Biodiversity: Not just an environmental challenge, a human rights problem

Introduction

Thriving biodiversity and healthy ecosystems are essential for the realisation of various human rights, including the rights to food, clean air and water, health, culture, and life itself. The loss of biodiversity and habitats can lead to violations of these rights, often disproportionately affecting marginalised groups such as Indigenous peoples, local communities, women and girls, children, and persons, groups and peoples in vulnerable situations.

Global biodiversity is deteriorating due to a range of human-driven factors, including habitat destruction from deforestation, urban expansion, and agriculture as well as the impacts of climate change, pollution, and overexploitation of resources. Invasive species, often introduced by human activities, disrupt ecosystems while unsustainable agricultural practices further degrade the environment.¹ Ocean ecosystems are threatened by overfishing, coral bleaching, and acidification. Additionally, illegal wildlife trade and poaching push many species toward extinction. These combined pressures are accelerating the loss of biodiversity worldwide.²

In light of the 16th Conference of the Parties (COP16) for biodiversity, which took place in Cali, Columbia from 21 October to 1 November 2024, we explore:

• Biodiversity in the international landscape, including the impact on human rights, international law, and the outcomes of COP16.
• The Australian landscape including some critical statistics, legislative and government developments, and the private sector.
• The intersection with the Australian pro bono sector.

International landscape

Impact on human rights and international law

The fulfillment of a broad range of human rights, including the rights to food, clean air and water, health, culture and life itself, depend on a thriving biodiversity. However, there is no standalone, internationally recognised human ‘right to biodiversity’. Despite this, several human rights frameworks incorporate elements of biodiversity conservation, recognising its importance for human well-being and environmental sustainability. In 2021, the United Nations (UN) Human Rights Council formally recognised the right to a healthy environment, including clean air and water and a stable climate, including with respect to biodiversity and ecosystems, and encouraged States to adopt similar rights.³

States have an obligation to protect and fulfil human rights, including the right to life contained in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). This has increasingly been interpreted to include environmental dimensions, given that biodiversity supports ecosystems providing clean air and water and food, which are essential for life itself. The right to food, water and sanitation, health, and culture are enshrined in the International Covenant on Economic, Social and Cultural Rights (ICESCR). Biodiversity conservation is also embedded in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Indigenous communities often rely on and play a role in maintaining biodiversity. Their cultural practices are closely tied to the ecosystems they inhabit. States therefore have a duty to take action to prevent biodiversity and habitat loss.

More than 160 countries now recognise the right to a healthy environment through constitutions, domestic laws, and other legal frameworks.⁴ These recognitions align with recent international efforts, including the UN Human Rights Council’s 2021 declaration of a healthy environment as a fundamental human right. Australia is still yet to adopt a national Human Rights Act, which could formally recognise the right to a healthy environment at a federal level.

International case law also illustrates a growing trend in which courts are recognising the intrinsic connection between environmental protection and human rights. Several high-profile cases have addressed the right to a healthy environment. For example, in Indigenous Communities of Lhaka Honhat (Our Land) Association v. Argentina, before the Inter-American Court of Human Rights, Indigenous communities in Argentina argued the government had failed to protect their environment, which was vital for their cultural identity and livelihoods. On 6 February 2020, the court ruled that the State had violated their rights by allowing deforestation and environmental degradation without proper consultation, thereby recognising the right to a healthy environment as integral to the rights of Indigenous peoples.⁵

Similarly, in the 2018 case of Future Generations v. Ministry of the Environment, a group of young Columbian plaintiffs successfully argued that the Colombian government was failing to protect the Amazon rainforest, threatening their future. The Supreme Court of Columbia ruled in favour of the plaintiffs, finding that the ‘fundamental rights of life, health, the minimum subsistence, freedom, and human dignity are substantially linked and determined by the environment and the ecosystem’.⁶

The Conference of the Parties – Biodiversity Conference

For nearly three decades the UN has been bringing together almost every country on earth for global climate summits – called COPs, meaning Conferences of the Parties. Many will be familiar with the annual Climate Change Conference, including the most recent COP29 held in Baku, Azerbaijan (click here to read our article COP29 Outcomes). What is less commonly talked about is the Biodiversity Conference, which was established under the Convention on Biological Diversity (the CBD)⁷ and aims to conserve the natural world and its sustainable use, as well as to share the benefits of its genetic resources.

