Nature is increasingly being recognised as a holder of rights both in legislation and in court judgements. The relationship between regulations and nature has usually been one of protection, where regulations focus on prohibiting or regulating activities that pose threats to nature. This howtoregulate article explores the burgeoning regulatory landscape attributing legal personality to nature and suggests other regulatory requirements to strengthen the governance and administrative structure supporting legal personhood of nature.
A. The legal status of nature at international and supra-national law
1. At international law there is no recognition of the rights of nature per se, with international environmental protection mainly derived from an enforcement of human rights.Several international conventions and treaties aim to protect biodiversity generally, endangered species, migratory species across jurisdictions and the climate, but nothing for nature.
2. There is a growing international Rights of Nature (RoN) movement that recognises that humankind and nature share a fundamental, non-anthropocentric relationship given our shared existence on this planet, and it creates guidance for actions that respect this relationship. RoN are inalienable like human rights, in that they cannot be taken away, except in specific circumstances and according to due process.
3. International law is useful in corralling states to action through soft norms such as reporting, diplomacy to encourage enforcement etc.However, granting legal personhood to natural objects would in effect comply with the goals of international protection, even surpassing it in many instances.
I. The United Nations (UN)
4. The UN and the various conferences held on climate change, the environment and biodiversity have stressed increasingly that a drastic change is needed and that one part in implementing change is to create an incentive structure that promotes sustainability and protects nature. While none of the various UN conventions or resolutions can be understood as preparing for the attribution of legal personality to nature, there have been calls for “rights of nature jurisprudence”.
5. On 22 December 2015, the UN General Assembly (UNGA) adopted Resolution 70/28 about “Harmony with Nature. The UNGA decided to hold a virtual dialogue on harmony with nature, gathering experts on Earth jurisprudence worldwide to discuss ways in which people can interact with the natural world in order to implement the Sustainable Development Goals in harmony with nature. The UNGA also noted that some countries recognise the rights of nature and requested that experts submit a summary on how to reshape human governance systems to operate from an Earth-centred rather than a human-centred perspective. This summary, “Harmony with Nature” (A/71/266), recommended, inter alia, several pathways for attributing legal personality to nature:
- train and support lawyers to work for the rights of nature;
- collect and living examples around the world of successful implementation of nature’s rights in law;
- develop a new, integrated legal perspective and policy framework around rights of nature, linking it to other struggles for justice, including describing how the recognition of nature’s rights positively impacts the struggle, inter alia, for racial justice, climate justice and environmental justice, as well as to rectify growing wealth inequality;
- adopt a UN resolution endorsing the importance of exploring the potential for Earth jurisprudence as a framework for developing international, national and local governance systems;
- provide support for the incorporations of the rights of nature concepts into law and science;
- give special emphasis and protection for sacred natural sites, including bans on extractive activities at such sites;
- support entities working to pass and implement local laws recognising the rights of nature;
- work to develop standards for implementation of the rights of nature for all countries, e.g. a definition of the “health” of an ecosystem or species;
- define life cycles, the structure of ecosystems and evolutionary processes;
- develop regulations for the protection and restoration of nature before, during and after environmental conflicts;
- review the concept of customary law and the principles of analogy beyond Western culture; and
- promote the establishment of “Rights of Nature” tribunals around the world to adjudicate cases of violations of the rights of nature in order to demonstrate how Earth jurisprudence can be applied effectively to address key challenges, such as climate change.
- establish enforcement procedures and institutions for recognising the rights of nature and the human duty of care for nature, including a “Declaration of the Rights of Nature”; the establishment of an international environmental tribunal; and criminal sanctions for crimes against nature, particularly directed as corporations and those that control them;
- study and teach the implications of private ownership of land and Nature for all members of the Earth community. Establish an internationally recognised system of land registration, use it to enforce fundamental duties for all people who have exclusive use of the natural environment and collect publicly created rental value for public use, with particular emphasis on the protection of Nature and its rights;
- stop the privatisation of Nature by establishing an international system of patents and copyrights based on common asset trusts; and
- create new economic measures to include the well-being of Nature, including human beings, in measuring economic progress and success.
Other recommendations of a general nature were also made under the topics of education, holistic science, humanities, philosophy and ethics, theology and spirituality and the arts, media, design and architecture.
6. The UN also maintains a site on harmony with nature, which provides a current list of jurisdictions that have either recognised rights of nature or attributed legal personality to nature, which this howtoregulate article has used to explore the regulations and their effectiveness.
7. The African Commission on Human and Peoples’ Rights (ACHPR) is Africa’s premier human rights body responsible for monitoring and promoting compliance with the African Charter. Its work is supplemented by the African Court on Human and Peoples’ Rights, and is planned to merge with the African Union’s Court of Justice. In 2017 it adopted a Resolution on the Protection of Sacred Natural Sites and Territories [ACHPR/Res.372 (LX) 2017]. This Resolution “Urges State Parties […] to recognize and respect the intrinsic value of sacred natural sites and territories”1. Sacred natural sites are commonly referred to as sites of ecological, cultural and spiritual importance, and defined as “areas of land or water having special spiritual significance to peoples and communities”2. This Resolution reminds African member states that the African Charter signed in 1981 requires the establishment of plurilegal systems as a means of decolonising Africa’s jurisprudence.3It also recognises that indigenous and traditional peoples’ customary governances systems are underpinned by a different source of law that govern life, based on generations of acute observation of their ecosystem.4
8. Although the Resolution is not directly enforceable it does empower the ACHPR to take action, including:
- Pressure: African states directly to ensure they are aware of and implement the resolution at national level and are upholding the African Charter.
