The legal recognition of nature comes at the expense of indigenous self-determination – the plan and perm and a rouse to expand western law and the power of colonialism.

Any attempt to define Aboriginal paradigms through western ideology is unreasonable because customary Aboriginal law has evolved from a non-related set of beliefs, values and law systems.54 In Mabo v Queensland (No 2)55 the Torres Strait Islander plaintiffs, from their cultural perspective, challenged the English concept of possession and property law as alien to Indigenous inhabitants.56 The Mabo v Queensland (No 2) judgment recognised that Australian law could accommodate Aboriginal rights to land and waters and not ‘fracture the skeletal frame’57 of Australia’s legal system – according to the common law recognition test.58 Landmark decisions such as this drew international attention to the right of Indigenous self-determination and the potential of legislative empowerment through rights-based systems.

Historically, the rights of nature movement has evolved from a philosophical enquiry into the relationship of humans and the natural environment to blend the philosophical study of ethics and to question the moral behaviour of humans towards animals and the environment.59 There are a range of issues that have been raised including the moral question of utilising animals for consumption, exploiting animals for human use and an ethical resistance to ownership of animals.60 The work of authors such as Rene Descartes is used to contend that animals are seen merely as machines;61 which is not consistent with Indigenous Australians concept of the environment and humans as a ‘web of relationships’.62 The utilitarianism of Jeremy Bentham is used to challenge the socio-legal system that values animals below humans;63 this view is not consistent with the law and culture of Indigenous peoples.64 Other examples canvassed contend that property rights over animals and nature exercised by humans inevitably leads to exploitation and the abuse of power.65 Langton (2005) described the relationship of property and the Pama peoples of Far North Queensland thus:

Property relations are structured by the places as events, and by memories that spring up in a person’s mind about that place … The property-object of Pama relations is not merely the land estate qua geographical space, but the confluent spatiality, temporality and sociality of the landscape, the people and the ancestral beings.66

The international dialogue on the rights of nature is enmeshed with the era of the ‘Anthropocene’, a term popularised by scientist and Nobel Laureate Paul Crutzen in 2000 and applied widely in environmental circles since 2016.67 The term Anthropocene is used to describe the current era, as evidenced by the globally extensive geophysical impact of humans on the environment. It is used as a disruptor term to strengthen the case for the emerging rights of nature and earth jurisprudence concepts, to harness this western ethical philosophy as the default legal and policy framework for the control and management of earth’s resources.

The challenge in the construct of the rights to nature ideology is that it is counterintuitive and counterproductive to the Indigenous laws, customs and practices of Australia’s First Peoples. The construct of nature as a legal entity invariably replaces accepted western concepts of property and also undermines the exercise of Indigenous self-determination and inherent governance. Conceivably such legal standing for nature could even lead to proceedings against Indigenous groups who hold an obligation to care for Country. Earth jurisprudence seeks to establish a range of rights held by nature, so that a river initiates control of its own management and its natural resources, and further, to promote wider acceptance for normalising constructs such as a legal personality of rivers, sui generis types of legal trusts and the public trust doctrine. Randall Abate considers this a valid response to the ‘anthropocentric paradigm where humans are at the top of the hierarchy’, whereas an ‘ecocentric position’ should be the norm because the rights of nature movement ‘embraces nature without having regard to nature’s value to humans’.68

The rights of nature was advanced as the solution to global environmental despair, in the words of David R Boyd, where nature is oppressed by the ongoing assertion of human superiority and the universal ownership of land and wildlife for economic purposes, coupled with a dominant cultural tradition and legal system that supports self-destruction.69 Professor Christina Wood is of the view that Earth jurisprudence is battling against elite specialist lawyers, government bureaucrats and corporate lobbyists.70 Professor Wood proposes a nature’s trust that requires a sui generis trust construct in order to regulate a global moral benchmark.

For example, to instill an ethical pluralism, to progress public rights in public assets and to cherry pick various human-based customary traditions and practices as validation of support for a common wealth in nature.71 In short, to reject the notion of private property and opt instead for communal stewardship and the rights of nature.72 Professor Wood proposes that Earth jurisprudence may bridge the moral divide between Indigenous peoples and others. Yet, this approach seeks to establish a trust framework of citizen beneficiaries of natural assets,73 where no evidence is provided to identify whether any cultural divide exists in respect to global commonalities shared by Indigenous Peoples. The global commons approach is inconsistent with Indigenous self-determination and the full and unfettered exercise of Indigenous sovereignty alongside the Nation State.