V Rights of Nature
Many countries are moving towards the recognition of the human right to a clean and healthy environment. There are some countries that have taken this perspective a step further and have granted rights to the environment. Boyd defines “Rights of Nature” as “the rights of non-human species, elements of the natural environment and…inanimate objects to a continued existence unthreatened by human activities” (Boyd, Rights of Nature at 137). Christopher D. Stone, in “Should Trees Have Standing-Toward Legal Rights for Natural Objects,” (45 S. Cal. L. Rev. 450 at 453 (HeinOnline) [Stone, “Trees”]) argues that corporations, women, black people, and children have been granted legal rights over the course of history; therefore, nature’s rights should be embraced as well. All the legal rights relating to corporations and minority groups seemed impossible and unbelievable until they were passed (Stone, “Trees” at 453).
The Rights of Nature ideology takes the view that human beings need to stop treating nature as objects or property, and change their perception of nature (Boyd, “Elements”; Stone, “Trees,” at 453). Nature and human beings are connected, and life, for our generation and future ones, is only sustainable when the environment is protected. Human beings and plants, rivers, forests, and animals share the right to exist (Boyd, “Elements” at 221; Stone, “Trees,” at 453). When recognizing the Rights of Nature, the approach should involve placing limits on use in order to preserve the balance of the ecosystem (Boyd, “Elements”). For example, cutting down trees may be necessary to establish a home, however, destroying a forest or exterminating an animal species has a negative effect on humanity; we may not see these effects in our generation but future generations will (Boyd, “Elements” at 214).
Several countries around the world have recognized nature as a rights holder and granted nature legal standing. “Standing” is defined as the legal permission to appear as an applicant in court (Boyd, “Elements” at 238; Hogg, Constitutional at 36.2; Stone, “Trees” at 453; Mary Warnock, “Should Trees Have Standing?” (2012) 3 J. Hum. Rts. & Env't. 56 at 57 (HeinOnline) [Warnock, “Standing”]). Trees, rivers, mountains, and other elements of the environment are not able to appear in court and they would not be granted standing themselves because they are not able to speak to their own case. However, this fact should not stand in the way of granting them standing because children and mentally incompetent people in the judicial system are allowed to have a guardian/advocate appointed to speak on their behalves (Boyd, “Elements” at 239-40; Hogg, Constitutional at 36.2; Stone, “Trees” at 453; Warnock, “Standing”).
The United Nations General Assembly has talked about the Rights of Nature, referencing a proposed Universal Declaration on the Rights of Mother Earth, (Law on the Rights of Mother Earth, Law No. 71 of December 2010 [Universal Declaration of Rights of Mother Earth, 2010] (Boyd, “Elements” at 226). There has also been recognition of human rights and the protection of nature through the International Court of Justice (Colón-Ríosa, “Constituent Power” at 147). For example, in Hungary v Slovakia,  ICJ Rep 88 at 91, in a Separate Opinion, the Vice-President stated, “the protection of the environment is likewise a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself” and that “damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.” (Colón-Ríosa, “Constituent Power” at 147).
The constitutionalization of the Rights of Nature ensures that humans can live in a healthy and clean environment, have a right to the enjoyment of life, and recognize the rights of our environment, as well as, grant nature its own rights, similar to the Indigenous perspective. Many countries around the world, including Switzerland, Portugal, France, Columbia and Brazil, have specified a set of obligations to the government regarding nature and its protection (Boyd, “Elements” at 227). For example, The Constitution of the Portuguese Republic (7th Revision April 25, 1976 (translation) sets out the government’s duties:
Art. 66(2) states: In order to ensure enjoyment of the right to the environment within an overall framework of sustainable development, acting via appropriate bodies and with the involvement and participation of citizens, the state shall be charged with:
a) Preventing and controlling pollution and its effects and the harmful forms of erosion;
b) Conducting and promoting town and country planning with a view to a correct location of activities, balanced social and economic development and the enhancement of the landscape;
c) Creating and developing natural and recreational reserves and parks and classifying and protecting landscapes and places, in such a way as to guarantee the conservation of nature and the preservation of cultural values and assets that are of historic or artistic interest;
d) Promoting the rational use of natural resources, while safeguarding their ability to renew themselves and maintain ecological stability, with respect for the principle of inter-generational solidarity;
e) Acting in cooperation with local authorities, promoting the environmental quality of rural settlements and urban life, particularly on the architectural level and as regards the protection of historic zones;
f) Promoting the integration of environmental objectives into the various policies of a sectoral nature;
g) Promoting environmental education and respect for environmental values;
h) Ensuring that tax policy renders development compatible with the protection of the environment and the quality of life.
The notion that nature has rights and value is reiterated in international laws in many countries (Boyd, Rights of Nature at 99). Most of the world’s legal systems treat animals, nature, and ecosystems as property; however, this approach needs to change in order to sustain life and the environment. Many countries have made huge efforts to change perspectives between nature and humans; nature has been granted rights and legal protections in the Constitutions of Ecuador, Bolivia, New Zealand, and India.