- The law: As a quasi-legal body, the ACHPR can hear cases about the violation of sacred natural sites. (SNS) The ACHPR can also refer cases to the African Court to hold violators to account.
- Best Practice Guidelines: The Resolution, along with the report can be used to develop best-practice guidelines for states, NGOs and other regional bodies on how to recognise and support SNS and their governance systems.
- Visibility: Puts SNS on the radar of the ACHPR, whose relevant working groups will now highlight the state of Africa’s SNS in their reports and ensure they are protected and the custodial governance systems are respected.5
III. The Americas
Organization of American States (OAS)
9. The OAS is the world’s oldest regional organisation, dating back to the First International Conference of American States, held in Washington D.C., USA in 1889 aims to establish an order of peace and justice among member states.6In September 2017, the OAS organised the II Inter-American Congress on the Environmental Rule of Law, which supports member States in developing and strengthening their enabling legal and institutional frameworks for the right of nature. The II Congress brings together Chief Justices, Attorneys General, legislators, prosecutors, government officials, high-level practitioners and civil society representatives with the objective to advance a common understanding of the concept of the environmental rule of law. The key message from the II Congress was developing adequate and implementable laws for the environmental rule of law bearing in mind that addressing environment issues requires complex, medium and long-term remedies.
The Escazú Agreement
10. The Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (the Escazú Agreement), establishes protections for the rights of access to information, protection of environmental defenders and accountability for human rights violations relating to the environment. Following the Aarhus Convention in Europe, the Escazú Agreement is the only other regional treaty on environmental democracy with 17 signatories.
11. The Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was entered into force in 2001 with 47 Parties. The Aarhus Convention establishes a number of rights of the public (individuals and their associations) with regard to the environment. The Parties to the Convention are required to make the necessary provisions so that public authorities (at national, regional or local level) will contribute to these rights to become effective.7The Aarhus Convention provides for:
- the right of everyone to receive environmental information that is held by public authorities, to receive the information within one month of the request and public authorities are obliged to actively disseminate environmental information in their possession;
- the right to participate in environmental decision-making, for example, proposals for projects affecting the environment, or plans and programmes relating to the environment, these comments are to be taken into due account in decision-making, and information to be provided on the final decisions and the reasons for it; and
- the right to review procedures to challenge public decisions that have been made without respecting the two aforementioned rights or environmental law in general.
VI. Pacific Islands
12. The Pacific Islands Forum (PIF) is an inter-governmental organisation founded in 1971 that aims to enhance cooperation between the countries and territories of the Pacific Ocean. A report published by the Intergovernmental Panel on Climate Change in October 2018 highlighted that the island states of Kiribati, Tuvalu, the Maldives and Marshall Islands (PIF members except the Maldives) are at greatest risk should global temperatures rise above 1.5°C. Such a temperature rise would see sea levels rise between one and four feet or higher, which, absent extraordinary measures, Marshall Islands would become uninhabitable.8The PIF has expanded its definition of security in its Boe Declaration on Regional Security, recognising environmental and resource security.9The Boe Declaration forms a part of the PIF’s Blue Pacific strategy that:
seeks to re-capture the collective potential of the region’s shared stewardship of the Pacific Ocean based on an explicit recognition of its shared “ocean identity”, “ocean geography”, and “ocean resources” […] to reaffirm the connections of Pacific people with their natural resources, environment, culture and livelihoods.10
13. The PIF approach is not rights-based but an ethical approach of stewardship of nature. Practically, a policy framework has been implemented (as opposed to regulatory-focussed) that focusses on data collection through environment monitoring, using the data to drive decision making, supporting the development and implementation of national environmental managements strategies.11
B. National laws recognising legal personality of nature
1. Beginning with Ecuador in 2008, some jurisdictions have recognised legal personality of either nature as a whole or of insulate natural objects, e.g. forests or rivers. The following paths recognising the rights of nature have been identified:
- in the constitution;
- by court rulings;
- though not strictly granting legal personality, by expansion of standing for claims of violation of environmental protection laws; and
- by attributing legal personality in legislation and/or regulation.
2. The first three paths and their effects are very much dependent on the legal doctrine of the respective jurisdiction and encounter significant hurdles to be accepted into law. Such paths are thus difficult to be copied elsewhere. As howtoregulate.org is not interested in legal doctrine, but the active use of regulation, these three methods will only be briefly presented. The focus is on the few examples where regulation has provided a legal status to nature or natural objects and regulated the definition and the limits of its rights, and have effective enforcement mechanisms.
I. Constitution based legal personality of nature
3. The constitutional approach avoids the question of selection of natural objects for the holding of rights and offers a unified one-fits-all solution for a variety of natural objects. This approach can thus be very efficient. However, it is evidently much less precise than the approach “regulation”. Furthermore, constitutional change has a high hurdle in many countries. The constitutional approach is thus not viable in many jurisdictions, and requires a special effort. It might also be useful as complementary measure to better anchor the regulation, these examples might be more relevant, if either the threshold is lower or such profound changes require anchoring in the constitution.
