Air Date: Week of November 17, 2017

The mighty Colorado River. (Photo: kendiala, Flickr CC BY-NC 2.0)

Environmental lawyers are claiming in court that land, rivers, and other natural features should own themselves rather than being considered property, much like the law already treats corporations as ‘persons.’ The case for treating elements of nature as legal ‘persons’ is outlined in the book, Rights of Nature: A Legal Revolution That Could Change the World by environmental lawyer David Boyd. In a conversation with Living on Earth Host Steve Curwood he explained how this approach can go a long way to protecting critical ecosystems from human exploitation and destruction.

Transcript

CURWOOD: Less than 150 years ago in America, black people finally won the right to be full citizens and vote, and voting rights for women followed 50 years later. And less than two decades ago, people in America won the right to marry whomever they choose, regardless of gender. Over time the rights of people to fairness and equality have expanded, and now there is a move to extend intrinsic rights to exist to nature.

Environmental lawyer David Boyd has written a book called "The Rights of Nature: A Legal Revolution That Could Save the World". He says, trees, rivers, and ecosystems have basic rights that we, as a part of nature ourselves, are morally bound to honor. David Boyd teaches law at the University of British Columbia and he joins us now from his home in the San Juan Islands.

Welcome to Living on Earth, David.

BOYD: It's a real pleasure to be with you, Steve.

CURWOOD: So, a legal revolution that could save the world. Explain the concept of personhood rights for nature and why you believe it's not such a wacky idea.

BOYD: OK. Well, you know, people think of a wacky idea as being human rights for nature, and that's not what we're talking about here. We're not talking about chimpanzees or endangered species or ecosystems having human rights, like the right to vote. What we're talking about is legal recognition of the rights of animal species and nature. And in our western legal systems we've recognized the legal rights of non-human persons for many, many years. So, examples include municipalities and corporations that we designate as legal persons, and then through the law we articulate what are the rights of a corporation, for example. So now what's emerging around the world in terms of the rights of nature are, what are the rights of a river? What are the rights of a chimpanzee? What are the rights of an ecosystem? So, we have to be quite clear in distinguishing human rights, which we're not talking about, from the rights of legal persons which we are talking about.

CURWOOD: Now, you live among the San Juan Islands off Vancouver and Seattle, and you write in your book about your relationship with a particular set of sentient creatures, and you suggest that maybe they inspired you to do this work. Talk to me about those creatures and what you've observed and why they inspired you.

BOYD: Uh-huh. Well, Steve what you're referring to there are a population of killer whales that live here. They're called the Southern Resident Killer whales and they are an absolutely extraordinary species that swims past Pender Island routinely during the spring, summer, and fall in pursuit of Chinook salmon which make up 80 percent of their diet. Now, these Southern Resident Killer whales suffered a severe blow in the 1960s and 1970s when over 50 of them were kidnapped and taken for display in aquariums in Canada, the United States, and around the world, and as a result they've been on Canada's endangered species list for decades now. Unfortunately, their population is not recovering, and that's because of declines in Chinook salmon, pollution of the ocean and disturbance from vessel noise. But I have a little writing cabin where we live here on Pender Island, and I can actually hear those whales when they're going past.

[SOUTHERN RESIDENT KILLER WHALE SOUNDS]

BOYD: Once, I was on a sailboat and the captain threw a hydrophone overboard when we came across a pod of killer whales, and I can tell you that about 12 of us were on board and all of us were literally in tears listening in on the communication. I would call it a conversation between these killer whales.

[MORE WHALE SOUNDS]

BOYD: They have brains that are larger than human brains. They have this incredibly sophisticated sonar or echolocation system. They live in matrilineal societies, and they really are in deep, deep trouble because of human actions, and so they inspired me to write this book and they're also inspiring me to continue working on their behalf and advocating for recognition that these orcas have rights.

CURWOOD: So, what kind of rights would facilitate the continuation of the orcas there?

BOYD: Well, orcas are a good example. So, again going back to our earlier conversation, orcas don't need human rights. They don't need the right to vote. But orcas do need the right to a clean environment. They need the right to an adequate supply of food, and they should have a right not to be disturbed and harassed by humans. And those basic rights, if we actually recognized them in law and then fulfilled our responsibilities towards the orcas, would probably be their best shot at surviving beyond the 21st century.