India is an example of a country that recognizes the Rights of Nature. The Constitution of India imposes a duty on all citizens to “protect and improve the natural environment including forests, rivers, and wildlife, and to have compassion for all living creatures” (Art. 51A(g)) and states governments must “protect and improve the environment and safeguard the forests and wildlife of the country” (Art. 48A). Boyd notes that the Indian Supreme Court has received recognition for its forward-thinking approach on environmental justice—specifically, in cases ordering New Delhi to replace diesel buses with cleaner gas vehicles, protecting Taj Mahal from air pollution, safeguarding eco-systems from destructive industrialization and stopping toxic discharges into the Ganga River (Boyd, Rights of Nature at 92).
B. New Zealand
New Zealand was one of the first countries in the world to create and pass laws acknowledging that nature is no longer subject to human ownership (Boyd, Rights of Nature at 155). The new ideology in New Zealand acknowledges the fact that people are part of nature; they are not separate from it or dominant over it (Boyd, Rights of Nature at 156). These laws emphasize nature as a rights holder, as well as, the importance of human responsibilities to uphold these rights. The rights of Te Urewera National Park and the Whanganui River in New Zealand were granted legal recognition in 2014 (Abigail Hutchison, “The Whanganui River as a Legal Person” (2014) 39 Alternative L.J. 179 (HeinOnline) [Hutchison, “Whanganui River”]; Boyd, “Elements” at 226; Elaine C. Hsiao, “Whanganui River Agreement” (2012) 42 Envtl. Pol’y & L. 371 (HeinOnline) [Hsiao, “Agreement”]).
The Whanganui River was granted legal standing in New Zealand. The Whanganui River will have its own legal identity with all the rights, duties, and liabilities of a legal person (Hutchison, “Whanganui River” at 179-180; Hsiao, “Agreement” at 372-374; Isaac Davison, "Whanganui River given legal status of a person under unique Treaty of Waitangi settlement", NZ Herald online (15 March 2017) [Davison, “Whanganui River”]. This settlement resulted from New Zealand’s longest-running litigation, spanning over a 140 year period (Hutchison, “Whanganui River” at 179-180; Hsiao, “Agreement” at 372-374; James D. K. Morris and Jacinta Ruru, “Giving Voice to Rivers: Legal Personality as a Vehicle for Recognising Indigenous Peoples' Relationships to Water” (2010) 14 AILR 49 (HeinOnline) [Morris and Ruru, “Rivers”]). The Whanganui River is one of the largest rivers in New Zealand and the local Māori tribe fought for the recognition of their river for many years (Hutchison, “Whanganui River” at 179-180; Hsiao, “Agreement” at 372-374). The tribe wanted to treat the River as a living entity instead of treating it as property with others having ownership over it (Hutchison, “Whanganui River” at 179-180; Hsiao, “Agreement” at 372-374). Since the river has been granted legal recognition, if someone wants to harm the river, this would be the same as harming the tribe; the law sees no difference between the tribe and river; they are the same (Hutchison, “Whanganui River” at 179-180; Hsiao, “Agreement” at 372-374; Davison, “Whanganui River”; Morris and Ruru, “Rivers” at 49). Māori tribes are similar to other Indigenous tribes and regard themselves as part of the universe, and equal to the environment (Morris and Ruru, “Rivers” at 49).
This may be inferred from the Māori expression: “Ko au te awa, ko te awa ko au” (I am the river, and the river is me) (Boyd, “Rights of Nature” at 131; Hsiao, “Agreement” at 372-374).
The Māori view is similar to other Indigenous cultures; New Zealand recently began to incorporate these views into their legal system (Boyd, Rights of Nature at 132; Hutchison, “Whanganui River” at 179-180; Hsiao, “Agreement” at 372-374). To Māori peoples, nature is not property, nor is it used for natural recourses. There are certain concepts that are fundamental to the Māori relationship with nature—including kinship and stewardship (Boyd, Rights of Nature at 132). This includes relationships between humans, and includes a web of relationships between people, land, water, flora, animals, and fauna (Boyd, Rights of Nature at 133; Morris and Ruru, “Rivers” at 49). The tribes of a particular geographical area are connected to its ecosystems, rivers, forests, lakes, and other species and have responsibilities to them (Boyd, Rights of Nature at 133; Hsaio, “Agreement” at 372-74). For Māori, taking responsibility for the environment and its protection is an important aspect of a healthy relationship between humans and nature (Boyd, Rights of Nature at 133; Hutchison, “Whanganui River” at 179-180; Hsiao, “Agreement” at 372-374).
In 2004, there was a dispute about discharging sewage wastewater into the Whanganui River (Boyd, Rights of Nature at 133). Boyd notes: “This made the country realize how engrained the saying ko au te awa, ko te awa ko au is to those who have connections to the river” and “to pollute the water is to pollute the iwi people;” their spirit and belief system are connected to the river (Boyd, Rights of Nature at 134).
The Te Arawa Lakes Settlement Act (2006) set a precedent for the river; this Act moved ownership of a cluster of lakebeds from Crown property to a new body called the Te Arawa Lakes Trust (Boyd, Rights of Nature at 135; Hutchison, “Whanganui River” at 179-180; Hsiao, “Agreement” at 372-374). The government cannot authorize commercial activities on the lakes without the consent of the trustees and these lakebeds cannot be bought or sold (Boyd, Rights of Nature at 135; Hsiao, “Agreement” at 372-374). The trustees’ mission is to put the lake’s interest first and to restore the health of the Waikato River (Boyd, Rights of Nature at 135).
