Rights of Nature

'Ocean management and rights of Nature: The case of the Galapagos in Ecuador and beyond' by Dorine Eva van Norren and Chris de Blok in (2025) 173 Marine Policy comments 

The expanded protection zone of Galapagos encircling sea territories of Ecuador, Colombia, Costa Rica and Panama (CMAR) could incorporate a rights of Nature approach, whereby prosecution of trespassers becomes more likely to be successful as cross boundary ecology is recognized in the rights of Nature approach and extra territorial application facilitated with positive effects for ocean governance. In the rights of Nature doctrine, anyone can stand up for Nature regardless of personal interest. The Galapagos sharkfin cases of 2015 and 2019 based on constitutional rights of Nature legislation in Ecuador demonstrate the preventative effect. This can be a first step towards recognizing ocean rights (as a substrand of rights of Nature). There are several options for implementation in CMAR. This fits into a wider buen vivir (good living in harmony with Nature) and development approach. Closing of areas for biodiversity protection has wider ecosystem effects (as Palau demonstrated) causing multiplication of species such as sharks outside the protection zones as well. Current levels of (CMAR and general) ocean protection are highly insufficient. The national Marine Protected Areas (MPAs) are too small in number. Moreover, the areas covered by MPAs do not always have high protection levels. The majority of areas beyond national jurisdiction are thus not protected. Which countries will ratify the new ocean protection regime (BBNJ) remains to be seen. 

On June 7 2022, Ecuador, Colombia, Costa Rica, and Panama concluded an agreement for the expansion of the special protection zone of the Galapagos [32], [46]. This article argues that if the entire extended Galapagos protected zone, stretching over Ecuador, Colombia, Costa Rica and Panama, is also given a rights of Nature status, as has been done in Ecuador, better protection can be ensured. This could also give opportunities for species to recover their populations within this extremely important highway in the oceans, the Humboldt Current. The specific case of the Galapagos can be an example of how oceans can be better preserved and managed, and how rights of Nature can strengthen the Sustainable Development Goals (SDGs), specifically SDG14 on oceans. 

Since 2008 Ecuador has had a constitution based on the philosophy of Buen Vivir, Good Living - derived from the indigenous Sumak Kawsay - which is understood as living in harmony with Nature. Under the leadership of Bolivia - which also adopted a Vivir Bien constitution in 2009 - harmony with Nature also became a formal UN institution. Buen Vivir is based on the indigenous biocentric ways of living and includes participatory democracy, economic solidarity mechanisms and rights of Nature [2]. 

The constitution contains a special protection provision for the Galapagos Islands. As part of the concept of harmony with Nature, rights of Nature are also enshrined in the constitution. On this basis, numerous law cases were conducted, one of which concerns the Galapagos Islands. Due to this regime, illegal shark fishers could be convicted by the court of fishing in or around the territorial waters. Despite the special protection regime for the Galapagos, this had not been possible earlier. Territorial waters delineation was an impediment to criminal conviction. Within the rights of Nature logics, the court found that the ecosystem, and its right to exist and be restored, extends beyond this limitation. This way sharks could be protected. 

