likely that a decision be taken affecting the interests of future generations, access be given to an authorized person appointed as ‘Guardian’ of future generations to appear and make submissions on their behalf, so that account be taken of the responsibilities stated in this Declaration and the obligations created thereby.37 It is to be noted that at the time of the discussion, the recognition of future generations and their respective rights were already established and thus Malta was proposing a move beyond simply recognizing such principles but acting upon them.38 According to the proposal, this model of guardianship was not expected to have any decision-making authority, yet it would be 35 Ibid, (11). 36 UN Document/A/CONF.151/PC/WG./L.8/Rev.1/Add.2), dated February 21, 1992 (Working Group III, 4th session) New York: paragraph 17. 37 Ibid. 38 Carmel Cacopardo, ‘Future Generations Must Be Heard’, Times of Malta, (27 August 2011) <https://timesofmalta.com/articles/view/Future-generations-must-be-heard.382028>
282
Environmental Law
afforded the possibility to contribute and put forward any reasonable arguments on behalf of future generations.39 While this proposal was not taken up by the Rio Declaration, this framework was enacted and incorporated into Maltese law in the Sustainable Development Act of 2012.40 Similarly, the role of this Guardian of Future Generations is to safeguard inter-generational sustainable development in Malta and shall consist of a Commission of five politically appointed individuals.41 Despite the many mandated abilities found in the mentioned Act, the model adopted appears similar to the Maltese proposal back in 1992, as the role of the current Guardian has simply remained that of advocacy and consultation, which has led many individuals, as well as the author of this submission, to feel that the office of Guardian of Future Generations has left much more to be desired from such a role.42 However, if one had to consider all of this in the grander scheme of things, I believe that this presents Malta with a golden opportunity of salvaging such a prestigious albeit onerous office and legal model. The fact that Maltese law already caters for a Guardian model can in itself lead towards conceiving the possibility of having a distinct or specified Guardian for other elements such as but not limited to, the natural environment. It can be argued that the rights of future generations are generic and include the right to enjoyment of the natural environment similar as we have inherited from our fathers. This model of characterizing different ‘Guardians’ can also prove as a solution to the question of finding and selecting one individual with the right skillset and knowledge in order to occupy the burdensome role of ‘Guardian of Future Generations’ with all its generic rights and interests. This sentiment can be said to have been already recognized by the legislator since Article 8 (2) of the Sustainable Development Act prescribes a Commission format composed of different individuals from different backgrounds and varying expertise.43 If we were to adopt such a model or rather vary upon what we already have present in our legal framework, we would be moving towards what Professor 39 UN Document/A/CONF.151/PC/WG./L.8/Rev.1/Add.2), dated February 21, 1992 (Working Group III,4th session) New York: paragraph 13. 40 Sustainable Development Act, Chapter 521 of the Laws of Malta, article 8. 41 Ibid. 42 Cacopardo, ‘The Guardian of Future Generations’ (Blog ta’ Carmel Cacopardo) <https:// carmelcacopardo.wordpress.com/tag/rio-earth-summit-1992/> 43 Sustainable Development Act , Chapter 521 of the Laws of Malta, article 8(2).
283
id-dritt
Stone had suggested as a spinoff from the Maltese Rio Summit proposal in his book.44 Professor Stone foresaw the potential of Malta’s proposal, yet he favored specialisation of such Guardians in order to be able to ‘place heavier reliance on scientific expertise inasmuch as each ‘object’ requires distinct bodies of knowledge’.45 He concluded that such specialised Guardians can: [C]oncentrate and mobilize knowledge; their opinions are therefore authoritative, and readily enjoy a credit that may be denied the speculations of a well-respected generalist. Considering the concern over the long-term effects on human life of specific assets and activities, future persons might wish that those who spoke for them had more than practical wisdom and humility.46 Professor Stone’s adaption would also vary the functions of these ‘specialized Guardians’ as proposed by Malta in the Rio Summit as well as the current mandate found in the Sustainable Development Act. Rather than simply assigning an advocacy role for sustainable development, Professor Stone suggested that due to the specialisation of the Guardian and thus such office being more well-equipped and knowledgeable to fulfill its role, the Guardian ought to be given leave to act as a ‘special intervenor-counsel’47 and ‘to initiate legal and diplomatic action on the future’s behalf in appropriate situations’.48 Thus, under this model the Guardian is considered as the only ‘special intervenor’ having locus standi to initiate and participate in legal proceedings. This can be an alternative to the situation under the Ecuadorian and Bolivian model which leaves the enforcement of constitutional rights of nature to a question of actio popolaris. At the same time, as previously mentioned, this mechanism would not expose the Court to a barrage of cases as the flood gates are open for any individual to assert claim since citizens are afforded collective locus standi. While these suggestions are not to be considered definitive, they should serve as an eye-opener to legislators in order to equip the Guardian with more effective means to achieve its raison d’etre, be it the protection of future generations or our natural environment. 44 Christopher D. Stone, Should Trees Have Standing? – Toward Legal Rights For Natural Objects (Southern California Review 45 (1972) 107. 45 46 47 48
Ibid. Ibid. Ibid. Ibid.
