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Spring 2023: Comparative and Global Perspectives

Rights of Nature in Comparative Perspective

Sam Ian Bookman


  • Addresses how the concept of Nature as a legal person originates in Indigenous jurisprudence.
  • Compares three countries to illustrate the different ways in which rights of Nature are drafted, litigated, and imagined.
  • Discusses how rights of Nature are as much about interhuman relationships as they are about relationships with the natural world.
Rights of Nature in Comparative Perspective
Milo Zanecchia via Getty Images

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In 2008, Ecuador’s newly enacted constitution captured the imagination of environmental lawyers around the world. Tucked away in Ecuador’s extensive bill of rights were two articles with radical potential. Article 71 protected the right of “Nature, or Pacha Mama … to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.” Ecuador Const., art. 71. Article 72 protected the right of Nature “to be restored.” Id. art. 72. With these two provisions, Ecuador became the first country in the world to recognize Nature as a rights-bearing entity in national law. Rights of Nature are now regularly asserted in Ecuadorian courts. Since 2021, the Constitutional Court of Ecuador has applied these provisions in ordering the restoration of the Monjas River (Sentencia No. 2167-21-EP/22), recognizing the rights of Indigenous peoples over their traditional lands (Sentencia No. 273-19-JP/22), striking down laws that threatened mangrove forests (Sentencia No. 22-18-IN/21), and barring mining from the famous Los Cedros cloud forests (Sentencia No. 1149-19-JP/21).

Ecuadorian courts are far from alone in operationalizing such rights. Although Ecuador remains the only country in the world to have included rights of Nature in its national constitution, courts in other countries have found such rights to be implicitly protected. The Supreme Court of Bangladesh has derived such rights from national laws and culture, Human Rights and Peace for Bangladesh v. Government of Bangladesh, Writ Petition No. 13989/2016 (Jan. 30, 2019), while the Constitutional Court of Colombia has found rights of Nature to be implicit in its constitutional text. Ctr. for Soc. Just. Stud. v. President, T-622/16 (Nov. 10, 2016) (Atrato River Decision). Legal recognition of Nature’s rights or personhood is also reflected in legislation from New Zealand to Uganda to Panama. Courts, municipalities, states, tribes, and national legislatures in at least 17 countries have now recognized some form of legal rights for Nature.

Defining Nature’s Rights

Rights of Nature come in a variety of legal forms. In some instances (such as the Ecuadorian Constitution), “Nature” as a whole is recognized as a rights-bearing entity. In other cases—as with New Zealand’s Te Awa Tupua Act 2017—the law recognizes only a particular natural feature. In most cases, however, rights of Nature laws or judicial decisions recognize both Nature’s legal personhood and its status as a subject of rights.

The possibility of Nature as a legal person with rights originates in Indigenous jurisprudence. Many Indigenous systems conceive of the relationship between humans and Nature as one of equality or stewardship, rather than the anthropocentric framing of most Western environmental laws. The Native American Diné Tribe in the United States adopted the world’s first rights of Nature law in a resolution guaranteeing the “rights and freedoms to exist” to “all creation.” Navajo Nation Council, Res. CN-69-02 (2002). Recognition of Nature’s rights in Colombia, Ecuador, and New Zealand resulted from pressure by Indigenous peoples, and these rights are hard-fought products of mobilization, negotiation, and sometimes litigation. Global networks of Indigenous and environmental actors have helped to spread and export the concept, sharing strategies, ideas, and resources. The Community Environmental Legal Defense Fund, for example, an American-based nongovernmental organization (NGO) that has worked on municipal rights of Nature ordinances in the United States, assisted the drafters of the Ecuadorian Constitution.

In addition to its roots in Indigenous organizing and worldviews, rights of Nature have origins in Western jurisprudence. Christopher Stone’s 1972 article Should Trees Have Standing? Toward Legal Rights for Natural Objects, 45 So. Cal. L. Rev. 450 (1972), has been particularly influential around the world. Stone argued that recognizing Nature’s rights would solve three pervasive problems in environmental law. First, recognition of such rights would establish rights of standing even in cases where there were no clear injuries to humans or their private property. Secondly, rights of Nature would ensure that remedies could be awarded based on damage done to an entire natural feature or ecosystem, rather than only that of the plaintiff. Finally, any damages or remedies could be applied directly to the natural object, rather than human property owners.

At first glance, recognizing the rights of natural phenomena seems absurd. Rivers, forests, and ecosystems cannot assert their own rights. Moreover, it’s not clear what exactly those rights are or who gets to define them. But the law is a flexible instrument. As Stone pointed out, legislators and courts have long developed legal fictions to serve a range of purposes, from companies to trusts to legal guardians. Rights of Nature are no different. For legal theorists such as Stone, rights of Nature had a moral and even spiritual dimension, but they could also be legal constructs designed to solve problems in the existing patchwork of environmental law. As the Ecuadorian cases and the analysis below make clear, rights of Nature have been operationalized in different ways across a range of jurisdictions.

