Maria Banda is an international lawyer and the Graham Fellow at the University of Toronto Faculty of Law.
“I am the Lorax! I speak for the trees. I speak for the trees, for the trees have no tongues.” These words spoken by a small orange creature in a Dr. Seuss children’s book point to a more fundamental question. Should trees and other voiceless elements in nature have rights? Courts, legislatures and communities increasingly say they should.
An extraordinary legal revolution is unfolding around the world. Last month, in a historic ruling, Colombia’s Supreme Court declared that the Amazon is a legal person with rights − to be protected, conserved and restored − and ordered the state to reduce deforestation.
This past year alone, from India to New Zealand, four rivers, two glaciers and a sacred mountain have been granted legal personhood. The Inter-American Court of Human Rights declared that the regional human-rights treaty protects the rights of the environment as such. U.S. municipalities are joining in.
The idea is not new. In 1972, American law scholar Christopher Stone penned a visionary essay, Should Trees Have Standing?, in which he proposed granting nature rights. Justice William Douglas of the U.S. Supreme Court agreed. In a famous dissent, he argued that nature, or anyone who speaks for it, should have its day in court.
After all, we treat corporations, trusts, even ships − things that cannot breathe, speak or vote − as legal persons. Mitt Romney was ridiculed for saying that “corporations are people, my friend,” but, as far as the law is concerned, he was not wrong. We created these legal fictions because they served a greater purpose. So why not mountains, rivers and seas, Justice Douglas wondered.
The idea failed to take root in the 1970s, but it seeded a worldwide movement. Now, nearly 50 years later, its time may have come.
Part of the reason is that, despite environmental law’s many successes, the current legal framework has failed to stop the destruction of entire ecosystems and species, and some life-support systems, such as the Amazon, are simply too big to fail.
These unprecedented challenges require new thinking. In the Western legal tradition, we have generally treated nature as property and entrusted governments with its protection. We instructed agencies to manage natural resources and wildlife in public interest. But “public interest” means many things to different people, who may assign different weights to short-term profit maximization and long-term welfare. The environment (and the public) often get lost in the shuffle. To counteract short-termism or regulatory capture, we gave citizens and communities rights to be heard, but this has often proven procedurally difficult (not to mention costly). Hence Mr. Stone’s idea.
Granting nature rights would not stop economic activity. But it would make sure, as Justice Douglas wrote, that “the inanimate objects, which are the very core of America’s beauty, have spokesmen before they are destroyed.”
This isn’t just about altruism. As we learned the hard way, our basic rights − to life and health − depend on a healthy environment. This is why more than 100 national constitutions (adopted after 1970) enshrine the right to a healthy environment.
Of course, many Indigenous and other cultures have long understood this. New Zealand’s new legislation, for example, integrates Maori worldviews. Pope Francis embraced the idea of interdependence in his encyclical Laudato Si’, while Indonesia’s supreme Islamic council issued a fatwa against trade in endangered animals.
If we can protect our natural heritage, future generations (another voiceless lot) are more likely to inherit a prosperous world. And “the greatest legacy we can leave our children and grandchildren,” former prime minister Brian Mulroney once said, “is the earth itself.” Tellingly, the Amazon case was brought by 25 children and youth. To protect their rights, the court set up an “Inter-Generational Pact” for the rainforest.
So would it help if Canada’s threatened forests and rivers had rights (and spokespeople)? We often romanticize this country as a land of infinite natural bounty. In reality, as the OECD reports, Canada’s environment and communities face numerous threats. Every day, we lose 3,000 football fields of the boreal forest (the same rate of loss as tropical rainforests). Our watersheds are under stress. Air pollution is widespread. Climate costs are mounting.
Canada’s Constitution does not protect the right to a healthy environment (although 85 per cent of Canadians think it should), and the idea of giving nature rights may sound loopy, even unthinkable. But each successive extension of rights (to women, children, slaves, companies), as Mr. Stone wrote, was at first laughed off. Our entire legal history is about the unthinkable becoming second nature.
The road will not be easy; there will be implementation challenges along the way. But rights evolve. And, over time, a healthier world may emerge.