Sustainable Development and the Law
Author: Cormac Cullinan ~ CEO of EnAct International & Director of the specialist environmental law firm Cullinan & Associates Inc.
( Article Type: Sustainable Development )
The South African Constitution gives everyone the right to have the environment protected 'through reasonable legislative and other measures that secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development'. In framing this basic human right in this manner, the Constitution recognises the reality that economic and social development can only occur within the limits of what can be sustained ecologically. However worthy our reasons for 'development' may be, if we catch fish or cut down trees faster than they can be replenished we are degrading our world, impoverishing our children, and in the long run, destroying the habitat on which we and other species depend.
Despite this constitutional right, in many cases we are not only failing to achieve the goal of ecological sustainability, but accelerating away from it. The magnitude of the 'environmental crises' that faces us at the present time is difficult to overstate. Human pressures on Earth's life-supporting systems are causing them to deteriorate rapidly and possibly irreversibly. The gap between rich and poor continues to widen, and communities continue to disintegrate. The inescapable conclusion is that if we continue with our present modes of behaviour, our species (and many others) do not have a viable future.
A crisis of governance
The fact that our species is consuming its habitat can only mean that our systems for governing ourselves are seriously dysfunctional. What we call the 'environmental crisis' is really symptomatic of a governance crisis.
Our government, like many others around the world, has recognised that the implementation and enforcement of environmental treaties and laws must be drastically improved in order to afford better protection to the environment. However, few appear to have realised that the structure of our legal systems and the human-centred nature of the philosophies (jurisprudence) on which our legal systems are based, are now impeding the attainment of ecologically sustainable ways of living. The overall effect of our current legal system is to legitimise and encourage unsustainable human practices, rather than to prevent them.
The crucial challenge facing the current generation is to begin to regulate human behaviour so that it contributes to, rather than undermines, the Earth's systems. This means not merely adjusting our legislation to restrict the most environmentally harmful activities, but completely re-thinking our legal and political systems.
Our governance systems are defective because they are based on a false understanding of how the universe functions, and of our role within it. The core falsehood is that we humans are separate from our environment and that we can flourish even as the health of Earth deteriorates. In fact, we have convinced ourselves that our health and wellbeing depends on exploiting the Earth as fast as possible. The exact opposite is true: we have evolved within, and remain an inextricable part of, the community of life on Earth. Desolation, dysfunction and disease are the consequences of believing that human fulfilment is attainable outside of this 'Earth Community' or that it can be achieved at the expense of the health of the community as a whole.
This illusion of independence is exacerbated by the myth that we are the 'master species' whose destiny it is to run this planet for our own benefit. The dominant cultures in our world are as convinced of the superiority of our species over others and of our right to rule and exploit the planet as most white South Africans once were about their right to oppress other South Africans.
Laws have been used to 'hard-wire' these mistaken beliefs into the structure of our societies. For example, the law has reduced all other aspects of the Earth and all other creatures to the status of objects for the use of humans. Other living creatures have no rights, and for as long as they are legally defined as 'things' (as slaves once were), the law will regard them as incapable of having rights.
If the societies that dominate the world are to turn away from the destructive and potentially fatal direction in which they are currently headed, we must change not only our understanding of the role of humans within the Earth Community, but also our governance systems to ensure that humans act in accordance with this new worldview.
We humans are an integral and inseparable part of the Earth Community and must govern ourselves in a manner that ensures that our pursuit of wellbeing does not undermine the integrity of the Earth, from which that wellbeing is derived. In doing so we would be well advised to draw on the wisdom of African customary law, and other indigenous cultures, about how to play a mutually beneficial role within a community that is conceived of as including other species and beings, ancestors, and the unborn. This is not a call to return to some mythical, pre-industrial state of complete harmony with nature. The point is simply that much of the wisdom that we need already exists and we need to find practical ways of applying ancient truths and insights in today's world if we are to survive.
It is important to appreciate that the defects in our governance system cannot be solved merely by legislative reform. The problem is not simply that our laws must be refined to make them more effective. In fact our laws, by and large, do accurately express the defective worldview on which they are based. Our governance systems, including our legal and political establishments, perpetuate, protect and legitimise the continued degradation of Earth by design, not by accident.
In developing this new 'Earth Governance' approach, we must recognise that we are but one part of the larger Earth Community and consequently our governance systems must be designed to be consistent with the larger order of the universe, and of Earth in particular. In order to do this, we must develop laws, policies, institutions and political structures that:
- Place a greater emphasis on our responsibilities towards the rest of the Earth Community rather than on our rights to exploit it;
- Focus on strengthening the relationships that create the Community and on emphasising balance, reciprocity and restorative justice in relationships both within human communities, and between humans, other species and the ecosystems within which we exist;
- Recognise the important role of non-human members of the Earth Community and restrain humans from unjustifiably preventing them from fulfilling those roles; and
- Require us to expand our understanding of governance and democracy to embrace the whole Earth Community and not just humans.
Developing South African law to promote ecological sustainability
Despite the fact that our legal system does not recognise that it must be consistent with a greater system of natural order if ecological sustainability is to be achieved, there are some glimmers of hope. As previously mentioned, the Constitution refers explicitly to 'ecologically sustainable development', while the National Water Act 36 of 1998 recognises that humans must share water with other species. Part 3 of the Act requires that a 'reserve' consisting of a defined quantity of water of a particular quality, must be maintained in water courses both to satisfy basic human needs, and 'to protect aquatic ecosystems in order to secure ecologically sustainable development and use of the relevant water resource.'
One of the most encouraging trends is the growing recognition that we need plans, policies and strategies within the national, provincial and municipal spheres of government that promote sustainable development, and that are consistent with plans and strategies to conserve water and biological diversity. These policies, plans and strategies have the potential to facilitate a more proactive approach to re-orienting our society towards the achievement of ecologically sustainable development. For example, the Western Cape provincial government is developing new legislation that will require all official decisions regarding the use of land to be based on an evaluation of whether or not the proposed development will contribute to the achievement of ecologically sustainable development. Strategic environmental assessments of public policies and plans are also beginning to be used as a tool to take account of the impacts which our decisions have on the natural environment.
However, it is important not to be complacent as there have also been setbacks. In 2004 a great opportunity to affirm the fundamental principle that all forms of life have intrinsic value, regardless of their usefulness to human beings, was missed by failing to include this principle in the National Environmental Management: Biodiversity Act 10 of 2004. This despite the endorsement of the principle by the White Paper on Biological Diversity and by many international instruments such as the 1992 Convention on Biological Diversity. Alarmingly there is now pressure to cut back on environmental impact assessments in order to achieve shortterm growth goals.
In order to achieve ecological sustainability, we need to make a dramatic philosophical shift from a worldview that places human beings at the centre of the universe, to a view that sees the maintenance of the integrity of the whole Earth system as the overriding concern. This will also require us to expand our understanding of community to include non-humans, and to base our decision-making on what is good for the Earth Community as a whole.
The major challenge of our times is to find novel and practical ways of drawing inspiration from the rich diversity of human experience as well as modern scientific insights in order to establish effective means of governing human behaviour to ensure that we contribute to the flourishing of the whole Earth Community instead of destroying it. Government of the people by the people is no longer sufficient. We need governance of the people by the people for Earth.
The views in this article are expressed more fully in Wild Law (Siberink, 2002), by Cormac Cullinan, which lays the foundations for a new ecocentric approach to law and governance.