Joint Committee on Environment and Climate Action díospóireacht -
Tuesday, 17 Oct 2023

Citizens Assembly Report on Biodiversity Loss: Discussion (Resumed)

An Cathaoirleach

Apologies have been received from Senator Higgins, for whom Senator Black is substituting, and Deputy Alan Farrell. The purpose of the meeting is to discuss the recommendations contained in the report of the Citizens' Assembly on Biodiversity Loss relating to the rights of nature and environmental law. On behalf of the committee, I welcome from the Centre for Democratic and Environmental Rights, Ms Mari Margill, executive director, and Mr. Thomas Lizney, senior legal counsel, both of whom are attending remotely; and from University College Cork, Dr. Áine Ryall, who is in the room with us. Dr. Peter Doran from Queen’s University Belfast, who is due to attend, has been delayed but we hope he will join us shortly. We welcome also from Maynooth University, Dr. Mary Dobbs, who is joining us online, and Dr. Orla Kelleher, who is here in the room.

Before we begin, I will read out a note on privilege. I remind our guests of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. If their statements are potentially defamatory in respect of an identifiable person or entity, I will direct them to discontinue their remarks and it is imperative they comply with any such direction. For those witnesses who are attending remotely from outside the Leinster House campus, there are limits to their parliamentary privilege and, as such, they may not benefit from the same level of immunity from legal proceedings as does a witness who is physically present on the Leinster House campus.

Members of the committee are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I remind members that they are only allowed to participate in this meeting if they are physically located on the Leinster House campus. In this regard I ask all members who are joining online or remotely from their offices, prior to making their contribution, to confirm they are on the grounds of the Leinster House campus.

I call Ms Margil to make her opening statement, please.

Ms Mari Margil

I thank the committee for the invitation to be here today. I am executive director of the Centre for Democratic and Environmental Rights. I am joined by Thomas Lizney, our senior legal counsel. The centre is a non-governmental organisation based in the United States. We work in countries including Ecuador, Nepal, and the UK, assisting governments, communities and civil society to advance laws which recognise the legal rights of nature.

Since 2006, national rights of nature laws have been enacted in five countries: Ecuador, Bolivia, Panama, Spain and Uganda. Local laws have been adopted in the US, Canada and Brazil. Courts in Colombia, Bangladesh and India have recognised that rivers and other ecosystems have rights. These all recognise, for the very first time, that nature possesses legal rights, including rights to exist, flourish, regenerate and be restored.

In 2021, Donegal County Council adopted a rights of nature policy. Belfast and other councils in the North have as well, including very recently, amid the growing ecological crisis with Lough Neagh, calling for the recognition of legal rights of the lough. My colleague, Thomas Lizney, drafted the very first rights of nature law in the world. This was for a community in the US facing the dumping of toxic waste. The community found that environmental laws, rather than protecting against the pollution, were in fact authorising it to take place. They recognised the need for a different approach, one in which nature was no longer considered a thing that environmental laws regulate the use and exploitation of. Rather, it was time, in the eyes of residents, to recognise that nature is a living entity with legal rights, including the most basic of rights: the right to exist. Environmental laws around the world treat nature simply as a thing - a resource - with laws regulating its use. As such, environmental laws legalise environmental harm, including the destruction of ecosystems and pollution of land, air and water. Under such laws, today we face global environmental crises, including ecosystem collapse, soaring species extinction rates, biodiversity loss, and climate change. In the face of this, civil society, governments and courts are recognising that we need to make a fundamental shift in humankind's relationship with the natural world, that we can no longer, as Colombia's constitutional court put it, act as a "ruler" of nature, that we must recognise that we are part of nature. This means changing how we govern ourselves toward nature and how nature itself is treated under law.

In 2008, we were invited to consult with Ecuador's Constituent Assembly that was formed to draft a new constitution. Facing threats to its fragile ecosystems, from the Amazon to the Galapagos, and to species in a country renowned for its biodiversity, we worked with assembly delegates and civil society to draft rights of nature constitutional provisions. With this, Ecuador became the first country in the world to enshrine the rights of nature in its constitution. Since then, many cases have been filed in Ecuadorian courts to enforce these rights, including recently to overturn mining permits issued in an endangered species habitat in one of the country's cloud forests.

Here, the Citizens' Assembly on Biodiversity Loss has recommended amending the Constitution to recognise the human right to a healthy environment and the rights of the environment itself. We believe both are important. In Ecuador, the constitution recognises both sets of rights.

Ecuador's constitutional court has ruled that protecting the rights of nature is essential to protecting the human right to a healthy environment. The rights of nature radiate through Ecuador's constitution, complementing and helping to protect the human right to a healthy environment. This builds on a growing understanding, as Pope Francis stated in his 2015 speech at the UN that, "Any harm done to the environment ... is harm done to humanity." He called on all nations to protect the environment and explained that a "right of the environment does exist." Far from being abstract, this work is about empowering nature's defenders with a new set of tools, designed expressly for the growing ecological crises we face. In the face of these crises, governments around the world are recognising that the rights of nature are central to the path forward. We offer whatever assistance we can to the committee as it moves forward and look forward to any questions members may have.

Dr. Áine Ryall

The citizens' assembly made the stark finding that: "The State has comprehensively failed to adequately fund, implement and enforce existing national legislation, national policies, EU biodiversity-related laws and directives related to biodiversity." That key finding made clear that a fundamental change in approach is needed right across all levels of environmental governance if we are going to reverse the decline in biodiversity and move towards restoration. My brief statement will focus on two elements. First, implementation and enforcement of environmental law and, second, environmental rights.

On implementation and enforcement, I start by emphasising that we already have an extensive range of environmental laws in place, and many of which are specifically designed to protect nature and biodiversity. Implementation and enforcement of this existing body of law must be a priority. The assembly makes this crystal clear in recommendation 2 and again in recommendation 8. It is essential that this fundamental point about prioritisation, implementation and enforcement of our existing nature laws must come through clearly in this committee's recommendations and report to the Government. The assembly also recommended changes to our existing court structures to provide what it described as an environmental court at the District Court and Circuit Court levels. Specialist environmental courts are well established in a number of other jurisdictions. There is no doubt that specialisation can bring significant benefits. That much is clear. However, this is only if the design and implementation of any new model is properly worked out and fits well within existing structures. There are complex issues here that need to be teased out. I am happy to further discuss those issues with the committee, if that would be helpful.

Interestingly, the assembly took the view that all citizens - this is the expression used in its report - should be empowered with legal standing to protect nature and biodiversity in the courts. As many committee members will be aware, standing is one of a number of elements governing access to justice in environmental matters. Beyond that question there are other important elements. Access to the courts must be affordable. It is well known that legal costs can be prohibitive in practice, at least in some cases. The remedies available, including injunctive relief - a court order preventing environmental damage and harm from arising in the first place - must be available and effective.

All of those elements are essential if individuals, NGOs and others are to be empowered to enforce the law with a view to protecting nature and biodiversity.

To be clear, there is a very important public interest dimension to all this. In my view, that is another essential point that should come across powerfully in this committee's report to the Government. The public plays a very important role in enforcement of environmental law, including our nature protection laws.

Turning to environmental rights, it is well known at this stage and was mentioned by the first witness that the assembly recommended that a referendum be held on an amendment to the Constitution to protect biodiversity and that that proposed amendment should include both what are called the substantive human right to a healthy environment and the procedural environmental rights. The procedural environmental rights, in order that everyone is clear, include the right to information on the environment, the right to participate in environmental decision-making and, probably most important of all, the right to access to justice in environmental matters, which I have mentioned previously. The substantive right and the procedural rights go hand in hand. Both fit together, and that is the approach that has to be taken.

What I will say at a more general level, which may be of assistance to the committee, is that there is a growing consensus internationally and at European level of recognising the right to a healthy environment. That reflects the challenges we face as a society and as a global community. The strongest and possibly most important example of that is that, in July 2022, the United Nations General Assembly adopted a resolution recognising "the right to a clean, healthy and sustainable environment" as a human right. That is a very significant development because it confirms that emergence of a high level of consensus internationally among states, and that is something this committee really cannot afford to ignore. The assembly's recommendations around the right to a healthy environment as regards the substantive and procedural rights are very much in line with what is happening internationally and could in no way be regarded as being in any way radical, if that is of assistance to the committee.

I will conclude this brief opening statement with some general observations. It is clear that other witnesses will address the issue of the rights of nature, so I will not mention that in this opening statement. It is difficult to overstate the importance of a coherent, overarching policy on nature protection and restoration. It should be remembered that restoration is a fundamental element to this. It is not just about protecting nature; we are now in the territory of really having to move forward on restoration. That coherent, overarching policy would then underpin the transformational change that is needed here. The biodiversity crisis must be addressed systematically. I am sure the committee has heard that before. That systematic approach involves this co-ordinated whole-of-government approach with, of course, the necessary funding made available to support public authorities. We will also need a wide range of legal tools to be deployed to ensure accountability, the importance of which I emphasise again.

The assembly's report and detailed recommendations provide enhanced visibility, which is so important. It makes this issue, this challenge, around biodiversity more visible to the public and demonstrates how it can be addressed, that there is hope and time to act but that urgent action is required. It is important to remind the committee that we see a growing awareness among the public, including children and young people, of the interlinked climate and biodiversity crisis and the need for urgent action. This committee now has the opportunity to build on the assembly's powerful recommendations to shape the future direction of environmental law and governance and to bring about that transformation in the State's response to the protection of nature and biodiversity. It is important this opportunity, which does not come around very often, is seized and that a balanced set of evidence-based recommendations with strong cross-party support emerges from the committee's deliberations. There is no doubt in my mind that there is significant momentum now and very significant political consensus for action.

