Legal Rights of Nature?

[Lisbeth]

Recognising that nature has legal rights is a key step to slowing the degradation of our planet

By Lesai Seema | 02 May 2023, Lesai Seema is an associate at environmental law firm Cullinan & Associates for the Wild Law Institute, which advances and defends the Rights of Nature.

The Constitution of the Republic of South Africa is considered one of the most transformative and progressive in the world. However, at present, the South African legal system treats all aspects of nature other than humans as ‘things’ which cannot have rights.
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In 1972, Christopher Stone, an American law professor, published an influential article titled “Should Trees have standing? Toward Legal Rights for Natural Objects” in which he proposed that legal systems should evolve to recognise that “natural objects” (ie aspects of Nature) have rights just as humans do. That is, the legal system should not only acknowledge that Nature is deserving of protection and preservation, but that nature is a legal subject with rights that can be enforced against other legal subjects.

Stone’s view can be summarised as follows: “Until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of ‘us’ — those who are holding rights at the time.”

Although Stone’s article inspired a minority judgment by US Supreme Court Justice Douglas, most lawyers mocked the idea at the time. Today, however, there is a Universal Declaration of the Rights of Mother Earth, a Global Alliance for the Rights of Nature leading a rapidly growing global movement, and a United Nations Harmony with Nature programme that tracks the implementation of this eco-centric approach to law (known as Earth jurisprudence).

This approach challenges the idea that all beings other than humans (i.e. all of Nature) are objects or “natural resources” that exist for human use. Implementing rights of Nature requires that ecological communities (ecosystems) and the diverse members of those communities, are subjects not objects in law. In other words, they have “legal personhood” just as a company or government does.

Rights for nature

The current legal systems of most countries are based on the assumption that humans are superior to other forms of life and are the only justifiable bearers of rights. This anthropocentric view becomes evident when you consider how a land degradation dispute would be decided.

A community that depends for their livelihoods on the ecosystem of a particular mountain would usually have a legal right to use the mountain (eg for firewood, food, medicinal plants, grazing, and recreation) and to defend this right. If any other person or entity wants to develop or clear vegetation on the mountain, the community would have the right to approach the courts for an order prohibiting the intended conduct.

The result is that the community’s rights are recognised and upheld, however, the mountain itself is not acknowledged as having rights and consequently at no stage is consideration given to protecting the mountain itself or to what would be in the best interest of the ecological communities of the mountain, including, plants, animals, streams and more.

In an attempt to rectify this oversight, courts and parliaments around the world have begun taking steps to recognise aspects of nature — such as rivers, mountains, and forests — and granting them rights as legal persons with specific rights that arise, like human rights, as a consequence of their existence as part of nature.

Ecuador

In 2008, Ecuador became the first country to entrench the legal rights of nature in its constitution. The preamble to the 2008 constitution explains that the people of Ecuador intend to build a new kind of society, which celebrates the diversity of cultures, and seeks to live in harmony with nature, in order to achieve “the good way of living” (the term “good way of living” is a translation of “sumak kawsay”, a term in the Kichwa language which refers to an ancestral Andean concept that highlights the importance of solidarity, community ties, harmony with nature, and dignity. It is translated as “buen vivir” in Spanish.)

Recognising and upholding the rights of nature is seen as an essential part of ensuring that people live in harmony with Nature.

The rights now reflect in chapter 7, Article 71 of the Ecuador Constitution which reads: “Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.”

These rights have provided the legal basis for a series of important cases that protect nature. For example, on 1 December 2021, the seven Justices of the Constitutional Court of Ecuador found that mining in the protected Los Cedros rainforests would violate the rights of nature and the environmental licences granted by the Ministry of Environment to the Ecuadorian state-owned mining company in respect of the Río Magdalena mining project.

India

Several courts in India have recognised aspects of nature as legal subjects with rights, despite the absence of legislation that specifically recognises those rights.

For example, in the Periyakaruppan case which concerned an official unlawfully transferring protected forest land to a private person, the court held that: “The past generations have handed over the ‘Mother Earth’ to us in its pristine glory and we are morally bound to hand over the same Mother Earth to the next generation. It is the right time to declare/confer juristic status to the ‘Mother Nature’.”

The court invoked its inherent “parent of the nation” (parens patriae) jurisdiction to declare that “Mother Nature” is a “Living Being” with the status of a legal person, with rights, duties and liabilities, and directed the state government and the central government to take appropriate steps to protect Mother Nature in all possible ways.

The “parent of the nation” doctrine enables the state to represent a minor child, an animal or incapacitated/differently abled persons who were not afforded adequate representation by a parent/guardian. Courts in India are now applying this principle to enable them to intervene on behalf of nature.

New Zealand

In order to resolve long-standing disputes between Māori tribes (Iwi) and the Crown in New Zealand/Aotearoa, legislation has been enacted that recognises the indigenous perspective that aspects of Nature are beings which humans must respect.

For example, in 2014, the New Zealand government enacted the Te Urewera Act which recognised the Urewera Forest (which previously held the status of a national park) as “a legal entity” with “all the rights, powers, duties, and liabilities of a legal person”.

Similarly, the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, recognises that “Te Awa Tupua is an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements” with its own mauri (life force) and that “Te Awa Tupua is a legal person and has all the rights, powers, duties, and liabilities of a legal person.”

The list of countries around the world that have gone on to acknowledge Rights of Nature continues to grow and includes Australia, Colombia, Bangladesh, Bolivia, Panama, Uganda and the United States of America.

South Africa

The Constitution of the Republic of South Africa, 1996 is considered one of the most transformative and progressive in the world. However, at present, the South African legal system treats all aspects of nature other than humans as “things” which cannot have rights. Section 24 of the Constitution provides that:

“Everyone has the right—

“(a) to an environment that is not harmful to their health or wellbeing; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”

Section 24 of the Constitution and the various acts that regulate, among other things, air quality, biodiversity, coastal management, protected areas and forests have been vital in slowing the degradation of nature.

However, they only recognise and provide for protection of nature as property for use, for the benefit of “present and future generations”. The law provides for the protection of human rights to use “natural resources” and prohibits some conduct that harms nature, but other animals, rivers and ecosystems do not have the right to be represented in court or ask the court to grant orders that will protect their interests.

However, the Constitution recognises that customary law and rights or freedoms that are recognised or conferred by customary law are not overruled by the Bill of Rights except to the extent that they are inconsistent with it. Customary law typically reflects African philosophies that recognise that humans come into being, and continue to exist, by virtue of our ongoing relationships within nature and that we must treat other beings with appropriate respect.

This opens up the intriguing possibility that some recognition of the rights of nature in South Africa could occur as a consequence of applying customary law.

The intention of Rights of Nature and legal personhood is to transform in a real way how we understand and interact with nature at all levels. It draws attention to the fact that we exist as members of a community of life rather than managers of “natural resources” and can be a powerful tool to raise ecological awareness, protect the sources of life, and advance common objectives.

For example, the New Zealand government’s recognition of the Whanganui River and Te Urewera mountains and forests reflects an acknowledgment of indigenous thinking which helped resolve protracted disputes with Māori peoples.

Despite a well-developed system of environmental laws in South Africa, nature continues to be over-exploited, and environmental crises like climate change and the rapid decline of populations of wild species, continue to accelerate.

It is time for our legal system to recognise the reality that humans are not the only subjects on Earth and that we cannot protect the human rights in the Bill of Rights without protecting the rights of rivers to flow free of pollution and the rights of all beings that contribute to ecological health.

South Africans pride themselves on having a legal framework that protects those who are most vulnerable. Who is more vulnerable than (Mother) Nature? DM