By: Fábio Ishizaki and Vanessa Hasson
Translation by: Yosef Morenghi
On March 21, 2019, it took place the trial of “Special Appeal” 1.797.175/SP by the Second Panel of the Superior Court of Justice (STJ) in Brazil, under the reporter of Minister Og Fernandes. Ministers Mauro Campbell Marques, Assusete Magalhães, Francisco Falcão and Herman Benjamin also attended the session.
The case is related to the guardianship of a wild animal, a parrot which was seized by the Federal Environmental Agency (IBAMA) in São Paulo, based on alleged mistreatment by Maria Angelica Uliana.
After the trial in the Justice Court of São Paulo, it was granted provisional continuity of the bird alongside Maria Angélica, until IBAMA “could prove the viability of the destination provided by law concerning the necessary measures to assure animal welfare”. Hence, it was alleged that, among other arguments, “there was no legal provision that permits the legalization of the guardianship of wild animals and, furthermore, their reinsertion in nature is unlikely”. “When determining that the provisional guardianship is conditioned to a certain final date, that is, when IBAMA proves that it’s able to insert the animal in its habitat or deliver it to authorized breeders, the decision will create expectations and anxiety that go beyond the appellant’s emotional and physical wellbeing. Not to mention that the parrot’s life will be at risk, if it is separated from the appellant” – it was said in the trial.
In the ruling by STJ, Minister Og Fernandes highlights the importance of an ecological approach to the Brazilian environmental legislation, notably because of degradation caused by human action towards nature, aiming its quality, balance and security. The Minister points out that the Kantian position promotes an anthropocentric and individualistic society. Besides, he says there is an important movement towards encouraging equity between human and non-human beings, grounded in Arne Naess’ Deep Ecology.
He also appeals to the need to advance the interpretation of human relations with non-human entities in a more integrated and ethical manner, seeking for the dignity of life and the very existence of all beings that are part of Earth in its universality.
The Minister evokes Bolivia’s and Ecuador’s innovative Federal Constitutions, which extended that vision of human relation with its surroundings, considering that humans are members of Nature and, thus, the latter must be defended.
Pioneeringly, Og Fernandes claims that “this vision of nature as an expression of life in its wholeness enables Constitutional and other branches of Law to recognize non-human animals and the environment as beings with their own value and, thus, worthy of respect and care, in such a way that the legal order can address them entitlement to rights and dignity”. He also highlights that our traditional legislation treats non-human animals in an objectified manner, that is, inferior to humankind.
Illustrating with a successful case, the minister informed the “Colombian Constitutional Court rendered sentence T-622 2016, in which it recognized Atrato River as subject of rights and imposed sanctions to Public Power due to omissions concerning the degradation caused by a company against the river, its watershed and its tributary waterbody, located in the city of Chocó.”
Proudly, one verifies that the Rights of Nature doctrine, still in need of further development in Brazil, is standing out in Superior Courts, mainly due to the minister’s mention of the book written by MAPAS’ director Vanessa Hasson de Oliveira. Og Fernandes quoted: “according to the foundation defended by Oliveira (2016), nature isn’t separated from humankind and all beings from the planetary collectivity, including humans, are nature itself in its universality and diversity (OLIVEIRA, Vanessa Hasson de. Direitos da Natureza. Rio de Janeiro: Lumen Juris, 2016, p. 115)”.
The minister ends his explanation evoking reflection, mainly regarding the “intern field of infra-constitutional legislations”, about the relationship between humanity and other living beings, taking into account planetary collectivity and, besides, she emphasizes the core of interdependency among beings in Earth, approaches which are also detailed in Vanessa Hasson’s ‘Rights of Nature’.
Thus, it was determined the parrot’s definitive guardianship to Mrs Maria Angélica, considering the 23 year-long affective relationship between human and non-human, as well as the violation of the parrot’s dignity which would occur in the attempt to reinsert it in the wild.
As a final reflection, it is applaudable Minister Og Fernandes’ holistic and modern vision exposed in his vote, which, for sure, represents a milestone in terms of advancing environmental discipline in Brazil. Bearing in mind the turbulence of orders and conter-orders in Brazilian’s federal sphere, decisions such as this offer a light of hope for better days.
Check the whole content of the ruling (in Portuguese) AQUI