Personifying nature as a legal person: Chartering the off-the beaten path realm of environmentalism

Indeed, we are in the age of Anthropocene.

Humankind’s seeming insatiable greed made nature an object of appropriation, private enclosures, exploitation and disposition. Our ecological footprints led to the extent unimaginable that led to nature being degraded, ravaged, mutilated and mulcted.

If nature could only speak for himself, she would have had expressed her lamentable state of affairs. But how things should look like if nature could have rights the same as humans?

The primary leitmotif of this paper revolves on the rights of nature as an emerging concept in resource management. This essay is logically sequenced on the basis of the following intertwined issues: (i) Should nature be accorded with rights? Is it really necessary? Are current legal mechanisms already adequate to safeguard nature’s rights? (ii) If nature should be granted rights, how, when and which legal rights should be given? and (iii) What roadblocks could undermine implementation and enforcement of the rights of nature? How can these rights of nature be enforced? I will attempt to provide answers to these controversies by looking at existing literatures along this domain and relativize my own position and situatedness with the end-goal of enriching existing academic debate.

First Issue: To be or not to be? Is right of nature necessary?

This question is a highly debatable proposition. Stone (1947) maintained that just because nature lacks a voice does not preclude them from having legal rights. Allowing parties to represent nature's interests through guardianship and establish damage to a natural resource in the same way that a guardian speaks for a child resolves the issue of legal standing; more emphasis could be given to damage to ecological functions; and compensation for nature's damage pertains to nature itself, ensuring the money goes to its well-being (Stone, 1947, p. 451-453). Bétaille (2019), on the other hand, argued that the intrinsic value of nature already exists at the core of environmental law, that the abuse of rights theory and nature conservation law already reduce the negative impact on the environment, and that current laws already allow environmental NGOs to represent nature in court, rendering the grant of legal standing unnecessary. The rights of nature concept, according to Betaille (2019), is not a "magic cure" for environmental conservation that may save the earth.

In my view, the justification of granting rights to nature using the twin-analogy argument of legal fiction and guardianship used by Stone (1972) holds water in a logical and legal sense. It should be noted that in the past slaves, women, children and animals are previously devoid of rights. In the same vein, non-human entities such as corporations, and municipalities are treated merely as objects rather than as subjects of law. As society and law co-evolve, shape and reshape each other both in time and space, their rights have been given recognition.

In terms of whether or not granting rights to nature is necessary, I believe it is. When the very existence of human society depends on the ecological services that nature delivers, I see no compelling reason why nature should not be afforded the same legal rights.

Second Issue: What and how rights of nature given?

In some jurisdictions such as in the case of India, the Ganghes and Yamuna rivers are considered as living human entities; in Bangladesh, the Turag river is declared a legal person; in Australia, the Yarra river is an integrated living entity.

The rights of nature are legally institutionalized in both Ecuador and Bolivia, according to Lalander (2015), the former through its Constitution (Articles 71-78, 2008 Ecuadorian Constitution) and the latter through a statutory legislation (Law of Mother Earth). In both India and Bangladesh, the rivers were granted rights through judicial decisions. In both the New Zealand and Australia, the Whanganui and Yarra rivers are accorded status of legal person and living entity through national laws.

Talbot-Jones and Bennett (2019), using the Ganghes and Yamuna rivers in India, claimed that granting rights to nature leads to resource self-determination, a new property regime that could complicate allocational difficulties. Two (2) primary reasons were cited why the decision of the Uttarakhand High Court was stayed by the Supreme Court of India: a lack of clear enforcement mechanisms and the legal complexity of declaring the rivers as living human entities.

In South American contexts of Colombia and Ecuador, among the roadblocks to implementation of the new legal regime include lack of capacity among the judges and prosecutors, the lack of adequate guidelines on how to implement the new regime and funding issues of litigating on behalf of nature.

I share the same view with the foregoing authors on the enforcement roadblocks. I am under the impression that enforcement is a function of two important factors: institutions and political will. I believe all other issues are encapsulated in these factors. How these factors play out mainly depends on the specific context through which countries are situated.

Institutions matter.Apparently, it is not enough that one grants nature of its rights; it is just one piece of the puzzle. Equally important is the whole gamut of institutional framework: availability of expertise, policies, money, time, and a community that respects and recognizes these rights. Political will is as important as institutions. Without positive political buy in, it is highly unlikely that nature’s rights can be advanced.

The “rights of nature” concept is a welcome shift in the constantly evolving socio-nature relations. While it is not without flaws, it has the potential to advance socio-economic and environmental sustainability envisioned by the international community. Still in its infancy stage, enforcement could be a challenge but with inclusive institutions and political will, it can be a force to reckon with. Like any other rights, it can be politicized reflective of unequal distribution of voice and authority and imbalanced power relations. While it may not save the world, it will help curb insatiable human greed that sucks the substance of a finite planet.

References:

Bétaille, J. (2019). Rights of Nature: Why it Might Not Save the Entire World. Journal for European Environmental & Planning Law, 16(1), 35-64. Retrieved February 03, 2021, from https://doi.org/10.1163/18760104-01601004.

Kauffman, C. M. & Martin, P. L. (2017, Elsevier). Can Rights of Nature Make Development More Sustainable? Why Some Ecuadorian lawsuits Succeed and Others Fail. World Development, 92, 130-142. Retrieved February 03, 2021, from https://doi.org/10.1016/j.worlddev.2016.11.017.

Lalander, R. (2014). Rights of nature and the indigenous Peoples in Bolivia and Ecuador: A Straitjacket for Progressive development Politics? Iberoamerican Journal of Development Studies, 3 (2), 148-173. Retrieved February 04, 2021, from http://ried.unizar.es/index.php/revista/article/viewFile/137/58.

O'Donnell, E. L., and J. Talbot-Jones. (2018). Creating legal rights for rivers: lessons from Australia, New Zealand, and India. Ecology and Society 23(1):7. Retrieved February 03, 2021, from https://doi.org/10.5751/ES-09854-230107.

Stone, C. D. (1974). Should trees have standing?: Toward legal rights for natural objects. Southern California Law Review, (45), 450-501. Retrieved February 04, 2021 from https://iseethics.files.wordpress.com/2013/02/stone-christopher-d-should-trees-have- standing.pdf.

Talbot-Jones, J. & Bennett, J. (2019). Towards a property rights theory. Ecological Economics

(164)             106352.             Retrieved             February             03,             2021,                      from https://doi.org/10.1016/j.ecolecon.2019.06.007.