To the Maori people, the Whanganui River is a living being and a relative. The River was recognized as a legal person by New Zealand in 2017. Credit: James Shook
Faced with the threat of ecological collapse and industrial destruction, many environmental activists are turning towards the idea of giving legal rights to nature as a way to ensure natural areas are respected and protected. Rights of Nature are based on the idea that nature and natural entities, like rivers, forests and mountains, have inherent value and that ecosystems have the right to exist, flourish and evolve. While Rights of Nature emerged in Western legal spheres as recently as the 1970s, the importance of respecting the natural world in all of its integrity has existed within Indigenous worldviews for millennia.
A global movement has emerged around this idea, and its advocates argue that recognizing nature as a rights-holder could transform the way we understand our relationship to the natural world. As such, Rights of Nature are often framed as an opportunity to combine Western and Indigenous philosophies, and Indigenous leaders and activists have played an influential role around the world in shaping and developing new environmental legal frameworks which draw on diverse Indigenous worldviews to protect the environment.
And yet, in practice, no case has successfully used Rights of Nature to prevent major extractive projects from encroaching on Indigenous territories. Meanwhile, Indigenous land defenders on the front lines protect and manage about 80% of the world’s biodiversity, while facing much higher rates of violence than their non-Indigenous counterparts. This shows a clear failure of the movement for the Rights of Nature to live up to the Indigenous worldviews and principles which they claim to incorporate.
This brings us to an important question: is it possible for the Rights of Nature framework to live up to the powerful and transformative ideas of connectivity to nature that it aims to promote? Ecuador’s constitutional reform and New Zealand’s Te Awa Tupua Act are two of the best-known examples of Rights of Nature, and were based on Quechua and Maori concepts, respectively. These cases can shed light on some of the tensions between the movement for the Rights of Nature and Indigenous worldviews.
The Case of Ecuador: Sumak Kawsay
In 2008, Ecuador was the first country to recognize the Rights of Nature in its constitution. The constitution was celebrated as a major win by the global environmental movement, as it grants nature positive rights, meaning rights to something, in this case restoration, as opposed to the right not to be destroyed (which would be a negative right). Ecuador’s constitution also allows any citizen the right to go to court to protect nature. The idea of the constitutional reform itself was based on a proposal by the Confederación de Nacionalidades Indígenas de Ecuador, an organization that brings together Indigenous peoples, nations, communities, centers and associations of Ecuador. As such, the constitutional reform drew significantly from Indigenous worldviews, using the Quechua concept of “sumak kawsay”, which translates roughly to “living well”, as a guiding principle in the constitutional reform. The idea of living well encompassed in the term “Sumak kawsay” is a place-based sustainable lifestyle and an ideal of harmony between society and nature. This concept is inherently, deeply rooted in Indigenous self-determination and territorial autonomy.
However, Indigenous activists have struggled to leverage Rights of Nature to block harmful developments and hold the government and extractive industries accountable for environmentally damaging projects. Several high-profile court cases led by Indigenous activists targeting Ecuador’s mining industry have been unsuccessful, and this has occurred in the context of a broader disillusionment with the government’s commitments to the environment and Indigenous groups. For instance, in 2013 the government reneged on its commitment to reject oil development in the Yasuni territory, an Amazonian Indigenous territory rich in biodiversity. Despite Indigenous resistance, oil developments are still being pursued deeper and deeper into the territory.
While there have been some successful cases based on the Rights of Nature, those led by Indigenous peoples have been regularly rejected; Indigenous land protectors continue to have their lives endangered and their lands devastated. The example of Ecuador therefore illustrates both a profound betrayal of the diverse Indigenous groups who helped shape Ecuador's environmental legal context, and a major failure of the government to live up to the true meaning of the concept “sumak kawsay” enshrined in the constitution.
New Zealand and Te Awa Tupua
Similar to the situation in Ecuador, Maori Indigenous groups in New Zealand played a decisive role in the implementation of Rights of Nature. In 2017, New Zealand passed the Te Awa Tupua Act which gave the Whanganui river and the Te Urewera national park the status of legal personhood. A board of representatives, composed of members of the Maori Whanganui tribes and representatives of the New Zealand crown, is responsible for defending the river and the park in court. New Zealand has now granted legal personhood to Taranaki Mountain as well.
The case of New Zealand has gained particular attention for centring the Maori as the traditional custodians of the land and waters. The Te Awa Tupua Act settled a long and drawn out court battle over Maori land claims, and occurred within the context of a greater national reckoning with the ongoing impacts of colonialism. The fight for legal rights for these natural features has been driven by Maori activists, with an emphasis on sites of particular spiritual importance to the Maori. The law is a recognition of the Maori concept “Ko au te awa, ko te awa ko au” which translates to “I am the river and the river is me”. This idea reflects the deep connection and reciprocal relationship between the Whanganui Maori and the river, and is inherently tied to Maori sovereignty.
The power and effectiveness of the Whanganui river’s legal personhood in protecting it and the ecosystems that depend upon it are as yet unproven in the courts. But for many Maori leaders, the point of the Te Awa Tupua Act is not to achieve legal rights for the Whanganui river. The Act is recognition of “Ko au te awa, ko te awa ko au”, and will only be successful if it lives up to this principle, and the responsibility of caring for the river that it entails.
Can Rights of Nature and Indigenous Sovereignty go hand in hand?
There is a major disconnect within the movement for legal rights for nature, which owes much of its success to Indigenous leaders who developed ground-breaking environmental legal frameworks. But the movement for the Rights of Nature has not yet yielded significant successes in Indigenous territories, where Indigenous land defenders continue to be criminalized for protecting their lands against environmentally destructive extractive projects.
Ideas like “sumak kawsay” and “Ko au te awa, ko te awa ko au” are echoed in the worldviews of many Indigenous communities around the world. They are rooted in a land-based sustainable way of living which is inherently tied to Indigenous sovereignty. The movement for the Rights of Nature is well-meaning, but in order to ensure it is not simply paying lip service to Indigenous peoples, it must stop interpreting Indigenous worldviews and concepts solely through a Western legal perspective. A genuine and honest interpretation of Rights of Nature must honour the guiding principles put forward by Indigenous peoples, as they are understood within their own knowledge systems.
An approach to Rights of Nature that is intrinsically tied to respecting and upholding Indigenous sovereignty has the potential to be truly transformational.
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