Literature Review

Following a popular initiative, the Spanish Parliament granted legal personality to the lagoon of Mar Menor and gave the right to everybody to defend the lagoon’s rights in administrative or judicial action. The contribution presents the new Spanish legislation, places it in the context of global trends to give rights to parts of the natural environment and points to some aspects, which the new legislation raises.

We are far beyond the limitations of the planet and we have to face the simple fact that the approach that we had before to set up specific environmental legal texts is simply not working. It's not that we don't have the best or the proper regulation in the system but perhaps the problem is with the system itself. Clearly the current decision making structures and the structure of environmental law can manage certain externalities, as mentioned, and some effects of production and consumption – but it's not really challenging the basis of the problem. Forty years ago it was already on the table – do we create an overly complex un-understandable system of environmental law – or do we simply give rights to Nature?

Over the past decade, the debate on Rights of Nature as a promising novel discourse within the ever-changing context of environmental governance has gained considerable traction. An increasing number of countries, amongst whom New Zealand and Ecuador, has moved to explicitly grant legal personhood to nature, with some national courts following suit. Underlying this trend is the need to correct the prevailing instrumentalist approach to nature, which sees nature merely as an object. For now, the idea of giving certain procedural and substantive rights to nature has passed relatively unnoticed in the European Union (EU), which prides itself over its set of progressive environmental directives and regulations. This paper, which is published in two parts, posits that a rights-based approach to nature might be relevant for the EU as well, seeing that anthropocentric frames are still permeating many of the EU’s environmental strategies.

The Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 settled the longest-running litigation over Maori land claims in New Zealand history. The Whanganui river is New Zealand’s longest navigable river, stretching from Mount Tongariro in the North Island to the Tasman Sea. The settlement, and the 2017 Act which implements it, confers legal personality on the river system, giving it a unique legal status that recognises not only the need to protect the ecosystem it represents, but also to provide a legal forum in which to implement Maori cultural and spiritual attitudes to the relationship of land and people. It can be argued this marks a new and innovative approach to protecting the environment, focusing at the ecosystem level and incorporating spiritual values in a manner unknown in environmental law in most Western legal systems. This is not, however, the first time that an approach based on principles found in the 2017 Act has been used in a New Zealand context. This article will consider the 2017 Act and its principal objectives, and set the legislation within the very distinctive context of the legal culture within which environmental law in New Zealand sits. It highlights differences of approach from those adopted in English law to similar problems of ecosystem management, and concludes by considering whether (and what) lessons can be drawn from this innovative approach for the wider environmental governance of the natural environment.

Transboundary issues – from (chemical) pollution, land-use change to unsustainable levels of exploitation – have been eroding natural sites across Europe, reducing biodiversity in the process. In light of this, this paper analyses the comprehensiveness of EU environmental law, appraising its underlying ethos in the process. Additionally, it explores whether a Natureship Framework Directive at the European Union (EU) level, which establishes legal personality for natural sites, can deliver a ‘change of course’ with respect to the anthropocentric view underpinning environmental law as a pressing thought experiment. It constructs a (fictive) law which grants natural sites substantive and procedural rights, conceptualising how such an instrument may take shape. One finding is that an EU Natureship may be a robust tool to address flaws within EU environmental law. For example, the attribution of legal personality to natural sites alongside the appointment of formal representatives can significantly relieve the burden for NGOs and the European Commission, which may suffer from limited resources when it comes to judicial enforcement of environmental norms (or, alternatively, ecological rights). Other benefits pertain to nature management, which may be less complex and more politically stable under the approach put forward in this paper. An EU Natureship, therefore, may provide a vehicle to shift EU environmental law from the anthropocentric to the ecocentric.

A global movement to give legal rights to nature is slowly gaining momentum in the face of the ongoing biodiversity crisis that is hitting our planet. At its core, the concept of rights of nature presupposes a novel template for ecological governance, which is aimed at prioritizing nature’s right to exist and to flourish through a societal and legal reform. This chapter makes two separate arguments. First, it argues that rights of nature constitutes a powerful new paradigm for ecological governance. Second, it demonstrates the difficulties and opportunities encountered when operationalizing this emerging concept within the existing legal order through a case study on the interplay between nature’s rights and the existing EU legal order. In spite of the identified alignment between a more rights-based approach to nature protection and the existing EU environmental law, several long-standing defects of the existing EU legal order seem to block a further operationalization of rights of nature. Against the backdrop of the relatively strict case law at EU level with respect to standing in environmental cases before EU courts and the persisting anthropocentric nature of many EU environmental directives, this chapter concludes that the recognition of rights of nature at the national level, either through strategic litigation or legislative amendments, is to be approached as the most realistic pathway to the short-term operationalization of ecocentrism in the EU.

