Climate change is no doubt a dark cloud looming over the heads of humankind, threatening the existence of the world as we know it. UN Secretary-General, Antonio Guterres, has called the crisis a “code red for humanity”.[1] This rapid change makes it necessary to rethink the disposition we have attributed to nature. We must no longer assume that nature is a resource to be exploited at will by humans. Rather, we must begin to question whether nature has its own legal and moral rights. This article, therefore, aims to discuss the possibility of natural ecosystems bearing rights as legal entities. It will also address the need to reconsider the classification of nature as property within the legal system and the benefits that such a change may accrue considering the looming threat of climate change.
Does nature have its own legal rights, or is it just property?
To begin, we must address a key question. Does nature itself have legal rights, which allow it to be protected, or is it merely property owned by individuals and States who then have the right to protect the natural ecosystems within their territory? In her book Wildlife as Property Owners, Karen Bradshaw poses two important theoretical questions: should nature be protected because it sustains humanity, or because it has an intrinsic right to exist free of harm, regardless of how it gives value to humans.[2] In the legal system of most countries, nature is considered property.[3] Thus, according to property law rules, any “owner” of a natural ecosystem has both the right to protect it, and do with it what they wish, even if that means demolishing or destroying it.[4] It is only by happenstance that humans have the sentience to create property laws to protect their territories. But what about animals who have ancestral links to the Earth and its ecosystems? Bradshaw raises this point in her book. Wildlife has connections to the land, and they use and mark their territories.[5] She states that “[d]eer do not hire lawyers”, but if they could, they would claim to own their territories under the law of property.[6]
This article would suggest that instead of considering the rights of property owners, we must look deeper instead at the Rights of Nature. We must recognise that ecosystems and natural communities are not merely property that can be owned. Instead, they are independent entities with the inalienable right to exist and flourish.
Rights of Nature Doctrine
The Rights of Nature doctrine holds that nature and its component parts are not “things” or property but living beings with intrinsic value and an inherent right to exist.[7] Indigenous communities have reinforced this concept for centuries. Yet, the idea that nature should have legal rights gained contemporary popularity when an article titled “Should Trees Have Standing” by Christopher D Stone was published in the Southern California Law Review.[8] In his article, Stone discusses the conceptualisation of legal rights for nature by comparing it to the development of legal rights for women and marginalised racial and religious groups, who were denied proper legal standing due to their position as “inferior beings”.[9] He uses this analogy to raise the point that the law is open to a world of inanimate rights holders, such as trusts, ventures and corporations.[10] Stone’s theory suggests that throughout history, nature has remained “right-less”,[11] and the inclusion of the Rights of Nature, therefore, requires a shift in consciousness away from a legal system that treats nature as property for human use and can be compared to the shift in consciousness away from treating women and enslaved people as property.[12]
Stone suggests that each time there is a movement to confer rights on a new entity, the idea appears laughable.[13]However, considering that the law should be flexible enough to cover pressing matters in society, the concept, though seems ridiculous, is not impossible. Recent examples of the Rights of Nature in practice include Pablo Escobar’s “cocaine hippos”, which became the first example of animals authorised by the courts to exercise legal rights in their own name. The court decided that the plaintiffs (hippos), illegally imported by the infamous drug lord and left to flourish after his death, would not be culled because animals have the right to be free from cruelty and exploitation. Granting them legal personhood would allow them to enforce the rights already granted to them under the law. The case of Happy the Elephant is another example of an animal being granted personhood. The court will hear arguments in favour of Happy’s release in 2022 on the basis that the elephant is a “person” in the eyes of the law, just like corporations may be seen as people.[14]
Stone’s theory, however, is not without flaws. He argues that since society has morally progressed to granting rights to marginalised communities, the possibility that legal rights be granted to nature should not be ruled out. This raises the question of whether humans can be equated to plant life and non-sentient beings. It can be argued that a lack of sentience and consciousness is what separates the classification of human and wildlife rights, and therefore cannot justifiably qualify for the same conclusion. P.S Elder states that this lack of consciousness makes it impossible to believe plants or non-living natural objects can “want” to survive or remain undisturbed, as “[t]here is nobody home who could care, or who could suffer”.[15] However, irrespective of the flaws in Stone’s theory, there are practical examples, as mentioned above, of the implementation of his theory.