284
Environmental Law
6. Prescribing Legal Personhood to Nature: The New Zealand model Another noteworthy legislative framework is that of New Zealand which assigned legal personality and shifted decision-making procedures from a governmental authority to a more representative body. Effectively, this amounted to no significant or radical legal implications with respect to existing environmental protection. Nor can it be said that this has brought about the end of private property in relation to nature and its ecosystem. However, such models provide for comprehensive frameworks which are focused on reaching compromises and balancing out both community and human interests as well as recognising nature as equal rights holder. Particularly by means of prescribing nature a legal personality in New Zealand, it can be said that the legislator has managed to create a mutuallybeneficial framework on two levels. Firstly, governmental and indigenous Iwi representatives must actively participate in the decision-making process to achieve consensus and thus end an age old dispute over who has the legal and legitimate claim for the land in question and secondly, reconcile governmental/societal interests against endemic tribal and ‘spiritual’ conceptions who identify themselves as having a genealogical connection with nature.49 Similar to Ecuador and Bolivia, in New Zealand one also finds a strong indigenous identity and community which also has strong connections to their natural surroundings and environment. In Maori genealogy, the Whanganui River and Te Urewera forest are considered as sacred ancestors and for long have been at the center of different claims to the status of the land in question. In New Zealand the legislators did not assign rights to nature holistically across the board but rather focused on specific natural phenomena: a river and a forest. According to the Te Uruwera Act of 2014, the said forest is established as its own legal entity ‘and has all the rights, powers, duties and liabilities of a legal person’50 and thus it is no longer within the confines of the National Parks Act. Through this new conception of natural legal personality, it can 49 ‘Maori View of their Natural World’ (Cultural Survival Quarterly Magazine, December 2000) <https://www.culturalsurvival.org/publications/cultural-survival-quarterly/maori-viewtheir-natural-world>. 50 Te Uruwera Act 2014.
285
id-dritt
be said that nature is liberated ‘from human speculation’.51 However, the above-mentioned legal personality and its constitutive legal characteristics and implications ‘must be exercised and performed on behalf … Te Urewera by the Te Urewera Board and in a manner provided for in this Act’. Amongst the different functions which are to be assumed by the Board, one finds that they are responsible for drafting a management plan as well as ongoing monitoring of such plans and propose any modifications, be it expansion, removal or establishing any interests therein the land of Te Urewera forest.52 The indigenous Iwi and Hapū Maori tribes are not eliminated from the decision-making process and the ‘Board must consider and provide appropriately for the relationship of Iwi and Hapū and their culture and traditions with Te Urewera when making decisions’.53 This is reflected in the constitution of the said Board which is made up of a total of nine members, six of which are nominated by the trustees of the Tūhoe - Te Uru Taumatua (representatives of the Tūhoe indigenous community) and the remaining three appointed by the Government. The chairperson of the Board is chosen from the six members nominated by the trustees. Day-to-day management will be shared between the Chief Executive of Te Uru Taumata, a Tuhoe body and a government appointee.54 The purposes of the Act are to ‘preserve as far as possible the natural features and beauty of Te Urewera, the integrity of its indigenous ecological systems and biodiversity, and its historical and cultural heritage’55 and ensure that Te Urewera remains a ‘place for public use and enjoyment, for recreation, learning, and spiritual reflection, and as an inspiration for all’.56 According to the Te Uru Taumatua, ‘in re-affirming this natural order the Board through Te Kawa is disrupting the notion of our false superiority over the natural world’ and ‘returning to our place in nature, as her child’.57 A similar legal framework was extended to the Whanganui river which is the longest navigable river in New Zealand. When comparing the 51 era> 24. 52 53 54 55 56 57 era>.
