“[Environmental law] is a branch of law that’s primarily concerned with the impacts of human activity on the natural environment. Distinguishable, however, is environmental law that seeks to diminish those impacts and environmental law that actually serves to legitimise those impacts. Environmental law frameworks, not fundamentally, not geared around protecting the environment, we need an alternative. And it’s in this space that the concept of ecological jurisprudence, or Earth law or wild law, has emerged,” she explained.

“In 2008, Ecuador became the first country to enshrine the rights of nature in its national constitution. So, where America has a bill of human rights in Ecuador, they now have rights of nature. That constitutional amendment gives Ecuadorian standing to file suit when the rights of mother nature are being abused. And that’s been challenged many times. Most recently, it was upheld in December 2021, when the Constitutional Court revoked the governmental authorisations granted to mining corporations that were operating in the Los Cedros Reserve. So that mining operation was deemed to be unconstitutional.”

While Elzer said that there have been a few similar developments in Australia, the country is still “behind the rest of the world”.

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“Most notably, in 2017, the Victorian Parliament passed the Yarra River Protection Act. And that act, while it doesn’t grant legal personhood, interestingly, if you read through it, it refers to the river as a natural entity. Now, that word entity arguably paves the way for a rights of nature discourse here in Australia. There’s a lot of grassroots movements happening around Australia,” she added.

“The Australian Earth Law alliance supports a lot of smaller groups that are just talking about this topic of Earth law and very much engaging with localism on the ground. So, I’d say there’s definitely a lot happening here, but in terms of legal precedent, it’s been slower than the rest of the world.”

In September 2020, eight young people, representing all people under 18, filed a class action to block the extension of the Whitehaven Vickery coal mine, claiming that digging up and burning coal will make climate change worse and cause harm to future generations. This case, Elzer said, is particularly notable.

“There’s been a string of climate litigation. You may have heard of the Sharma case, which was quite big recently. Applicants are bringing cases against parliamentarians in their duties, trying to call them to account in their duties to protect not just children, but our population from environmental harm, from climate change. So, there’s been some great movement in that area,” she said.

“Unfortunately, the Sharma decision was appealed and overturned on appeal, so that was quite disappointing. But it actually also highlighted the lack in our environmental legal framework. It highlighted that in our key cornerstone environmental legislation, the environment biodiversity protection act. It couldn’t even be implied that the minister had a duty to care for the mean. I think as disappointing as it was, it was quite revealing as well.”

Despite there being a variety of international precedents to draw upon, a great deal of momentum would be needed for the environment and other ecological beings to have legal standing moving forward in Australia.

“There needs to be a fundamental shift there in the way that we think about nature and understanding that it has an intrinsic right to exist and flourish. And this is just a minor shift in the way of thinking. But when nature does exist and flourish, then humans exist and flourish as well. I think it’s a mental shift that actually needs to occur,” Elzer said.

“It really involves shifting away from an anthropocentric viewpoint. So that anthropocentrism really does underlie our legal system at present. And it’s very hierarchical, where you’ve got humans sitting at the top, and even humans, there are some humans that are more important than other humans, and then we might have some animals more important than other animals, and we trickle down all the way in this hierarchical fashion, so this area of Earth law, it really does involve re-envisaging that jurisprudential basis more towards an environmentally centred way of thinking about law. And when you do that, the whole thing starts to look very different.”

The transcript of this podcast episode was slightly edited for publishing purposes. To listen to the full conversation with Mieke Elzer, click below: