Archive for

Ecosystems



28/08/2017

Natural Visions: The Aesthetics of Environmental Law

By Benjamin Richardson

(Professor of Environmental Law, University of Tasmania; Tilburg University’s Global Law Visiting Chair 2017)

Among the most reproduced photographs in the world are NASA’s first images of Earth — most famously the iconic Blue Marble image taken by the Apollo 17 crew in 1972 from a distance of 45,000 km from the planet’s surface. It profoundly moved people with a stunning picture of a beautiful yet vulnerable planet, and helped propel the global environmental movement.[1]

Blue Marble, 7 December 1972, NASA Apollo 17 mission.

Blue Marble, 7 December 1972, NASA Apollo 17 mission.

Aesthetics can touch our most visceral feelings about the natural environment in ways that technical data or expert reasoning cannot easily conjure. Majestic scenery, charismatic animals, and serene landscapes are among the perceived glories of natural environments that motivate people to care for them. An Italian and German may not understand one another’s tongue but can share admiration of a sublime mountain range or exquisite bird of paradise. Such affection can translate into stronger legal status for such places and species, such as creation of a national park or protection of treasured wildlife.  In Tasmania, where I live, nature’s beauty of this genre is never far away.

Aesthetic values have ostensibly informed numerous environmental laws. Great Britain’s National Parks and Access to the Countryside Act 1949 was established ‘for the purpose of preserving and enhancing the natural beauty’ (section 5(1)). The goals of the United States’ National Environmental Policy Act 1969 include ensuring ‘esthetically and culturally pleasing surroundings’ and preserving ‘important historic, cultural, and natural aspects of our national heritage’ (42 U.S. Code s. 4331). Internationally, the World Heritage Convention of 1972 safeguards ‘natural areas of outstanding universal value from the point of view of … natural beauty’ (article 2). In domains inhabited by people, municipal land-use planning commonly incorporates aesthetic criteria to protect architectural gems, historic streetscapes and bucolic countryside.

But we should not infer that aesthetic values are environmental law’s leitmotif – indeed quite the contrary. Scientific knowledge and economic values dominate rationalisations for environmental decisions. Arguments over how to deal with climate change or save endangered species are typically rationalised around the scientific evidence or economic costs and benefits. These criteria supposedly inject ‘objectivity’ and ‘neutrality’ into often deeply politicised disputes over the environmental impacts of developments. Public participation is another valorised input into environmental governance, as endorsed in most legislation and the Aarhus Convention; however, citizen participation (which can be a means to express aesthetic values) in practice is often managed for appearances in order to secure public acceptance of decisions already reached on other grounds.[2]

Is aesthetics thus only to hold a minor place in environmental governance, and what issues must we address in defining its role? I believe that beauty and other aesthetic values should have a more prominent place here. While science and economics supply a variety of reasons to conserve nature, such as revealing its biodiversity values or economic benefits, these disciplines do poorly in emotionally engaging people with their environs. Abundant environmental science has struggled to leverage fundamental shifts to our environmental attitudes and practices, as evident in continuing deforestation, industrial development and pollution. A sense of place or other personal connection to an environment grows when its beauty, spirituality or other sensuous qualities uplifts one. Empirical research shows positive correlations between specific landscape or environmental features and human wellbeing.[3] And individual well-being can lead to social change: as Aldo Leopold presciently observed, ‘we can only be ethical in relation to something we can see, feel, understand, love, or otherwise have faith in’.[4]

Finding beauty in nature’s small stuff: Mycena interrupta, Blue Mountain View, Tasmania (photo: B. Richardson).

Finding beauty in nature’s small stuff: Mycena interrupta, Blue Mountain View, Tasmania (photo: B. Richardson).

But any appeal to enrich legal governance with environmental aesthetics faces several challenges. Firstly, the aesthetic values that tend to captivate us are frequently associated with ‘specialness’ – perhaps a rare species or sublime landscape. But the ‘specialness’ benchmark has drawbacks: we should protect species before they become so endangered or rare as to move us, and pretty landscapes are not necessarily more ecologically important than a ‘mundane’ grassland or swamp. Even human-dominated landscapes punctuated by billboards and buildings, or golf courses and garbage dumps, can harbour wildlife adapted to living in our midst.[5] If we are to leverage action through environmental aesthetics, we must find beauty or other aesthetic values more widely than just within ‘special’ enclaves.

Secondly, because of the common assumption that the human response to aesthetics is subjective rather than factual or rational, aesthetic judgements determined by the beholder rather than the object can be viewed as deficient. Colloquially, we typically call this bias ‘beauty being in the eye of beholder’. Some researchers identify a shared, cross-cultural preference for landscapes that resemble Homo sapiens’ evolutionary cradle, the undulating African savannah.[6] Psychologists also identify a shared taste for fractal patterns in scenery, ‘featuring patterns that repeat at increasingly fine magnifications’ such as clouds, rivers and coastlines.[7] But while an aesthetic sense is surely a universal human trait, it is both personality- and culture-bound, with different artistic expressions and preferences found between and within cultures: a lover of Van Gogh’s delicate Irises might easily spurn Mark Rothko’s austere No.61 (Rust and Blue).