CURWOOD: So, in your book you talk about the, the evolution of rights. Black people like me didn't have the right to vote, were held as slaves. Women didn't have the right to vote, couldn't own property. Blacks and women were viewed as property before they got rights, and it seemed to me that in most cases nature is viewed somehow as property of humans as well.

BOYD: No, you're absolutely right and that is really at the heart of the problems that we're facing today in the world. You know, we live in a world where scientists are telling us that we're in the midst of the sixth mass extinction in the four-and-a-half billion year history of the planet. I mean that has to be an eye opener for human beings who care about their future and their children's future, and one of the things that's driving that mass extinction is the fact that we regard nature and animals, whether domestic animals or wild animals, as property. And, you know, if you look at a map of the globe, Steve, with over 150 million square kilometers of land, we as human beings purport to own every square inch of that land. It's really an act of breathtaking arrogance for one species among tens of millions of species to say, “It's all ours.”

CURWOOD: How do you get people around this concept of personal property. I mean, the very notion of where people in Western society live, they "own real estate".

BOYD: Yes, and you know that's going to be probably more challenging when we get down to people's personal property, but I think a huge amount of land in the world is ostensibly owned by governments, and governments don't have the same personal attachment that individuals do.

CURWOOD: So, most cultures see nature as property of humans. Which cultures are exceptions to this trend?

BOYD: Well, that's a great question, and, you know, indigenous cultures around the world, whether in Canada the United States or New Zealand and Australia, indigenous cultures have never seen nature as property. They've always seen nature as relatives, as part of a community to which they belong. So, you know, if you think given the great American conservationist Aldo Leopold said, "The only way we can solve all of these problems is to stop treating nature as a commodity which we own, and recognize nature as a community to which we belong," and I think although Leopold, although he expressed that very eloquently, was just restating something that's been core to the societies and the cultures of indigenous people around the world. And so, what's really fascinating from a contemporary perspective is that the resurgence of some of these indigenous cultures is resulting in laws in western countries, such as the United States and New Zealand, where laws and governments are actually recognizing the rights of nature.

[MUSIC: Paul Halley/Eugene Friesen/John Clark/Jim Scott/Glen Velez/Humpback Whale, “Lullaby From The Great Mother Whale For the Baby Seal Pups” on Concert For the Earth, Living Music]

CURWOOD: That’s environmental lawyer David Boyd. Our discussion about the Rights of Nature continues just ahead here on Living on Earth. Don’t go away. 

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[CUTAWAY MUSIC: Paul Halley/Eugene Friesen/John Clark/Jim Scott/Glen Velez/Humpback Whale, “Lullaby From The Great Mother Whale For the Baby Seal Pups” on Concert For the Earth, Living Music]

CURWOOD: It’s Living on Earth, I’m Steve Curwood.

We’re back now with David Boyd, author of "The Rights of Nature: A Legal Revolution That Could Save the World", to continue our discussion of the notion of recognizing the legal rights of ecosystems and natural features to be themselves. So, David, where did this idea really start to catch on?

BOYD: Well, the idea, actually, you know, beyond indigenous cultures, the first time this idea arose in a legal context was actually in the United States. It happened when Walt Disney, the great movie mogul, was proposing a ski resort development in a beautiful area of California's Sierra Nevada Mountains, known as the Mineral King Valley, and in one of the first environmental lawsuits in American history the Sierra Club challenged the approval of this ski resort and actually succeeded in getting an injunction to block its construction. However, Walt Disney appealed that court decision and was successful in overturning the injunction on the basis that the Sierra Club had no standing to bring the lawsuit, that no Sierra Club members were being personally or financially harmed by the project, and the Sierra Club then appealed that to the Supreme Court of the United States, you know, the highest court in the land.

And so when the, this case about the proposed ski resort in the mineral King Valley went to the Supreme Court of the United States, Justice Douglas wrote a very powerful dissenting opinion in which he argued that if ships and municipalities and corporations could be viewed by the law as persons, then so too should Pileated woodpeckers, coyotes, trees, and the valley itself. And that decision of the US Supreme Court could have marked a turning point in the history of law, but instead became kind of an academic footnote. Justice Douglas was unable to persuade any of his colleagues to go along with his radical conception of rights for nature, and so the whole idea of rights for nature kind of languished in academic obscurity from the 1970s until the 21st century, and then it really has been resurrected both in the United States and around the world with increasing frequency over the last 10 years.

CURWOOD: So, talk to me about the first country to include personhood for nature in its constitution and why they did it.

