Giving nature the legal right to exist

Mankind’s relationship with the rest of nature has been overwhelmingly predatory for centuries, with the natural world used as both a quarry from which to extract ‘resources’ and as a dump into which to eject our mountains of waste. The roots of this extractivist philosophy run deep, but it is now being challenged, as I explored in the Irish Times in December.

THIS SUMMER, in the English town of Ringwood, Bretton, the local council ordered the felling of an oak tree it claimed risked causing structural damage to nearby houses. The tree, which is listed on the UK Woodland Trust’s ancient tree register, is known to be well over 600 years old.

Having stood since the 14th century, long before the surrounding town and houses even existed, the mighty oak disappeared forever in little over an hour on June 29th last, despite determined efforts by locals to save it.

Campaigners had served the local council with an injunction in a last-gasp effort to save the tree, but a local district court judge dismissed it, claiming it was outside its jurisdiction.

Despite its great age, what sealed the fate of the ancient oak was that, in a world of human values and human rules, it lacked the basic legal right to exist. Humanity’s problematic and increasingly strained relationship with the ecosystems and millions of other species with whom we share a common home is captured in the seeming anodyne phrase “natural resources”. Put simply, if it can’t speak up to defend itself, the world is fair game.

Some scholars trace this to the ascendancy of Judeo-Christian philosophy, which saw mankind as entirely separate and superior to the rest of creation. This is captured notably in the Book of Genesis, where it states: “The fear and dread of you will fall on every living creature on the earth, every bird of the air, every creature that crawls on the ground, and all the fish of the sea. They are delivered into your hand”.

The idea of who, or what, is entitled to rights and legal personhood is constantly evolving. Whole categories of human beings, from slaves to women and children, were long denied full legal personhood, and in many countries, the struggle for basic human rights is ongoing.

In modern times, corporations have been successful in achieving legal personhood in most countries, meaning they can buy and sell property, enter into contracts and sue on their own behalf to protect their rights. Whether or not one agrees with corporations being granted legal personhood, this underlines the fact that the concept of personhood is by no means restricted to human beings.

Countries around the world, including New Zealand, Australia, Peru, Ecuador, Colombia and India among others have begun in recent decades to legally codify the intrinsic rights of nature to exist, separate to and protected from human interventions. What these countries have in common is that they have strong indigenous communities whose bond to the natural world is both intimate and integral to their identity, history and culture.

“For many indigenous peoples, climate change is not an abstract concept or something related to an external entity. For them, the destruction of natural resources is the destruction of life, their culture and the equilibrium between humans and nature”, according to Dr Ernesto Vasquez del Aguila, Peruvian anthropologist and assistant professor in social justice at UCD.

“In the Andean region of Ecuador, Peru and Bolivia, ‘Pachamama’ is a female deity who represents our mother Earth, a living entity that nurtures us with resources and makes possible life itself. This belief system implicitly protects the right of nature”, Vasquez del Aguila added. “Mother Earth not only has the right to exist but the right to be protected from pollution, exploitation and destruction, because the destruction of her is the destruction of life”,

In 2008, Ecuador’s constitution was amended to give formal recognition to nature of its right to “exist, persist and maintain and regenerate its vital cycles, structure, functions and its evolutionary processes”.

Two years later, Bolivia’s parliament passed the Law of the Rights of Mother Earth. The law recognised nature as a dynamic living system based on the community of all living entities that are inextricably interconnected. It noted that “Mother Earth is considered sacred in the worldview of Indigenous peoples and nations”.

Crucially, the law recognises Mother Earth as a “collective subject of public interest”, meaning that it can bring legal actions (via people acting on its behalf) to defend its rights, including the most fundamental right of all, which is to simply exist.

In 2014, the Te Uruwera forest in New Zealand was given legal personhood by the government; three years later, this was also granted to Mount Taranaki and the Whanganui river. Also in 2017, a court in India granted legal personhood to the Yamuna and Ganges rivers. At about the same time, Colombia granted legal rights to the river Atrato.

Around the world, a burgeoning “rights of nature” movement is challenging centuries of extractivist ideology associated with ‘western’ civilisation, which commoditises nature into little more than a quarry from which resources can be cheaply extracted and a dump into which wastes can be casually discarded.

While Christian thought placed man apart from and superior to nature, this concept was extended by philosophers, notably René Descartes, who, in the 17th century described all non-human animals as mindless automatons, to be exploited for our sole benefit.

It is no coincidence that the pre-eminence of this predatory mindset overlapped with the rapid spread of European colonialism, which, apart from ruthlessly exploiting natural ecosystems for profit, also legitimised the subjugation of the groups most intimately associated with nature. These include indigenous peoples, women and in many countries, peasants and the working classes.

Despite trading internationally on its ‘green’ reputation, Ireland is in fact ecologically heavily degraded and damaged, with some 63 per cent of Irish bird species in decline and barely 2 per cent of our marine waters enjoying even nominal protection.

Fewer than one in six of Ireland’s key habitats identified in the EU’s habitats directive is in ‘favourable’ condition. More than half of Ireland’s rivers, lakes and estuaries have been assessed by the Environmental Protection Agency to be in poor condition. The agency recently highlighted the “alarming” deterioration in water quality due to run-off of nitrogen and phosphorus, mainly from livestock agriculture.

Earlier this year, the Climate Bar Association issued a report recommending the urgent creation of a specialist environmental relations commission, which would act as a multidoor environmental court. The association also expressed its concern at the lack of effective enforcement of environmental sanctions.

Altogether more swingeing criticism came from a senior EU Commission official, Aurel Ciobanu-Dordea, who last February noted the “increasingly aggressive stance” being taken in Ireland against environmental defenders. Calls by politicians to de-fund environmental NGOs, he added, were “highly unusual to witness in an advanced society like Ireland”.

Ciobanu-Dordea was critical of what he called “aggressive and negative reporting in the mainstream media” on environmental issues.

The commission official’s comments were described as “extraordinarily frank” by Tony Lowes, director of Friends of the Irish Environment. “Unfortunately, it really is embedded in the rural culture in Ireland that the environment is the enemy of jobs”, Lowes said.

He added that against this cultural headwind, there has been a notable change in public mood in very recent times as concern about climate change has gone mainstream. This has been accompanied by a growing public realisation of the connectedness of natural systems, as well as our absolute dependence on functioning ecosystems for our own wellbeing.

However, environmental defenders still struggle to make headway against what Lowes described as “intractable civil servants and local authorities who see themselves first and foremost as development agencies, where the environment is bad for jobs” This culture, he added, appears to be immune to reform, at least in the shorter term.

Lowes believes the way forward is to frame nature protection as asserting and protecting people’s right to a healthy environment, clean air, safe water and natural amenities. The Irish Constitution, perhaps reflecting the era when it was written, has almost nothing to say about nature, while offering extensive legal protection to private property.

A referendum to strengthen human rights in our Constitution, extending to the right of nature to exist for its own sake could, Lowes concludes, go a long way towards rebalancing our broken relationship with the natural world.

ThinkOrSwim is a blog by journalist John Gibbons focusing on the inter-related crises involving climate change, sustainability, resource depletion, energy and biodiversity loss
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