By Cameron La Follette
What if Nature had rights? Not “contingent rights,” bestowed by humans and defensible in courts, but primal, pre-existing rights that human judicial systems recognize, honor and enforce. What kind of world would we be living in then?
Earth Law as an innovative solution
It is essential to recognize that “Rights of Nature” (also called “Earth law”) is not primarily a legal theory, despite the very legal-sounding name. Rights of Nature is a shorthand term for a philosophy that prioritizes systemic sustainability, rather than symptomatic partial fixes of environmental problems.
In other words, Earth Law seeks solutions to living that fit inside Nature’s limits, rather than beyond them. Going beyond nature’s limits causes cascades of environmental degradation, species extinction, reduced ecological resilience, and the miserable host of related ills with which we are so familiar today. Rights of Nature is a means of restoring relationships with nature.
This relationship with Nature needs to evolve from one of treating Nature as a grab-bag of resources for human use towards a relationship of mutual respect. In any relationship of dignity, both parties have responsibilities and rights to advance the wellbeing of the other.
To change living and consumption patterns as intended, Rights of Nature must be considered as, and enshrined as, a set of pre-existing rights whose provenance comes before any human right. Otherwise, Rights of Nature becomes merely another in the already long list of rights which courts, and society as a whole, must seek to balance. Existing rights familiar to Americans, for example, include the Declaration of Independence’s rights to life, liberty and the pursuit of happiness, and those enumerated in the Bill of Rights.
Implementation of the Rights of Nature continues to evolve. The details must be hammered out, place by place, to implement this desperately needed paradigm change. It is important to ensure that environmental justice is served for people as well as Nature. We need to find the most accurate ways to measure harms to Nature and design economies so they lie within Nature, rather than seeking to enslave it.
The Beginning: Ecuador and Bolivia
The laurel belongs to Ecuador for taking a decisive step into national Rights of Nature governance, and bringing the world’s attention to this dramatic change of perspective. In its new Constitution, accepted by the people in 2008, Ecuador has language enshrining Rights of Nature: “Article 71. 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 fundamental rights are enumerated in greater detail later in the section.
Bolivia became the second country in the world to recognize Rights of Nature nationally when it passed a comprehensive Mother Earth Law in 2012, which gave Mother Earth the right to life, to diversity of life, to water, clean air, equilibrium, restoration and pollution-free living. Bolivia had an even greater effect on the rising international concern over the deterioration of the earth when it convened the World People’s Conference on Climate Change and the Rights of Mother Earth in 2010.
This brought together concerned organizations from around the world, and resulted in the Universal Declaration of the Rights of Mother Earth. This Declaration has been highly influential in shaping the Rights of Nature movement and development of Earth law principles, despite being conceived of, discussed and used as a template entirely outside the international justice system or any nation’s governance.
Sometimes Courts Lead the Way
Ecuador now has ten years of court cases focusing, at least in part, on interpreting the Rights of Nature provisions of the Constitution. In a 2009 ruling on a case concerning biodigesters on an industrial hog farm, Ecuador’s Constitutional Court invoked the State’s duty of guardianship for the first time to protect the Rights of Nature.
The Court pointed out that the new Constitution gave Nature the right to have its existence fully respected, and the right to be restored when its natural systems were affected. This analysis resulted in the Court’s order to set up a commission to monitor operation of the biodigesters and the industrial farm’s waste and environmental management.
Recently, Ecuador turned down a proposed dolphinarium, based in part on Rights of Nature principles. Even more recently, the Ecuadoran Constitutional Court gave notice that it will develop binding jurisprudence on questions of natural resource exploitation and the impact on Rights of Nature and rights of communities – an essential step the Court has never taken before, which will be very important in Rights of Nature leadership worldwide.
Even Nepal, a war-torn country, is leading and creating discussion of Rights of Nature at the highest court level. Though their Supreme Court has issued important environmental rulings in many other realms, such as water pollution, groundwater pollution, petrol taxes and park protection, its holding in the Godavari Marble case is stunning. The Supreme Court ruled against Godavari Marble’s operation in the Kathmandu Valley in 1996, but the government continued to allow it to operate. However, in 2016, the Court unequivocally closed the marble quarry, and handed down a decision that enshrined the concept of Rights of Nature – that is, Nature’s need to exist for its own sake. By this one decision, the Supreme Court has brought ecological governance to the forefront of Nepal’s environmental conversation.
Sometimes Rivers Lead the Way
New Zealand took a noteworthy first step with regards to its Whanganui River. In 2017, the New Zealand Parliament granted personhood to the Whanganui River as part of solving long-negotiated grievances between the government and the Maori iwi (tribal groups) for whom the Whanganui is ancestor, relative and part of the community. The Legislation created a new oversight commission comprised of one member appointed by the Crown and one member appointed by the Whanganui Maori. This commission has the power to promote and protect the health and well-being of the River. This action both solved treaty problems and provided a beautiful example of fusion between Western legal concepts and indigenous understanding, for the benefit of Nature and the human communities dependent on it.
The Atrato River of Colombia is the locus for long-standing illegal mining of enormous scale, intensity and duration. The river, in the Chocó region, is highly biodiverse ecologically, and home to half a million people. Despite a maze of environmental protection laws, the Atrato basin continued to deteriorate, causing serious violations of rights to life, health, water, food security and healthy environment. The Sixth Chamber of Review of the Constitutional Court of Colombia, desperate to rise beyond the mere symbolic effectiveness of laws that clearly were not working on the ground, issued an unprecedented decision in 2016. The Court said, “Environmental justice must be applied beyond the human stage and must allow nature to be subject to rights.” No longer merely an object of rights, the Court respected the Atrato as a subject of rights.