Te Kawa O Te Urewera – English <https://www.ngaituhoe.iwi.nz/te-kawa-o-te-urewTe Uruwera Act 2014. Ibid. Ibid. Ibid. Ibid. Te Kawa O Te Urewera – English <https://www.ngaituhoe.iwi.nz/te-kawa-o-te-urew-
286
Environmental Law
Whanganui58 and Te Urewera legal framework, one notices both a number of consistencies and discrepancies. Maori’s spiritual connections and symbolism towards nature remains a central element as the Whanganui river is quoted as ‘Awa Tupua’ (river of sacred power or ancestor).59 For long this river has been subject to conflicting claims and in a case back in 1962, the New Zealand Court of Appeal declared Maori customary ownership of the riverbed and had been extinguished by the granting of Crown titles to riparian blocks. Therefore, the Act was groundbreaking as it recognises Maori claims and one of its purposes is to ‘record the acknowledgement and apology given by the Crown to Whanganui Iwi’.60 In 2017, New Zealand enacted legislation which recognized the river along with all its interconnected natural elements as a legal entity and thus possessing all the ‘rights, powers, duties and liabilities’61 of any legal person established and recognized by law. Similarly the Te Puo Tupua office, which is composed of two individuals nominated by the Iwi and the government respectively, is vested with the management and legal representation of this newly vested legal entity and all of its rights, powers, duties and liabilities as it will act as the ‘human face of Te Awa Tupua’ and act in the name of Te Awa Tupua.62 Among the functions of the newly established office, one finds that it is to perform landowner functions and rights and set up a contestable trust fund which is established in order to support the health and well-being of Te Awa Tupua.63 The government has committed itself to support the mentioned trust fund by means of an initial 21 million US dollars as well as an ongoing 140,000 US dollars per year for 20 years pledge.64 Te Puo Tupua is to be assisted and supported by another body called Te Karewao and a strategy group of 17 members that represents Iwi, relevant local authorities, departments of State, commercial and recreational users and environmental groups is to be consulted and approve the river strategy.65 This highlights 58 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. 59 Kenny Warne, ‘A Voice for Nature’ <https://www.nationalgeographic.com/culture/2019/04/maori-river-in-new-zealand-is-a-legal-person/> 60 Ibid. 61 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. 62 Ibid. 63 Ibid. 64 Kelly Buchanan ‘New Zealand: Bill Establishing River as Having Own Legal Personality Passed’ (Global Legal Monitor, 22 March 2017) <https://www.loc.gov/law/foreign-news/ article/new-zealand-bill-establishing-river-as-having-own-legal-personality-passed/> 65 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017
287
id-dritt
the recurrent spirit of co-management and co-governance by providing participatory holistic decision-making features throughout the Act. This co-management model of assigning legal personality can be described as a success in New Zealand as it will be further replicated with respect to the Taranaki Mountain following an agreement signed by Crown and Maori representatives in late 2017.66
7. Achievements of the New Zealand Model The assignment of legal personality rights in New Zealand can also be said to be both a compromise on the conflicting claims from the Maori tribes and the Crown over the mentioned areas and the re-orientation of human predominance over nature. This framework rests on a more collaborative ethic of achieving proper administration through means of co-management bodies. By assigning legal personality, the land which was previously managed solely by the Crown and considered a national park is now established as its own ‘legal person’ and is to be governed and represented by the Board established in accordance to its constituent Act. The Board’s roles have been absorbed from the Minister of Conservation and governmental bodies previously assigned by virtue of the National Parks Act 1980, in the case of Te Urewera. Therefore, this can be summarized as a transfer of administration from the Crown to this newly formed legal entity while established rights of public freedom of entry and access on the land remaining untouched.67 On the specific question of natural mineral exploitation within the Te Urewera territory, the debate no longer remains a question to be dictated by the Crown and its Ministers but rather it is shifted onto the Board who has the authority to issue permits regulating mining. The same legal standards and protection previously invested in the government are transferred onto this Board and while one can say that this model does not extend the extent of legal protection previously incorporated, the decision-making authority has 66 Derek Cheng, ‘Mt Taranaki will be granted special legal status similar to Te Urewera and the Whanganui River’ (NZ Herald, 21 December 2017).<https://www.nzherald.co.nz/nz/ news/article.cfm?c_id=1&objectid=11963982>. 67 TUA s 5(2).