COP15 was held in Montreal in 2022 and resulted in the adoption of the Kunming-Montreal Global Biodiversity Framework (the GBF),⁸ which contains four goals and twenty-three targets to be achieved by 2030. These goals include:

1. Halting human-induced extinction of threatened species and reducing the rate of extinction of all species tenfold by 2050.
2. Sustainable use and management of biodiversity to ensure that nature’s contributions to people are valued, maintained, and enhanced.
3. Fair sharing of the benefits from the utilisation of genetic resources, and digital sequence information on genetic resources.
4. Ensuring that adequate means of implementing the GBF are accessible to all Parties, particularly Least Developed Countries and Small Island Developing States.⁹

The GBF also sets key targets to address biodiversity loss, including the conservation and management of at least 30% of the world’s land, oceans, and coastal areas, as well as the restoration of 30% of degraded ecosystems. It aims to nearly eliminate the loss of areas with high biodiversity and ecological integrity, halve global food waste, as well as reduce the risk from pesticides and hazardous chemicals. The framework calls for phasing out subsidies that are harmful to biodiversity by at least $500 billion annually, increasing biodiversity funding to $200 billion per year, and boosting international financial flows to developing nations to $30 billion annually. It also required large and transnational companies and financial institutions to monitor and disclose their biodiversity impacts.¹⁰

The theme for COP16 in Cali, Columbia was ‘Peace with Nature’. At COP16, Parties were asked to demonstrate their alignment of their national strategies with the GBF developed at COP15. However, resource mobilisation, as well as implementation and monitoring of the GBF goals posed a challenge. Out of 196 parties to the CBD, 119 countries submitted national biodiversity targets. Of those, only 44 countries, or 22%, submitted national strategic action plans to support the implementation of these targets.¹¹  Australia was one of the countries to submit its strategic document, known as Australia’s Strategy for Nature 2024-2030,¹² which we discuss in further detail under Australia’s legislative landscape and government commitments.

Another key focus was the raising of funds by the private sector, in the absence of government commitments. The ‘Cali Fund’ for fair benefit-sharing from digital genetic information was established, calling for pharmaceutical, cosmetics, agribusiness and technology conglomerates that benefit from genetic data to contribute 1% of their profits, or 0.1% of their revenue.¹³

Due to a lack of quorum, COP16 was suspended before two key issues were dealt with; first, finalising a monitoring mechanism to measure States’ progress against the GBF goals, and secondly, defining the financing model which would bring the biodiversity protection plan into action. It was estimated that approximately $700 billion would be required to implement the GBF.¹⁴

Australian landscape

Biodiversity trends in Australia – the stats

Australia has a unique biodiversity profile, with over 85% of Australia’s flora found nowhere else on earth. Over the past 200 years, Australia has suffered the largest documented decline in biodiversity of any country and has had a steady rate of known extinctions since 1788 (approximately four extinctions per decade).¹⁵ Since 1788, 39 unique Australian mammals have become extinct, 72 threatened bird species have now disappeared from two thirds of the country and humans have driven nine bird species and 22 subspecies to extinction.¹⁶ Australia is home to the largest number of reptile species of any country globally, with 93% of reptiles only found here and 7% of those threatened with extinction.¹⁷ As for Australia’s fish species, one has already been declared extinct and a further 83 are threatened with extinction.¹⁸ Under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act), where Australia identifies and lists threatened species, there are a total of 2245 species of flora, fauna, and ecological communities that are threatened with extinction, as at September 2024.¹⁹ By comparison, in 2019, 1892 species were at risk of extinction and listed as threatened under the EPBC Act.

In recent years, there has been a significant shift in attention towards concern for biodiversity damage. The key threats include habitat loss and degradation, invasive species and climate change. Land clearing and deforestation alone are the biggest drivers of animal extinction and in recent years, Australia’s aggressive rate of land clearing has ranked among the fastest of the developed world.²⁰ With half of Australia's land used for agriculture, land clearing remains a major cause of biodiversity damage.²¹