It falls to this committee to deliver the necessary roadmap to move things forward with purpose and urgency. I am happy to assist the committee with any questions its members may have.

An Cathaoirleach

I thank Dr. Ryall for her opening statement. I will go to Dr. Dobbs, who is joining us remotely.

Dr. Mary Dobbs

I will pass over to Dr. Kelleher because I thought it would be easier if it was done in person.

Dr. Orla Kelleher

I am making this statement on behalf of Dr. Dobbs and me. The citizens’ assembly made wide-ranging, important recommendations. A strong crosscutting message was the need for full and proper implementation and enforcement of existing environmental legislation and policy, as reflected in, for example, recommendation 8. This requires the provision of adequate funding and addressing structural issues. The assembly also considered that transformative changes are required. It sought to be innovative and ambitious in its recommendations, but in ways its members thought would be practical, logical, balanced and linked to Irish culture and history.

We focus here on three core transformative assembly recommendations. The first is recommendation 27 on multilevel environmental courts. The assembly recommended establishing environmental courts at Circuit Court and District Court level to complement existing proposals for one at High Court level and paralleling approaches to family law. This is of particular significance in the context of enforcement actions, where the Circuit Court and the District Court are the main venues for litigation. Potential advantages include improved enforcement, enhanced expertise, greater efficiency and reduced costs.

The second recommendation is 31(a) and (b), dealing with environmental rights. The assembly called for a referendum on inserting into the Constitution substantive human environmental rights, for example, a right to a safe, clean, healthy and sustainable environment including a safe and stable climate for the benefit of current and future generations; and procedural human environmental rights, for example, Aarhus rights regarding access to environmental information, public participation and access to justice.

There is an intuitive feeling that we should all have a legally guaranteed right to clean air, potable water, a safe and stable climate and so on. A right to a healthy environment, appropriately elucidated, encompasses and supports these rights. Over 100 states have enshrined a right to a healthy environment or other constitutional protections for a healthy environment. However, Bunreacht na hÉireann does not expressly guarantee substantive or procedural environmental rights. The Supreme Court found in Climate Case Ireland that the right to a healthy environment could not be read into the text of the Constitution. It also signalled that a referendum would be a more appropriate avenue by which to enshrine environmental rights in the Constitution.

Potential advantages of constitutionalising stand-alone environmental rights include: raising the profile of environmental issues and providing a basis for the enactment of stronger environmental laws; creating a level playing field vis-à-vis other constitutional rights; providing a safety net where there are gaps in the law; and acting as a valuable enforcement tool, in particular if both individuals and NGOs have standing to litigate the right. Constitutional status also helps protect against subsequent erosion, whether accidentally or on purpose. Together, these can facilitate better environmental outcomes.

Procedural environmental rights are similarly fundamental and complement substantive rights. We support constitutionalising both substantive and procedural environmental rights and pairing them in one referendum question. While procedural environmental rights are present within legislation currently, they could be significantly improved. We emphasise that constitutional environmental rights should not be seen as a panacea or as a substitute for existing environmental laws, but as a complementary tool.

Potential concerns include weighting environmental rights above other fundamental rights and-or creating a tool that will be abused. These are valid but manageable concerns. Rights tend not to be absolute. Constitutionalising environmental rights shifts the balance to help protect the environment and thereby humans, reflecting the fundamental value of the environment, its dire state and the need for transformative change. It does not remove or nullify the existence of other rights.

The design and wording of any referendum will be key. The assembly recommendations provide an initial template that can be reflected upon and tailored as appropriate to ensure it gives effect to its ambitions, while minimising the chances for abuse. Careful design can be ensured through engaging an expert group comprising constitutional and environmental lawyers and academics, along with environmental and other suitable NGOs, for example, regarding social justice.

The third recommendation is 31 (c) and (d) on rights of nature. The assembly also called for a referendum on substantive and procedural rights of nature. While rights of nature and environmental rights can complement each other very well, we recommend that they be put as two separate questions to the public in a referendum. Dr. Dobbs’s reading of the discussions at the assembly was that they saw rights of nature, first, as a transformative and necessary tool and, second, with links to Irish culture and history, drawing on talks the members received on Brehon law and the Irish language. As with environmental rights, concerns were flagged but it was considered that these could be addressed through careful wording of any constitutional referendum and subsequently by legislators and the courts. Again, a suitable expert group to advise on wording, design and incorporation into the Irish constitutional context would be key.

We are very happy to elucidate on these points or address any questions the committee may have.

Dr. Peter Doran

I begin by inviting members to let their minds wander to their favourite piece of wilderness, the place where their soul is most at home on our island - a field, a lakeside, a beach or a coastal walk, a wood or a piece of farmland, perhaps tended by generations of their family. Today, citizens across the island and across the world are watching the committee's deliberations following up on the recommendations from the citizens’ assembly. I am thinking of rights of nature campaigners across the island who have brought motions to local authorities seeking recognition of the rights of nature or their local ecosystems. I am thinking of Maeve O'Neill or Rose Kelly in the borderlands of Derry and Donegal. I am thinking of the secretariat of the United Nations Harmony with Nature unit, who gathered with us at the UN General Assembly earlier this year to consider the progress we have made across the island on the incorporation of the rights of nature into policy and law.

These campaigners from across the island and across the world form a transformative movement that makes a simple claim: our island is alive, nature is our relative, and nature's integrity and intrinsic rights to flourish are inseparable from our own human right to freedom and dignity. An amendment to the Constitution incorporating the human right to a healthy environment, together with the rights of nature, can bring a new dignity to the Constitution and a new visibility to the fact that we are constituted as a nation by citizens and the “more than human”, that is, the ecosystems, landscapes, rivers, trees and mountains whose daily labour make our lives possible and make our human rights meaningful.

At the first meeting of the Citizens Assembly on 14 May last year, Professor Bob Watson, a man who has helped steer the world’s scientific work on climate change as the head of the Intergovernmental Panel on Climate Change and a former chair of the Intergovernmental Platform on Biodiversity, asked a profound question, namely, do we humans have the right to destroy nature? It was a deliberately provocative question that goes to the heart of our deliberations about nature and rights. On my reading, Professor Watson’s question poses this dilemma: the destruction of our life support systems has accelerated even as our national and international legal systems have proliferated laws and conventions designed supposedly to limit the damage we have wrought.

Seventy-five years after the Universal Declaration of Human Rights, 50 years after the Stockholm conference in 1972, where the idea of a human right to a healthy environment was first mooted, and more than 30 years after the first Earth Summit, there are few signs that we will contain the climate emergency and the wider ecological or socio-ecological crises continue to point to an ongoing extinction event unprecedented in its scale during humanity's time on earth.

The authoritative planetary boundaries framework update recently found that six of the nine boundaries are already transgressed, suggesting that Earth is now well outside of the safe operating space for humanity.

There is increasing concern that we humans have designed our political, economic, legal and environmental solutions using the very toolbox that has brought us to the brink. That old toolbox puts humans first. In Ireland, as in many parts for the world, the right to enclose, use, exploit, transform and dispose of nature seems to trump all other considerations or can do so. Nature herself enjoys no intrinsic rights to exist. Our laws and constitutions remain deeply anthropocentric. In the European habit of thought, we humans have regularly reduced nature’s standing to that of an object and dead matter only deserving of our fundamental ethical regard insofar as it can derive value from our dominant economic systems. As the saying goes, we know the price of everything but the value of nothing.

It took a vast European-led imaginative and political enterprise that was colonial, intellectual, philosophical, and cultural in its scope to render the Earth "as a vast machine made of inert particles in ceaseless motion" and to construct nature as a machine, as a resource, and to destroy and denigrate the thousands of indigenous communities who lived from a different spirit, a deeply ecological sense of their own origins and being. In Brian Friel’s immortal words, in his play Translations, colonialism led to "a kind of exile" that not only resulted from the imposition of an alien language but from the partition that severed communities from their ancient ties to their landscapes and their local knowledge. The recommendations from the citizens' assembly present us with an opportunity to listen carefully to our own story of imposed narratives that would have us reduce our Irish mytho-poetic traditions to mere superstition, devoid of meaning.

Our insatiable appetite for the writings and broadcasts of the celebrated Manchán Magan suggest that we are emerging as a people from a spell of disenchantment that accompanied our experience of colonialism and the closure of our collective imaginations. Our own writers, poets, singers, storytellers and many academics, stretching back to "The Song of Amergin" and up to figures such as John Moriarty or, more recently, Michael Cronin, have protected and cherished ways of knowing and belonging to our landscapes in ways that restore an intimacy, love and meaning.

Let me close with the words of the UN Special Rapporteur on Environment and Human Rights, who said:

The fundamental values and laws that have governed society for hundreds of years are in the early stages of the most radical transformation in history. To some extent, this is a revitalization of long-suppressed Indigenous cosmologies that offer a different, and many would say far healthier, vision of humanity’s relationship with the rest of the natural world.

