RIGHTS OF NATURE : THE ASCENT FROM LEGAL OBJECT TO LEGAL PERS…O Blog for Animal and Environmental Jurisprudence and Rights 09/08/20, 7:19 PM NLUO BLOG FOR ANIMAL AND ENVIRONMENTAL JURISPRUDENCE AND RIGHTS JULY 20, 2020JULY 20, 2020 NLUO BLOG FOR ANIMAL & ENVIRONMENTAL JURISPRUDENCE AND RIGHTS ARTICLES & DISCUSSIONS, GUEST CONTRIBUTION RIGHTS OF NATURE : THE ASCENT FROM LEGAL OBJECT TO LEGAL PERSON (Analysis) By Mr. Harsh Vardhan Bhati* “The Bihari boatman knows the Ganga as a sanctuary for smooth-coated otters and the critically endangered blind dolphins, cousins of the Amazonian pink boto and the Yangtze River’s baiji. The Dalit fisherfolk know it as the mother of Toofani Baba, their stormy guardian. The Muslims know the river as the place where tazia is immersed on Muharram to celebrate the martyrdom of the Prophet’s grandson and his seventy-two companions. The Buddhists know the river as the metaphor through which the Buddha illustrated many of his teachings. The activist Rakesh Jaiswal knows his stretch of the Ganga in Kanpur as a river plagued with toxic tannery waste, harsh enough to make human skin disintegrate. And many know the river as the place where the ashes of their ancestors disappeared.”[i] Introduction First Nations people have always intuited how trees actually communicate with each other.[ii] They’ve had a dialogue with nature for tens of thousands of years because, in their cosmology, the earth was never mindless or impersonal, it was a sentient life force woven into everything. The mountains talked, the rivers whispered, the land remembered.[iii] It was a source of emotional and spiritual sustenance, one that we – in our industrial, urban hunger – had failed to register.[iv] In 1979, James Lovelock published a slim volume entitled “Gaia: A New Look at Life on Earth”. The book’s central hypothesis is that “the entire range of living matter on Earth, from whales to viruses and from oaks to algae, could be regarded as constituting a single living entity capable of maintaining the Earth’s atmosphere to suit its overall needs and endowed with faculties and powers far beyond those of its constituent parts.”[v] https://saaewnluo.in/2020/07/20/rights-of-nature-the-ascent-from-legal-object-to-legal-person-opinion/ Page 1 of 16 RIGHTS OF NATURE : THE ASCENT FROM LEGAL OBJECT TO LEGAL PERS…O Blog for Animal and Environmental Jurisprudence and Rights 09/08/20, 7:19 PM The idea of giving nature legal rights was first highlighted in essays by University of Southern California law professor Christopher D. Stone, collected into a 1974 book titled “Should Trees Have Standing? Toward Legal Rights for Natural Objects.” Stone argued that if an environmental entity is given “legal personality,” it cannot be owned and has the right to appear in court.[vi] Stone emphasizes that throughout legal history, each successive extension of rights to some new entity has been a bit unthinkable.[vii]He goes on to say that women’s suffrage, the abolition of slavery, prisoners, fetuses and indigenous rights were once unthinkable but gradually became accepted.[viii] Not to mention that corporations have been enjoying the status of legal person since the 1880s.[ix] In this regard, Stone proposed that natural objects be considered ‘persons’ or holders of rights, such that they may be represented in Court by legal guardians, since they themselves are incapable of protecting their own rights.[x] In the 21st century, if we find it strange to view nature the way we view people, that may just be because we’ve grown up in an anthropocentric intellectual tradition that treats the natural world as an object to be examined and exploited for human use, rather than as a subject to be communed with and respected.[xi] Status around the world Several jurisdictions have developed versions of rights of nature regimes, including Ecuador, Bolivia, USA, New Zealand, El Salvador, Colombia, Bangladesh, and India. However, these rights vary significantly from one country to another. In some cases, nature as a whole is granted legal personhood or living entity. Whereas, in other cases parts of nature such as a river, a mountain, a species, a forest— granted the same status. Ecuador and Bolivia In 2008, after a national referendum, Ecuador changed its constitution to reflect rights for nature. It was the first country ever to do so; its move was followed legislatively by Bolivia in 2010.[xii] The Constitution of Ecuador recognizes that Pachamama has rights “to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution” and exhorts that “all persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature”.[xiii] In Bolivia, the legal recognition of “Mother Earth” is in the nature of a collective public interest. The Bolivian Constitution allows any person to legally defend the rights of the environment.