The 2021 State of the Environment Report (SoE)²² found that habitat degradation affects nearly 70% of threatened species. Between 2000 and 2017, over 20,000 hectares of critical forest and woodland habitats were destroyed, with Queensland being one of the most affected states. For example, over the last 20 years, koala numbers in Queensland have declined by almost 50% due to deforestation.²³ Increasing temperatures and extreme weather events added pressure on already stressed ecosystems. For example, a heatwave in 2018 killed over 23,000 spectacled flying foxes in far north Queensland, wiping out one third of the species. Mass coral bleaching events, exacerbated by marine heatwaves, have caused significant damage to the Great Barrier Reef. Further, approximately 80% of Australia’s ecological communities are negatively impacted by invasive species.²⁴

Australian legislative landscape and government commitments

Australia has committed to the protection of biodiversity through:

1. Federal legislation aimed at protecting the environment and promoting climate change mitigation.
2. Implementation of the goals and targets of the GBF through a strategy and national framework for the conservation of Australia’s biodiversity.
3. A commitment on the world stage by hosting the first international Nature Positive Summit, which was held in Sydney between 8 – 10 October 2024 and attended by Norton Rose Fulbright’s National Pro Bono Partner and ESG Chair, Chris Owen, together with Elisa de Wit, Matthew Thornton-Dibb and Carmen Bradfield from our Environment and Planning Team.

Federal legislation

Federal legislation relevant to the protection of biodiversity includes the EPBC Act, National Environmental Protection Act 1994 (Cth), Biodiversity Conservation Act 2016 (Cth), the Native Title Act 1993 (Cth), and the Fisheries Management Act 1991 (Cth). These statutes collectively aim to protect and manage Australia’s natural environment. They work separately to ensure sustainable use and conservation of natural resources, safeguard ecosystems, manage environmental impacts, and preserve Indigenous heritage. The domestic legal framework works to balance the competing interests of economic development with environmental protection, biodiversity conservation, and the recognition of traditional land rights.

The Climate Change Act 2022 (Cth) (the CC Act) is the most recently passed federal legislation relating to biodiversity. It provides for a legislative framework to promote climate change mitigation and adaptation in Australia. It mandates a reduction of greenhouse gas emissions by 43% below 2005 levels by 2030 and aims for net zero emissions by 2050.²⁵ The CC Act aims to integrate climate considerations into government decision-making and requires the government to prepare annual statements and regular reviews of progress towards achieving the targets, ensuring accountability in climate action. Read our article on the introduction of the CC Act for more information, available here.

National framework

Australia formalised its commitment to actively implement the goals and targets established in the GBF through Australia’s Strategy for Nature 2024-2030, which was submitted at COP16.²⁶ The strategy is a national framework aimed at conserving biodiversity and enhancing ecosystem resilience, reflecting the urgent need to take action to halt and reverse biodiversity loss.²⁷ It sets the 6 national targets that are determined to be of highest priority to protecting and restoring Australia’s biodiversity, including:

1. Protect and conserve 30% of Australia’s landmass and 30% of Australia’s marine areas by 2030.
2. Priority degraded areas are under effective restoration by 2030.
3. No new extinctions.
4. Minimise the impact of climate change on biodiversity.
5. Eradicate or control invasive species in priority landscapes and further minimise their introduction by 2030.
6. Increase Australia’s circularity rate and reduce pollution and its impacts on biodiversity by 2030.

Nature Positive Summit

In addition, Australia recently hosted the first Global Nature Positive Summit, which was held in Sydney from 8 – 10 October 2024. The purpose of the summit was to bring together leaders from government, corporate sectors, research and environmental organisations, and Indigenous communities to explore effective ways to realise commitments under the GBF. The recurring themes from the summit included: the need to stop environmental destruction, nature is good for business and people, development of the Nature Repair Market, standardise metrics for nature and biodiversity, and diverse stakeholder engagement and involvement is necessary, particularly with First Nations people. Read our article on the key takeaways from the Nature Positive Summit 2024, available here.

The private sector and nature-based risk

Much of our economy is directly reliant on nature. There is a growing understanding of the economic rationale for protecting and restoring nature and societal realisation has influenced investment in, and the operation of, more sustainable businesses. A 2022 report titled The nature-based economy: how Australia’s prosperity depends on nature (Nature Risk Report) produced by the Australian Conservation Foundation (ACF) found that roughly half of Australia’s GDP (49% or $896bn) has a moderate to very high direct dependence on nature.²⁸ The Nature Risk Report sets out the dependence and value of different industries and state economies, and concludes that indirectly, there is not a dollar that does not depend on nature. Sectors with a lower direct dependency score still depend upon nature through their value chains, and every worker and consumer needs clean air and water, sustenance and a stable climate. The Nature Risk Report calls for businesses to consider and disclose their nature-based risks and shift away from activities that destroy nature toward practices that restore it, and calls for Governments to set targets, embed nature in decision-making and invest in restoring Australia’s ecosystems.