The rights of nature point to much more than a legal transformation. They point to an opportunity to amend our Constitution so that we might at last constitute, that is, re-imagine, invoke and call into being our Republic as a Republic for all; a Republic for humans and the more than human, who work, love and labour for us every moment of every day to secure the conditions for our human life. The rights of nature point to new forms of knowing and being that are part of our own ancient stories. The rights of nature speak to an intimate knowledge, an intimate pre-colonial memory, that our freedom as a Republic will only be complete when our rivers also run free. That is why our children and young people’s assembly anticipated the citizens' assembly's recommendations with a call on all of us to treat nature as a relative. That is why the rights of nature speak to a deep intuitive insight that everyone carries deep in their hearts, for we are all in love with the wild places we call home, the wild places where we come to know freedom as a kind of wild stirring of our most beautiful thoughts and deepest connections and belongings.

An Cathaoirleach

I thank Dr. Doran for his opening statement. I thank all our guests for their considered perspectives on the work of the citizens' assembly with respect to the rights of nature and the right to a healthy environment.

I will ask members to indicate now. The clerk will take a list. We have plenty of members in the room and we have plenty of guests here as well. I want to give everybody a fair opportunity so I am going to be really strict on the five minutes. That is five minutes for questions and answers together. I ask our guests to be as brief as they can in their answers.

I might go first. I will pick up briefly on Dr. Ryall's contribution. The first part of her statement talked about existing environmental law. This is actually something we were going to get to in a later session but seeing as she is here and has something to say about it, I might ask her to elaborate on how we have been failing to apply existing environmental law. Perhaps if we did live up to what is already on the Statute Book, we would not be embarking on such an onerous task as a constitutional amendment, as was proposed by the citizens' assembly.

My next question is for either Dr. Kelleher or Dr. Dobbs. Point 13 in their statement referred to potential concerns including weighting environmental rights above other fundamental rights and-or creating a tool that could be abused. They say this can be managed. Certainly I have heard real concern about a proposed constitutional amendment that would provide that of right. What are the impacts on everybody who works within nature and depends on it for their livelihood and so on?

Dr. Áine Ryall

I will start by saying I am very pleased to hear the committee is planning to have a separate session on the enforcement of existing environmental law. That is hugely important, as it is that the committee hears from a wide range of people involved in day-to-day enforcement activity. As regards the reasons we have comprehensively failed, as the assembly put it, there are many reasons. I will highlight a few. First it is a lack of prioritisation. It comes back to the first point I made. We have to prioritise enforcement and full implementation of our existing laws. That ties in very much with having a coherent approach. My perspective, having been involved in this area for nearly 20 years now, is that we have a very fragmented approach to environmental governance. That coherence is missing. I am sure the committee has heard this from other witnesses and indeed from the chair of the citizens' assembly herself. That fragmentation is so damaging.

We have also failed spectacularly to resource our public authorities. Again, that is a well-known fact but it is something we cannot get away from. Enforcement is a resource-intensive activity. It is important to link enforcement in with promoting compliance. In an ideal world, we would prefer not have to do a lot of enforcing, if people saw it as being worthwhile to comply with the law in the first place. It is important to use that compliance perspective in addition to the enforcement challenge. On compliance, it is important that people are made more aware of what their legal obligations are as regards nature protection. There is a public education role there and a need for the strong message to go out about ongoing enforcement activities which, to be fair, have been ramped up significantly in recent times. I refer also to the resources that are now being pumped in to the National Parks and Wildlife Service. These are all very positive signs but they cannot be taken for granted. To conclude, I would say compliance goes hand in hand with enforcement. I have to say again that access to justice is key. At the end of the day - we hope it would not be the case but we see clearly that it is - if the law is not being enforced, somebody, whether an individual, NGO or public authority, must be in a position to go to court. The law is not optional. We are just making a joke of our laws if they are not being enforced.

Dr. Orla Kelleher

I will come in on the second question.

An Cathaoirleach

I see Dr. Dobbs has his hand raised also, so I will ask Dr. Kelleher to be succinct.

Dr. Orla Kelleher

I will come in on the question of whether constitutional environmental rights might be subject to abuse.

A really important element of that is how they are designed and interpreted. That is why Dr. Dobbs and I are emphasising strongly the need for an expert group to be involved in designing the particular wording that will be put in a referendum. In the article I wrote that I shared with the committee, I referred to the excellent work of Rachael Walsh, who published an article in the Dublin University Law Journal setting out the ability that is already there to balance rights. That is what will happen if there are constitutional environmental rights; they will be balanced against other existing rights. Professor Walsh refers in that context to the ability to balance property rights. There already are qualifiers there in respect of the common good. The risk in this regard is quite limited, depending on how the rights are designed and interpreted.

Dr. Mary Dobbs

I will be quick. To clarify, I was a member of the expert advisory group of the citizens' assembly, besides being an academic. At some points, I will bring in the former perspective. To follow up on Dr. Kelleher's point, there is a document from the UN, which is included in our documentation, that sets out 16 framework principles. It provides guidance that draws from various developments across the world relating to constitutionalising environmental rights. It could be a very useful document from which to draw insights.

The Cathaoirleach also had a question as to whether we would even be thinking about constitutionalising rights if we had a decent environmental system that was fully implemented, enforced and resourced. I entirely concur with Dr. Ryall's opening statement and her further comments that these rights would be complementary. They are another part of the toolbox and could be seen as a longer term tool. The citizens' assembly had these as two out of 159 recommendations. It saw such rights as necessary alongside its other recommendations.

An Cathaoirleach

That is very helpful.

Senator Timmy Dooley

I thank the witnesses for their wonderful presentations. There is general agreement among most members of the committee on the importance of the preservation, protection and restoration of elements of our environment that impact so much on biodiversity that they have led to a loss. There are differences of opinions as to how we achieve that. I would like to hear any examples the witnesses have of countries we could look to in terms of how they have achieved those protections, whether by way of primary legislation or otherwise. Not every country has a constitution but they all have certain legal structures that can offer more profound protections. It would be interesting to hear about any such examples.

Are the witnesses aware of any polling that is being done on this matter? While I absolutely agree with the necessity to do what we are all talking about doing, I have concerns about a referendum. Dr. Kelleher talked about expert groups, academics and environmentalists working to get the wording right. I am around politics long enough to know that when an issue is put to the experts and then the common man or woman looks at the text, people will very quickly find a five-second explanation that, while it may not address the complexities of the issue, will become part of the vernacular and can lead to the referendum going the other way. We have had various referendums on proposals to give more power to Oireachtas committees. Those proposals were dismantled quickly when the debate started. I am afraid that if we rush too quickly into a campaign, we may undermine what we are all trying to achieve. The issues must be appropriately thrashed out and discussed.

It has happened during the various debates on EU referendums, whether the Lisbon treaty or the Nice treaty, that somebody introduced the canard that there was the potential for children to be rounded up or young men to be conscripted into a European army. One could not convince some people at the doorsteps that it was anything other than that. I say "Yes" to what we are trying to achieve while urging that we hasten with caution in assuming this will be a slam dunk because we as a society have reached a general understanding of the importance of nature restoration, protecting our environment, dealing with climate change and protecting biodiversity. Everybody is for that until somebody starts to unpick the various issues. Anything the witnesses could say to us about that would be helpful.

Dr. Áine Ryall

I agree absolutely that amending the Constitution is a very serious exercise and it is not something to be undertaken lightly. As the Senator correctly said, careful consideration must be given. It is important for the committee to think about what it wants to achieve here and how far it wants to go. These are fundamental questions. At one level, it could be something that is purely aspirational or symbolic which really serves no purpose and is a pointless exercise in many ways, or more important in this context following on from the assembly's very strong recommendations and the overwhelming numbers of the assembly members who supported those recommendations, which says a lot and-----

Senator Timmy Dooley

I think that is wonderful and I have seen that before but I am conscious that the 99 people there get a very good briefing that we can never succeed in doing outside that controlled environment.

Dr. Áine Ryall

I accept that point. However, the common theme coming through is crafting an amendment that could potentially support and empower the State to go on with the action that is needed to protect the environment so that we deliver on what is required for nature and biodiversity. The question is the best way of going about that. It is important again not to lose sight of the international consensus that is emerging. Ireland would not be out of line in pursuing this particular path, but it is very much for the committee to engage and to come to its own conclusions on this. However, I agree with what Dr. Dobbs has said about the potential constitutional right being complementary to the existing body of law.

On environmental enforcement and what might make a difference, it is always difficult to draw parallels with other jurisdictions because all countries are so different. Ireland is a common law jurisdiction, for example. However, it comes back to the basic points of prioritisation, resources, well-designed laws that are easier to enforce, and specifically ensuring people are aware of how they can go about enforcing the law, which brings us back to access to justice. Access to justice lies at the heart of this. If we can get that right, it will make a big difference in a practical sense, which is obviously what the committee wants.

Dr. Orla Kelleher

Following Dr. Ryall's point, according to United Nations Environment Programme, UNEP, more than 150 countries have some kind of constitutional provision relating to environmental protection, the majority of which are by way of rights and some by way of duties. For example, the South African constitution has a recognition of both individual and collective environmental rights. The French environmental charter, which has constitutional status, is also quite detailed. However, whatever is designed for Ireland needs to be appropriate to the Irish constitutional context. That is why we are trying to hammer home the importance of the design, bringing together experts who understand the Irish constitutional context and these international environmental examples.

I am not aware of any polling in Ireland on support for environmental rights, other than the assembly. However, the Environmental Protection Agency, EPA, has done interesting polling on climate change. In that context, over 85% of the public are very concerned about climate change. As the committee will be aware, there is a growing awareness of environmental concerns.