288
Environmental Law
changed and thus more oversight and scrutiny can be achieved.68 The spirit of co-management and co-governance is also something which is quite distinctive in the New Zealand model. It is clear and established that indigenous and government representatives will have different conceptions and perspectives on our natural surroundings and how to manage our human interactions. However, statutory requirements necessitating unanimous decision-making or consensus decisions, ensure a high degree of collaboration and discussion rather than lambasting and bulldozing any criticism or opposing views. Any votes taken must have the support of the vast majority of the representative members, thus all stake holders have to actively pursue a comprise acceptable to other members.69 This approach coincides with various contributions in favour of ‘legal pluralism’ and the theory of ‘relative authority’. One such legal pluralist advocate is Nicole Roughan, who contends that authority and decision-making ‘should be conceived as relative, shared and interdependent, not binary, monist, or independent’.70 This framework can be said to embody the various tenets of effective democratic policy-making and while indigenous communities may not feature across the globe, like-minded environmentalists and conscious citizens can fulfill such a role within other countries should similar frameworks be adopted around the world. As concluded by Katherine Sanders, ‘the legal personality model should be valued as a framework that acknowledges disagreement and seeks to structure and support the process of negotiation and compromise that arises from it’.71
68 Katherine Sanders, ’Beyond Human Ownership’? Property, Power and Legal Personality for Nature in Aotearoa New Zealand (Journal of Environmental Law 2018) 225. 69 Te Urewera Board may make a decision supported by a minimum of 80% of its members - TUA 2014 s 33, 34, 36 (1)(a); and Te Kopuka may make a decision supported by a minimum of 75% of its members if in the opinion of the chairperson consensus is not practicable - TATA 2017 sch 4, cl 6 and cl 10.s. 70 Nicole Roughan, ‘Authorities: Conflicts Cooperation and Transnational Legal Theory’ (OUP, 2013) 15. 71 Katherine Sanders, Beyond Human Ownership? Property, Power and Legal Personality for Nature in Aotearoa New Zealand, (Journal of Environmental Law 2018) 234.
289
id-dritt
8. The Maltese Scenario After a thorough discussion on the different models embodied in other jurisdictions, it is only fair that we look closer to home and analyse how and what Malta has legislated on the topic. The Maltese Constitution does not include any outright constitutional protections for the environment or nature. However under Article 9, Chapter II of the Constitution, one finds that the State has been tasked with the duty to safeguard the landscape and the historical patrimony of the Nation.72 Article 9 (2) continues that the State is duty-bound to ‘protect and conserve the environment and its resources for the benefit of the present and future generations’.73 The State is also duty-bound to address any form of environmental degradation, be it of air, water or land, and the State should ‘promote, nurture and support the right of action in favor of the environment’.74 While this may by itself be considered as a significant provision in the pursuit of achieving constitutional environmental legal protection, it is important to note that the aforementioned Article is found under the ‘Declaration of Principles’ chapter of the Constitution and thus their relevance in relation to their respective legal enforcement can be debated. This sentiment is embodied in Article 21 which declares that the provisions found within Chapter II of the Constitution shall not be ‘enforceable in any court, but the principles therein contained are nevertheless fundamental to the governance of the country and it shall be the aim of the State to apply these principles in making laws’.75 An interesting legal moot point would be how the courts are to interpret and apply such principles. Professor Durgas Das Basu, an esteemed Indian constitutional jurist, claimed that Indian courts are ‘not debarred from taking cognisance of the Directives as part of the Constitution for other purposes, e.g. for the purpose of interpreting other provisions of the Constitution or laws made by the Legislature’.76 In fact the Indian Supreme Court has often interpreted the words ‘making of laws’ in their Article 37 (our equivalent of 72 Constitution of Malta, Article 9. 73 Ibid. 74 Ibid. 75 Ibid, Article 21. 76 Tonio Borg, ‘Chapter II: a proper interpretation of its principles’ Times of Malta, (14 January 2018), available online on: <https://timesofmalta.com/articles/view/Chapter-II-a-proper-interpretation-of-its-principles-Tonio-Borg.667892>.