Using previous precedents, in 2011, a treaty settlement was one of the first to recognize that a river, Whanganui River, has the rights of a legal person (Boyd, Rights of Nature at 135; Hutchison, “Whanganui River” at 179-180; Morris and Ruru, “Rivers” at 50). This right was put into legislation in early 2017 (Te Awa Tupua (Whanganui River Claims Settlement) Bill, Government Bill 129-2; see also: Boyd, Rights of Nature at 134; Hutchison, “Whanganui River” at 179-180). The legislation includes provisions protecting the Māori perspective; representing the view that rivers, mountains, trees and nature have value and cannot be owned (Boyd, Rights of Nature at 139; Hutchison, “Whanganui River” at 179-180; Hsiao, “Agreement” at 372-374; Morris and Ruru, “Rivers” at 54). The Whanganui River is recognized as a legal entity with the “rights, powers, duties and liabilities of a legal person” (Boyd, Rights of Nature at 141; Morris and Ruru, “Rivers” at 53).
Te Pou Tupua is the entity representing the river; two individuals have been appointed to serve as guardians over the river, one guardian was chosen by the tribe and one was chosen by the government (Boyd, Rights of Nature at 141; Hsiao, “Agreement” at 372-374). These guardians are the face of the river and are meant to symbolize an agreement between the Māori and the Crown (Boyd, Rights of Nature at 141; Hsiao, “Agreement” at 372-374).
Te Urewera National Park
The Te Urewera Act was passed in 2014 and transformed Te Urewera National Park from Crown and government-owned property into a legal entity that owns itself and has the rights of a person (Boyd, Rights of Nature at 134). The law recognizes legal rights and standing of the National Park and recognizes the spiritual relationship of the Indigenous tribes to the environment (Boyd, Rights of Nature at 134 and 153; Hutchison, “Whanganui River” at 179-180). Section 11(1) of the Te Urewere Act acknowledges that Te Urewera has worth and possesses “all the rights, powers, duties and liabilities of a legal person”. Te Urewera owns itself and has legal standing, similar to the Whanganui River. Te Urewera is governed by a board of trustees whose mandate is to act on behalf of the National Park (Boyd, Rights of Nature at 134 and 153; Hutchison, “Whanganui River” at 179-180).
Citizens from Ecuador, Columbia, Nigeria, and India brought an action before the Constitutional Court of Ecuador (Colón-Ríosa, “Constituent Power” at 129). They sought a remedy for harm caused by the British Petroleum Oil Spill in the Gulf of Mexico (Colón-Ríosa, “Constituent Power” at 129). The citizens asked the court to issue orders that required the British Company to produce public information relating to the disaster, its impact, and take measures to correct its effects (Demanda Por lor Derechos del Mar Bajo el Principio de Jurisdicción Universal, action before the Constitutional Court of Ecuador (26 November 2010). As of 2014, a decision on this case was still pending: cited in Colón-Ríosa, “Constituent Power” at 129, footnote 1). This case gained national attention because the oil spill did not occur in Ecuador’s territory and it did not involve Ecuadorian citizens (Colón-Ríosa, “Constituent Power” at 129). The applicants asked the court to issue orders against the British Company based on the principle of Universal Jurisdiction, although none of the plaintiffs suffered any individual harm (Colón-Ríosa, “Constituent Power” at 129). The citizens asked Ecuador to protect the rights of the ocean, pursuant to Article 71 of the Constitution of the Republic of Ecuador, 2008. Colón-Ríosa notes that: “From an international law perspective, the case raises the no-less-interesting question of whether a constitutional court operating under a constitution that recognizes the rights of nature should exercise jurisdiction in cases of serious harms to the environment, even if those harms are caused by non-citizens outside the country’s territory” (Colón-Ríosa, “Constituent Power” at 129). The principle of Universal Jurisdiction is in place to help protect state sovereignty, specifically, in cases of environmental harm and Rights of Nature violations (Colón-Ríosa, “Constituent Power” at 131). Usually, limits on government powers are based on human rights; however, Ecuador’s Constitution also attributes rights to Nature (Colón-Ríosa, “Constituent Power” at 146). The Constitution of Ecuador also states at Article 71 that: “all persons, communities, peoples and nations can call upon public authorities to enforce the Rights of Nature” (see also: Colón-Ríosa, “Constituent Power” at 146).
Colón-Ríosa notes that one of the drafters of the Constitution of the Republic of Ecuador, 2008, Alberto Acosta, stated: “The destruction of nature eliminates the conditions required for the existence of the human species and therefore violates all human rights” (Colón-Ríosa, “Constituent Power” at 147).
