Can the ‘Rights of Nature’ legal framework integrate Indigenous philosophy to achieve properly ecocentric environmental protection?

“Our destructive and disruptive capacities are spinning the Earth system into uncharted waters and rapidly creating a planet unfit for humans and life as we know it”, writes ecologist and climate scientist Brendan Mackey, noting the systematic exploitation of nature by industrialised societies in the Anthropocene era. “The only thing we have any chance of controlling and managing is the behaviour of humans, individually and collectively.” With anthropogenic impacts already exceeding many of the Planetary Boundaries¹ within which humanity can live safely, the political implication is clear: we must all act in concert — across every sector, industry and discipline — to work the various levers of system change. 

Educational reform is part of this picture, with an education in philosophical inquiry having an important role to play in questioning the overall purpose of our socio-political, economic and legal systems as well as in altering public mindsets. It’s ideas, after all, that drive cultural change. A more widespread, accessible and inclusive education in philosophical inquiry would lay the ground for young people to think more deeply about what they value, what sort of world they want, what compromises are worth making to get there, and how best to communicate with others who disagree.

The destruction of our climate and ecologies by powerful state and corporate actors didn’t materialise in a vacuum. It stems from an anthropocentric worldview that privileges human welfare over that of all other living beings. To reverse the damage, we need a different set of behaviours rooted in a different worldview. Ecocentrism regards nature as inherently worthy of moral consideration, and recognises humans as interconnected with and interdependent on the complex web of life. This orientation to the natural world represents nothing less than a Copernican revolution in thinking. It rejects a basic tenet of Western property law, according to which nature is conceived as a resource for human consumption, and land ownership entails the legal right to destroy that piece of land.

Decades of anthropocentric environmental law, even when enforced, have amounted to little more than a system of organised non-liability that suppresses the environmental protections it was supposed to provide. Some environmental thinkers and activists are pinning hopes on Rights of Nature, a relatively new legal framework that seeks to ‘dismantle the source code’ of Western property law. In line with other justice movements which have succeeded in converting non-rights-bearers into rights-bearers, Rights of Nature proposes to transform the legal status of the natural world from being property to itself being recognised as a legal entity with certain legal rights that need to be protected. This may involve granting legal personhood to natural entities like rivers, so that their rights to exist and flourish can be upheld, and their interests represented in courts of law.

The notion that “where life exists, rights exist“, while controversial, is axiomatic among Rights of Nature proponents. But the public recognition of rights emerges from negotiated decisions among stakeholders who are authorised to speak for given communities – so it’s not surprising that rights have historically been claimed by and for those with a (literal) voice to claim them. As a result, rights discourse is suffused with anthropocentrism – the very same anthropocentrism that gave rise to the systematic exploitation of nature in the first place.

So, is it actually possible for the Rights of Nature framework to achieve a complete shift to ecocentrism? Erin O’Donnell articulates the tension as follows:

On the one hand, we’re trying to radically transform legal systems to say ‘nature is no longer just an object. It is a participant. It is an equal with humans’. But the way we’re doing that is to bring nature in to an anthropocentric legal system and to basically make it into a corporation… Those ideas sit very uncomfortably with each other. How can you radically transform the system, whilst … collapsing nature … into nothing more than the legal fiction of a legal person, and then insert it into a human environment and expect it to participate as a human would in that environment?”

The very concept of rights is rooted in the individualistic and hierarchical orientation of mainstream Western political thought, a worldview that classically undervalues interconnectedness, interdependence and holism. Just as Western legal systems have long fragmented nature into ‘things’ that in reality are never dissociated (e.g. the forest from the soil, the underground water from biodiversity, the land from the minerals), so too Rights of Nature — when applied to entities like rivers, glaciers or mountains — unavoidably fragments nature. And although Rights of Nature avoids treating nature as human property and actually strives to protect nature from exploitation, it still risks reducing the Earth System to a collection of subjects rather than a comprehensive whole. Natural entities are not discrete but intertwined in complex networks, so any attempt to delineate their boundaries (as Rights of Nature often demands) is a fool’s errand.

Even in a Rights of Nature case such as Naarm/Melbourne’s Birrarung river and its lands (which jointly acquired legal personhood as one living and integrated natural entity), any attempt to delimit the river and its lands biogeophysically would meet the Sorites paradox, in which boundaries are too vague to define. Further, all rights — including Rights of Nature — are hierarchical, in the sense that legal systems need to determine which rights take priority in an adversarial conflict.

The philosophy of Indigenous relationism is helpful here. Inspired by Aboriginal creation stories, Indigenous relationism describes humans being eternally bound to care for the Earth and its resources according to a law of obligation. This duty of care, or ‘Indigenous custodial ethic’, recognises a reciprocal relationship between the Earth system (which created and continues to sustain us) and its human inhabitants — a relationship that must be maintained in stable balance if we are to have long-term security and socio-political order.

Rights of Nature experts ask: ‘Who can speak on behalf of the more-than-human?’, but perhaps nature doesn’t need a voice audible in the Courts in order to be  worthy of care. If you speak to Indigenous peoples about their relationship to a river, they talk about it as being one of reciprocity and mutual obligation, based on a sense that the people and the river co-created each other. These ideas don’t readily align with the Western concept of legal duties. 