Another influence on corporations to address biodiversity loss is the Taskforce on Nature-related Financial Disclosures (TNFD). Launched in June 2021, the TNFD is a private sector initiative which aims to provide businesses and financial institutions with a framework to assess, manage, and disclose nature-related risks and opportunities.²⁹ By focusing on the financial implications of biodiversity loss and ecosystem degradation, the TNFD seeks to integrate nature-related considerations into business decision-making and investment strategies. It is funded by the Australian Government and has supported the design and development of the global framework.³⁰ The TNFD framework can help mobilise financial resources toward biodiversity conservation and sustainable practice, aligning private sector actions with government commitments established during the COP negotiations.

Similarly, the Taskforce on Climate-related Financial Disclosures (TCFD), established in October 2023, is an initiative which provides recommendations on climate-related financial disclosures, which can be widely adoptable and applicable to organisations across sectors and jurisdictions. They are designed to solicit decision-useful, forward-looking information that can be included in financial filings. The TCFD recommendations are structured around four thematic areas including:

1. Governance: disclose the organisation’s governance around climate related risks and opportunities.
2. Strategy: disclose the actual and potential impacts of climate-related risks and opportunities on the organisation’s businesses, strategy, and financial planning where such information is material.
3. Risk management: disclose how the organisation identifies, assesses, and manages climate-related risks.
4. Metrics and Targets: disclose the metrics and targets used to assess and manage relevant climate-related risks and opportunities where such information is material.

As awareness of the economic rationale for protecting and restoring nature and climate strengthens, we have seen an uptick in projects addressing nature-based solutions and environmental protection, which we discuss below.

The Pro Bono Sector

Common themes across our pro bono clients in the biodiversity space

At Norton Rose Fulbright, we assist a range of clients with projects that increase biodiversity and the sustainable use of resources. Our pro bono clients in this space include a range of charities, not-for-profit organisations, non-government organisations, individuals, and First Nations led community organisations.

We have observed a convergence of common themes across the work of these clients, including:

1. Recognition and incorporation of Indigenous knowledge of natural resource and land conservation and management to enhance the health of the land, the flora and fauna, and for hazard reduction purposes.
2. Leveraging technological innovations to study and track biodiversity damage as well as provide scientifically backed solutions to environmental problems at a mass scale.
3. Developments in innovative green/sustainable finance allowing private sector investment in environmentally sustainable projects.

Indigenous knowledge of natural resource management for biodiversity

Indigenous peoples make up 5% of the global population and manage about 20% of the world’s land.³¹ According to the 2021 SoE Report, Indigenous communities are protecting 80% of the world’s remaining biodiversity.³² These statistics reveal how Indigenous communities have mastered how to live alongside nature in a way that other communities have not. Despite being the natural stewards of global biodiversity, Indigenous peoples only have legal right to a small amount of the world’s land and often in practice, these rights are restricted.

Fortunately, we have seen an uptick in implementing Indigenous knowledge systems. For example, natural resource management through cultural burning, by lighting carefully timed burns in the right places to enhance the health of the land, the flora and fauna, and for hazard reduction purposes. Cultural burning assists with reducing invasive species and can prevent hazard-reduction fires that are often too hot, lit at the wrong time, and in the wrong place. Another example is the ranger program being implemented across Australia. The program provides a holistic view of the management of land and caring for Country by empowering desert rangers to look after Country through a collaborative, Indigenous-led conservation aimed at protecting the biodiversity of the desert.

Leveraging technological innovation

Innovative technologies are increasingly being harnessed to promote biodiversity and the sustainable use of resources. For example, remote sensing, drones, and satellite imagery enable conservationists to monitor ecosystems and track wildlife populations effectively. Artificial intelligence and machine learning are also playing a vital role in analysing large datasets, identifying species through image recognition, and predicting species distributions.