4. Ecuador was the first jurisdiction in the world to recognise the rights of nature and enshrine this in the development of a new constitution, approved by the electorate in the September 2008 constitutional referendum. Chapter 7 of the 2008 Constitution outlines the Rights of Nature in four articles (71-74). Article 72 prohibits the extraction of non-renewable resources in protected areas and Article 73 forbids the introduction of organisms, organic and inorganic material that might alter the nation’s genetic assets. However, the implementation of nature’s rights has proven to be difficult as the political agenda seeking to exploit natural resources to fuel social development is at odds with indigenous communities’ seeking to enforce the rights of nature. This has delayed the development of secondary laws and institutions necessary to give form to constitutional principles. The lack of secondary laws and institutions has meant that enforcement of the rights of nature is limited to court remedies, which is not ideal noting the barriers of court costs and heavy court lists. The article “Can Rights of Nature Make Development More Sustainable?” provides a very useful and detailed analysis of the successes and failures of developing a rights of nature jurisprudence and the relevant regulatory-related points will briefly be outlined.
5. Despite there being no secondary laws and institutions giving effect to nature’s personhood, the Ministry of Environment routinely uses the constitutional rights of nature to justify routine administrative actions to protect the environment. Examples of administrative action include applying sanctions, such as fines or the removal of environmental licences for economic development projects. The Ministry also files criminal lawsuits against individuals whose business activities harm nature. The Ministry’s powers derive from Article 8 of the Environment Management Law (in Spanish) of 2004, predating the 2008 Constitution, and outlines fourteen powers (Article 9), including (not exhaustive):
- Develop the National Land Management Strategy and sectional plans;
- Propose, for subsequent issuance by the President of the Republic, the rules of environmental management and environmental impact assessment and the respective general procedures of approval of studies and plans, by the competent entities in this matter;
- Coordinate with the competent bodies to issue and apply technical standards, manuals and general environmental protection parameters, applicable at national level; the regime general regulations applicable to the permitting and licensing system of potentially activities pollutants, standards applicable to national plans and technical standards related to the territorial ordering;
- Determine the works, projects and investments that require to undergo the approval process of environmental impact studies;
- Collect environmental information, as an instrument of planning, education and control. This information will be public and will be part of the National Information Network Environmental, which aims to record, analyse, rate, synthesise and disseminate information national environmental;
- Establish Advisory Councils among the component bodies of the Decentralized System of Environmental Management for the study and advice of matters related to management environmental, guaranteeing the participation of sectional entities and civil society;
- Coordinate with the competent agencies control systems for the verification of compliance with environmental quality standards regarding air, water, soil, noise, waste and pollutants; and
- Define a control and monitoring system of the established norms and parameters and of the permit and license regime for potentially polluting activities and related with territorial planning.
II. Court recognition of legal personality of nature
6. Court decisions can often stimulate regulatory development as governments seek to regulate the implications of such decisions, particularly in areas where rights have been recognised. In Colombia a landmark ruling was made by the Constitutional Court in 2016 (Atrato River Case, Judgment T-622/16), recognising Colombia’s Atrato River as a legal entity with environmental rights that need to be protected. The Constitutional Court found that the government was responsible for the violations of the right to life, health, water, food security, to a healthy environment, as well as the cultural and territorial rights of the claimant ethnic communities for not taking effective actions to stop illegal mining around the Atrato River. The government was ordered to take the following detailed measures (not exhaustive):
- exercise legal guardianship and representation of the rights of the river (e.g. Ministry of the Environment) together with the ethnic communities that inhabit the basin of the river;
- develop a commission of guardians of the river, to include experts in addition to representatives of the communities;
- design and implement, together with the communities and experts, a plan to decontaminate the Atrato River basin and its tributaries, the riverine territories, recover their ecosystems and avoid additional damage to the environment in the region. The plan will include measures such as: (i) the reestablishment of the Atrato riverbed, (ii) the elimination of area banks formed by mining activities, and (iii) the reforestation of areas affected by legal and illegal mining;
- in line with its state responsibility to prosecute and eradicate definitively any illegal mining activity within the country, design and implement, together with the communities and experts, a joint action plan to neutralise and eradicate mining activities illegally carried out in the river, its tributaries and in the Chocó province. Such actions must include the seizure and neutralisation of dredges – and in general of the machinery used in these tasks – the restriction and prohibition of the transit of inputs such as fuel and associated chemical substances (mercury, cyanide) and the prosecution of responsible people and organisations, engaging the Ministry of Foreign Affairs where such actors are foreigners;
- design and implement, together with the communities and experts, a comprehensive action plan that allows the recovery of traditional forms of subsistence and food within the framework of the concept of ethno-development that ensure minimum food safety in the area. The plan should aim to restore the rights of the ethnic communities that inhabit the basin, especially in relation to the recovery of their culture, participation, territory, identity, way of life and productive activities, including fishing, hunting, agriculture, fruit harvesting and artisanal mining. In this sense, the measures taken must be focused on guaranteeing: (i) the food sovereignty of the communities and (ii) preventing their involuntary displacement of the area due to illegal mining activities and environmental damage; and
- carry out toxicological and epidemiological studies of the river, its tributaries and communities, which may not take more than three (3) months to commence or exceed nine (9) months for its completion, as of notification of the present ruling, in which the degree of contamination by mercury and other toxic substances is determined, and the impact on human health of the populations, as a consequence of the mining activities that use these substances. Additionally, these entities must structure a baseline of environmental indicators in order to have a measuring instrument that allows affirming the improvement or deterioration of the conditions of the basin in the future.
