Advancing the Legal Rights of Nature in a Time of Environmental Crisis
The first “rights of nature” law was enacted in a Pennsylvania community in 2006, followed two years later by Ecuador’s enshrinement of that principle in its constitution, the first country to do so. This discussion covers how Indigenous people, communities, countries, and courts have continued the struggle to secure the highest legal protections for nature and how you can become part of this growing movement. With Mari Margil, who was Associate Director of the Community Environmental Legal Defense Fund at the time of this conversation and a leading figure in the global movement to enshrine Rights of Nature in jurisprudence; and Bill Twist, Co-Founder and CEO of the Pachamama Alliance.
MARI: My name is Mari Margil with the Community Environmental Legal Defense Fund. I’m pleased to be sharing the stage today with Bill Twist of the Pachamama Alliance.
What we’re hoping to do today is share with you how the Rights of Nature movement has developed and evolved. Let’s get started, Bill.
BILL: Thank you. Mari really knows this subject inside out. Pachamama Alliance had the good fortune to be involved through Bioneers originally, but then be involved with rights of nature being introduced into the Ecuadorian Constitution in 2008. So I’m going to be the historian, telling the history of how this got started and where the movement around rights of nature exists right now. And then Mari will spend more time filling people in on some of the specifics of what’s going on around the world.
In 2006, Thomas Linzey, who’s the founder of the Community Environmental Legal Defense Fund spoke here at Bioneers, talked about work that they had done, where they had introduced a Rights of Nature provision in rural Pennsylvania, and it had been passed. The first time ever that legal language had been put in place anywhere actually enshrining nature as a rights-bearing entity.
And out of that Thomas did a democracy school, and it’s something that the Community Environmental Legal Defense Fund had developed as a way of presenting rights of nature within a legal environment. And someone who works with me had showed me the handbook for this democracy school. I read through the handbook and I thought, God, this is amazing, this thing about rights of nature.
Pachamama Alliance had been working for years in Ecuador, with Indigenous People. Ecuador was writing a new constitution from ground zero. And I remember being inspired by the Democracy School, and thinking, if the United States could write a constitution from ground zero, what would we do? We would put rights of nature into it. We were trying to get rights of nature in it.
Ecuador’s really unique in that it’s a country with a huge indigenous population. Its vision for itself is really grounded still in indigenous cosmovision. So the work that was being done around the constitution was to put a constitution in place that enshrined this idea of sumak kawsay, which in Quichuan language means harmony with nature. It’s like mutually enhancing human-Earth relationship. That’s the vision of this country.
So I thought, they’re writing a new constitution, they should put rights of nature in it, which I knew nothing about. And so I called Thomas Linzey out of the blue and said, “Hey, I’m Bill Twist. I’m working down in Ecuador. Why don’t you come down to Ecuador and work on putting rights of nature in their constitution?” And basically he said, “I’ll come down there if you can get people who are in the process, who are really playing in this process, to understand it, and want to be engaged in the conversation.”
So I went back to the groups that we were working with in Ecuador and was able to get people involved, talking with Indigenous People, talking with people who were involved in the constitutional process who got really intrigued by the idea. And out of that, Thomas did come down. And then Mari came down with Thomas. And CELDF played a critical role in crafting language, working with the constitutional assembly process, and putting the language in place, this strange idea that nature should have rights and we should put it into a form of jurisprudence.
One of the biggest hurdles to get over was the indigenous opposition to the idea in Ecuador. It just sounded crazy to them. It sounds like another white man’s idea of how to deal with the world that was just so totally off, that nature needed to have people say it had rights. To them, it’s clear nature is a living being, it’s a subject. The whole world is this animated place that they’re living in. And so to think that we were going to make that right and to honor that understanding that they already had, that we needed to put it into our legal system just sounded crazy. So they were one of the biggest hurdles initially. They were really strongly opposed until they saw — and I think it occurred fairly quickly to them — that the biggest threat to their world was this structure of rights that had been created and imposed on them, and the thought that we could create property, and we could create rules as to how you could use property. So when they saw that it was almost like a skillful Aikido move, to use the tool that was being used to destroy the world and to deny them rights, to put rights of nature into that structure of jurisprudence, they could see this is actually a really smart thing to do. And the indigenous movement got behind it.
