Environmental personhood

Environmental personhood is a legal concept which designates certain environmental entities the status of a legal person. This assigns to these entities, the rights, protections, privileges, responsibilities and legal liability of a legal personality. Environmental personhood emerged from the evolution of legal focus in pursuit of the protection of nature. Over time, focus has evolved from human interests in exploiting nature, to protecting nature for future human generations, to conceptions that allow for nature to be protected as intrinsically valuable.[1] This concept can be used as a vehicle for recognising Indigenous peoples' relationships to natural entities, such as rivers.[2] Environmental personhood, which assigns nature (or aspects of it) certain rights, concurrently provides a means to individuals or groups such as Indigenous peoples to fulfill their human rights.

Background

The United States Professor Christopher D. Stone first discussed the idea of attributing legal personality to natural objects in the 1970s, in his article "Should trees have standing? Towards legal rights for natural objects".[3] A legal person cannot be owned; therefore, no ownership can be attributed to an environmental entity with established legal personality. Standing (law) is directly related to legal personality. Entities with standing, or locus standi, have the right or capacity to bring action or appear in court. Environmental entities cannot themselves bring action or appear in court. However, this action or standing can be achieved on behalf of the entity by a representing legal guardian. Representation could increase protection of culturally significant aspects of the natural environment, or areas vulnerable to exploitation and pollution.

Domestic rights of nature

New Zealand

In 2014, Te Urewera National Park was declared Te Urewera, an environmental legal entity.[4] The area encompassed by Te Urewera ceased to be a government-owned national park and was transformed into freehold, inalienable land owned by itself.[5]

Following the same trend, New Zealand’s Whanganui River was declared to be a legal person in 2017.[6] This new legal entity was named Te Awa Tupua and is now recognised as “an indivisible and living whole from the mountains to the sea, incorporating the Whanganui River and all of its physical and metaphysical elements.”[7] The river would be represented by two guardians, one from the Whanganui iwi and the other from the Crown.[8]

India

The Ganges and Yamuna Rivers are now considered legal persons in an effort to combat pollution. The rivers are sacred to Hindu culture for their healing powers and attraction of pilgrims who bathe and scatter the ashes of their dead.[9] The rivers have been heavily polluted by 1.5 billion litres of untreated sewage and 500 million litres of industrial waste entering the rivers daily.[10]

The High Court in the northern Indian state of Uttarakhand ordered in March 2017 that the Ganges and its main tributary, the Yamuna, be assigned the status of legal entities. The rivers would gain “all corresponding rights, duties and liabilities of a living person.” This decision meant that polluting or damaging the rivers is equivalent to harming a person. The court cited the example of the New Zealand Whanganui River, which was also declared to possess full rights of a legal person.[11]

This development of environmental personhood has been met with scepticism as merely announcing that the Ganges and Yamuna are living entities will not save them from significant, ongoing pollution. There is a possible need to change long-held cultural attitudes towards the Ganges, which hold that the river has self-purifying properties.[12]

There is further criticism that the guardianship of the rivers was only granted to Uttarakhand, a region in northern India which houses a small part of the rivers’ full extent. The Ganges flows for 2,525km through Uttarakhand, Uttar Pradesh, Bihar, Jharkhand and West Bengal, with only a 96km stretch running through Uttarakhand. Only a small section of the 1,376km Yamuna tributary runs through Uttarakhand – which also crosses through the states of Haryana, Himachal Pradesh, Delhi and Uttar Pradesh.[13]

Regardless of scepticism surrounding the decision of the Uttarakhand High Court, proclaiming these vulnerable rivers as legal entities invokes a movement of change towards environmental and cultural rights protection. The decisions may be built upon as a foundation for future environmental legislative change.

