SHOULD a tree have the right to sue? This line of inquiry is met with an equal measure of incredulity and fascination. After all, to answer in the affirmative is to entertain the rather rib-tickling idea that a tree, much like a human being, is capable of being wronged and deserving of restitution. To answer in the negative is to reassert the status quo — that a tree is simply a tree, inanimate and insentient, incapable of any hurt, unqualified for any compensation.
In 1972, Christopher D. Stone, an American legal theorist, wrestled with this intriguing question. In an article titled, ‘Should Trees have Standing?’ Stone opined that natural objects, such as trees, ought to be accorded legal rights. The law, he argued, was already replete with examples of inorganic entities being treated as legal persons: corporations, trusts, joint ventures and partnerships, to name but a few, and therefore the same rights should be extended to nature, to allow it to defend itself against the intrusion of modern civilisation.
Recently, in a landmark judgement, the high court of Uttarakhand revived Stone’s philosophy and declared that all glaciers, rivers, lakes, forests, springs and meadows in India are “legal entities”, with all the corresponding rights of legal persons. Delivering the seminal verdict, Justice Sharma stated that “the rights of these legal entities shall be equivalent to the rights of human beings” and that any injury caused to them, shall be treated as an “injury caused to a human being”.
Can trees and rivers be accorded legal rights?
Remarkably, this is not the first time that nature has found itself personified by law. In 2008, Ecuador became the first nation in the world to grant constitutional rights to nature. Article 71 of its constitution stipulates that nature has “the right to exist, persist, maintain and regenerate its vital cycles”. Furthermore, it goes on to state that “every person, people, community or nationality” shall be able to demand the recognition of this right before public bodies.
Similarly, in the culmination of a 100-year campaign by the Whanganui Iwi, an indigenous community in New Zealand, parliament in New Zealand lately bestowed a similar status to the Whanganui River, making it the legal equivalent of a person, with members of the community being empowered to bring a legal action in its name, just as a parent is able to bring an action in the name of their child.
The aforementioned developments are revolutionary. They are a testament to a paradigmatic shift in environmental jurisprudence — a movement away from the rights of man ‘to’ nature, towards the rights ‘of’ nature against man.
To date, environmental law has been inherently human-centric, stuck to the idea that mankind is entitled to a clean, sustainable environment. Even the global movement for environmental conservation is in reality an act of self-preservation against what appears to be an imminent danger — the destruction of ‘our’ habitat. This is a radically different approach, built on the opposing premise that nature is equally entitled to exist free from the interference of mankind.
But polemics aside, what is the practicality of these developments? Are they merely symbolic or do they harbour any potential? While this novel approach may seem eccentric, it certainly warrants consideration.
For one, it opens up alternate avenues for environmental protection. It allows interested parties to seek redressal from the courts, even in the absence of a violation of any express environmental legislation, thereby reducing our dependency on inefficient state institutions that are often unwilling to enact or enforce protectionist principles due to corporate interests. Similarly, it allows courts to take cognisance of environmental harm and assess compensatory damages.
Moreover, there is a socio-cultural aspect. By personifying natural objects, this approach challenges the prevailing idea that nature is our property, ripe for appropriation as we see fit, and instead fosters an understanding of the world where every component of our ecosystem is imbued with a degree of consciousness, and therefore deserving of respect and protection. As our conception of nature changes, so does our relationship with it — from one of domination to one of reciprocity.
That said, the framework is not entirely flawless. A fundamental question remains unresolved: who shall sue on behalf of nature? If a governmental appointee is made custodian, we run the risk of being entrapped in the same cycle of incompetence and lethargy that plagues the current system. If, on the other hand, the general public is entitled to bring action, there is always the dangerous possibility of our courts being bombarded with frivolous litigation, thus overburdening an already fractured system.
Regardless, this rights-based approach offers a much-needed reorientation of our relationship with nature. And in a global system that is gluttonously devouring its precious natural resources, perhaps that is what we truly need — a fresh perspective.
The writer is a lawyer.
Published in Dawn, May 14th, 2017