The case for giving Mother Nature legal rights

Surya Deva says giving legal rights to the environment will compel people to respect its interests

PUBLISHED : Saturday, 23 March, 2013, 12:00am
UPDATED : Saturday, 23 March, 2013, 2:55am

Today, many people, businesses and other institutions in Hong Kong and elsewhere will turn off their non-essential lights at 8.30pm for Earth Hour.

From a humble beginning in Sydney in 2007, the Earth Hour movement has spread rapidly. Last year, some 7,000 cities and towns in 152 countries took part, a significant achievement in making communities aware of the importance of preserving the environment and mitigating climate change.

But is it enough? Most people will agree more needs to be done by the majority, urgently and continuously, to save the planet.

Environmental concerns are nothing new; they have merely become more pressing. The idea of sustainable development - "meeting the needs of the present without compromising the ability of future generations to meet their own needs" - has been around since the 1980s. But it has failed to tame the impact of developmental activities on the environment.

There are several major problems with the notion of sustainable development. The first relates to the conceptualisation of "needs" itself. Human needs, beyond the basic, are relative and contextual. Under the current model of development, people often see needs in terms of an infinitely upward cycle of consumerism.

Second, the notion does not really tell us how to strike a balance between development goals and the environment. So, all development projects end up being regarded as sustainable. In Hong Kong, environmental impact assessments are seemingly used to justify projects rather than roll them back when needed. For example, between April 1998 and February this year, only four out of 226 direct applications for an environmental permit were rejected, and only two of 446 requests for an environmental permit subsequent to the impact assessment were denied.

Third, sustainable development is anthropocentric, in that the environment ought to be protected for the benefit of present and future generations. This approach makes nature subsidiary to people. The absence of independent representatives to articulate the interests of future generations makes the situation worse.

We therefore need to explore a more robust framework to save the earth. One solution may be to consider Jan Laitos' idea in his recent book, The Right of Nonuse.

He argues that natural resources should be granted a legal right to be left alone, and protected for their own intrinsic value rather than for the benefit of humans. Conferring rights on nature would entail imposing a corresponding duty on humans to respect non-use interests of natural resources. While such a right would not be absolute, it must be considered and balanced with people's rights.

Bestowing nature with rights would not be unprecedented. The 2008 constitution of Ecuador states: "Nature … has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes." More recently, New Zealand has granted the Whanganui River a separate legal identity, which should lead to the recognition of certain interests of the river in future.

What can Hong Kong and the mainland learn from all this?

Giving nature "rights" will mean humans are forced to become aware of their duty towards nature. For instance, if the guardians or trustees of nature feel that the Hong Kong airport's third runway will cause irreparable harm, decision-making bodies and courts might have to halt the project to protect the interests of affected dolphins or the ocean itself. Alternatively, if the project went ahead, beneficiaries of the runway would have to pay for its carbon footprint.

Reclamation and landfill projects would have to be justified in the same way. Similarly, if Beijing introduces a carbon tax to control pollution, the justification would not be merely in reducing hazards to human health but also for animals, rivers and forests.

Conferring rights on nature will also preclude the need to navigate through competing interests. For example, even though Hong Kong tops the world in terms of light pollution, some are likely to claim neon signs benefit them and the city. If companies or tourists want blazing lights at Victoria Harbour throughout the night, then they should pay for them.

The government should be aware of the power of incentives to prod rational people and organisations into protecting nature. Should it not make the city easier to walk or cycle around, and discourage car use, especially with such an efficient public transport system?

It should also offer economic incentives to use less energy and rely more on renewable energy sources. Yet it provides electricity subsidies in the budget, encouraging use.

Every hour should be an Earth Hour - not just for ourselves and future generations, but for the planet. If that sounds difficult, how about living sustainably for an hour every week? Small steps often evolve into confident strides.

Surya Deva, an associate professor of the School of Law of City University of Hong Kong, specialises in corporate social responsibility