Natures Right to protection?

Last night, Climate Case Ireland hosted an online panel discussion titled “Establishing Constitutional Environmental Rights in Ireland” including guest speakers David Boyd (UN Special Rapporteur on human rights and the environment), activism expert Ailbhe Smyth and researcher in Environmental Justice in Columbia, Carlos Olaya. This talk inspired me to pick up a few key points in this post. The whole talk can be viewed online here:

In recent years, Ireland has managed to modernise her constitution through progressive referenda, such as the (same-sex) marriage referendum in 2015 or the 2018 referendum that sought to repeal the 8th amendment which prohibited termination of pregnancy under any circumstance. Climate Case Ireland -which is the effort of Friends of the Irish Environment (FIE) to take the Irish Government to the Supreme Court for failing to take adequate action on climate change. The case was heard over four days in January 2019, which was a spectacle I am very proud to have attended. The case was lost initially, but then appealed, and in the end – won! – by Climate Case Ireland, and by us, the Irish people as part of our protection-deserving environment.

The idea behind this online discussion – so Emer Slattery (FIE), who presented the webinar – stems from the admission by the Chief Justice to “an unenumerated right to a healthy environment being consistent with the dignity and wellbeing of the citizens at large.”

A right to a healthy environment was almost admitted by the Court, so what is the next step? I shan’t attempt to answer, these guys did a much better job at that. I particularly loved the philosophical aspects of the discussion:

Ailbhe Smyth mentioned, that the right to a healthy environment protects the elements of the environment, when in a constitution, states interpret it as healthy resources for humans, but shouldn’t they also manifest the right to a healthy environment for ecosystems? Hence, should a constitution consider “natures right to protection” rather than the “citizens right to a healthy environment”.

David Boyd writes in his article “The constitutional Right to a Healthy Environment”, that Environmental rights and responsibilities have been a cornerstone of indigenous legal systems for millennia. Some time along our way through christianisation, industrialisation and modernisation we degraded our ancestors wisdom and reformed our legal systems disregarding the ground we stand on. It took us til the 1960ies for the first written suggestion that there should be a human right to a healthy environment. Now more than 90 national constitutions include environmental rights.

A commenter mentioned in the webinar chat, that the Brehon law (the native Irish legal law which applied prior to the adoption of common law in Ireland in the 17th century) included considerations for environmental protection. Naturally, I had to look this up, and it is indeed fascinating stuff:

The Brehons (or brithem) were the successors to Celtic druids and their role was to preserve and interpret the law, kind of like an arbitrator. As article “Remembering the Past” states, “In many respects, Brehon law was quite progressive. It recognised divorce and equal rights between the genders and also showed concern for the environment.”

Mistreating trees for example, under Brehon law led to penalties similar to those for mistreating humans. The early Irish relationship with trees, as described in the law, was not just utilitarian, but deeply spiritual and tied to the people’s identity.

Below you can see some of the penalties for harming or killing trees under Brehon Law:

1. Nobles of the Wood
Airig Fedo
Oak (dair)
Hazel (coll)
Holly (cuilenn)
Yew (ibar)
Ash (uinnius)
Scots pine (ochtach)
Apple (aball)
Alder (fearn)
Willow (saille)
Whitethorn (scé)
séts (=2.5 milk cows)Not mentioned in the law
2. Commoners of the Wood
Aithig Fedo
Rowan (cáerthann)
Birch (beithe)
Elm (lem)
Wild cherry (idath)
Blackthorn (draigen)
Elder (trom)
Spindle tree (féorus)
1 milk cowséts
3. Lower Divisions of the WoodWhitebeam (findcholl)
Arbutus (caithne)
Aspen (crithach)
Juniper (crann fir)
Bracken (raith)
Bog-Myrtle (rait)
1 yearling heiferséts
4. Bushes of the Wood
Losa Fedo
Furze/Gorse (aitenn)
Bramble (dris)
Heather (fróech)
Broom (gilcach)
Wild rose (spin)
1 sheep1 yearling heifer

So, you better not run around killing elders or apple trees, or you end up paying the bitter price of 5 séts (units) aka 2.5 milk cows – ouch!

As Tina R. Fields wrote it so beautifully in her article “Trees in Early Irish Law and Lore: Respect for Other-Than-Human Life in Europe’s History”: “Brehon Law provides an example from European history that illustrates traditional ecological knowledge (TEK) and animistic relationships with the more-than-human world of nature.”

In the end, while I dread policies and politics, what I take from this talk is that we should be taking ownership of our constitution and that we need to figure out a way how we can become connected to nature not in just a superficial latte-in-a-bamboo-cup-kinda way, but in true connectivity, in synch with our ecosystems and with a deep respect and understanding of our dependence on it.

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