Wed, Apr 04, 2018 - Page 9 News List

The push to give rivers, mountains and forests rights

It seems logical to grant protection to nature by treating it as a living entity, and Australian law might be catching up

By Jane Gleeson-White  /  The Guardian

Illustration: Mountain People

On March 20, a community rally on the Margaret River south of Perth, Australia, called for the river to be recognized as a legal entity with the local council as its custodian.

Under the banner “Is it time to give our river rights?” more than 100 people discussed ways of protecting the river, prompted by plans for a mountain-bike and walking track along the foreshore.

A rights-of-nature approach has majority support in the council, river advocate Ray Swarts said.

The emerging international rights-of-nature movement aims to address the way Western legal systems treat nature as property, making the living world invisible to the law. It uses Western legal constructs, such as personhood and rights-based approaches, to shift the status of nature from property to a subject in law in an effort to protect the natural world.

This new approach to environmental law was introduced in the US by the Community Environmental Legal Defense Fund, whose first success came in 2006 when it helped to defend a Pennsylvania community’s right to reject sludge being dumped in their borough.

In just over a decade the rights-of-nature movement has grown from one law adopted in a small community in the US to a movement which has seen countries enact laws, even constitutional protections, recognizing the rights of nature, fund cofounder Margi Margil said.

In 2008 Ecuador became the first country to enshrine the rights of nature in its constitution.

Margil helped draft the legislation and said that during the process: “Indigenous members of Ecuador’s constitutional assembly told us that codifying the rights of nature would expand their collective rights as Indigenous peoples.”

New Zealand granted legal personhood to the Te Uruwera forest in 2014, and to the Whanganui River and Mount Taranaki last year.

An Indian court granted legal personhood to the Ganges and Yamuna rivers last year, citing the Whanganui Act, and soon after Colombia awarded rights to the Atrato River.

In a significant shift, in a report on Australia’s national environmental governance system in August last year, the Australian panel of experts on environmental law recommended exploring legal frameworks that shift the focus of law from human subjects to a “rights-of-nature” approach.

Traditional owners along the Kimberley’s Fitzroy River are also looking at ways to create legal personhood for their river. Their 2016 Fitzroy River declaration recognizes the river as a living ancestral being with a right to life and includes traditional owners’ obligation to protect the river for current and future generations.

“[It is] the first time in Australia that both first law and the inherent rights of nature have been explicitly recognized in a negotiated instrument,” traditional custodian and scientist Anne Poelina said.

This month community members urged the new Labor state government to uphold their pre-election commitment to the declaration.

Rights for nature were first proposed by Christopher Stone in his 1972 article “Should trees have standing?” and were famously endorsed by US Supreme Court Justice William Douglas’ dissenting judgement in Sierra Club versus Morton, in which he argued that trees should be granted personhood and have the ability to sue for their own protection, effectively blocking the development of a Walt Disney ski resort inside the Sequoia National Park in California.

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