Even if it appears that a legal remedy may be possible, bringing a case can be difficult and, in many parts of the world, dangerous. It will generally require the consideration of several point and issues.
This section provides a few basic points to consider, though it should not be considered an exhaustive list. For further information, please see Action4Justice’s “Going to Court Q&A”.
This Guide provides some tips and ideas on the legal means of forest protection. However, it will usually be necessary to have detailed legal advice. In addition, and as detailed in the Going to Court Guide, you will need access to other resources such as financial and logistical resources, expert advice and support, media or campaign support, and much patience and determination.
See Section 2 below
Even if you have a good case in theory, it may still be impossible to obtain justice in local courts. This is because the judges may not be impartial or independent. Sometimes, courts are corrupt in the sense of taking bribes from parties. Sometimes judges are put under political pressure or threatened, to compel them to find in favour of powerful vested interests, whether state or non-state. If these factors prevent effective access to justice where forest damage or degradation occurs, you may wish to consider whether action can be taken in different or foreign courts or tribunals, and see Action4justice’s Corruption Guide.
It is not enough to believe or even know that you have a good case. You must have the evidence to persuade the court to decide in your favour.
The terms “Evidence” and “Information” are often used to mean the same thing. However, usually “Evidence” refers to something used in court proceedings in accordance with the court rules. “Information” is a more general expression and includes all sort of information you may need before getting to the stage of evidence. This might include the name of a company that is committing or threatening forest destruction, who and where its shareholders are, whether it has been grant a permit for its activities, and so on.
Evidence may come in various forms, such as witness evidence (i.e. what people have seen and head), documentary evidence (including electronic/”soft” copies of documents and emails or WhatsApp messages) photographs and videos, and physical evidence such as a log or part of a log or a soil sample.
Gathering evidence is a very important part of taking legal action and Action4justice is in the process of producing a separate guide. A few basic points:
The evidence required is highly specific for each situation and depends on the nature of the legal challenge. For example, the evidence required for a permit challenge will likely differ from a challenge based on Indigenous Peoples’ rights or the right to a healthy environment.
Evidence may be required on most or all the issues that may arise in a case, which can include:
Depending on the facts and legal basis of the claim, you may need to gather:
Where a case has been brought, there is usually a process called “disclosure” or “document production”, where the court may order each party to produce documents, even if they are not helpful to the party in possession of said documents. This is often very important. If a corporation or a state entity is sued for damaging forests, the private and confidential documents or internal communications that the corporation or state entity holds may provide important evidence that the claimant could not otherwise obtain without a court order.
For further guidance see the Action4Justice Access to Information guide.
It is also worth noting the international conventions on access to information in environmental matters including:
It may be easier to persuade a prosecutor or environmental protection agency to take legal action, rather than taking it as a private individual.
However, you may need to present the authorities with good and concrete evidence to convince them that action is needed at a given point in time.
There may be little point in taking legal action to obtain a court order if this cannot be enforced and will bring no actual benefit to those bringing the claim. This must be considered at the outset.
For a detailed example of enforcement issues with court orders and fines relating to deforestation and how technology may help, visit this article.
For more information, see the section, “How Can I Enforce a Court Order”, in the Action4Justice Going to Court guide.
Environmental defenders and protectors of forests are vital to the preservation of the environment.
However, they are very vulnerable. Environmental defenders and activists face harassment, excessive police force and physical threats of violence. 1540 peaceful land and environmental defenders were killed between 2012 and 2020, with a further 358 human rights defenders killed in 2021. Worldwide, they face more and more assaults and murders, as well as intimidation, harassment, stigmatization and criminalization by state and non-state actors.
From the start to the conclusion of the litigation process, it is important to mitigate threats to and ensure the personal safety of claimants, lawyers and witnesses involved in the case, as well as people connected to these individuals and communities.
Keep in mind that circumstances may evolve over time: the security and safety needs of defenders may change throughout the lifecycle of a case. Unexpected events may also change the plan for ensuring personal safety and you should aim to re-evaluate your safety activities at each stage of the litigation process.
The following organisations with specialist skills have resources with detailed guidance on defending forest and environmental defenders:
The UN Environment Programme and the United Nations Economic Committee (under the Aarhus Convention) have also developed rapid response mechanisms that enable these bodies to speak out on individual cases and facilitate technical and legal solutions for governments.