Existing Implementation: What do Nature’s Rights look like?
The Rights of Nature doctrine has gained global traction as governments around the world seek to protect the ecosystem by recognising nature’s rights.
International Measures
In 2008, Ecuador became the first country to recognise the Rights of Nature in its Constitution.[16] Referred to as the Rights of Pachamama (Earth), the Constitution specifies that life is reproduced and created in nature and nature is, therefore, entitled to respect for its existence and the maintenance of its life cycles, structure, functions, and evolutionary processes.[17] The first judgement under these rights concerned the Vilcabamba River and was handed out in 2011. The Provincial Justice Court of Loja ruled against a construction company for building a road to dump rubble into the river, awarding a decision in favour of the River.[18] In 2017, the Whanganui River in New Zealand sought and won the right to be protected under the Te Awa Tupa Act.[19] Also, in 2017, the Ganges and Yamuna Rivers were granted “legal minor” status by the Uttarakhand High Court, and guardianship responsibilities were conferred on the Uttarakhand government.[20] Furthermore, the first International Summit and Global Tribunal on the Rights of Nature comprising of economists, lawyers, scientists, indigenous leaders, and community activists was held in 2014 to posit a new legal system that recognises the right of nature in all its forms to exist, persist, evolve and regenerate.[21]
Indigenous Communities
Indigenous communities have close spiritual bonds with the Earth and have been outspoken in their efforts to defend nature, as evidenced by the Standing Rock protests in 2016.[22] Due to their deep-rooted Earth-based culture, they have become prime examples of how to manage and protect natural resources. The indigenous people of Ashanti communities in Ghana, for example, have been able to conserve their forests for generations,[23] using strict customs, governing rituals, and sacrifices, which help protect forest biodiversity and prevent the overexploitation of resources. Efforts are now being made to include indigenous beliefs in environmental law as indigenous people are the most likely to be directly affected by ecological collapse. Tom Goldtooth, Executive Director of the Indigenous Environmental Network, states that “we cannot have the recognition of our rights as indigenous people if we do not recognise the Rights of Nature.”[24] Indigenous communities and their beliefs have contributed to several successes in protecting the environment. The Maori Tūhoe people of New Zealand contributed to the creation of the Te Urewera Act 2014,[25]which granted Te Urewera National Park “all the rights, powers, duties, and liabilities of a legal person.” It also appointed the National Park its own guardians, resulting in the government giving up ownership of the park. Similarly, in 2018 the Ponca Nation in Oklahoma became the first tribe in the US to pass a resolution acknowledging the Rights of Nature. They chose to take arbitrators to their own private courts rather than a state court, allowing them to deal more effectively with the rights of the land.[26]
Company law and the Environment as a Stakeholder
Stone suggests that Corporations cannot speak, nor can States, estates, infants, or incompetents. Lawyers speak for them, and one must deal with nature’s rights as they do the rights of a senile person.[27] In 1972, the case of Sierra Club v Morton matched Stone’s theory, where Supreme Court Justice William Douglas argued that if corporations were able to attain legal personhood, so should “valleys, alpine meadows, rivers… groves of trees, swampland, or even air”.[28]Although valid in his own right, this strand of his argument does contain a minor fallacy. If the law were to appoint a guardian to an ecosystem to represent it, how would the guardian know what to argue on their behalf? This goes back to the earlier question of whether a tree or river has the sentience to know or care whether they are being damaged.[29]
This theoretical debate, however, is not the only area where Rights of Nature and Company law intertwine. There has been debate as to whether the environment can be held to be a stakeholder of a corporation, and whether corporations owe the environment a duty of care.
To discuss this, we must look at stakeholder theory, a concept of capitalism that gives importance to a corporation’s interconnected relationships and all those who have a stake in the company. Mark Starik, an advocate for nature as a stakeholder, insists that the environment has not been widely accepted as a stakeholder not only because stakeholder status has been exclusive to humans, but also because the stakeholder concept is an exclusively political-economic one, and nature lacks the political-economic voice to be heard by the company.[30] He argues that the environment does, in fact, have economic and political importance. Even if it did not, like Stone, he highlights that marginalised communities were not given political significance in the past, but this does not necessarily rule them out as stakeholders.[31] The theoretical debate surrounding the technicalities of whether the environment can be a stakeholder is long and tedious. But recent global activity shows that to preserve the climate and avoid ecological destruction, it has generally been agreed that corporations do, in fact, owe the environment a duty of care.