Many individuals have utilized the Ecuadorian Constitution. For example, the first court decision (R.F. Wheeler and E.G. Huddle v Attorney General of the State of Loja (March 30, 2011),  Judgment No 11121-2011-0010 (Loja Provincial Court of Justice) [Wheeler and Huddle v Loja]) involving the Rights of Nature, in Ecuador, was about the Vilcabamba River and its right to be protected against damage inflicted by a highway construction project (Boyd, “Elements” at 226). In 2007, Eleanor Huddle and her husband, Richard Wheeler, traveled to Ecuador; they fell in love with the Vilcabamba River and bought a farm close by (Boyd Rights of Nature at 160; Wheeler and Huddle v Loja). In 2008, they returned to Ecuador and noticed that the road by their farm was being turned into a highway (Boyd, Rights of Nature at 160; Wheeler and Huddle v Loja). The construction waste was being dumped directly into the river, along with thousands of tonnes of debris (Boyd, Rights of Nature at 162; Wheeler and Huddle v Loja). In 2009, there was a storm and water levels in the river rose several feet above normal (Boyd, Rights of Nature at 162; Wheeler and Huddle v Loja). The couple was upset about the loss of their view, property damage and destruction of the river. They heard about provisions of the Ecuador Constitution and hired a lawyer (Boyd, Rights of Nature at 162; Wheeler and Huddle v Loja). The lawyer filed a lawsuit requesting that the highway project stop dumping debris in the river; that the natural course of the river be restored; and that the rocks, dirt, gravel and vegetation deposited in the river be removed (Boyd, Rights of Nature at 162; Wheeler and Huddle v Loja). The first judge dismissed the suit but they appealed a few months later, and an appellate court overturned the trial judge’s decision (Boyd, Rights of Nature at 162; Wheeler and Huddle v Loja). Boyd notes that:
For the first time in the world, a court, the provincial court of Loja, upheld the constitutional rights of a river. The judge stated that it is the duty of constitutional judges to immediately guard and to give effect to the constitutional rights of nature, doing what is necessary to avoid contamination or to remedy it (Boyd, Rights of Nature at 162; Wheeler and Huddle v Loja).
The Vilcabamba River case is a legal precedent, representing the fact that nature as a rights holder is no longer just a philosophical concept and real actions and steps are being taken to make this concept a reality (Boyd, Rights of Nature at 164; Wheeler and Huddle v Loja).
In 2007, Alberto Acosta was elected to create the new Ecuadorian Constitution, along with Eduardo Galeano, who wrote an article on the Rights of Nature (Boyd, Rights of Nature at 168). He acknowledged that incorporating the Rights of Nature into the Constitution would make Ecuador the first country in the world to take this step (Boyd, Rights of Nature at 169). Galeano wrote:
[I]t sounds weird, right? This idea that nature has rights….Crazy. As if nature was a person. Instead, it sounds perfectly normal that large U.S. companies enjoy human rights. In 1886, the supreme court of the United States, a model of universal justice, extended human rights to private corporations. The law recognized them possessing the same rights as people…as if companies breathe (Boyd, Rights of Nature at 169).
This means that corporations have the same legal standing that is awarded to human beings, and to many people, it makes more sense to enable the Rights of Nature rather than the rights of corporations (Boyd, Rights of Nature at 170).
Indigenous people were one of the main reasons the Rights of Nature was included in Ecuador’s Constitution. The Right of Nature concept is deeply rooted in Indigenous views and ways of life; their belief is to live in harmony with nature (Boyd, Rights of Nature at 170). In Ecuador’s Constitution, there is a phrase called “Sumak Kawsay” (buen vivir in Spanish) which translates as “harmonious coexistence” between nature, ecosystems, animals and humans (Boyd, Rights of Nature at 171). The preamble of the Constitution of the Republic of Ecuador, 2008, states:
We women and men, the sovereign people of Ecuador ….. celebrating nature, the Pacha Mama (Mother Earth), of which we are part and which is vital to our existence… hereby decide to build a new form of public coexistence, in diversity, in harmony with nature, to achieve the good way of living, the sumac kawasay.
Pachamama is a goddess that sustains life; this is also similar to the core beliefs of Indigenous groups (Boyd, Rights of Nature at 171).
The constitutional sections relating to the Rights of Nature are intended to protect Mother Earth, stating that nature has rights, humans have rights and no right is superior to the other; the state also has a duty to uphold these rights (Boyd, Rights of Nature at 172).
The Constitution of the Republic of Ecuador, 2008 states:
Article 71. Nature, or Pachamama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.
All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature. To enforce and interpret these rights, the principles set forth in the Constitution shall be observed, as appropriate.
The State shall give incentives to natural persons and legal entities and to communities to protect nature and to promote respect for all the elements comprising an ecosystem.
Article 72. Nature has the right to be restored. This restoration shall be apart from the obligation of the State and natural persons or legal entities to compensate individuals and communities that depend on affected natural systems.
In those cases of severe or permanent environmental impact, including those caused by the exploitation of non-renewable natural resources, the State shall establish the most effective mechanisms to achieve the restoration and shall adopt adequate measures to eliminate or mitigate harmful environmental consequences
Article 73. The State shall apply preventive and restrictive measures on activities that might lead to the extinction of species, the destruction of ecosystems and the permanent alteration of natural cycles.
Article 74. Persons, communities, peoples, and nations shall have the right to benefit from the environment and the natural wealth enabling them to enjoy the good way of living.
There are, however, some discrepancies within the Constitution and it remains a work in progress (Boyd, Rights of Nature at 173). The Rights of Nature are included in the Constitution, and under Article 407, the removal of non-renewable resources in national parks and protected areas are banned. However, Article 407 of the Constitution also allows the president to lift this ban with the consent of the National Assembly (Boyd, Rights of Nature at 174). The drafters of the Constitution acknowledged that the changes are very drastic and there are some discrepancies, “which would take decades to solve” (Boyd, Rights of Nature at 175). Acosta, along with other Assembly Members, are trying to speed up the change process and have nature’s rights incorporated into laws to ensure its protection and enforcement (Boyd, Rights of Nature at 154).
