Nature needs legal rights to really protect biodiversity

February 11 2021

Professor Dr Tineke Lambooy discusses why granting legal personhood to entities of nature could enable society to protect biodiversity for future generations. New research conducted by Nyenrode Business University explores ways to improve and safeguard our natural eco-systems.

Reconsidering our position and role as humans in the natural world is the biggest challenge of the 21st century. Recent alarming reports tells us that we are driving the earth ecosystems and species into mass extinction if we do not act now.

The same applies to the Indigenous people and cultures living in certain ecosystems, such as the Amazon forest and other tropical forests as well as the marine nomads in the Indian Ocean, and the Inuit and others living in the Arctic regions. The Anthropocentric paradigm has pushed the Earth and its species to the point of facing global exhaustion and extinction. The era of growth has clearly reached its limits.

So as multiple studies show, nature is inadequately protected in many places across the world and according to my research there are innovative ways to improve the situation. However, what if we changed how we viewed nature, what if we gave them rights?

Granting legal personhood to ecosystems would imply that we see nature as a legal subject instead of as a legal object. And there is definitely a trend emerging; ecosystems in different countries on all continents have been granted rights to nature in recent years, or proposals have been launched to that end. In public or private decisions regarding land conversion or another use of nature, nature itself is currently not represented as a stakeholder in the discussion. Hence, people in governments, companies and other institutions decide what happens with a river, a lake, a forest, a mountain, etc.

In particular, they determine to what extent a certain part of nature can be used for human benefit and/or transformed, polluted or abolished. Nature itself has no say in those types of decisions. There are many international treaties and national laws aimed at protecting nature areas and vulnerable species. However, the current situation reveals that those – although they are really important in terms of norm setting – have not been effective enough. The fact is, economic interest usually wins over ecological interest. Even in areas that have been labelled national parks or UNESCO World Heritage Area.

Across the world, 369 initiatives have been launched aimed at granting rights to nature. A majority of them were successful: an entity of nature or a specific animal or animal category currently hold legal rights. These initiatives indicate that people consider it high time to show respect to the environment. Environmental destruction, species extinction and cultural beliefs are among the many motives which people claim for the rights of nature to exist.

Following the example of the Māori people

An example where this has already happened is in New Zealand. Indigenous Māori tribes had filed claims against the State of New Zealand to legislate the Whanganui River because they wanted to have the authority over the fishing rights and to protect the River against overexploitation. The Māori people believe that their own wellbeing and that of the River, are one and the same. The River is seen as a spiritual entity and they refer to it as ‘Te Awa Tupua’, i.e., their river of sacred power. The Māori people feel highly responsible and connected to the wellbeing and health of the River.

In 2017, after multiple decades, the Whanganui River Pact was agreed upon between the government of New Zealand and Māori tribes. Part of this was the recognition of the River as a legal person. The River was recognised as a living entity and an ancestor and life force of the tribes. The River now possesses the rights, duties, powers and liabilities of a legal person, whose rights can be judicially enforced by guardians appointed in the law. The animalistic worldview and spiritual ecology of the tribes became integrated in the law.

The rivers with their own recognised personhood

Other rivers with legal personhood include the Ganges River in the State of Uttarakhand in India and the Turag River in Bangladesh. These Rivers are relied upon for everyday life in the communities they inhibit: for transportation, sanitation, agriculture, etc. The local communities considered the pollution (Ganga and Turag) and land grabbing (Turag) intolerable. Moreover, Ganga is the Hindu Goddess of purification and forgiveness.

In all three of these examples, the rivers are now being represented. They have to adhere to ecological values and goals as indicated in the laws and court decisions in which they were appointed. Only in Uttarakhand, the execution of the Uttarakhand’s High Court decision has been put on hold as that decision has been submitted by the government of Uttarakhand to the Supreme Court of India to reconsider it.

Nonetheless, we can observe that all three initiatives have led to governmental or court decisions aimed at changing the legal status of the three Rivers. They are no longer seen as a legal object but rather a legal subject. Also, the organisation of the discussions about developments that regard the Rivers has changed, and dominant legal concepts have been altered and replaced.

Changing how we perceive nature itself

I truly believe doing this could change how we think about nature. If we create a situation in which nature can take decisions in its own interest, we could see nature as having intrinsic value. We could acknowledge that nature can co-exist with us on our planet. That would constitute a systemic change in our thinking concerning ourselves and nature.

Through creating a legal representation of nature, it becomes clear that humans and nature both have the right to exist, thrive and grow. Granting rights to nature can transform a society in a systematic way as those new norms apply at once to all people and legal entities in the jurisdiction concerned. The legal act of granting rights to nature empowers and strengthens the process of developing new norms and structures, such as in schooling systems and workers’ instructions. Rethinking humanity’s relationship with nature and the cosmos at large is currently being considered by various groups around the world.

Giving legal rights to the biodiverse Wadden Sea?

Some of my recent research focuses on the possibilities of granting rights to the Dutch part of the Wadden Sea (bordering the North Sea, i.e. between the Netherlands, Germany, Denmark and the United Kingdom). This natural area has been valued high for its biodiversity, among other because of the millions of migratory birds that visit the area every year. The Wadden Sea is a unique tidal area, which has been designated as a UNESCO World Heritage Area. Hence, we should attempt to treat it as a heritage site and look after it for future generations. Besides, the results of the research might also be useful for other ecosystems in the Netherlands, such as the Biesbosch.

I have been awarded a grant from the Dutch INNO-Fonds (fund) of the Dutch Wereld Natuur Fonds (World-Wide Fund for Nature; WWF). This contribution will be used to explore the options to introduce ‘Rights of Nature’ in the Netherlands. In this project, we involve experts from legal and ecological disciplines and also other stakeholders.

Legal, living entities can survive better

It has become clear that by granting legal rights to nature, prompted by societal action, new ways of doing, organising, framing and knowing have been adopted. The three River examples have been considered by the legislator of New Zealand and the High Courts of the Indian State of Uttarakhand and Bangladesh as living entities that merit legal personhood. In all three cases, specific (new) authorities were appointed to represent the Rivers aimed at protecting the Rivers in a better and more effective way. 

Based upon these findings, I conclude that engaging in new legislation and governance aimed at protecting nature for current and future generations can result in real transformative social change. 

Prof Dr Tineke Lambooy is professor Corporate Law at Nyenrode Business University and conducts (multidisciplinary) research projects in the areas of corporate law, corporate governance, corporate social responsibility (CSR) and international corporate social responsibility (ICSR)

This article previously appeared on Open Acces Government with illustrations from Lisa Dröes.

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