Last summer Ecuador passed a new constitution granting rights
to nature. “Nature, or Pachamama, where life is reproduced and exists,
has the right to exist, persist, maintain and regenerate its vital
cycles, structure, functions and its processes in evolution,” the
constitution states.
A few countries have granted rights to animals. More than 100 have
recognized a healthy environment as a human right. About a dozen
American municipalities have adopted laws recognizing legal rights for
nature.
But nature with its own constitutional rights? That’s new. It may
seem abstract to the point of meaninglessness—another example of
humans trying to apply their imperfect systems to nature’s perfect
ones. But rights have always been our attempt to make abstract values
concrete in law. Which makes me wonder: If Canadians are such big
nature lovers, why don’t trees have legal standing in this country?
It’s nearly impossible to prosecute under Canadian environmental
law, unless a human happens to lose money because of pollution. The
sunken ship Shovel Master, with its 70,000 litres of underwater diesel
off Yarmouth, is an example. Until the diesel leaches into the
ecosystem, kills the fish, and fishers can prove they lost income over
it, the public can do nothing about it.
When it comes to having a strong environmental legal framework in
place, Nova Scotia is at the bottom of a large barrel, underneath Upper
Canada. Tamara Lorincz, executive director of the Nova Scotia
Environment Network, is working with her members to push us over some
of the other provinces to join Ontario and Quebec, as well as the Yukon
and Northwest Territories. Those provinces and territories have made a
healthy environment a human right.
“In Ontario they have an environmental commissioner, an
environmental tribunal process and an environmental bill of rights,”
Lorincz says. She feels that an environmental bill of rights, the first
step in legally protecting the environment, should result from the
coming provincial election.
“With an environmental bill of rights, citizens can bring complaints
directly; they have access to the review tribunal, the right to notice,
to appeal and to standing,” she says. “Here we have very limited
channels to complain. We have to go through freedom of information
requests to find out where project proposals stand.” Ontario has a
comprehensive public database of environmentally significant proposals,
and an annual arms-length State of the Environment report.
Should Lorincz get her provincial wishes, Canada will still lag
behind much of the world. Environmentalists across the country have
been pushing all parties to enact environmental rights legislation
without success.
John Swaigen, a pioneering Canadian environmental lawyer, worked
closely with the NDP to draft a constitutional amendment giving rights
to nature during the last federal election. But, he says, “I never did
hear what the outcome was.” The election before last, the Green Party
proposed giving Canadians the “right to a clean and healthy
environment.” But the issue was never seriously debated.
Swaigen sees little difference between “rights to nature” and “human
rights to a healthy environment” approaches in practical terms, but
says “nature can’t speak for itself, so the difficulty with giving it
rights is humans with anthropocentric views speak for it. But I’d like
to see both in place.”
Margo Venton, a Vancouver lawyer with Ecojustice, feels that Canada
is philosophically a long way from giving rights to nature. “Canada
does not endorse the right to a healthy environment internationally,
and has argued against human rights to clean drinking water,” Venton
says. “There is no legal right here to stop the government from
grey-brown environmental performances”—grey-brown being the opposite
of green. That’s why Ecojustice released a model Environmental Bill of
Rights and sent it to all parties last June. Every opposition party
responded favourably, but none ran a platform on it. The government
didn’t respond.
Rick Smith, executive director of Environmental Defence in Toronto,
feels that granting legal status to nature is inevitable. “In the march
of human history popular conceptions of who and what should have rights
have broadened,” he says. “We’ve gone from adult white property owners
to adding other groups: kids, women, non-whites, people who don’t own
land.”
But will having rights give the natural world a chance? Latin
American environmental policy is inspiring, but its environmental
record is not. Margo Venton says that legal rights are no
sustainability guarantee, but they are an important step. “Where rights
exist courts have overturned cases to the betterment of people and the
environment. The power of provisions for the environment is to set a
standard of conduct below which governments can’t fall.”
Send your enviro legal briefs to chrisb@thecoast.ca.
This article appears in Apr 30 – May 6, 2009.
I agree with making “a healthy environment” a right for human beings. One of the problems though is that “healthy” is a term open to interpretation. Healthy to an environmentalist is perhaps “performing as it would have without human intervention”. To a capitalist, say a forestry company, healthy might mean putting the environment back to a reasonably if not exact intact state, i.e. planting trees in wood lots. I chose some extreme examples because these are the entities that I see digging in their heels. Its like trying to come to the middle with a communist and a libertarian. They are separate and nary the two shall meet. Of course, this is just the human condition. There is always someone out there that believes the exact opposite to you – it’s only armed with reason and a willingness to compromise will anything change.
And, as I dismount from my soapbox, one final thing: Anthropomorphizing the environment as an entity that has “rights” is a little silly to me.