A 2012 case involved a group of businesses in the Galapagos Islands, who were concerned about road construction during their peak tourist season (Boyd, Rights of Nature at 154; see also: Craig Kaufmann and Pamela Martin, “Can Rights of Nature Make Development More Sustainable? Why Some Ecuadorian lawsuits Succeed and Others Fail” (2017) 92 World Development 130 at 138). Another case involved illegal shark fishing in the Galapagos National Park and Marine Reserve (See: Richard Barreno, Sea Shepherd Global “Judge sentences Chinese Ship Crew for Environmental Crimes” (translation) (August 29, 2017)). Due to these cases, the courts decided that Rights of Nature could be enforced against private entities as well as the government (Boyd, Rights of Nature at 154). Most of the world’s legal systems recognize nature, ecosystems and the environment as human property, therefore, Ecuador’s new constitution challenges the laws and social norms that have been in place for so long.
There have been many developments in Bolivia regarding environmental legal rights. Boyd notes:
Bolivia’s new law on the Rights of Mother Earth establishes a new ombudsperson and enumerates seven specific rights to which Mother Earth and her constituent life systems, including human communities, are entitled, including life, preservation of biological diversity, clean water, clean air, equilibrium, restoration and freedom from toxic contamination (Boyd, “Elements” at 226).
Bolivia has a variety of Indigenous groups and this has increased the importance of granting legal rights to nature. The Bolivian Constitution, 2009 has a section on environmental rights which states “everyone has the rights to a healthy, protected, and balanced environment. The exercise of this right must be granted to individuals and collectives of present and future generations, as well as to other living things” (Boyd, Rights of Nature at 189). This part in the Constitution speaks to the notion that animals, plants, and ecosystems have constitutional rights in Bolivia (Boyd, Rights of Nature at 189).
Lake Poopó was the second largest lake in Bolivia; however, it dried up in 2016 and turned into a salt desert (Boyd, Rights of Nature at 190). This lake was home to thousands of fish and fishing boats; the fish populations died and the boats became anchored to the ground (Boyd, Rights of Nature at 190). Many Indigenous people who used the lake for fishing for many centuries were no longer able to (Boyd, Rights of Nature at 190). Due to these climate changes, Bolivia has reacted by becoming one of the world’s leaders in regards to the Rights of Nature, the human right to water, and climate change (Boyd, Rights of Nature at 191). Bolivia is another country that has adopted the notion that the Rights of Nature are the same as the rights of human beings.
In 2010, Bolivia gained attention around the world for its laws on the Rights of Mother Earth. The Rights of Nature and responsibilities of the government, people and communities are all set out. Its mandate is to bring balance between humans and nature, restore ecosystems, and avoid treating the environment as private property (Boyd, Rights of Nature at 192). The Law on the Rights of Mother Earth articulates seven broad rights of Mother Earth in Article 7:
1) To life: It is the right to the maintain the integrity of living systems and natural processes which sustain them, as well as the capacities and conditions for regeneration
2) To the Diversity of Life: It is the right to preserve the variety of the beings that comprise Mother Earth, without being genetically altered, nor artificially modified in their structure, in such a manner that threatens their existence, functioning and future potential
3) To water: It is the right of the preservation of the quality and composition of water to sustain life systems and their protection with regards to contamination, for renewal of the life of Mother Earth and all its components
4) To clean air: It is the right of the preservation of the quality and composition of air to sustain life systems and their protection with regards to contamination, for renewal of the life of Mother Earth and all its components
5) To equilibrium: It is the right to maintenance or restoration of the inter-relation, interdependence, ability to complement and functionality of the components of Mother Earth, in a balanced manner for the continuation of its cycles and the renewal of its vital processes
6) To restoration: It is the right to the effective and opportune restoration of life systems affected by direct or indirect human activities
7) To pollution-free living: It is the right for preservation of Mother Earth and any of its components with regards to toxic and radioactive waste generated by human activities.
The constitutional law on the Rights of Mother Earth describes responsibilities for people, preventing the extinction of species, and protecting natural cycles; including production and consumption and developing assessments regarding the ecological impact of private and state companies (Boyd, Rights of Nature at 195). Bolivia’s new laws on rights of nature have been slow to implement and progress, similar to those in Ecuador. They are struggling between protecting nature and trying to reduce poverty (Boyd, Rights of Nature at 197).
Bolivia proposed a resolution in 2009 to the United Nations General Assembly proclaiming April 22 as “International Mother Earth Day” each year. The Assembly states in Resolution 63/278 that “Mother Earth is a common expression for the planet earth in a number of countries and regions, which reflects the interdependence that exists among human beings, other living species and the planet we all inhabit.”