United States

In 2006, a small community in Pennsylvania called Tamaqua Borough worked with a rights of nature group called Community Environmental Legal Defense Fund.[14] Together, the groups drafted legislation to protect the community and its environment from the dumping of toxic sewage.[15] Since 2006, CELDF has assisted with over 30 communities in ten states across the United States to develop local laws codifying the rights of nature. CELDF also assisted in the drafting of Ecuador's 2008 constitution following a national referendum.[16]

Ecuador

The rights of nature “to exist, persist, maintain and regenerate its vital cycles” have been proclaimed under Ecuador’s 2008 constitution.[17] This occurred after a national referendum in 2008, allowing the Ecuador constitution to reflect rights for nature, a world first.[18] Every person and community has the right to advocate on nature's behalf.[19] The Constitution proclaims that the “State shall give incentives to natural persons and legal entities and to communities to protect nature and to promote respect for all the elements comprising an ecosystem.”[20]

The first successful case of the rights of nature implementation under Ecuador constitutional law was presented before the Provincial Court of Justice of Loja in 2011. This case involved the Vilcabamba River as the plaintiff, representing itself with its own rights to ‘exist’ and ‘maintain itself’ – as it attempted to halt construction of a government highway project interfering with the natural health of the river.This case was brought before court by two individuals, Richard Frederick Wheeler and Eleanor Geer Huddle, as legal guardians acting in favour of nature – specifically the Vilcabamba River. A constitutional injunction was granted in favour of the Vilcabamba River and against the Provincial government of Loja, attempting to conduct the environmentally-harmful project. The project was forced to be halted and the area was to be rehabilitated.[21]

Bolivia

The constitutional change in Ecuador was followed legislatively by Bolivia in 2010, passing the ‘Law of the Rights of Mother Earth’ (Ley de Derechos de la Madre Tierra). This legislation designates Mother Earth the character of ‘a collective subject of public interest’[22] with inherent rights specified in the law.[23] The Law of the Rights of Mother Earth give aspects of legal personhood to the natural environment. Judicial action can be taken for infringements against individuals and groups as part of Mother Earth as ‘a collective subject of public interest’.[24] The legislation states that “Mother Earth is the dynamic living system made up of the indivisible community of all living systems, living, interrelated, interdependent and complementary, sharing a common destiny.”[25]

Colombia

The Colombia Constitutional Court found in November 2016 that the Atrato River basin possesses rights to "protection, conservation, maintenance, and restoration." This ruling came about as a result of degradation to the river basin from mining, impacting nature and harming of Indigenous peoples and their culture. The court referred to the New Zealand declaration of the Whanganui River as a legal person holding environmental personhood. The court ordered that joint guardianship would be undertaken in the representation of the Atrato River basin. Similarly to the New Zealand declaration, the representatives would come from the national government and the Indigenous people living in the basin.[26]

The court stated:

“(I)t is the human populations that are interdependent of the natural world – and not the opposite – and that they must assume the consequences of their actions and omissions with the nature. It is a question of understanding this new sociopolitical reality with the aim of achieving a respectful transformation with the natural world and its environment, as has happened before with civil and political rights…Now is the time to begin taking the first steps to effectively protect the planet and its resources before it is too late…”[27]

Significance for cultural human rights

The recognition of the Whanganui River as a legal entity in New Zealand (Te Awa Tupua) encompassed a vivid sense of cultural “inalienable connection” to the local iwi and hapu of the river. Maori culture considers natural features such as the Whanganui River as ancestors and iwi hold deep connections with them as living entities. This inalienable connection of indigenous culture to their natural surroundings is apparent in other parts of the world such as Colombia where a similar environmental personhood declaration was made for the Atrato River basin.