Matt F. Columbus, Ohio
If ‘Nature’ gains a legal status with constitutional rights and presumable access to litigation against transgressors, does it follow that ‘Nature’ will be required to be held responsible for transgressions against others? Got rights and responsibilities? That too may seem abstract to the point of meaninglessness; or maybe not.
At the risk of spiralling this conversation out of control, the following sprung to mind after reading the other comment. “If a bear sh*t in MY woods, is he responsible for cleaning it up?”
That’s excellent Matt, not out of control, but a valid point to the topic. Since it is your land you speak of, it could be asked: is the bear yours too, or is the bear a component of the environment, or is the bear it’s own entity? From the bear’s perspective, it probably regards that area as part of it’s territory, not yours. The bear could ask you if you’re responsible to clean up you’re droppings when in his woods. You say you agree with making “a healthy environment” a right for human beings. Is a healthy environment a right for the bear too? Shouldn’t the bear be an entity with rights?
You got to the core of the issue by asking what is to be defined as ‘healthy’. Humans see healthy as that which supports mankind’s needs. Nature doesn’t respect that one bit. All life on earth seems purely consequential to the non-living natural world. The inorganic natural world and the organic life it supports are two separate things although we lump them together and call the whole package Nature. Inorganic Nature will freeze over entire continents and everything on them, it will spew millions of tons of suffocating ash and carbon into the air in a single day, it will flood great areas at a time, it will reduce vast areas to hot dusty sand and dirt, it will burn the life out of thousands of acres at the drop of a lightning bolt or rip-up and knock-down anything that gets in it’s way. Maybe that is ‘Father Nature’.
Organic nature is no sweetheart either. Life feeds on life in a never-ending unrelenting battle in almost every square and cubic foot of water, dirt, and air on Earth. All life consumes life. Perhaps that is ‘Mother Nature’.
Father Nature effects Mother Nature and Mother Nature effects Father Nature. Meanwhile, Man effects both, while both effect Man. And we do the same calamities to ourselves. Nation to nation, religion to religion, tribe to tribe, family to family, and person to person; there are endless factions of us-against-them. So Man formed a sense of civil order to deal with all this ‘human condition’, as you put it. We need to protect ourselves from ourselves. Chris pointed out it isn’t perfect. I point out: it is all we have, and we are trying to make it better. So if we can treat ourselves with such endless contempt, how will the other life forms fair around us? How will the inorganic natural systems respond to Man’s activities? You know the answers. Man has the ability now to effect both Father and Mother nature, the extreme degree of this effect is new.
With that in mind, the concept of legal rights appropriated by Mother and Father nature seems to be a reasonable approach to protect them from us, just as we’ve had to do so for ourselves. It may sound silly, but really, it is just an extension of how we protect ourselves from ourselves. Our future existence depends on that protection. Yesterday, I heard David Suzuki say that Man’s real key to dominance and success has been the ability to understand the concept of the ‘future’ and act accordingly. Treating the environment as an entity is acting accordingly, and it may be silly, but only as silly as we are.
If ‘Nature as an entity’ is silly to you, then I expect you saw my first comment as crazy, and maybe it is. However, I’ll elaborate where I hoped contemplations would go; although the bear thought was good too; I was thinking in the grand scheme of things. What if Nature was regarded as a legal entity, and with that comes the capacity to be compensated for transgressions against it? That might open the need for a financial ‘account’. What if this entity charged Man for what Man took from it; you know – timber, fish, water, minerals, etc? This entity could become wealthy; hey, it already is but now in a way Man could respect. Then, if Nature destroyed a coast in Indonesia, with say a tidal wave, it could afford to compensate those survivors for the transgressions against them. What if this entity could, in return, pay Man for good things Man did for it? These are all crazy ideas, no? So is carbon trading, but it is happening.
Listen, Man is at the brink of total self-degradation, mainly due to collateral damage from his actions. We need to think differently than we have so far, to continue to survive, it is an inconvenient truth!
Fine column, Chris. We will never break out of the trap we’ve built for ourselves without re-thinking such fundamental things as ownership, legal rights, etc.
How is it that if a mill upstream pollutes the water supply of a town downstream, the town has a right to bring the mill to account, but the river, the fish, the riverine critters etc. do not?
How can I be said to “own” land that was here before me and will be here after I’m gone? Maybe it owns me.
Thanks for raising this issue. It’s really important.
Silver Donald Cameron
Kind of unrelated… but the episode of Bullshit! that deals with the downsides of recycling is quite interesting.
One longs for a truer sense of deep ecology and the abandonment of the notions that people are (rightfully, somehow) at the centre of all there is.
Yes, if only we had come, we had seen, and we had assimilated into natives – rather than conquering and killing.