Entry #29: Giving Legal Rights and a Voice to Mother Nature

Written by: Paulette Stenzel

Primary Source: Mariposa Paulette

Should we give rights to trees, rivers, and other entities of nature?  Indigenous people in, Ecuador, Bolivia, and New Zealand have convinced their governments to pass laws designed to protect Mother Earth.

I was introduced to the movement to protect Mother Earth through law by indigenous friends in Ecuador when I did research on sustainable development there in 2008.  To this day, I continue my conversations with them.  Ecuador is one of the most biodiverse countries in the world, and its territories include Andean mountains and valleys, Pacific coastal zones, and Amazon rain forests, and the Galapagos Islands.  The Galapagos Islands include vast numbers of endemic species, many of which are endangered.  Charles Darwin conducted research on the islands leading to his theory of evolution through natural selection.

Indigenous people view Pachamama (Mother Earth) as a living being who is at the center of all life.  In their spiritual view, humans are equal to, not superior to, other living beings.  In response to a movement led by her indigenous people, Ecuador approved a new constitution on September 28, 2008 that includes a provision giving legal rights to nature.

Ecuador’s protections for nature remind me of the words of one of my heroes from the U.S. Supreme Court:  Justice William O. Douglas.  In 1992, he wrote a (now famous) dissent in Sierra Club v. Morton asserting that trees should have “standing” (recognition under the law) to be protected and represented in U.S. courts.

The case focused on a battle over the Mineral King Valley of Sequoia National Forest in California’s Sierra.   The Sierra Club contested U.S. Forest Service’s decision to sell the fragile valley to Walt Disney Enterprises; the company wanted to build a ski resort.   The Sierra Club documented ecological and aesthetic damage that would occur to the valley.  Disney and the Forest Service argued that the Sierra Club had no “standing” to participate in the proceedings because it did not own property in the area. The first time the case reached the U.S. Supreme Court, the majority of Justices agreed with Disney and dismissed the case.

When he wrote his dissent, Douglas was influenced by the words of law Professor Christopher Stone in a 1972 essay entitled “Should Trees Have Standing?.   Stone argued rivers, trees, and other objects of nature should be protected by legally appointed guardians who can speak for them, just as guardians protect the rights of children in the U.S. court system.  Justice Douglas argued for direct protection of nature instead requiring that the Sierra Club engage in circuitous arguments demonstrating threats to economic interests.  He said that trees should have “standing.”  But, Justice Douglas stood alone in his opinion.

Therefore, the Sierra Club filed another case in a lower court.  In the second case, it asserted that Sierra Club members used the lands to hunt, fish, and camp.  Therefore, disruption of those activities would constitute an economic harm. On that basis, the Supreme Court agreed to hear the case.  In other words, the Sierra Club had “standing” to present the case because its members would suffer economic harm if Disney built the ski resort.

If the majority of the Supreme Court had agreed with Justice Douglas in the first case, the years and litigation and associated monetary costs would have been avoided.  Moreover, by following Justice Douglas’s lead, the Court would have recognized the value and interests of the environment (Mother Nature), even though the environment is not a human being (a “natural person” as lawyers say).    This would parallel the way we extend legal rights to corporations.

Since 2008, when Ecuador amended her constitution, at least two other countries have changed their laws in similar ways.  Bolivia changed its constitution in 2009 and passed laws in 2010 giving rights to Pachamama.  Protected interests include, for example, the right to continue natural cycles free from human alteration, the right to clean air and clean water, the right not to be polluted, and the to be free of genetic modification. See Bolivia enshrines natural world’s rights with equal status for Mother Earth http://www.theguardian.com/environment/2011/apr/10/bolivia-enshrines-natural-worlds-rights (Sept. 10, 2011).

In 2012, after lengthy litigation, the government of New Zealand and the Whanganui River Iwi (Maori) people signed an agreement to protect the Whanganui River, the third largest river in the country.   The river was given the status of an “integrated, living whole.”   Two guardians are appointed, one by Iwi people and another by the New Zealand government, and they are charged with protecting those interests.  To learn more, see http://voices.nationalgeographic.com/2012/09/04/a-river-in-new-zealand-gets-a-legal-voice/  (Sept. 4, 2012).

Have these efforts by Ecuador, Bolivia, and the Iwi people of New Zealand led to significant change and strong protection of nature?  No.  Yet, the symbolism and first steps taken by Ecuador, Bolivia, and New Zealand go far beyond what we have done in the United States.

Copyright ©2015 by Paulette L. Stenzel for text and photographs.

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Paulette Stenzel
I am a mom, teacher, learner, writer, lawyer, violinist, environmentalist in process, traveler, and avid reader. My professional title is Professor of Sustainability and International Business Law, and my passions are interwoven with my professional work in sustainability, Fair Trade, microfinance, and related areas.