The rights of nature in Rosia Montana with Eugen Cadaru

Preamble

 

Whereas, the State acknowledges that Rosia Montana is an important depositary of cultural elements coming from the ancient Dacian and Roman civilizations whose synthesis formed the national identity of Romanian people and understands its responsibility to preserve these elements for the future generations;

Whereas, the State recognizes the significant historic, cultural, and ecological values of Roşia Montană and seeks to protect them in perpetuity for the citizens of Romania and the natural environment;

Whereas, the State has submitted an application to secure World Heritage List status for certain aspects of Roşia Montană to protect the significant historic, cultural, and ecological values of Roşia Montană;

Whereas, Article 35 of the Constitution protects “the right of every person to a healthy and ecologically balanced environment”, stating also that protection and improvement of the environment is a duty of each individual and each legal person, and Chapter 1, Article 5, of the Emergency Ordinance no. 195/2005 on Environmental Protection which protects “the right of all persons to a healthy environment”;

Whereas, Chapter 1, Article 3, of the Emergency Ordinance no. 195/2005 on Environmental Protection ensures that the State will follow the “principle of precaution in decision-making” and the “principle of prevention” of ecological risks and damage occurrence;

Whereas, we live at a time of unprecedented species extinction, ecosystem collapse, and global warming which threatens the Roşia Montană Ecosystem;

Whereas, within the Roşia Montană Ecosystem, there are important groups of plants listed as priority habitats in Annex 1 of the European Union Habitats 92/43 EEC Directive, as well as rare and vulnerable plants mentioned on the Romanian Red List of plants and on the 2003 Romanian Meadow Inventory;

Whereas, Article 33 of the Constitution of Romania secures to every person “access to culture” and declares that the State shall guarantee that the “cultural legacy is protected and preserved”;

Whereas, within the Roşia Montană Ecosystem is found the oldest documented mining communities in Europe, which operated from the Roman era to the twenty-first century;

Whereas, within the Roşia Montană Ecosystem archeological studies of the mining remains have found extensive carved trapezoidal-section galleries, helicoidal shafts, and inclined communication galleries with stairways cut into the bedrock, and vertical extraction areas superimposed above one another with the roof carved out in steps, unknown elsewhere from such an early era, and which contain features including multiple chambers for treadmill-powered water-dipper wheels, including the wooden remains of such equipment, which were  mostly destroyed elsewhere in the Roman world are preserved at Roșia Montană and are of exceptional value due to their rarity, extent, and state of conservation; and

Whereas, the State recognizes that to protect the significant and unique historic, cultural, and ecological values of Roşia Montană, the highest protections for the Roşia Montană Ecosystem and the citizens of Romania must be secured through the recognition of legal rights in this law.

The Parliament of Romania adopts the present law:

 

Chapter 1. Definitions

 

Chapter 2. Rights of the Roşia Montană Ecosystem

Article 2. The Roşia Montană Ecosystem is a living entity with legal rights.  Legal rights of the Roşia Montană Ecosystem include, but are not limited to:

1. rights to naturally exist, flourish, regenerate, and evolve;
2. rights to restoration, recovery, and preservation;
3. the right to a healthy natural environment;
4. the right to healthy natural biodiversity;
5. the right to a healthy, stable climate system;
6. the right to clean, unpolluted air;
7. the right to clean, unpolluted soil;
8. the right to abundant, pure, clean, unpolluted water;
9. the right to carry out its natural functions; and
10. the right to be free of activities that interfere with or infringe upon these rights.

Article 3. The recognition of legal rights of the Roşia Montană Ecosystem shall not mean the conferral of liabilities, duties, obligations, or responsibilities on the Roşia Montană Ecosystem.

 

Chapter 3. Rights of Citizens

Article 4. All citizens possess the right to a healthy, thriving Roşia Montană Ecosystem.

Article 5. All citizens possess the right to the protection and preservation of the cultural heritage and historic aspects and values of Roşia Montană, including those identified in the State’s 2016 application to UNESCO to secure World Heritage List status for Roşia Montană.

Chapter 4. Prohibitions

Article 6. It shall be unlawful for any public or private entity to violate any of the rights or provisions secured by this law.

Article 7.  In order to secure the “principle of precaution in decision making” envisaged by Chapter 1, Article 3 of the Emergency Ordinance no. 195/2005 on Environmental Protection, in the event of probable violations of the rights guaranteed in this law, a lack of full scientific certainty shall not be used as a reason for denying or postponing the enforcement or defense of the rights secured by this law.

 

 

Chapter 5. Implementation

Article 8.  The State, by its responsible public authorities, shall take all actions necessary to protect, fulfill, and implement the rights and provisions secured in this law.

 

Article 9.  The State, by its responsible public authorities, shall not conduct, implement, authorize, or permit public or private projects or activities that violate or have the potential to violate the rights or provisions secured in this law.

 

Article 10.  The rights secured by Chapters 2 and 3 of this law shall be of direct applicability, and no other laws, rules, or regulations are needed in order to implement and enforce these rights.

 

 

Chapter 6. Enforcement

Article 11. The rights secured in this law shall be enforceable against public and private actors.

Article 12. The State, by its responsible public authorities, shall take all actions necessary to enforce and defend the rights and provisions secured in this law.

 

Article 13. The Roșia Montană Ecosystem may enforce and defend the rights and provisions of this law in a court of proper jurisdiction, through an action brought by the State represented by Ombudsman Institution accordingly to article 15, by a citizen, by a non-governmental organization, or by the guardian ad litem, in the name of the Roșia Montană Ecosystem, or of  any constituent part of the Roșia Montană Ecosystem including a waterway, water body, watershed, ecosystem, natural community, soils, or native species of the Roșia Montană Ecosystem, as the real party in interest.  The Roșia Montană Ecosystem, or any constituent part of the Roșia Montană Ecosystem, shall also have the right to intervene in any action concerning this law in order to enforce or defend the law.

Article 14. Any citizen may enforce and defend the rights and provisions of this law in a court of proper jurisdiction.  Any citizen shall also have the right to intervene in any action concerning this law in order to enforce or defend the law.  In order to bring an action to enforce or defend the rights secured in this law, a citizen will not be required to prove a direct injury or the violation of a personal right, being of common knowledge that, according to Article 35 from Constitution, protection of the environment represents ab initio a direct right and also an obligation  of any citizen.

 

Article 15.

(1) An Office of Ombudsman for Nature shall be established within the Ombudsman Institution (Advocate of the People) to investigate citizen or non-governmental organization requests regarding potential violations of the rights or provisions of this law.

(2) Any citizen or non-governmental organization may file a request for action with the Office of Ombudsman for Nature.  Within thirty (30) days of receiving a request for action, the Office of Ombudsman for Nature shall issue a determination regarding the request.

(3) If the Office of Ombudsman for Nature determines that any right or provision of this law has or will be violated, the Ombudsman Institution (Advocate of the People) shall file an action in a court of proper jurisdiction within thirty (30) days of the determination seeking appropriate remedies.

(4) Pursuant to this Chapter, a request for action, a determination, or the filing of an action shall not interfere with private enforcement by citizens or other entities, including the guardian ad litem established by Chapter 7 of this law.

 

Chapter 7. Guardian ad litem

Article 16. No later than one (1) year from the adoption of this law, the Parliament shall appoint an independent guardian ad litem to monitor the implementation and enforcement of the rights of Roşia Montană Ecosystem as secured in this law, and to represent the Roşia Montană Ecosystem in legal proceedings to enforce and defend the rights of Roşia Montană Ecosystem.

Article 17. The guardian ad litem must possess a demonstrable commitment to advancing the rights and interests of the natural environment, relevant legal or scientific experience, and any such qualifications necessary to discharge the duties and provisions of this law.  The guardian ad litem may be a non-governmental organization that satisfies the requirements of this Chapter.  A qualifying non-governmental organization must be incorporated under the Law of Associations and Foundations (Governmental Ordinance no. 26/2000).

Article 18. No later than three (3) months from the adoption of this law, the Govern shall initiate the adoption of a law establishing the rules concerning the selection procedure to designate the guardian ad litem and also the rules that are conducting its functioning.

Article 19. It shall be unlawful for any person, entity, or government to attempt to interfere, or attempt to improperly influence, the guardian ad litem in the performance of the guardian ad litem’s duties pursuant to this law.  Violations of this Article are subject to penalty pursuant to the Criminal Code (Law no. 286/2009).

 

 

Chapter 8. Penalties

Article 20. Any legal person that violates any right or provision of this law shall be subject to a civil penalty in an amount of two thousand five hundred (2500) Lei per day of violation.

Article 21. In addition, if the civil penalty envisaged by article 1 does not cover the entire damage, the legal person that violates any right or provision of this law shall be liable to cover all damages to the Roșia Montană Ecosystem caused by the violation.  Damages shall be measured by the cost of fully restoring the Roșia Montană Ecosystem to its natural state before the violation, in a manner that fulfills the rights secured in this law, and shall be paid to the guardian ad litem to be used exclusively for the full and complete restoration of the Roșia Montană Ecosystem.

 

Chapter 9. Rosia Montana Geopark

Article 22. In accordance with Article 8 (1) letter b) from the Emergency Ordinance no. 57 /2007, no later than six (6) months from the adoption of this law, the Government will start the procedure to declare the area of Rosia Montana as a geopark, as this item is defined in Annex no. 1 letter l) of the Emergency Ordinance. The designation of Rosia Montana as a geopark shall be completed within two (2) years from the adoption of this law.

 

 

Chapter 10. Economical supporting measures

Article 23. With the purpose to support a balanced and sustainable economy in the area of Rosia Montana, the Government, through its Agency for Small and Medium-seized Enterprises, will establish in Rosia Montana a local bureau designed to support local people and initiatives, by consultancy and trainings, to start new, sustainable economic activities.

Article 24. With the same purpose envisaged in Article 1 of this Chapter, the Government will also initiate the adoption of a law or policies that will establish supporting economic measures, that may include tax incentives and others measures, designed to stimulate new, sustainable economic activities in the area of Rosia Montana. Sustainable economic activities shall not include any form of mining or other extractive activities.

Article 25. The implementation of the measures envisaged at the previous articles of this Chapter will not exceed one (1) year from the adoption of this law.

Article 26. All investments and new economic activities must uphold the rights and provisions secured by this law, and comply with the all of the norms, laws, rules, and regulations that are protecting the natural and human environment of the region of Rosia Montana.

Article 27.

• In order to secure this principle from Article 5 of this Chapter, the guardian ad litem may assess any proposed new economic activity supported by the local bureau of the Agency for Small and Medium-seized Enterprises or by other Government incentives, and may issue a consultative opinion regarding the expected impacts on the rights and provisions secured by this law from the conduct of the proposed activity.
• The public authorities are obliged to provide the guardian ad litem, at his request, with all the existing data and information needed to substantiate its consultative opinion.
• The consultative opinions of the guardian ad litem may be used by the public authorities of the State who are responsible with the authorisation of new economic activities in the region of Rosia Montana as a base for their decision.

 

Chapter 11. Enactment

Article 28. The present law shall come into force on month/day, year.

Article 29. At the date the present law comes into force, any existing legal provisions contrary to the present law shall be abrogated.