The lead negotiator for the Whanganui iwi, Gerrard Albert, said “we consider the river an ancestor and always have…treating the river as a living entity is the correct way to approach it, as an indivisible whole, instead of the traditional model for the last 100 years of treating it from a perspective of ownership and management.”[28] James D K Morris and Jacinta Ruru suggest that giving “legal personality to rivers is one way in which the law could develop to provide a lasting commitment to reconciling with Maori.” This was the longest-running legal dispute in New Zealand. The Whanganui iwi had been fighting to assert their rights in harmony with the river since the 1870s.[29]

This is a fundamental step forward for cultural rights as the environmental personhood status of the river means that if there was harm committed to the river, the law now sees no differentiation between harming the Whanganui iwi or harming the river as they are the same indivisible entity. The Whanganui iwi have a proverb which reads Ko au te Awa, ko te Awa ko au: I am the River and the River is me - the iwi and hapu of the Whanganui River have an inalienable connection with, and responsibility to, Te Awa Tupua and its health and well-being.

See also

References

  1. ↑ Gwendolyn Gordon. "Environmental Personhood." (2017), at page 25.
  2. ↑ James DK Morris and Jacinta Ruru. "Giving Voice to Rivers: Legal Personality as a Vehicle for Recognising Indigenous Peoples' Relationships to Water." AILR 14 (2010): 49.
  3. ↑ Christopher D. Stone. "Should Trees Have Standing--Toward Legal Rights for Natural Objects." Southern California Law Review 45 (1972): 450.
  4. ↑ Te Urewera Act 2014.
  5. ↑ Te Urewera Act 2014, ss 12-13.
  6. ↑ Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 14.
  7. ↑ Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 13(b).
  8. ↑ https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being/.
  9. ↑ Dr Susan Bliss. "A river is a 'person'." 49 Geography Bulletin No 2 (2017): 17.
  10. ↑ https://www.theguardian.com/world/2017/mar/21/ganges-and-yamuna-rivers-granted-same-legal-rights-as-human-beings/.
  11. ↑ https://www.theguardian.com/world/2017/mar/21/ganges-and-yamuna-rivers-granted-same-legal-rights-as-human-beings/.
  12. ↑ http://www.unep.org/stories/story/rights-rivers/.
  13. ↑ http://www.unep.org/stories/story/rights-rivers/.
  14. ↑ CELDF. https://celdf.org/.
  15. ↑ Gwendolyn Gordon. "Environmental Personhood." (2017), at page 10.
  16. ↑ CELDF, Rights of Nature: Timeline. https://celdf.org/rights/rights-of-nature/rights-nature-timeline/.
  17. ↑ Constitution of the Republic of Ecuador (October 20, 2008), http://therightsofnature.org/wpcontent/uploads/pdfs/Rights-for-Nature-Articles-in-Ecuadors-Constitution.pdf.
  18. ↑ Andrew C. Revkin, Ecuador Constitution Grants Rights to Nature, New York Times, (September 29, 2008), http://dotearth.blogs.nytimes.com/2008/09/29/ecuador-constitution-grants-nature-rights/.
  19. ↑ Constitution of the Republic of Ecuador (October 20, 2008), Chapter 7.
  20. ↑ Constitution of the Republic of Ecuador (October 20, 2008), Article 71.
  21. ↑ Natalia Greene. "The first successful case of the Rights of Nature implementation in Ecuador." Global Alliance for the Rights of Nature. http://therightsofnature.org/first-ron-case-ecuador/.
  22. ↑ Ley de Derechos de la Madre Tierra, December 2010, article 5.
  23. ↑ Ley de Derechos de la Madre Tierra, December 2010, article 7.
  24. ↑ Ley de Derechos de la Madre Tierra, December 2010, article 6.
  25. ↑ Ley de Derechos de la Madre Tierra, December 2010, article 3.
  26. ↑ https://celdf.org/2017/05/press-release-colombia-constitutional-court-finds-atrato-river-possesses-rights/.
  27. ↑ https://celdf.org/2017/05/press-release-colombia-constitutional-court-finds-atrato-river-possesses-rights/.
  28. ↑ https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being/.
  29. ↑ http://metro.co.uk/2017/03/16/whanganui-river-becomes-first-in-the-world-to-be-recognised-as-a-legal-person-6512264/.
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