Finding nature's voice

FINDING NATURE’S VOICE How does giving legal rights or legal personhood to nature help protect the world we hold dear?

Dr Tineke Lambooy explains

A WHALE SWIMS BENEATH THE GOLDEN GATE BRIDGE, SAN FRANCISCO

T

he Whanganui river is as beautiful

In 2017, this symbiotic relationship was recog-

a vision of the natural environment

nised in New Zealand law as the Whanganui

as you’ll find. Nestled among the

became the first river in the world to be given

towering cliffs, lush forests, and

legal personality. In the settlement of a dis-

picturesque waterfalls of New Zealand’s

pute for which the Māori tribes had fought

Whanganui National Park, it flows from the

for more than 100 years, the river system was

mountains of the country’s central North

recognised as an ‘indivisible and living whole

Island through to the Tasman Sea. For the

compromising the Whanganui River from the

Māori tribes who live along its banks the

mountains to the sea, incorporating its

river has always been a spiritual lifeblood,

tributaries and its physical and metaphysical

an ancestor or ‘person’ with whom they

elements’. Two guardians were appointed

coexist in harmony. They have a saying to

to act on behalf of the Whanganui, one from

that effect: ‘Ko au te awa, ko te awa ko au’ –

the crown and one from the Whanganui iwi

I am the river and the river is me.

tribe; any future decisions affecting the river must recognise its legal status, and its health and wellbeing.

02

C I T I Z E N Z E R O ——— I S S U E O N E

The settlement is just one example of a growing number where the natural environment is being given legal rights allowing people to campaign on its behalf – others include the granting of legal personhood to Canada’s Magpie River, Columbia’s Supreme Court granting rights of nature to the Colombian part of the Amazon Forest, local protection rights for whales and dolphins swimming near San Francisco in the US, and Argentina’s Supreme Court acknowledging the legal personality of Sandra, an orangutan who was moved from an Argentinian zoo to the Center for Great Apes in Florida as a result of the decision.

RIGHTS OF NATURE The rights of nature movement represents a paradigm shift in our attitudes towards, and relationships with, nature. In recent human history our actions have been largely influenced by our own benefits and defined

“Legally, there are many ways in which rights of nature are being granted: constitutional, national law, court decision, local regulation, policy, or indigenous law”

by societal and economic development; nature is a resource from which we can take,

laws, rules, and rights [varied in different

and elements of the natural world are ob-

countries and jurisdictions] giving elements

jects over which people can make decisions.

of the natural environment – mountains,

Unlike companies and public entities, which

forests, rivers, animals, and plants – legal

generally have autonomous legal standing

standing, rights, or personhood. Proponents

so they can participate in public and private

recognise that the natural environment has

decision making, there has never been

the right to legal representation by a guardian

a legal or institutionalised voice of nature

who may act on its behalf, so as to secure the

that gives it the same power.

highest level of environmental protection against the challenges we collectively face.

But, in the context of increasing biodiversity and ecosystem loss, pollution, and the impacts

When Dr Tineke Lambooy read about the

of climate change, the trend to grant or

Whanganui river case in 2017, she researched

acknowledge rights of nature represents

the subject in more detail, it being the

a significant and potentially powerful moment of change. It involves the introduction of new

C I T I Z E N Z E R O ——— I S S U E O N E

03

“Environmental laws have an anthropocentric view of nature and natural resources”

perfect meeting point for her passion for

Since 2017, rights of nature has been another

nature and professional experience in corpo-

focus area. From 2020-2022, Dr Lambooy

rate law and sustainability. Dr Lambooy is

worked on a research paper, Putting the

a Professor of Corporate Law at Nyenrode

rights of nature on the map. A quantitative

Business University in the Netherlands

analysis of rights of nature initiatives across

where she focuses on corporate law, corpo-

the world. The paper was published in the

rate governance, and corporate social

Journal of Maps (2022). It considered in

responsibility; she has also developed the

more detail the rise of rights of nature and

Circular Economy and Sustainable

built a comprehensive database of initia-

Development programme at the university.

tives to date. The research project was

Her research covers themes such as corpo-

developed and conducted together with

rate governance and strategy, Environmental,

Alex Putzer, Ronald Jeurissen and Eunsu

Social and Governance (ESG), the UN’s

Kim. The paper, which sets out to close the

Sustainable Development Goals (SDGs),

knowledge gap around the subject and

human rights, climate change, and biodiver-

inform academics, policymakers, legislators,

sity and ecosystems.

judges, and researchers, identified and analysed 409 initiatives in 39 countries.

04

C I T I Z E N Z E R O ——— I S S U E O N E

IN 2008 ECUADOR INTRODUCED RIGHTS OF NATURE INTO ITS CONSTITUTION

Dr Lambooy joined us to discuss the rise of rights of nature and her research, as well as her involvement in building the case for rights of nature for the Dutch Wadden Sea, a globally unique geological and ecological site listed by UNESCO as World Heritage and an EU-designated Natura 2000.

