There is growing interest in the concept of ‘rights of nature’ and the legal possibilities it offers as a means of protecting the natural world when regulatory efforts fail. In a practical and legal sense, this is centred on the premise that nature has the right to defend itself in a court of law against harms. However, at its core, the idea of 'rights of nature' encapsulates a broader thinking about how we can redefine, or realign, our relationship with the natural world and how rights of nature might be recognised and asserted. There are different spheres within which this can happen, from community engagement at a local level, to changes in laws, policy or even constitutions by local and national governments, but also extending to the development of an international rights of nature movement which transcends borders. Over the last 15 years, communities across the world have engaged in legal action designed to recognise rights of nature and countries such as Ecuador, Bolivia, Uganda and the state of Oaxaca, Mexico have now written rights of nature into their constitutions. The international community has also recognised rights of nature, with transnational organisations such as Centre for Democratic and Environmental Rights (CDER) and the Global Alliance for Rights of Nature (GARN) working to help communities, councils and states in their legal efforts to gain recognition of the rights of nature. The United Nations are also taking steps forward – in 2009 the General Assembly adopted its first resolution on ‘Harmony with Nature’ and there are also advances in the global call to make ecocide an international crime.
These developments have inspired communities and NGOs on the island of Ireland to adopt the rights of nature paradigm as an alternative lens through which our relationship with nature can be viewed, but also as an alternative means of challenging government failure to protect the environment. ‘Rights of nature’ has become a rallying cry for environmental campaigners in communities across the island. The Environmental Justice Network Ireland (EJNI) is currently engaged in collaborative efforts to explore and support the development of a rights of nature movement on the island of Ireland, which has to date included activities or planned activities at local, national and international levels.
However, applying general rights of nature principles in country or regionally specific contexts is not straightforward – with governance and legal arrangements, socio-cultural attitudes, political developments and historical approaches to protection of the environment all shaping the human-nature relationship in unique ways. EJNI’s first rights of nature film (directed by Dr Peter Doran, QUB and Simon Wood, Ravenhill Films) explores the relevance of the concept on the island of Ireland and highlights the need for a new approach to our relationship with nature, but also the specific challenges that will face those advocating for these ideas. Amongst environmental campaigners exists a palpable sense that the failure, often described as the systemic failure, of conventional environmental law and regulation to protect nature on the island requires an urgent and radical recalibration of our approach and that rights of nature might provide some solutions. However, the expansive and legally unfamiliar (at least in Ireland and the UK) nature of the concept means pinning down a strategic course of action or set of advocacy activities is challenging, and identifying ways of engaging government and policymakers in this conversation has been recognised as a necessary focus of the nascent rights of nature movement coalescing around these ideas.
At local level, Friends of the Earth Northern Ireland (FOE NI) have created advice for councils seeking to make rights of nature declarations or motions. This advice and intense advocacy efforts from communities yielded some success when in June 2021 Derry City and Strabane District Council (NI) adopted a pioneering motion recognising that the rights of nature can act as a catalyst for a new kind of economic thinking, one that is post-extractivist and regenerative. This was followed by similar motions from Fermanagh and Omagh District Council (NI) and Donegal County Council (ROI) in December 2021. What the passing of these motions means in practice will emerge over the coming months, but FOE NI’s lawyer Laura Neal anticipates a number of potential opportunities, ranging from ‘embedding rights of nature within the Council’s corporate planning framework, considering their relevance to the planning system through local development plans, community plans and material planning considerations and across other Council responsibilities such as air quality, land management, environmental health, biodiversity, and waste’.
Beyond local government level, direction for the movement becomes less clear. With two legal jurisdictions on the island of Ireland, constitutional and legislative recognition of rights of nature on an all-island basis is inherently complex. Within and between the two jurisdictions efforts are nevertheless underway at community level to develop the movement on an all-island basis, and cross-border cooperation and communication is strong. Efforts are also underway by EJNI, FOE NI, The Gathering and QUB School of Law alongside other collaborators to make a submission based on rights of nature to Ireland’s Citizens’ Assembly on Biodiversity Loss – a central plank of which relates to the potential for constitutional change to recognise rights of nature. For Northern Ireland, constitutional complexity, the current absence of a functioning government and historically weak performance on environmental matters renders legislative progress at national level on rights of nature unlikely, more so given the UK government’s recent rejection of a rights of nature proposal on the grounds that a council level initiative would duplicate existing environmental protection regulations.
With legislative and constitutional change (at least in Northern Ireland) not forthcoming in the near term, a key question is whether the courts can offer any avenues to the recognition of rights of nature. While there have been successful rights of nature lawsuits in recent years (e.g. in Columbia), litigation is complex, challenging to win and expensive. One approach could be to integrate rights of nature and strategic cross-border climate litigation. This approach has been adopted in other jurisdictions, with a 2020 UN Environment Programme report identifying 5 instances where climate change litigation explicitly related to rights of nature, discussed by Tiffany Challe in a 2021 article for Columbia Climate School. Strategic cross-border litigation which holds government to account on climate action while simultaneously calling for recognition of the rights of nature could therefore be a potential focus for the environmental movement across the island of Ireland more generally. If litigation is indeed the way forward for rights of nature, it is also essential that rights to access environmental justice are upheld and failures to implement the Aarhus Convention on both parts of the island (highlighted in a recent study led by Alison Hough, TUS) are comprehensively addressed. Robust access to justice is a precondition for litigation – without it, the ability of communities to advocate for themselves and for nature through the courts will be severely undermined.
Dr Ciara Brennan is the Director of the Environmental Justice Network Ireland and a Visiting Research Fellow at Newcastle Law School, Newcastle University. The Environmental Justice Network Ireland (EJNI) was formed in 2019 and is a community of practice connecting interdisciplinary academic researchers, NGOs, environmental lawyers and communities. EJNI’s aim is to support communities and individuals that are engaged in both promoting environmental justice and challenging environmental injustice through enhancing knowledge about complex environmental and legal issues that exist on the island of Ireland. She is a member of Francis Taylor Building’s Academic Panel.
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