Does nature have rights?

This article was originally published in Cosmos Magazine 3 June 2021.

In April this year, the Blue Mountains City Council, west of Sydney, became the first council in Australia to enshrine “rights of nature” as a core principle.

In practice, this means that all future planning in the region will have to consider the right to existence of all the natural entities – from endemic species of plants and animals to features like waterways – across its 140,000 hectares, 74% of which is national park land.

It’s a win for the rights of nature movement, which has been gaining pace over the past decade. The movement advocates for natural objects to be afforded “legal personhood”, a concept that upholds an entity’s right to exist and thrive independently of human development.

Lawyer Michelle Maloney is convenor of the Australian Earth Laws Alliance, an organisation that consulted with the council to create their new framework.

“Rights of nature can be seen as a legal movement, where people are trying to use Western law to push back at Western law, by changing the legal status of nature,” Maloney says.

“But rights of nature is more than just the legal aspect as well. It’s a social movement of people arguing that the living world deserves its own rights to exist.”

The history of the ‘rights of nature’ movement

In the Western legal system, the rights of nature movement can trace its roots to a 1972 paper by legal scholar Christopher Stone, “Should trees have standing? – toward legal rights for natural objects”. However it’s only in the past decade or so that rights of nature have become enshrined in laws around the globe.

In 2007, Ecuador became the first country to recognise rights of nature in its constitution: then, in 2011, the Latin American country saw the first case in which these constitutionally enshrined rights were enforced, with the protection of the Vilcabamba River.

In 2017, Aotearoa New Zealand became the first Western Government to enshrine rights of nature in a legal setting, officially recognising the Whanganui River in the  North Island (Te Ika-a-Māui) as a legal “person”, and appointing an Indigenous council to represent the river’s interests.

The move recognised the economic and spiritual interdependence of the Maori iwi (peoples) of Whanganui and the river, and aimed to reverse more than a century of damage caused by resource extraction and transport.

What’s a river without its water? Problems with the framework

Rights of nature, then, is a powerful idea at a time when around 1 million animal and plant species are threatened with extinction, and less than 14% of the world’s rivers are untouched by anthropogenic pollution.

But Erin O’Donnell, a specialist in water law and policy at the University of Melbourne, warns these laws are not always capable of properly protecting the ecosystems they govern. For example, O’Donnell says many rivers recognised as legal persons don’t actually retain the rights to their own water.

“Although they have this new, enhanced status in the eyes of the law, they are not receiving rights to water, so the rivers that are being recognised as persons do not have the rights to the water flowing between their banks,” she says. “We’re not translating this idea of rights of nature strongly enough into our water law and governance frameworks.

“Rights of nature may not be the right tool to solve some of the urgent problems, but what it can do really profoundly is begin to transform that relationship between people and rivers.”

O’Donnell also points out that rights of nature are pioneered by – and depend upon – the leadership of Indigenous people globally, who are often left out of the conversation.

Anne Poelina is a Nyikina Warrwa Indigenous academic and researcher from the Kimberley region of Western Australia. She is a community leader who has been working to protect the local Martuwarra (Fitzroy) river from further encroachment by government and industry.

According to a 2020 historical report Poelina co-authored, early settler accounts describe the Martuwarra as a land of plenty before white settlement, with an abundance of resources and a thriving Indigenous population.

“In 150 years, we’ve gone from abundance to abject poverty, disadvantage, and despair,” she says, a situation she links to the degradation of the river and the government’s failure to recognise the traditional custodians’ rights to govern it.

Poelina says that rights of nature as a legal concept cannot exist without Indigenous ownership and management.

“We continue to be the guardians of nature from the beginning of time, and it’s because of our stewardship that we have caused the last remnants of biodiversity sitting within our traditional lands and waters,” she says.

“So, I’ve made it clear to a lot of people that want to introduce new bills into parliament that you will have no support from Indigenous people without including our voice in the process.

“It’s not conflictual, it’s complementary: we add value to the framework for Earth jurisprudence.”