Literature Review

Environment law can be looked upon from two perspectives- anthropocentric and ecocentric, The former is essentially human-centric, while the latter is nature-centric. The former gives prime importance to mankind, while the latter gives equal importance to all the components of nature. It is this difference in view, that this article aims to study.

Just one month after the construction of the Dakota Access Pipeline in the United States, New Zealand passed legislation granting personhood to the Whanganui River, settling over a century of negotiations between the Maori people and New Zealand government. McDermond discusses the history of attempting to attain standing for natural resources, and Justice Douglas’ proposal of creating standing for environmental objects with the reasoning that ships or corporations are inanimate objects with standing that could be analogous to rivers, trees, or land. McDermond also focuses on the sacred relationship between Native Americans and land, specifically that they have always recognized that land has intrinsic value. When it comes to legally constructed personhood, standing is given to human persons and artificial persons like corporations. The American legal system has struggled with protecting land rights, and can look to New Zealand, which protects the Whanganui River as an “indivisible and living whole” with all the “rights, powers, duties, and liabilities of a legal person,” as a guide. Finally, McDermond analyzes the feasibility of enacting similar legislation in the United States, concluding that it is possible but requires great legislative specificity to avoid any ambiguity faced by courts in other countries with similar goals.

Rowe examines whether the Wisconsin Menominee Tribe could establish personhood for the Menominee River using New Zealand’s Whanganui River as a model. The agreement establishing legal personhood for the Whanganui River intends to reflect that indigenous peoples view the river as a living entity rather than property capable of being owned, enabling the river to have legal standing in its own right. The Menominee River is currently under threat from the construction of the Back Forty Mine, an open-pit-sulfide mine which risks contamination of watersheds and drinking water in the area. Because the Menominee signed multiple treaties with the U.S. government terminating their status as a federal tribe, it is increasingly difficult for them to protest multiple documents, ultimately meaning that the U.S. government has significantly more power than the tribe as a group. Rowe concludes that even if the Menominee received significant grassroots social and political support to establish rights for their river, similar to what occurred in New Zealand, protecting the river from the construction of the mine would be an arduous legal battle. The Menominee’s best chance at fighting the mine would be establishing guardianship rights to preserve the river, which would be an acknowledgement of past harms committed by treaty agreements between the tribe and the U.S. government.

Kowalski first discusses how indigenous approaches to law and nature differ from more modern “Western” approaches that view nature as property. For example, Australian indigenous groups would determine how certain ecosystems operate, then regulate human activities based on what would complement those processes, rather than implementing rules or statutes. Additionally, indigenous groups historically did not separate humanity from nature as most modern societies do, leading to the exploitation of natural resources. John Locke’s theories on property also led to the colonization of indigenous lands, where territory was seized from indigenous groups because it was believed they were not utilizing the land to its fullest economic capacity. Kowalski further discusses the United Nations Declarations on the Rights of Indigenous Peoples and the relationship between protecting indigenous rights and the management of land and resources. Currently, a majority of activism for indigenous rights and environmental protection comes from grassroots efforts against corporate or governmental intervention. Kowalski concludes that a critical aspect of environmental protection is the installation of indigenous concepts of environmentalism into law by granting rights and personhood to natural entities, using the Ecuadorian constitution and the personhood of New Zealand’s Whanganui River as models.

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