The detail with which the Constitutional Court ordered for the measures to be taken, would certainly have made for a good basis to develop regulatory requirements for ensuring the rights of natural objects are observed.
III. Expanding the legal standing of groups or the right to sue
7. It is rarely controversial the plaintiff’s legal standing to bring an action to court but in most cases involving nature many suits are defeated on this basis. This prompted legislators to expand legal standing in environmental legislation to make it easier for environmental groups to represent nature.
8. In Australia Section 487 of the Australian Environment Protection and Biodiversity Conservation Act is an example where a legislative right to sue was relaxed to a less stringent threshold.
(2) An individual is taken to be a person aggrieved by the decision, failure or conduct if:
(b) at any time in the 2 years immediately before the decision, failure or conduct, the individual has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment.
(3) An organisation or association (whether incorporated or not) is taken to be a person aggrieved by the decision, failure or conduct if:
(b) at any time in the 2 years immediately before the decision, failure or conduct, the organisation or association has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment; and
(c) at the time of the decision, failure or conduct, the objects or purposes of the organisation or association included protection or conservation of, or research into, the environment.
This enabled environmental groups, who might not necessarily have standing because they are not affected (in a direct sense) by a decision made under the Act, can bring an action to court to review an administrative decision affecting nature.
9. The Supreme Court of Canada developed a public interest standing which allows a person or organisation to bring a case notwithstanding their lack of direct involvement in the matter, or any infringement of their personal rights. The potential litigant must pass a three stage test:
- There is a serious justiciable issue raised as to validity of legislation;
- The plaintiff is affected by it directly or has a genuine interest as to the validity of the legislation; and
- There is no other reasonable and effective manner in which the issue may be brought before the court.12
In nature-related cases a person who is directly involved in the matter, usually indigenous communities do not have the resources to bring matters to court and so environmental groups can bring an action on their behalf under the public interest standing.
IV. Legislative based legal personality of nature
10. Two fairly recent examples of regulation attributing rights to nature and/or natural objects are the examples of Uganda’s National Environment Act (2019) and New Zealand’s Te Uruwera Act (2014) and Te Awa Tupua (Whanganui River Claims Settlement) Act (2017). The Ugandan Act is a new piece of legislation, simple in its regulatory approach and the government are developing supporting regulations to give administrative effect to the Act. New Zealand’s two Acts, with an agreement for a third attributing rights to Mount Taranaki, is an example of a detailed legislation, more complex in nature, regulating the rights between various actors involved in the enforcement of nature’s rights.
11. The National Environment Act, 2019 attributes rights to nature in Section 4:
Rights of nature
(1) Nature has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.
(2) A person has a right to bring an action before a competent court for any infringement of rights of nature under this Act.
(3) Government shall apply precaution and restriction measures in all activities that can lead to the extinction of species, the destruction of the ecosystems or the permanent alteration of the natural cycles.
(4) The Minister shall, by regulations, prescribe the conservation areas for which the rights in subsection (1) apply.
This broad definition for legal standing enables any person to bring an action for any infringement of nature’s rights, which theoretically enables indigenous communities leeway to bring actions based on their customary laws. There are 20 principles of environment management that the National Environment Management Authority (the Authority) are required to follow “taking into account the finite nature of non-renewable resources and the productivity of the available renewable resources” (Section 5). The principles are holistic and some interesting examples include:
- encouraging participation of the people of Uganda [Section 5 (2)(a)];
- providing for equitable, gender responsive and sustainable use of the environment [Section 5 (2)(b)];
- maintaining stable functioning relations between the living and non-living parts of the environment [Section 5 (2)(c)];
- ensuring extractive processes are carried out in a sustainable manner [Section 5 (2)(e)];
- where threats of irreversible harm to human health or the environment, lack of scientific certainty is not used as a reason for postponing cost-effective measures to prevent the harm or damage [Section 5 (2)(g)];
- requiring prior environmental and social impact assessments of proposed projects [Section 5 (2)(i)];
- ensuring environmental awareness and literacy are part of education and governance;
- ensure that environmental costs are included into economic activities [Section 5 (2)(m)]; and
- promoting circular economy [Section 5 (2)(p)].
12. The Act also creates a special “environment police” (Environmental Protection Force) to enforce the Act, comprising persons appointed by the Authority (in consultation with the Ugandan Police Force-UPF) and trained by the UPF (Section 25).
13. The Act enables Special Conservation Areas to be designated (Section 51), which prohibits certain activities and promotes others. An example of a consultation for designating Kalagana-Itanda as a Special Conservation Area proposes to promote/permit research, tourism, restoration and enhancement of ecological functionality, while prohibiting brick making, sand mining, cultivation, drainage, sewerage filtration, fish farming and construction of permanent infrastructure.
