Rebalancing Rights

By Tim Hollo October 8, 2018

Watch Tim Hollo’s speech at Ngara Institute‘s Politics In the Pub event in Mullumbimby on 26 September, 2018 or read the transcript here now.

Article 1.

(1) Mother Earth is an indivisible, self-regulating community of interrelated beings each of whom is defined by its relationships within this community…

(2) These fundamental rights, freedoms and duties are inherent to all beings, consequently they are inalienable, cannot be abolished by law…

(5) The rights of each being are limited by the rights of other beings to the extent necessary to maintain the integrity, balance and health of the communities within which it exists.

Article 3.

Every being has:

(a)   the right to exist;

(b) the right to habitat or a place to be;

(e) the right to be free from pollution…; and

(f) the freedom to relate to other beings and to participate in communities of beings in accordance with its nature.

These words are from the Draft Universal Declaration of the Rights of Mother Earth, a draft which emerged from the Cochabamba World Conference on Climate Change and the Rights of Mother Earth, in 2010. They are closely associated with Bolivian President Evo Morales and the powerful blend of socialist, environmental and indigenous politics known as buen vivir, which he is a key figure in.

And, in starting with these words, I acknowledge that we are meeting here today on the land of the Bundjalung nation, and I pay my respects to their elders, past, present and emerging, and to any first nations people who may be here tonight. I acknowledge that this is stolen land, and that we have much to learn from indigenous peoples in redesigning our system, which we have allowed to get utterly out of balance. And it is balance – and rebalancing – that I want to talk to you about tonight.

Rebalancing Rights - Tim Hollo - Ngara Institute

These words from the draft declaration are wonderful, beautiful ideas, aren’t they? They’re a key element of a global push that’s been going on for some decades now, to enshrine in law and in our institutions, rights for nature.

I first came across the concept of Rights of Nature in my undergrad law degree in the 1990s, through a 1972 article by Professor Christopher Stone called “Should Trees Have Standing?”, which challenged the idea that the natural world, that trees, should be treated as objects only in the eyes of the law – as property. Stone’s work did not explicitly draw on indigenous legal systems, but that is the ancient tradition that his ideas form part of. And it’s in that space where much of the progress in the decades since has taken place.

You can find it in the adoption of new constitutions by Bolivia and Ecuador which, in institutionalising buen vivir-based states, enshrine rights for the natural world. You can see it in the granting of legal rights to river systems in New Zealand and India, to be implemented through the voices of Indigenous peoples.

This progress is inspiring and fascinating. It prefigures a new and better way of governing in common, for the common good – the common good of all people, of course, but also of the natural world which we are part of, and indivisible from.

BUT how much would change if we adopted a rights of nature framework right now? If the Draft Declaration became international law and was reflected in domestic laws?

Let me start to answer that question by quoting from one of the most famous United Nations Declarations of all – the UN Declaration of Human Rights, adopted in 1948:

Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law.

Article 14. (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.

Article 20. (1) Everyone has the right to freedom of peaceful assembly and association.

Article 21. (1) Everyone has the right to take part in the government of his or her country, directly or through freely chosen representatives.

These rights exist. They have been written into law, internationally 70 years ago, and, through large parts of the world, domestically. But are they honoured?

Australia’s abrogation of the right to seek asylum, and our effective torture of asylum seekers in the prison camps on Manus and Nauru, are among the most blatant ways in which we breach this most fundamental declaration of rights. What about equality before the law and non-discrimination based on race, colour, sex, property? Freedom of assembly? Taking part in government? Access to justice?

Let me simply mention:

  • racial profiling of Indigenous kids, or people of Middle Eastern appearance, by police forces;
  • the ongoing gender pay gap, effectively supported by government policy from tax to super and beyond;
  • governments chasing Centrelink debt with far greater gusto than they chase corporate tax avoidance;
  • a court system which gives far greater access to those with financial resources than those without, aided and abetted by cut after cut to Legal Aid and Aboriginal Legal Services;
  • the access corporations and their lobbyists have to politicians which massively outweighs access by citizens and constituents;
  • the negotiation of major international trade deals such as the Trans Pacific Partnership, by corporations for corporations, behind closed doors, and including in them such provisions as Investor State Dispute Resolution, which allows corporations to sue governments when citizens can’t;
  • threats to deregister unions for small misdemeanours while backing corporate regulators with no teeth and clearly no interest in calling corporations to account; and
  • the whittling away of the right to dissent, delegitimising and criminalising protest, by governments Labor and Liberal, state and federal.

