Naively, one may say, the laws of the land are there to protect us and our interests.
This is true half the time, but there are times when people and communities feel that the law offers them limited or no protection at all.
This may be said for laws which are silent on environmental issues, and such loopholes are abused by persons with a vested interest in doing so.
When there is a contention between persons concerning a certain law, the court is tasked with the responsibility to interpret the law in question and give a verdict founded upon justice, the letter and spirit of the law.
Sometimes it may happen that the court has limited material upon which it can rely so as to reach a legally sound verdict, this is when statutory presumptions find application.
In law, there is a general presumption of interpretation against encroaching on vested rights.
The statement of the interpretation is that the legislature/parliament, as a general rule, does not pass laws which encroach on vested rights of legal subjects. If parliament does intend to do so, it is presumed that this will be made clear, by using express language to that effect, or at the very least by necessary and clear implication.
This rule of statutory interpretation should be utilised by our courts in environmental or climate change litigation, especially when dealing with old law and common law which would provide for certain rights and duties without having legal provisions addressing the adverse environmental impact that may result from the operation of the provisions of the law in question.
This then requires, to a certain degree, that environmental matters be fused with human rights matters. Unless our courts are prepared to accept that environmental issues are at least a quasi-human right issue, then this presumption may not be as successful.
Take for instance where the state decides to erect a structure on land which the locals feel may have adverse environmental effects, and they seek court relief on the matter. If the court does not recognise that the community has a right to a healthy and safe environment, then the result will naturally be an unfortunate one.
This rule of interpretation must be utilised responsibly by courts of law, especially in jurisdictions where legislation and/or common law has not advanced and thus is silent on issues pertaining to the environment.
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