Trashing nature’s beauty: somewhere in Tasmania (photo: B. Richardson).

Trashing nature’s beauty: somewhere in Tasmania (photo: B. Richardson).

Furthermore, in our urban demography we often aesthetically engage with nature not directly but vicariously — through David Attenborough-narrated films, lavish coffee-table books or soothing nature sounds CDs. Artistic representations of landscapes, flora and fauna are among humankind’s earliest cultural expressions, such as the 20,000 years old Palaeolithic paintings adorning the Lascaux Caves in France and Aboriginal rock art in Australia of even older vintage. The arts thus mediate our access to environmental aesthetics. Natural beauty has become an essential ‘resource’ for activist organisations. In Tasmania, it was especially evident in Olegas Truchanas’ and Peter Dombrovskis’ sublime photographs to rally public interest in saving Lake Pedder and the Franklin River respectively from dams, [8] and again today to help conserve the imperilled Tarkine rainforests through the ‘Tarkine in Motion’ festival.[9] While these examples tend to reinforce that ‘specialness’ bias, the arts are increasingly enlisted to conserve ‘ordinary’ nature; recent successful examples include the Tasmanian Land Conservancy’s ‘Poets and Painters’ (2016-17) and ‘Skullbone Experiment’ (2014) that engaged artists to educate the public about the ecological and aesthetic values of two of the Conservancy’s private reserves in relatively unimposing (but ecologically valuable) landscapes.[10]

Further challenges with environmental arts include that they sometimes cater to an unrepresentative socio-economic demography (ie, urban, affluent, educated), thus missing the rural and poorer communities who often have more at stake directly in the environmental controversies. And some people might ‘read’ landscapes not for their beauty but for other aesthetic values such as having a spiritual connection, as in Aboriginal Dreamtime stories. Going beyond the ‘purview of the “landscape” of other received aesthetic categories of environmental perception’, Alan Braddock recommends an ‘eco-critical’ approach that emphasizes ‘environmental inter-connectedness, sustainability, and justice in cultural interpretation’ and reexamining canonical works to highlight ‘neglected evidence of past ecological and proto-ecological sensibility’.[11] In other words, more diverse conceptions of environmental aesthetics can help address lacunae or biases, and respect art historian Simon Schama’s advice to recognise that landscapes have a socialised, layered history.[12]

Strengthening community involvement in environmental art might attenuate some of the foregoing challenges. Here the emphasis shifts from the artistic representation of the natural world as an object of admiration to community engagement and dialogue with that world. This approach not only dovetails with the theory of ‘interested engagement’ in the aesthetics literature,[13] but also environmental law’s commitment to public participation.[14] Ecological restoration projects provide an interesting setting for these goals, as currently practised by Greening Australia in its Tasmania Island Ark initiative. Greening Australia has collaborated with the University of Tasmania’s College of the Arts to involve artists with regional schools and local townships in designing sculptures for placement in the landscape not only to support the community’s interpretation of the restored biodiversity but also to directly aid the biodiversity’s recovery by designing artworks that serve as ‘species hotels’ for birds, bats and other creatures.[15] Another approach, used in the United States, was undertaken by the US Nature Conservancy in its restoration of a wetland in Illinois; it recruited citizens to be artists themselves — to draw, paint, photograph, or otherwise depict the restoration endeavour and its results.[16]

Beauty is indispensable for our relationships with the natural environment and the laws we design to conserve it, helping people to move beyond a cold, instrumental relationship to one provoking affinity, curiosity, adoration and other intimacies. Artistic depictions of landscapes can influence their legal status, as Alice Palmer has investigated in her excellent analysis of the impact of aesthetics in World Heritage property listings including those in my own homeland of Tasmania where Peter Dombrovskis’ photographs of its southwest wilderness were used by the Australian government as evidence to support its nomination of this area for World Heritage status.[17] Given the ineffectiveness of much environmental regulation and considerable insouciance by some about the Anthropocene, we need to re-think how to engage everyone in caring for the Earth and the legal means to leverage that engagement.

 

[1] R. Kelsey, ‘Reverse shot: Earthrise and Blue Marble in the American imagination’ in E.H. Jazairy (ed), Scales of the Earth (Harvard University Press, 2011), 10.

[2] S. Bedder, ‘Public participation or public relations?’ in B. Martin (ed), Technology and Public Participation (University of Wollongong, 1999), 169.

[3] R. Kaplan, ‘The nature of the view from home’ Environment and Behavior 33(4) (2001): 507; K. Williams and D, Harvey, ‘Transcendent experience in forest environments’ Journal of Environmental Psychology (2001) 21: 249.

[4] A. Leopold, A Sand County Almanac (Oxford University Press, 1949), xxvi.

