• F4B

Rights of Nature - Interview with nature's attorney

F4B's Mark Halle interviewed Grant Wilson, Executive Director & Directing Attorney of the Earth Law Center about moves to secure the legal personhood of nature.

Mark Halle: We at the Finance for Biodiversity Initiative are taking a keen interest in the developing new field of law around the rights of nature. Following in the media, you see stories about elephants having rights and rivers being given rights, and countries adopting the rights of nature into their constitutions. So the first question I have to you is this, is are you seeing a trend here?

Grant Wilson: I think the rights of nature has the potential to be the next great rights movement and it is just beginning. It has been 12 years since the first country recognized the rights of nature constitutionally. That was Ecuador. What's happened since that has been really tremendously fast. This idea has been really captivating governments across the world. We started with Ecuador 12 years ago, and now rights of nature are recognized at some level in 12 countries. Sometimes this is nationally like Ecuador and Bolivia and sometimes the rights of a specific ecosystem are recognized as with the Whanganui River in New Zealand.

Countries all over the world are now considering the rights of nature; every country in Latin America is considering the rights of nature, at this moment, and many are on the verge of passing new laws, recognizing it. Countries in North America, Europe and Africa are all considering it.

It’s an important movement right now because nature has no voice. It has no rights and its interests are not represented. Our governance and legal system is built on this separation, this idea of separation between humans and nature.

Our entire economic system is built on the exploitation of nature. Nature is treated as a resource or human property under the law and the result of that is that our legal system encourages or even requires the maximum exploitation of nature that is legally allowable.

We have environmental laws that push back on that a little bit, but they work within the system rather than challenging it. For example many countries have endangered species laws, but these don’t challenge the mass exploitation of species. We’ve lost 60% of vertebrates over the last 50 years. But instead the law says we're going to create some protections for animals once they're on the verge of extinction, only at that point.

The rights of nature approach, instead of merely trying to slow down the rate of degradation mandates that we restore ecosystems to health. So it's an entirely different goal.It also gives a voice to nature in our society. There are ways you can do this through legal guardianship bodies and other mechanisms to give nature a voice.It transforms our law from from one that exploits nature to one that upholds this right

I think it is going to happen, inevitably, because there's a huge movement pushing it forward at this point. The only question is, are we going to put enough enough expertise behind it to create enforceable standards to make sure it's effective in practice. I think it has enormous potential and we're really excited to be part of that.

Mark Halle: That's encouraging. Its great to hear your prediction that this can only grow and take form. But as we know that it's one thing to get a law on the statutes books and quite another to have genuine jurisprudence, enforcement and compliance. Are some of these laws seen as nice in principle, but very hard to implement?

Grant Wilson: There's some examples of where rights of nature have worked in practice. And there's some examples of where it's really nascent it's just starting to emerge. In Latin America, we're starting to see courts enforce the rights of nature in practice. In Ecuador the rights of nature are recognized constitutionally and it's been enforced in many cases. There have been about 30 rights of nature cases .

In 2011 we saw the Vilcabamba River assert its rights in a court. It was harmed by a construction project. The court said the river’s rights have been violated and ordered the municipal government to restore this river to health. We have seen a case of shark poachers where there was a large fine and prison time levied.

We've also seen some cases where rights of nature have lost in court. For example the Mirador mine, where the Court decided economic development was more important. But what I think is exciting is that nature is in the courts fighting for its rights.

Right now the Constitutional Court of Ecuador is considering a handful of cases that are going to put standards behind the rights of nature in an understandable and meaningful way. Our group The Earth Law Center has submitted an amicus briefs to all of these case. One of them, for example, is the reserve of Los Cedros; this is a cloud forest in the Amazon that is threatened by mining concessions and so the courts are going to determine if mining concessions are allowable under rights of nature framework. Another case is the Dulcepamba River; the Court has been looking at the question of whether dams and low flows in a river are compatible with the rights of nature.

In Colombia. There's been case after case in support of the rights of nature, and they don't even have a constitutional amendment for the rights of nature or a national rights of nature law, but the courts have started to enforce it anyway with this understanding that rights are inherent. So we've seen courts there order plans to address deforestation and reduce the rate of deforestation to zero in the Colombian Amazon, based on the rights of the Colombian Amazon, the entire Colombian Amazon as a person now in Colombia.

