Mere recognition of the rights of nature is not enough, the rights of nature must be linked to a well-functioning environmental protection framework and decision-making must be modified to respect the rights of nature ².  Failure to do so will limit, if not completely bar, any meaningful protection of the rights of nature.

Further, lack of specific detail in the identification of guardians (representatives), their role and collaborative governance arrangement can lead to inadequate enforcement of their mandate which, in turn, limits the effective enforcement of the rights of nature ³.  Furthermore, vague definitions of what constitutes harm to nature will undermine effective implementation and enforcement ⁴.

It is essential to remember that acknowledgement of rights of nature is ultimately meant to guide human interaction with other organisms and surrounding ecosystems.  True acknowledgment and enforcement of the rights of nature requires a shift from viewing nature as mere property to entities with independent and inalienable rights.

When nature, or some element of it, is recognized as a legal person this means it is granted a set of legal rights (which differ from human rights).  Often, legal rights are comprised of three elements: legal standing, the right to enter into and enforce legal contracts, and the right to own property ⁵.

It is not necessary that nature, or an element of it, be recognized as a legal person in order for it to be granted legal rights.  Provisions in a constitution or other legislation, or a court decision may provide that nature has legal rights without taking the step of declaring nature to be a legal person.

Ultimately, the specific rights that nature is deemed to possess will depend on what rights are acknowledged.  The instrument – whether it be constitutional provisions, legislation, or a court decision – should delineate the rights of nature that will be recognized.  The rights recognized in one instance may not apply in another.  For example, under Ecuador’s constitution, all of nature has the “rights to exist and maintain the integrity of its ecosystems” and to be restored whereas in New Zealand only certain ecosystems are “granted the rights of any legal person to have their interests considered in court” ⁶.

As stated by Thomas Berry:

Every component of the Earth Community has three rights: The Right to Be, The Right to Habitat, The Right to fulfill its role in the ever-renewing processes of the earth community ⁷.

Whether those rights – and potentially others – are legally recognized is a question answered by looking at the relevant instrument (i.e. constitution, legislation, or court decision).

Legal rights are only meaningful if they can be enforced and are only effective if others have a duty to observe those rights ⁸.  This necessitates appointment of an individual(s) or organization to act on behalf of nature, to uphold its rights, and to speak on its behalf ⁹.  Furthermore, capacity (i.e. time, money and expertise) is needed so that the rights of nature can be upheld in court ¹⁰.  The representatives for nature also likely need independence from governments ¹¹.

The manner in which the rights of nature are enforced will depend somewhat on the instrument that acknowledges the rights of nature. The instrument – whether it be constitutional provisions, legislation, or a court decision – may indicate who can speak on behalf of nature.  For example, in Ecuador any person may speak for nature and take action to enforce the rights of nature.  New Zealand, in contrast, has carefully and explicitly delineated the guardians who can speak for the ecosystems granted legal personhood ¹².

In court proceedings, the rights of nature could potentially be enforced by granting standing to qualified environmental non-governmental organizations ¹³, using specialized prosecutors ¹⁴, or assigning a curator ad litem to represent nature’s interests ¹⁵. It will be important to ensure that guardians/representatives of nature have sufficient capacity (i.e. funding and expertise) to effectively act on behalf of nature ¹⁶.

An interesting approach to representing the rights of nature has been adopted by the State of Victoria in Australia. The environmental aspects of water management are managed by the Victorian Environmental Water Holder (VEWH) ¹⁷.  The VEWH is a statutory body (i.e. a legal person) that holds and manages all environmental water entitlements in Victoria in order to achieve environmental outcomes such as biodiversity, ecological functioning, and water quality.  The VEWH has several legal rights including the power to commence legal actions, to enter contracts, and to hold property on behalf of the environment.  The VEWH is a “hybrid form of the legal rights for nature concept” ¹⁸ and “offers a working example of how an organization with legal personality has been established to hold and manage… environmental water rights” ¹⁹.

Mere acknowledgement of the rights of nature is not enough.  The broader legislative framework and courts are pivotal to enforcement of rights of nature, there must be adequate recognition of rights of nature in legislation and participatory decision-making ²⁰.

There are several examples of rights of nature – particularly where some element of nature has been granted legal personhood – being used to facilitate management of an ecosystem. Management of an ecosystem is one of the reasons for in granting legal personhood to Canada’s Magpie River,  New Zealand’s Te Urewera (an area of mostly forested land) ²¹ and Te Awa Tupua (the Whanganui Watershed) ²²online:http://www.legislation.govt.nz/act/public/2017/0007/latest/whole.html and Spain’s Mar Menor Lagoon.  In the cases of Canada and New Zealand, Indigenous participation in management and decision-making for the ecosystems are essential.  In the case of Spain, local community involvement in management and decision-making is important, as is the involvement of scientific expertise, to address ongoing environmental degradation of the Mar Menor Lagoon.

Procedural rights may accompany a recognition of the rights of nature or legal personhood.  These procedural rights allow for implementation and enforcement of the rights.  Procedural rights include the authority to make decisions, to enter contracts, and to commence legal actions.

Effective implementation and enforcement of the rights of nature will likely require a revised approach to remedies and compensation to move away from a human-centred approach.  As stated by Susana Borras ²³:

The recognition of a right of nature represents an integrated, holistic view of all life and all ecosystems.  From this perspective, nature becomes not the object of protection but a legal subject:  all forms of life have the right to exist, persist, maintain and regenerate their vital cycles.  In parallel with this recognition is another: that humans have the legal authority and responsibility to enforce these rights on behalf of nature.

Remedies and compensation should not be focused on the impacts of environmental damage to humans but rather should focus on the impacts to nature itself.  Remedies and compensation may include things like environmental impact studies, plans for rehabilitation and remediation, and public apologies for violating the rights of nature.  In one action filed in Ecuador, a coalition of environmentalists sought to protect the constitutional rights of nature.  The environmentalists sued British Petroleum with respect to the Deepwater Horizon disaster in the Gulf of Mexico ²⁴. While the Ecuadorian court dismissed the case on the basis it lacked jurisdiction, since the activities were not located within Ecuador, the remedies sought by the environmentalists are interesting.  Rather than financial compensation, the environmentalists sought to have British Petroleum disclose information pertaining to the environmental destruction and to cease undersea mining.  The environmentalists also sought that British Petroleum be directed to take specific courses of action, such as using specific cleaning mechanisms.

It may also be that options for mediation and alternative dispute resolution will be required to resolve rights infringements ²⁵.