[5] T. Low, The New Nature (Penguin, 2017).

[6] D. Dutton, The Art Instinct. Beauty, Pleasure, and Human Evolution (Bloomsbury Publishing, 2010), passim; J. Appleton, The Experience of Landscape (Wiley, 1975), 73-74.

[7] R. Taylor, ‘Fractal patterns in nature and art are aesthetically pleasing and stress-reducing’, The Conversation, 31 March 2017.

[8] T. Bonyhady,  ‘No dams: the art of Olegas Truchanas and Peter Dombrovskis’, in R. Butler (ed), The Europeans: E´migre´ Artists in Australia 1930 – 1960 (National Gallery of Australia, 1990): 236.

[9] ‘Artists return from threatened Tarkine wilderness – major exhibition installed in Hobart’, Media release, Bob Brown Foundation, 2017.

[10] J. Deeth, ‘The Skullbone experiment: a paradigm of art and nature’, Artlink, June 2014; H. Aird, ‘Poets and painters: new exhibition produces “extraordinary synergies”’, ABC News 28 July 2017.

[11] A.C. Braddock, ‘Ecocritical art history’ American Art (2009) 23(2): 24, 26.

[12] S. Schama, Landscape and Memory (Fontana Press, 1995).

[13] A. Berleant, Living in the Landscape: Toward an Aesthetics of Environment (University Press of Kansas, 1997).

[14] B.J. Richardson and J. Razzaque, ‘Public participation in environmental decision-making’ in B.J. Richardson and S. Wood (eds), Environmental Law for Sustainability (Hart Publishing: 2006)): 165.

[15] Greening Australia, ‘Building hotels for Tasmania’s unique species’.

[16] S.K. Allison, Ecological Restoration and Environmental Change: Renewing Damaged Ecosystems (Routledge, 2012), 188.

[17] A. Palmer, ‘Legal dimensions to valuing aesthetics in World Heritage decisions’ Social and Legal Studies (2017): 1 at 8, DOI: 10.1177/0964663917698859.

 

 

 

 


09/04/2017

From ‘Natural Objects’ to Holders of Legal Rights: The Expanding Concept of Personhood in India

By Melissa Lewis

In 1972, Christopher Stone published one of the seminal articles in environmental legal thinking: ‘Should Trees Have Standing?’. Stone observed that the history of law has seen the gradual extension of legal personality, and accompanying legal rights, to entities to whom it had previously been unthinkable that rights should be granted. Although such entities have included various categories of human beings (such as women, children, and slaves), the boundaries of legal personality have also been stretched to include certain non-humans, such as corporations. From this foundation, Stone proceeded to construct an argument for the extension of legal rights to what had hitherto been ‘natural objects’. Later the same year, in his dissenting opinion in Sierra Club v Morten, US Supreme Court Justice William Douglas famously aligned himself with Stone’s position, asserting that ‘[c]ontemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation’. Nevertheless, it is probably safe to assume that, as had been the case in respect of other historically ‘rightless’ entities, the suggestion that rights be conferred upon nature initially struck many as being completely outlandish.

Fast forward almost half a century, and Stone’s proposal does not sit quite as uncomfortably as it might have when initially published. In the period since the early ‘70s, an abundance of environmental laws have emerged at both the international and national levels; and although it is not yet commonplace for states to bestow rights upon the environment (or components thereof), this practice is rapidly gaining traction in several jurisdictions. In 2008, Ecuador became the first country to include ‘rights of nature’ in its Constitution, including ‘the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes’, as well as ‘the right to be restored’. Then, in 2014 and 2017 respectively, New Zealand passed the Te Urewera Act and the Te Awa Tupua (Whanganiu River Claims Settlement) Act, recognizing a national park and a river to be legal entities, with ‘all the rights, powers, duties and liabilities of a legal person’.

Last month, India became the most recent country to grant rights to particular features of the natural environment – not through legislation, but rather through two public interest litigation cases decided by the High Court of Uttarakhand (for an overview of how the cases emerged, see here). This post provides a brief synopsis and critique of the two judgments and comments on their significance.

Judgment #1: Cracking open the door to personhood

River Ganga (Photo by Flickr user Roehan Rengadurai)

River Ganga (Photo by Flickr user Roehan Rengadurai)

In the first judgment (Mohd. Salim v State of Uttarakhand & Others), the Court was of the view that the ‘extraordinary situation’ in which the Ganga and Yamuna Rivers ‘are losing their very existence’ requires that ‘extraordinary measures be taken to preserve and conserve’ these rivers. After noting the deep spiritual connection between Hindus and the Rivers Ganga and Yamuna, the Court cited several previous judgments (predominantly from India’s Supreme Court) in which the concept of legal personality and its extension have been considered. The Court paid particular attention to decisions holding that a Hindu idol/deity is a juristic person, capable of possessing its own property (which is managed on the deity’s behalf by a human guardian), being taxed, and suing as a pauper. It further emphasized that the concept of ‘juristic persons’ emerged to serve ‘the needs and faith of society’ and that ‘a juristic person can be any subject matter other than a human being to which the law attributes personality for good and sufficient reasons’. The Court proceeded to again stress the religious significance of the Rivers Ganga and Yamuna. Importantly, it also commented on the rivers’ role in supporting ‘both the life and natural resources and health and well-being of the entire community’ and pointed to provisions of the Constitution of India which require both the state and its citizens to protect the environment.