Comparing Three Different Systems

A comparison of three countries illustrates the different ways in which rights of Nature are drafted, litigated, and imagined. The rights of Nature movement is a transnational one, but with important variations. An examination of New Zealand, Colombia, and the United States reveals three very different models. In New Zealand, national legislation recognized rights of Nature following extensive negotiations between the government and Māori iwi (tribes) as part of a governance structure designed in part to redress historical colonial wrongs. These rights operate as a framework for co-governance between the two parties. In Colombia, judges have asserted rights of Nature as part of a broader attempt to reconfigure human-Nature relations through the national constitution and to protect the concrete interests of communities who rely on the country’s rivers and forests. In the United States, rights of Nature have emerged at the municipal and tribal levels, usually as a means of challenging perceived failures in state and national law and policy. While rights of Nature in the first two countries have been given strong national recognition, rights of Nature activists in the United States have yet to see success in court. Nevertheless, in all three jurisdictions, the symbolic and political powers of the rights may be significant.

In New Zealand, rights of Nature are a product of negotiation and legislation, not courts. To date, the New Zealand Parliament has recognized rights of Nature in two significant statutes. In both cases, the legislation implements agreements struck between the government and Māori as recompense for violations of the Treaty of Waitangi 1840, New Zealand’s founding document. Māori negotiators deployed the concept of rights of Nature to enshrine environmental guarantees in these agreements and recognize the role of Māori as custodians and co-governors of the environment.

A comparison of three countries illustrates the different ways in which rights of Nature are drafted, litigated, and imagined.

In 2014 the New Zealand Parliament enacted the Te Urewera Act. The Act implements the government’s settlement with the Tūhoe iwi, many of whom had been persecuted or forced from their lands during military campaigns and colonial settlement in the late 19th and early 20th centuries. The Act declared the Urewera region, which had previously been a national park, as a “legal entity” instead. The Act confirmed that Te Urewera “has all the rights, powers, duties, and liabilities of a legal person.” Te Urewera Act 2014, § 11(1) (N.Z.). Importantly, the Act established a governance entity as the holder of these rights and duties, the Te Urewera Board. Id. § 16–64. The Board was tasked with overseeing the management of the region, and in doing so has the power to apply principles of tikanga Māori (Māori customary law). Reflecting the role of the legislation as part of a renegotiation of power, the legislation provided that the Board would within three years shift from equal Tūhoe and government representation to two-thirds Tūhoe representation. Rights of Nature thus became a means not only of environmental management, but also for restoring a measure of Tūhoe’s lost sovereignty over the region.

The Te Urewera Act was followed three years later by the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. Like its predecessor, the Act resulted from a series of negotiations between the government and Māori iwi—in this case, iwi with ties to the catchment area of the Whanganui River. The Act recognized this area (named Te Awa Tupua) as “an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements.” Te Awa Tupua Act 2017, § 12 (N.Z.). The Act also defined Te Awa Tupua according to a set of values, including recognition of Whanganui iwi as possessing “an inalienable connection with, and responsibility to, Te Awa Tupua,” while also recognizing Te Awa Tupua as “a singular entity comprised of many elements and communities, working collaboratively.” Id. § 13. As with Urewera, Te Awa Tupua was recognized as having “all the rights, duties, and liabilities of a legal person,” and a governance entity, Te Pou Tupua, was established to exercise guardianship responsibilities over the river and uphold its intrinsic values. Id. § 18.

The rights of Nature framework in New Zealand provides one legal tool for advancing the overall goal of redressing past wrongs committed by the government against Māori.

The rights of Nature framework in New Zealand thus provides one legal tool for advancing the overall goal of redressing past wrongs committed by the government against Māori. It is the product of decades of political action, organizing, and extensive negotiation. Rights of Nature are embedded in governance arrangements that memorialize treaty settlements through co-governance frameworks. Notably, the New Zealand courts have played almost no role: To date, Nature’s rights have not yet been asserted in any judicial forum.

By contrast, rights of Nature in Colombia are largely a judicial creation. Neither the national constitution nor legislation makes provision for them. Nevertheless, Colombian judges have fashioned an extensive rights of Nature jurisprudence.

