Rights for rivers: fighting for the legal rights of nature

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Arguing for the legal status of nature was greeted as ridiculous in the 1970s. But now the idea is catching on.

In October 1971, months after international officials gathered in Iran to sign the Ramsar Wetlands Treaty, Christopher Stone stood outside his Introductory Property Law course at the Law School of the University of Southern California, trying to get the attention of its restless students. . Observing that the definition of property had radically changed over the course of human history, transforming not only the distribution of power within society but the society’s view of itself, he questioned himself at out loud about the effects of an equally radical redefinition of “rights”. What if legal rights were extended to, say, rivers? Or animals? Or trees? “This little thought experiment,” Stone recalled decades later, “was greeted, very sincerely, with an outcry.”

The class was soon closed, much to the relief of the students and their teacher, but Stone did not give up his thought experiment. Instead, he called the law library’s reference office and asked if there were any pending cases where the “rights” to a natural object could affect the outcome. In less than half an hour, a librarian called back to suggest Sierra Club vs. Hickel.

The case concerned a proposed Walt Disney resort in Mineral King Valley, a wilderness area in the Sierra Nevada, California. The Sierra Club Legal Defense Fund had challenged the development license that the US Forest Service had granted to the Disney company, but the court that heard the case ruled that the Sierra Club had no “representation” – because the club itself would not be “harmed” or “favored” by the development, she had no right to sue. The club had appealed and the case would soon reach the United States Supreme Court.

Stone has hastily written an essay for an upcoming issue of the Southern California Law Review. “I very seriously propose that we give legal rights to forests, oceans, rivers and other so-called ‘natural objects’ in the environment – indeed, the natural environment as a whole” , he wrote. He was not, he stressed, suggesting that no one be allowed to cut down a tree. “To say that the natural environment should have rights does not mean that it should have all the rights we can imagine, or even the same set of rights as human beings,” he wrote. “Nor is it to say that everything in the environment should have the same rights as everything else in the environment. “

Stone’s argument was that natural objects should not depend on the Sierra Club for their legal status, but should be granted theirs. If forests, oceans and rivers had status, Stone argued, court-approved human “guardians” could sue on their behalf, just as legal representatives can sue on behalf of incapacitated or disabled people. disappeared companies. These custodians would represent the interests of the natural objects, and the court would award any compensation to the object itself, perhaps in the form of funds for restoration.

Like the rights held by people, such as the right to vote and the right to own property, many of the existing protections afforded to natural objects are subject to interpretation and may be limited in certain circumstances. According to Stone, the legal status of natural objects would allow their human defenders to explain the consequences of such limitations and elevate those consequences in the eyes of the courts and the public.

“Should the trees be standing?” Was purposely published in an issue of the law journal for which Supreme Court Justice William O. Douglas had agreed to write a preface, and it found its way into its target audience. Although the Supreme Court ruled against the Sierra Club in April 1972, Douglas cited Stone’s argument in the opening lines of his dissent. “The concern of the contemporary public to protect the ecological balance of nature should lead to granting environmental objects the right to sue for their own preservation,” Douglas wrote. He concluded his dissent by quoting Aldo Leopold: “The ethics of the earth simply expands the boundaries of the community to include soils, waters, plants and animals, or collectively: the earth. (Public opposition to Disney’s development continued after the court ruling, and company executives eventually lost interest in the project. The Mineral King Valley, now part of Sequoia National Park , remains underdeveloped.)

Douglas’s unusual dissent caught the attention of the press, and Stone’s argument was widely ridiculed. “If Judge Douglas gets his way, / Don’t come on this terrible day – / We will be chased by lakes and hills / Seeking to make amends our woes,” one lawyer wrote. A Michigan appeals court then issued a full doggerel opinion, starting with the lines “We Thought We Would Never See / A Tree Compensation Lawsuit.”

Stone’s essay continues to be debated by law students, but 50 years after its publication, the notion of “proceeding to compensate a tree” no longer seems so far-fetched. The Endangered Species Act, enacted two years after Stone published his article, includes a provision that allows individuals to sue for alleged violations of the law, and the courts have since granted standing to the owls. spotted, red squirrels, Florida Keys deer, and other endangered species as co-plaintiffs in citizen lawsuits.