Dr. Mary Dobbs

We would very much acknowledge the Senator's point about not rushing into it. By no means should it be done even if it were possible next week. There were many citizens' assembly recommendations relating to education and public awareness. This needs to be embedded before, and while proceeding with, any constitutional referendum so that it does not lead to the potential of more extreme viewpoints and, as I do not want to use the horrible terms that are used in relation to media, let me say misinformation.

I will reflect on that and say that the citizen's assembly's membership, even though it is meant to be representative, is in a different setting. We need to build upon that.

An Cathaoirleach

I thank Dr. Dobbs for being brief. Ms Margil indicated.

Ms Mari Margil

In addition to the 100-plus countries that have established human environmental rights, a growing number have in their constitutions the human right to a healthy environment as well as the rights of the environment itself. Ecuador has married the human right to a healthy environment with the rights of the environment within its constitution, determining that they are not only complementary, but also necessary if both are to be guaranteed and have their standards raised. Other countries have done the same, constitutionalising the human right to a healthy environment and the rights of the environment in law. These include Panama, Mexico, Spain, Bolivia and Colombia. We are seeing more understanding of how protecting the rights of the environment is necessary for protecting the human right to a healthy environment, given how we depend on a healthy environment.

Senator Frances Black

I thank the witnesses for their interesting contributions. As they might be aware, I am substituting for my colleague, Senator Higgins.

Recommendation No. 31 of the citizen's assembly is crystal clear, namely, that we should table a constitutional amendment to establish substantive rights, both for humans and for nature more broadly. We are subject to EU environmental law, including the EU Charter of Fundamental Rights and the Aarhus Convention, which is an integral part of the EU legal order. Ireland is a party to the convention in its own right.

This is an impossible question, but will Dr. Ryall briefly outline for us what we already have in terms of procedural and substantive rights and where the further rights being sought would sit and add value in that context? I appreciate that she may wish to reflect on this question, so I will invite her to revert to us in writing if answering now is too difficult and if she would prefer to do so.

I am concerned about us sitting here in good faith and discussing a constitutional change of this significance when we have failed to implement what we already have. The Government has engaged in a wholesale attack on access to justice in new legislation and in a number of successive amendments to environmental law while also preparing to introduce a new planning and developing Bill that will significantly curtail access to justice and judicial review. How can we say that we should amend our Constitution to give the environment and nature substantive rights while also restricting people’s right to access justice so that important environmental rights that already exist cannot be litigated properly?

I noted Dr. Ryall’s reference to the Aarhus Convention as an international treaty that Ireland and the wider EU ratified. I appreciate that she may not be able to comment on specific cases of non-compliance, given her position as chair of the Aarhus Convention compliance committee, but is she able to comment generally on the importance of compliance, appropriate transposition, the role of access to justice and the importance of implementing what we already have as a priority, given the urgency of the situation for nature? That last recommendation is No. 8 of the citizen's assembly, as Dr. Ryall highlighted.

I also want to ask-----

An Cathaoirleach

I am conscious of the time, Senator, and I want to be-----

Senator Frances Black

This is the final question.

An Cathaoirleach

-----fair to colleagues and guests as well. I can invite the Senator to contribute again on the second and, if we have the time, third rounds.

Senator Frances Black

Okay.

Dr. Áine Ryall

It is clear to everyone that there is already a substantial body of national, EU and international law. The difficulty relates to what I said earlier about the fundamentals, namely, the prioritisation of implementation. This involves resourcing. When resourcing does not happen and the public authorities are not able to do the work assigned to them by law, we run into difficulty.

Clearly, there is an issue with access to justice more generally. People find it difficult to find remedies to ensure that the law is enforced, be that for reasons of cost or not being aware of their rights.

I fully agree regarding the education and awareness aspect of this, which is important, but it ultimately comes down to prioritisation and resourcing. If the latter factors are in place, everything else should follow. I am being careful in respect of the Aarhus Convention side of things. As was stated, I am here in a personal capacity rather than in my role as chair of the compliance committee. Again, however, it is political will that drives these things. It is important not to lose sight of the basics.

As regards the potential constitutional side of things, one tends to see that in other jurisdictions an explicit constitutional right obviously brings greater visibility to these issues and tends to support more robust environmental laws and policies. It very much puts the environment on the table politically in a way that it previously would not have been. That has been the experience elsewhere. It is impossible to predict to what a particular constitutional right might lead, but that is the nature of these constitutional rights. Nothing is perfect and there is no way of being absolutely certain. That element of predictability should be taken into account. I am repeating myself, but it ultimately comes down to political will, resources for public authorities and the awareness of where to go to enforce the rights.

Dr. Orla Kelleher

As regards the added value of a substantive constitutional environmental right and what exists so far, the Supreme Court stated in the Climate Case Ireland ruling that there are other constitutional rights that might be relevant in an environmental context, such as the existing constitutional right to life and bodily integrity. However, I and other scholars have argued that ultimately this is contingent on how broadly those rights are understood and construed in an environmental context. For that reason, it would be preferable to have a substantive environmental right because it would have a potentially broader scope and could apply on a precautionary basis. It could be engaged when the environment is endangered but before humans are at risk of harm. I stress that it is only individuals who may litigate the right to life or bodily integrity. NGOs are not currently entitled to do so. An important potential added value of having a constitutional environmental right would be that an NGO would be able to take a case in the public interest. That could be an added value.

An Cathaoirleach

I thank Dr. Ryall and Dr. Kelleher. I know Senator Black has to leave at 12.30 p.m. If we have time between now and then, I will bring her back in.

Deputy Richard Bruton

I thank the witnesses for their very interesting presentations. What is wrong with the existing foundation of the law when it comes to describing the protection of natural environments? The suggestion is that we create a constitutional right over and above the existing law.

I acknowledge Senator Dooley's remarks in respect of it being notoriously difficult to win a referendum. Although we need to shift the balance of rights, if a constitutional amendment is made, it will be left to judges to decide how those rights will be shifted. If we are going to shift the rights towards nature and away from those who use it, we, as legislators, need to articulate the criteria. We know how this will be assessed by the judges. In terms of the reaction to much of the proposed legislation, the unpredictability of what is meant by these things is what creates the problem. I can easily envisage people saying they will never be able to do their garden or light a fire if this inalienable right that is not specified or qualified in some way is created. Dr. Ryall stated a robust, evidence-based and balanced set of recommendations is needed. The difficulty is whether it can be made robust, evidence-based and balanced if it is just a sentence.

If it is just a sentence, we have learned at our cost in this regard concerning sentences that were put into the Constitution back in the 1980s. We spent the intervening time trying to unravel that insertion until we finally got rid of it. There is an issue in this regard.

Additionally, how do we achieve this coherence? I would have thought we would do this institutionally rather than via a constitutional right. If we wish to have coherence between bodies in protecting nature, then we would do what we have done with the climate action plan and have it overseen by the Department of the Taoiseach, set out those things that need to be done and set timelines, etc. This is how institutionally we would normally approach a lack of coherence or fragmentation. I wonder, therefore, if having a constitutional right is the right approach. I can see how it could be perceived as a measure where, with one stroke of the pen, our hero is freed, so to speak. It would give us the feeling that we had done something really significant. The trouble, in this regard, though, is how it would be used afterward.

An Cathaoirleach

I call Dr. Dobbs.

Dr. Mary Dobbs

I will start at the end. We are not suggesting, and I do not think anybody is, that the constitutional referendum would provide the necessary coherence. A constitutional referendum on either environmental rights or rights of nature would be extra tools to provide aspiration, not by themselves, as they would be essentially symbolic, and a basis for legislating better for better environmental protections. It would also allow public and private bodies to be held to account. I will leave the details of how we would develop this to the other witnesses. Generally, however, I think we could include statements such as "as shall be legislated for the State", or something along those lines.

Deputy Richard Bruton

We just heard Senator Black say that the Government is trying to deliver things like renewable energy and it is felt that the planning system is holding this endeavour back. Then there is the view that changing the planning law is an assault on people's rights. Both those contexts are trying to protect nature in different ways. Surely we have to articulate where the protections are and how the balance is to be established. We must articulate this aspect and not leave it to the judges.

Dr. Mary Dobbs

Part of this would, to an extent, have to be articulated within the Constitution, but we never normally put great detail into the Constitution either. The legislation develops such an articulation to a greater extent.

Turning to the query about coherency more generally, the other recommendations stemming from the citizens' assembly's report included recommendation No. 22, concerned with there being a senior ministerial position with responsibility for biodiversity, and recommendation No. 24, for a new independent agency to help to co-ordinate policy and ensure this requisite coherency. This would be necessary because, essentially, there are so many actors and, as the Deputy mentioned, conflicting policies arising. The constitutional referendums, therefore, would be complimentary but they would not necessarily be targeted to address the issue of coherency, even though they could help with that issue as well.

An Cathaoirleach

Would Dr. Ryall like to contribute on this point?

Dr. Áine Ryall

Briefly, I agree regarding the question of balance. This is always going to be difficult to achieve, especially in a time of crisis. I fully agree as well regarding the parallels drawn with the climate action plan. Similar mechanisms could be brought over into the nature and biodiversity arena. Moving to the accountability mechanisms that are there, holding politicians and civil servants to account is fundamental to ensure there is implementation on the ground.

