Rights of Nature, but not natural rights ?

There’s an interesting article by Anna Grear in Aeon, criticising the idea that Nature should have human-style rights, and linking to the website of the Centre for Humans and Nature, which has lots more interesting discussion.

I’ve recently written a contribution to a forthcoming book by Tim Hollo, in which I take the opposite view. My central point is that corporations are routinely treated as persons for legal purposes, and that the effect is frequently harmful to Nature. There is in my view, no reason in principle, not to give legal standing to representatives of Nature, similar to that given to the representatives of social constructions like corporations. A lengthy extract over the fold.

If property rights are social constructions, what implications can we draw in relation to rights for Nature. On the one hand, we can rule out essentialist objections, along the lines that the concept of property rights cannot encompass rights for Nature.
There are, of course, practical issues that must be resolved. Neither Nature in general, nor particular species and ecosystems have the kind of agency required to exercise and defend property rights. Rather these property rights must be exercised by humans, bound by obligations to act in line with the interests of Nature, and these interests must also be defined by humans. There is nothing particularly unusual here. Our current system assigns property rights to infants, who are in exactly the same position.

The same is true of property rights assigned to more-or-less abstract collectivities such as BHP or ‘the people of Australia’. While the people represented by these collectivities may have a role in choosing their representatives, they must rely, most of the time on the fiduciary and constitutional responsibilities that bind these representatives.
On the other hand, having rejected the idea of ‘natural’ property rights for people, we must reject this idea for Nature also. Whether or not people (individually or collectively) have moral obligations to Nature, these obligations do not translate directly into property rights/

Rather, any assessment of property rights for Nature must ultimately be pragmatic. Would the creation of property rights for Nature serve to promote the achievement of fairer and more sustainable outcomes (bearing in mind that these terms will themselves be contested). Alternatively, would these goals be better served by an expansion of the current system in which the protection of the natural environment is part of the responsibility of governments, operated primarily through legislative and regulatory constraints on environmentally damaging activities?

The case of bankruptcy law provides an instance where there would appear to be at least a prima facie case for assigning property rights to Nature. There have been numerous instances where mining companies have done substantial environmental damage before declaring bankruptcy and passing the responsibility for any cleanup on to the public in general. In a few cases, such as that of Linc Energy, the damage has been such as to lead to criminal charges.

However, the protections of corporate and bankruptcy law mean that, even in cases like this, the costs fall on the public rather than on the directors and shareholders of the company. Linc was fined $4.5 million and the cleanup costs estimated at $72 million (Smee 2018). The CEO and main shareholder, Peter Bond, dismissed the fine as meaningless and stated that the company would not have to pay anything (McKenna 2018). As always under limited liability, Bond’s own liabilities were confined to the value of his shareholding, which was lost when the company went bankrupt.

An explicit assignment of property rights to Nature might have changed this. If environmental damage were regarded as constituting an unpaid debt to Nature, it might be possible to force a company like Linc into insolvency well before it ran out of cash. Moreover, the offence of trading while insolvent is more clearly established as a basis for prosecution than are the laws under which Linc and its directors are currently being pursued.

Similar problems have arisen in the United States, where mining companies have been permitted to engage in ‘self-bonding’ to cover the costs of reclaiming abandoned mine sites. That is, rather than posting a bond, the companies were allowed to promise to pay the costs of reclamation out of their own assets. As more and more companies (particularly coal miners) have gone bankrupt, governments have been left to pick up the bill. In West Virginia, more than 60 per cent of the future cleanup bill is associated with bankrupt companies.

The problem is made worse by the inadequate level at which bonds are set. In Kentucky, for example, forfeited bonds covered only half the estimated cost of reclamation.
The practice of self-bonding has come under increasing attack. In Wyoming, which has the largest open-cut mines in the United States, proposals are being put forward to limit self-bonding to firms with a strong credit rating and significant remaining production. In practice, very few coal companies are likely to meet the criteria.

This shift is welcome. However, the outcome is a long way from that which would arise if Nature had explicit property rights. In that case, the normal outcome would be that mine owners were required to pay compensation for damage to natural assets as that damage occurred, or even in advance, as is typically the case when mining activities impinge on the value of privately owned land and other assets.

13 thoughts on “Rights of Nature, but not natural rights ?

  1. I noticed that the IPA/Oz the other day expressed outrage that the University of Sydney should even permit academics to research the topic as to whether nature should have legal rights.

    https://www.theaustralian.com.au/news/nation/utter-madness-university-of-sydney-researchers-push-to-give-plants-and-animal-legal-rights-slammed/news-story/a333733ccd755e9af34c9f2749a23b1f?fbclid=IwAR0lI6rOEzZQOHJZfKOwoKBr-JStyXjKlTXDhzh-x18J1X41AW3Y6cNnNLE

    I have always looked at the case for biocentric or ecocentric concerns as an ethics issue that related to the way that humans see their role in the natural world. Essentially activities that promote the sustainability of natural environments should be supported and those that detract from sustainability should be opposed. Humans need to draw on nature for their survival but such damage should be minimized by restricting the size of human populations and what people do. Such activities should not affect sustainability.

    Shooting a wild duck for the dinner pot is OK but endangering a duck population is not.

    But I think the issue of assigning nature “anthropocentric property rights” is worth looking at provided it recognizes the intrinsic value – unrelated to human concerns – of nature.