Thomas and Mari played a huge role down there. They participated in the constitutional assembly drafting process, and there were big rooms of people, all the delegates, and Thomas and Mari were drafting and diagraming, but there was something really special. Thomas and Mari and CELDF was a key part of this, but it couldn’t have happened anywhere but in Ecuador. The country has such a strong history and its vision for the country so deeply embedded in honoring and protecting the natural world. The people who were running the constitutional assembly, this man Alberto Acosta, is a brilliant economist, environmentalist, and he was the president of the constitutional assembly, and he picked up on this idea. He’s the one who really skillfully got the Indigenous People involved, got the business community involved. So there wasn’t any place else in the world where it could have happened. The conditions were absolutely right in Ecuador, with the indigenous vision and really skillful people who were part of the constitution assembly.
So the rights of nature did get enshrined in that constitution. Since then there have been a number of cases brought in Ecuador, some that were ruled against, some that clearly should have been ruled in favor of rights of nature were ruled against. The government asserted national security interests to ignore this provision of the constitution when it dealt with a big, huge mining project. The mining project still hadn’t happened, but the case was lost. There’s been a number of cases won, and Ecuador has been just a great example and a great building block for this movement.
I wanted to share one of the things that happened after the rights of nature did get passed in the constitution in 2008. This was just an isolated example in Ecuador. There had been some discussions in Bolivia about rights of Mother Earth, but it hadn’t turned into actual law yet. There had been some proposals to introduce the idea of universal rights for Mother Earth at the United Nations, but it hadn’t been accepted yet. But Thomas and Mari had been doing work on rights of nature, even before Ecuador, around the world. They had a real network of people in Australia, South Africa, India, Europe, United States that had been working on this idea of rights of nature, all inspired by Ecuador.
Thomas Linzey had the idea that what we really need to do is to pull this together as a movement somehow. He called together a group of people together to have a meeting in Ecuador, and so in 2010, there was a meeting in Ecuador. Mari was at the meeting, Thomas was at the meeting. There were about 25 of us who were there to create what’s now known as the Global Alliance for the Rights of Nature. And it was really Thomas’ idea that we need to build on what had been created with the constitution in Ecuador.
The meeting was at Hacienda Manteles at the foot of Mama Tungurahua — Tungurahua is a huge, active volcano in Ecuador. And when we were there, it was an absolutely crystal clear day, and so we were right at the foot of this volcano that was letting steam off. It wasn’t pouring out lava, fortunately, but it was letting steam off. There was this huge energy field that we were in.
So, we the people and organizations meeting at the Hacienda Manteles at the foot of Mama Tungurahua from the 2nd to the 5th of September (“the Founding Members”); Recognizing that we are all part of an indivisible living Earth community of interrelated and interdependent beings; Conscious of being complemented by the presence of the lizard, the hummingbird, water, fire, earth, moon, sky and other beings to create an integral Earth Community.
I love that. So there were Indigenous People who were part of this, and they insisted that we weren’t just some human beings trying to do something, but it was the spirit of nature itself working with something significant. Ancient native communities have always defended Mother Earth’s rights, because those rights are innate to their cosmovision.
Motivated by our love of Mother Earth and all beings and by a vision of creating societies that live in harmony with Nature and are socially just and spiritually fulfilling. . .Believing that the universal recognition and implementation of the rights of nature is essential to achieve that vision and to avert catastrophic harm to humanity and life as we know it; We hereby establish the Global Alliance for the Rights of Nature.
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It was a significant moment. I remember we had a discussion then, and people were saying, this idea — rights of nature — had been now in the constitution of Ecuador; this is an idea whose time has come. Remembering the famous Victor Hugo quote, that nothing is so powerful as an idea whose time has come. And we were having this discussion about whether this is an idea whose time has come or not.
I remember saying, it’s not yet. It’s not an idea whose time has come. When an idea’s time has come, it has an energy of its own. And it was clear that the people there needed to be still driving this.
The real question is: How do you make an idea’s time come? And I remember talking about that with the people, and I’d be like, what are we going to do with this? We’ve got to do something with it.
Mari and I were in Ecuador just a couple of weeks ago at the 10th anniversary of the rights of nature being put into Ecuador’s constitution. And a lot of the same people who had been at Manteles were there, and this conference was amazing. It was just a really compelling, exciting conference as to what’s happening around the world with regards to rights of nature.
So I just wanted to report that where it is now, I think it is an idea whose time has come. It’s something that is really picking up momentum. It’s so consistent with the understanding that’s emerging in the world now, that the world is not out there as some object and we’re over here. Rights of nature is something that has to be an integral part of the way we deal with the world. So that’s the historical update of where we are now. Thank you.
MARI: I’ll pick up on where Bill left off: this idea of a time whose come. And I think you know an idea’s a good one when you say it and other people end up picking it up and thinking it’s theirs. We’re starting to see that happen. People who were not touched by us in any way, or members of the Global Alliance in any way, are just picking this up on their own. You begin to see that, indeed, it is an idea whose time is coming or has come.
