Article written by Jessica den Outer*
The effects of climate change are immense — ranging from desertification and deforestation, to a global increase in extreme weather events, biodiversity loss, and ocean acidification. The most recent IPCC report reveals the potentially catastrophic consequences associated with a global temperature rise of 1.5ºC. Alarmingly, it highlights that the world is currently on track for a temperature rise of 3ºC. Litigation is increasingly used as a tool to address climate change. A new development in domestic environmental law is for States to recognise Rights of Nature. This article introduces the concept of Rights of Nature towards opening a discussion as to how this concept might be used in climate change litigation.
Rights of Nature builds on a non-anthropocentric understanding of the relationship between humankind and Nature. Inspired primarily by indigenous peoples’ relationship with Nature, the concept seeks to move away from the traditional view of Nature as property towards recognition of Nature as a subject of rights. It is regarded as part of the Earth Jurisprudence discipline, promoting an Earth-centred approach in which humankind forms part of Nature.
While challenging to define, this new legal approach generally seeks to transform Nature into a holder of rights. The rights assigned may vary: from certain substantive rights such as the right to exist, thrive, and evolve (for example, in Ecuador), to legal personhood (in New Zealand). While the recognition of legal personality of natural entities is controversial, it in fact reflects that which is already attributed to other non-sentient entities such as companies or States.
Rights of Nature: different approaches
Rights of Nature has been promoted through law, policy and education (see www.harmonywithnatureun.org). How such rights have been granted varies: Rights of Nature has been incorporated into domestic legal systems via the constitution (e.g. Ecuador), national legislation (e.g. Bolivia and New Zealand) or case law (e.g. Colombia). How the rights are conceptualised in legal systems also differ.
Ecuador was the first State to recognise Rights of Nature in its 2008 constitution in response to political instability caused by an indigenous uprising against oil extraction. The Ecuadorian constitution devotes the rights enshrined in chapter seven to ‘Nature’ or ‘Pacha Mama’:
"Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes."
Environmental conservation, protection of ecosystems, biodiversity and the prevention of environmental damage have been declared matters of public interest in the Ecuadorian constitution (article 14). Moreover, ‘any’ citizen can represent Nature in court. This has led to a string of cases, ranging from mining projects to pollution, to the invocation of Rights of Nature in respect of sharks and forests (see the Appendix of Craig Kauffman and Pam Martin here for an overview).
Bolivia, meanwhile, recognised Rights of Nature in 2010 and 2012 through domestic law. Mother Earth is recognised as a collective public interest and is entitled to the right of life and pollution-free living.
After 140 years of activism by Maori, the government of New Zealand granted the Whanganui river legal personhood in 2017. The Te Awa Tupua (Whanganui River Claims Settlement) Act recognised the Whanganui River as a legal person (‘Te Awa Tupua is a legal person and has all the rights, powers, duties, and liabilities of a legal person.’). Two custodians of the river are recognised in law: one representative of the indigenous people and one representative of the government. These persons are to be the ‘human face’ of the river and ‘to act and speak for an on behalf’ of it.
Whether and how Rights of Nature could be used to mitigate Climate Change
There are two potential ways in which Rights of Nature may prove useful in the climate justice movement.
Firstly, Rights of Nature has the potential to facilitate climate litigation by resolving, or easing, certain difficulties associated with such litigation. Most significantly, in the context of Rights of Nature, the issue of legal standing in climate litigation is likely to pose little difficulty where the harm alleged is to a natural entity with legal personhood. For instance, in a case concerning deforestation, the claim could be brought by the forest on the basis of a violation of its own rights. This in turn would impact on any corresponding claim for damages. Rather than harm being indirect, the harm would be directly suffered by the natural entity itself. How else Rights of Nature might prove useful depends on how the rights are given effect to in the relevant legal system. For instance, the Whanganui River Act of New Zealand defines the river as ‘the body of water known as the Whanganui River that flows continuously or intermittently’. Were this to be interpreted as the river having a right to flow, this would open up the possibility that, if in the future the river changes its course or dries up due to climate change, the river itself may be able to bring a claim against those responsible.
Secondly, by seeking to change how we perceive Nature—from a resource to be exploited to one which has rights—Rights of Nature serves a valuable preventive function. The effects of climate change are a result of a failure to sufficiently consider the negative externalities of carbon-intensive economic activities, as demonstrated in the Texaco Chevron case. By granting Rights of Nature, companies or individuals seeking to undertake activities that may have negative environmental impacts will need to ensure that such rights are taken into account.
Rights of Nature are not a panacea: it is necessary still to balance competing interests. In Ecuador, for instance, whilst Nature has the right to exist, non-renewable natural resources are regarded as inalienable property of the State. This points to a conflict inherent in sustainable development: while Ecuador has recognised Rights of Nature, it also relies heavily on extractive industries for its economic development. In the Mirador Mining Project case the claimants aimed to protect a private interest (conservation of Nature) whereas the mining company promoted a public interest (development). The court of first instance denied the nature protection action of the claimants. This highlights a potential limitation of the concept in respect of climate change litigation.
Furthermore, how effective Rights of Nature proves to be depends on how those rights are conceptualised in the relevant legal system and how courts interpret such rights. Judges play an important role in this regard. The Uttrakhand High Court in India recognised certain legal rights of the Ganges and Yamuna rivers in 2017 and assigned custodianship to three top government officials. Later that year, the country’s top court overruled this decision on the basis that it was unclear who would be accountable to pay damages if the rivers cause floods. Nevertheless, legal developments in one jurisprudence carve a path for further legal developments in other jurisdictions. For instance, Colombia’s supreme court recognised in the Andrea Lozano Barragán et al case in 2018 that the Amazon rainforest is to be regarded as an entity subject of rights. The Colombian judges looked at international practice and literature on Rights of Nature to ascertain how to implement Rights of Nature.
The definition and implementation of Rights of Nature raise a variety of challenges, as discussed in this article. Yet, this new approach may prove an effective tool in the legal toolbox for climate litigators, which will hopefully be further explored in the near future.
*Jessica den Outer has a Master degree in International Environmental Law from the University of Nottingham. She is passionate about the environment and international law, and has worked in the environmental law field since 2016. She is currently engaged in volunteer work and will focus her young career on advancing Rights of Nature.