  2. Governments can always choose to make a mining company pay a big enough bond for clean up or make them get a bank guarantee for the clean up. If the bank ends up paying it will go after the company directors personally for the money so limited liability does not arise. The directors will have Directors and Officers insurance, and the insurance company might or might not pay up, depending on the circumstances. But whoever ends up paying (the shareholders, the directors or the insurers), the clean up cost will be met.

    But this depends on governments insisting on a big enough bond or equivalent at the beginning of the project. This would be, in effect, assigning rights to nature.

  3. Isn’t the beauty of people like Prof Quiggin that they can reduce something outwardly complex to a basic, comprehensible explanation?

    What is he really talking about, to me?

    Decentring.. the idea that life doesn’t just revolve around just me. Isn’t he asking a reader to work out an appreciation of how reality is actually configured and where the likes of us fit on, which may less grand or more grand than we think…life goes on, each day brings forth its particular epiphanies and issues and truth be told it would be liking being locked up in a uni library, you could be there for thousands and thousands of years and not even scratch the surface. Little man, me and what a big and unknown universe to explore if I get off myself for more than five seconds.

  4. Like a mortgage, a bank guarantee requires some security to be made available.

    There seems to be this image that all miners are loaded with cash but the reality is most just bumble along. Even the big ones, like BHP, don’t seem to return much on their investment – they make lots of mistakes and the big ones are huge. Glencore could be the exception as its run by a money man, a trader.

  5. I think the cost of rehabilitation has to be added to the royalty and banked separately and securely. Miners might grumble but they can always go elsewhere.

    It’s a bit like Section 94 (NSW) where the cost of each house block includes a contribution to public spaces, parks etc.

  6. But going back to the original topic, we have been raised to believe that the rights of nature are second to that of man, that the environment is for our use and that we humans are masters of the universe. Worship of animals or deities is strictly forbidden and transgressors could suffer exclusion from life.

    It’s such a strong belief system which I can’t see being ameliorated in the near future.

  7. I think this should have been discussed 200 years ago.
    The industrial revolution gave us steam, electricity and inequality. It is the time we started to ramp up to climate change and dangerous levels of global warming. It is the time we started to use our capital – the earth – as income.
    It has been said that capitalism is responsible for the greatest environmental failure.
    ‘There is a hole in the bucket Eliza, Eliza, there is a hole in the bucket ….’

  8. What amazes me is that by engaging with the legal process imposed on them, aborigines have been able to achieve some compensation for both the loss of land and culture. For aborigines land (nature) is their culture and their lore and our High Courts have agreed with them. This is but one of many stories, Blue Mud Bay was another where the art of the indigenous provided sufficient evidence for another High Court win.

    https://www.theherald.com.au/story/5973062/loss-of-aboriginal-cultural-land-could-result-in-compensation-payout/?fbclid=IwAR34MCJCoLZoR2QdaZY_ppsdgo76Orof__jDqZH1BBOyeVqL76BD5Torxr4

  9. Re aboriginal land rights. Why were not Allodial title rights awarded to them?

    “Allodial title constitutes ownership of real property that is independent of any superior landlord. Allodial title is related to the concept of land held “in allodium”, or land ownership by occupancy and defense of the land.” – Wikipedia.

    Clearly the aboriginal people held the Australian continent, collectively as tribes with tribal lands, “in allodium” by occupying and defending the land. They definitely did both. However, as they were black, not British and an impediment to declaring terra nullius, their allodial rights were ignored.

    It seems that some agree. See the academic paper linked at this site.

    http://nationalunitygovernment.org/content/academic-paper-argues-first-nations-communal-allodial-land-title-cannot-be-extinguished

  10. Thanks Ikon for “allodium”, or land ownership by occupancy and defense of the land.”.

    Sharing a bird story may just be a pebble of the mountain towards nature rights yet a good way to shire up and develop supoort for such rights is your stories…

    “The health and quality of our water, air and land continue to push our birds closer to the brink – unsustainable development and land clearing remain at the forefront. It’s clear that our nature laws are failing birds, places and people, and our elected leaders are failing to safeguard the places that make Australia unique.

    “We need stronger nature laws to protect those birds and places we love.

    “Right now, everyone has a unique opportunity to show our politicians just how much birds really matter to us all.

    “Share your story and we’ll make sure that our elected leaders hear your voice.”

    https://yourstory.birdlife.org.au/

  11. Thanks JQ. How is it youbarenahead ifbthe msn game?

    All that needs to he done is to legislate. Laws and obligations already here: “about the world-changing work of Polly Higgins.””…

    “Until 1996, drafts of the Rome statute, which lists international crimes against humanity, included the crime of ecocide. But it was dropped at a late stage at the behest of three states: the UK, France and the Netherlands. Ecocide looked like a lost cause until Higgins took it up 10 years ago.

    She [ Polly Higgins ] gave up her job and sold her house to finance this campaign on behalf of all of us. She has drafted model laws to show what the crime of ecocide would look like, published two books on the subject and, often against furious opposition, presented her proposals at international meetings.”
    https://www.theguardian.com/commentisfree/2019/mar/28/destruction-earth-crime-polly-higgins-ecocide-george-monbiot

    “”(iv)     Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; ”
    http://legal.un.org/icc/statute/99_corr/cstatute.htm

    Polly Higgins deserves support and donations;
    “Ecocide Crime
    “Ecocide is the extensive loss or damage or destruction of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.”
    https://eradicatingecocide.com/the-law/the-model-law/

    Ted talk by Polly in guardian link.

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