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Rights of Nature

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What are “Rights of Nature”?

WHAT ARE "RIGHTS OF NATURE"?

What is a right?

There is a lot of academic work – both legal and philosophical – that discusses the existence, content, justification and function of rights.  As explained in the Stanford Encyclopedia of Philosophy, 1 rights “dominate modern understandings of what actions are permissible and which institutions are just”.  Rights inform the structure of governments and the content of laws. In other words, rights tell us what may be done, what must be done, and what must not be done.

How do rights exist?

Rights may derive from legal, moral or customary grounds.  Moral rights are grounded in moral reasons, customary rights exist by local convention and legal rights derive from society’s laws. 2

A common view is that “legal rights should be based on moral ones”. 3  However, there is no perfect overlap between the domains of legal and moral rights with the result there may be a legal right to do something a person considers morally wrong 4  Similarly, there there is no perfect overlap between customary rights and legal or moral rights. 5

In our case, we are interested in rights of nature being established as legal rights.

How do legal rights evolve?

Legal rights are those rights which exist under the rules of a legal system 6 A “legal system will set out rules specifying who is free to act in which ways, and who should be free from which unwanted actions and conditions… [and] will also determine who has the authority (and so who is free) to interpret and enforce these rules”. 7

Who possesses legal rights and what those legal rights entail are both continually evolving questions.  For instance, Campbell has pointed out that there has been contention about whether “young children, the severely mentally ill, non-human animals, areas of endangered countryside… can be properly regarded as legal rights-holders”. 8  As Campbell  points out, while it is clear that a person who has a right to appear in court must be a holder of some rights within the system, it does not follow that an entity that is physically or mentally incapable of bringing a legal action is not a legal rights-holder. 9  In other words, the physical or mental incapacity of an entity to bring a legal action does not mean an entity lacks rights. Those entities may be protected by law (i.e., have rights) and somebody may be able to bring a legal action to ensure enforcement of those rights.  10

One does not need to look too far back in history to see evolution with respect to categories of legal rights holders and legal rights.  For example, at the time of Canada’s Confederation (1867) only men 21 years or older who own property were entitled to vote. 11  It was only in 2005 that marriage rights were extended to same-sex couples throughout Canada. 12  The grounds for identifying discrimination are constantly evolving, most recently in respect of LGBTQ+ rights.  And there is growing recognition around the world, including in Canada, of the rights of nature.

How are rights categorized?

Rights may be categorized according to: 13

  • who has the right;
  • what the right relates to;
  • why the rights holder has the right (i.e. a moral, legal or customary right ); and
  • how the asserted right can be affected by the rightsholder’s actions (i.e. is the right one that be forfeit or waived).

In our case, we are interested in the who and what categories of rights.  Specifically, we are interested in the rights of nature and what those rights entail.  Further, we are interested in the legal acknowledgment and protection of those rights.

Typically, when we think of rights, we are thinking of human rights. Human rights are “norms that aspire to protect all people everywhere from severe political, legal and social abuses”. 14

Human rights include things like the right to life, liberty and security of the person; the right to equality before the law; and the right to be recognized as a person before the law.  At the international level, the United Nations Universal Declaration of Human Rights 15 sets out fundamental human rights that are to be universally protected.  In Canada, the Charter of Rights and Freedoms sets out our constitutionally protected human rights 16  There are also various pieces of legislation that protect human rights such as the Alberta Human Rights Act 17

Humans depend on a healthy environment to flourish and thrive.  Recognizing this, environmental rights are a subset of human rights meant to protect humans from the effects of environmental damage and degradation.  Typically, environmental rights are used to confer a human right to a healthy environment and to provide comprehensive procedural tools to protect that right. An Environmental Bill of Rights is one way to expressly entrench and protect environmental rights 18

An environmental right may be substantive (i.e. ensuring a certain level of environmental quality) or procedural in nature. Procedural rights include things like information rights, rights of public participation, rights to seek review of legislative and policy instruments, rights to commence environmental protection actions, rights to request investigations, and rights to challenge environmental decisions (on basis of genuine interest), among others.

Rights of nature are rights that are held by nature.  This is different than environmental rights which are held by humans. Rights for nature are a way to expressly acknowledge humans’ obligations to nature 19

What are rights of nature?

When we talk about rights of nature on this website, we mean legal rights that are held by nature.  This is different than environmental rights which are held by humans.  When looking from an environmental ethics perspective, the fundamental rights of nature are the right to exist, the right to continue to exist, and the right to be restored 20  Rights for nature are a way to expressly acknowledge humans’ obligations to nature 21

Legal rights of nature reflect the “basic structure of stewardship… 22 arguing in the interest of the rights holder is fundamentally different from arguing in one’s own self-interest” 23  Rights of nature recognize that there are obligations to nature beyond human interests, and creates accountability for infringement of those rights 24

What in nature is granted rights?

