Legal Rights for Nature

By Madronna Holden

10/6/2012 update:

New Zealand grants river rights of personhood at the instigation of an indigenous people

“In a landmark case for the Rights of Nature, officials in New Zealand recently granted the Whanganui, the nation’s third-longest river, legal personhood. The decision follows a long court battle for the river’s personhood initiated by the Whanganui River iwi, an indigenous community with strong cultural ties to the waterway.”
-Stephen Messenger

“Today’s agreement which recognises the status of the river as Te Awa Tupua (an integrated, living whole) and the inextricable relationship of iwi with the river is a major step towards the resolution of the historical grievances of Whanganui iwi and is important nationally.
Christopher Finlayson, quoted in “Agreement Entitles River to Legal Identity” by Kate Shuttleworth, in the New Zealand Herald.

1.27.2011 update:

Plants as Persons

The groundbreaking Plants as Persons, by botanist Matthew Hall, recently put out by SUNY press, explores the philosophical perception of plants, beginning with the ancient Greeks.  His conclusion: plants deserve moral standing for a number of solid scientific reasons, in spite of the fact that they have often been excluded from such consideration by Western dualisms that shape human-nature interactions in a way that excludes plants from community with us.

UPDATE : (4.22.10)

The World People’s Conference on Climate Change in Bolivia has passed a people’s agreement as a proposed part of the “Universal Declaration of  the Rights of Mother Earth” which include:

  • The right to live and to exist;
  • The right to be respected;
  • The right to regenerate its bio-capacity and to continue it’s vital cycles and processes free of human alteration;
  • The right to maintain their identity and integrity as differentiated beings, self-regulated and interrelated;
  • The right to water as the source of life;
  • The right to clean air;
  • The right to comprehensive health;
  • The right to be free of contamination and pollution, free of toxic and radioactive waste;
  • The right to be free of alterations or modifications of it’s genetic structure in a manner that threatens it’s integrity or vital and healthy functioning;
  • The right to prompt and full restoration for violations to the rights acknowledged in this Declaration caused by human activities.

(Thanks to Andy Sinats at the British Columbia Environmental Network for passing this news along to us. See the link above f0r more info on the peoples’ declaration).


Discussion:

“We talk about the state sovereignty and the tribal sovereignty, but those ant communities under the big fir trees are sovereign too.. some nights you can’t see the stars at all [because of city lights]. That’s wrong.  Those stars are sovereign. They have a right to be seen”.

Billy Frank, Jr., in Messages from Frank’s Landing


In order to respect the sovereignty of the natural world as expressed in this quote, we must treat “earth others” (as ecofeminist Val Plumwood has termed them) as agents. We must honor them as having a purpose and place in the natural order–a life of their own with all the rights attached to this. The partnership worldview expressed by Billy Frank’s Nisqually people sees all members of the natural community, human and more-than-human, as agents acting in reciprocal mutuality with one another. This is the perennial view of our human ancestors in indigenous societies.

Such peoples characteristically recognize the rights of self-determination of all natural life. As agents,  that is, “earth others” have the rights of subjects–and cannot be ethically treated as mere objects for human use.

In the modern industrial context which divides the world into active subjects and passive objects in hierarchical fashion, it is rare that even all humans are treated as agents.  To do so would make considerable inroads against racism, sexism, and classicism.

And  “deontological” (duty-based as opposed to risk-benefit based) standards of business ethics stress that others should never be treated as mere objects to be used for gaining profit. This idea is related to the current move to allocate legal responsibility of businesses to “stakeholders” (all those effected by their actions) as opposed merely to stockholders” (those who might profit from an action).

Legal suits redressing “chemical trespass” and upholding the “precautionary principle” (which prohibits harm to others both now and in the future and adds community decision-making into its process), are based on the premise that we have an obligation to respect all those whom our actions effect as subjects in their own right.

The Alliance for Democracy tracks such suits on its website. It alsogoes further, arguing that the extension of the rights of agency not only to all humans but to all natural life is an essential way of protecting the commons upon which earthly life depends.

