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Feature - Issue #7

Rights of Nature

A number of countries have passed laws granting rights to nature, but we should not assume that this legal mechanism always benefits the environment.

Ideas can languish in corners of the collective imagination for a long time. Sometimes, they spring to life unexpectedly and become, all of a sudden, widely accepted. This is what happened in the last decade to a once radical idea: giving rights to nature.

In practical terms, it all started in 2006 in Tamaqua, Pennsylvania, which became the first US municipality to adopt a local bylaw recognising the rights of nature to exist, thrive and evolve; but really the idea came to international prominence with Ecuador’s 2008 constitution, the first country in the world to grant constitutional rights to nature: the right to respect, the right to maintenance and regeneration, and the right of restoration.

Not too long ago, this idea was considered too radical, even crazy. But since Ecuador passed its landmark constitution, an increasing number of jurisdictions, at all levels of the law, are starting to either implement, or seriously consider it. Technically speaking, there’s no barrier to nature having rights. It can have them, just like other non-human entities do (ships, corporations, trusts, monuments). In legal theory, there is a long tradition that argues that, basically, anything can become a legal entity as long as lawmakers make the appropriate declaration and provide the necessary framework.

So, the fact that increasing numbers of lawmakers are deciding to make nature a legal subject should not surprise us. But we should recognise how different laws reflect different ways of understanding the natural world, and how they influence the balance of power between different groups of people. These cases reflect the multiple interests that lie behind politico-legal processes. If we care about using the tool of rights for both environmental and social justice, we have to pay close attention to these differences.

Photograph by John Steele / Alamy Stock Photo.

The Ecuadorian rights of nature are part of a revolutionary political movement that rewrote the entire constitution of the state. Within that context, an alliance of environmentalists and Indigenous political organisations experimented with this idea and inserted it into the final text. In Aotearoa (as the Māori people call New Zealand), on the other hand, rights of nature laws were the result of very long negotiations between Māori groups and the New Zealand government, a process known as claims settlement. Different Māori groups had claimed, since the early days of colonisation, that the government had repeatedly infringed on their rights, which were granted by the Treaty of Waitangi (1840), the founding treaty of the country. The idea of legal personality therefore become a way of allowing increased Māori authority over Māori land, short of giving the Māori people property rights. In a country demographically dominated by non-Māori people (generally referred to as pakeha), giving a particular Māori descent group property rights would likely be seen as a kind of secessionism. It would therefore be politically very difficult indeed. Instead, Te Urewera (a former national park) and Whanganui River became legal persons in 2014 and 2017 respectively.

Keeping an eye open for these kinds of differences also brings into question a very common assumption in rights of nature coverage so far: that these rights are inherently friendly to nature. It might seem counterintuitive to question this but, if you think about it, rights are not always empowering to those that have them, especially if the subjects of rights cannot claim them in their own name and in full equality. For example, the human rights of stateless people or refugees are supposedly the same as those of citizens, but in practice this is rarely the case. Could something similar happen with rights of nature?

Connected to this, another widely held belief is that rights of nature are inherently friendly to Indigenous people. But giving rights to nature does not necessarily approximate Indigenous philosophies. The concept of rights is of undeniable western origin so to assume that Indigenous people have always recognised the rights of nature without putting it in those terms assumes an inherent closeness of Indigenous people to nature and assimilates the multiplicity of Indigenous ways of life to the homogenous concept of rights.

‘If we think that simply by granting general rights to an environment we will solve the problem of over-exploitation and pollution, we risk emptying this radical idea of its radical potential.’

In the cases of Ecuador and New Zealand, it is clear that their conceptions of rights of nature have radically different genealogies, that environmental issues are not necessarily the driving force behind this legislation, and that the involvement of Indigenous people is a much more complex story than might at first be apparent.

In the case of Te Urewera in New Zealand, the granting of legal personality was a way of settling long standing disputes between Tūhoe (the historic inhabitants of Te Urewera) and the New Zealand government. In other words, it is part and parcel of a colonial system and its repercussions today. Tūhoe have always claimed authority over their own land, while in practical terms the government has not recognised this. Finally, an agreement was reached that managed to sidestep the issue of ownership of Te Urewera by creating a legal entity that owns itself. In 2014, a board was set up by the law to govern this unprecedented self-owning entity.

In environmental terms, Te Urewera was a national park before becoming its own legal entity. National parks are themselves part of colonial heritage, an invention unthinkable outside of a history of relegating Indigenous people to the most unproductive lands and enclosing the rest for integration within a globalised economy. Parks have also routinely romanticised the people living in reservations as being in harmony with nature, though it is much more accurate to say that they were condemned to marginality by the very construct of the park.