14. The empowerments at Part XII – Environmental Compliance and Enforcement is a respectable list of powers to enforce the Act, including: compliance monitoring; designation of laboratories for analysis, certificates of analysis, audits, powers and duties of environmental inspectors, restoration orders, power to arrest, power to seize and power to review or appeal decisions. Additional empowerments of the Authority are listed here and include denying and revoking permits for activities in an area, imposing a schedule for compliance, requiring the clean up of the environment or requesting information about industrial processes. Part XVI of the Act concerns Offences, Penalties, Fees, Fine and Other charges, and contains a good list of offences to be monitored and prosecuted against. For example illegal management of waste and pollution incurs on conviction a fine and/or/both fifteen years imprisonment (Section162), non-compliance of orders could include seven years imprisonment (Section 164), and failure to comply with environment standards a fine and/or/both seven years imprisonment (Section 165). An example of how the empowerments and enforcement is implemented can be found here.
15. Of the few jurisdictions that have attributed legal personality via legislation, New Zealand stands out as a good example of a detailed regulation for governing the protection of nature and natural objects because its structure is similar to the legal personality given to companies. A company’s legal personality is distinct from its members (shareholder or employees) with the power to sue or be sued, enter into legal and contractual relationships. Its members are regulated to consider the “best interests of the company” and over time this has been regulated to include considerations other than profit.
16. As the first jurisdiction to attribute legal personality to specific areas and objects of nature via legislation it is interesting the structural similarities with modern company regulation. New Zealands’s legislation declares the Te Urewera Forest13, the Te Awa Tupua area (incl. Whanganui River)14and Mount Taranaki and the surrounding area15, to be legal entities, having all the rights, powers, duties and liabilities of a legal person. The development of legislation was the result of protest and conflict concerning claim to the land and its treatment by the state of the affected Maori people since the land was colonised by the British.16The concept of legal personality was introduced as a mechanism to neutralise the ownership issue and to enable the recognition of these lands as having their own authority and overlaying that with a co-management type of regime. The indigenous peoples of the areas attributed legal personality are provided sole responsibility for the management of all activities in the legislated designated area, under the previous structure it was the state. The state is now represented through membership on the board, and the board is responsible for developing the management plan.
Te Urewera Act 2014
17. The Te Urewera Act gives legal personality to the natural area in the North Island of New Zealand called Te Urewera, (which is the traditional name holding cultural and spiritual significance to the Maori people of the area). It is based on the intrinsic worth of the Te Urewera, recognised by both the Tūhoe and the state, and their shared understanding that the “Te Urewera should have legal recognition in its own right, with the responsibilities for its care and conservation set out in the law of New Zealand”17. The governance established by the Te Urewera Act is explained on theTūhoe people’s website.
18. The purpose of the Te Uruwera Act is to establish and preserve in perpetuity a legal identity and protected status for Te Urewera for its intrinsic worth, its distinctive natural and cultural values, the integrity of those values, and for its national importance, and in particular to:
- strengthen and maintain the connection between Tūhoe and Te Urewera;
- preserve as far as possible the natural features and beauty of Te Urewera, the integrity of its indigenous ecological systems and biodiversity, and its historical and cultural heritage; and
- provide for Te Urewera as a place for public use and enjoyment, for recreation, learning, and spiritual reflection, and as an inspiration for all.18
19. The principles for implementing the Te Urewera Act are contained in Section 5, Subsection 1 and acknowledge the multitude of conflicting interests, personal and legal, demanding that:
In achieving the purpose of this Act, all persons performing functions and exercising powers under this Act must act so that, as far as possible,—
- Te Urewera is preserved in its natural state:
- the indigenous ecological systems and biodiversity of Te Urewera are preserved, and introduced plants and animals are exterminated:
- Tūhoetanga, which gives expression to Te Urewera, is valued and respected:
- the relationship of other iwi and hapū with parts of Te Urewera is recognised, valued, and respected:
- the historical and cultural heritage of Te Urewera is preserved:
- the value of Te Urewera for soil, water, and forest conservation is maintained:
- the contribution that Te Urewera can make to conservation nationally is recognised.
Subsection 2 requires this so “that the public has freedom of entry and access to Te Urewera, subject to any conditions and restrictions that may be necessary to achieve the purpose of this Act or for public safety”. Regarding the aspect of safety the Te Urewera Act recognises in Part 2, Section 20, Subsection 2 the Crown’s responsibility under the Treaty of Waitangi.
Governance structure of the Te Urewera Act
20. The Te Urewera is governed by a Board. It is established in Part 2 subpart 1, which also sets out its purposes, functions, powers, and the process for the appointment of its members, as well as stating how the Board and the entity are to be treated for taxation purposes. Further provisions relating to the Board are contained in Part 1 of Schedule 2:
Te Urewera Act Part 2, Section 21: Appointment of members of Board
(1) For the first 3 years after the settlement date, the Board consists of 8 members, appointed as follows:
(a) 4 members appointed by the trustees of Tūhoe Te Uru Taumatua; and
(b) 4 members appointed jointly by the Minister and the Minister for Treaty of Waitangi Negotiations (the Ministers).
(2) From the third anniversary of the settlement date, the Board is to consist of 9 members, appointed as follows:
(a) 6 members appointed by the trustees of Tūhoe Te Uru Taumatua; and
(b) 3 members appointed by the Minister.