As a subject for rights, “nature” is a broad term which can be applied on different scales.  Nature may refer to any or all non-human components of the planet.  This means that nature can be viewed on a very large scale (such as the whole planet or distinct ecosystems) or a very small scale (such as a single organism).  As an example of the large scale protection of nature, the Ecuadorian Constitution protects nature on a large scale:  it states that “Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution” 25  At the other end of the scale is the example of Canada’s Species at Risk Act that protects the rights of individual organisms of species at risk via provisions that prohibit the killing or harming of individuals from protected species 26

Thus, in discussing the rights of nature, there must be consideration of what components of nature will have their rights acknowledged as this will have impacts upon the scope of rights that are legally acknowledged and how those rights will be enforced.  As well, identifying which components of nature will be granted rights will impact upon what constitutes a harm to nature and how that harm will be demonstrated.  If the fundamental rights of nature are considered to be the rights to exist, the right to continue to exist, and the right to be restored, those rights may look different according to the scale on which nature is defined.

What is the purpose of rights of nature?

Legal rights of nature reflect the “basic structure of stewardship… [in that] arguing in the interest of the rights holder is fundamentally different from arguing in one’s own self-interest” 27  Rights of nature recognize that there are obligations to nature beyond human interests and creates accountability for infringement of those rights 28  In other words, rights of nature indicate how humans should be interacting with nature beyond their own interests.

From an environmental ethics perspective, some have suggested that the fundamental rights of nature are the right to exist, the right to continue to exist, and the right to be restored 29  Rights for nature are a way to expressly acknowledge humans’ obligations to nature 30  Others have suggested rights of nature should be reflected as legal principles such as:

  • avoiding disruption of basic ecosystem processes;
  • avoidance of harm to natural areas when alternatives are available;
  • avoidance of critical areas altogether;
  • mitigate prospective damage; and
  • restore damage that has already occurred 31

Recognition of the rights of nature does not necessitate the creation of a separate regulatory system rather it is a “pulse-check in … process that ensures decisions … meet standards fundamental to the Earth as a whole 32 In other words, rights of nature do not necessarily result in the imposition of regulatory regimes upon use of land and other resources, rather they confer a base level of protection to nature and provide additional tools to prevent and remedy adverse environmental impacts.  However, acknowledging the rights of nature may lead to new decision-making and management approaches being adopted.

What legal consequences flow from recognizing rights of nature?

The answer to this question is still very much evolving.  One thing to keep in mind is that granting rights to nature does not mean that nature has every right imaginable.  Just as corporations, adults and children have different sets of rights, so can nature. 33  And different components of nature can have different rights.

Further, when speaking about rights of nature, it does not make sense to impose responsibilities or duties upon nature (as is done for a person or corporation).  The rights of nature apply in the context of human interaction with nature and are meant to impose duties on humans with respect to nature (not the other way around).

Broadly speaking, the rights of nature can be sub-categorized into 2 types of legal rights: substantive and procedural. Substantive rights provide a base level of protection such as the right to exist, the right to continue to exist and the right to be restored.  Procedural rights provide the tools to prevent and remedy adverse impacts to nature.  These procedural rights can include things like standing to participate in decision-making and legal proceedings, and opportunities for compensation and restitution.

Learn more about the legal consequences from recognizing the rights of nature

  • When we talk about rights of nature, we mean legal rights that are held by nature. This is different than environmental rights which are held by humans.