On the Constitution, again, any amendment, as I said earlier, or even thinking about any such amendment, is a very serious exercise. There is the potential element of the lack of predictability in this context, but this comes back to how we might like to use a constitutional amendment. Specifically, I refer to a situation where we were to come up with an amendment that could support and promote what the State wants to achieve in terms of having a better quality of environmental protection. In this regard, I highlight the wording adopted in the UN resolution, namely, "a clean, healthy and sustainable environment". I would also draw in the parallels that were mentioned with renewable energy, which is, of course, so crucial. Part of us delivering a clean, healthy and sustainable environment does involve the move to renewables. All these aspects are, therefore, interconnected, so I would not necessarily see potential amendments involving environmental rights as being all about the environment. It is a much bigger picture in terms of our society and economy and those other concerns mentioned.

I appreciate that this matter is challenging, but there are advantages to the constitutionalisation in respect of upping the ante as regards the importance of the environment fundamentally being referred to there, being visible and having to be taken into account.

It is very hard to get away from that and that is the direction in which everybody is moving internationally.

An Cathaoirleach

Did Dr. Doran want to come in on this?

Dr. Peter Doran

Briefly, on the question of balance, it is useful to remember that the introduction of the notion of the rights of nature is predicated on a well-thought-out critique of the lack of, or absence, of balance in the treatment of nature because, even with the best will in the world, the use of human rights is still locked into an anthropocentric or human-centric individualised approach or claim on rights. The rights of nature gives us some conceptual purchase on the need to address rights at the systemic level, to address questions of relationships between the human and the non-human, and also supports the shift towards a regenerative economy where the balance is shifted towards adapting economic activity, like the circular economy, that is consistent with the logic, integrity, and the flourishing of nature for future generations.

Deputy Jennifer Whitmore

I thank the witnesses for their presentations. Do they see the need for this within the Constitution, whether the right to a healthy environment or the right of nature? Do they see those rights as a result of the failure of successive Governments to use the legislation that already exists? Therefore, in the absence of that legislation and political prioritisation, is it important that as a State, we have this tool written within the Constitution to ensure we can hold the State to account for its failures? Is that something critical?

This may be a very difficult question to answer but in the absence of all the individual pieces of legislation which have been implemented over the past ten years, if we had either of those articles in the Constitution, what difference would it have made in the past ten years? Can the witnesses point to tangible things at which we could look where we could say we have A, B, and C now because we had this in the Constitution ten years ago, regardless of what the State did with other legislation and enforcement?

An Cathaoirleach

Who wants to take this question? Would Dr. Ryall like to comment?

Dr. Áine Ryall

I am happy to start. The first point is that constitutionalising anything sends an incredible powerful signal right across society and it is hard to underestimate the significance of that in terms of the visibility and generation of potential political will for change. As regards what specific difference it might have made if we had had this right up to now, it is genuinely very difficult to say. What I would say is that by constitutionalising something, it has to be seen in tandem with the existing body of law. The two go together. It is not that we can see the constitutional right as being separate. With the constitutional right and well-designed and well-implemented domestic legislation, we really can bring about change. There is no doubt in my mind that the Constitution dimension has added value in ultimately setting the scene and giving the context to what happens - as somebody put it - underneath with the other body of legislation. The strong message it gives is so powerful. It demonstrates that society takes the environment seriously.

Dr. Orla Kelleher

On that question of whether there has been a failure regarding legislation and if this constitutional referendum is necessary as a result of that, I would flip the question. For example, this committee has done fantastic work already on the climate Bill. A particular advantage of the constitutionalisation of environmental rights is how it can ensure and prevent roll-back in really progressive legislation that has built up a huge amount of political consensus. In additional, a lot of environmental laws regulate specific environmental resources or problems, whereas constitutional environmental rights are about guaranteeing broad individual or collective rights to a certain level of environmental quality.

The Act is a very important safety net where the law has not regulated a particular area.

I want to emphasise the scope of this. A very important part of the exercise of thinking out how the right should be designed is that we are quite clear that it should include a safe and stable climate. This is a very important facet. Whether the right includes this has come up a lot in international climate mitigation. A very important task for the committee would be to clarify that a right to a healthy environment includes a safe and stable climate.

Deputy Jennifer Whitmore

This would be a key tool to make sure the climate Act continues to be robust legislation. The committee went through the process but the job did not end there. There is another element required to ensure the legislation is implemented as intended.

Dr. Orla Kelleher

I like to think of it as a nice example of the complementarity with constitutional environmental rights and how they can support and scaffold existing environmental laws.

Dr. Peter Doran

The majority of the good environmental legislation that we apply originates in the European Union. We should not underestimate the symbolic and substantive signal that we would send if we were to repatriate this responsibility as citizens. It is not only about responsibilities; it is also about duties and creating new allies throughout the citizenship by taking these fundamental responsibilities and placing them at the heart of who we are as a nation.

Deputy Jennifer Whitmore

This is an incredibly important point because we rely on Europe to safeguard our environment. When everything else fails here it is Europe that holds us to account. It would be fantastic to have something in place whereby we hold ourselves to account.

When we speak about balancing and getting the rebalancing right, nature has very few rights. Does nature have any rights in legislation? How does this compare with the rights of corporations?

Dr. Peter Doran

There are bits of European legislation, such as the habitats directive, where the intrinsic value of nature is recognised. It has to be said that recognising the rights of nature is a shift in the paradigm. It is a shift towards recognising nature itself, the landscape and all that allows us to live and realise human rights. At present, these aspects of the living systems are by default largely treated as objects or dead matter. This is because of the dominant economic narrative. Recognising the rights of nature signals an opportunity to recognise that nature is a subject of history. It always has been so but it has been rendered invisible and deprived of that agency. Recognising the rights of nature would also contribute to the expansion of having standing before the courts. In the event of a constitutional amendment incorporating the rights of nature, we would expect every citizen to have the opportunity to defend those rights before the courts.

Mr. Thomas Lizney

We are here because of the failure of existing environmental law to recognise nature as anything other than a property or a thing. In the United States our experience is that we have a choice. We can try to make the existing system work, even though it comes from a bad model. This means setting up specialised environmental courts, resourcing a system and having adequate and robust compliance measures, all of which we have done in the United States.

It has not worked. That is the case because it comes from bad model. That bad model is that the regulation of property has become the environmental law movement. Getting away from that means recognising nature not just as a thing or as property, but as something animated in the law. That requires a constitutional amendment. In a nutshell, what constitutional amendments on the rights of nature in other places, as well as the three dozen laws which we have litigated in the US, have done is to empower the most aggressive environmental defenders to protect the environment with a recognition of the built-in constraints or restraints on state enforcement, while attempting to enlarge and expand the number of environmental defenders.

Dr. Mary Dobbs

Returning to Dr. Doran's points regarding the EU and the recognition of nature's intrinsic value, as he was saying, the nature conservation directives recognise its value. There is not a level of recognition that goes up to the level of rights as of yet, but Spain, for instance, has recognised nature rights in the context of a water body. I have lost track of time at this stage, but I believe that happened earlier this year.

On the question of what things might be different, again it is very hard to pinpoint. Things that might change in the future would be, for instance, enhanced standards in relation to air or water quality, or the better enforcement of those standards. We know that 98% of individuals living across Europe live in areas where there is air pollution, and the standard of our water is not as pristine as we might like.

Deputy Christopher O'Sullivan

I thank the witnesses for the very interesting presentation. There is no harm in reminding ourselves why we are here and why we are having this discussion. I am not sure if any of the witnesses have heard of the ring ouzel. Deputy Whitmore and others will probably have heard of it. It is a stunning species of bird. They are like big blackbirds. The male has a beautiful white band that goes across its breast. It is absolutely stunning. I found out this week that they are functionally extinct in Ireland. This year, the last breeding pair was discovered. It is too late for them. That is really sad. These birds love high altitude. A few generations ago, those growing up in the Wicklow mountains or in the mountains of Donegal or Killarney would have heard the beautiful flute-like song of the ring ouzel. Now they are gone. There is one pair left, so the species is functionally extinct. Unfortunately, any nature law that we bring in now is too late to save the ring ouzel. They are destined for the same fate as birds like the corn bunting because they have no protection and no right to exist under Irish law. That is why we are here. That is what we have to change.

The issue with the ring ouzel is that it is a migratory species. We have messed up its habitat in Ireland. That is for sure, but 77% of its decline is due to hunting in France. The hunting of ring ouzel is banned in France, yet 77% of its decline is due to hunting there. They have passed a law to stop the hunting of the ring ouzel, but it still happens. Many of these species are migratory. How do we get cross-consensus with different countries on the matter? We see the hunting of passerines happening right throughout the Mediterranean, particularly in Cyprus and Greece. How do we make all of that tie up? Whatever we do here, and even if we introduced a law here to protect the ring ouzel ten years ago, its fate is sealed, unfortunately. How do we come up with an international agreement to address that?

The right of nature to exist needs to be enshrined in the Constitution. This should be done by means of a referendum. I disagree slightly with Senator Dooley. Yes, we have to ensure that the correct narrative takes place, and sometimes it is hard to do that. Sometimes when it is left to legislators, the voice of the minority becomes stronger and more powerful, yet with a referendum, the voice of the majority comes through and you get the correct result. That is why I think a referendum is the right way to go. That is a comment and not a question.