Legal scholar Christopher Stone’s work is seminal in arguing for the rights of nature. Stone soundly critiques the agency legally allotted to that artificial human creation, the corporation, while asserting the agency of both of human and more-than-human life.  William O. Douglas’ dissenting Supreme Court decision asserting the rights of trees used Stone’s ideas.

Environmental philosopher Thomas Berry also emphasized the rights of natural life. Here is a summary of Berry’s stance on this point:

Berry stated that all earth others, including not only plants and animals but natural landscape features such as rivers, have three essential rights: the right to existence, the right to habitat, and the right to “fulfill their role in the ever-renewing processes of the Earth community”.   Human rights do not cancel out the rights of earth others to exist in their natural state. Indeed, human rights are limited in a community which recognizes the rights of all life.

Whereas Berry saw the rights of nature as enduring, he also noted that they are  limited to the unique identity of those involved:  rights of a river or a tree are specific to themselves.  It would mean little to a river, for instance, to have the rights of a tree—or a human or an insect. Thus these rights are not in competition with each other, but an expression of the interdependent cycle of life in which each plays a role. In this context humans also have a right to wonder, beauty and intimacy that only our connection with a vital earthly community can fulfill.

Recognizing agency in  “earth others” is also emphasized by Val Plumwood. She sees objectifying others and objectifying the natural world as resulting in multiple devastations–and a way to counter this  is  treating all earth others as subjects rather than objects.

After  Christopher Stone’s rush to get his article, “Should Trees Have Standing?” published in a law journal in 1972– so that it could weigh in on a Sierra Club suit, a flurry of suits were quickly filed in behalf of other natural “others” –including a polluted river, a marsh, a brook, a beach, a national monument, a town commons and an endangered Hawaiian bird.

Arguments against Stone’s theory on the legal standing of trees express the contemporary industrial worldview.  One writer railed against Stone’s idea on the basis of the fact that giving rights to nature would bring down the capitalist system of ownership–since it implied those who share the earth with us are not owned by humans but own themselves.

A persistent legal argument against those who filed suits on behalf of certain “earth others” was that those who brought such suits had no compelling self-interest in these cases.  In our modern system legal suits are supposed to express such self-interest.  This is in decided contrast to Takelma Siletz elder Agnes Baker’s emphasis on becoming a “voice for the voiceless”.

As a recent Boston Globe article notes,  the idea that humans must prove harm in order to bring suit on behalf of more than human life  leads to some convoluted legal argument.  In  bringing suit against the bludgeoning of baby seals for their fur, animal welfare advocates  first argued that this action harmed them by robbing them of their rights to view the seals in the wild.

Christopher’s Stone response: ” “Oh, for Pete’s sake, just sue in the name of the seals.”

Stone also points out that under our current legal arrangement, when suits  behalf of nature prove successful, it is human persons who are compensated,  rather than nature that is restored.

Meanwhile, the recognition of more than human agency has been put into law with striking success in the Pacific Northwest.  To remedy the devastation of the salmon runs resulting from dams on the Columbia River, the Pacific Northwest Power and Conservation Act of 1980 specifically designated migrating fish such as salmon as “co-equal partners” with human interests of energy production on the Columbia River. Not incidentally, this perspective came partially from the understanding of the billions of dollars lost in the careless devastation of the fish harvest to gain “cheap” electricity. The council that resulted from this law continues to be a powerful and progressive force in the Pacific Northwest today.

In another legal precedent, the Swiss Constitution guarantees three distinct rights to all natural lives (including those of plants):  the right to species protection, the protection of biodiversity, and the right for their natural “dignity” to be considered in their treatment by humans.

Since this provision was put into the Swiss Constitution three years ago, a few researchers have complained that it stymies their research projects, but others have argued that if research projects destroy biodiversity or species outright, they should not be carried out.

What the “dignity of natural creatures” means in the modern context is more complex.

The question as to whether genetic engineering violates this law resulted in a complex legal document which concluded that gmo research would only be legal  in Switzerland under two conditions. Firstly, it must not damage existing biodiversity. This is a serious issue, for instance, in the contamination of non-gmo seed–since genes from this seed migrate in ways that are not understand, much less controlled, by gmo users.  This the reason for the current contamination of organic yellow corn by gmo seeds.

