I have written before about the tendency, currently enjoying gusts in its sails, to grant rights to natural environments. In practical terms, it all started in a borough in Pennsylvania, but really came to international prominence with Ecuador’s 2008 constitution, the first one in the world to grant constitutional rights to nature. These are the right to respect, regeneration of natural cycles, and restoration.
This might sound good, or strange, or outright crazy, depending on what you are used to and where you’re coming from. Technically speaking, there’s nothing wrong with nature having rights. It can have them, just like other more or less fictional entities do. In legal theory, there is a long tradition that argues that, basically, anything can become a legal entity as long as lawmakers make the appropriate declaration and provide the necessary framework.
So, the fact that increasing numbers of lawmakers are deciding to make of nature (either as such, or just landscapes) a legal subject should not surprise us. After all, in our ecological century all available tools will be deployed in the name of non-human subjects. What is of great interest is how different laws reflect different ways of understanding the natural world, and how they influence the balance of power between different groups of people. The differences between different cases of rights also reflect the multiple interests that lay behind politico-legal processes. If we care about using the tool of rights for both environmental and social justice, we have to pay close attention to these differences.
A forthcoming paper of mine starts to do that. It is long, and admittedly tedious and dense, so here I want to sum up its main arguments as clearly as possible. There are three main questions that I follow through. First, I want to understand the different origins of different rights of nature laws. This is so for a simple reason: it is often claimed in advocacy work and media coverage of these laws that they are all part of an international movement for the rights of nature. I am suspicious of such sweeping statements, particularly in the absence of identifiable markers of a ‘movement’ (such as, for instance, present in the Black Lives Matter movement, most notably sustained and widespread grassroots organising). Instead of simply accepting that the rights of nature are part of the same movement everywhere, I start with a different assumption: they are always part of a local political process.
Second, I want to understand whether the rights of nature are always, definitionally as it were, friendly to nature itself. This might seem counterintuitive, but if you think about it, rights are not always empowering to those that have them, especially if the subjects of rights cannot (for a multitude of reasons) claim them in their own name and in full equality. The human rights of stateless people or refugees are supposedly the same as those of a citizen, but in practice this is never the case. Can something similar happen for nature?
Last but not least, I wanted to challenge another assumption widely present in rights of nature coverage: that they are inherently friendly to indigenous people. Just like with friendliness towards nature, the idea that giving rights to nature approximates indigenous philosophies seems highly suspect, on several counts. The concept of rights is of undeniable Western origin, and assuming that indigenous people somehow have always recognized the rights of nature without putting it in that language is condescending in two different ways: it assumes an inherent closeness of indigenous people to nature (‘they have always lived in harmony’ narrative), and assimilates the multiplicity of indigenous ways of life to the homogenous concept of rights, which becomes a ‘good enough approximation’.
In my paper, I look closely at these three different, yet obviously interrelated, issues. I analyse two different cases of rights for nature: the Ecuadorian constitution, and the grant of legal personality to Te Urewera (a vast mountainous landscape), in Aotearoa New Zealand. By comparing these two, I am able to show that they have radically different genealogies (and therefore do not spring from the same ‘movement’), that environmental results are not necessarily the main point of the law, and that the involvement of indigenous people is a much more complex story than might be first apparent. Let’s take these in turn.
The provisions in the Ecuadorian constitution have been heavily influenced by a group of international activists and lawyers, working in partnership with Ecuadorian groups as well. Their work is very well exemplified through CELDF, an organization pushing for municipal ordinances in the US that grant rights to municipal environments. They were behind the very first case in the world, in Pennsylvania. In this sense, the Ecuadorian constitution is part of an international network that promotes the rights of nature as sound environmental policy, but this does not mean that it is part of a mass movement, which is usually associated with mass mobilization in pursuit of a common cause. In other words, many communities are indeed mobilised in pursuit of different socio-ecological relations, and an increasingly effective policy network is trying to get as many of them as possible to adopt the rights of nature framework.
