On Thin Ice
By Simon Boyle, The Guardian UK


Could "wild laws" protecting all the Earth's community - including animals, plants, rivers and ecosystems - save our natural world?

The 21 species of albatross are some of the world's most majestic birds. An adult has a wingspan of up to 3.5 metres and can circumnavigate the world in a single flight. Yet each year, 100,000 of them are killed by longline fishing, where nets up to 80 miles long with thousands of hooks are towed by fishing boats catching birds as well as fish. As a consequence of this indiscriminate slaughter, 19 of the 21 species are under threat of extinction.

The solution, as shown by the RSPB, is relatively simple and includes weighting the lines so they sink faster, and laying the lines at night, when the albatrosses are not feeding. Thanks to the work of the RSPB, changes are now under way. However, there is no law that protects these birds or looks after their interests. They can be slaughtered without a second thought.

But a body of legal opinion is proposing what are being called "wild laws", which would speak for birds and animals, and even rivers and nature. One of the first was introduced in September, when a community of about 7,000 people in Pennsylvania, in the US, adopted what is called Tamaqua Borough Sewage Sludge Ordinance.

It was hardly an event to set the world alight, except for two things: it refuses to recognize corporations' rights to apply sewage sludge to land, but it recognizes natural communities and ecosystems within the borough as "legal persons" for the purposes of enforcing civil rights. According to Thomas Linzey, the lawyer from the Community Environmental Legal Defense Fund, who helped draft it, this is historic.

Imagine if it happened here. Fish, trees, fresh water, or any elements of the environment, would be recognized as having legal rights. Local communities threatened with a damaging development would be able to act to protect their environment by asserting fundamental rights on behalf of the environment, instead of fighting losing battles against landowners' property rights.

The idea has implications for climate change and other debates. The right of polar bears to exist as part of an intact Arctic community could be asserted in court to obtain injunctions against a range of activities that could infringe that right. The law would also restrict the mandates and powers of public institutions and entities such as companies to do anything that increased greenhouse gas emissions, deeming this to be an infringement not only of human rights, but also of the rights of the whole "Earth community."

The term "wild law" was first coined by Cormac Cullinan, a lawyer based in Cape Town, South Africa. Put simply, it is about the need for a change in our relationship with the natural world, from one of exploitation to a more "democratic" participation in a community of other beings. If we are members of a community, Cullinan says, then our rights must be balanced against those of plants, animals, rivers and ecosystems. This means developing new laws that require the integrity and functioning of the whole Earth community to be prioritised. In a world governed by wild law, the destructive, human-centred exploitation of the natural world would be unlawful.

For example, the application of wild law principles would have made a big difference in Belize, where the government wanted to dam the Macal River for energy production, despite the devastation that would be caused. Because Belize is a Commonwealth country, the case was heard by the Privy Council
in London, which voted by a majority of three to two to permit the project.

The decision was interesting because it was clear that all the judges knew that the dam would cause an irreversible reduction of biological diversity, but were unable to use this as justification to prevent the project. If, however, the building of the dam had raised issues of human rights, then that would have been a relevant judicial matter. The application of wild law would have meant the full impact on the natural environment would have been taken into account.

Ecosystems are resilient and can absorb punishment before they reach the point where they begin to break down. This has allowed most people to ignore the environmental consequences of human behavior because the impact has so far been limited. But that period is now over and climate change is here to stay. The warnings of the recent Stern report are focusing greater concerns on the implications for society as a whole, and it seems that there is now political consensus - in Britain, at least - on the need for urgent action at every level to combat climate change.

The proponents of wild law argue that, paraphrasing Einstein, we are not going to solve this problem using the same thinking that caused it in the first place. Climate change is not going to be sorted out by merely tinkering with existing mechanisms. It is our desire to drive cars and take cheap flights, with little regard for the enormous quantities of waste and environmental destruction. What we now need, they say, is a vision of how human beings can live more fulfilled lives as responsible citizens of Earth.

As Cullinan says: "We have been conned into believing that economic prosperity (usually defined by GDP) is an acceptable proxy for what we really want - and it isn't. I think that what most people really want is to be able to live healthy and fulfilled lives in a place and within a community in which they feel they belong, have something to offer, and are valued and loved. We all want to have our basic needs met and an opportunity to unfold our lives and live with purpose as an integral part of the evolving Earth community."

Simon Boyle is legal director of consultants, Argyll Environmental Ltd. www.ukela.org