US case shows key role of native rights

Khylee Quince

Khylee Quince: "Aotearoa has been world-leading in the recoginition of inherent rights of natural taonga..."

This article is republished from Stuff.co.nz, and written by Khylee Quince an acting dean in the School of at Auckland University of Technology. Read the original article.

Did you hear about the time that wild rice sued a state department?

That happened in a groundbreaking case in the United States last month, when litigation was filed in the name of “manoomin”, or wild rice, by the White Earth Band of the Ojibwe first nation. The case, against the Minnesota Department of Natural Resources, is an attempt to stop the construction of a 539-kilometre oil pipeline, that claimants say will interfere with the right of the rice to flourish – as a key food source for the local tribal peoples.

White Earth Nation lawyers claim that the rice is an indicator species, by which the health of the entire local ecosystem can be evaluated. In addition to the rights of the rice itself, the claim alleges infringements of tribal rights to hunt, fish and to gather wild rice.

While native peoples have often filed cases on the basis of breaches of treaty rights vested in them, the White Earth case is only the second of its kind in the United States to advance its claim on the basis of a “rights of nature” argument.

The rights of nature movement began in the 1960s and centres upon the belief that parts of natural ecosystems have inherent rights, as humans do, and that humans have legal responsibilities to enforce those rights. It is also a recognition of the reciprocal interrelationship between peoples and the environment, and a holistic view of all forms of life.

The effect of the recognition of rights of nature is that natural resources have “legal personality”, which means they have standing to take legal action to enforce their rights to exist, thrive and regenerate. Of course trees, mountains or rice cannot appear in court, so humans take legal actions on their behalf.

The attribution of legal personality to non-human entities has long existed in western systems, some of which have no physical existence. Companies or corporations, for example, can sue and be sued, own property, and form contracts and even be liable for homicide in some jurisdictions. Other non-human entities have also been recognised as legal persons. Ships in the historical admiralty courts were deemed legal persons for certain legal actions – because their human owners were often separated from them by vast distances, making enforcement of obligations difficult unless merchants treated the ships as if they were the other party to a contract.

A recent spurt of cases advancing arguments for conferring legal personality on non-humans has concerned the rights of animals, including elephants, monkeys and orangutans, although these have been generally less successful than the rights of nature developments. An American court in 2018 held that a monkey named Naruto could not file a claim for copyright infringement, after a wildlife photographer included several selfies taken by the crested macaque in a book.

The rights of nature movement is often described as being consistent with indigenous world views of nature that have persisted since time immemorial, where humans are just one element in the natural world – and no more important than other elements. This view runs counter to belief systems that view lands and resources as property, subject to ownership, use and exploitation by humans. By taking an inherent rights-based approach, this limits the conventional systems of environmental protection where states and local bodies regulate what is permitted.

Nations with significant indigenous populations have been at the forefront of rights of nature laws and jurisprudence. In 2010, Bolivia enacted the Law of the Rights of Mother Nature and a year later, a court in Ecuador successfully invoked the rights of nature recognised in its 2008 national constitution to halt construction of government roads, on behalf of the Vilcabamba River, and protecting the river’s rights to flow and be healthy.

In recent years the Ganges River was declared a legal person by the High Court of Uttarakhand, appointing three human trustees to protect the rights of the river, in the hope that it would assist legal efforts to relieve her of choking pollution.

Aotearoa has been world-leading in the recognition of inherent rights of natural taonga including Te Urewera, the Whanganui Awa and Taranaki Maunga, as part of the Tiriti settlement process with iwi Māori. The coming together of Māori views of te taiao (nature) and legal means of advancing those values is cemented in legal instruments that recognise the legal standing of natural resources, in granting them the “rights, powers, duties and liabilities of a legal person”. The mechanism for protection of the mauri of the Whanganui River is a testament to the promise of Tiriti partnership, in providing for a representative from each of the Crown and local iwi to work together in the interests of the awa. The connection between environmental protection and constitutional transformation is drawing the attention of native peoples globally.