In November 2022 the Irish Citizens’ Assembly on Biodiversity Loss recommended to government that protecting the environment should be recognised in the constitution. If successful, Ireland will follow Ecuador in recognising rights for nature at the highest level. Meanwhile in the United States, dozens of communities have ratified rights of nature at local government level and New Zealand recognises the Whanganui River as a "indivisible and living whole" with its own personhood.
It is not difficult to understand the appeal of rights of nature. For many advocates it is an “idea whose time has come” and it inspires us to think about what form a radical shift in our legal relationship to nature may take. The best example is from Christopher Stone whose 1972 article “Should Trees Have Standing?” was almost single handedly responsible for planting the seed of the idea.
According to Stone, it first came to him in the final moments of a lecture on property law. He noted that, like human culture, property law is evolving and has progressed through different stages of development. Some humans were once considered property; the types of things that can be owned and what ownership means has changed over time.
As students were packing up and getting ready to go to their next class, Stone threw out an idea: “So, what would a radically different law-driven consciousness look like? … One in which nature had rights … Yes, rivers, lakes … trees … animals … How would such a posture in law affect a community’s view of itself?” As Stone tells the story, this thought bubble caused an uproar and he left the lecture hall asking himself “What did you just say in there? How could trees have rights?”
The power of rights of nature is that it forces us to ask these questions and imagine a future where the environment is not seen as a lifeless object, or property, or a canvas upon which human will is exerted.
Yet while rights of nature appear radical, they also contain limitations. Fundamentally, rights are a legalistic tool that offers the prospect of protection through the courts — an adversarial system where competing interests are weighed. The extension of rights to human beings demonstrates the potential problems. Even with human rights now covering women or people of colour, they are not always treated equally to white men. In fact, the first questions one must ask during any extension of rights are: who is going to be excluded? Whose interests will count less than others?
Corporations also have legal personhood. And you could be forgiven for being sceptical that the environment will be given the same respect as a corporate person in a court case.
Ecuador has had rights of nature since 2008. This constitutional reform was motivated by well-organised, indigenous-led movements in response to decades of environmental harm. The demands of this movement have changed over the decades but there has been a consistent thread of sovereignty and greater level of decision-making authority over indigenous lands. Seen in this light, rights of nature might be considered a conservative response that has pacified the more radical demand for sovereignty.
Unless an indigenous community has time, resources and expertise to bring a case in Ecuador's Constitutional Court, the rights do not have the teeth to challenge oil extraction. Since 2008 not a single case has challenged an existing oil project or led to greater compensation for communities impacted by pollution. The most hopeful case is the 2021 decision of the Constitutional Court to cancel permits in the Los Cedros reserve. However, this decision is limited to permits to mine copper and gold in an internationally protected reserve. This is a high standard and does not touch oil extraction which is at the heart of the Ecuadorian economy.
In 2021 Ecuador's national oil corporation generated US$12 billion in revenue from oil – an increase of 22 percent from 2020. This accounts for a significant portion of Ecuador’s national income and the state-owned company has plans to double production over the next five years. What substantive impact can rights of nature legislation have in the context of such extraction? Similarly, Bolivia has struggled to reconcile legislation for rights of nature with its desire to exploit the 5.4 million tonnes of lithium that sits below the Salar de Uyuni salt flat. Given the world’s hunger for lithium to power the renewable revolution, how long can this part of the environment remain protected?
Rights of nature advocates often draw an analogy between their movement and the granting of rights to slaves. The comparison is apt but not in the sense they intend. Just as emancipated slaves remained in bondage and subject to the powers of racism that coursed through society, the current examples of rights of nature may do nothing more than affirm a different form of subjugation.
Rights of nature is not a substantive or transformative legal alternative. They are not about displacing growth economics or building democracy in a way that empowers communities or builds resilience. Rather, rights of nature represent a minimalist alternative and seek to mitigate environmental damage from firmly within the coordinates of the current system. And, to date, it is difficult to find examples where they have meaningfully protected the environment.
Peter Burdon is Associate Professor, Adelaide law School, University of Adelaide. He declares no conflict of interest.
Originally published under Creative Commons by 360info™.
