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Why should trees have legal rights? It’s

second nature
MARIA BANDA
CONTRIBUTED TO THE GLOBE AND MAIL
PUBLISHED MAY 31, 2018UPDATED JUNE 1, 2018
PUBLISHED MAY 31, 2018

THIS ARTICLE WAS PUBLISHED MORE THAN 2 YEARS AGO. SOME

INFORMATION IN IT MAY NO LONGER BE CURRENT.
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Maria Banda is an international lawyer and the Graham Fellow at the University
of Toronto Faculty of Law.

“I am the Lorax! I speak for the trees. I speak for the trees, for the trees have no
tongues.” These words spoken by a small orange creature in a Dr. Seuss
children’s book point to a more fundamental question. Should trees and other
voiceless elements in nature have rights? Courts, legislatures and communities
increasingly say they should.

An extraordinary legal revolution is unfolding around the world. Last month, in

a historic ruling, Colombia’s Supreme Court declared that the Amazon is a legal
person with rights − to be protected, conserved and restored − and ordered the
state to reduce deforestation.

This past year alone, from India to New Zealand, four rivers, two glaciers and a
sacred mountain have been granted legal personhood. The Inter-American
Court of Human Rights declared that the regional human-rights treaty protects
the rights of the environment as such. U.S. municipalities are joining in.

The idea is not new. In 1972, American law scholar Christopher Stone penned a
visionary essay, Should Trees Have Standing?, in which he proposed granting
nature rights. Justice William Douglas of the U.S. Supreme Court agreed. In a
famous dissent, he argued that nature, or anyone who speaks for it, should have
its day in court.
After all, we treat corporations, trusts, even ships − things that cannot breathe,
speak or vote − as legal persons. Mitt Romney was ridiculed for saying that
“corporations are people, my friend,” but, as far as the law is concerned, he was
not wrong. We created these legal fictions because they served a greater
purpose. So why not mountains, rivers and seas, Justice Douglas wondered.

The idea failed to take root in the 1970s, but it seeded a worldwide movement.
Now, nearly 50 years later, its time may have come.

Part of the reason is that, despite environmental law’s many successes, the
current legal framework has failed to stop the destruction of entire ecosystems
and species, and some life-support systems, such as the Amazon, are simply too
big to fail.

These unprecedented challenges require new thinking. In the Western legal

tradition, we have generally treated nature as property and entrusted
governments with its protection. We instructed agencies to manage natural
resources and wildlife in public interest. But “public interest” means many
things to different people, who may assign different weights to short-term profit
maximization and long-term welfare. The environment (and the public) often
get lost in the shuffle. To counteract short-termism or regulatory capture, we
gave citizens and communities rights to be heard, but this has often proven
procedurally difficult (not to mention costly). Hence Mr. Stone’s idea.

Granting nature rights would not stop economic activity. But it would make
sure, as Justice Douglas wrote, that “the inanimate objects, which are the very
core of America’s beauty, have spokesmen before they are destroyed.”

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This isn’t just about altruism. As we learned the hard way, our basic rights − to
life and health − depend on a healthy environment. This is why more than 100
national constitutions (adopted after 1970) enshrine the right to a healthy
environment.

Of course, many Indigenous and other cultures have long understood this. New
Zealand’s new legislation, for example, integrates Maori worldviews. Pope
Francis embraced the idea of interdependence in his encyclical Laudato Si’,
while Indonesia’s supreme Islamic council issued a fatwa against trade in
endangered animals.

If we can protect our natural heritage, future generations (another voiceless lot)
are more likely to inherit a prosperous world. And “the greatest legacy we can
leave our children and grandchildren,” former prime minister Brian Mulroney
once said, “is the earth itself.” Tellingly, the Amazon case was brought by 25
children and youth. To protect their rights, the court set up an “Inter-
Generational Pact” for the rainforest.

So would it help if Canada’s threatened forests and rivers had rights (and
spokespeople)? We often romanticize this country as a land of infinite natural
bounty. In reality, as the OECD reports, Canada’s environment and
communities face numerous threats. Every day, we lose 3,000 football fields of
the boreal forest (the same rate of loss as tropical rainforests). Our watersheds
are under stress. Air pollution is widespread. Climate costs are mounting.

Canada’s Constitution does not protect the right to a healthy environment

(although 85 per cent of Canadians think it should), and the idea of giving
nature rights may sound loopy, even unthinkable. But each successive extension
of rights (to women, children, slaves, companies), as Mr. Stone wrote, was at
first laughed off. Our entire legal history is about the unthinkable becoming
second nature.

The road will not be easy; there will be implementation challenges along the
way. But rights evolve. And, over time, a healthier world may emerge.

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