- Nature and natural entities are gaining rights and changing their legal status in countries around the globe.
As unseasonal fires rage across the southern United States (again), and the small town of Lismore in Australia struggles to recover from a “one in five hundred years” flood event (the second this year), humanity is grappling with the global disaster of climate catastrophe. In response to this brutal reminder of our complete dependence on natural ecosystems, we see many new approaches to delivering sustainable societies and economies: nature-based solutions, ecosystem services, and the growing recognition of nature as a rights-holder in law.
Nature and natural entities (such as rivers, mountains, and lakes) are gaining rights and changing their legal status in countries such as Aotearoa New Zealand, Australia, Bangladesh, Bolivia, Canada, Ecuador, India, Mexico, Spain, Uganda, and the United States. Yet under the umbrella term of “legal rights,” there are many variations in the way these rights are formulated in law:
These extraordinary legal developments challenge the very foundations of Western legal systems (and legal systems that have developed in the former colonies of Western countries). They require us to reimagine the natural world as a being with rights and powers rather than a resource to be exploited. In all cases, these new landscape entities explicitly challenge the existing power dynamics between humans and nature. In doing so, they fundamentally transform our relationship to and with the world around us.
Take a moment here. Breathe, reflect, and remember the last time you were with a river. Remember the color of the water (Was it safe to touch? Could you swim?), the sounds of the riverscape (Were birds calling? Could you hear the water moving?), and the lands through which the river flowed (Were you high in the mountains or close to the ocean? Were you in a city?).
How did the river make you feel?
Now think about whether your relationship with the river alters if the river has legal rights. Does that feel jarring? Do you start to worry about what the river might do to protect itself? After all, the fear of being sued by a newly empowered landscape entity is a major driver of lawsuits that challenge the constitutionality of recognizing nature as a rights holder in the United States.
A recent example is the case of the Lake Erie Bill of Rights (LEBOR). In 2019, the citizens of Toledo, Ohio, voted to create LEBOR, which granted Lake Erie legal rights and would allow any citizen of Toledo to take legal action against polluters on behalf of the lake. The very day after the local ordinance passed, Drewes Farm, a farming operation near Toledo, sued to challenge the constitutionality of LEBOR. Drewes acted in part because they felt themselves at risk of a LEBOR-based lawsuit, as their farming operations could potentially contribute nutrient runoff to pollute the lake. In Drewes Farms P’Ship v. City of Toledo, No. 3:19 CV 434, 2020 WL 966628 (N.D. Ohio Feb. 27, 2020), the court held that LEBOR violated constitutional rights to due process, as it considered portions of LEBOR to be too vague (providing insufficient definition/guidance as to what conduct might violate the law), but also because it had the potential to conflict with state or federal law.
What if that river floods your property? Does the river become liable? Can you sue the river? Do you want to?
These questions show the enormous transformative potential of this concept, but as with all powerful ideas, it can cut both ways. Gaining legal rights and powers can be an essential tool of environmental protection by giving nature a chance to fight on a (more) level playing field in the courts. But the corollary can be a fracturing of the relationship between people and nature. When nature can fight its own battles, it’s too easy for us to abdicate our own responsibilities. When nature is strong, it’s too easy to fear it.
When rivers are recognized as living beings, they certainly have fewer legal powers than legal persons. So if you want to get nature into court, recognizing nature as a living entity is not sufficient. But recognizing rivers in law as living beings is a powerful way to center and strengthen the relationship between people and place.
Go back to your river.
If the river is alive, does that change the way you think about the services the river provides? Is it acceptable to pollute a living being? Does water extraction become damage to the river’s body?
I am a member of the Birrarung Council, and we are the voice of the Birrarung, the Yarra River. I can see the river as I type, flowing through the heart of Melbourne. Since the Birrarung Council was appointed in 2018, we have begun to see how public narratives about the river are changing. Where once people only considered what we could take from the river, the wider community is now beginning to ask: what do we want for the river? As more people become aware of the river as a living entity, the question is becoming: how do we get there with the river?
The Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 (Vic) required the creation of a 50-year community vision for the Birrarung, in which representatives from across the Yarra catchment came together to articulate our hopes and aspirations for the river over the next half-century. In 2022, another statutory document, “Burndap Birrarung burndap umarkoo” (the name of the Yarra Strategic Plan in the Woi-wurrung language, which literally translates to “what is good for the Yarra is good for all”), was launched by the Minister of Water. This 10-year plan establishes a series of key actions and a land-use planning framework to begin to give effect to the community vision. The Birrarung Council will report annually to the Victorian Parliament on progress under this plan.
The Traditional Owners of the Birrarung, the Wurundjeri Woi-wurrung, and Bunurong peoples have lived with the river since its creation. They have always known it to be a living, spiritual being. In our role as the voice of the river, we are slowly restoring the Birrarung to the relationship with people that it has always had: a beloved collaborator and a partner in its own management.
This is the beginning of the journey, as more and more rivers and other natural landscapes gain recognition in law as legal or living entities. Law reform is an essential step, but we don’t need to wait for law reform to reset our own relationships with the rivers we love.