Footnotes

  1. Leif Wenar, “Rights” in Edward N. Zalta, ed., Stanford Encyclopedia of Philosophy (February 24, 2020 edition) online: https://plato.stanford.edu/entries/rights/
  2. Leif Wenar, “Rights” in Edward N. Zalta, ed., Stanford Encyclopedia of Philosophy (February 24, 2020 edition) online: https://plato.stanford.edu/entries/rights/.
  3. Kenneth Campbell, “Legal Rights” in Edward N. Zalta, ed., Stanford Encyclopedia of Philosophy (November 4, 2017 edition) online: https://plato.stanford.edu/entries/legal-rights/ at section 1.
  4. Leif Wenar, “Rights” in Edward N. Zalta, ed., Stanford Encyclopedia of Philosophy (February 24, 2020 edition) online: https://plato.stanford.edu/entries/rights/.
  5. Leif Wenar, “Rights” in Edward N. Zalta, ed., Stanford Encyclopedia of Philosophy (February 24, 2020 edition) online: https://plato.stanford.edu/entries/rights/.
  6. Kenneth Campbell, “Legal Rights” in Edward N. Zalta, ed., Stanford Encyclopedia of Philosophy (November 4, 2017 edition) online: https://plato.stanford.edu/entries/legal-rights/.
  7. Leif Wenar, “Rights” in Edward N. Zalta, ed., Stanford Encyclopedia of Philosophy (February 24, 2020 edition) online: https://plato.stanford.edu/entries/rights/ at section 4.
  8. Kenneth Campbell, “Legal Rights” in Edward N. Zalta, ed., Stanford Encyclopedia of Philosophy (November 4, 2017 edition) online: https://plato.stanford.edu/entries/legal-rights/ at section 3.
  9. Kenneth Campbell, “Legal Rights” in Edward N. Zalta, ed., Stanford Encyclopedia of Philosophy(November 4, 2017 edition) online: https://plato.stanford.edu/entries/legal-rights/.
  10. Kenneth Campbell, “Legal Rights” in Edward N. Zalta, ed., Stanford Encyclopedia of Philosophy (November 4, 2017 edition) online: https://plato.stanford.edu/entries/legal-rights/
  11. Elections Canada, A Brief History of Federal Voting Rights in Canada, online: https://electionsanddemocracy.ca/voting-rights-through-time-0/brief-history-federal-voting-rights-canada.
  12. Civil Marriage Act, S.C. 2005, c.33.
  13. Leif Wenar, “Rights” in Edward N. Zalta, ed., Stanford Encyclopedia of Philosophy (February 24, 2020 edition) online: https://plato.stanford.edu/entries/rights/
  14. James Nickel, “Human Rights” in Edward N. Zalta, ed., Stanford Encyclopedia of Philosophy (April 11, 2019 edition) online: https://plato.stanford.edu/entries/rights/
  15. United Nations, “Universal Declaration of Human Rights” 217 (III) A. Paris, 1948, online: https://www.un.org/en/about-us/universal-declaration-of-human-rights
  16. Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11.
  17. Alberta Human Rights Act, R.S.A. 2000, ch. A-25.5, online: https://kings-printer.alberta.ca/documents/Acts/A25P5.pdf.
  18. See the Environmental Law Centre’s work on an Environmental Bill of Rights, online: https://elc.ab.ca/our-focus/environmental-rights/.
  19. Katie McShane, “Environmental Ethics: An Overview” (2009) 4/3 Phil. Compass 407.
  20. Oliver A. Houck, “Noah’s Second Voyage: The Rights of Nature as Law” (2017) 31:1 Tulane Envir. L.J. 1.
  21. Katie McShane, “Environmental Ethics: An Overview” (2009) 4/3 Phil. Compass 407.
  22. in that
  23. Stefan Knauß, “Conceptualizing Human Stewardship in the Anthropocene: The Rights of Nature in Ecuador, New Zealand and India” (2018) 31 J. Agric. & Envir. Ethics 703 at 719.
  24. Stefan Knauß, “Conceptualizing Human Stewardship in the Anthropocene: The Rights of Nature in Ecuador, New Zealand and India” (2018) 31 J. Agric. & Envir. Ethics 703.
  25. Article 71, online: https://pdba.georgetown.edu/Constitutions/Ecuador/english08.html .
  26. Species at Risk Act, S.C. 2002, c. 29.
  27. Stefan Knauß, “Conceptualizing Human Stewardship in the Anthropocene: The Rights of Nature in Ecuador, New Zealand and India” (2018) 31 J. Agric. & Envir. Ethics 703 at 719.
  28. Stefan Knauß, “Conceptualizing Human Stewardship in the Anthropocene: The Rights of Nature in Ecuador, New Zealand and India” (2018) 31 J. Agric. & Envir. Ethics 703.
  29. Oliver A. Houck, “Noah’s Second Voyage: The Rights of Nature as Law” (2017) 31:1 Tulane Envir. L.J. 1.
  30. Katie McShane, “Environmental Ethics: An Overview” (2009) 4/3 Phil. Compass 407.
  31. Oliver A. Houck, “Noah’s Second Voyage: The Rights of Nature as Law” (2017) 31:1 Tulane Envir. L. J.
  32. Oliver A. Houck, “Noah’s Second Voyage: The Rights of Nature as Law” (2017) 31:1 Tulane Envir. L. J. 1 at 42.
  33. Christopher D. Stone, “Should trees have standing? – Toward legal rights for natural objects” (1972) 45 Southern California Law Review 450.