“The existing environment provides a framework for the protection of nature,” says Dr Lambooy, discussing the current legal landscape. “There are many international treaties such as the Convention for Biological Diversity, treaties applicable to the Arctic and Antarctic regions, wetlands, the ozone layer, and to mitigate the impact of dangerous

THE MAR MENOR, SPAIN PHOTO: NASA

MAR MENOR For several decades the Mar Menor, the largest saltwater lagoon in both Spain and Europe, was subjected to significant pollution and ecological damage. In 2016, extreme eutrophication – extreme algae growth – turned water green and killed 85% of the seagrass. Thousands of fish, unable to breath, were beached on the shore.

After a campaign involving more than 640,000 people, the Spanish Parliament granted legal personality to Mar Menor, codifying its right to exist as an ecosystem and to protection, conservation, and restoration.

C I T I Z E N Z E R O ——— I S S U E O N E

05

‘Ko au te awa, ko te awa ko au’ – I am the river and the river is me

— WHANGANUI TRIBES

WHANGANUI RIVER, NEW ZEALAND 06

C I T I Z E N Z E R O ——— I S S U E O N E

chemicals. The UN only last year declared that everyone has a right to a clean and healthy environment and, through the UN’s 2009 Harmony with Nature programme, member states acknowledged that the Earth and its ecosystems are home to humankind and that we need to protect them.

“These high level treaties are concluded between states, which have to then implement them into local legislation,” she continues. “As a result, countries worldwide have implemented environmental laws, nature protection laws, human rights laws, rights laws, and more into their national legal systems. However, enforcement is problematic for numerous reasons. Modern environmental laws have an anthropocentric view of nature and natural resources – just look at the discussions in Europe around banning glyphosate and pesticides, the main arguments I hear are whether they’re dangerous for us rather than considering animals or the local environment. And that’s the problem. We say it’s environmental law, but it’s not really about the environment, it’s about us, our health, and our wellbeing. Rights of nature essentially fills that gap.”

A GROWING MOVEMENT While gaining wider acceptance recently, the idea of giving legal rights to nature isn’t a new concept. The term has its origins in a landmark article written by Professor Christoper Stone, Should Trees Have

Standing?: Towards Legal Rights for Natural Objects. Stone’s piece, written in 1972, focused on the Sierra Club v Morton legal case in which US environmental organisation Sierra Club sought to block the C I T I Z E N Z E R O ——— I S S U E O N E

07

example, rights of nature are an underlying norm written into the constitution, whereas in the US, we identified around 170 initiatives development of a ski resort at Mineral King valley in the Sierra Nevada Mountains.

While the majority of the court rejected this lawsuit, the case prompted a famous dissent by judge Justice William O. Douglas who referenced Stone and suggested that, in response to ecological concerns, environmental objects should be granted legal personhood by the public.

of rights of nature, of which most concern local regulations. In those cases, every individual citizen has the right to act on behalf of the nature stipulated in the regulation.”

As a recent example, Dr Lambooy cites Spain’s Mar Menor, one of Europe’s largest and most endangered saltwater lagoons, being recognised as a legal person by national law in 2022. Expansion of tourism around the Mar

The subject was resurrected in the early 2000s when, in 2006, the small Pennsylvanian town of Tamaqua Borough drafted a rights of nature law to prevent the dumping of toxic waste into the community. In 2008 Ecuador introduced rights of nature into its constitution, to date, the only constitution in the word to establish rights of nature. Since then, many national and local laws on rights of nature have been passed, including in the US, Canada and South America, Australia, and in Europe. Also, rights of nature have been acknowledged by courts, including in Bangladesh, India and Colombia.

In the research project for the Journal of Maps, 409 cases were identified worldwide, of which two thirds had been granted, some had been rejected and the remainder were ongoing. Says Dr Lambooy: “Legally, there are many ways in which rights of nature are being granted: in the constitution, national law, indigenous law or local regulation, by a court decision or through policy. In Ecuador, for

Menor and agricultural and livestock operations washing water contaminated with fertilisers and pesticides into the lagoon had impacted its ecosystem and caused eutrophication, a process in which excessive richness of nutrients as a result of run-off from land causes dense plant and algal growth that kills wildlife. More than 640,000 people backed the campaign to recognise Mar Menor’s legal personality. As a result of the decision, three bodies now look after the Mar Menor – a commission of representatives, a scientific commision, and a supervising commission.

Also, citizens have the right to act on behalf of the lagoon and require enforcement of its legal status.