We've seen courts order studies to restore an ecosystem a river to help where it's flows were brought down to 10% of their original flows, based on the rights of that river.

Outside of Latin America there has been less progress so far. On reason is because some of the laws that have been written have not been enforceable. In the United States rights of nature laws resolutions have been tough to enforce by local communities as they have been preempted by federal laws that legalized the destruction of nature.

We've learned a lot. We also have a long ways to go, but we have the the tools and the understanding to really put into practice what the rights of nature means.

It's a matter of getting lawyers out there in the courts fighting for the rights of nature, getting legal experts to draft laws that unlike the first generation of rights of nature laws are really clearly written with enforceable standards.

That's a lot of what the Earth Law Center tries to do. We train lawyers to write strong rights of nature laws and provide them with legal templates. We educate the courts on how to implement the rights of nature through standards and we try to normalize it. I think we're pretty early on in the movement. We're going to get there in the next five or 10 years.

Mark Halle: The pathway of bringing case after case after case building jurisprudence, helping judges become familiar with these laws so that they can implement them, clarifying legal drafting: that's a pretty standard pathway for establishing any particular body of law. Can you think of things that could be done that would improve the sort of bite that these cases have? And can you identify obstacles that we might need to clear out of the way to advance the pace?

Grant Wilson: Fighting in the courts and legal movements is just one part of the rights of nature, certainly an important part. With any right space movement you see changes to the law, but also changes to culture and economic systems because it all intertwined.

Consider, slavery. There was a time where slavery was legal, and people fought in the courts to ban it. There are also banks all over the world in in New York and London that were financing slavery and there was a culture where slaves or former slaves were considered as less than people. At some point they were considered up as three fifths of a person and they were treated horribly in our culture.

We see this three headed monster of the law, our society and our economic system, all of which we have to address a rights of nature approach. Legally we talked about fighting in the courts. That's, that's an important part of it. We also need to see strong legislative action.

I think certain activities can be banned under a rights of nature justification, because they're simply incompatible with the idea that nature has rights. Deep sea mining, mega dams and destruction of sensitive ecosystems. These are things that may be banned legislatively under the rights of nature.

Obviously there are businesses that are going to fight tooth and nail; ones that make a lot of profits off of mega dams or deep sea mining. But , I think we need to begin listening to the voice of nature as much as we do the voice of some of these companies that have profited off of exploiting the environment for generations.

Mark Halle: You probably saw that Philippe Sands QC and Justice Florence Mumba launched an effort to establish ecocide is recognized international crime. Do you see that as a facet of the same thing?

Yes. I think what we're going to see is this new movement for ecocentric law, as opposed to our current legal system which is anthropocentric law or human centered law centric laws. It will make upholding the health of ecosystem a fundamental goal of our legal system. And ecocide falls within that.

We recently wrote a book on ecocentric law and the rights of nature that discusses ecocide as a chapter. What it does is criminalizes the large destruction of an ecosystem. They're working to come up with the exact definition. So I would call ecocide a criminal branch of the rights of nature.

Once established, it's going to be no longer legal for companies to destroy the entire ecosystems. This seems like common sense. But, currently that's totally in accordance with the law so long as you meet local requirements.

I would say that ecocide is one part of the puzzle; rights of nature expands from that by recognizing nature's rights, and importantly, by mandating the restoration of nature. So whereas ecocide is a way to say “no” to large ecosystem degradation, rights of nature is also saying “yes” to the restoration of nature. Ecocide is going to really give some teeth to some of these most horrendous instances of the destruction of entire ecosystem. I'm encouraged by that.

Mark Halle: Behind destructive activity, whether it's a mining project or mega dam or whatever there's a whole world of finance, who generally are let off the hook. Because if mining company pollutes a river, then the mining company may be held liable may be dragged in front of a court, but those who are behind them, the banks, the investors seem to carry no liability. How can we organize things so that the liabilities extend in some form to the funders so that they will take violations of rights of nature much more seriously in their funding decisions?

