Biodiversity liability risk
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Asociación Civil por la Justicia Ambiental v. Province of Entre Ríos, et al. 280
New Zealand offers another example of how Rights of Nature can manifest in the form of guardianship. In 2017, the Whanganui River which flows across North Island was granted rights emanating from legal personhood. Maori culture recognises an interconnectedness between nature and ancestry and as such promotes a form of stewardship for the natural environment. New Zealand’s law, Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, under which this case was brought, recognises this and designates the indigenous community as the guardians of the river. 275 Similarly, in Canada, the Muteshekau Shipu (Magpie River), which runs for 300km in northern Quebec, was granted legal personhood in 2021 and given nine rights, including the right to flow and the right to be safe from pollution. 276 This is the first time Canada has recognised Rights of Nature in law. The decision arose following protest from the indigenous community against proposals for a new hydroelectric dam development on the river. 277 The Rights of Nature movement means that whole habitats or ecosystems are gaining freestanding rights- based legal protections and that nature-related claims can be brought by a wider variety of actors as guardians of the natural world including indigenous communities, children and NGOs.
In 2020 a class action was filed in the Argentinian Supreme Court against a provincial and municipal government for their alleged failure to protect environmentally sensitive wetlands. The lawsuit, brought by the groups Asociación Civil por la Justicia Ambiental and Foto Ecologista de Paraná, and a class of children, argues that the Paraná Delta has its own rights. The plaintiffs ask the Court to, inter alia, declare the Paraná Delta a “subject of rights” and an essential ecosystem for mitigating and adapting to climate change. A decision has not been published yet.
INDIGENOUS RIGHTS AND PROTECTION OF NATURE
The rights of nature movement draws inspiration from indigenous worldviews that see nature as a living or spiritual being. At the same time, the codification of rights of nature in law can give recognition to Indigenous Peoples as custodians and stewards of critical natural systems. Although Indigenous People account for about four percent of the global population, they are estimated to live on land that contains 80 percent of remaining biodiversity. 281 Indigenous Peoples have been heralded widely as better stewards for ecosystems, with more equitable models of conservation acting as primary pathways for long-term conservation outcomes, particularly when upheld in wider law and policy. 282 Research by the Food and Agriculture Organisation of the United Nations (FAO) has found that indigenous and tribal territories have lower average deforestation rates than other forests in practically every Latin American country. Many indigenous territories prevent deforestation as well or better than other protected areas. For example, between 2006 and 2011, the indigenous territories in the Peruvian Amazon reduced deforestation twice as much as protected areas with similar ecological conditions and accessibility. 283 It must also be recognised that Indigenous Peoples’ connection to nature goes far beyond any bare calculus of nature preservation or ecosystem services; it is fundamental to culture, spirituality and identity.
Caso Nro. 1149-19-JP/21: Revisión de Sentencia de Acción de Protección Bosque Protector Los Cedros 278
Ecuador’s Constitutional Court ruled that plans to mine for copper and gold in ‘Los Cedros’, a protected cloud forest - home to spectacled bears, endangered frogs, dozens of rare orchid species and the brown-headed spider monkey, one of the world’s rarest primates - were unconstitutional as they violated the right of nature protected under Article 71 of the Constitution. The Court decided that mining would harm the biodiversity of the forest itself as well as the right to water and to a healthy environment for communities around the forest. 279
Legal action against the French State by NGOs Notre Affaire à Tous and POLLINIS 270
Rights of Nature
Rights of Nature is a school of thought which operates on two levels of reasoning: firstly, since human rights emanate from humanity’s existence, then so too should the rights of the natural world. Secondly, humanity’s survival is dependent on healthy ecosystems, and so protecting nature’s rights also protects human rights. The concept was first articulated in 1972, with the publication of Christopher Stone’s article, “Should trees have standing?” 273 which considered that legal personhood could be endowed upon natural beings other than humans. Of course, the concept of a non-human ‘legal person’ is not novel; the “fiction” of the corporation as a legal person is well-established. Nature’s legal personhood has only relatively recently begun to be recognised in law in certain jurisdictions. For example, in 2008 Article 71 of the Ecuador’s Constitution specifically established Rights of Nature setting out that nature “has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes”. 274
In September 2021, French NGOs Notre Affaire à Tous and POLLINIS launched the first stage of a legal action against the French state, in what the claimants describe as the first citizens’ lawsuit in the world against a state for failing to protect biodiversity. 271 The claimants allege that the French state wrongfully failed to set up a pesticide approval system that “truly protects pollinators and wildlife in general”. The claimants seek to repeal the pesticide approval process so that the most destructive can no longer be marketed, they are also seeking compensation for the systemic ecological damage suffered. In January 2022 it was reported that the claimant NGOs had received no response from the French Government and commenced a full legal appeal with the Administrative Court of Paris. 272
275 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. 276 Patrick Barkham, Should rivers have the same rights as people?, The Guardi- an, 25 July 2021. 277 Jack Graham, Canadian river wins legal rights in global push to protect nature, Reuters, 24 February 2021. 278 Review of Judgment of Action for Protection of Protective Forest Los Cedros, Corte Constitutional Del Ecuador, 1 December 2021; Patrick Greenfield, Plans to mine Ecuador forest violate rights of nature, court rules, The Guardian, 2 December 2021. 279 Patrick Greenfield, Plans to mine Ecuador forest violate rights of nature, court rules, The Guardian, 2 December 2021.
280 Climate Case Chart: Asociación Civil por la Justicia Ambiental v. Province of Entre Ríos, et al. (Delta del Paraná case), Climate Change Litigation Databas- es, Sabin Centre for Climate Change Law, 2022. 281 Recognizing Indigenous Peoples’ land interests is critical for people and nature, Worldwide Life, 22 October 2020. 282 Neil Dawson et al., The role of Indigenous peoples and local communities in effective and equitable conservation, Ecology and Society, 2021. 283 Forest governance by indigenous and tribal peoples. An opportunity for climate action in Latin America and the Caribbean, Food and Agriculture Organisation of the United Nations, 2021.
270 Chloé Gerbier and Julie Pecheur, Justice Pour Le Vivant Communication Pack, Justice Pour Le Vivant, September 2021. 271 France: Legal action against the State in the face of biodiversity collapse, Justice Pesticides, September 2021. 272 Notre Affaire à Tous et al v. French State, Justice Pesticides, 10 January 2022; Anon, Pesticides: 5 NGOs file an appeal against the State to protect biodiver- sity, California18, 10 January 2022.
273 Christopher Stone, Should trees have standing?, Southern California Law Review, 1972, referenced in European Parliament’s ‘Can Nature Get it Right?’, March 2021, p.11. 274 Constitution of the Republic of Ecuador 2008, Article 71.
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