[xiv] The Law of the Rights of Mother Earth (Ley de Derechos de la Madre Tierra)[xv] incorporated 10 articles, which https://saaewnluo.in/2020/07/20/rights-of-nature-the-ascent-from-legal-object-to-legal-person-opinion/ Page 2 of 16 RIGHTS OF NATURE : THE ASCENT FROM LEGAL OBJECT TO LEGAL PERS…O Blog for Animal and Environmental Jurisprudence and Rights 09/08/20, 7:19 PM enumerated 7 specific rights to Mother Earth and her constituting life systems (i.e. all other biological creatures). Again in 2012, the Framework Law of Mother Earth and Integral Development for Living Well (La Ley Marco de la Madre Tierra y Desarrollo Integral para Vivir Bien),[xvi] which is the most recent law in Bolivia. In both Ecuador and Bolivia, nature has been personified as Pachamama or Mother Earth which is deemed to be a living entity. These were marked departures from the anthropocentric orientation to eco-centric orientation for rights of nature in both the countries. This move is linked to the holistic foundation of the law—to protect nature as a system instead of as discrete forests, streams, lakes, among others.[xvii] The most well-known of all Ecuadorian rights of Nature cases is, arguably, that of Wheeler v. Director de la Procuraduria General del Estado en Loja (the “Vilcabamba case”), litigated in 2010–2011, and internationally heralded as the first successful case where Nature had rights upheld in court.[xviii] The case emerged as a result of the Vilcabamba-Quinare road expansion project parallel to the Vilcabamba river, without a prior environmental impact study, by the provincial government of Loja. [xix] This project was considered to be in breach of nature’s rights, due to the dumping of construction debris into the river, resulting in the narrowing of its width and flooding of nearby areas, subjecting the surrounding populations to significant risks.[xx] The Provincial Court of Justice of Loja ruled in favor of Nature in this case instantiated in the Vilcabamba River and held the Provincial Government responsible for flooding damages.[xxi] USA The idea of giving nature legal rights is not new. It dates to at least 1972, when a Stone, wrote an article titled “Should Trees Have Standing?”[xxii] Stone had hoped to influence a Supreme Court case in which the Sierra Club wanted to block a ski resort in the Sierras.[xxiii] The environmental group lost.[xxiv] Justice William Douglas after reading Stone’s article delivered his famous dissent in Sierra Club v. Morton,[xxv] he embraced the view advocated by Stone: that natural objects should be recognized as legal parties, which could be represented by humans, who could sue on their behalf.” If ships and corporations could be recognized by courts as legal personalities, ecosystems under “the destructive pressures of modern technology and modern life” ought to be able to sue to preserve themselves.[xxvi] Even before Ecuador and Bolivia recognized the rights of nature, nature’s rights were recognized in an ordinance passed by Tamaqua Borough of Schuylkill County, Pennsylvania in 2006, where the natural ecosystems were recognized as legal persons capable of enforcing civil rights. Similar rights of nature ordinances have been passed in other parts of America, such as in Pennsylvania, Maine, New Hampshire, California.[xxvii] Most of these local ordinances have not been tested in Court while a few have been invalidated.[xxviii] https://saaewnluo.in/2020/07/20/rights-of-nature-the-ascent-from-legal-object-to-legal-person-opinion/ Page 3 of 16 RIGHTS OF NATURE : THE ASCENT FROM LEGAL OBJECT TO LEGAL PERS…O Blog for Animal and Environmental Jurisprudence and Rights 09/08/20, 7:19 PM Recently, the Lake Erie Ecosystem Bill of Rights came before Toledo citizens in a referendum in February 2019; 61% voted for it, and Lake Erie became – symbolically, temporarily – a “legal person.”[xxix] New Zealand In 2014, the bill based on the agreement between the government and the Māori regarding the personification of TeUrewera forest became law, bringing into being New Zealand’s first environmental legal person.[xxx] The Whanganui river, which is New Zealand’s third largest river and also its longest navigable river, was granted legal personhood that reflected the Māori’s unique ancestral relationship with the river. [xxxi] The Te Awa Tupua (Whanganui River Claims Settlement) Act, 2017 Act grants legal personhood status to the Whanganui River and its catchment and creates a new governance framework for the river.[xxxii] The Whanganui river will be represented by guardians appointed by the Crown and the Whanganui Iwi, one from each, for the role of protecting the river. Colombia