The Constitutional Court of Colombia first recognized rights of Nature in 2016. Atrato River Decision. Indigenous and Afro-descendent communities who lived in areas adjoining the Atrato River brought the case. These communities relied on the river for food, water, and transportation and had strong traditional and spiritual ties to it. Pollution caused by mining was jeopardizing these ties. Relying on a range of rights protected under the Colombian Constitution, including the right to a healthy environment, the court found that the communities were entitled to constitutional protection. Building on its approach of interpreting Colombia’s constitution as an “ecological constitution,” the court found that such rights must be interpreted expansively, with substantive and not merely formal effect. In a radical move, the court found that it was not only the communities’ rights that were violated, but those of the river itself. It declared the river a “subject of rights,” observing that it intended this measure to signify a move away from anthropocentric applications of constitutional law. Id. ¶ 9.28. This approach “conceives of Nature as a real subject of rights that must be recognized by the States and exercised under the tutelage of their legal representatives, for example, by the communities that inhabit it or that have a special relationship with it.” Id. ¶ 5.9. Describing this approach as a form of “biocultural rights,” the court stressed “the relationship of profound unity between nature and the human species.” Id. ¶ 5.17. It then ordered the creation of a Commission of River Atrato Guardians to oversee the river’s restoration and required regular reporting on the ruling’s implementation. Id. ¶ 10.2.

Several other judicial declarations of Nature’s rights have followed the Atrato River Decision. In many of these cases, courts have stressed the need for ethical transformations in environmental and constitutional law and retained jurisdiction to oversee implementation. In a 2018 decision, known as the Amazon Rainforest Case, the Supreme Court of Colombia recognized the rights of the Amazon Rainforest. Future Generations v. Ministry of the Env’t, STC4360-2018 (Apr. 5, 2018). Several children and young people brought the case, arguing that the government’s failure to end deforestation undermined several of their constitutional rights because of deforestation’s contribution to climate change. Since these decisions, the rights of at least 13 other rivers, lakes, forests, and national parks have been recognized by lower Colombian courts applying a similar framework to the Atrato River Decision.

As in New Zealand, Indigenous peoples in Colombia have played an important role in asserting Nature’s rights. The courts’ recognition of a biocultural approach to environmental law offers a framework for the recognition not only of Nature’s interests, but also of those communities with close physical and spiritual ties to natural phenomena or ecosystems. One weakness of the Colombian approach, however, is the difficulty in securing governmental compliance. Despite extensive remedies and continuing judicial oversight, implementation has proven difficult. Courts themselves lack the power to compel compliance, especially in remote regions of the country where effective oversight is particularly challenging. As a result, the Colombian rights of Nature experiment remains a work in progress.

New Zealand and Colombia recognize rights of Nature as a matter of national law. By contrast, no such recognition seems imminent in the United States. Traditional federal environmental legislation is notoriously difficult to pass or amend, let alone a radical concept such as rights of Nature. And litigants also face resistance from courts: The Supreme Court’s majority decision Sierra Club v. Morton, 405 U.S. 727 (1972), makes clear that injury to plaintiff humans is an essential prerequisite for standing, notwithstanding an impassioned dissenting opinion to the contrary authored by Justice Douglas. Nevertheless, there have been some significant developments in municipal and Native American jurisdictions.

Indeed, as noted above, the 2002 Diné council resolution constitutes the first formal recognition of Nature’s rights. Several other Native American jurisdictions have followed suit in laws that often specify particular protected entities and include language that reflects Indigenous worldviews. For example, a recent law of the Ponca Tribe of Oklahoma protects “the immutable Rights” of specific rivers that flow through Ponca territory (the Ní’skà and Ni’ží’dè Rivers). Ponca Tribe Bus. Comm., Res. 51-07062022 (2022). An earlier Ponca law imposes criminal penalties for violations of the rights of Nature and allocates jurisdiction to tribal court. Ponca Tribe Bus. Comm., Res. 01-01092018 (2018). Elsewhere, at least two cases have been brought in tribal courts, although neither has resulted in a finding in Nature’s favor. A case brought on behalf of manoomin—wild rice protected under the laws of the White Earth Band of the Ojibwe people—attempted to stop the construction of the Enbridge Line 3 Pipeline in Minnesota. The case, however, has recently failed in both federal and tribal courts. Minn. Dep’t of Nat. Res. v. White Earth Band of Ojibwe, No. 21-cv-1869, 2021 U.S. Dist. LEXIS 167790 (D. Minn. Sept. 3, 2021); Manoomin v. Minn. Dep’t of Nat. Res., No. AP21-0516 (White Earth Band of Ojibwe Court of Appeals, Mar. 10, 2022). Meanwhile, a case brought under customary law in tribal court by the Sauk-Suiattle Tribe against the city of Seattle seeks declarations that wild salmon have the right to “exist, flourish, regenerate and evolve,” and that the construction of dams has interfered with such rights. Sauk-Suiattle Indian Tribe v. City of Seattle (Sauk-Suiattle Tribal Court 2022) (No. SAU-CIV-01/22-001). While at the time of writing the case has not yet been decided, it faces significant legal obstacles, including challenges to the tribal court’s jurisdiction.

