Environmental Rights and Wrongs

New Zealand is a global late starter in recognising nature in our laws. By Claire Browning

This year the “constitution conversation”, a result of the Mäori Party’s confidence and supply arrangements with the government, is asking about aspirations for Aotearoa New Zealand and how we want our place to be looked after and run in the future.

That includes New Zealand’s constitution, and the Bill of Rights Act (BORA).

New Zealand is among only 16 countries in the world to have failed to recognise and provide for the right to a healthy environment in its laws in some way, such as in a written constitution, bill of rights, environment laws or through the courts. 177 out of 193 countries have done so.

We do have a law, the Resource Management Act (RMA), which provides for sustainable environmental management, including safeguarding the life-supporting capacity of air, water, soils and ecosystems, and sustaining resources’ potential to meet the reasonably foreseeable needs of future generations.

But it doesn’t give this the status of a recognised or enforceable human right - and the RMA, as we know, is under attack.

Other countries, revisiting their constitutions, are including rights to a healthy environment among their most basic human rights. British lawyer turned campaigner Polly Higgins has a separate but similar idea: to create a fifth international “crime against peace” of ecocide (joining genocide, war crimes, crimes of aggression and crimes against humanity).

Basic environmental standards, like clean air, fresh water, fertile food-producing soil and a temperate climate, are fundamental conditions of a civil society and preconditions for other rights and freedoms, like the right to life.

The preamble to the French Environment Charter puts it nicely: “That the future and the very existence of humanity are inseparable from its natural environment” and “That the preservation of the environment must be sought at the same level as the other fundamental interests of the Nation”.

Our natural environment is the foundation on which those other fundamental interests are built.

The Constitutional Review Advisory Panel is now drafting its report, to be given to Ministers by the end of the year. For Forest & Bird this is a chance to ask, at the very minimum, for an environment clause in our Bill of Rights.

Among the world’s 193 countries, it’s interesting to consider the constitutional laggards: the United States, Canada, Japan, Australia, New Zealand, China, Oman, Afghanistan, Kuwait, Brunei Darussalam, Lebanon, Laos, Myanmar, North Korea, Malaysia and Cambodia.

Even countries “like us” are thinking about it. In the United Kingdom a joint committee of the House of Commons and the House of Lords recommended that the right to a healthy environment be included in a proposed Bill of Rights and Canada reportedly came close in 2011 to legislating for an environmental bill of rights.

At provincial level in Canada six states or territories already recognise it in their constitutions.

This is not a radical move.

It started with the United Nations’ Stockholm Declaration in 1972, which included this clause: Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.

There are as many variations on how this might be done as there are countries that have done it.

Portugal was the first, providing that: “Everyone has the right to a healthy and ecologically balanced environment and the duty to defend it.”

Among the most well-known examples are Bolivia and Ecuador. Bolivia, with an indigenous majority in its population and its Parliament, also has the most radical approach: the world’s first laws granting all nature equal rights to humans.

The Law of Mother Earth, or Pachamama, creates 11 new rights for nature, like a whole separate bill of rights: the right to life and to exist, the right to continue vital cycles and processes free from human alteration, the right to pure water and clean air, the right to balance, the right not to be polluted, the right to not have cellular structure modified or genetically altered. It goes further: the right of nature “to not be affected by mega-infrastructure and development projects that affect the balance of ecosystems and the local inhabitant communities”.

Granting that a bit might have been lost in the translation, if we tried to superimpose the Bolivian approach on a Western legal system, it could be a challenge.

Bolivia gives nature the same rights as humans. Its law doesn’t resolve (or perhaps even perceive) a clash of rights between humans and the rest of nature.

In Ecuador – where government is attempting to keep oil under Yasuni National Park in the ground but seeking compensation for lost revenue – the constitution offers some support. It gives nature the “right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution”, and mandates that the government take “precaution and restriction measures in all the activities that can lead to the extinction of species, the destruction of the ecosystems or the permanent alteration of the natural cycles”.

The Ecuadorian provisions are more like an environmental bottom line - the kind that our own RMA was meant to enforce but has failed to.

In the Kenyan constitution you can find a whole chapter for land and environment, alongside other chapters dealing with different parts of democracy, including one for the Bill of Rights, others addressing citizenship, leadership and integrity, and representation of the people.

In France, too, a whole Environment Charter was amended to the constitution in 2005. Article 1 says that “everyone has the right to live in a stable environment which respects health”. Under Article 2 “all persons have a duty to take part in the preservation and the improvement of the environment”. And according to article 6 “Public policies should promote sustainable development ... they should reconcile the protection and enrichment of the environment, with economic development and social progress.”

It’s interesting to think about how a constitutional provision like article 5 of the French charter might influence policy on deep sea oil, for example, or coal or climate change:

As soon as realisation of damage could affect the environment in a serious and irreversible manner, even though [its recognition] might be uncertain in the current state of the scientific knowledge, public authorities should monitor, by the application of the precautionary principle in their relevant domains, the implementation of risk assessment procedures and the adoption of proportionate, provisional measures in order to prevent the realisation of the damage.

Clauses such as these, written into a constitution, are only the first step. How will they be enforced? What are the consequences of a breach?

New Zealand’s Bill of Rights is not entrenched. It can be changed by a simple majority in Parliament. It is not superior. Unlike the American constitution, it cannot be used to strike down inconsistent laws that may sometimes be passed by Parliament.

It requires most laws to be scrutinised for consistency, with a declaration of inconsistency when the BORA is breached. (Sometimes, as in the case of the recent deep sea oil anti-protest laws, that doesn’t happen either.)

However, it’s open to our Constitutional Advisory Panel to now decide to do something different, including making BORA stronger.

Kenyans can sue. In Ecuador the 2008 constitution has a clause allowing citizens to take action to defend the rights of Mother Earth anywhere on the planet. This has been the basis for a court case filed in 2010 against BP for the Deepwater Horizon oil spill in the Gulf of Mexico.

Whether or not we go this far, there’s good reason to think that explicit recognition for the environment in our constitution could help in writing a happy ending for our New Zealand story.

According to author David Boyd, constitutional provisions of this kind have a direct correlation with and influence on better environmental laws and outcomes:

Nations with environmental provisions in their constitutions have smaller ecological footprints, rank higher on comprehensive indices of environmental indicators ... are more likely to ratify international environmental agreements, and made faster progress in reducing emissions of sulfur dioxide, nitrogen oxides, and greenhouse gases than nations without such provisions.

And while not conclusive (more environmentallyconscious and committed cultures may also be more likely to constitutionally include such provisions), this seems quite persuasive.

The Bill of Rights chapter of the South African constitution, which, incidentally, looks a lot like our Bill of Rights, has the following clause:

24. Environment. Everyone has the right -

(a) to an environment that is not harmful to their health

or well-being; and

(b) to have the environment protected, for the benefit of

present and future generations, through reasonable

legislative and other measures that -

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

Like our BORA itself, the language is very reasonable, rather weak, open to value judgements about what is “reasonable” and “justifiable”. But its very great advantage is that it could happen in New Zealand now without any further constitutional change. Parliament, if it chose, could do this tomorrow.

Claire Browning is Forest & Bird's Conservation Advocate