The UK has made significant progress in including climate considerations in business activities. Section 172 of the Companies Act 2006 places an express duty upon directors when acting in good faith, to have regard for ‘the impact of the company’s operations on the community and environment’ and any long-term consequences that may stem from the actions of the company.[32] Section 174 of the Act also confers the responsibility on directors to exercise due diligence.[33] It has made Task Forces on Climate Related Financial Disclosures (TFCDs) mandatory across UK economies which create transparency by sharing information on how a corporation contributes to sustainability and mitigates climate change-related risks. Furthermore, the Climate Change Act 2008 mandates that companies operate within a net-zero emission goal.[34] Supreme Court Justice, Lord Sales, has also stated that directors must consider climate change in their decision making.[35] This means implementing environmental care and ecological sustainability into their fiduciary duties and due diligence responsibilities. The most effective tools to monitor and review the integration of environmental care into business practice are Corporate Social Responsibility (CSR) and Environment, Social, Governance (ESG). The two are intertwined, as CSR confers the duty of accountability upon businesses, while ESG provides the quantitative criteria to measure their performance.
How Can Recognising Natures Rights Slow the Climate Crisis?
Recognising the Rights of Nature could deal with large-scale threats to the environment at the root level. Experts like Bradshaw believe that acknowledging the Rights of Nature is the key to solving the current biodiversity crisis,[36]which is closely linked to the growing threat of climate change. UNEP states that nature-based solutions used to restore biodiversity, such as conservation, management and restoration of ecosystems, are the most cost-effective approaches to mitigating and adapting to climate change.[37] The Rights of Nature doctrine grants ecosystems the right to be protected from harm that would otherwise be permitted under the law, such as pollution, mining, and factory farming. Laws recognising the Doctrine would codify the concept of sustainable development by rejecting activities that would disrupt the functioning of natural systems that sustain life. This would result in the rejection of government-mandated environmental destruction, which would otherwise cause a butterfly effect of damage. For example, the deforestation that accompanies the creation of farmlands disrupts local wildlife and creates the risk that the carbon stored by trees in exchange for oxygen may be released back into the atmosphere. Although not harmful on a small-scale level, incidents add up over time and can lead to a massive carbon footprint.
The Rights of Nature doctrine is also closely tied with climate change litigation. In Future Generations v. Ministry of the Environment and Others, the Supreme Court of Columbia recognised that “fundamental rights of life, health, the minimum subsistence, freedom, and human dignity are substantially linked and determined by the environment and the ecosystem,” and held that the Colombia Amazon was entitled to protection, conservation, maintenance, and restoration, and ordered a halt to its deforestation. In Pakistan, the case of D. G. Khan Cement Company v. The Government of Punjab emphasised the need for the government to uphold the precautionary principle of protecting the rights to life, sustainability, and dignity of communities surrounding the project areas. In addition, the Supreme court recognised the Rights of Nature by stating “the environment needs to be protected in its own right” and that “man and his environment each need to compromise for the better of both and this peaceful co-existence requires that the law treats environmental objects as holders of legal rights.”
Conclusion
“Sustainable development” has been a hot topic for decades, but very little has been done to incorporate protective measures into the law. The recognition of the Rights of Nature doctrine can result in the much-needed codification of legal rights for nature and protect it from sanctioned harm. In the context of the climate change crisis, the Right of Nature doctrine is one theory that emphasises the urgency of preserving the environment to avoid ecological disaster, and, if implemented correctly, may be the solution humanity is seeking to the climate change crisis. A growing number of lawsuits involving the rights of nature could set a precedent for governments to act on issues of sustainability and environmental protection by opposing projects that may prove destructive to a particular ecosystem. The Rights of Nature are slowly being recognised internationally as they have been for generations by indigenous communities.
References
[1] ‘Climate Crisis Is a Code Red for Humanity: UN Chief’ (News.cn, 2022) <http://www.news.cn/english/2021-10/27/c_1310271147.htm#:~:text=26%20(Xinhua)%20%2D%2D%20UN%20Secretary,that%20brings%20us%20together%20today.> accessed 10 March 2022.