The Court ultimately held that ‘to protect the recognition and the faith of society’ and ‘preserve and conserve’ the Rivers Ganga and Yamuna, it was necessary to declare these rivers, ‘all their tributaries, streams, [and] every natural water flowing with flow continuously or intermittently of these rivers’ to be juristic persons ‘with all corresponding rights, duties and liabilities of a living person’. It further declared the Director of government’s NAMAMI Gange project, along with the Chief Secretary and Advocate General of the State of Uttarakhand, to be ‘persons in loco parentis as the human face to protect, conserve and preserve’ the rivers and their tributaries; and directed these persons to ‘uphold the status of Rivers Ganges and Yamuna and also to promote the health and well being of these rivers’. The Court stated that, in making this decision, it was exercising parens patriae jurisdiction (i.e. the jurisdiction to assume responsibility for the welfare of those unable to act on their own behalf), but did not elaborate upon this principle.

Judgment #2: Allowing more persons to enter the room

A mere ten days after its striking decision concerning the Rivers Ganga and Yamuna, the Uttarakhand High Court widened the ambit of legal personality even further to encompass ‘the Glaciers including Gangotri [and] Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests, wetlands, grasslands, springs and waterfalls’, and declared several individuals to be persons in loco parentis of these entities in the State of Uttarakhand (Lalit Miglani v State of Uttarakhand & Others). This second judgment was penned by the same two judges as the first, but is considerably longer and, unfortunately, also considerably less coherent.

Yamunotri, Uttarakhand (Photo by Flickr user Hrishi Chandanpukar)

Yamunotri, Uttarakhand (Photo by Flickr user Hrishi Chandanpukar)

While the first judgment had hinged largely – albeit not exclusively – on the religious importance of the rivers in question, less weight was placed upon this aspect in the second judgment. In reaching its decision, the Court considered the significance of, and threats to, various features of the natural environment. It expressed concern that the Gangotri and Yamunotri Glaciers (from which the Rivers Ganga and Yamuna originate) are receding due to pollution and climate change; that the various natural parks in the State of Uttarakhand, which ‘function as lungs for the entire atmosphere’, are threatened by human activities; that the State’s forests are threatened by large scale deforestation; and that forest fires are polluting the environment and harming wild animals, whose habitat is also shrinking. Throughout its judgment, the Court quoted extensively from several publications, which discuss, inter alia, the biodiversity of the Himalayas; the importance of trees from religious, cultural, economic and ecological perspectives; and the need to deviate from traditional approaches to protecting nature by recognizing nature’s rights. Curiously, no extracts from Stone’s ‘Should Trees Have Standing’ appeared in the decision, despite Stone having advocated precisely the kind of expansion of legal personality that the Court undertook in this judgment. Nor were excerpts included from the dissenting opinion in Sierra Club v Morten, although the Court did refer to New Zealand’s Te Urewa Act as an example of a country having recognized the legal personality of a national park.

The Court additionally drew text from a variety of international environmental instruments, reproducing the 1972 Stockholm Declaration, 1992 Rio Declaration, and 1992 Rio Forest Principles in their entirety, and also quoting large portions of the 1982 World Charter for Nature and 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). References to forests in the 1997 Kyoto Protocol and 2007 Bali Action Plan were additionally mentioned. The Court drew no distinction between legally binding and non-binding instruments – indeed, several mistakes in the judgment (which, for instance, erroneously refers to the Kyoto Protocol as the ‘Kyoto Declaration’) suggest that its authors failed to fully appreciate the nature of India’s commitments under the various instruments they referred to. The Court also failed to explain why it considered this selection of instruments to be relevant in reaching its decision, though presumably its rationale was that they illustrate the existence of wide-scale agreement amongst states concerning both the importance of the natural environment and the concomitant need for environmental protection. Further, although none of the instruments go so far as to call upon states to bestow legal rights upon nature, doing so is conceivably one route through which to achieve environmental protection, and thereby respond to some of the exhortations/obligations that the instruments contain. That said, the list of instruments that the Court chose to cite is somewhat surprising – in both its inclusions and its exclusions. Amongst the instruments referred to in the judgment, CITES stands out as a particularly odd choice. While numerous CITES listed species inhabit Uttarakhand (examples including the snow leopard, Uncia uncia, and the snow orchid, Diplomeris hirsuta), the Convention requires only that states protect these species from overexploitation through international trade, not that they engage in broader in situ conservation efforts, such as the protection of natural habitats. Given that the Court’s eventual expansion of legal personality pertained to particular habitats, but not to individual species, the 1992 Convention on Biological Diversity (CBD) would seemingly have provided better support for the decision – especially considering that this Convention recognizes the intrinsic value of biodiversity, whereas CITES’ focus is strictly utilitarian. However, the CBD received no mention in the judgment. Nor did the 1971 Ramsar Convention on Wetlands of International Importance or the 1972 World Heritage Convention, despite the Court both recognizing the legal personality of wetlands and emphasizing the need to protect natural parks in the State of Uttarakhand (which include the World Heritage listed Nanda Devi and Valley of Flowers National Parks). Still further instruments that could have been referred to, but weren’t, include the 2007 Non-legally Binding Instrument on All Types of Forests, the Outcome Document of the 2012 Rio+20 Conference (‘The Future We Want’), the 2015 Sustainable Development Goals, and the 2015 Paris Agreement. The Court’s failure to consider these four relatively recent documents might be explained by its apparent reliance on the outdated book Documents in International Environmental Law (2nd ed.: 2004) as its primary source of information concerning relevant international instruments.