Environmental law has long sought to protect the interests of nature and all of its elements. Sometimes this has been framed as beneficial to human health and wellbeing. Sometimes it has involved commodification of natural resources or systems in the form of market mechanisms. Rarely has it involved a recognition of an aspect of nature as a living entity with rights of its own equivalent to human rights. This is what a recent agreement between the Maori of the Whanganui River and the government of New Zealand pledged to do on 30 August, 2012. This essay recounts the history behind the agreement of an indigenous struggle for environmental sovereignty amounting to the longest-standing legal battle in New Zealand. Then it highlights the accomplishments of that agreement, namely recognition of the Whanganui River in its entirety as a living being and legal entity. It also recognises the enduring indigenous struggle by Maori tribes in New Zealand to maintain control of their lands and rights, representing the rights of nature, and of a continual process to decolonise both nature and peoples.

This article outlines the Yarra River Protection Act and the establishment of a statutory independent voice for the Yarra River, the Birrarung Council, in light of the historical legislative neglect of indigenous water management rights in the Australian state of Victoria. It then seeks to clarify the distinction between the Yarra River’s independent voice and the granting of legal personhood to the Whanganui River in Aotearoa New Zealand’s Te Awa Tupua Act. It concludes that the grant of legal personhood to a river, represented by a river guardian, will not necessarily meet the river management aspirations of Victoria’s Indigenous people.

This chapter describes a novel legal development in Aotearoa New Zealand, co-written by a Māori-Pākehāand Pākehā (NZ European) author team. We recognise at the outset that this story primarily belongs to the peoples of Ngai Tū hoe and Whanganui Iwi. This is our attempt to contribute in a purely legal sense the significance in law of what these Iwi (Mā ori tribal federations) have achieved for the nation.

In 2014, New Zealand’s Te Urewera Act was adopted, recognizing the forest Te Urewera as a legal person with rights. This law emerged from treaty settlement negotiations resolving historical Treaty of Waitangi claims of the Tūhoe Iwi (tribe) in relation to Te Urewera, their homeland. The Te Urewera Act gained international recognition for its provision that recognizes the forest as a legal person with “all the rights, powers, duties, and liabilities of a legal person” [s 11(1)]. It also recognizes the Tūhoe view of Te Urewera as a living, spiritual being with its own mana (spiritual authority) and mauri (life force) [s 3(2)]. The Act also requires guardians to be appointed and obliges them to represent the forest in both legal and policy arenas. These guardians are embedded in a new governance system charged with managing the ecosystem in a way that ensures the forest’s health and well-being. This gives the ecosystem a voice in decision-making processes regarding governance in the ecosystem, allowing rights of nature to be protected proactively, reducing the need to turn to the courts.

Present trend of Indian judiciary has been to ultra widening the scope of the Constitutional rights as well as Article 21 not for citizen or person only but also for animals and birds. According to the Supreme Court of India, every species has a right to life and security, subject to the law of the land, which includes depriving its life, out of human necessity. Article 21 of the Constitution, while safeguarding the rights of humans, protects life and the word “life” has been given an expanded definition and an disturbance from the basic environment which includes all forms of life, including animal life, which are necessary for human life, fall within the meaning of Article 21 of the Constitution. The ratio was afterwards followed by many other High Courts in India.

In March 2017, the High Court of Uttarakhand in India ruled in the Ganges and Yamuna and the Glaciers cases that the Ganges and Yamuna rivers, the Gangotri and Yamunotri glaciers, as well as other natural objects in the state of Uttarakhand enjoy legal rights. In both cases, the High Court established the natural objects as legal minors and conferred guardianship responsibilities on several individuals within the state government of Uttarakhand. These judgments create novel legal rights for nature and, as such, present powerful examples of the increasing relevance of rights-centred environmental protection. The impact of this case law, however, is uncertain. As a start, the legal rights entrusted to nature are underpinned by such broad definitions of ‘harm’ that it is difficult to envision successful implementation. Further, the Ganges and Yamuna case is currently stayed pending appeal to the Supreme Court, which may decide to overturn the High Court’s findings. Still, these cases are important to analyse, especially in light of how constructing nature as a legal subject/legal person shifts environmental law away from public law and into the sphere of private law. Also, the Ganges and Yamuna case draws explicitly on Hinduism to support the sacred status of the Ganges and Yamuna rivers, which, in the current context of the Hindu Nationalist Movement, may prove controversial.