What we’re starting to see is that it’s not just people, not just civil society groups or Indigenous organizations and tribal nations, all of whom are engaging in the rights of nature — we’re also starting to see governments and courts on their own begin to pick this up.
I think part of the reason they’re starting to do it is that we’re in a time of environmental crisis. We have ecosystem collapse occurring. Today the rate of species extinction is 1,000 to 10,000 times faster than natural background rates. And of course climate change, which is related to everything, is accelerating far faster than even the most optimistic scientific models predicted. So we’re in a time of overlapping environmental crises that are fueling each other. And so a need for a fundamental shift in human kind’s relationship with the natural world is building, this understanding that we need to make a significant change in how we govern ourselves toward the natural world.
Now 10 years ago in Ecuador, these crises were also happening, and 12 years ago in Tamaqua Borough in Pennsylvania, which Bill talked about. Tamaqua was the very first place in the world that passed a rights of nature law, and we were involved in that. And now today across the United States, there’s more than three dozen communities that have established the rights of nature in law.
And that work is growing, much in the footsteps of past people’s movements in this and other countries. We’re starting to see this build up from the grassroots in the United States, which is a very different pathway than what Ecuador took. Ecuador obviously put it into their national constitution, an extraordinary achievement, and it’s opened up so many doors to this idea coming, but here in the United States we understand that we can’t walk into the halls of Congress and say, “Hey, we need a rights of nature constitutional amendment.” That’s simply not going to happen. But what we are seeing is the ability to to build it upward from the grassroots, starting with lawmaking locally and driving upward to ultimately affect national constitution change. So not only do we have communities in 10 states across this country with rights of nature laws in place, we’re also now having those communities join together in what we call community rights networks, in places like Oregon, Ohio and New Hampshire. People are joining together to advance constitutional amendments into state constitutions, so that would help enshrine rights of nature at the state level. That, I think, is the pathway we’re seeing to build rights of nature in the United States.
Today in countries around the world — Ecuador the exception — nature is treated as rightless. It has no legal rights. It’s treated as property or an item of commerce. The law sees things in a binary fashion, either as rights bearing or rightless. Rights bearing is generally treated — we call them persons. You and I are persons, corporations are persons, other entities happen to find us being legal persons under the law. So you’re either a person with rights or you’re not. Nature is in the rightless property bucket, which means that we can’t today go into court of law here in the United States and say, I’m defending the rights of a river or the rights of a forest because there are no rights that exist for those ecosystems within our structure of law. The courts can’t defend those rights because they don’t yet exist in written law.
So today we regulate the use of nature. That’s why we can frack through aquifers. That’s why we can blow the tops off of mountains in West Virginia. That’s why we’re able to do these massive corporate water withdrawals by bottled water companies, because our environmental laws regulate the use of the natural world. That’s a very anthropocentric view of nature. And the major US environmental laws — Clean Air Act, Clean Water Act — now in place 40 or 50 years, those have been mirrored around the world. So we have structures of law around the world which are all based on the same framework, the same premise of how nature is something other than rights bearing.
And the result of course is what we’re seeing, which is ecosystem and species collapse, we’re seeing climate change advance, and all of these different indicators that we are now worse off environmentally speaking than we were two generations ago. And something fundamental needs to shift if we’re going to make any kind of change. This is that kind of shift.
And in one of the rooms that we were in in Montecristi meeting with delegates to Ecuador’s constituent assembly, we also met with lawyers who were advising them on how to draft their new constitution, and it was a both fascinating and frustrating conversation. I say that because we were introducing this idea to them, explaining how it had begun to advance the United States, and they said, “Well you can’t do that.” And we said, “Well, what do you mean?” And they said, “You can’t do that; nature doesn’t have rights; you can’t put rights of nature into the constitution.” And we said, “Well, why not?” As Bill said, they were starting from ground zero, blank page, why can’t they do anything the hell they want? And they said, “No, you can’t do that; that’s not how nature is treated under legal systems.”
And so we had to have a really frank conversation about past people’s movements. We talked about how abolitionists in the United States, in England and other countries, their goal was to move that which was treated as property under the law, i.e., enslaved people, transform them from being property to being rights bearing. And how the suffrage and women’s rights movements in different countries transformed women, which were treated as property of their husbands or fathers, transformed them from being considered property under the law to being rights bearing. And so nature today is in that same bucket. It needs to be transformed into being rights bearing to gain the highest level of legal protection that we have in our laws, which are legal rights. Our highest protection of the law is legal rights that you and I all have in the United States under the Bill of Rights. And sometimes it might feel like we don’t have them, but they’re at least on paper, people.
