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(Re)Imagining the World Through an Ecological Law Lens. By Gabriel D'Astous and Larissa Parker

Updated: Feb 3, 2022

A World in Crisis

As the world continues to respond to the Covid-19 pandemic, politicians and policy-makers have started to turn their minds to the multitude of environmental crises that humanity is facing, and particularly climate change. In early May, President Biden hosted a climate summit which saw countries increase the ambition of their GHG emission reduction targets. However, there is still no clear path to limiting global warming to 1.5ºC. Beyond the climate crisis, humanity will also have to slow the massive loss of biodiversity by reversing what is being called the sixth mass extinction. We could easily add plastic pollution, deforestation, air and water pollution, as well as food and water insecurity to the list of environmental crises threatening the globe. While there are necessarily innumerable causes and solutions to all of these environmental crises, it is no secret that human activity over the past few centuries is the main contributing factor.

The Relationship Between Law and Degradation

Our legal systems play an important role in shaping the way we interact with each other and the world around us. Particularly, although environmental laws have produced progress in a number of important areas, they are also rooted in prominent causes of environmental degradation, such as excessive consumption of resources, and highly discretionary regimes.[1] In this way, how environmental law is conceived and implemented has a direct impact on the environment. The same is true of other areas of law such as property law, which defines what is and isn’t property and what a property owner can or can’t do with their property, mining law, maritime law, and trade law. Indeed, environmental law has proven to be insufficient to adequately protect the Earth for a number of reasons; these include their anthropocentric purposes and rationales, along with their tendency to compartmentalize environmental issues.

Towards Ecological Law

So what would the legal landscape look like in a world where we seriously attempt to solve all these environmental crises? The emerging field of ecological law tries to answer just this question. Ecological law is distinct from environmental law because, as we will explain, it does not seek to amend environmental law, but it proposes a lens and principles that should underlie all areas of law. Central to ecological law is recognition of ecological primacy and ecological limits. As Geoffrey Garver writes, planetary boundaries of safe operating space for humanity provide scientific and ethical foundations for an ecological rule of law.[2] Thus, as stated in the ELGA Oslo Manifesto, ecological law “requires human activities and aspirations to be determined by the need to protect the integrity of ecological systems. Ecological integrity becomes a precondition for human aspirations and a fundamental principle of law.”

Another scholar, Carla Sbert, has put forward three interconnected principles at the heart of ecological law.[3] First, ecocentrism recognizes the interconnectedness of all beings and their equality. Second, ecological primacy ensures that human activity does not irreparably damage ecology. This entails respecting planetary boundaries, limiting material and energy consumption to respect ecological limits as well as restoring ecosystems. Third, ecological justice demands that intergenerational, intragenerational and interspecies equity be part of our laws. We would add that respect for Indigenous rights and self-determination are also an important part of ecological justice. Overall, ecological law seeks “to internalize the natural living conditions of human existence and in this way informs the entire spectrum of legal areas such as constitutions, human rights, property rights, corporate rights, and state sovereignty.”[4]

In other words, how might our laws and policies transform when examined through such ecological law principles? What would our legal systems look like if we recognized the life of an animal or an ecosystem as being just as valuable as a human being? Would provincial governments continue to greenlight the logging of old growth forests that sustain dwindling caribou populations in Québec and British Columbia? Would they continue to approve intensive fossil fuel projects without considering the ecological limits of the Earth or climate change’s impact on intergenerational and intragenerational equity? Would racialized, Indigenous, and poor communities disproportionately bear the brunt of toxic pollution in such a world? Can principles of equity between the Global North and the Global South shift the state of international trade law, if they were incorporated into law?

Introducing Our Project

Members of the Law & Governance research group of Leadership for the Ecozoic (McGill University) have recently launched a project to help us see our world through the lens of ecological law. Under the direction of Geoffrey Garver, numerous teams around the world have undertaken to study a number of ecological law case studies. Each one of these case studies focuses on a development project. It then identifies all the laws, both environmental and not, that led to the approval of this project. Finally, each team will try to reimagine what these laws would be if they incorporated ecological law principles. These case studies will demonstrate how ecological law would not only shape environmental law, but all legal areas. Further, the project will highlight how detached our current legal systems are from the ecological realities of Earth.

The current project consists of five case studies which will focus on wildlife management in Vermont, the impact of the St. Lawrence Seaway dams and canals complex on Kahnawà:ke in Canada, the environmental degradation of the River Ethiope in Nigeria, the impact of High Seas law on marine biodiversity and the Anatópolis mine in Brazil. If you are interested in learning more about this project, L4E will be hosting a webinar on June 15th on the various case studies. See flyer below for more information.

Further Readings on Ecological Law:

Kirsten Anker et al, eds. From Environmental to Ecological Law (Routledge, 2020).

Carla Sbert, The Lens of Ecological Law: A look at mining (Edward Elgar Publishing, 2020).

Klaus Bosselmann & Prue Taylor, Ecological Approaches to Environmental Law (Edward Elgar Publishing, 2017).

[1] See generally David Richard Boyd, Unnatural Law: Rethinking Canadian Environmental Law and Policy(UBC press, 2003).

[2] Geoffrey Garver, “The rule of ecological law: The legal complement to degrowth economics” (2013) 5:1 Sustainability 316.

[3] Carla Sbert, “El Salvador’s Mining Ban and Mining in Ontario’s Ring of Fire from the Lens of Ecological Law” (2019) 43:3 Vt L Rev 517. [4] See Kirsten Anker et al, eds. From Environmental to Ecological Law (Routledge, 2020) at foreword.

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