BOYD: The first country to include nature's rights in its constitution was the Latin American country of Ecuador, and Ecuador is a country with a very substantial indigenous population, and it was really indigenous people who were the drivers behind this. So, Ecuador was drafting a new constitution in the years 2006, 2007, and a coalition of indigenous people came forward with the idea that the constitution should include not only human rights but rights for what they call Pachamama, which is a Quechua word for Mother Earth. And they were so persuasive that they managed to convince the citizens assembly that was drafting the Ecuadorian constitution to include a series of articles in that Constitution which do recognize the rights of Pachamama. And that revolutionary constitutional document has now been incorporated into more than 70 different environmental laws and policies in Ecuador, so it's permeating the entire legal system. It's in their criminal code, it's in their environmental code, and those rights of nature have actually been relied upon in about two dozen lawsuits now.

CURWOOD: There's been a lot of focus on New Zealand in this battle for nature's rights. What's happened there? What have they accomplished?

BOYD: Well, New Zealand is actually, I think, the most exciting and the most important story in the whole rights of nature movement. New Zealand is a country, again, that has a substantial indigenous population, and it's the Maori people of New Zealand who have been the drivers behind recognition of the rights of nature in New Zealand. There have been longstanding negotiations in New Zealand taking place to try and right the wrongs that were inflicted upon the Maori by the colonial government over the course of the past 150 years. And about five years ago a fascinating agreement emerged dealing with a river called the Whanganui river which is of great cultural importance to certain Maori sub-tribes, and this agreement was revolutionary in that it designated the Whanganui river as a legal person and articulated a series of rights that the river possesses and then created a guardian kind of model which would be comprised of Maori individuals and the government of New Zealand individuals who have a mandate to ensure that the rights of the Whanganui river are protected.

That agreement was translated into law. A law was passed by the New Zealand Parliament earlier this year, and that was actually the second rights of nature law because in the interim, a second law had been passed dealing with an area formerly known as Te Urewere National Park, and, again, this was land that had been wrongly taken from the Maori over the course of the past 150 years. The National Park was created in the 1950s on land that the Maori at that time and for all time had consistently asserted was their land.

Now, in the course of negotiations between the New Zealand government and the Maori, they actually reached a verbal agreement that the government would return that land, return the National Park to the Maori. But at the eleventh hour the prime minister of New Zealand phoned the chief negotiator for the Maori and said, “We can't do that. It's a bridge too far”. And any other human being who I think had been through that grueling course of negotiations with the whole back story of mistreatment over the course of a century would have maybe walked away. But to Mattie Kruger, this incredible Maori individual, he actually just turned the other cheek to that insult and said, “OK well let's figure out a different solution,” and the solution that the Maori put forward was why don't we take this area and remove its national park status, but designate it as a legal person and then take the government of New Zealand's title to that land and give it to the legal entity we've created. So, in effect the land will own itself.

And so this area of 400,000 acres on the North Island of New Zealand is now the first place I'm aware of in the world where humans have relinquished our assertion of ownership and recognized that it's actually probably more sensible and certainly more sustainable for the land to own itself.

CURWOOD: So, where is the United States on this issue? What have been our legal turning points for nature?

BOYD: Well, you know, the United States is a fascinating country from a legal perspective. As I mentioned earlier, it was the Sierra Club lawsuit about the Mineral King Valley that led to this whole idea of rights of nature gaining currency, but more recently what we've seen in the United States is a revitalization of those ideas at the community level. So, we have a grassroots movement in the United States that is achieving remarkable transformation.

So, the first American community to pass a “rights of nature” ordinance was a small rural community in Pennsylvania called to Tamaqua Borough, and the citizens there were really concerned about a proposal to spread sewage sludge on agricultural land around their community, and they were worried about the potential impacts on their drinking water. And what they found, and this has kind of been consistent over the past decade, they found that the American environmental laws, both federal and state, were really not doing the job of protecting their drinking water from these kinds of threats. And so they took a different route, and they passed this “rights of nature” ordinance, and that precedent that was set by Tamaqua Borough some 12 years ago has now been followed in over three dozen different American communities ranging from Santa Monica, California, to Pittsburgh, Pennsylvania.

So, you know, this has really become one of the most intriguing and I think promising battlegrounds in the United States for the future of environmental prosperity, environmental sustainability, and democracy as these community rights of nature ordinances.