As had the initial judgment regarding the Rivers Ganga and Yamuna, this second judgment referred to citizens’ Constitutional duty to protect the environment. It further stated that ‘[t]he Courts are duty bound to protect the environmental ecology under the “New Environment Justice Jurisprudence” and also under the principles of parens patriae’. It then provided a lengthy collection of quotes from judgments and journal articles discussing parens patriae – in particular, in the context of allowing states in a federal system to sue to prevent injury to the environment. What is remarkable about this collection, however, is that the texts cited discuss the origins and evolution of parens patriae in the United States’ legal system, and provide no explanation whatsoever of how this principle operates in Indian law.

Towards the end of its judgment, the Court stressed that ‘[b]esides our constitutional and legal duties, it is our moral duty to protect the environment and ecology’, and ‘to hand over the same Mother Earth to the next generation’. It stated further that ‘rivers, forests, lakes, water bodies, air, glaciers, [and] human life are unified and are [an] indivisible whole’; and that rivers and lakes have an ‘intrinsic right not to be polluted’, and rivers, forests, lakes, water bodies, air, glaciers and springs ‘have a right to exist, persist, maintain, sustain and regenerate their own vital ecology system’. In holding that these entities are legal persons the Court directed that their rights ‘shall be equivalent to the rights of human beings and the injury/harm caused to these bodies shall be treated as harm/injury to the human beings’. At an earlier point in the judgment, the Court had also commented that ‘[t]rees and wild animals have natural fundamental rights to survive in their natural own habitat and healthy environment’ – however, the rights of wild animals were not reasserted in the decision’s concluding paragraphs and, as noted above, the Court did not go so far as to recognize the legal personality of any of Uttarakhand’s native fauna.

Where to from here?

Whilst Indian law already obliges both citizens and the government to protect the environment, the legal significance of these two judgments is (as suggested by the title of Stone’s article) that litigation can now occur on behalf of certain features of the natural environment. Whether or not this enhances the environment’s protection in practice remains to be seen, although concerns have already been raised regarding the Indian government’s poor track record regarding environmental matters and the Court’s appointment of government officials as persons in loco parentis. As noted by Shivshankar, the second judgment did recognize the need for community participation (providing that ‘[t]he Chief Secretary of the State of Uttarakhand is also permitted to co-opt as many as Seven public representatives from all the cities, towns and villages of the State of Uttarakhand to give representation to the communities living on the banks of rivers near lakes and glaciers’), but failed to specify how community members will be chosen or what their precise role will be. The judgments have further been criticized for failing to unpack what these new ‘persons’ can sue for, who they can sue, and whether there are any breaches of duty in respect of which they themselves can be sued. As things currently stand, a great deal of uncertainty thus remains concerning the implications of their newly established personhood. It is further significant that, since they originate from a High Court judgment rather than the Indian Supreme Court, the orders only apply within Uttarakhand. This clearly dilutes their potential to contribute to the protection of transboundary entities such as the Rivers Ganga and Yamuna.

Asian Elephant, Uttarakhand (Photo by Flickr user Roshan Panjwani)

Asian Elephant, Uttarakhand (Photo by Flickr user Roshan Panjwani)

The judgments would also arguably have been of greater persuasive value for courts in other Indian states, as well as foreign jurisdictions, had their legal reasoning been more carefully developed. Nevertheless, the Court’s acceptance that the spiritual and ecological value of certain aspects of the natural environment, combined with the threats faced thereby and the duties enshrined in the Indian Constitution, constitute ‘good and sufficient reasons’ for attributing legal personality provides an important precedent for future expansions of personhood. Indeed, the Nonhuman Rights Project has already stressed the potential of this precedent to assist animal advocates in making the case for legal rights for nonhuman animals.