While it’s often said that Rights of Nature has Indigenous roots, Indigenous people don’t necessarily recognise a continuity between their relationist ethos and the Rights of Nature framework. As lawyer Thomas Linzey says of his conversations with Maori activists in an Indigenous co-management program: “When I raised the phrase ‘Rights of Nature’, they didn’t even recognise the phrase’.” Another example: after legal personhood was granted to Aotearoa New Zealand’s Whanganui river in 2017, the lead negotiator for the Whanganui tribe said his people had fought to find an approximation in law of the Indigenous perspective of the river as a living entity — an indivisible whole, revealing that even Rights of Nature victories are seen as a compromise from the perspective of Indigenous relationism. Similarly, the Te Urewera rainforest — widely regarded as a Rights of Nature success story, with the rainforest being recognised in 2014 as a legal entity and the Tūhoe people as its guardians — was still a compromise on what the Tūhoe actually want: simply the return of their land. The idea that the government had to grant these rights of nature is almost offensive to those who live there. 

From the perspective of Indigenous relationism, which centres an ethic of care, Rights of Nature represents an unduly clinical, bureaucratic approach to ethics. Concepts key to rights discourse such as respect, dignity, individuality, entitlement, empowerment and validity are deeply incommensurate with concepts in care discourse such as compassion, sympathy, empathy, kindness, concern, and solidarity. The focus within Rights of Nature on regulations, enforcement and sanctions is fundamentally at odds with feelings of love and warmth implicit in the caring, custodial relationships that define Indigenous relationism. It’s hard to just mash these two very different justice systems together.

To the extent that Rights of Nature proponents make progressive efforts to transplant Indigenous relationist values into a Western legal framework, we see an ambivalent rapprochement between the two systems of thought, but Indigenous relationism and Rights of Nature remain strange bedfellows. To complicate matters, the two systems are frequently muddled, as in Senator Mehreen Faruqi’s first speech to Parliament: “Nature has intrinsic value… Let’s enshrine the rights of nature in law to protect Australia’s natural wonders, like the Great Barrier Reef, the Great Artesian Basin and the Murray-Darling system, from greedy exploitation… [to achieve] a more caring, kind and compassionate world”.

While Indigenous relationism and Rights of Nature both come under the umbrella of Earth Jurisprudence, I consider them to be philosophically incompatible systems of thought, elements of which may be synchronously applied but not properly fused. Common law and Indigenous customary law inhere in different normative systems. As long as the Rights of Nature framework remains dominated by individualistic and hierarchical thinking, I’m doubtful that it can attain its ecocentric ideals. Yet to abandon Rights of Nature altogether would be risky for a world already in crisis. While nations like Australia remain colonial powers and are subject to state capture by extractive industries, we dare not overlook the potential contribution of any system that strives for more ecocentric outcomes.

Legal pluralism — in which Indigenous laws, values and interests are respected, and Indigenous people are included in community ecological governance structures — is more likely than legalistic Rights of Nature alone to succeed in both protecting ecological systems and achieving a more reciprocal relationship between people and place. Some researchers argue for a restorative approach to be integrated holistically into environmental law so that it permeates regulatory practice. I maintain that true integration between such heterogenous systems is troublesome, but elements of Indigenous relationism can be dovetailed with Rights of Nature with the goal of dismantling the structural and systemic drivers of planetary degradation. 

Proponents of Rights of Nature who share this radical, transformative vision have begun pushing for a widespread paradigm shift in which nature is not only legally recognised as a rights-bearer, but deeply and universally felt to be a living being. The ambition here is far-reaching and profound: to reset and reframe the human relationship with nature, enabling meaningful change.

Ultimately, though, this may not be enough. Even a visionary and sensitive Rights of Nature movement may be unable to reform a hegemonic legal system that is shot through with anthropocentrism. For this reason, we might better view Rights of Nature, as investigative reporter Amy Westervelt does, as a step on the pathway to Indigenous sovereignty. Westervelt’s next question is one we should each ask ourselves, our governments and civil society: “Do we really need to force the Indigenous system into the coloniser Court system, or can we just give Indigenous peoples real sovereignty?”

When it comes to hot-button issues, there’s one thing that discussions often miss, and that’s nuance.  Whether in the media, in Parliament, in online forums, or in school classrooms, it’s easy to paint with a broad brush, obscuring relevant details to achieve the appearance of decisive victory in a narrowly-framed, two-sided debate. More subtle analysis demands skill, patience, and intellectual humility, but it’s worth the price: it rewards us with more discerning judgements and deeper understanding. A new conversational norm requiring attention to nuance would make discussing controversial issues less of a blood sport and more of a sleuth’s mission: following subtle clues to the most credible conclusions. In this post I’ve tried to model how attention to nuance can help to navigate a complex and fraught issue.

If you share an interest in how Earth Ethics intersects with philosophy education, and if you’re wondering how concepts of ecocentrism and ecological justice might be explored through philosophical inquiry, please get in touch, join our community of practice, or propose a collaboration. Together we can press more firmly on the furthermost lever of system change — enabling people to change their paradigms and mindsets to align with their most deeply felt values and their most careful reasoning.

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Postscript, 8/9/2022

The following two quotes from philosophers seem relevant to this post:

The proponents of competing paradigms practice their trades in different worlds. (Thomas Kuhn)

Since there is at most one world, these pluralities are metaphorical or merely imagined. (Donald Davidson)

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Note

¹ In 2009, Johan Rockström led a group of 28 internationally renowned scientists to identify the nine quantitative processes, or ‘Planetary Boundaries’, that regulate the stability and resilience of the Earth system. Within these boundaries, humanity can continue to develop and thrive for generations to come; crossing these boundaries increases the risk of generating large-scale abrupt or irreversible environmental changes.

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This post was inspired by the Australian Earth Laws Alliance course ‘Earth Centre Futures’. For an extended version of this piece, including academic citations and references, please read my essay An uneasy alliance: Critiquing Rights of Nature from the perspective of an Indigenous relationist ethos.

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