290
Environmental Law
Article 21) as allowing the courts to interpret laws in accordance to these Principles.77 In a recent article by Tonio Borg, he declares that Chapter II (Declaration of Principles) and Chapter IV (Fundamental Rights and Freedoms of the Individual) of the Constitution are to be considered as ‘inextricably intertwined and do not have a separate existence’.78 This interpretation was upheld also by the Indian Supreme Court in Keshavaanda Bharati v State of Kerala (1973) whereby the Court declared that ‘there is no anti-thesis between Fundamental Rights and Directive Principles… and one supplements the other’.79 In another case, the Principles and Fundamental Rights were described ‘like two wheels of a chariot, one no less important than the other. You snap one and the other will lose its efficacy… to give absolute primacy to one over the other is to disturb the harmony of the Constitution’.80 Despite the abovementioned interpretation of other Courts to their ‘variation’ of Article 21 within their constitutional framework, Maltese Constitutional jurisprudence provides us with a divergent opinion on Chapter II of the Constitution.81 When in the Doctor’s Strike case of 1977, the applicants relied on Article 7 on the right to work and Article 12 on the State’s duty to protect work (both Articles found under Chapter II), the Constitutional Court did not consider that these articles are a legitimate legal basis due to the non-enforceability in a court of law as established under Article 21.82 This conflicting interpretation of our Principles chapter of the Constitution puts us in a ‘direct collision’ course with other jurisdictions with whom we share the same constitutional understanding and completely ostracises such constitutional principles from any form of tangible legal enforceability. Upon moving onto Maltese legislation, it is clear that the legislator has recognized the importance of our natural environment and his role as a legislator in protecting it and prescribing the corresponding legislation and frameworks in order to achieve this. 77 Ibid. 78 Ibid. 79 Keshavaanda Bharati v State of Kerala, 1973. 80 Minerva Mills v. Union of India, 1981). 81 Tonio Borg, ‘Chapter II: a proper interpretation of its principles’ Times of Malta, (14 January 2018), available online on: <https://timesofmalta.com/articles/view/Chapter-II-a-proper-interpretation-of-its-principles-Tonio-Borg.667892> 82 Ibid.
291
id-dritt
In the opening sections of the Environmental Protection Act, the legislator gives prominence to the topic at hand by immediately establishing that environmental protection should be shouldered by every natural and legal person as well as the State.83 This distinction is seen in Article 3 and 4 whereby the former establishes that ‘it shall be the duty of every person and entity, whether public or private, to protect the environment and to assist in the taking of preventive and remedial measures’.84 As for the latter and State’s duty in protecting the environment, the legislator lists a set of criteria which ought to be followed in order to achieve such protection. These include managing ‘the environment in a sustainable manner’,85 ‘tak[ing] such preventive and remedial measures as may be necessary to address and abate the problem of pollution and any other form of environmental degradation in Malta and beyond’86 and ‘safeguard[ing] biological diversity’.87 The State’s duty in the pursuit of the protection of our environment should not simply consider the present generation but must also consider future generations.88 Yet similar to what was discussed above at a constitutional level, Article 5 waters down the applicability and legal enforceability of these provisions as they are not directly enforceable in any court of law and thus their relevance can only be considered in the interpretation of the provisions of the Act.89 One can point out the ‘irony’ that the legislator considers the provisions and principles employed as ‘fundamental to the Government of Malta’ while at the same time reduces them to mere reference points devoid from legal enforceability.90 This is also replicated in Article 3 of the Development Planning Act which establishes that, ‘[i]t shall be the duty of the Government to enhance the quality of life for the benefit of the present and future generations … through a comprehensive sustainable land use planning system’.91 The aforementioned Article continues to list a set of criteria of how this shall be achieved such as to ‘preserve, use and develop land and sea for this and future generations, 83 84 85 86 87 88 89 90 91
Environmental Protection Act, Chapter 549 of the Laws of Malta. Ibid, article 3. Ibid, article 4 (a). Ibid, article 4 (b). Ibid, article 4 (g). Ibid. Ibid, article 5. Ibid. Development Planning Act, Chapter 552 of the Laws of Malta, article 3.