[2] Karen Bradshaw, Wildlife as Property Owners: A New Conception of Animal Rights (2020).
[3] “Rights of Nature FAQ” <https://www.ijc.org/system/files/commentfiles/2019-10-Nicolette%20Slagle/FAQ.pdf> accessed February 18, 2022.
[4] Ibid n.2
[5] Jill Lepore, ‘The Elephant Who Could Be a Person’ (The Atlantic, 2022) <https://www.theatlantic.com/ideas/archive/2021/11/happy-elephant-bronx-zoo-nhrp-lawsuit/620672/> accessed 26 February 2022.
[6] Ibid. n1
[7] Katie Surma, ‘Does Nature Have Rights? A Burgeoning Legal Movement Says Rivers, Forests and Wildlife Have Standing, Too – InsideClimate News’ (InsideClimate News, 2021) <https://insideclimatenews.org/news/19092021/rights-of-nature-legal-movement/> accessed 25 February 2022.
[8] Christopher D. Stone, ‘Should Trees Have Standing? Toward Legal Rights for Natural Objects’ (1974) Christopher D. Stone, ‘Should Trees Have Standing? Toward Legal Rights for Natural Objects’ (1974) 26 Stanford Law Review. 26 Stanford Law Review.
[9] Ibid n.5
[10] Ibid n.5
[11] Ibid n.2
[12] Dina Buck, ‘First International Summit and Global Tribunal Held on Rights of Nature’ (News.pachamama.org, 2022) <https://news.pachamama.org//first-international-summit-and-global-tribunal-held-on-rights-of-nature> accessed 1 March 2022.
[13] Ibid n.5
[14] Ibid n.4
[15] P.S Elder, ‘Legal Rights for Nature: The Wrong Answer to The Right(S) Question’ (1984) 22 Osgoode Hall Law Journal.
[16] Ibid n.2
[17] ‘The Rights of Nature — Can an Ecosystem Bear Legal Rights?’ (State of the Planet, 2022) <https://news.climate.columbia.edu/2021/04/22/rights-of-nature-lawsuits/#:~:text=According%20to%20the%20%E2%80%9CRights%20of,or%20even%20by%20climate%20change.> accessed 27 February 2022.
[18] Ibid n.15
[19] Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 2021.
[20] Erin L O’Donnell, ‘At the Intersection of The Sacred and The Legal: Rights for Nature in Uttarakhand, India’ (2017) 30 Journal of Environmental Law.
[21] Dina Buck, ‘First International Summit and Global Tribunal Held on Rights of Nature’ (News.pachamama.org, 2022) <https://news.pachamama.org//first-international-summit-and-global-tribunal-held-on-rights-of-nature> accessed 27 February 2022.
[22] ‘Stand With Standing Rock’ (American Civil Liberties Union, 2022) <https://www.aclu.org/issues/free-speech/rights-protesters/stand-standing-rock> accessed 28 February 2022.
[23] Lebbie, A.; Guries, R.P. The Role of Sacred Groves in Biodiversity in Sierra Leone; Ohio University Press 2008
[24] Darlene Lee and Darlene Lee, ‘Protect the Environment/Right of Nature’ (Earth Law Center | The Solution to Toughest Environmental Challenges, 2022)
[25] Te Urewera Act 2014.
[27] Ibid n.5
[28] ‘Douglas Dissent’ (Legalhistorysources.com, 2022) <http://legalhistorysources.com/Law508/DouglasDissent.htm> accessed 26 February 2022.
[29] Ibid n.13
[30] Mark Starik, ‘Should Trees Have Managerial Standing? Toward Stakeholder Status for Non-Human Nature’ (1995) 14 Journal of Business Ethics.
[31] Ibid n.29
[32] The Companies Act 2006.
[33] Ibid n.31
[34] Climate Change Act 2008.
[35] Lord Sales Justice Supreme Court UK (2019).
[36] <https://www.inverse.com/science/does-nature-have-legal-rights> accessed 1 March 2022.
[37] ‘Tackling Climate Change and Biodiversity Loss Together – UNEP-WCMC’ (UNEP-WCMC’s official website – Tackling Climate Change and Biodiversity Loss Together, 2020) <https://www.unep-wcmc.org/news/tackling-climate-change-and-biodiversity-loss-together> accessed 1 March 2022.
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