By Peter Burdon
Giving nature legal rights in a similar way as humans do may sound far fetched, but there are places around the world where this is becoming reality.
IN 1972, PROFESSOR Christopher Stone from the University of Southern California was approaching the final minutes of an introductory lecture on property law. He was noting that like human culture, property law is an evolving social construct. Human beings were once considered property: assault or even the intentional killing of a slave was considered a matter for property law, not a matter for human rights.
Stone was awakened from his historical narrative by the shuffling and voices of his students who had begun to “pack away their enthusiasm for the next venture”. In an effort to maintain their attention, he wondered aloud: “So, what would a radically different law-driven consciousness look like? … One in which Nature had rights … Yes, rivers, lakes … trees … animals.”
These comments and their subsequent defence in Stone’s classic article ‘Should Trees Have Standing?’ were greeted with both curiosity and resistance. Indeed, while US law had at that time shifted to recognise racial and gender equality, it was not yet ready to consider seriously an extension of rights to nature.
Stone anticipated this resistance, noting “throughout legal history, each successive extension of rights to some new entity has been, thereto, a bit unthinkable … each time there is a movement to confer rights onto some new ‘entity’, the proposal is bound to sound odd or frightening or laughable”.
This is because until the entity in question is recognised as having rights, “we cannot see it as anything but a thing for the use of ‘us’—those who are holding rights at the time”. This is true for nature, as it was for slaves, women and children at different points in history.
Three decades later, lawmakers and communities are beginning to take Stone’s thesis seriously as a novel and potentially powerful means to protect the environment.
For example, in the United States over 20 communities have drafted and adopted municipal ordinances to help protect local ecosystems from industries such as coal mining, water bottling and gas drilling (fracking).
In 2008 the township of Barnstead New Hampshire adopted an ordinance that reads: “Natural communities and ecosystems possess inalienable and fundamental rights to exist and flourish within the Town of Barnstead. Ecosystems shall include, but not be limited to, wetlands, streams, rivers, aquifers, and other water systems.”
These developments were mirrored at the level of constitutional law in the Republic of Ecuador when in 2007 Ecuador began the process of drafting a new constitution.
Like many other third world countries, Ecuador has experienced its share of environmental disasters. In 1995, Texaco (a subsidiary of Chevron) dumped nearly 60 million litres of oil and 75 billion gallons of waste into 7,000 hectares of pristine forest. In addition to the environmental impacts, local indigenous groups have claimed that the dumping has resulted in higher rates of cancer and miscarriages.
In September 2008, an overwhelming majority of citizens approved the new constitution and Ecuador became the first country in the world to codify the rights of nature in their constitution. This year a court in Ecuador fined Chevron US$8.6bn for the dumping.
Following Ecuador, the president of the Bolivian Senate’s Commission on Land, Territory, Natural Resources and Environment, Julio Salazar, introduced on April 20 this year a Law of Mother Earth, which would officially enshrine the ‘rights of nature’ in Bolivian law.
Commenting on the bill, Salazar noted: “We are going to seek an equilibrium between man and nature, because under previous law natural resources were anticipated to be commercialised, and now with the new laws we are converting what nature offers into a common good for the benefit of all living beings.”
An unofficial transcript of the Bolivian law recognises the following rights: to life, diversity, water, clean air, balance, restoration and to live free from pollution. These rights are consistent with a Declaration for the Rights of Nature, which is also being promoted at the United Nations by Bolivia.
The legal recognition of nature’s rights is a novel but potentially important step toward an ecologically sustainable human presence on Earth.
When the legal standing of the entity shifts, so too does our understanding of it. Throughout history, we have seen a continual evolution in the types of things that can be owned, who was considered capable of ownership and the meaning of ownership itself. Stone commented to his students “it was easy to see how each change [in the recognition of rights] shifted the locus and quality of power … each advance in the law-legitimated concept of ‘ownership’, fuelling a change in consciousness, in the range and depth of feelings”.
Or, as Stone asked his class “How would such a posture in law affect a community’s view of itself?”
In a country like Australia, which does not recognise a Bill of Rights for human beings, we are a long way off achieving such recognition for nature. But if nature is recognised as a bedrock value and limit on human activity, then it could create opportunity for a mutually enhancing human-Earth relationship.
Of course, achieving the delicate balance between human use and access to nature and its rights would be key. However, to translate existing rights of nature law in a way that protects the environment would certainly be a decisive step for an Australian government.
Peter Burdon is a lecturer in law at the University of Adelaide.