In 2010, the People’s Congress on Climate Change and the Rights of Mother Earth was held in Cochabamba, Bolivia (Boyd, Rights of Nature at 207). A working group at the Congress drafted the following:
We, the peoples and nations of Earth:
Considering that we are all part of Mother Earth, an indivisible, living community of interrelated and interdependent beings with a common destiny;
Gratefully acknowledging that Mother Earth is the source of life, nourishment and learning and provides everything we need to live well;
recognizing that the capitalist system and all forms of depredation, exploitation, abuse and contamination have caused great destruction, degradation and disruption of Mother Earth, putting life as we know it today at risk through phenomena such as climate change;
Convinced that in an interdependent living community it is not possible to recognize the rights of only human beings without causing an imbalance within Mother Earth;
Affirming that to guarantee human rights it is necessary to recognize and defend the rights of Mother Earth and all beings in her and that there are existing cultures, practices and laws that do so;
Conscious of the urgency of taking decisive, collective action to transform structures and systems that cause climate change and other threats to Mother Earth, proclaim this Universal Declaration of the Rights of Mother Earth, and call on the General Assembly of the United Nation to adopt it…...every individual and institution takes responsibility for promoting through teaching, education, and consciousness raising…..
Article 1. Mother Earth
(1) Mother Earth is a living being.
(2) Mother Earth is a unique, indivisible, self-regulating community of interrelated beings that sustains, contains and reproduces all beings.
(3) Each being is defined by its relationships as an integral part of Mother Earth.
(4) The inherent rights of Mother Earth are inalienable in that they arise from the same source as existence.
(5) Mother Earth and all beings are entitled to all the inherent rights recognized in this Declaration without distinction of any kind, such as may be made between organic and inorganic beings, species, origin, use to human beings, or any other status…...
Article 2. Inherent Rights of Mother Earth
(1) Mother Earth and all beings of which she is composed have the following inherent rights:
(a) The right to life and to exist;
(b) The right to be respected;
(c) The right to regenerate its bio-capacity and to continue its vital cycles and processes free from human disruptions;
(d) The right to maintain its identity and integrity as a distinct, self-regulating and interrelated being;
(e) The right to water as a source of life;
(f) The right to clean air;
(g) The right to integral health;
(h) The right to be free from contamination, pollution and toxic or radioactive waste.
Article 3. Obligations of human beings to Mother Earth
(1) Every human being is responsible for respecting and living in harmony with Mother Earth.
(2) Human beings, all States, and all public and private institutions must:
(a) act in accordance with the rights and obligations recognized in this Declaration;
(b) Recognize and promote the full implementation and enforcement of the rights and obligations recognized in this Declaration;
(c) Promote and participate in learning, analysis, interpretation and communication about how to live in harmony with Mother Earth in accordance with this Declaration;
(d) Ensure that the pursuit of human wellbeing contributes to the wellbeing of Mother Earth, now and in the future;
(e) Establish and apply effective norms and laws for the defence, protection and conservation of the rights of Mother Earth.
In 2011, Bolivia requested that the United Nations hold a debate about the proposed Universal Declaration of the Rights of Mother Earth, which led to an ongoing annual discussion at the UN about living in harmony with nature (Boyd, Rights of Nature at 211). At the 2012 Rio+20 Earth Summit in South Africa, the final report of the Conference, The Future We Want, requested the UN to endorse the rights of nature.
The Global Alliance for the Rights of Nature is one of the leading advocates for the Universal Declaration of the Rights of Mother Earth (Boyd, Rights of Nature at 213). The Global Alliance also created and hosts the International Rights of Nature Tribunal. The International Rights Tribunal was set up to address environmental laws and damages inflicted on nature; the tribunal was established in 2013 (Boyd, Rights of Nature at 213). The Tribunal is made up of leaders from Indigenous groups, lawyers, and social justice and environmental communities around the world; it works similar to government organizations under a set of codified rules (Boyd, Rights of Nature at 213). The Tribunal’s goal is to hear cases and pursue actions to prevent future harm and damage to ecosystems, environments, and communities (Boyd, Rights of Nature at 213). One of the main reasons for creating the Tribunal was to allow human voices to advocate for the environment, as well as to challenge laws that allow the environment to be destroyed (Boyd, Rights of Nature at 214). The Tribunal contributes resources into educating states, governments, the media, and the public about the Rights of Nature (Boyd, Rights of Nature at 218). Indigenous leaders, lawyers, and scientists can gain practical experience and learn how to start a dialogue regarding the Rights of Nature and how human activities violate these rights (Boyd, Rights of Nature at 218).
E. Other Countries and Locales
The Rights of Nature are legally protected in Bolivia, New Zealand, Ecuador, India and several American communities, ranging from Santa Monica to Pittsburgh (Boyd, Rights of Nature at 223). These new laws regarding the Rights of Nature are branching out to protect endangered species and animals. David Boyd notes that courts in the United States, Costa Rica and India have ruled on cases about endangered species, stopped activities that harm them, and ruled to save these populations, including: the snail darter, papilla, northern spotted owl, Asian lion, and Asiatic buffalo (Boyd, Rights of Nature at 223). These judicial decisions all have the same goal— enforcing the idea that all of life has value, and should not be used as human property; humans as well as the state have a responsibility to avoid causing harm to these species (Boyd, Rights of Nature at 223).
The act of destroying ecosystems is classified as ecocide; ecocide is a specific crime that the International Rights of Nature Tribunal is set up to address (Boyd, Rights of Nature at 214). Vietnam and Ukraine, among other countries, have referred to ecocide as a crime under their criminal legislation. Boyd notes that: “Art 278 of Vietnam’s Penal Code states that destroying the natural environment, whether committed in time of peace or war, constitutes a crime against humanity” (Boyd, Rights of Nature at 214). Boyd also notes that: “Art 441 of Ukraine’s Criminal Code states mass destruction of flora and fauna, poisoning of air or water resources, and also any other actions that may cause an environmental disaster, - shall be punishable by imprisonment for a term of eight to fifteen years” (Boyd, Rights of Nature at 214).
