By Erin O’Donnell, University of Melbourne and Alessandro Pelizzon, Southern Cross University
MELBOURNE, Feb 2 – Accelerating biodiversity loss and the catastrophic effects of the climate crisis show that the relationship between humans and the environment is broken. But an idea from legal scholars, now gaining traction around the world, is pushing us to rethink that relationship.
Western law and legal theory (or ‘jurisprudence’) operates from the viewpoint that the natural world exists for human use. Such thinking has shaped the world: European colonisation of other nations stemmed from the belief that they, and the Indigenous peoples who have inhabited them since time immemorial, were there for the taking.
But more recently, a new idea of law has emerged — rights of nature — underpinned by the belief that the environment has inherent value and is worthy of the highest legal protections.
The idea was first proposed in law by American professor Christopher Stone over 50 years ago. Thomas Berry and then Cormac Cullinan took the idea further, and eco-feminist author Carolyn Merchant connected ideas of nature with the self-destructive world view that has dominated Western thought for centuries.
More recently, Indigenous scholars Jacinta Ruru and Anne Poelina have shown how Western law can engage with Indigenous laws that respect nature as a living entity.
Beginning with a new Ecuadorian constitution in 2008, rights of nature initiatives have grown. The ‘Eco-Jurisprudence Monitor’ maps these initiatives: over 430 distinct initiatives across 42 different legal jurisdictions.
Around the world, different countries have extended different legal powers and rights to different natural entities. And in some countries court cases are beginning to show on-ground results: in 2021, Ecuador’s Constitutional Court prevented a company from mining in cloud forests, ruling that rights of nature exist everywhere, not just in protected areas.
But not all examples are successful. Although rivers have received the status of legal persons and/or living entities in some countries, this hasn’t granted any of them the powers needed to fight water scarcity.
In the United States, rights of nature legislation operates mostly at the local government level, which is then successfully challenged on constitutional grounds. The Lake Erie Bill of Rights, designed to protect the lake from pollution, was challenged and struck down the day after it came into effect.
Critics see the shortage of success stories as a sign the rights of nature movement is nothing more than an empty symbol. But a symbol can still be powerful.
Even when rivers don’t hold rights, changing their legal status to a living entity can alter the way humans relate to, and treat, the river: people may begin to see the river as an actual being, with whom they are in an enduring, mutually interdependent relationship. Even a symbolic change in humanity’s relationship with nature carries meaning.
A powerful example of this is the Birrarung (Yarra River) in Melbourne, Australia. The river is beloved, even while it is used as a stormwater drain by the city — for its lower reaches, it’s sometimes too polluted to safely swim in.
Yet the river is home to birds and mammals, with the occasional seal venturing up the estuarine reaches into suburban Melbourne. In 2017, the Birrarung (Yarra River) was made a living natural entity in law, leading to a new community vision for the next 50 years and a new strategic plan to give effect to this vision.
Indigenous leaders, scholars and activists played a pivotal role in the current shift in the status of the Birrarung.
The rights for nature movement is an inherently multicultural pursuit, bringing together all the communities who care for and depend on the environment. But an ever-present risk remains.
Those who hold power can determine which worldviews are to be seen as legitimate, and which can be discounted. Entrenched colonial power can still result in Indigenous exclusion.
If the rights of nature is to be a way to bring people together with different ideas of nature, it has to avoid this trap.
As rights of nature continues to build momentum as a global environmental movement, reform to laws the world over offer a chance to reset humanity’s relationship with nature.
This global conversation on the rights of nature can be best seen as a gateway to relationality, a world in which what matters is not a chaotic swirl of conflicting rights and powers, but a harmonious chorus of mutual obligation and care.
Erin O’Donnell is a senior fellow at Melbourne Law School. Alessandro Pelizzon is an academic in the Faculty of Business, Law and Arts at Southern Cross University.