Regardless of the various difficulties that will inevitably arise in implementing the Court’s orders, at the very least they reflect an important conceptual shift away from humans’ traditional, anthropocentric notion of environmental management, which has thus far been largely unsuccessful in preventing environmental destruction. Decades before Christopher Stone suggested that nature might be afforded legal standing, Aldo Leopold posited that: ‘We abuse the land because we regard it as a commodity belonging to us. When we see land as a community to which we belong, we may begin to use it with love and respect.’ Recognizing that various aspects of the natural environment, rather than simply being things for us to use, are capable of holding legal rights is an important step towards embracing the latter perspective.

 


08/02/2017

Ecological Literacy and Restoration

By Benjamin Richardson

(Professor of Environmental Law, University of Tasmania; Tilburg University’s Global Law Visiting Chair 2017)

In early 2015 my wife and I purchased 66 acres of wild landscape in our homeland, Tasmania, and set about ensuring its indefinite protection by putting a conservation covenant on the property title.  With this legal protection to “Blue Mountain View”, as we call our land, we joined other like-minded neighbours committed to safeguarding this beautiful niche in Tasmania’s Huon Valley. We have also since participated in some wildlife monitoring projects with environmental groups to better understand the local biodiversity and thereby facilitate long-term conservation planning.

Blue Mountain View, Tasmania (photo: B. Richardson)

Blue Mountain View, Tasmania (photo: B. Richardson)

Becoming an environmental steward with legal responsibility to protect and improve the ecological values of a small piece of our planet is a great privilege, providing exceptional opportunities to forge a more intimate relationship with, and knowledge of, the natural world. This experience reminds me of the writings of Harvard biologist Edward O. Wilson who hypothesized that human beings possess biophilic tendencies.[1] Yet biophilia, like other affections, is unlikely to flourish if not nurtured. If our experience of nature is limited to desolate landscapes with few wildlife beyond the ubiquitous rats, pigeons and common weeds, we are unlikely to appreciate nature’s richness and beauty. Equally, if our daily lives are spent amidst car parks and shopping malls, we will hardly understand the complexity of ecosystems and the need to care for them. In our highly urbanized, consumer lifestyles, the impoverished opportunities for direct interactions with wild places are one of the principal obstacles to making environmental conservation a social priority.

My association with Blue Mountain View has enabled me to acquire much greater ecological literacy than I ever gained from just reading literature and watching nature films. I have come to learn much about the habits of rare or engendered species that inhabit it, such as Tasmanian Devils and Eastern Quolls, and develop a greater sensitivity to nature’s temporalities as observed from the fruiting and flowering of vegetation or the seasonal migration of birds.

Tawny frogmouth, Blue Mountain View (photo: B. Richardson)

Tawny frogmouth, Blue Mountain View (photo: B. Richardson)

But how can we engage the general public with the natural world so as to similarly build ecological literary, respect and affinity?  This is a multidimensional task of which environmental law can only play a part.[2]

A key strategy must be community participation in ecological restoration, the practice of repairing historic or recent damage to landscapes and seascapes. The practice is evoked by the work of New York artist Alan Sonfist. He erected numerous monuments in cities around the globe to commemorate and “heal” their lost ecology. His archetypical work is “Time Landscape”, constructed over 1965 to 1978 in Manhattan in cooperation with the City Botanical Gardens. His “landscape” recreated the original indigenous vegetation of New York on an empty street corner in Manhattan, and the living artwork evokes the processes of nature reclaiming itself.  Serious ecological restoration, of course, must be tackled on a much grander scale.

Restoring nature is vital to defend against the upheavals of the Anthropocene. We shouldn’t assume that sustainability – the dominant goal of modern environmental law – is achievable using current environmental conditions as baselines for legal protections because those conditions are often too degraded to meaningfully sustain. Instead, attaining sustainability may also require some recapturing of prior ecological conditions – lands may need to be replanted with vegetation, fish stocks replenished, and landscapes cleansed of contaminants.

Southwest Tasmania’s world heritage (photo: B. Richardson)

Southwest Tasmania’s world heritage (photo: B. Richardson)

The law must prioritise ecological restoration, a task that will require a major shift from current legal precedents. Major environmental legislation in most countries offers few provisions devoted to this task, mostly focusing on remediation of contaminated brownfields or former mines rather than restoration of entire ecosystems.[3] Fortunately, the governance deficits are starting to be filled by some fascinating initiatives from non-state actors, namely environmental NGOs, community groups, farmers and Indigenous peoples, collaborating voluntarily to restore and rewild nature.[4]

