Earth jurisprudence

In 2001 the United Nations Millennium Assessment undertook a four-year study, involving 1,300 scientists from 71 countries on the health of the planet. Their final report was released in March 2005 and found that every living system in the biosphere is in a state of decline and the rate of decline is increasing.

It is further estimated that humans are responsible for the extinction of between 50,000 and 55,000 species each year, a rate unequalled since the last great extinction, some 65 million years ago. These systems and species provide the basis for all life and as we destroy nature we will unravel all life support systems on the planet.

Standing at the dawn of the 21st century there is no greater concern than the fate of our environment and the Earth community it supports. In response to this there is a growing recognition that our current approach to environmental law is insufficient and as environmental lawyer Thomas Linzey notes, “according to every major environment statistic things are worse now then they were forty years ago” when the first environmental protection legislation was passed.

The reasons why our current system of environmental law is failing are rich and complex. However, I contend that one important reason is inherent to law itself. Indeed, in agreement with Thomas Berry, I contend that human beings have “rejected our role as an integral member of the earth community in favour of a radical anthropocentric life attitude”.

Anthropocentrism is defined by Albert Einstein as “an optical delusion of human consciousness” where we come to regard “humanity as the centre of existence”. To this definition, I consider anthropocentrism as further encompassing the view that human beings are separate to the planet and all living systems and the assumption that the universe exists to satisfy the needs and desires of human beings. The division of the world into human beings and nature formed the basis of the modern idea of property law. Indeed, under western law, nature is regarded as human property and by definition is a legal object that can be bought, sold, exploited and destroyed to satisfy human preferences. Nature receives its protection through the property rights of human beings, not because they have recognised value or legal rights.

Several problems flow from this framework. To begin, it may not be in a property owner’s economic interest to protect the environment; there might be disagreement over ownership, especially in regard to international waters; and the ecosystem may be unknown or of little recognised (known) value. More fundamental than these practical problems, the status of nature as property creates a fundamental disconnection between human’s and the environment and as David Suzuki notes this enables us to “act on nature, abstract from it, use it, take it apart; we can wreck it, because it is another, it is alien”.

Property is the mechanism through which nature becomes vulnerable to human exploitation and as Dr Paul Babie notes:

All resources are allocated or distributed among people according to the private property concept. The earth is dying, therefore, because humankind sees it as private property, capital, valuable only if exploited for economic gain. The domestic legal system of every society that invokes the private property concept uses it as a rationale and justification for an exploitative stance toward the earth’s natural resources.

The perceptions that human beings are disconnected from the environment and that nature exists for human benefit are clearly outdated and harmful ideas. On this point, psychologists James Hillman notes “even to think we are separated from nature is somehow a thinking disorder … [y]ou can’t be separated from nature. Certainly, modern science is illustrating that human exist as part of a broader ecosystem or web of relationships. Rather than evolving to reflect this knowledge out law remains trapped in a universe that no longer exists and as Cormac Cullinan notes “we continue to govern ourselves on the basis of a discredited understanding of how the universe functions”.

The status of nature as property not only enables human beings to exploit the Earth, it provides a weak framework for environmental protection. Under this framework we are forced to adopt a regulatory approach to environment law. This means that once a company has ticked the appropriate boxes and so long as they stay within the prescribed legislative boundaries, the activity is acceptable.

In response, the great majority of work done by environmental lawyers and the most obvious form of protection offered to communities is to monitor corporate activity and check license applications. In this sense, the only thing environmental law regulates, are environmentalists. They regulate the way environmentalists respond, and this makes us predictable. Further, any resulting legal challenge is tax deductable for the corporation and in many instances money is set aside for this contingency.

This approach is further weakened when companies have “indenture acts” that permit legal override of environmental laws. The most obvious and harmful example of this is the Roxby Downs Indenture Ratification Act 1982 (SA) that exists over BHP Billiton’s Olympic Dam lease and overrides the States Environmental Protection, Aboriginal Heritage, Natural Resource Management, Water Resources and Freedom of Information Acts.