CURWOOD: Now there's a lawsuit filed against the state of Colorado that seeks to win personhood for the Colorado River. What are the problems that the river is facing, and how would legal personhood help the Colorado?

BOYD: Well, the Colorado River which is, as you know, one of the great natural phenomenons of the United States, having carved the Grand Canyon -- I mean just sit back for a moment and consider that, that the Grand Canyon was carved over eons by the Colorado River -- I think the biggest single problem facing the Colorado river in the year 2017 is human overexploitation. I mean, this is a once great river which in some years is reduced to a trickle before it reaches the ocean, and that's because too many people are taking too much water for agriculture, for industry, for municipal uses, and what recognizing the rights of the Colorado River would do, you know, what kind of rights does the Colorado River need? It needs, at its most basic level, it needs the right to a minimum flow of water.

CURWOOD: So, you're an attorney. What are the odds of the Colorado winning?

BOYD: I would say that it's a David and Goliath struggle, to be honest. The American legal system is more conservative than the legal systems in other countries, but all it takes really is one judge with the courage of her or his convictions to do what is right in this case and to make a judgment that does set a precedent in the United States.

And you know one of the interesting cases that rights of nature lawyers like to talk about is a case that was brought centuries ago by an escaped slave named James Somerset in the United Kingdom, and James Somerset actually managed to get a lawyer to represent him in court and he brought a lawsuit arguing that he was a human being and entitled to the same human rights as other people, and of course, you know, there was huge backlash, people saying, you know, “Our economy is built on the foundations of slavery and we'll all suffer terribly if this individual has rights recognized,” but the judge in that case, Lord Mansfield, issued a judgment in which the key phrase was, “Let justice be done though the heavens may fall”, and he did grant human rights to James Somerset in a case that was integral to the abolitionist movement, and what we're looking for now in the United States is a judge with courage similar to that, to make a precedent-setting decision on behalf of nature.

CURWOOD: David, let's say that nature, elements of nature, become legal persons. In our court system you need humans to act as guardians and even land managers especially if the land is being subject to activities from tourism to some extraction. So, how can we always trust humans to be good stewards for the Earth?

BOYD: Well, that's the question that they've answered in New Zealand, Steve. So these laws that...the two laws they've passed in New Zealand designating the Whanganui river and Te Urewera as a legal person and then transferring title to those legal entities, those laws also make it very clear that the guardians established by the laws have a legal mandate to ensure that the rights of those ecosystems are protected. And what the laws actually say in New Zealand is that the guardians have an obligation to protect and preserve the biological diversity, the ecological integrity, and the cultural heritage of those ecosystems in perpetuity. So, that's a crystal clear legal mandate, and I am confident that there are literally millions of people in the United States and Canada who would be thrilled to have the opportunity to serve as legal guardians on behalf of ecosystems, species and animals in their communities.

CURWOOD: So, David, when you run into skeptics, what's the one thing you say that you think has gotten you the most conversions to this way of thinking?

BOYD: I guess if there's one argument that actually has tended to maybe change the minds of some critics, it's the comparison with corporations. Corporations have all kinds of rights, for better or for worse, under Canadian and American law, and when you put it to people that, “Why should corporations have rights and not rivers?” You know, neither of them are humans per se, but that idea that rights can extend beyond humans to other entities or when it's put in that kind of a context, I find people tend to stake a step back and go, “Oh, let me think about that”.

CURWOOD: In other words you're saying that you're not only to elevate the rights of nature, but you're also going to change the way humans relate to nature.

BOYD: Well, I think that's absolutely essential. I mean, as a lawyer I tend to focus on the law, but what we really do need to do is transform our culture. We have to stop thinking of ourselves as separate from and superior to the rest of the natural world. We have to begin to believe in ourselves as part of a community that we belong to, and you know, there's really fascinating scientific evidence about this over the past two decades. We've made incredible leaps in terms of our understanding of DNA, the basic building block of life. And we now know that human beings, we share DNA not only with chimpanzees and gorillas; we share DNA with every other form of life on the planet, from fungi to fir trees, from aardvarks to zebras. And so, if you look at life on Earth through that lens, we

BOYD: It's been a real delight. Thanks for having me on the show, Steve.

 

Links

The Rights of Nature: A Legal Revolution That Could Save the World

Te Urewera National Park

Ecuador’s Constitution codified the “rights of nature” into law

More on the legal fight to save the Colorado River

David Boyd’s website