The Supreme Court’s Rules of Procedure for Environmental Cases, in the Philippines, passed a remedy called a Writ of Kalikasan (nature); this is a court order to protect nature’s value and rights without the requirement of proving a direct injury to human beings (Boyd, Rights of Nature at 214).
Legal recognition of the Rights of Nature was granted in two Mexican states. Mexico City changed its Constitution in 2017 to include the rights of nature (See: Darlene Lee, Earth Law Centre, “Mexico on the Vanguard for Rights of Nature” (November 21, 2017). In 2014, Guerrero amended its Constitution to include and protect the rights of nature; granting equality between humans and nature. This is mentioned as an essential value (Boyd, Rights of Nature at 225).
In Australia, advocates are working towards getting legal standing for the World Heritage Site—the Great Barrier Reef, due to human activities (Boyd, Rights of Nature at 226). As well, a grassroots group is working to have the Rights of Nature incorporated into Nepal’s Constitution Boyd, Rights of Nature at 226).
As noted above, there are many countries, cities and states around the world that recognize the value of nature and want to advocate for its rights. These countries believe that nature is connected to human beings and want to move towards a more peaceful way of living.
Recognizing nature as a rights holder aligns with perspectives and laws of First Nations in Canada. The Canadian Constitution Act, 1867 recognizes Indigenous rights to land under s 35. Section 35 of the Constitution Act, 1867 states:
35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, ‘aboriginal peoples of Canada’ includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) ‘treaty rights includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
Section 35 grants constitutional protection to existing Aboriginal treaty rights of the Aboriginal peoples of Canada. Aboriginal rights that have not been extinguished are recognized by common law and are enforceable by the courts (Hogg, Constitutional at 28.8).
For example, there are a number of Supreme Court of Canada (SCC) cases that have set precedents for, and defined Aboriginal rights. In Guerin v The Queen,  2 SCR 335, 1984 CanLII 25 (SCC) [Guerin], the majority of the Supreme Court of Canada recognized Aboriginal title of the Musqueam Indian Band to land in British Columbia. Aboriginal title is a legal right arising from historic occupation and possession of lands (Hogg, Constitutional at 28.8). The SCC held that the Aboriginal title to the land gave rise to a fiduciary duty placed on the Crown to deal with the land for the benefit of the Indians (Hogg, Constitutional at 28.8).
In R v Sparrow,  1 SCR 1075, 1990 CanLII 104 (SCC) [R v Sparrow], the SCC recognized the Aboriginal right of a member of the Indian Band to fish for salmon in the Fraser River, where his ancestors had fished. The SCC held that s 35 provides constitutional protection for the Aboriginal right (R v Sparrow). As well, R v Sparrow decides that Aboriginal rights are now constitutionally guaranteed through s 35 of Constitution Act, 1982 (Hogg, Constitutional at 28.8). The effect of Guerin and R v Sparrow are to confirm that Aboriginal rights do exist at common law and that they are enforceable at the court by Aboriginal peoples (Hogg, “Constitutional” at 28.8). Aboriginal rights are rights held by Aboriginal peoples, not due to legislation or treaty, but because of the fact that Aboriginal peoples were once independent, self-governing and in possession of most of the lands in Canada (R v Van der Peet,  2 SCR 507, 1996 CanLII 216 (SCC) [R v Van der Peet].
In R v Van der Peet, the Supreme Court of Canada set out the legal test that was to be used to identify an existing Aboriginal right, within the meaning of s 35. In order to be an Aboriginal right, an activity must be: an element of a practice and custom or tradition integral to the distinctive culture of the Aboriginal group asserting the right. In order for a practice to be integral, the practice must be of a central significance to the Aboriginal group; it must be a defining characteristic of the society (R v Van der Peet; Hogg, Constitutional at 28.8). As well, the practice must have developed before contact, meaning before the arrival of the Europeans in North America (R v Van der Peet; Hogg, Constitutional at 28.8).
In R v Sappier; R v Gray,  2 SCR 686, 2006 SCC 54 (CanLII) [R v Sappier], the SCC held that harvesting wood for domestic use was integral to the culture of the people. The SCC held that the pre-contact practice of harvesting wood for the construction of shelters evolved into the modern right to harvest wood for the construction of a permanent dwelling (R v Sappier). However, it is important to recognize that the time frame of “pre-contact” does not work for Métis rights, because Métis people originated from marriage between French-Canadian men and Aboriginal women during the fur trade period (R v Sappier). They did not exist before contact.
In R v Powley,  2 SCR 207, 2003 SCC 43 (CanLII) [R v Powley], the SCC held that for Métis claimants of Aboriginal rights, the focus on European contact had to be moved forward to the time of European control. Apart from this shift in time, the same Van der Peet definition was used to identify Métis rights (R v Powley).