The examples include Gondwana Link, restoring a 1000 km stretch of Western Australia that suffered catastrophic land degradation from misguided farming. Began in 2002, the project aims to reconnect fragmented natural habitats to create a holistic ecological system, through outright purchase of high priority lands and conservation covenants on other properties that are then subject to various restorative interventions.[5] In North America, the Y2Y project – denoting Yellowstone to Yukon – is using a similar approach to Gondwana Link, except over a bigger scale along the Rocky Mountains and involving more jurisdictions and actors.  In New Zealand, which has suffered among the world’s worst biodiversity loses – don’t believe the deceptive “100% Pure” slogan that the country advertises – restoration has been led by community groups sometimes in partnership with government land managers. They are creating huge fenced sanctuaries in which exotic vermin are removed to allow the remnant avifauna to regenerate.[6] And in Scotland a charity called Trees for Life is restoring 230,000 hectares of the ancient Caledonian forest that was grazed and logged to near destruction several centuries ago.[7]

Another approach, better suited to urban denizens, is called “reconciliation ecology”. The term was apparently coined by Michael Rosenzweig to describe restoration projects that benefit people by drawing them closer to their natural environs, including providing aesthetic and recreational benefits.[8] Such reconciliation often takes place in urban areas to bring nature closely into people’s daily lives, such as expanded city parks, restored waterways, and green roofs. One outstanding example is “Zealandia”, a restored bird-rich sanctuary, located near the heart of Wellington, the capital city of New Zealand. Through reconciliation activities, people become more aware of their degraded environs, the opportunities to improve them, and thereby hopefully acquire greater ecological literacy.

‘Citizen science’ is another movement that touches on similar ideas but uses different methods. Citizen science projects involve lay people participating in environmental monitoring to help researchers understand environmental baselines and changes that can then feed into management actions including restoration. Citizen science taps into a valuable community resource while enhancing participants’ ecological knowledge and commitment. Citizen science projects include tracking marine plastic debris[9] and counting birds.[10] Advances in information technology, both in recording and sharing the data such as GPS and remote camera ‘trapping’, have greatly expanded opportunities for citizen science to recruit larger audiences of volunteers. I have been involved in one such project on Blue Mountain View recently.

Trees in heaven, Blue Mountain View (photo: B. Richardson)

Trees in heaven, Blue Mountain View (photo: B. Richardson)

But such community-based initiatives aren’t enough. Volunteerism may not be sustainable in the absence of reliable funding, may lack influence when confronted with uncooperative landowners, and may be undermined by antagonistic government policies and regulations that enable inappropriate economic developments. For instance, some Australian states have enacted recent legislative changes that make it easier for landowners to clear native vegetation.[11] Environmental lawyers must advocate ways for governments to play a more positive role, while preserving community initiative. Such roles could include more generous seed funding and tax breaks, coupled with reforms to land use planning and inclusion of stewardship obligations in all property tenures. Legislative mandates for sustainability should also be redefined to include obligations for restoration and reconciliation where existing ecological baselines are too degraded.

Of course, social change will require more than just law. The arts can also play a special role in enlivening people’s imagination and building their commitment to restoring nature. German artist-entrepreneur Dirk Fleischmann’s project “My Forest Farm” is one of the most ambitious artworks that illustrate this stance. The zero-carbon footprint art “work” is a voluntary carbon–offset program in the form of a reforestation initiative in the Philippines. In 2008, Flesichmann began planting nearly 2,000 trees on four acres with the aid of the local community. His project aims to challenge the booming carbon offset-market which he believes wrongly simplifies the issues of climate change by pretending that the problem of greenhouse emissions can be solved simply by purchasing offsets (an efficient transactional mechanism suited to busy people with no time to contemplate the environmental issues at stake).  My Forest Form reveals the complexities and time-consuming process of carbon-dioxide sequestration. Although his project results in carbon off-setting, he does not offer the carbon credits for sale. Instead, Fleischmann offers art – each of the trees is photographed and its GPS location recorded, and then exhibited in galleries and sold via the project website for 10 euros each. The earnings help fund the reafforestation project and educate the public about nature’s time-scales.

Dragonfly – austrogomphus guerini, Blue Mountain View (photo: B. Richardson)

Dragonfly – austrogomphus guerini, Blue Mountain View (photo: B. Richardson)

In conclusion, when reflecting on the roles of environmental restoration and reconciliation, we should appreciate that it is not just about improving nature but also improving human society. Restoring damaged ecosystems is not a viable long-term proposition if humankind remains emotionally and cognitively detached from its natural environs. Without inculcating greater ecological literacy, society will likely just repeat its past mistakes and undo any gains from new restorations. Participation in restoration projects can help communities understand their place in the deep time-scales of Earth’s landscapes, and may help nurture their biophilic impulse. Not everyone can elope to a place like Blue Mountain View, but we should all have some opportunities to engage with and learn about nature in which we are embedded and dependent like a cell within a body.

 

 

[1] Edward O. Wilson, Biophilia (Harvard University Press, 1984).

[2] See further Benjamin J. Richardson, Time and Environmental Law: Telling Nature’s Time (Cambridge University Press, 2017): in press.

[3] Margaret A Palmer and JB Ruhl, “Aligning Restoration Science and the Future of Law to Sustain Ecological Infrastructure for the Future” Frontiers in Ecology and the Environment 3(9) (2015): 512.