21. According to Part 1 subsection 7 the Board must adopt and publish an annual report. Board members acting in good faith are not personally liable for any act or omission of the Board (Section 30), company directors are similarly not liable for a company’s act or omissions, except occasions arising from failure of regulated director’s responsibilities. Costs of meeting any liability arising from any Board acts or omissions is to be considered first from the Boards resources and then from the trustees and the Ministers of Finance and of Conservation (Section 97). It also recognises in Part 3, Section 96 that “the Crown, and not the Board, is responsible for any liability to remediate Te Urewera land that is contaminated, if the contamination occurred at any time while the Crown owned the land”.
22. The current management plan of the Te Urewera recognises that there is a need to make new standards and that expectations will take time to grow, and as such there is a transition from the previous state management structure to the new one created by the Te Urewera Act.19During this transition period the New Zealand Department of Conservation and the Tūhoe people are working together to develop the operational relationship, starting with staff secondments to assist the Te Urewera Board.20
24. Although the management of the Te Urewera is carried out by the Board, the state is still responsible for the funding of the management (Section 53). An independent review is to be undertaken on the fifth anniversary (expected in 2019) of the settlement date to cover inter alia:
- the extent to which the purpose of this Act is being achieved;
- the functioning of the Board;
- the decision-making process of the Board, including the voting process provided for by Section 36;
- the structure and functioning of any committees; and
- the funding for the governance and management of Te Urewera.
C. Special aspects for attributing legal personality to nature or natural objects
1. Generally, New Zealand’s regulatory approach analysed above is exemplary for making clear the rights between nature as represented by its “trustees” (the Board), the state (the Crown) and other actors. In analysing the jurisdictions in this howtoregulate article, commentary was reviewed about the success or otherwise of the paths chosen to recognise nature’s rights. While, Uganda’s newly passed Act is promising it has not yet been tested. Whereas New Zealand’s Te Urewera Act is in its fifth year and appears to be operating as intended to protect the Te Urewera area.
I. Who represents nature?
2. Attributing legal personality to a company and nature means that as a legal person, the company/nature can enforce its own rights. Unlike a legal person, both the company and nature are artificial legal persons and require representatives to enforce their rights. Company regulation on the issue of directors duties, ensuring that a company’s best interests are observed is a constantly evolving and improving area of regulation. Regulating the rights of nature should make clear who represents nature and the requirements such representatives should follow.
3. Using the Ugandan example, anyone may represent nature to enforce the rights of nature according to principles in the Act. The benefit of this approach is that in a situation where the local people approve mining activity for economic development reasons but a nature conservation group believe such mining activity would harm nature because it is unsustainable, the nature conservation group could bring an action citing infringement of Section 5(2)(e). Using New Zealand’s Te Urewera Act, the Board decides on mining activity (Section 64) and access, and other groups who might disagree with the decision have limited grounds on which to challenge the Board’s decision. Notwithstanding this, the way in which the Te Urewera Act has been drafted and the Tūhoe people’s belief that Te Urewera are their ancestors, it is probably unlikely that the Board would permit any mining activity.
4. Another benefit of a clear representative of nature and clear management structure represented in the New Zealand regulation is that monitoring is completed by people who live in the natural area and are resourced to do so. In the example of Uganda, the Authority is responsible for monitoring activity in the designated Special Conservation Areas and have established monitoring processes.
5. The New Zealand model of attributing legal personality to nature and natural objects in a designated area deals with this problem most effectively because its legislation sets out a similar governance structure to that of companies in the sense that the management must make decisions in the best interests of nature. In the New Zealand legislation nature’s best interests are laid out as principles and should disputes arise, the courts have detailed principles to consider and determine, on the facts, whether a particular action is “in the best interests”.
6. New Zealand’s regulatory approach establishes an administrative structure that ensures nature’s rights are not infringed. This can be contrasted with Ecuador’s constitutional approach, which for political reasons, has not yet established an administrative structure and as such nature’s rights have to be enforced through the courts. Generally, rights enforcement through the courts is more costly and time consuming than enforcement through a governance system, although in some jurisdictions where government resources are constrained this might not be the case.
II. Conflict of rights
7. The regulation attributing rights to nature have included principles on which nature’s best interests can be determined. None of the regulation dealt specifically with how conflicts of various objects in nature (e.g. upstream natural event occurs that may harm downstream river area or a tree versus the forest it inhabits), overpopulation of a species harms eco system of another species or the most common conflict between human economic development and nature’s sustainable development.
8. New Zealand’s Te Urewera Act dealt with the subject of dogs specifically because of the harm they could do without being approved and conditions met. So Part 2 concerns the control of dogs, including permits, powers to revoke permits, powers to seize and destroy dogs. Other conflicts are dealt with generally in the Te Urewera Act, Section 46(1)(d) provides that the Board must explain in its management plan how any conflicts between planned outcomes will be resolved.