Regarding countries such as Ecuador and Panama which have introduced a constitutional right of nature, will Ms Margil give a little bit more detail as to how that has worked in practice? What effect has it had? Has it prevented the destruction of habitats? Have there been high-profile court cases in these countries?

My final question is for all the witnesses. Two of the other recommendations were that we would have a stand-alone Minister with responsibility for biodiversity. Do the witnesses agree with this recommendation?

Through the co-operation of this committee, which I am very proud to be part of, we have taken on this assessment of the recommendations of the Citizens' Assembly on Biodiversity. We did not have to as it actually does not fall within our remit, which is ridiculous. The following question from that is whether the witnesses believe that there should be a stand-alone committee with responsibility for nature and biodiversity.

An Cathaoirleach

Thank you Deputy O'Sullivan for a lot of very good questions.

Dr. Peter Doran

The committee will be pleased to know that this is a live conversation about the rights of nature and the constitutionalisation of these rights in other European territories. For example, in Finland there has been a proposal for a constitutional initiative. We have heard a little bit about France at this meeting. In Germany there have been a number of initiatives at state level. The ideas have been debated in parliament in Italy and Portugal.

The intergovernmental process on biodiversity is slowly but surely incorporating the rights of Mother Earth and acknowledging that the rights of nature are being incorporated by member states. Our own diplomatic staff have played a key role in enabling one of the champion states, Bolivia, in introducing that language into international forums at the UN. I think it is correct to say that the multilateral system and the European system will hopefully be influenced by some of the deliberations that happen in Ireland. Influence on our own deliberations, even down to local authority level, are coming from some of the initiatives from other territories. We can see that this is what we might call a cosmo-local initiative. It is intensely local, but it is taking into account the planetary conversation, the new language and the new paradigms

Ms Mari Margil

To echo Dr Doran, in the international sphere we agree that we would like to see the rights of nature moved into international agreements and instruments. We have the universal declaration of the rights of Mother Earth, which we helped to draft several years ago. This has now been brought into the UN General Assembly for consideration. The UN Convention on Biological Diversity has had mention of rights of nature. The Inter-American Court of Human Rights has also acknowledged rights of nature and is now considering how that integrates with the human right to a healthy environment. We are seeing a move into the international debate and into different international instruments as well.

Regarding how this has had practical impact, Ecuador has had this in its constitution for 15 years now. Its enforcement and implementation is the most robust because it has had it in there the longest. In certain cases, yes, it has certainly had very practical benefit on the ground for nature. One of the most renowned cases was decided by Ecuador's constitutional court, its highest court, in 2021. This was about Los Cedros protected forest in which mining exploration had been authorised by the government. This is a cloud forest in a fragile ecosystem and the habitat of endangered species. In a case brought by the local community, it was determined that such extractive mining activity within a fragile ecosystem and the habitat of endangered species would violate the rights of nature so that mining could not take place there.

Number one it was identified as a violation of the rights of nature, and that was in the enforcement of those rights. Importantly, in addition, the court indicated that the environmental ministry in Ecuador had to adapt its mining permits or its licensing to ensure that those permits when issued to a mining corporation could not interfere with the health or well-being of nature, meaning it had to conform and uphold the rights of nature standard. The rights of nature, therefore, is elevating the standards and changing how government decisions are made so that government decision making, whether it be about mining or other industry, is not interfering with the health and well-being of natural systems. We see this elsewhere in cases regarding the protection of mangroves, for example, when they have industrial activities such as shrimp farming in these incredibly important coastal ecosystems. That kind of industrial activity is interfering with the well-being of the ecosystem and, therefore, is a violation of the rights of nature, and decisions cannot be made to allow that activity to occur. Through the courts in Ecuador we are seeing a much higher standard of protection for nature and ensuring that governmental decision making, including around different kinds of industrial activities, must conform with what nature needs to be healthy, have well-being, and be resilient. The idea is that human activity should not interfere with the ability of nature to exist, to be healthy, and to provide what we need to continue to exist as well.

Deputy Jim O'Callaghan

I thank Ms Margil.

Mr. Thomas Lizney

I wish to reaffirm that the first rights of nature law passed in the US is now 17 years old. The constitutional amendment adopted in Ecuador by more than 60% of the popular vote is now 15 years old. The seminal cases in Ecuador that have been filed and won in front of the constitutional court, which is the highest court examining constitutional issues in the country of Ecuador, were mostly brought by NGOs. These are organisations seeking to stop permit issuances. This is where the law has been most effective at this point.

Just a couple months ago in the United States of America we had our first successful rights of nature case brought by a tribal government in the US with a population of salmon as the plaintiff. In these cases humans are not the plaintiffs: rivers are plaintiffs and salmon populations are plaintiffs, for example. This is what the law provides so we eliminate that kind of limitation on standing for humans and expand it through the use of ecosystems as plaintiffs. Just recently the city of Seattle was forced to settle and provide for fish passage around hydroelectric dams on a main river through the state of Washington to provide for spawning activity for salmon. Essentially, the settlement held that salmon had a right to spawn. This kind of development of case law is important from a constitutional perspective to put those constitutional standards in, not just for an abstract reason but for very practical reasons about constantly evolving - just like other constitutional standards dealing with human rights - those standards to allow for that jurisprudence to occur. Those are just a sampling of some of the cases that have happened around the rights of nature.

Deputy Jim O'Callaghan

I thank Mr. Lizney.

Dr. Mary Dobbs

I will start from the end question on a senior ministerial position and a stand-alone committee. I would happily support both of these. The recommendation links back again to Deputy Bruton's queries earlier about coherency. On the senior ministerial position in recommendation No. 22. it was to have responsibility for biodiversity and not necessarily entirely stand-alone from others. It could, for instance, be environment, biodiversity and climate change. Likewise one could have a complementary stand-alone committee for that as well or take it on within this committee.

With regard to the question on birds, we should not renege on our own responsibilities. Absolutely 77% is a massive impact. It is very hard to go and change behaviour in another country. We have heard about international developments but we should not forget the EU level. A further recommendation was recommendation No. 12 within the citizens' assembly report that Ireland should provide full support for the nature restoration law. Basically, we should try to drive that at EU level as well. Once it is at the EU level it obviously helps make those changes across all of the EU too.

An Cathaoirleach

I thank Dr. Dobbs for that contribution. Would Dr. Doran like to make a brief contribution?

Dr. Peter Doran

I will comment very briefly. I would certainly endorse the stand-alone committee and the ministerial position but when we begin to talk about those things, we are also at risk of reproducing one of the problems here. The genius of the committee's recommendations will be the extent to which they address the fragmentation which is reflected in the governance systems and the ways in which these conversations are pursued, as if biodiversity, the environment, climate or climate issues are problems. They are symptoms of design flaws at the heart of our governance and economic systems. That will, hopefully, be reflected in some of the committee's recommendations and in the way it receives its recommendations from the citizens' assembly.

An Cathaoirleach

I thank Dr. Doran for those comments and I thank Deputy Christopher O'Sullivan. I call Senator Boylan to speak.

Senator Lynn Boylan

I thank the Chair and everybody present. Many of the questions have been asked. On the rights of nature, it is important to point out that, generally, the direction of travel at international level is this way but that voters are usually well ahead of the politicians. Senator Dooley was talking about polling but the fact that one has the citizens' assembly and that it was a very broad and well represented group of people, but also that the Economic and Social Research Institute, ESRI, data shows that there is no urban-rural divide and that people are generally united in their concern for both climate and biodiversity. It is important to say that. If there were to rights of nature, we can trust that the debate would be thrashed out but that people would be well considered in their decision-making in that. The Irish people surprise us much of the time with regard to their deeply-considered positions.

The questions I have for the panel are around accountability, accountability at State level and where we can make improvements on that. I do not want any member of the panel to talk to the specifics of a case but I give the example of Emo Court where the OPW is the body responsible for it and where bats and a bat roost was deliberately damaged. Yet another arm or wing of the State, being the National Parks and Wildlife Service and the Departments of Housing, Local Government, and Heritage and of the Environment did not take a case, even though it was an Annex IV for species under the habitats directive. How can we prevent those types of things happening or move it, whether it is a political thing where one State agency does not want to be seen taking case against another? How do we move to ensure that the independent decision-making is taking place and that that leadership is flowing from the top down with regard to compliance with the law? There are other examples other than Emo Court and I do not wish any of our guests to speak specifically to that, but it is just an example of where we have such a situation. I submitted a parliamentary question and there has not been a single case taken by the State against another arm of the State with regard to compliance under the habitats directive. I would be interested to hear our guests views on that question.

My other question is around the remits of some of the semi-State bodies, such as Bord na Móna and Coillte, where these are solely commercial- and profit-oriented. I know that Senator Higgins has legislation on the books in the Seanad but we should look at the legal mandates for these two organisations, given that they control approximately 8% of the land in Ireland. I would be interested to hear the views of our panellists on that issue also.

Touching on the point of constitutional changes and where we, as a society, put our values, I am very interested to hear how we enforce the laws we already have, building on what Professor Ryall has already said earlier.

Dr. Áine Ryall

I thank the Senator for that question, which is a very good and challenging one, because they say that all law is politics, to some extent, so there is no getting away from that. The best answer I can give is that it comes back to ensuring there is access to courts so that if the State fails, as the Senator suggested - I am not talking about a specific case - or if somebody identifies a failure on the part of the State, some remedy is available, because if there is no remedy, there is no incentive for the State, the State actors or public authorities to act appropriately, if there is an advantage potentially, politically or otherwise, to not enforcing the law.

