Indigenous People and the Protection of Biodiversity

A number of countries have given legal rights to nature in different ways: at constitutional level, in statute, by courts and in local laws. At international level, the Inter-American Court of Human Rights has acknowledged that nature may have rights of its own. The UN General Assembly has launched the Harmony with Nature programme which has passed a number of resolutions aimed at a non-anthropocentric approach to governance. The PhD asks three broad questions. The first two are more by way of theoretical context, while the third is the main area of research. 1.Why Is Rights for Nature Desirable? This is an opportunity to explore the philosophy of earth jurisprudence. It is used in relation to the writing of Thomas Berry. He argues that our entire culture, including our legal system, are predicated on anthropocentric values that view humans as separate from and superior to nature. These need to change in order to bring them into alignment with the natural world, putting the earth as a whole, rather than humans at its centre. Berry (1999) forsees an "Ecozoic era" with a more earth-centred system of governance. This philosophy is influenced by indigenous cultures, and has resonances with "deep green" environmentalism. Cormac Cullinan (2008, 2011) builds on this and discusses wild laws, laws that give effect to this ecocentric vision These include rights for nature. Earth jurisprudence and wild law have been further explored by a number of legal and non-legal writers. They argue that this paradigm shift is the only way to resolve the environmental catastrophe the world now faces. Mari Margil, a US lawyer with practical experience of working on rights of nature (RoN) laws, argues (2018, GARN interview) that they provide the highest level of protection for nature and also help to empower local communities. Essentially, they help to change the culture ie .people's views and relationship with nature. 2. How does RoN fit into the existing framework of law? Some current environmental law is non-anthropocentric, protecting nature for its own sake, independent of its usefulness to humans. In any event, it can be argued these two aims are overlapping. In international law, some treaties are non-anthropocentric, as are some soft instruments like the World Charter for Nature and the UN General Assembly resolutions on Harmony with Nature. However, the concept of rights, especially in terms of human rights, is anthropocentric. Giving rights to nature seeks to extend this concept to the non-human world (Christopher Stone). The granting of rights is a reflection of where we, as a society, place value. Most recently, the Inter-American Court of Human Rights has recognised that RoN may be an extension of human rights law (Advisory Opinion No. 23, 15 November 2017). 3. Is Giving Rights to Nature Effective? This section would form the bulk of the thesis. It seeks to examine and compare selected RoN laws around the world. It will look at the circumstances in which these laws came into being, including their particular cultural context, as most of them have been influenced by indigenous or traditional modes of thinking. It will look at their modes of operation, and attempt to assess their effectiveness to date, the challenges they face and finally, the prospects for these types of laws in the future. Case studies could include: i) Ecuador - the 2008 constitution gives rights to nature. A number of court cases have been brought to date and while some have been successful, they have not necessarily been enforced. ii) Colombia - the Constitutional and Supreme Courts have recognised RoN, most recently in granting rights to the Amazon rainforest in a case on climate change. iii) New Zealand - rights have been granted to the Whanganui River and Te Uruwera National Park. iv) The USA and UK - local laws have been made in various municipalities in the USA. In the UK, a byelaw has also been proposed in the English town of Frome.