I’m sure each of you in this room can add to this list with examples of your own.

How and why is this the case, when human rights are enshrined in international law?

Because our system is utterly out of balance. Because we are living in the age of the divine right of corporations. And it is worth being very clear about the fact that this is directly connected not just to those examples where corporate interest trumps public interest, but also to those examples we might characterise as prejudice. Prejudice always exists, yes. But those in power always use it to their benefit. Divide and conquer is central to the way they maintain their dominance, misdirecting community anger by encouraging people to punch down instead of up.

In our unbalanced system, the rights of corporations trump all others. The right to make a profit outweighs human rights and civil and political rights, and nature has no rights at all.

This, to me, is the crux of the argument for Rights of Nature – an argument which, as I’ve said, I find very exciting and positive. Simply legislating those rights is insufficient. We need to change the system that has led them to be ignored, otherwise they will continue to be sidelined or end up being pitted against human and civil and political rights.

This is what I conceptualise as “Rebalancing Rights”.

So how do we do that? How do we build a system where human rights and rights of nature are the prime directives, if you will, and corporations exist to support those, not in competition with them?

The primary task is to pull back the power of corporations in order to create space for rights for humans and nature. Let’s look at some ideas.

The obvious ones are donations reform, lobbyist reform, and a federal anti-corruption commission with real teeth. These are all mechanisms to challenge and hopefully at least loosen the explicit stranglehold of corporations over government decision-making. Corporate donations to political parties, representatives and campaigns should simply be illegal, individual donations should be capped at a low level, and the revolving door between politicians, senior advisers and lobbyists needs to be firmly closed. Any system which allows those with more money to pay for greater access to decision-makers, or is based on who you know, is fundamentally corrupting.

The human rights principles of access to justice, to decision-makers and to public service, and of equality before the law, the need for balance, demand that we act on these.

Next, thanks to the banking royal commission, is the fact that corporate regulation in this country is mostly a gentle slap with a piece of wet lettuce or, at worst, a wink and a nod and a quiet handshake. ASIC, which consistently fails to prosecute corporations for wrongdoing, needs to have its regulatory powers handed to the ACCC. But we need a root and branch review of how corporations are regulated, and what is to be done when they breach their legal obligations. Again, human rights principles require equality before the law. When corporations and the rich can breach the law and get away with it, while the poor, the Indigenous people of this land, those with less deep pockets, get the book thrown at them, we are hugely out of balance.

Another idea which is building a new head of steam, thanks to the collapse of faith in trickle down economics, is to tax corporations fairly. Hugely profitable corporations should pay more tax, and we must close the massive loopholes that enable one in three of the largest corporations operating in Australia to pay no tax at all. Corporations rely on the community, on a healthy environment, and on government, for their existence, let alone their profit. Balance requires that they contribute their fair share.

A proposal which is starting to be discussed is to not just stop, but begin to reverse, privatisation of government services. Now privatisation is unpopular and lines private pockets instead of servicing public needs. But, in my view, it is also in breach of the human rights principle of the right of all citizens to take part in government. Government – or community, cooperative – delivery of public services enables citizens to take active part, while privatisation shuts them out. By definition.

Employment and social services, schools, electricity, water, transport, hospitals and primary health care: these are public goods and should not be provided for profit. An important differentiation I’ve made between standard socialism and ecological democracy is that they don’t necessarily need to be provided by centralised government, either. They can be effectively delivered by community or cooperative ownership and management. These are equally viable, and in some cases, more effective, ways of meeting that obligation to enable citizens to take part, and can and should be encouraged and supported by government policy.

A related area which is starting to be seriously considered is to hand the community and employees a stake in ownership and control of major corporations. When a board is made up entirely of business people, usually rich white men, focussed entirely on increasing shareholder returns, and when the shareholders are there only to seek profit, it’s no surprise that social and environmental obligations are sidelined or deliberately circumvented. The UK’s Shadow Chancellor, John McDonnell, has recently announced a policy to require all corporations that employ more than 250 people to gradually transfer 10% of their shares into an “inclusive ownership fund”, managed by employees cooperatively. This effectively makes all large corporations at least 10% cooperative, gives workers dividends for their work, and makes employee groups effectively institutional shareholders able to drive change in governance in the companies they work for. McDonnell has also raised requiring worker representation on boards, as has the ACTU here in Australia, and US Senator Elizabeth Warren.