Finally, just a few weeks ago, the Yurok Tribal Council passed a resolution recognizing the Rights of the Klamath River, which became the first river in the United States to have its rights formally recognized. The resolution recognizes the rights of the river “to exist, flourish, and naturally evolve; to have a clean and healthy environment free from pollutants; to have a stable climate free from human-caused climate change impacts; and to be free from contamination by genetically engineered organisms.”
Sometimes Sustainability Leads the Way
Rights of Nature – or some form of ecological governance – is the only road to true systemic sustainability. “Sustainability” is so overused a concept that it has become both spineless and colorless. But nevertheless it remains powerful: it means living inside Nature’s boundaries, not flouting them. Sustainability, in other words, cannot be an excuse for expanding human activity via an economy based on renewable energy, nor can it be limited to tricky calculations of the carbon footprint. Major decisions based on a visionary understanding of sustainability can lead to a strong focus on ecological governance, though it does not go by the Rights of Nature moniker.
From the 1960s to today, the Himalayan kingdom of Bhutan has continued to protect an increasing amount of their land base. Currently, 51% of Bhutan is safeguarded from development. Bhutan’s Constitution also requires that 60% of the country’s forests be protected in perpetuity. Stewardship of Nature to ensure its flourishing have always been part of the kingdom’s policies and have shaped its conservation history. Most well known is Bhutan’s effort to govern by a different standard, other than sheer economic productivity, by instituting and measuring through its Gross National Happiness standard. Bhutan has a strong, centralized natural resources planning process in place that assists in maintaining the kingdom’s commitment to Nature’s stewardship, and fulfilling international commitments on climate change and biodiversity.
In Scotland, the Caledonian Forest that once covered much of the Highlands is so decimated, down to 1% of its natural range, that the Highlands are famous for an austere, ravished beauty of treeless hills, barren peat hags and heather-covered landscapes, devoid of most wildlife. Not until 1959 was the alarm sounded, which catalyzed several local reforestation projects beginning in the 1960s. Finally in 1989, visionary activist Alan Featherstone founded Trees for Life, a Scottish organization that has made dramatic recovery of the Caledonian Forest possible. They run their own nursery, purchased a 10,000-acre estate, and began the restoration of the broken ecological web that the native Scots pine forest would normally sustain. By 2018, Trees for Life had planted more than 1.5 million native trees, provided for restoration of many other forested areas by such means as deer-proof fencing, and initiated nationwide collaboration for restoration of the native forests of the Highlands.
Last month in June, the Legislative Assembly of El Salvador approved a pronouncement deeming that “forests are living entities” and that each person bears a responsibility to care for, preserve and respect forests while promoting concrete actions to expand forests in El Salvador. Earth Law Center supports Eneas Wilfredo Martínez Santos and local partners to secure rights for the forests of El Salvador.
Sometimes Desperation Leads the Way
The small island nation of Kiribati (formerly the Gilbert Islands) faces an uncertain future in this era of climate change, increasingly violent storms and rising sea levels. Its thirty-three islands are all low-slung coral atolls – narrow strips of coral sand surrounding a lagoon – with fragile lenses of fresh water on which the inhabitants depend. The approximately 120,000 people, whose home Kiribati has been for at least 3,000 years, can no longer be certain they will continue to have a homeland at all. As a result, the former President, Anote Tong, has become an international spokesman for ocean protection and strong action on climate change. He points out that the people of Kiribati cause almost none of the world’s carbon pollution, but are among the first to suffer from its devastating effects. President Tong spearheaded initiatives ranging from large-scale island barrier protections to finding alternative water sources, to policies on organized mass immigration if Kiribati’s people must flee their homeland.
With local partners, Earth Law Center is working to pass an ordinance to recognize rights for the endangered Southern Resident Orcas, as part of a larger initiative to protect the inland Salish Sea, which stretches between Canada and Washington State. This initiative responded to the news from scientists, who reported in 2018 that the Orcas had hit a critical threshold in their ability to successfully reproduce in the wild. Part of the Orcas’ emergency stems from the bioaccumulation of toxins from Seattle, Washington and Vancouver, British Columbia, whose watersheds drain into the Salish Sea. Symptomatic fixes, such as quieting or rerouting ferries, will not end the destruction of the Salish Sea’s ecology via pollution, fossil fuel tankers and other sources. A Rights of Nature ordinance, based on a paradigm change of relationship with Nature rather than mere exploitation, has a much better chance of success.
Rights of Nature is a term advocating for the restoration of a mutual relationship between humans and Nature. The human relationship with Nature cannot be a relationship of servitude of Nature to human needs; the results of that paradigm are everywhere apparent. There is no single way to repair this relationship. Every culture has its own histories and cultural richness upon which to draw, as these examples from around the world show.
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About the Author
Cameron La Follette lead-authored a book in 2017, Sustainability and the Rights of Nature: An Introduction, to survey the actions taken worldwide thus far, and to explore what would be necessary, in the United States, to prioritize Nature’s functioning. There were many surprising conclusions from this book, especially the extent to which the country’s laws, philosophies and actions on the ground need to change to honor Nature’s inherent rights. A companion volume, Sustainability and the Rights of Nature in Practice, is forthcoming. This second book consists of invited chapters from policymakers and advocates worldwide showcasing what their countries and communities are doing to repair the relationship with Nature. In this visionary task lies the great hope for the future.