can
nature
have rights?
In a global fight against climate change, nature is often treated as a silent victim or a passive backdrop to human needs. Although climate activists demand justice for the planet, our current legal system might not be fit to meet those demands.
As the ecological crisis deepens, a once-fringe question and idea is slowly entering our minds: can nature itself have rights?
The burden of ownership
At the University of York, legal and political scholars have long debated how the question regarding nature rights has evolved and are currently being debated in the UK. According to them, our notion of nature’s rights is intimately linked to our ideas about ownership, local community and culture.
For example, Professor Stephen Levett, Director of the Sustainability Clinic and Co-Director of the Baroness Hale Legal Clinic at York Law School, says that our current legal system is built on a dated notion of land and water as non-sentient resources incapable of acting out rights.
"If you had asked about nature’s rights 20 years ago, you’d probably have been laughed out of the room. The idea that a river or a forest could in some way possess rights would just have been seen as ridiculous, because the British concept of property ownership conflicts with the concept of nature having rights," says Professor Levett.
In this framework, nature is something we possess, regulate and exchange and the idea that nature has rights seems both inadequate and ridiculous. However, in the last few decades new ideas from climate activists, indigenous traditions and even new laws have allowed for a shift in perspective.
“I think nowadays people are more prepared and more open to considering what that might mean," Professor Levett says.
“If you had asked about nature’s rights 20 years ago, you’d probably have been laughed out of the room.”
“If you had asked about nature’s rights 20 years ago, you’d probably have been laughed out of the room.”
The indigenous perspective
The reason for this shift in perspective lies partially in a number of groundbreaking legislative changes. For example, The Te Awa Tupua Act in New Zealand granted personhood to the Whanganui River. It legally defines the river as an ‘indivisible and living whole’ that includes all its physical elements, from the mountains to the sea. In a similar move, the Colombian Constitutional Court issued a landmark ruling in 2016 that declared the Atrato River a ‘subject of rights.’
While there are reasons why these countries are more willing to recognise the rights of nature with the help of and through the guardianship of their indigenous populations, similar legislation is tricky for a country like England.
“Here in the UK, it is sometimes difficult to conceive of who would enforce the rights that the natural entity was given because you generally need to give somebody the power to enforce those rights.”
This difficulty is reinforced by Dr Alison Dyke, a Research Fellow in the Stockholm Environment Institute at York. Dr Dyke’s work on the Rights of Rivers in Practice project suggests that in countries like New Zealand and Colombia, the push for river rights has been intimately linked to and depended on the local, often indigenous worldview where the Western separation between subject and object does not exist.
Dr Dyke explains: “In Western law, there is a clear separation between different types of entities: subjects, usually humans or institutions, and objects, which are generally corporeal. The former has rights and responsibilities while the latter needs human representation to claim its rights.”
One way to move away from the subject/object dichotomy and the practical difficulties it involves would be to translate nature’s rights into ‘health rights.’ Given that health is a scientific standard that can be measured, the content of those rights becomes clearer.
This is something that Dr Himani Bhakuni, Lecturer in Law and PGR Director at York Law School, advocates for:
“Under the term ‘health rights’, natural systems such as a river and glacier have a reasonable claim to health in and of themselves.”
Instead of lawyers arguing about what a right means, you have ecologists, hydrologists, and biologists testifying on what a healthy river looks like. They can present data on chemical composition, biodiversity, water flow, and sediment load.”
Such a view aligns closely with how some indigenous frameworks have legally dealt with nature rights. For decades, indigenous traditions have provided a blueprint for how we can shift our perspectives.
To do this, we need to challenge the Western paradigm about the separation of object and subject and make room for a world view where human rights sit alongside nature rights.
As Dr Bhakuni points out, “Indigenous traditions can be regarded as a foundational source and a significant driving force behind the evolution of environmental law toward more holistic and sustainable models.”
A shift in the cultural mindset
“In Frome in Somerset, for example, there was an attempt to give an organisation within the city a defined position under a local by law which would enable them to act on behalf of the river," says Professor Levett.
The 2018 Frome case attempted to grant legal personhood to a stretch of the River Frome and the adjacent Rodden Meadow. The bylaw would have given the river the legal right to ‘exist, flourish and thrive.’
The bylaw was blocked by the Ministry of Housing, Communities and Local Government as they argued that it duplicated existing national environmental laws and was therefore unnecessary.
The newfound interest in the rights of nature has instead transformed how local communities embrace their role as guardians. This is something Dr Dyke has noted:
“The Rights of Rivers in Practice project realised that a key factor for successful application of legal rights of nature is the need for it to reflect and work with the worldview of the local people.”