Charles Darwin, in The descent of man, observed that over the course of human history, the “sympathies” of Homo sapiens have become “more tender and more widespread, so as to extend to men of all races, to fools, to the disabled and other useless members of society, and finally to the lower animals. History, of course, does not go in a straight line, and it is clear in our time that sympathies can contract as quickly as they develop; in 2020, the US Fish and Wildlife Service proposed drastically reducing protections afforded to birds more than a century earlier by the Migratory Bird Treaty Act. Yet for many groups of humans – women, children, people of color, people with disabilities, people without property – rights now widely considered inalienable were not long ago considered to be inalienable. ridiculously inaccessible. And our sympathies for other species are already translating into legal rights.

In 2017, the Whanganui River, New Zealand’s longest navigable river, became a legal entity. The Whanganui had been controlled by colonial and national governments since the mid-1800s, but the indigenous Maori people had never voluntarily given up their historic claim to the river, and it had become the subject of one of the most important courts. oldest in the country. battles. After Maori jurist Jacinta Ruru and her student James Morris noted in a 2010 article that Stone’s concept of legal status for natural objects resembled the Maori concept of rivers as living things, government officials and Maori leaders picked up on the idea: if they couldn’t figure out who owned the river, maybe the river should, in a sense, own itself. In 2014, the parties reached a settlement recognizing the Whanganui, its tributaries and “all its physical and metaphysical elements” as “a living and indivisible whole”. Three years later, following parliamentary debate in Maori and English, the regulations became law.

The Whanganui, which was dammed for hydroelectricity, mined for gravel, blasted for passage of vapors and polluted by urban effluent, will now be represented in court by two wardens, one chosen by the most closely Maori groups. linked to the river and the other by the national government, much like the arrangement proposed by Stone. What exactly legal personality means to the Whanganui will surely be the subject of future lawsuits. But the agreement changes the terms of these arguments. “The law, like our most fundamental societal histories, reminds us not only of what we are, but what we aspire to be,” writes Holly Doremus. “Stories that are rooted in law are therefore powerful forces in shaping society and social attitudes. Often, they reinforce existing ideas. Sometimes they expand our sense of the possible.

Although Whanganui’s legislation and a growing number of similar laws vary in their details, they replace what Stone called “the view that nature is a collection of useful and foolish things” with the general proposition that rivers , forests or animal species are valuable. beyond the services they provide to humans, and that the responsibilities and costs of their tolerance and maintenance should not be borne by the unlucky few but by society as a whole.

New Zealand biologist and anthropologist Mere Roberts, herself of Maori descent, writes that the Maori worldview could be described as “kinship-centered”, in which humans are linked to each other, and the rest. of the living world, by a multitude of reciprocal relations. Like Leopold’s concept of simple citizenship, this view recognizes that some of our relationships with other species are consuming, others predatory, and some inflict costs on both parties. It also recognizes that all have at least some potential for reciprocity, if only in the broadest sense of continuing the flow of energy within the biotic pyramid.

As individuals and as species, living organisms are part of interdependent communities, existing within a network of mutualisms that Leopold once imagined as “a universal symbiosis”. Considering the harm our species is capable of doing to others, it is understandable that during the conservation movement some have tried to sever our relationships with other species, drawing strict boundaries in an attempt to limit our exploitation of other forms of life.

The boundaries have been helpful in conservation, and will continue to be. But the lesson of ecology, like that of Aesop’s fables, is that human relationships with the rest of life are both inevitable and inevitably complex. The great challenge of conservation is to sustain complexity, in its many forms, and in so doing, protect the possibility of a future for all life on Earth. And for that, there is no panacea.

Read an interview with author Michelle Nijhuis on Beloved Beasts: Fighting for Life in the Age of Extinction here.

Extract of Beloved Beasts: Fighting for Life in the Age of Extinction by Michelle Nijhuis, copyright © 2021 by Michelle Nijhuis. Used with permission from WW Norton & Company Inc.

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Michelle nijhuis

is Project Editor at the Atlantic, Contributing Editor at High Country News, and an award-winning journalist whose work has appeared in National Geographic and The New York Times Magazine. She is the co-editor of The Science Writers’ Handbook and lives in White Salmon, Washington.


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