A global movement to give nature rights is growing in the face of a mass extinction event driven by climate change and human over-use of the natural world.
Recent assessments show one third of freshwater fish species under threat of extinction alongside at least one quarter of local livestock breeds, and large numbers of the bees, bats and birds which pollinate crops. Linked to the decline of species, in the last two decades alone around 20 percent of the land we use to grow food has become less productive. Responding to these and other threats to nature, as well as high-profile campaigns like Extinction Rebellion, initiatives are increasingly taking root from the United States to India, and Ecuador to Bolivia, Turkey and Nepal, that give rights to nature.
They aim to respect and protect the living environment, and change how human society relates to its own supporting biosphere. In February 2019 voters in Toledo, Ohio, approved a ballot to give Lake Erie, suffering heavy pollution, rights normally associated with a person. But the story which brought this shift to international attention was the tale of a river in New Zealand.
On March 20th, 2017, the New Zealand government passed legislation recognizing the Whanganui River as holding rights and responsibilities equivalent to a person. The river – or those acting for it – will now be able to sue for its own protection under the law. This was no overnight innovation; it was the culmination of two centuries of physical and legal struggle by the Whanganui people against colonial control of the river and its water, including eight years of intensive negotiation.
The final settlement is considered one of the best examples of using existing legal structures and concepts to protect nature. It also prescribes an unusually advanced form of collaborative governance that may inspire others and prove useful for rapid transition in the face of climate change. Accepting a non human part of nature as a legal entity requires a conceptual shift away from placing humanity at the centre of everything. This understanding could generate other legal changes handing power to other parts of our natural world.
The Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 recognizes the river and all its tributaries as a single entity called Te Awa Tupua, which has rights and interests, and is the owner of its own river bed. It also acknowledges the river as a living whole that stretches from the mountains to the sea, including both its physical and metaphysical elements.
Rights to ownership of the riverbed are vested in the river itself, which can sue and be sued as necessary. Te Awa Tupua is represented by a guardian, Te Pou Tupua, who must act and speak for the benefit of the river’s health and well-being. This guardian consists of two people: one from the Crown and one from the Whanganui people. They serve as legal custodians in the same way that legal guardians represent children today in loco parentis. The hybrid system draws on deeply divergent forms of order – western legal and ancient Maori cultural – in an attempt to weave together a single solution.
Where disputes over water access, use, pollution and diversion happen, nature is rarely the winner. Most cases do not end up in court because there is no one with the knowledge, reason and money to make it happen. Our legal systems are expensive and human-centric – and they do not deal well with needs of the wider natural world. The Whanganui River agreement recognises people both as interdependent with and owing responsibilities to the river, intertwining the rights of both.This could help us to develop new structures and ways of operating based on respect for and partnership with nature.
The idea of a non-human entity having legal personhood is nothing new; we already grant this to corporations, trusts, charities, joint ventures and nation states. Although referred to as a legal “person,” these legal rights are not the same as human rights, which include civil and political rights. Instead legal rights comprise three elements: legal standing (the right to sue and be sued in court), the right to enter and enforce legal contracts, and the right to own property. However, conferring personhood – even of this limited kind – on a part of non-human nature could prove a game changer.
The Whanganui settlement is already having an effect far away: in March 2017, immediately after the New Zealand ruling, the Ganges and Yamuna river system in India was also given the legal status of persons after a battle to stop it being polluted. The Indian court granted legal personhood for different reasons, using the guardianship argument. Treating the river system as a minor, it appointed specific government posts in the state of Uttarakhand to act in loco parentis. This is now being challenged because the river flows across state borders where local government has no jurisdiction – perhaps revealing the weakness of a legislative solution that failed to undergo the rigour of legal testing.
The New Zealand example also involved a lot of different people having to agree contentious issues touching on cultural oppression and use of resources. This took a long time, but it was worth it. A uniquely advanced collaborative governance approach emerged that could be used as a shortcut for rapid transition in other places. The Act provides for an advisory group, a strategy group with 17 key stakeholders to ensure it works as intended. It also established a sizeable fund of NZ$80m to support the system. This is vital, as legal challenges so often fail because of lack of funding.