9. There is jurisprudence about conflicts of human rights at the international level and jurisdictions that have human rights regulations. Conflicts of rights between humans and nature has taken an anthropomorphic approach in that human sustainability trumps. However, in the Rights of Nature jurisprudence it is recognised that an anthropomorphic approach is short-sighted noting that without a sustainable nature or environment there will not be a sustainable planet in which humans can live. Developing requirements in regulation to assist courts and the governance structures navigating such conflicts is important to articulate. Articulating general principles in nature may not be the best course of action noting that different natural objects need different requirements for sustainability. The example of China’s Three Gorges Dam provides an interesting use case. China wants to bring industrialisation and clean energy to the rural poor using a resource they have a lot of, water. Hydro electricity is clean, however, damming the various tributaries of the Yangtze River has created complex socio-environmental consequences of the millions of displaced people and the geological instability (landslides, earthquakes and prolonged damage to the river’s ecology)21.
10. The Ugandan approach is useful with regards to the different ways in which different parts of nature need to be protected. Under Part V – Management of the Green Environment, Uganda’s Act outlines under Special Conservation Area the treatment different parts of nature require, including:
- Environmental management of lakes, rivers and natural beaches;
- Management and utilisation of wetlands;
- Management of hilly and mountainous areas;
- Management and conservation of biological diversity.
In each of these particular natural areas, the Authority shall ensure that the natural area is conserved for the common good of the people of Uganda.
11. It could also be useful to establish a hierarchy of rights specific to particular areas. This could be useful in deciding the rights between objects of nature where one object threatens the existence of another. This relates mostly to plants and animals, when one species, naturally experiences an overpopulation and this could threaten the sustainability of its food source (either plant or animal based) or the natural environment (beavers versus rivers) or a naturally occurring disease threatens the sustainability of plant or animal life (koalas and chlamydia).
12. Another option to protect any potential conflict of rights is to afford special protection to specific objects of nature. In the Australian territory of Australian Capital Territory (ACT), it has recognised trees requiring special protection in an urban area to be important for the urban eco system. The ACT Tree Protection Act established a system of tree registration on public and private land that identified trees of exceptional value, that ensured the protection of the urban forest cover of the city. All trees on the register must not be harmed. Activities that may harm the tree must be approved: major pruning or any groundwork near the tree (the dimensions and distance from tree is all regulated).22
III. Cross-border issues
13. Noting that today’s state borders are a political construct much of nature covers several jurisdictions. For example the Amazon basin covers nine states: 58.4% is contained within the borders of Brazil, Peru 12.8%, Bolivia 7.7%, Colombia 7.1%, Venezuela 6.1%, Guyana 3.1%, Suriname 2.5%, French Guyana 1.4% and Ecuador 1%.23The Ganges Basin rises in the Himalayan Ranges, covering Bhutan, China, India, Nepal and Pakistan, but the broader Hindu Kush Himalayan river system includes Afghanistan and Bangladesh, where other major rivers rise, the Indus and Tsangpo-Brahmaputra.amazon rainforest.24Although there exist either bilateral agreements for cooperation or multilateral agreements, such as the Amazon Cooperation Treaty Organization, which is an international organisation aimed at promoting the sustainable development of the Amazon basin, such agreements do not recognise rights of nature. Climate change is also a problem for nature and the global, multilateral processes led by the UN through the Framework Convention on Climate Change, has been difficult.
14. Bilateral or multilateral framework agreements are a useful tool to agree on the rules for cooperation and building high-level commitment to conserve and protect nature. It is unlikely that a progressive agenda to include formal rights of nature would be adopted at a multilateral level given the complexity of different jurisdiction regimes, even if they share the same legal tradition such as a civil or common law system. However, developing a governance system that has a similar effect can be useful. In this regard, ensuring that national regulations enable empowerments to cooperate with relevant cross-border authorities is important. The howtoregulate article on “Regulating Cross Border Services” presents a useful summary of empowerments that enable authorities to cooperate across borders, the key empowerments are reproduced below:
- Permitting own officers to take part in state operations of another state, particularly useful where the operation occurs in another jurisdiction, where there is a language difference eg. US and Mexican border;
- Permitting foreign officers to take part in own state operations on the territory of another state, in agreement with the latter state;
- Empowering foreign authorities to investigate cases on one’s own behalf on the territory of the other jurisdiction, see Sections 155A and 155B, Part XII, Volume 1 of Australia”s Competition and Consumer Act 2010 in relation to its neighbour New Zealand;
- Requesting foreign authorities to enforce on one’s own behalf on the territory of the other jurisdiction;
- Permitting staff exchanges: the US Federal Trade Commission (FTC) has staff exchanges with its Canadian and Mexican counterparts via Section 9 of the US Safe Web Act.
- Disclosing confidential information to authorities of other jurisdictions, for example Australiaʼs Competition and Consumer Act 2010 allows disclosure of confidential information to a foreign government body where it concerns “consumer goods, or product related services, associated with death or serious injury or illness”25;
- Establishing joint expert committees and data exchange needed for that purpose;
- Investigating or enforcing on the territory of the other jurisdiction, see Sections 155A and 155B, Part XII, Volume 1 of Australiaʼs Competition and Consumer Act 2010 in relation to its neighbour New Zealand;
- Enforcing on request of the foreign authority;
- Empowering foreign authorities to investigate cases on their own behalf on one’s own territory;
- Requesting foreign authorities to enforce on their own behalf on one’s own territory;
- Recognising foreign certificates or approvals;
- Extension of domestic investigation empowerments to cases committed outside the applicability of domestic law, but subject to the law of another jurisdiction where there is mutual assistance between the two jurisdictions (based on formal agreements or practical arrangements).
