Want to stop biodiversity loss? Give animals property rights

The legal system says that no one lives in Australia’s vegetation. John Hadley

The destruction or modification of habitat is the leading cause of biodiversity loss in Australia and around the world. Letting animals have rights over their habitat could be the answer.

Despite 40 years of government policy directed towards habitat conservation, Australia continues to have one of the world’s highest rates of species decline. The amount of forested area in the country reduces year after year.

The nation’s remaining flora and fauna is in jeopardy. Land clearing is a significant contributor to Australia’s greenhouse gas emissions. Isn’t it time to reform the orthodox approach to biodiversity conservation?

I say reform, rather than abolish. Orthodox biodiversity policy is all about property. Whether we like or not, property is a central part of the legal, political and economic status quo.

It is hard enough getting people to reduce their car use or eat less meat; abolishing property ownership in the name of environmental protection would be the mother of all lost causes.

In theory, property-based conservation policy constrains what the owners of private land, or managers of public lands, may do to native vegetation and water resources.

In reality however, if annual land clearing rates are anything to go by, there isn’t all that much constraining going on.

Except in a small number of cases, landholders intent on clearing high conservation value land can do so readily enough, so long as they get permission first. Why is the loss of habitat such a fait accompli?

One explanation is that within the property-based system, habitat is viewed as ‘terra nullius’; that is, as unoccupied or vacant vegetation.

The animals that live in the vegetation, that use it to meet their needs and those of their offspring, are effectively absent. They don’t have serious representation in their own right.

Animals have a nebulous legal status within the common law. In Queensland, for example, free roaming animals are considered the property of the Crown. In other states the only legal protections extended to animals in the wild are weak, vaguely worded animal welfare provisions in laws regulating hunting.

Because animals don’t have the strong protections that come from legal personhood, we don’t give their interests serious consideration when we make decisions about habitat destruction.

We only protect animals and the vegetation they rely on as home when it suits our interests. Not surprisingly, animals are not even included in the list of relevant stakeholders for the purposes of the NSW Native Conservation Act 2003.

If we can’t abolish the property-based conservation system altogether, what can we do to reform it?

One admittedly radical suggestion would be to give animals rights over their habitat, administered by a human guardian.

The call for extending guardianship — when a person or trust manages property on behalf of a mentally incompetent person — to animals or the environment has been gathering momentum in philosophical and legal circles since the early 1970s.

Recently, the Austrian parliament passed a law requiring each province to appoint an “animal solicitor” to advocate on behalf of animals in court proceedings.

In the United States, there have been a number of high profile legal cases, such as the Cetacean Community v George W. Bush 2004, in which lawyers have attempted, so far unsuccessfully, to obtain standing for animals in the courts.

While legal personhood for animals may still be some way off, it is regarded as inevitable by proponents of animal law. This burgeoning new legal discipline is taught in over 100 law schools around the world, including University of New South Wales, University of Sydney, Australian National University and Griffith University.

Under an animal guardianship system, landholders who want to modify habitat on their land would have to negotiate with a guardian acting on behalf of a designated group of animals.

Just as research from anthropologists has proven useful for identifying stakeholders in the native title system, ecologists could estimate animal territories or home ranges to help us work out which animals would be affected by land-use decisions.

Ideally, guardians would be registered with an independent tribunal and be qualified to make environmentally and ethically informed decisions.

Hopefully, a mandated period of deliberation with a guardian will act as a cooling-off period, a pause in the process that ordinarily leads to habitat loss. It could even prompt a landholder to achieve their land management objectives by more sustainable means.

Guardianship would have the effect of “populating” vegetation. It would lay the platform for habitat to be viewed differently in the institutional spheres that shape biodiversity policy.

Admittedly, giving animals a legal right to be consulted on their habitat is controversial. It may strike many as downright cranky. But keep two considerations in mind.

This proposal isn’t as scary as it seems: eco-tourism, national parks and many forms of sustainable agriculture are likely to be compatible with animals having property rights.

Secondly, existing legislative and policy instruments for constraining habitat loss are not working. As far as biodiversity loss due to habitat destruction is concerned, it really is a case of desperate times call for desperate measures.