The Whanganui River has always been an important communication route for the Maori people, who first attempted to prevent the Crown from developing it as early as 1883. They petitioned the government, claiming violations of their Treaty rights and – when this failed – turned to direct action. They obstructed work and refused offers of compensation to step aside.
The Crown eventually forced the Whanganui to abandon their actions by using arrests and threats, but their fight continued in court. In 1938, they launched a claim to the river in the Native Land Court, which failed 24 years later in 1962 after multiple appeals. Then in 1975 the Waitangi Tribunal was set up to settle outstanding claims arising from New Zealand’s sole treaty, the Treaty of Waitangi. A staggering 24 years later, the 1999 Whanganui River Report documented this history of action and acknowledged the inextricable connection between the river and its people.
Meanwhile, environmental law had been developing from the 1960s onwards, largely focusing on either protecting particular special or iconic features, or by placing sustainable limits on development and use of resources. As early as 1972, people began to describe how a natural entity might take legal action to protect itself in court. The European Union had enshrined environmental protection within its policies and activities, in particular with a view to promoting sustainable development, but the enforcement of these rights remains weak; nothing in Union law or the law of any Member State goes so far as to protect the rights of nature itself.
Perhaps the most holistic legal response to climate change has come from Ecuador, where the ‘Sala de la Corte Provincial’ became the first court ever to vindicate the recently constitutionalized rights of nature. It quoted Alberto Acosta, then President of Ecuador’s Constituent Assembly, who said ‘The human being is a part of nature, and [we] must prohibit human beings from bringing about the extinction of other species or destroying the functioning of natural ecosystems.” The organisation Rights of Nature provides an excellent summary of the global picture so far.
New Zealand is known for its willingness to be first and to take principled steps into the social unknown. In 1893 they were were the first nation to grant women the vote, in the 1970s they took an unpopular anti-nuclear stance, and they have long led the campaign against whaling. Their current prime minister was the first to have a baby during office.
Although from the Maori perspective, the Crown – New Zealand’s government – has been slow to recognise the legitimacy of their culture and heritage, the country is still way ahead of many others. Some 30 years ago it began to address some of its systemic faults in the way the state treated indigenous people, and to put real energy into making reparations. They focused on three instruments for change: the Treaty of Waitangi settlement process; the Office of the Race Relations Conciliator; and on public education platforms. Today the results of this are starting to bear fruit, with better Maori portrayal in the media, stronger political participation and perhaps genuine collaboration on the environment.
Indigenous people’s rights are not synonymous with the rights of nature, but many cultures include a strong sense of responsibility toward their environment and a recognition of the place of humanity within it. The demand here for the river to be respected and accorded rights came entirely from the Maori tradition. Several “intrinsic values” to guide Te Pou Tupua are included in the Act. These include “Ko te Awa te mātāpuna o te ora: the River is the source of spiritual and physical sustenance,” and “E rere kau mai i te Awa nui mai i te Kahui Maunga ki Tangaroa: the great river flows from the mountains to the sea.”
This deep connection to nature and the relative level of social cohesion of the Maori people in modern New Zealand – they are much more politically powerful than Australia’s aboriginal people for example – has played a major part in this transition. The Act formally acknowledges the responsibility the Whanganui people hold, to maintain the health and well-being of the River, based on their tikanga (their pre-colonial governance system). The legislation also includes financial compensation and an apology from the Crown for the damage caused to the river and its people.
New Zealand also worked out the complete package of rights with the resources to uphold them. The efficacy of legal rights for rivers depends on both the river, and the other users of the resource, recognising their joint rights, duties, and responsibilities. Further, legal rights are only worth having if they can be enforced. This requires someone to uphold the rights of, and speak for nature, the capacity to do this – time, money, and expertise – and the independence to take action, particularly if such action is politically controversial. For instance, in the examples of Ecuador and Bolivia, few cases have been successfully upheld and even when the rights have been recognized in court, because local actors responsible for enforcement have lacked the funds to translate the legal decision into reality. But, as the growing number of recent example below illustrate, a shift is happening in which society can no longer view the natural world merely as a collection of resources there only for human exploitation.
While nature may still not be able to represent itself in court, the growing movement to give it rights, at least means an increasing number of people globally will be able to stand up and do so on all our behalves. As a placard at one of the recent School Strikes for Climate declared, ‘We are nature defending itself’.