- Mutual legal assistance in general, including for court procedures, see Sections 106 onwards of Uganda’s Anti Money Laundering Act 2013; and
- Extradition of offenders for offences committed in other jurisdictions;
- No immunity from jurisdiction in relation to certain foreign laws, good example between neighbours of Australia and New Zealand, see Section 46, Division 2, Part IV, Volume 1 of Australia’s Competition and Consumer Act 2010 in relation to its neighbour New Zealand; and
- Transfer of witnesses in custody for court procedures in other jurisdictions.
15. The howtoregulate article on general empowerments contains a typology of empowerments, “Empowerments (Part 1): typology”and the second article “Empowerments (Part II): The empowerment checklist”, presents a checklist which can be used to verify that all necessary empowerments have been integrated into the draft regulation under development.
This article was written by Valerie Thomas, on behalf of the Regulatory Institute, Brussels and Lisbon.
International Rights of Nature Tribunal: created by rights of nature civil society groups to provide a vehicle for reframing and adjudicating prominent environmental and social justice cases within the context of the rights of nature based earth jurisprudence. https://www.rightsofnaturetribunal.org/about-us/
Riparian Doctrine: concerns tort law which recognises rights of property owners access to use the water adjacent to their land. Such law, and its regulation, does not recognise the rights of the waterbody itself to protection but could serve as a useful basis for understanding how future regulation and rights hierarchy could be structured. https://www.ag.ndsu.edu/ndwaterlaw/acquiringwater/easternlaw/ripariandoctrine
Australia’s water regulation is an advanced body of work worthy of reference, which does not recognise the water’s rights per se, but does use a market0based system to manage water conservation and “fair use”. http://www.agriculture.gov.au/water/policy/legislation
Christopher Stone’s article “Should trees have standing? – toward legal rights for natural objects” is a useful read on how legal rights for natural objects could work. https://iseethics.files.wordpress.com/2013/02/stone-christopher-d-should-trees-have-standing.pdf
1 ACHPR/Res. 372 (LX) 2017https://www.achpr.org/sessions/resolutions?id=414
3 The Gaia Foundation, Q&A: African Commission’s new Resolution (372) on Sacred Natural Sites and Territories,https://www.gaiafoundation.org/qa-african-commissions-new-resolution-372-on-sacred-natural-sites-and-territories/
8 IPCC. Special Report Global Warming of 1.5°C,https://www.ipcc.ch/sr15/
9 Pacific Island Forum, Boe Declarationhttps://www.forumsec.org/boe-declaration-on-regional-security/
10 Pacific Island Forum, Pacific Blue,https://www.forumsec.org/pacific-regionalism/
11 Secretariat of the Pacific Regional Environment,https://www.sprep.org/news/climate-change-resilience
12 Alberta Civil Liberties Research Centre, “The expansion of Public Interest Standing”,http://www.aclrc.com/public-interest-standing
13 New Zealand’s Te Urewera Act 2014, Section 11, http://www.legislation.govt.nz/act/public/2014/0051/latest/whole.html#DLM6183604.
14 New Zealand’s Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, Section 14http://www.legislation.govt.nz/act/public/2017/0007/latest/whole.html#DLM6830854.
15 New Zealand’s Record of Understanding for Mount Taranaki, Pouãkai and the Kaitake Ranges sets out the agreement between the New Zealand state and the eight local Mãori tribes to share guardianship of the sacred mountain area, including the granting of legal personality, https://www.govt.nz/treaty-settlement-documents/taranaki-maunga/.
17 Te Urewera Act Part 1, Subpart 1, Section 3, Subsection 9,http://www.legislation.govt.nz/act/public/2014/0051/latest/whole.html.
18 Governance of Te Urewera,https://www.ngaiTūhoe.iwi.nz/te-urewera-governance.
20 New Zealand Department of Conservation, “One year anniversary and a giant step forward for Te Urewera”,https://www.doc.govt.nz/news/media-releases/2015/one-year-anniversary-and-a-giant-step-forward-for-te-urewera/.
21 Chang, Chun Yin Anson et al, “Michigan Sustainability Case: Revisiting the Three Gorges Dam: Should China Continue To Build Dams on the Yangtze River?”,Sustainability: The Journal of Record, Vol. 11, No. 5, https://www.liebertpub.com/doi/full/10.1089/sus.2018.29141.cyac. Associated Press, “Three Gorges Dam has caused urgent problems, says China”, The Guardian, 19 May 2011,https://www.theguardian.com/environment/2011/may/19/china-three-gorges-dam.
22 ACT Transport Canberra and City Services, Information about Tree Protection on Leased Land, https://www.cityservices.act.gov.au/trees-and-nature/trees/information_about_tree_protection_on_leased_land.
23 Wikipedia entry for the Amazon Rainforest,https://en.wikipedia.org/wiki/Amazon_rainforest.
25 Australian Competition and Consumer Act 2010 (Cth)Schedule 2-The Australian Consumper Law, Chapter 3, Part 3.3-Safety of consumer goods and product related services, Division 5, ss. 131-132A. https://www.legislation.gov.au/Details/C2017C00369/Html/Volume_1#_Toc498505795.