[4] Benjamin J. Richardson, “Reclaiming Nature: Eco-restoration of Liminal Spaces” Australian Journal of Environmental Law 2(1) (2016): 1; Caroline Fraser, Rewilding the World: Dispatches from the Conservation Revolution (Picador, 2009).

[5] Keith Bradby, Amanda Keesing and Grant Wardell-Johnson, “Gondwana Link: Connecting People, Landscapes, and Livelihoods Across Southwestern Australia” Restoration Ecology 24(6) (2016): 827.

[6] Dave Butler, Tony Lindsay and Janet Hunt, Paradise Saved (Random House, 2014).

[7] Adrian Manning, David Lindenmayer and Joem Fischer, “Stretch Goals and Backcasting: Approaches for Overcoming Barriers to Large-scale Ecological Restoration”, Restoration Ecology 14(4) (2006): 487.

[8] Michael Rosenzweig, Win-Win Ecology (Oxford University Press, 2003).

[9] Paul E Duckett and Vincenzo Repaci, “Marine Plastic Pollution: Using Community Science to Address a Global Problem” Marine and Freshwater Research 66(8) (2015): 665.

[10] Jeremy Greenwood, “Citizens, Science and Bird Conservation” Journal of Ornithology 148 (2007): 77.

[11] E.g., Biodiversity Conservation Act 2016 (New South Wales); Sustainable Planning Act 2009 (Queensland).

 


16/05/2011

Do you know today’s Bush Fire Danger Rating in your area?

By Jonathan Verschuuren (TLS)

This question jumped out at me from a large roadside billboard while I was heading down to the south coast of New South Wales for a weekend break. Hmm… Come to think of it, just a few kilometers back I had seen a sign, divided into a number of colored areas ranging from green to red, with an arrow at the bottom. Now which area had that arrow been pointing to?

Australia has recently experienced a severe drought, which lasted for many years and resulted in a huge number of major bush fires. The most notorious of these were the Black Saturday Bush Fires in Victoria, on 6 February 2009, which resulted in 173 deaths. Bush fires are increasing in number and intensity, as a result of climate change. For this reason, a comprehensive adaptation program has been developed to help people be better prepared for these fires. Most people know very well whether they live in a bush fire prone area. In such areas, there are many ways of finding out the day’s Bush Fire Danger Rating (varying from Low-Moderate to Extreme or even Catastrophic). There is a Bush Fire Household Assessment Tool that you can use in the event of a fire to identify the best course of action to take in your own personal situation: Leave Early, or Stay and Defend. There is a Bush Fire Survival Plan giving details of what you need to do to better protect your house against a fire. The Plan comes complete with a “prepare your property” checklist.

A comprehensive government program recently completed in NSW concluded that all schools should be made fire safe through the implementation of a series of measures, depending on the situation on the ground. This might involve clearing vegetation from around buildings, creating or improving escape routes, and making buildings more fire resistant. In one case, where the risk remained high despite these measures, a helicopter was also purchased to evacuate the children in the event of a fire. The fire services also carry out regular hazard reduction burns to reduce the intensity of “genuine” bush fires.

Australia is trying to live with bush fires. In the Netherlands, a period of drought like the present one is exceptional, and measures such as these are hopefully unnecessary.


02/05/2011

Connectivity

By Jonathan Verschuuren (TLS)

26 April, 2011

Scientists are seeing the first effects of climate change primarily in natural phenomena. Migratory birds are returning earlier or they do not migrate at all. Butterflies are being seen in completely new habitats. Plants are growing at higher altitudes. Biologists investigating these phenomena conclude that many species will die out simply because there is a limit to their ability to adapt. A bird may return from its migration early, but if the caterpillar which is its main food source does not appear as expected, then the bird will not survive. And mountains are only so tall: plants cannot grow beyond the summit! Scientists are impressing upon policymakers the need for large, interlinked nature reserves. This will give plants and animals space to migrate to new, suitable habitats.

‘Connectivity’ is a hot topic in Australia, as it is in many other countries. Several initiatives have been put forward to create natural corridors between current nature preserves crossing through agricultural areas and towns and cities. By developing clever projects with the close involvement of private parties and local communities, natural corridors stretching for thousands of kilometers can be created, such as the ‘great eastern ranges corridor’ that stretches along the entire eastern Australian coast. Despite the call for greater connectivity, the current cabinet in the Netherlands is phasing out the ‘ecological main structure’, mainly to save money and because of opposition from the agricultural sector. The ‘great eastern ranges project’ does not have many financial resources. Rather, a local, project-based approach is used that offers small financial incentives to emphasize the ecological and economic benefits and to encourage landowners to get on board. The way in which the Netherlands’ policy on ecology is currently being communicated and implemented pales into insignificance when one compares it with the enthusiasm and passion displayed by Australian politicians who are active in this policy area at the state and local levels.

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