292
Environmental Law
whilst having full regard to environmental, social and economic needs’92 and ‘identify regional planning shortcomings and address any problems found in relation thereto’.93 However, the subsequent Article immediately waters down the previously mentioned provisions by declaring that they are ‘not directly enforceable in any court’.94 Nonetheless, the legislator felt the need to reiterate that these provisions are considered as ‘fundamental to the Government of Malta’ and they also serve as a means in order to interpret any of the provisions found therein within then Development Planning Act. This draws parallels with the above situations featured both at a Constitutional level in the Declaration of Principles Sections as well as in the Environmental Protection Act. If we are to be considered as a jurisdiction which is seriously and actively doing its part in safeguarding and protecting our natural environment, then this ought to be reflected in our legislative framework. Simply stating that it is the State’s duty to take care of our natural environment yet voiding such provisions from legal enforceability is nothing less than merely paying lip service to such an agenda and doing otherwise. If we are to be taken seriously on the international level, similar to what we have done on multiple occasions such as in Arvid Pardo’s historic Common Heritage of Mankind concept back in 1967 and the Maltese proposition of appointing a Guardian for Future Generations in the 1992 Rio Earth Summit, we should lead by example and enact legislation and legal frameworks which dignify nature and provide readdress and solutions to the problems facing humanity. Environmental protection as a concept, or rather principle, is already present in our current legislative framework. It is also abundantly clear that Maltese society desires that more must be done in order to protect our natural environment.95 May this submission be a call to our legislators to reflect their electorate’s wishes and legislate on the matter by elevating these ‘principles’ to a set of legally enforceable provisions which provide for legal recourse and thus providing a higher degree of accountability and enforceability. By establishing legal enforceability, State authorities as well as natural and legal 92 Ibid. 93 Ibid. 94 Ibid, article 4. 95 Yannick Pace, ‘Immigration, housing and environment top Maltese concerns in Eurobarometer survey’ Malta Today, (5 August 2019), <https://www.maltatoday.com.mt/news/ national/96730/immigration_housing_and_environment_top_maltese_concerns_in_eurobarometer_survey#.XV5R_S2B1QI>.
293
id-dritt
persons can be held accountable for their actions or omissions affecting our natural environment and provide adequate compensation for its wellbeing and welfare. In the same way as the Maltese delegation in 1992 Rio Earth Summit advocated for moving beyond simply recognising principles and act upon such convictions, the Maltese legislator ought to recognize that the principle of conservation of our natural environment is an established tenet of today’s society and thus requires holistic and comprehensive legal protection. This can be achieved through various ways and means and while the frameworks mentioned in this submission may be a good starting point, they are not to be interpreted restrictively as the only legal frameworks pursuing the rights and interests of our natural environment’s interests. A golden opportunity which should, or rather must, feature this issue is the upcoming constitutional reform to establish Malta’s second republic.96
9. Conclusion Nature has a right to co-exist and flourish just as much as we have on this planet. Even if we are to contend that we have a superior right over nature due to our composition and consciousness as human beings, this right of nature to co-exist and flourish can in itself be considered as an inherent concept within the rights of future human generations which is an already established right within the sphere of international law. Future generations have an equal right to enjoy and exist in this planet in the same way as we have inherited such rights from our predecessors and the latter from their own predecessors. Arguably the natural ecosystem is not the same as it was twenty years ago, let alone as it was one hundred years ago. Hence even if we were to focus solely on anthropocentric considerations, establishing legal personality frameworks and rights for nature can also be seen as respecting the rights of future generations in the enjoyment of this natural world and its resources. Assigning rights to nature may seem extreme and radical for some. 96 Jeremy Micallef, ‘Updated: President Vella launches constitutional reform public consultation exercise’ Independent, (2 August 2019) <https://www.independent.com.mt/articles/2019-08-02/local-news/President-Vella-launches-constitutional-reform-public-consultation-exercise-6736211742>.
294
Environmental Law
It may also be considered as a ‘hippie or tree-hugger’s utopian dream’. Its implications, both at a political as well as at a socio-economic level, can be diverse and require further studies. However, we have all seen this before. Not long-ago we used to live in a society in which people enjoyed a different set of rights according to their race and social status. Not long-ago societies discriminated against women as they were considered sub-ordinate to men and were not even afforded the right to vote in elections. Activists supporting these agendas in pursuit of racial, social and gender identity equality were for long considered as ‘extreme and radical’ just as we may at times consider environmentalists and their notions of prescribing rights and legal personality to nature to be of the same sort. Nonetheless nowadays we live in a world, and even more so country, which has overcome and championed over most of these past discriminatory albeit established practices. May we one day live in a society which recognizes and provides legal protection and enforceability to these ‘extreme and radical’ ideas of adequately safeguarding our natural environment.
295