The status of Te Urewera as national park has now ended, with the granting of legal entity. The national park construction was meant, on the face of it, to deliver environmental results, in the form of protection of the forested landscape from any kind of modification. However, national parks have also routinely been used to enclose Indigenous land and therefore bring it under the control of the state, under the guise of protecting the environment. The granting of legal entity is not itself concerned with the environment as constructed in colonial imagination, but rather with not quite vesting authority over the land in Tūhoe. Whatever ends up happening with the legal entity, ecologically speaking, is mostly up to the board that has assumed its governance. The new governance arrangement will have to deal with the complexity of different ownership regimes and different interests within Māori communities themselves, and the results of that inevitable political process are far from clear.

Photograph by Karl Johaentges for Image Professionals GmbH / Alamy Stock Photo.

However, the board has a Tūhoe majority, and therefore it is Tūhoe ways of thinking and doing that inform it most. Environmental goals need not be pursued for their own sake, though some parts of the former national park are still designated as wilderness areas. But traditional ways of conceiving the environment do not necessarily align with western conservation goals, which have mostly been preoccupied with enclosing land in order to protect it from people. Instead, Tūhoe ways of thinking conceptualise land and many of its features as ancestors, and therefore have a genealogical relationship with it. Because of this, the board, through its management plan, focuses more on recreating traditional relationships of reciprocity with the land, where taking (of resources, for example) is balanced by giving.

In contrast, the way the western imagination has conceived of environmental conservation (particularly through the creation of national parks) is in direct opposition to resource use. A national park is where nothing is to be modified by human actions, whereas the Tūhoe people relate to the land through specific kinds of use. So, the mechanism of legal personality itself does not guarantee the fulfilment of environmental goals as conceived of in western thought.

The provisions in the Ecuadorian constitution, on the other hand, were heavily influenced by a group of international activists and lawyers, working in partnership with Ecuadorian groups. Their work is exemplified through the Community Environmental Legal Defense Fund (CELDF), a US-based organisation pushing for municipal ordinances in the US that grant rights to municipal environments. The CELDF was behind the Pennsylvania case. In this sense, the Ecuadorian constitution is part of an international network that promotes the rights of nature as sound environmental policy, and does so in a fairly similar way across cases.

Looking at other recent cases in India, Columbia, and Bangladesh, to mention a few, it is clear that there are many different ways of granting rights to nature, and the method promoted by the CELDF is but one of many possibilities. The New Zealand cases, for example, developed mostly independently from this international policy network and, as a result, are very different from the rights of nature enshrined in the Ecuadorian constitution.

Photograph by Karl Johaentges for Image Professionals GmbH / Alamy Stock Photo.

In international media coverage of the rights of nature, the cases of Ecuador and New Zealand have been bunched together, as have all other such cases to date. This is a mistake, as much more attention should be paid to the differences between them, which are full of lessons for the future. The feelgood stories of nature having rights are understandable given the dire state of the natural world and the pessimistic news it generates, but they will inevitably lead to disappointment and exhaustion if the detail is sacrificed for an optimistic headline.

The Ecuadorian constitution has had several different tests in courts throughout the country, with mixed results. Though Indigenous people in that country supported the rights of nature, they did so for strategic reasons thinking that, together with greater territorial rights for their ancestral lands, they could strengthen Indigenous authority. This hope has not materialised. The reality of the implementation of the law is that the state has often used the rights of nature to clear the way for industrial projects, helping neither local populations, nor the natural environment. For example, it used the law to evict small-scale miners from lands that it then planned to develop into large-scale mines. Though this might strike some as against the spirit of the law, it is not against the letter.

This is why it becomes imperative to question the unexamined assumptions behind different ways of using the concept of rights for nature. It was reported recently that a lagoon in Spain is a candidate for having rights, as is a wetland in Florida. But whether or not these potential laws will be successful depends almost entirely on how they are constructed, by who, and for what explicit purposes. If we think that simply by granting general rights to an environment we will solve the problem of over-exploitation and pollution, we risk emptying this radical idea of its radical potential.

As legal concepts such as rights, that have not traditionally been applied to natural entities, are liberated from their constraints, the detail - how laws are written and for what purpose - becomes essential knowledge for understanding what they are likely to achieve. The rights of nature are not inherently friendly to nature, nor to local populations. They are articulated differently in different places, and losing sight of that by promoting a blanket approach can be dangerous. Instead, we should remain vigilant of unintended consequences, and realise that the rights of nature are always involved in local political struggles. Instead of rights for nature becoming a dogmatic position, we should acknowledge that those rights are a political, as much as a legal, process.

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