Loyalty Islands Province Environmental Code 2023: rights of sharks and sea turtles

Summary

In June 2023, the Loyalty Islands (located in the French overseas territory of New Caledonia) updated their Provincial Environmental Code chapter on protected species to incorporate several articles recognizing rights and legal status for sharks and sea turtles. The provisions included a new category of legal person, natural entities as subjects of law (ENJ), which does not yet exist in France or in any of its other overseas territories.

However, on 31 May 2024, the highest administrative court of mainland France (the Conseil d’État) ruled that the province did not have the legislative authority to recognize the legal personality of natural entities, deeming the legislation invalid. The Court ruling stated: “the Loyalty Islands Province lacked the authority to establish a legal regime for ‘natural entities as subjects of law,’ even though it has jurisdiction over environmental protection, regardless of the objective of protecting sharks and sea turtles, as well as any living element, ecosystem, site, or natural monument designated by the Provincial Assembly, which was pursuing the establishment of such a legal regime.”

Background
In 2016, the Assembly of the Province of the Loyalty Islands enacted a new Provincial Environmental Code which recognized the cosmovision of Kanak peoples (the indigenous Melanesian people of New Caledonia) and stipulated that certain elements of Nature may be recognized as legal entities with their own rights. Those principles provided the basis for recognizing the rights of specific species. On June 29, 2023, the chapter on protected species was completed and published, and included the following provisions:

Article 242
242-16: “The elements of nature, living species and natural sites listed in article 242-17 are recognized as natural entities subject to rights. Fundamental rights are recognized for them. They have no duties. Neither the natural entities subject to rights, nor their spokespeople, nor the Loyalty Islands Province can be held responsible for any damage they may cause.”

242-17: provides for the possibility of extending these rights and protection to other species upon proposal from customary authorities.

242-18: “the right to a balanced natural environment, unpolluted and uncontaminated by human activities”; “the right not to be the property of any state, province, human group or individual”; “the right to exist naturally, to flourish, to regenerate in accordance with their life cycle and to evolve naturally”; and “the right not to be kept in captivity or servitude.”