In addition to Native American tribes, many U.S. municipalities have enacted rights of Nature ordinances. The first such ordinance dates back to 2006, when the town of Tamaqua, Pennsylvania, drafted an ordinance designed to halt a dredging project. Schuylkill Cnty., Pa., Ordinance 612 (2006). Since the passage of the Tamaqua Ordinance, several towns and cities have used rights of Nature as a way to oppose environmentally damaging projects otherwise approved by state or federal law. Perhaps the most controversial was an ordinance that the city of Toledo passed that recognized the rights of the badly polluted Lake Erie to “exist, flourish, and naturally evolve.” Toledo, Ohio, Mun. Code ch. XVII, §§ 253–260 (2020). The law, which became known as the “Lake Erie Bill of Rights,” conferred standing on any citizen to bring suit on behalf of the Lake, while also purporting to rescind the legal personhood of polluting corporations. Unsurprisingly, the law received a hostile reception and was struck down almost as soon as it came into force. Drewes Farms P’ship v. City of Toledo, 441 F. Supp. 3d 551 (N.D. Ohio 2020). And future attempts were preempted by a resolution of the Ohio state legislature. Ohio Rev. Code § 2305.011 (2022). A similar law passed by residents of Orange County, Florida, has likewise been preempted. Fla. Stat. § 403.412(9) (2022). While litigation is pending, the plaintiffs face an uphill battle.

Unlike in New Zealand and Colombia, the value of rights of Nature in the United States may be primarily symbolic and political. They offer opportunities for tribes and municipalities to register disapproval of state or federal actions, and open courts as fora to press their claims—even if such claims are unlikely to be successful. With enough local and tribal laws, over time such actions may have the potential to shift the framework of environmental lawmaking or achieve a measure of litigation success. At the moment, however, such a possibility remains a distant prospect.

A Transnational Movement with Important Variations

The rights of Nature movement is a transnational one. Activists around the world are frequently in dialogue with one another, and many laws are borrowed between jurisdictions. The 2006 Tamaqua ordinance, for example, helped to inspire the Ecuadorian Constitution; the NGO that assisted in the Tamaqua drafting process advised the Ecuadorian Convention. Furthermore, Indigenous peoples and worldviews have played a significant role in all of the jurisdictions discussed in this article.

Where rights of Nature have legislative support (as in New Zealand) or can be accommodated within existing legal doctrines (as in Colombia), they are likely to receive greater formal legal recognition.

However, the comparison also reveals important variations. Different political and legal traditions receive rights of Nature differently, even where such rights are drafted in similar ways. Where rights of Nature have legislative support (as in New Zealand) or can be accommodated within existing legal doctrines (as in Colombia), they are likely to receive greater formal legal recognition. Conversely, in the United States—where such conditions are absent—rights of Nature are almost defined by their lack of success. Rather than a means of resolving or redressing environmental harms, they have instead become part of a language of protest and dissent. This language may still have value. In many communities, rights of Nature have captured the local imagination and offered a way to frame political challenges to corporations and state governments. However, this dynamic is very different from the role that these rights have played in foreign jurisdictions.

Nature’s Rights as Human Relationships

International experience reveals that rights of Nature are operationalizable concepts. It has also shown that, as with all efforts to regulate the environment, rights of Nature are as much about interhuman relationships as they are about relationships with the natural world. In New Zealand, the language of Nature helps to mediate conflicts over place, including past injustices. In Colombia, similarly, the oversight remedies offered by courts address issues of representation, accountability, and governance. Cynics might argue that such governance arrangements say little about “Nature” itself. But Nature has always been a human-created framework through which we think about our relationship with the natural world. Rights of Nature work within that frame while also shifting it in a more ecocentric and culturally pluralistic direction. They are legal fictions, but they are powerfully imaginative ones.

Rights of Nature still leave open many questions to be answered. In the United States, it remains an open question whether such rights will ever receive recognition from judges or states. Elsewhere, it’s not clear that rights of Nature can answer questions such as “who speaks for Nature” or the extent and scope of the rights that Nature holds. But the movement remains in its early days, and law evolves slowly. Doctrines and laws are still developing, often informed by innovations in other jurisdictions. Rights of Nature advocates argue that the movement offers a transformational reenvisaging of environmental law; whether such a transformation will occur remains a matter to be seen. Perhaps most significantly, rights of Nature provide a language for new ways of thinking about not just the content of environmental law, but about who gets to define its substance. As Nature’s rights continue to be asserted by Indigenous groups and traditionally marginalized communities, battles for rights recognition are also a conflict over sovereignty and fundamental values. Rights of Nature are becoming ground-zero sites of struggle over how the environment should be governed. If trends continue, attempts to recognize Nature’s rights in the United States will continue to grow in the coming years—perhaps to a courtroom or town hall near you.