Dr Emille Boulot, Lecturer in Law, Faculty of Law, University of Tasmania

Dr Tristan Derham, Research Associate – CABAH Policy Hub (Training and Education), School of Natural Sciences, University of Tasmania

Image: Maugean skate, Institute for Marine and Antarctic Studies

The Albanese Government’s proposed nature positive laws mark a significant departure from current environmental legislation. Unlike existing laws, which primarily aim to mitigate the environmental harms that accompany development, these new laws aim to enhance and improve nature and develop a national environment protection agency and a national nature repair market.

To date, Australia’s environmental laws have proven inadequate, failing to prevent numerous species from nearing extinction. Take the Maugean skate, for example. This unique species is now only known to exist in one estuary in Tasmania’s Southwest. While the causes of skate decline are complex, it is clear that fish farms in Macquarie Harbour are a risk to its survival. Nonetheless, the Tasmanian Government is committed to continued aquaculture there. 

Australians expect more from their governments and their laws, to protect species and restore ecosystems. Many would be surprised to learn that legal systems (laws, policies, and regulations) that are meant to ensure ecological restoration can facilitate land degradation. By assuming that ecological damage is repairable, restoration laws and regulations pave the way for agriculture, forestry, suburban development, and other private interests to clear native vegetation and pollute waterways, soils, and the atmosphere. Regulatory institutions such as state-level Environmental Protection Agencies are under-resourced and undermined by their ministers and government, resulting in a mere semblance of protection, effectively midwifing further forms of destructive extraction. Often, the regulatory goal is merely repair of the ecosystem for some further economic use. In general, our laws and policies treat ecosystems as mere material resources. Ecologists, on the other hand, understand that forests are more than wood banks and that estuaries are more than fields for fish farms.

The challenge is much deeper than developing more efficient or better resourced regulatory systems of the existing kind. We need to change the legal systems that prioritise unsustainable extractive industries and other land-degrading activities. Instead, laws that govern the uses and the repair of natural landscapes should be decoupled from the underlying causes of land degradation, and narrow, economic interests.

Can laws, policies, and programmes reflect a healthier relationship between humans and nature, one that is not restricted to exploitation? What would that mean for proposed nature positive laws? How can governments legislate to restore the human-nature relationship and restore social and ecological wellbeing? 

To fully realize the potential of nature positive laws that facilitate a relational ethic between humans and nature we suggest that four elements be considered:

Recognising humans as a part of nature: It’s tempting to think that protecting and restoring ecosystems means removing people from landscapes but this is not the answer. It is not the presence of humans that degrades nature but our actions which can harm or heal the land. For example, in the Western Desert, people have contributed herbivory, predation, seed dispersal and bioturbation to their ecosystems for thousands of years. Taking people off the land can have huge ecological consequences, such as those demonstrated in northern Tasmania. Ecological restoration itself is often best achieved by local communities, working within their own ecosystems rather than working on them. In many cases, without leadership and governance by First Nations people in particular, restoration is more likely to fail. It works both ways: ecosystems need the support of their local communities but human communities need healthy ecological communities as well.

Embracing long-term perspectives: Relational ‘nature positive’ laws must adopt a forward-looking perspective, encompassing both past and future considerations on the scale of generations. Unlike conventional conservation programmes, which are often forced to operate within short timeframes (often associated with election cycles), repairing nature’s intricate web requires a patient, adaptive approach. For some ecosystems, it may take centuries to restore function and resilience. This long-term vision (not to mention the funding commitment to match it) is key to ensuring lasting environmental health and shifting law beyond the short timeframes of economic markets and government budget cycles.

Accountability, enforcement and effective oversight are crucial (or, sometimes ‘say no!’) Environmental laws are often not enforced. As a result, regulators are criticised for being toothless. This undermines law, politics, and the chances of survival for species like the Maugean skate. Environmental regulators need to be effectively resourced, legally empowered, and publicly backed by their Ministers to hold developers and other proponents accountable for environmentally degrading activities. Crucially, regulators must be able to prevent cumulative damage of landscapes, or ‘death by a thousand cuts’.

Ensuring adequate funding: The pursuit of a healthy, resilient environment is not a luxury; it is a necessity. It is a public good and we can afford to pay people to provide it. Indeed, our identities, our health, our wellbeing and our very survival depend upon a healthy environment, but the Albanese government, like its predecessors, has shown little inclination to publicly fund restoration and nature positive programs. Instead, they have focused on increasing private markets. Market-based mechanisms have not only caused much of our environmental decline, they have largely failed to deliver positive nature impacts. One promising solution is to fund environmental repair by halting the subsidisation of fossil fuel and other unsustainable extractive industries and implementing a nationwide green levy, collected from all major resource users.

As the earth’s ecological stability continues to erode it becomes increasingly difficult to ignore the fact that human life cannot be separated from the natural world. Nature positive law must be capable of including the myriad of nonhumans in whose midst we already live, relate to, and require. More than this, nature positive law should recognise that humans and nature co-constitute one another, that our ecological communities are part of the fabric of our society, and that social and ecological wellbeing must be placed above narrow, reductive economic measures of wellbeing.