These big ideas aren’t silver bullets, and they may not be perfect. But democratising corporate ownership and control must be part of rebalancing rights.

An idea currently at the margins is divestiture, harking back to the anti-trust laws of the late 19th and early 20th centuries – actively breaking up corporations that are too big. “Too big to fail” means too big to operate independently of the political system. It effectively guarantees the privatising of profit and socialising of risk. It guarantees inappropriate power concentrated in too few hands. The Greens have raised this in the context of banks and media companies, both areas where recent governments have undone long-standing regulation limiting size and market reach. Enabling private profit to trump the public interest in this way is fundamentally unbalanced.

Now the corker – the central challenge. Corporations are given the privilege of limited liability and legal personhood and there must be a quid pro quo for those privileges. Combining them with a single-minded focus on the profit motive is the complete opposite of quid pro quo – it is a recipe for disaster. It rewards selfishness, punishes sharing and cooperation, and dismisses any stewardship responsibilities – to other humans and to the natural world. It is fundamentally at odds with any conception of human rights, civil and political rights, and rights of nature. If corporations are to be treated as legal persons, then they must be required to act more fully as persons, rather than purely selfish sociopaths.

While there have long been alternative models available, such as not-for-profits, B corps, and cooperatives, the problem lies not with those who want to behave appropriately, but with those who don’t. Elizabeth Warren’s Accountable Capitalism bill is the first major proposal I have ever seen to regulate this, based on the principle that the right to legal personhood carries the moral obligations of personhood. The centrepiece of Warren’s bill would require any corporation with annual revenue over $1 billion or over to “obtain a federal charter of corporate citizenship”. This requires them, at law, to act in the interests not just of shareholders but of all relevant stakeholders, including customers, employees and the communities in which they operate. There’s a lot of detail still to be put on these bones, but the fact that this has been raised by a serious potential US Presidential candidate is very promising. By ensuring that corporations, by design, serve the community and the natural world, we can balance the system.

Other ideas worth exploring, but we don’t have time tonight, include revisiting the minimum reserves banks have to hold, reversing the corporatisation of education, health and politics broadly, and introducing alternatives to GDP.

But we must move on, and in the very limited time remaining, note a few central ideas on the other side of the balance.

Most obviously, we need to develop a Bill of Rights. Our High Court has read implied rights into our constitution, and various states and territories have human rights acts, but Australia is the only OECD nation not to have a national Bill of Rights. In that context, it is astonishing that we aren’t in a worse situation than we are.

My view is that we should develop a Bill of Rights through a national participatory, deliberative process, involving all Australians. Taking part in government is a fundamental human right, and participatory democracy is the deepest way of doing so. Rebalancing rights is not just getting corporations out of government decision-making, but also bringing the people back in. What better space to practice that than in developing a Bill of Rights?

Of course, direct participatory democratic practices aren’t the only way to take part in decision-making. The right to dissent, advocacy and protest is also vital. As part of rebalancing rights, we need not only to stop the crushing of civil society by governments but actively work to support it.

I would, of course, love to see rights of nature enshrined in a bill of rights. What those rights should be, and how they are to be implemented will be critical questions.

For instance, who will be the Lorax who will speak for the trees? Indigenous leadership in this will be vital, of course, but it can’t and shouldn’t be solely their responsibility to shoulder. We need to learn from Indigenous wisdom and governance, and bring it into our system in new ways. Should natural systems be granted legal personhood? Would that mean they had obligations as well as rights? How would different natural systems legally interact with each other? Who decides how to balance their rights, and weigh them against human rights?

A final observation that these questions bring to the surface: there has long been a critique of rights frameworks that they are a problematically individualistic way of seeing the world, but a rights of nature approach can challenge that view. Our adversarial system allows us only to see how rights and rights-holders compete with each other. But in the natural world, healthy competition is balanced with healthy cooperation. Once we rebalance our rights, ensuring that corporations serve the interests of human society and the natural world we are part of, we can see that rights can, in fact, be held and exercised in common.

And that would be balance.


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