RIGHTS OF THE WADDEN SEA In 2022, Dr Lambooy was asked a question by the Wadden Academy in the Netherlands: ‘could the rights of nature approach for the Dutch part of the Wadden Sea contribute to better protection of the unique natural values of the Wadden Sea?’. The Wadden Sea is a tidal coast area characterised by unique geological and ecological processes and biodiversity that, despite having protected

08

C I T I Z E N Z E R O ——— I S S U E O N E

“We identified 409 cases worldwide, of which two thirds had been granted”

THE WADDEN SEA, THE NETHERLANDS

status under international treaties, European

producer in the Netherlands was also

and national laws, and policy documents,

revealed to have been operating for 10 years

is at risk of damage to its ecosystem. She

with an invalid licence that saw it discharg-

conducted the research together with Tessa

ing similar chemicals as in the Mar Menor.

van Soest and Ignace Breemer.

There’s also noise pollution because the Ministry of Defense practices in the area,

“It has a UNESCO World Heritage status

damage from containers lost by container

and is a designated Natura 2000 site

vessels that navigate just north of the

[a network of nature protection areas in

Wadden Sea, and overfishing. To come back

the European Union],” says Dr Lambooy.

to my earlier point, we have the laws and

“However, it faces several threats. Only

regulations in place, but they’re not working

recently it was published that there are

in practice.

60 licences for companies to discharge chemicals into the water – the largest milk C I T I Z E N Z E R O ——— I S S U E O N E

09

DR TINEKE LAMBOOY “Our government still sees the Wadden Sea as functional, prioritising its economic use above the intrinsic value of nature,” she continues. “Because the Wadden Sea is Natura 2000 designated and UNESCO World Heritage, our duty is to protect that environment and not allow anything harmful – those decisions have been made through that recognition. Yet, for every new economic or

“The main goal is that people look differently at their relationship with nature”

recreational decision, the interests of people versus nature are weighed again, which shouldn’t be happening. Through my work

Wadden Sea’. It also noted that ‘from time to

on this, I challenge people by posing the

time, economic activities are allowed that

question: how do you see the Wadden Sea?

raise questions regarding conformity with

As a basin of water we can exploit for busi-

existing laws and policies’. It concluded that

ness, run pipes through and take resources

a rights of nature approach to the Wadden

from, or as a unique world heritage system

Sea was possible, and that if it were to be

that’s home to 14 million migratory birds

granted legal personality it would be in the

that won’t survive if we destroy or pollute

form of a legal person with a clear mandate

their habitat.”

that reflected the commitments already accepted by the Netherlands. As a result of

Dr Lambooy’s study, Granting Rights of Nature

the work, two political parties in the country

to the Wadden Sea, revealed ‘extreme frag-

have begun making a legislative proposal to

mentation and complexity in the current

grant legal personality to the Wadden Sea,

environmental governance structure. Many

and a legislative proposal to include rights

organisations are involved in the design and

of nature in the Dutch constitution.

implementation of management measures and processes of decision making relating to the

Such a broad scope of international initiatives, and the specific legal jurisdictions of each country, make it difficult to accurately

10

C I T I Z E N Z E R O ——— I S S U E O N E

judge the effectiveness of rights of nature decisions. “You have to consider each case separately and assess the functioning in that country. For new rights of nature, the best way to create such rights depends on the local legal system,” says Dr Lambooy.

“Ultimately, the main goal of introducing and adopting rights of nature is that people look differently at their relationship with nature.

The rights of nature movement contributes vastly to changing people’s views on any nature in their region. If we create a situation in which nature has a legal voice and hence can influence decisions by public institutions and private companies, we can protect the remaining nature and hopefully give it a chance to be restored and regenerate. In this way, we can understand nature as having intrinsic value and acknowledge that nature can coexist with us on our planet. That would constitute a systemic change in our thinking

SANDRA Sandra was born at a German zoo in 1986 and, in 1994, sent to Buenos

concerning ourselves and nature.

Aires. She gave birth to a male infant,

“It’s also about future generations,” she adds.

maternally interested in caring for

“Look at the fact that we’ve already transgressed six of the nine Planetary Boundaries: climate change, biosphere integrity, freshwater availability, land use, nutrient pollution, and novel entities. We’ve only one planet.

There really aren’t any other options for us and it gives me hope to work on this topic.

It’s an innovative legal approach and an innovative democratic approach because it involves citizens in its enforcement, and I think it’s really important that we’re now raising these questions that have become more and more urgent for the last 30 years or more.”

Gembira, in Argentina but was not him. Gembira was eventually sent to a Chinese zoo, leaving Sandra to live alone for many years in Buenos Aires until a local animal welfare group concerned for her welfare, took her case to court to claim personhood rights. In 2015 judge Elena Liberatori declared Sandra is legally not an animal, but a non-human person entitled to legal rights and better living conditions. Liberatori said “with that ruling I wanted to tell society something new, that animals are sentient beings and that the first right they have is our obligation to respect them”.

C I T I Z E N Z E R O ——— I S S U E O N E

11

citizenzero.online