Genomic technologies like environmental DNA (eDNA) sampling enhance the ability to assess biodiversity and ecosystem health. Additionally, smart farming practices, driven by sensors and data analytics, can optimise resource use in agriculture, helping to reduce environmental impacts and promote soil health. Advanced ecological modelling and simulation software assist scientists in predicting the impacts of climate change and habitat loss on biodiversity, informing conservation planning.

In practice, we have seen clients leverage technology to track endangered plant, insect, and animal species using drone surveying, virtual reality, and spatial mapping. Others use drone technology to remotely monitor international reforestation and conservation efforts across the globe.

Developments in sustainable finance

One promising area of development is Australia’s recent commitment to a Sustainable Finance Strategy.³³ This strategy provides a comprehensive framework for reducing barriers to investment into sustainable activities.³⁴ In June 2024, the Australian Government released the Sustainable Finance Roadmap which sets out the vision for implementing sustainable finance reforms over the next decade.³⁵

Accordingly, we have seen a rise in the number of environmental credit schemes. For example, one not-for-profit organisation has developed a financial innovation to protect the unique biodiversity of the Australian Great Barrier Reef. An environmental credit in this scenario represents a quantifiable volume of nutrient, pesticide or sediment prevented from entering the catchment. The credit is sold to those seeking to invest in water quality improvements. This enables landholders to undertake projects that improve water quality through changes in land management activities to generate a tradeable unit of pollutant reduction.

Outcomes of COP16 and its impact on the pro bono sector

Many of these themes we have seen across the pro bono sector align with the themes that emerged from COP16.

One such focus was the integration of traditional ecological knowledge into biodiversity management, which recognises the rights of these communities to their ancestral lands and resources. This has also been a notable theme amongst our clients in the biodiversity space. One of the key successes of COP16 is the Parties’ agreement to implement a new permanent subsidiary body for Indigenous peoples and local communities under Article 8(j) of the CBD. It is anticipated this commitment will enhance human rights protections, particularly for Indigenous peoples, by creating a channel for First Nations voices to have a direct influence on global biodiversity policy. This recognition is a positive step towards preserving the knowledge and practices of Indigenous communities, which will ultimately assist nations in the pursuit of their 2030 biodiversity targets.³⁶ Following COP16 discussions, we hope to see a rise in collaborative partnerships between environmental conversation organisations and Indigenous corporations in decision-making processes concerning care of country in the interests of promoting biodiversity, as the natural stewards of the land.

COP16 discussions also emphasised that leveraging technology, including AI, satellite imaging, and bioacoustics, to monitor and address biodiversity loss on a large scale is critical for achieving the GBF’s conservation goals by 2030. For example, at COP16 Microsoft shared its work in the Amazon through Project Guacamaya, which uses AI to track deforestation and analyse ecosystem sounds. This project monitors species populations in real time and alerts conservationists to ecosystem shifts, allowing for faster responses to environmental changes.³⁷ Accordingly, vast opportunities present themselves for organisations in this space to develop new innovative tools which trace, track, and analyse biodiversity data to be utilised by governments in the implementation and monitoring phase of their respective GBF commitments.

The conference also highlighted the critical role of private sector investment in scaling up biodiversity conservation efforts. This is particularly so given the current financial contributions from governments and philanthropic sources were deemed insufficient to meet the ambitious target of mobilising $200 billion annually by 2030. Proposed strategies included developing market-friendly policies and new financial instruments, such as debt-for-nature swaps and sustainability-linked loans, which could help overcome existing barriers to funding.³⁸ As we have seen through its Sustainable Finance Strategy and Roadmap published earlier this year, Australia has already began integrating private finance into national biodiversity strategies and action plans. For example, Australia aims to mobilise climate-aligned capital via the issuing of sovereign green bonds.³⁹ These domestic changes may motivate the innovation of further sustainable financial products as well as encourage investors to build nature-positive portfolios to maximise economic opportunities associated with the climate transition more generally.

Conclusion

While the current state of the biodiversity landscape creates a grim picture, overall, the outcomes of COP16 aim to have a positive impact on human rights. A deepened global understanding of the intricate relationship between biodiversity conservation and human rights preservation can be observed through the GBF and subsequent commitments. Genuine future progress in this area will depend on the ability of States to agree on and implement a monitoring system against the GBF goals, together with a mechanism for holding countries accountable when they fall short of their stated commitments to biodiversity.

If you would like to find out more about our pro bono practice and the projects we have undertaken in the environment and sustainability space (including biodiversity), click here.