My simple answer would be that people need access to justice and an avenue to pursue, which would, unfortunately, be through the courts, unless we could bring political pressure to bear. It comes back to the point I made about the importance of what we call interlocutory remedies, where people can go to court to try to prevent environmental damage from happening in the first place. That is something the committee has to take account of, namely, the accessibility of remedies to hold people to account. This also comes back to the fragmentation we have heard so much about and how different arms of the State have different roles and things can fall between the cracks. It may be easier for certain public authorities to back away from a particular problem without the overarching coherent level of oversight. Again, I will not comment on the specific case mentioned, but there is a lot of work to be done in terms of driving forward the implementation of the existing laws we have.

I refer to Deputy O'Sullivan's excellent questions. People talk about nature not having rights right now. We have a lot of nature protection law and that law needs to be enforced, coming back to Deputy O'Sullivan's points on management plans and conservation measures. A lot of resources are now being pumped into the National Parks and Wildlife Service, NPWS, and real progress is being made. There is, of course, a lot more to be done, but it is important to acknowledge that. We also need to recognise the power the habitats directive would have if it were implemented and enforced such as, for example, Article 6.3.

Migratory species and the proposed nature restoration law were mentioned. That is a fundamental element of all of the laws and rights we are discussing. There is our own national nature protection and European Union law, which can be and is very powerful when enforced. Of course, there is the potential added value of some form of constitutional right in taking them all together. That is not to underplay the significance of our existing nature protection laws.

Dr. Mary Dobbs

I will start with the points on Coillte and Bord na Móna. Recommendation 116 from the citizens' assembly refers to reviewing the remits of those bodies. Recommendation 120 is more significant and concerns the review and revision of the objectives of Coillte, found under the Forestry Act 1988, as amended. As the Deputy said, it states we need to address the fact it is primarily a commercial body which produces timber and makes money. It is recommended to embed the objectives of biodiversity within its core objectives because without that, while it may do some good in regard to biodiversity, it will never be one of its core focus points.

On the actions of one agency compared with another, the starting point would be to look at the review of the NPWS by Micheál Ó Cinnéide and James Stout. It examined the potential options for creating greater independence for the agency. It is currently found buried deep within a Department, which provides challenges for taking enforcement actions. Let us leave it at that.

Dr. Orla Kelleher

On the point on remits, I echo and endorse the comments of my colleague, Dr. Dobbs. I will pick up on the point made by Dr. Ryall regarding State accountability. I endorse her comments on the importance of access to justice for the public. However, the additional part of that picture is the question of continued education for public bodies. It comes back to the point we mentioned on the prioritisation within these bodies of questions of environment and biodiversity. Before we have enforcement, we should have compliance, and some of that comes from continued professional education on the legal obligations of these bodies. Part of that is the mainstreaming of environmental legal education.

An Cathaoirleach

Thank you for that, Dr. Kelleher. Ms Margil, go ahead.

Ms Mari Margil

In Ecuador, not only does the constitution empower people in their communities, as well as the government, to properly enforce the constitutional rights of nature and, of course, the constitutional right to a healthy environment, but the government also established an ombudsman office on the rights of nature. Citizens can request that ombudsman to examine a concern they may have about the environment and bring cases to court to enforce the rights of nature and the environment if they believe those rights are being violated or potentially could be violated. The ombudsman office also provides another means of access to justice for citizens. They do not have to go through the ombudsman office but it is a possibility for them if they want to pursue that route.

Deputy Darren O'Rourke

A number of times Dr. Kelleher and Dr. Dobbs mentioned being careful in drafting the proposed amendment. The recommendations from the citizens' assembly specifically point to human rights to a healthy environment and the substantive and procedural rights in that regard, and the rights of nature and again the procedural and substantial rates in that regard. Are Dr. Kelleher and Dr. Dobbs suggesting having two separate questions? How might we get to the drafting of a text? The citizens' assembly had exposure to really detailed information here. To the general population listening, the idea of a river taking a case or a flock of birds taking a case is a very significant jump which in my opinion could scupper a referendum if not dealt with in the right way. I ask Dr. Kelleher and Dr. Dobbs to respond to those points on getting us to a starting point.

Dr. Ryall mentioned specialist environmental courts and offered to go into some more detail on important considerations in that regard. I am conscious that we are some way down the road on that. I ask her to give her perspective on that either now or in writing later.

Dr. Orla Kelleher

I believe that nature and environmental rights are complementary, but that two separate questions should be put to the public. The assembly recommendations broke those down. Our view would be that an important starting point would be the initial template that the assembly has drawn up, but that needs to be reflected on and tailored so that on the one hand it is reflecting the ambition of the assembly, but equally that we are being really careful about the chances for abuse. Its design needs to be well thought through. We need to ensure that it does not just become this symbolic effort but is actually meaningful and enforceable, and that it complements the existing body of environmental law we already have. For that Dr. Dobbs and I have really stressed the need for an expert group. Environmental lawyers like us will be able to contribute certain expertise of the international experience with environmental constitutional rights to date. However, obviously Irish constitutional lawyers, who are very familiar with the workings of how constitutional rights play out in the Irish court system, would be really important. There is a need for a broad expertise to inform the development of any such wording. We would be really keen to see that happen.

Dr. Áine Ryall

On the point about the specialist environmental courts, this is a recommendation that comes specifically from the citizens' assembly. Recommendation 27 states that the assembly would like to see some specialisation at the Circuit Court and District Court level, presumably because it is aware that the Government already has plans to have a special planning and environmental court at a High Court level to deal mainly with judicial review and certain other types of planning and environmental law enforcement. When I was invited to speak to the citizens' assembly as an expert, this was something the members put to me. They were really taken with the idea of specialisation and felt very strongly that specialisation would lead to faster decision-making and better, higher quality enforcement. That is the background to that particular recommendation. There is no doubt that we have lots of different models for specialist environmental courts and specialist environmental tribunals right around the world, some of which are very well established. The key point is that there is no one-size-fits-all approach. If the committee was to go down this particular road, somewhat like with the constitutional proposal, it needs to be very careful to make sure it is clear what it is trying to achieve.

Taking the District Court as one example, District Court judges enforce all kinds of areas of law every day and they do an incredible job but the argument would be that environmental laws are so specialist. It is not just the law, as we can see here, but also the technical and scientific evidence that often goes behind it. Take a water pollution case or waste pollution for example. The idea would be that if there were specialist judges who are very experienced in that particular area of law, there would be savings in terms of court time and resources on matters of that nature. It is difficult to argue against that. At the same time, environmental law is not hermetically sealed off from other areas of law. It obviously overlaps with criminal law, around enforcing environmental offences, for example, and administrative law. There might be a situation in smaller counties where there might not be enough of a volume of business in a particular District Court area. We might want to be more imaginative and think about having a movable District Court or Circuit Court judge or a few who would develop particular areas of specialisation. The family law example was already mentioned. There are already examples of specialisation, the commercial court in the High Court being another example. This is not a totally new idea. It is well on track with what is happening elsewhere. There are advantages to specialisation but we have to take care with the design. I do not know if that is helpful. I have some pieces I and others have written about this, which are very accessible, and I can send those on to the committee.

An Cathaoirleach

Does Dr. Doran want to come in on that?

Dr. Peter Doran

I will, briefly. It is about getting to the point where these questions can be put in a referendum. I agree that we should be thinking about two separate questions. One of the key conceptual considerations for an expert committee would be to really tease out the relationship between these two sets of rights. They are appearing more and more alongside one another in international instruments and commentaries about the need to complement, reinforce and address the blindspots of human rights by having the rights of nature alongside them. They are of different paradigms but nevertheless in our context, if we were to offer two questions we would have to explain that relationship and what we mean by that mutually-reinforcing relationship between the two sets of rights. That will be an intriguing part of the conversation, certainly for academics but for citizens as well.

Deputy Paul Murphy

I thank the witnesses for the presentations and for the work they have done. I am a lot less sceptical than others about the possibility of winning such a referendum. The experience of repealing the eighth amendment and marriage equality shows that the majority, or a significant majority in the case of repeal, can be won for progressive positions. I would have a lot more confidence in the people in a referendum making the right sort of decisions about these things than I would in the Dáil and the Seanad because the influence of polluting industries and so on is significantly greater here than it is among the public as a whole. The question of the rights of nature really goes to the heart, at a deep philosophical level, of the reason we are living through such a disaster.

It is a tendency of this ecocidal capitalist system to treat non-human nature, as it is being referred to, as dead matter, a free gift or effectively a dumping ground. Perhaps Dr. Doran can start with that. It seems that there is an opposition between the rights of nature approach, which I agree with, and the natural capital approach, in which the problem is that capitalism sees nature as a free gift. However, perhaps we can charge capitalism for it by means of carbon trading or whatever and in some way internalise the cost so it is okay still to think of it as a thing to be exploited. Effectively, it seems those are two opposed approaches. Perhaps Dr. Doran can expand on that. He might not answer all the questions because we are running out of time.

It seems it is not an accident that Latin American countries have led the way on this. I presume that is due to the influence of indigenous people’s movements because in many indigenous cultures, the concept of Mother Earth means there is a connection with nature that was at least partially severed by colonialism elsewhere. That is a big factor. I think we have our own traditions to draw upon here. If someone could expand on that, as well as the experience of colonialism in Ireland as concretely severing our human connection with nature, that would be useful.