However, this framework, I argue, is not inherently friendly to nature. Neither is it a coherent framework as such. Instead, by comparing different cases we realize that there are many different ways of granting ‘rights to nature’, and the one promoted by CELDF and others they inspire are but one of the many possible ways. The Aotearoa New Zealand cases, for example, (comprising, to date, the grant of legal personality to Te Urewera, and to Whanganui river) have developed mostly independently from this international policy network. Specifically, they have developed in the particular context of Māori – Crown relations in that nation. And they have therefore ended up looking very different from the Ecuadorian constitution.
In the case of Te Urewera, which I examine at length in the paper, the grant of legal personality is a way of settling long standing disputes between Tūhoe (the historic inhabitants of Te Urewera) and the New Zealand government. In other words, it is part and parcel of a colonial system and its repercussions today. In particular, Tūhoe have always claimed that their authority over their own land has never been lawfully estranged, while the government has pretended to stop estranging it while doing the opposite. Finally, an agreement was reached that managed to side-step the issue of authority over (or, to put it more bluntly, ownership of) Te Urewera in favour of neither parties, by creating a legal entity that owns itself.
In environmental terms, Te Urewera was a national park before becoming its own legal entity. National parks are themselves part of colonial heritage, an invention unthinkable outside of a history of relegating native people to the most unproductive lands and enclosing the rest for integration within a globalised economy. Parks have also routinely romanticised the people enclosed in reservations as condemned to harmony, though it is much more accurate to say that they were condemned to marginality by the very construct of the park. The status of Te Urewera as national park has ended with the grant of legal entity, and so has that particular history that sought to obtain ‘environmental results’ through enclosure. That is very welcome. But the grant of legal entity is not itself concerned with ‘the environment’ as constructed in colonial imagination, but rather with not-quite vesting authority over the land in Tūhoe. Whatever ends up happening with the legal entity, ecologically speaking, is up to the Board that has assumed its governance.
That Board has a Tūhoe majority, and the first management plan drafted by them is a beautiful philosophical treatise of social ecology. The Board does not seem keen to pursue environmental goals for their own sake, but rather seeks to recreate relationships of reciprocity between people and lands. The extent to which that will be possible remains to be seen, as there is nothing about the mechanism of legal personality itself that guarantees the prominence of particular kinds of relations. In fact, one of the closest conceptual relatives of the legal personality of Te Urewera is the legal personality of a corporation. And the fact that Tūhoe have now implicitly recognized the legitimacy and power of the state by reaching this agreement will surely have interesting implications down the road. Lastly, the strictly legal terms under which Te Urewera is governed are all terms that the state can live with, precisely because it does not fundamentally challenge its power.
Meanwhile, the Ecuadorian constitution has had several different tests in courts throughout the country. And the results are a mixed bag, as one might have expected from the beginning. Though indigenous nationalities in that country supported the rights of nature, they did so for strategic reasons. The reality of implementation is that the state has often used the rights of nature to clear the way for industrial projects, helping neither local populations, nor the natural environment. For example, it has used them to evict small-scale miners from lands that it then planned to develop into large-scale mining. Though this might strike some as against the spirit of the law, it is surely not against its letter. And this is why it becomes imperative to question the unexamined assumptions behind different ways of using the concept of rights for nature.
It is probably a good thing that certain legal concepts that have not traditionally been applied to natural entities are now liberated from those constraints. However, the devil is in the details. How laws are written and for what purpose becomes essential knowledge for understanding what they are likely to achieve. Going forward, it is good to have legal personality and rights in the toolbox, but they are certainly not universal tools to be indiscriminately applied. The rights of nature are not inherently friendly to nature, nor to local populations. They are articulated differently in different places, and losing sight of that by promoting a blanket approach can be dangerous. Instead, I suggest we remain vigilant of unintended consequences, and realize that the rights of nature are always involved in local political struggles. In the end, one should be able to renounces one’s pet idea in favor of pragmatically advancing a socio-ecological agenda.