Until such contamination can be contained, gmo research is illegal in Switzerland.

The second condition for the legality of gmo research under Swiss dignity of natural life” laws is that no “terminator genes” may be used.  These are genes that cause a plant– or anything fertilized with it– not to be able to reproduce. The Swiss legal decision finds  patent-protecting insertion of this gene not only dangerous in the context of uncontrolled gene migration, but going against the natural cycles in which plants partake.

Switzerland is not the only European nation to move to protect the rights of more than human lives.  Almost two years ago,  the Spanish Parliament granted great apes the same rights as humans.

Such modern laws indicate a profound change in the Western worldview, in which humans formerly held unquestionable rights to treat other nature life as objects in whatever way they saw fit.   Such laws indicate a growing awareness that respecting other natural life is part not only to the better aspects of our humanity, but our survival within vital ecosystems.

Altogether, the indigenous idea of agency in the more-than-human world touches the modern world in a number of ways—perhaps most strikingly in the new Ecuadoran constitution, influenced by the Pachamama, an activist group started at the initiation of indigenous elders. Pachamama is an indigenous term for the (sacred) personhood of nature, and in the Ecuadorian constitution, Pachamama and her natural cycles are given comparable legal standing to humans.

Here are words from the Constitution of Ecuador, overwhelming passed by Ecuadorians in fall of 2008:

Rights for Nature (translated from the Spanish)

  1. Art. 1. Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.   Every person, people, community or nationality, will be able to demand the recognitions of rights for nature before the public bodies. The application and interpretation of these rights will follow the related principles established in the Constitution.
  2. Art. 2. Nature has the right to an integral restoration. This integral restoration is independent of the obligation on natural and juridical persons or the State to indemnify the people and the collectives that depend on the natural systems. In the cases of severe or permanent environmental impact, including the ones caused by the exploitation of non renewable natural resources, the State will establish the most efficient mechanisms for the restoration, and will adopt the adequate measures to eliminate or mitigate the harmful environmental consequences.
  3. Art. 3. The State will motivate natural and juridical persons as well as collectives to protect nature; it will promote respect towards all the elements that form an ecosystem.
  4. Art. 4. The State will apply precaution and restrictive measures in all the activities that can lead to the extinction of species, the destruction of the ecosystems or the permanent alteration of the natural cycles. The introduction of organisms and organic and inorganic material that can alter in a definitive way the national genetic patrimony is prohibited.
  5. Art. 5. The persons, people,communities and nationalities will have the right to benefit from the environment and from natural wealth that will allow well-being.  The environmental services cannot be appropriated;  their production, provision, use and exploitation, will be regulated by the State.

A revised edition of Stone’s “Should Trees Have Standing?” is due out from Oxford University Press in 2010 and currently some dozen US communities have ordinances giving legal standing to nature.  In February of this year (2009), the town of Shapleigh, Maine passed into law an ordinance stating that “Natural communities and ecosystems possess inalienable and fundamental rights to exist, flourish and naturally evolve within the Town of Shapleigh.”

A parallel move to give legal rights to natural systems  is underway in Europe, garnering  support for a UN Universal Declaration of Planetary Rights on  the model of the current Universal Declaration of Human Rights.

Though some critics of allocating legal rights to nature raise the issue of how we know what nature wants, it appears fairly clear the above seals would prefer not to be bludgeoned to death.

Berry’s philosophy addresses this issue by  stating that aspects of nature have a right to fulfill their historic natural role in their ecological communities.

And perhaps it wouldn’t be such a bad thing to spend some time and energy trying to figure out what nature really does want–as did religious leaders of peoples on the Middle Columbia  or the Klamath Rivers, for instance, who acted as ambassadors between human and more than human spheres–and controlled the salmon runs accordingly.

Following such leadership resulted in practices on the mid-Columbia River that sustained salmon runs at seven times the modern take.

We could do worse– for both nature and ourselves.


A number of other philosophers speaking out for the rights of nature are represented in the Alliance for Democracy’s “Tapestry of the Commons” site.