In Dr Dyke’s research, participants with no prior knowledge or interest in trees proposed that trees should be treated as citizens in recognition of the benefit that they provide to people.
According to Dr Dyke, “The fact that participants with no prior interest in trees or nature’s rights were able to share stories about their relationship with nature, and identify measures that would enable care to be enacted is encouraging. Surfacing the existing relationships and the practices that people currently engage in to care for and celebrate nature across the cultural make-up of the UK could be harnessed alongside historical traditions such as wassailing.”
In order to propel this interest in the care of nature and introduce a more widely recognised framework where nature sits on par with humans, both Professor Levett and Dr Dyke agree that a cultural change is needed.
Professor Levett imagines a similar situation as when smoking went from socially acceptable to largely banned and frowned upon. This was not down to legislation, but mainly came about through a shift in the cultural mindset.
“There was clinical evidence showing that it was bad for your health, which led to people saying, ‘hang on a minute, I don't want to smoke anymore.' So it was a wider conversation and awareness-building. But it wasn't necessarily driven by legislation. So I think sometimes we look too much to law to solve things and it's just not always the most effective way," says Levett.
“I think sometimes we look too much to law to solve things and it's just not always the most effective way.”
“I think sometimes we look too much to law to solve things and it's just not always the most effective way.”
River Frome near Ridge by Tom Robson, CC BY-SA 2.0
Weir and footbridge over the Frome by Neil Owen, CC BY-SA 2.0
Kayaks moored on the River Frome at Wareham by Eirian Evans, CC BY-SA 2.0
“The question is not whether representation is possible but who is empowered to speak through them and on what terms.”
“The question is not whether representation is possible but who is empowered to speak through them and on what terms.”
Nature as a legal person
In a different take from both Professor Levett and Dr Dyke, Dr Bhakuni believes that giving nature legal personhood would instill a new form of governing, leading to a shift in perspective. Bhakuni thinks we need to move away from individual court cases to a holistic duty of care that is legally enforced.
Instead of adversary relationships, we need to work collaboratively to uphold the law. This approach would replace reactive and adversarial lawsuits with proactive governance, ensuring that rights are protected before violations occur, rather than looking to legal frameworks to remedy the situation after damage has been done.
As Dr Bhakuni explains: “Rights of Nature is the powerful slogan that gets the law passed, but the green governance hidden inside is what actually transforms our relationship with the natural world. So, the real change is not the right itself, but the new governance structures that the law can create.”
Although the merging of the rights of subjects and objects might struggle to find its place in Western society, Dr Bhakuni argues that giving nature legal status automatically turns it into a subject.
“Granting rights with the associated legal personhood is the established legal shortcut to change nature’s status from object to subject. This gives the river legal standing, which means guardians can walk into a court room and sue on behalf of the river itself, arguing for its right to flourish or regenerate," says Dr Bhakuni.
Bhakuni notes that the law already grants rights to entities that are not sentient, such as corporations, which can file lawsuits, be sued and own property without the need for thoughts or feelings.
According to Bhakuni, if non-sentient human-made economic constructs (such as corporations) can be granted personhood, we should be able to grant personhood (and hence rights) to non-sentient natural entities.
Unlike corporations, in this approach, nature would be treated as a full legal person without obligations or liabilities, similar to children and infants.
Professor Levett takes a similar approach but notes that all non-sentient persons, whether they are corporations or rivers, require human representatives.
“We already recognise non-human entities and give them legal powers. The question is not whether representation is possible but who is empowered to speak through them and on what terms," says Levett.
Dr Dyke agrees: “Guardianships are key features in river rights, but in order to be effective, people need to be empowered to represent the river in a way that they feel is appropriate. In the case of the Atrato river in Colombia, a substantial proportion of the local population is made up of descendants of formerly enslaved people, with a history of successful resistance and struggles for autonomy and collective rights.This history of resistance is what has given the people the political capability that they need for successful representation.”
The power of the individual
While the Western legal apparatus might lag behind, it is clear that Western societies have an increasing awareness of and interest in utilising alternative perspectives to look at both their own and nature’s place in the modern world.
In light of this, rather than looking for the answers to nature rights in a court room, we should perhaps ask ourselves how we can empower the everyday public community to be champions of and work with, rather than against, nature.
“If nature’s rights are to be taken seriously, we must resolve how conflicts between human needs and nature’s interests are handled.”
Whether it is through legislation, health rights or local guardianship, the goal remains the same: to give nature a voice and a stake in how we all choose to move forward. How we do this might be down to us as individuals, as Professor Levett says:
“I think the real change over nature’s rights will have to take place in the hearts and minds of the people.”
More about this research
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