Sharks are, as a predator, a keystone species and therefore crucial to the marine ecosystem as a whole [33]. ‘Closing of areas’ for biodiversity conservation, as has been done in the Galapagos, allows local ecosystems to flourish and provide for themselves. This also positively affects the biodiversity of the surrounding areas. This is known as a spillover effect and has been documented in an experiment in Palau that protecting restricted areas has a significant impact on the adjacent regions' fishing, flora, and fauna [37]. This article will first describe Ecuador’s constitution and rights of Nature. It will then explore the sharkfin court case, then it will briefly go into the Galapagos protection schemes, and efforts to give oceans rights. It will then apply this to the extended protection zone. The second half of the article details why Galapagos and the South Pacific matters, what protection zones are in place and how effective these current approaches are. It will then conclude with why new legal and policy approaches are desirable. This article is written from the point of view of postcolonial law and combined with the social science approach of marine ecology management. Postcolonial law emerged as a response to modernist claims of truth based in reason and empirical knowledge, and shaped around neoliberal economic views of society [3], [38], [4]. In this modernist view man is above nature instead of part of it. This anthropocentric view of life is counter to the biocentric indigenous view of life. Indigenous views of life were considered backward, unscientific and stuck in metaphysics. This resulted in epistemological injustice whereby indigenous knowledge systems were dismissed and basic philosophical differences were circumvented. The modernist legal view resulted in positivist approaches (rules-based justice) moving away from (metaphysical) natural law. Postcolonial law (such as Third World Lawyers for International Law) criticized this by deconstructing western views of international law, rooted in (neo)colonial practices. The movement for Good Living, Buen Vivir and rights of Nature, amongst others, attempts to reconstruct the law based on indigenous philosophies. This is rooted in a critical realist view of the world which accepts reality as a social construction and thus accepts possibilities of revised legal and economy theory and hence revised ocean governance. It considers law and economy as a social science (hence not factual hard science), uses interdisciplinary multilayered approaches. It looks at power as interwoven with knowledge systems and considers the epistemic injustice of subordinating indigenous knowledge systems to science. Thus it uses indigenous knowledge in its own right. Knowlton and Di Lorenzo [27] also emphasize why social sciences are increasingly important in ocean conservation, including the role of indigenous and local communities.

Police Duty Of Care

The headnote for State of New South Wales v Cullen [2024] NSWCA 310 states 

The respondent, Ms Cullen, was a bystander at an “Invasion Day” rally held in Sydney on 26 January 2017. As the rally progressed up Broadway toward Victoria Park and stopped at Buckland Street, a Mr Dunn-Velasco addressed the crowd and appeared to prepare to set fire to an Australian flag. In response, police officers from the Operational Services Group (“OSG officers”) pushed through the crowd in order to extinguish any fire. Another police officer, LSC Lowe, was videoing what occurred from a short distance away. A rallygoer next to her, Hayden Williams, struck her arm and knocked the camera to the ground. Another officer, LSC Livermore, witnessed this assault. He moved towards Williams to effect an arrest and Williams moved away. They both eventually fell down, knocking over the respondent as they did so. The respondent fell heavily and was injured. 

The respondent brought proceedings in the Supreme Court against the appellant, the State of New South Wales, claiming that her injuries were caused by the negligence of the OSG officers and of Livermore, and further alleging that Livermore had committed the torts of assault and battery. The primary judge held in favour of the respondent on the basis of negligence as regards both the OSG officers and Livermore and awarded damages. His Honour rejected the claim in battery. 

The State appealed. In response Ms Cullen filed a notice of contention. Together they raised five issues:

(1) Whether s 43A of the Civil Liability Act 2002 (NSW) applied with respect to the acts of the OSG officers or Livermore; 

(2) Whether the OSG officers owed the respondent a duty of care and, if so, whether it was breached; 

(3) Whether Livermore owed the respondent a duty of care and, if so, whether it was breached; 

(4) If a duty was owed and breached by the OSG officers, whether their actions were legally causative of Ms Cullen’s injuries; and 

(5) Whether Ms Cullen’s claim in battery should be upheld on the ground that Livermore’s arrest of Williams was not “utterly without fault”. 

The Court (per Gleeson and Kirk JJA, White JA disagreeing on the second and fourth issues and dissenting) allowed the appeal, holding: 

As to s 43A of the Civil Liability Act: 

Per Gleeson and Kirk JJA: Section 43A articulates two connecting notions between the claim made and the exercise of, or failure to exercise, a special statutory power. One requires the liability in question to be “based on” the exercise of such a power, the other refers to acts or omissions “involving” an exercise/non-exercise of it: [38]. The former can be understood as requiring that the acts or omissions said to found the civil liability in question were ones which involved, in a significant way, the exercise of a special statutory power. So understood, the two connecting notions coalesce: [39]. ... 