So that’s really the conversation that we had to have, not only with the lawyers, but with the delegates as well, which is how to transform something. It’s been done before. The body of legal rights has grown; it’s expanded to include people who were not considered to be people, who were not considered to be rights bearing, to move them into that category of being a rights holder. And so we had that conversation.
Bill told the story so beautifully about what happened in Ecuador. And today, Ecuador indeed is the first country in the world to recognize the rights of nature in its constitution. Bolivia came next. They have their law of the rights of Mother Earth. And now we have other things that have happened as well. I wanted to share some of that with you.
So one of the ways that we know an idea’s time has come is when others are picking up that idea and considering it and taking it as their own. In 2016, Colombia’s Constitution Court, their highest court in that country, was considering a case for Rio Atrato (the Atrato River) which is a heavily devastated ecosystem due to mining and other activities. The river basin is home to Indigenous Peoples who are being severely impacted by the pollution and impact on the river. And they were considering a case about protecting the river. In Colombia, there was no national rights of nature law. And the constitution court of Colombia essentially looked outside of the national boundaries of their own country, and they took in what’s happening within the international community. What can we look to to help protect this river, because clearly conventional environmental laws are not doing the job. And they, for the very first time, recognized that an ecosystem in Colombia has legal rights.
It’s extraordinary because they’re not basing it on their own national law. Instead they speak about looking out to the international community and seeing what’s the best thing happening out there that we can bring here at home. And so I wanted to read you just an excerpt from that very long decision, but it’s a terrific decision. The court said that the Rio Atrato possesses rights to “protection, conservation, maintenance, and restoration.” And the court explained its decision this way: “A new legal approach has been developed at the international level whose central premise is the relationship of profound unity and interdependence between nature and human species, a new socio-legal understanding in which nature must be taken seriously and with full rights. That is as a subject of rights.” And they went on to say: “It is the human populations that are dependent on the natural world and not the opposite, and that they (meaning us) — they must assume the consequences of their actions and omissions with nature, with the aim of achieving a respectful transformation with the natural world and environment as has happened before with civil and political rights.”
So the court not only is taking rights of nature in, they’re putting in the context of other people’s movements as well, that had to transform those considered rightless to become rights bearing.
In some ways, the constitution court of Colombia has done a better job than some of the Ecuador courts at explaining why rights of nature is important. Bill explained how the prior presidential Correa administration didn’t really embrace the rights of nature when it was put into Ecuador’s constitution. There’s been essentially a void. There was no legislation in Ecuador to say how are we going to implement this constitution provision; what steps do we need to take? And in the void, all of these pieces of litigation have gone forward, but fortunately we’re also beginning to see some movement into things like their environmental code of regulations. They are starting to see the rights of nature move its way into that. They’re starting to see it move into procedural law. This stuff takes time to develop and evolve, and Ecuador is not only a great example but also a laboratory that other places, other communities, other countries are looking to.
And I can tell you that the moment Ecuador occurred — so September 28th, 2008 — we started getting phone calls from different places. The first call that we got was from Nepal. They had a constituent assembly in place, just like Ecuador had. They were coming out of a civil war and were beginning to draft a constitution, which was put into place in 2015. Nepal, of course, is home to Mt. Everest, the tallest mountain in the world, and as you may or may not know, the Himalaya is the fastest warming mountain range on Earth. The Himalayas are in the north of Nepal, so literally everything is downstream from that. With the erratic rainfall coming from climate change, with this melting that’s causing glacier bursts, and with climate refugees, you have all these problems that are occurring in a very agrarian society so dependent on water that they said: “We need really to do something about climate change here; can rights of nature apply?”
We have been working there for almost 10 years now, and have been there a number of times to meet with their constituent assembly when it was drafting the constitution. And now since their Constitution is in place, we’ve met with members of parliament on climate change to talk about establishing the rights of nature in Nepal’s Constitution — particularly rights of the Himalaya, so that the Himalaya have the right to be free from human-caused global warming pollution, and the people of Nepal have the right to a climate, a healthy climate free from human-caused global warming pollution.
Nepal is becoming a real frontline leader within the global grassroots, and some smaller nations that don’t have much political strength are joining forces to say we have to fundamentally shift our relationship with the natural world and advance rights of nature, right to climate, right of the Himalayas. That work has been going on for almost 10 years now.
Other places are advancing rights of nature today. In India, last year a state high court in the state of Uttarakhand issued two decisions and a third one this year on the rights of nature. Much like in Colombia, there’s no national rights of nature law in India. And so the court, very similar to Colombia, looked outside of its own national boundaries and said, “What’s going on out there that we can bring here?”