If a law has infringed or breached s 35 of the Constitution Act, 1982, remedies are available to Indigenous people through the courts. It is important to note that s 24(1) of the Charter does not apply to s 35 and therefore those remedies are unable to provide relief (Hogg, Constitutional at 28.8). However, Constitution Act, 1982, s 52 remedies do apply. The most common remedies are usually a declaration that a law or government act is invalid; an injunction to prevent action that is not authorized by a valid law; and a form of damages in tort, contract, or breach of fiduciary duty for acts causing damage (Hogg, Constitutional at 28.8).
Section 25 of the Charter, states:
S 25 The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) Any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) Any rights or freedoms that now exist by way of land claims agreements or may be so acquired.”
Section 25 is part of the Charter, but it does not create any new rights (Hogg, Constitutional at 28.9). It is an interpretive provision, included to clarify that the Charter is not to be interpreted as derogating from any Aboriginal treaty or other rights or freedoms that apply to the Aboriginal people of Canada (Hogg, Constitutional at 28.9).
Under the Charter, s 15(1) also contains an equality guarantee. The Indian Act, RSC 1985, c I-5 (Indian Act) like any other statute, can be challenged if it offends s 15(1) of the Charter. In Corbiere v Canada (Minister of Indian and Northern Affairs),  2 SCR 203, 1999 CanLII 687 (SCC) [Corbiere v Canada], the SCC struck down the provision of the Indian Act that made residence on the reserve a requirement for voting in band elections. The court held that the distinction between band members who lived on the reserve, and band members who lived off the reserve, was a breach of s 15(1) (Corbiere v Canada at para 18). Alternatively, in the case Lovelace v Ontario,  1 SCR 950, 2000 SCC 37 (CanLII) [Lovelace v Ontario], the
SCC rejected a challenge to the distribution of the Casino Rama gambling profits that was limited to communities registered as bands under the Indian Act. The court held that such exclusions of non-status bands form the distribution of the profits was not a breach of s 15(1) (Lovelace v Ontario at para 6).
A somewhat different example is the case of R v Kapp,  2 SCR 483, 2008 SCC 41 (CanLII) [R v Kapp]. In this case, the SCC held that a communal fishing license granted exclusively to Aboriginals did not violate section 15(1) of the Charter, but this was because Charter s 15(2) applied (R v Kapp at para 3). Under section 15(2), if a government program creates a distinction based on an enumerated ground but the program has an ameliorative or remedial purpose and targets a disadvantaged group, it will not violate s 15(1). In Kapp, the exclusive fishing licence, while discriminatory, was allowed because it was aimed at improving the situation of a disadvantaged group.
Haida Nation v British Columbia (Minister of Forests),  3 SCR 511, 2004 SCC 73 [Haida Nation] is one of the most recognized cases in Aboriginal Law; the case is about the duty to consult Indigenous people of Canada. It requires a two-part test: the Crown must have real or constructive knowledge of the potential existence of Aboriginal rights or title and contemplate conduct that might adversely affect it (Haida Nation). The duty to consult requirement is set in place by s 35 of the Constitution Act and its purpose is to work towards reconciliation with Aboriginal Peoples (Hogg, Constitutional at 28.8). Haida Nation started out as an environmental rights case. This case has had one of the largest impacts in Canada’s history (William A. Tilleman and Alastair R. Lucas, Litigating Canada’s Environment: Leading Canadian Environmental Cases By Lawyers Involved (Toronto: Thomson Reuters Canada, 2017) at 121 [Tilleman and Lucas]). The Supreme Court’s decision on Haida Nation has been cited hundreds of times, involving judicial review proceedings of government permits for resource projects (Tilleman and Lucas at 123; Hogg, Constitutional at 28.8). Aboriginal People have relied on the duty to consult, accommodate, and the Haida Nation precedent to protect environmental values (Tilleman and Lucas at 123; Hogg, Constitutional at 28.8).
Cases relying on the Haida Nation precedent include: Blaney et al. v Minister of Agriculture et al., 2004 BCSC 1764 (CanLII) [Homalco First Nation], regarding the approval of salmon fish farming licenses (Tilleman and Lucas at 123); Mikisew Cree First Nation v Canada (Minister of Canadian Heritage),  3 SCR 388, 2005 SCC 69 (CanLII) [Mikisew Cree]– dealing with construction of a winter road in Wood Buffalo National Park, AB (Tilleman and Lucas at 123); Huu-Ay-Aht First Nation et al. v The Minister of Forests et al., 2005 BCSC 697 (CanLII) [Huu-ay-aht First Nation] – B.C. forestry strategy approval of unsustainable volumes of logging in their territory (Tilleman and Lucas at 123); West Moberly First Nations v British Columbia (Chief Inspector of Mines), 2011 BCCA 247 (CanLII); [West Moberly FN] –permits granted for mining exploration harming traditional caribou-hunting territory (Tilleman and Lucas at 123); and Coastal First Nations v British Columbia (Environment), 2016 BCSC 34 (CanLII) (Coastal First Nations)— granting an environmental certificate to develop an oil pipeline (Tilleman and Lucas, at 124). Thus, Canada’s Indigenous peoples have standing and constitutional rights to ensure the protection of the environment, and they are usually involved in many environmental litigation cases (Tilleman and Lucas at 127).
For more information on the “Duty to Consult”, please visit the Alberta Civil Liberties Research Centre’s Website (Evelyn Tang and Sarah Burton, “Indigenous Land Stewardship”).