Third, could someone speak about the practical impact, drawing on the experience of Ecuador, for example, in concrete terms? Let us say we have this referendum, we succeed in getting it into the Constitution and I am part of a community in Leitrim facing gold mining. How will this improve my situation? Let us say I am facing fracking and a motorway. What real impact will it have for people?

Finally, I wish to ask a question of those who have not commented on the question of two votes on two separate questions – environmental rights and rights of nature. Do they also agree it is best to do it in two or is it better to have one combined wording? Part of me worries there could be a situation where people vote for the environmental rights bit to give themselves some rights but the rights of nature sounds a bit fluffy to them. It seems one does not work without the other. There are dangers with having a situation where one could pass while the other fails. If those who are in favour of that want to come in and defend it, I am interested in that. I wish to tease that out.

Dr. Peter Doran

There is a series of fascinating conversations there. The Deputy is quite right that the rights of nature conversation stands and creates a bit of tension with what one might say is the dominant discourse around ecosystem services and natural capital. It is interesting. I have taken part in conversations with one of the authors of the ecosystem services discourse approach and even he now recognises that there is a blind spot in that approach. Unless there is an explicit alternative value system, the default is the pricing system. We are still dealing with what some would regard as the essence of the problem, that is, the enclosure and reduction of nature to the status of a commodity. The rights of nature conversation disrupts and calls attention to the need for an explicit alternative value system that ensures we no longer, by default, approach nature from a commoditised perspective.

All of this is linked to the empowerment of indigenous peoples in Latin America and the coming to power of alternative knowledge systems based on a critique of the Euro-modern export - the Euro modernity, which has been exported - not least having been tried and tested on this island. There is a pushback against the so-called one world system, that is, the one version or homogenous version of the world and how we organise our economy and how we relate to land. Indigenous people would relate to land as part of their larger selves, as part of their collective identity. The Deputy is quite right that this is not just an exotic conversation; this is at the heart of some of the observations we are beginning to make about our own history as well as our history of the Irish language tradition and its interruption by the experience of colonialism.

There are fascinating projects throughout the island that are beginning to see there are deep connections between the restoration of our linguistic heritage and our new relationships with land and sense of responsibility to local landscapes. In the past week there has been a report on an arts-led project in the Burren making that very point with regard to the fact we have hidden very beautiful epistemologies and lithologies in our language tradition. We do not have to go to Latin America; it is all here on our doorstep.

Dr. Mary Dobbs

I worked with Dr. Doran for many years before I began working in Maynooth University and he will laugh because I am always the less philosophical person when it comes to these debates. On whether it should be two questions, I agree with the other witnesses that there are two separate questions: one on the environmental rights and another on the rights of nature. Dr. Doran’s point about the conversation and explaining the relationship and complementarity is also very important, however. I understand the perspective of Deputy Murphy that we could take the more selfish approach and go for just human rights. If he is interested in having both rights, however, would he be interested in the risk of having no rights? There is a chance that if the referendum goes to the people and the questions are all grouped together but the people do not like one set of the rights or the other, one will end up with no rights. That is part of the reason for trying to clarify what each group of rights is and that a person can vote for both of them as separate issues, while still grouping the substantive and procedural for humans as well as the substantive and procedural for rights of nature.

In the context of going to the indigenous population - this is very much drawing on my role as part of the expert advisory group in the citizens’ assembly - it was inspiring and incredibly interesting to see the response of the assembly members from day one in respect of the inherent links with and rights of nature. This was raised by other members of the expert advisory group at a previous meeting of the committee in September. In particular, things like Brehon law were flagged. In the course of the assembly, Dr. Elva Johnston gave a talk on the personality of nature that was recognised in Brehon law in trees and specific creatures, which is also reflected in mythology, and the rules and rights attached to specific trees but also to bees and so forth. That discussion continued throughout the assembly, such as through a talk by Manchán Magan on links with the Irish language, but also through the remarks of Mr. Patrick Joyce, who was one of the assembly members. I am naming him as he was at the committee and I am referring specifically to his remarks at the committee meeting last month. He spoke about how he simply enjoys sitting and reflecting and enjoying the nature on his farm. That connection with the land is very much present in Ireland and that helps to explain why there was so much support. I was surprised at the level of support, but that is because I come from the academic side of things. I was genuinely surprised at the level of support from the assembly members, who were very pro rights of nature.

Dr. Áine Ryall

I, too, was very surprised at the level of support within the assembly for the proposed rights of nature. As regards whether it should be one question or two questions, however, I will give the typical lawyer’s answer that I do not have strong view right now. It will all very much depend on the precise wording. Coming back to a point I made in my opening statement, if it is decided to go for this, it very much depends on the extent to which the Oireachtas is clear on what it is trying to achieve and how far it wishes to go. Whether people will think it is appropriate will depend on how far the wording will go. As the Deputy stated, there is a danger that if people do not like the look of the rights of nature proposal, that might not survive a referendum. There is a danger but it will all come down to the wording. As regards the practical difference it would make, that is another very difficult question to answer.

Without getting into any specifics, I come back again to the existing body of law. Every day we see people going to court to enforce the environmental impact assessment directive and the habitats directive. The High Court, in particular, is strong on the habitats directive. This all presupposes that people have access to justice and the right to go to court. In an ideal world, it should not be necessary to go to court to enforce those rights. In the first instance, pumping in the resources and expertise will no doubt make a difference in decision making and right up along the chain.

I am listening carefully to the colleagues from the US. It is interesting that it is often the case, unfortunately, that simply creating a right is only the beginning. I understand that in the US it has been necessary to go to court to enforce those rights. While rights, in themselves, are hugely important and very significant in terms of sending a wider societal message, unless there is the enforcement to back them up they can be limited in the amount of change they can bring about. Those are excellent points.

An Cathaoirleach

I thank Professor Ryall and Deputy Paul Murphy. No other members are indicating. Dr. Kelleher wishes to come in.

Dr. Orla Kelleher

It is important to emphasise that the human right to a safe, clean, healthy and sustainable environment protects both people and nature. It is not the case that rights of nature and human rights or substantive environmental rights are in conflict. They can be complementary. A big part is how they are designed. In regard to the practical impacts, a point which has not come up until now is how these rights can be used from an enforcement and accountability point of view. This is starting to take off in European climate litigation. There was a big case in Germany whereby the German constitutional court ruled for the first time on the constitutional duty of environmental protection relating to its climate act. In that instance, the emissions that were being allowed up to 2030 were deemed unconstitutional because they would result in a disproportionate interference with emissions possibilities into the future. What was quite significant there was how the court was able to link the temperature goals within the Paris Agreement to German constitutional law. That comes back to the point we discussed earlier with Deputy Whitmore about how environmental constitutional rights can be complementary to and supportive of ambitious climate action.

Deputy Jennifer Whitmore

While we are talking about complementary legislation, I wonder where the international crime of ecocide would fit in. Is that another essential tool or mechanism that should also be in place so that we are building up a robust legal framework, not just nationally but internationally as well, and one that can bring criminal sanctions to individuals and not just entities?

Dr. Áine Ryall

There is a move in that direction, certainly at international level. The best answer I can give at this preliminary stage would be to say it is potentially a valuable part of the toolbox, but it would be one element, like all the other elements we have mentioned, and they all fit together. To echo what colleagues have said about the human right to a healthy environment going hand in hand with the rights of nature, they are closely interconnected. It is important to keep that in mind when engaged in the job of making recommendations. They go hand in hand.

Dr. Peter Doran

I have an interest in this. If we are to have a serious conversation about rights of nature and the right to a healthy environment at the domestic level, it would be consistent for us to be projecting support for the crime of ecocide in the international sphere. On the domestic side one is projecting one's seriousness in terms of identifying ecocide as a crime.

Dr. Ryall was correct to say that rights were just the beginning. We must also think about enforcement. However, I suggest that we step back from the language of rights a little and think about the backstory and from where these ideas are coming. That backstory is, in part, our story. These are not exotic ideas that are being imported, especially about the rights of nature.

I would love to end by citing the Burren document that came from last week's workshop on the Irish language and ecology. According to it, the Irish language inhabits an Earth-based cosmology that puts humans in their proper place while respecting the feminine; everything is connected in this inherently systemic understanding of the world; this inner knowing is where the treasure resides and it is time to reconnect and protect it; and language, tradition, music, biodiversity and the environment are all inextricably intertwined and share a common experience of loss. This goes back to the notion of taking ownership of our responsibilities and duties within a new frame and no longer viewing the matter as the EU imposing things. This is us and our story.

An Cathaoirleach

I thank Dr. Doran. I will leave the last word to him. It was appropriate to zoom out in the way he just did.

I thank the witnesses for the excellent opening statements they submitted, which were informative for us ahead of the session, and for what I think I can say on behalf of colleagues was an enlightening discussion. The witnesses pre-empted the significant challenge that this committee would be facing. None of us can be under any illusions about it, but the witnesses have offered us thorough guidance as we proceed through this work. I hope that we can make progress, take meaningful steps and achieve a meaningful political consensus. That is the job we have been tasked with, albeit in a much shorter timeframe than we would have liked.

I thank the witnesses who travelled to Dublin to be here and those who joined us remotely online. Their time and expertise are appreciated. Over the next few months, we will work on achieving a political consensus and publishing a report, which I hope will represent a step forward.

The joint committee adjourned at 1.13 p.m. until 11 a.m. on Tuesday, 24 October 2023.