And what they did is recognize that the Ganges (or Mother Ganga, as they call it) and the Yamuna Rivers have legal rights to protection, conservation, restoration. This was a necessity because conventional environmental laws were unable to protect those rivers which are facing significant devastation. This year on the Fourth of July, they issued a third decision, and that decision recognized rights of the animal kingdom, rights of species within this state in India. And so we’re starting to see that evolution in jurisprudence in that absence of actual lawmaking. They’re taking law from other places and putting it in place, which is extraordinary.
We’ve been working there on a national law, to write the national Ganga River Rights Act. We think those court decisions from the high court are going to boost that effort to put through national legislation, which the court said was necessary to happen nationwide. So that’s building.
Another place in which we’ve been doing work is Australia. The Great Barrier Reef, the largest coral reef on Earth — you can see it from space — is dying. We teamed up with the Australia Earth Laws Alliance, which has been working on bringing rights of nature to Australia, to develop the Great Barrier Reef Rights campaign. We developed model local, state, and national constitution frameworks to recognize rights of the reef: Model laws that people can take in their community, in their state of Queensland, and then at the national level to recognize fundamental rights of the reef and the people of Australia to a healthy, thriving reef ecosystem.
All of this work has been very much about people. It’s very much, some have said, a codification of indigenous values. Indigenous Peoples were extremely involved and pivotal in Ecuador. They’ve been very involved in work in other places like Nepal, like in India. They’ve been involved in the Great Barrier Reef campaign in Australia. They’ve also been very involved and active here in the States.
We began working with the Ho-Chunk Nation which is based in Wisconsin, formerly known as the Winnebago, to move rights of nature into their tribal constitution. Several years ago they took a first vote on that. Just three or four weeks ago in September, their general council took another vote on it to establish and enshrine the rights of nature in their tribal constitution. They need to take a second vote to ratify, but if in fact it is ratified, they become the first tribal nation in the United States to codify the rights of nature in their constitution.
Other tribal nations are moving this forward. Bioneers has hosted us to do a Rights of Nature and Indigenous Rights workshop, which we’ve been doing in different parts of the country with different tribal nations. We’ve done one on the White Earth reservation. We did one last year with the Grand Canyon Trust, their intertribal conversations groups with tribes throughout the Southwest, around the Colorado River Basin. So there’s growing interest. And I think Bill said this best, they’re using the law that’s been used against them, using it to actually protect themselves in the places where they live, and the lands they depend upon.
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I’ll finish with saying that the rights of nature as an idea whose time has come, and I’ll just quickly run through a few more developments.
- In 2017, in Mexico City, they established a constitution that says that a rights of nature law needs to be passed here. So they have set up the need to establish a rights of nature law within the city of Mexico City, which we’re beginning to work with folks on.
- In Northern Ireland, we’ll be heading there in January to do a rights of nature workshop and begin to meet with communities who are very much frontline resistance against things like industrial farming and fracking, which maybe we don’t associate with that part of the world, but it’s very much occurring.
- In Sweden, we continue to work with folks there to bring this idea into the country, and meet with members of the Green Party, for example, who are members of parliament to bring this idea into parliament. In the northern part of Sweden, where the Sami indigenous people are primarily based, they have a Sami parliament which is not recognized by the Swedish central government, the central government, as really having any legal authority. Nonetheless they, earlier this year, endorsed the Universal Declaration for the Rights of Mother Earth because they said, we’re going to do this anyway, even though we don’t essentially have legal authority here. They’re the first Indigenous Peoples within Europe to do so.
- What’s been happening in New Zealand is also very much involving Indigenous Peoples there. What they have done with several different ecosystems, including the Whanganui River, is recognize that those ecosystems no longer have human ownership, that they are entities unto themselves with certain rights unto themselves. They’re saying that the ecosystems have what they’re calling legal personhood.
And so there’s a lot developing in different parts of the world. We’ve also been talking with people in Africa, other people in Asia, in Philippines, in Pakistan, other places which I think are all seeing this crisis developing and are all saying we need to do something fundamentally different in our relationship with the natural world.
Rights of Nature laws tend to include rights like the right to exist, the right to thrive, the right to water for an ecosystem, the right to evolve, to be restored. This is a somewhat different take on it, but it’s recognizing certain rights of ecosystems and with that essentially a shared management of the ecosystem by Indigenous Peoples and the central government, which is a completely new way of thinking about how to manage ecosystems, and that ecosystems are rights-bearing entities on their own.