2. With respect to the OSG officers, per Gleeson and Kirk JJA: It is not necessary to resolve whether their impugned acts, being them rushing into the crowd and using one or more fire extinguishers on the flag, can be characterised as use of force as authorised by s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) in exercise of a common law power to respond to an apprehended breach of the peace. Even so characterised, invocation of s 230 is not to the point as what was impugned about the actions of the OSG officers was not any use of force: [42]-[43]. Nor were the officers exercising a power to enforce the conditions of the authorisation of the march. An assembly which is not an “authorised public assembly” under Pt 4 of the Summary Offences Act 1988 (NSW) is not by that reason alone an “unlawful assembly” for the purposes of s 545C of the Crimes Act 1900 (NSW): [44]. In any case anyone can do the actions here impugned without specific statutory authority. Section 43A thus did not apply, and the primary judge erred in finding to the contrary: [46]. ... 

Per White JA: The OSG officers were exercising a statutory power to prevent a breach of the peace, but it was not a special statutory power as a member of the public has the same right to intervene to prevent a breach of the peace: [218]-[219]. ... 

With respect to the actions of Livermore, per Gleeson and Kirk JJA: Livermore’s forceful arrest of Williams, subject to consideration of common law powers of arrest, was in exercise of a power that generally requires specific statutory authority: [48]. Williams was not arrested because of any apprehension or actual breach of the peace, but because of the criminal assault of Lowe that had just occurred: [50]. The offence of assaulting a police officer while in the execution of the officer’s duty, without causing actual bodily harm, is a “serious indictable offence” under the Crimes Act and can be characterised as a felony, for which an ordinary member of the public is authorised to arrest Williams under the common law. Section 43A therefore did not apply: [53]. ... 

Per White JA: Williams’ assault on Lowe was unquestionably a breach of the peace and a member of the public would have had the power to use reasonable force to arrest Williams: [219], [221]. 

As to duty and breach with respect to the OSG officers: 

Per Gleeson and Kirk JJA: The primary judge erred in identifying the relevant risk of harm in regard to the conduct of the OSG officers in the way he did. As to the scope of a duty of care, the issues of to whom was it owed and what risk of harm needs reasonable steps taken to avoid are linked: [68]. The duty of care owed by the OSG officers should be stated as a duty to take reasonable care to avoid the risk of the OSG officers’ actions inflicting physical injury on persons in the immediate vicinity of an operational response during the protest march: [72], [79]. ... 

As to breach, the primary judge failed to have regard to the obligations of OSG officers to take action to prevent breaches of the peace, even in crowded situations: [81]. The precautions which his Honour suggested the OSG officers should have taken were impractical and ignored the conflicting obligations of the OSG officers to prevent breaches of the peace even in crowded situations: [82]. His Honour failed to consider various concessions concerning the OSG officers’ conduct which Mr Halpin, a witness of the respondent, made in cross-examination: [85]. The finding of breach of duty by the OSG officers must be set aside, and that is so even if the risk of harm was as articulated by either the primary judge or the respondent: [88]. 

Per White JA, dissenting: Whilst the OSG officers were exercising a statutory power to keep the peace, this does not negate the existence of a duty of care. The fact that the officers were exercising statutory power does not mean that a common law duty of care only arises if the statute affirmatively indicates an intention that such a duty exists: [177]-[180]. Bystanders at the rally were vulnerable to the risk of injury if the police provoked violence. As the OSG officers had caused the mêlée that led to the respondent’s injury, they had used their powers to intervene in a field of activity that increased the risk of harm to bystanders: [182]. No authorities cited by the appellant suggested that a duty of care would be negated on the facts of this case: [183]-[197]. The OSG officers’ duty to prevent a breach of the peace and a duty to take reasonable care for the safety of bystanders who might be affected by a breach of the peace were congruent: [199]. ... 

The actions of the OSG officers were calculated to inflame the situation and create a mêlée as happened. They therefore breached their duty of care to the bystanders: [226]. 

As to duty and breach with respect to Livermore: 

Per Gleeson and Kirk JJA: It is sufficient for the purposes of this appeal to accept (without deciding) that Livermore owed a duty to take reasonable care to avoid the risk of inflicting physical injury on persons in the immediate vicinity of the arrest of another person: [91]. 

Per White JA, Gleeson and Kirk JJA agreeing as to the finding of no breach: Whilst Livermore did not owe a duty of care to Williams, he did owe a duty of care to bystanders: [201], [212]. The evaluation of police conduct in effecting an arrest must be conducted by reference to the pressure of events and the agony of the moment, rather than hindsight. As Williams would have escaped had an arrest not been effected, and it was not reasonable to simply ask the rallygoer to halt, it was reasonable to effect the arrest by tackling the rallygoer. Livermore therefore did not breach the duty of care owed: [209]-[212], [230]. ... 

As to causation: 

Per Gleeson and Kirk JJA: Section 5D(1)(b) of the Civil Liability Act provides that a determination that negligence caused particular harm requires not only that factual causation is made out but that it falls within the legal scope of liability. That is a legal, normative question: [94]. A decision by a person who was outside the relevant crowd to commit a criminal assault in order to impede the gathering of evidence of possible offences was not the “very kind of thing” likely to be sparked by the officers’ actions: [103]. Williams’ actions (leading to the respondent’s injury) cannot be characterised as occurring in the ordinary course of things which might flow from the actions of the OSG officers, taking account of the independent, free, deliberate choice made by Williams at a place materially distant from the melee catalysed by the action of the officers: [105]. The issue is one of fact and degree in all the circumstances: [95], [105] and [108]. It was the distinct, significant criminal action of Williams that led to Livermore undertaking the arrest. And it was the difficulty of effecting that lawful arrest which led to the respondent being injured. For legal purposes the chain of causation from their actions to her injuries was broken: [109]. ... 

Per White JA, dissenting: The police foresaw the risk that sudden and unexpected movements of participants in the rally arising from police intervention could result in officers being assaulted or hindered, and such a situation could clearly also result in injury to participants in the rally: [242]-[243]. It is enough that the incident leading to Ms Cullen’s injury was of a kind or class which might normally be foreseen or contemplated. The voluntary and unlawful actions of Williams and the resulting forceful arrest were a natural, probable and reasonably foreseeable consequence of the OSG officers’ actions. The chain of causation was therefore not broken by the unlawful actions of Williams, and the negligence of the OSG officers was causative of the respondent’s injuries: [245]-[247]. 

As to battery: 

The State could avoid liability for battery if Livermore acted without negligence, in the sense of being “utterly without fault”, in colliding with the respondent: [112] (per Gleeson and Kirk JJA), [237] (per White JA). Brereton JA in State of New South Wales v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225 stated the relevant standard as requiring that the defendant show that it could not possibly have prevented the impact by exercise of ordinary care and caution. Basten JA and Simpson AJA adopted a less demanding standard. If that lower standard was applied here then the claim in battery would fail on the basis that Livermore’s conduct did not breach any duty of care: [112]-[113] (per Gleeson and Kirk JJA). Assuming (without deciding) that the more demanding standard applied, where Livermore was not conscious of the presence of the respondent, was seeking to get away from members of the crowd who were seeking to assist Williams escape whilst effecting the lawful arrest of Williams, and all of this happened in the course of a few seconds, he could not possibly have prevented the impact with the respondent by the exercise of ordinary care and caution. His actions were utterly without fault. The respondent’s claim in battery is not made out: [115]-[116] (per Gleeson and Kirk JJA), [237] (per White JA).