Grant Wilson: that's a good question. The problem is that right now it's not only legal but encouraged for financial institutions to destroy nature. Banks are basically required to maximize their profits and unfortunately it's very profitable to put in mega dams and raize sections of the Amazon for soybeans and cattle. That's a problem.

We saw the Portfolio Earth “Bankrolling Extinction” report this year that banks finance $2.6 trillion of activities that fuel the destruction of biodiversity last year. We need to change this.

I'm looking at the rights of nature, specifically, there's, I think a couple, a couple things we can look at with regards to banks. One is that governments could create new laws that that make it illegal to finance the destruction of biodiversity and specifically violations of the rights of nature.

The second part is possibly banks and financial institutions could be held liable under rights of nature laws, depending on the scope and how they're written

The first part: new laws that make it illegal to finance the violations of the rights of nature - how would they do this? We've seen it with other rights-based movements. Banks were once. happy to finance slavery, they issued insurance policies on slaves in case they died as if they were property. They gave loans to slaveholders and so forth. But this changed as a slavery became illegal banks were required to change their practices.

So I think for rights of nature, governments should say that certain activities are incompatible with the rights of nature; mega dams and sensitive ecosystems comes to mind. Governments can pass laws requiring banks to conduct scoping reviews of projects that they finance to consider rights of nature violations.

Part of that could be listening to legal guardians of nature, who have been appointed to uphold the rights and interest of nature. Banks could be required to conduct audits of how their entire portfolio impacts the rights of nature, and to take practices to remedy that there's large violations. Governments have to begin prioritizing systems other than GDP that are actually protective of nature.

Regenerative capitalism is something that's talked about sometimes. We need government to require banks to act more quickly, because we don't have a heck of a lot of time to just encourage banks to do the right thing. They have to be mandated to do the right thing and the rights of nature is an important part of that. It gives teeth to what everyone believes morally that we have to do:, restore nature to help and protect its well being.

The second part: can banks be held liable right now under rights of nature laws? I'd say that depends how the laws are drafted. Traditionally financial institutions are not often held liable for the destruction of ecosystems

Rights and nature drafters need to consider the role of financial institutions. Specifically, those that are within their countries but operating overseas. Banks in Canada, the United States, France, and so forth are financing the destruction of nature in developing countries. Rights in nature, crime laws and statutes can speak to that. Once ecocide is established as the law, we're going to see people looking at financial institutions as a place to seek redress.

Mark Halle: Does combining rights of nature with rights of indigenous peoples strike you as a worthwhile tactic?

Grant Wilson: Definitely. In Ecuador, indigenous rights and the indigenous rights movement was central behind the rights of nature and one of the reasons that got the law into the constitution. In the United States, we're working with tribes to help with legal drafting and enforcement of the rights of nature in part based on enforcement of their indigenous rights and indigenous sovereignty. Such as with the Yurok tribe in California and the Nez Perce tribe in Idaho are both taking this approach.

Rights violations, oftentimes span various categories. So you'll see oil projects that devastate local communities and indigenous communities and also violate the rights of nature. I think we're going to see in the courts, a suite of rights based arguments brought up at the same time. Amazon human environmental rights are winning in the court alongside the rights of nature and the rights of future generations, and all these together are packaged into ecocentric law.

Rights of nature is really important, but more generally, we want to move our entire legal system and society to ecocentrism; living in harmony with nature. A lot of these movements come together in that sense.

Mark Halle: You talked about making sure the banks are liable for any violation of rights of nature. But, short of that, what about the standards approach, for example, we're working on the idea of a net gain standard that would apply to financial institutions. In other words, whatever they do should not end up in not less than a net gain for nature. So the idea that you set a standard and then you begin to require banks not to fund projects that don't meet the standard and it can be elevated into a law that requires that standard. Do you see that as a promising pathway forward?

Grant Wilson: The net gain standard reminds me of what I think is the most fundamental right for nature which is it's right to restoration. The fatal flaw of our traditional environmental laws is that they slow down the rate of degradation, but they never stop it and let alone reverse it, or at least rarely. And so, requiring banks to make investments that have a net positive for nature is completely in line with this idea that nature has a right to restoration.

I think as banks operate in the countries that are beginning to enforce the rights of nature such as Ecuador and Colombia, they're going to have to consider if they want to operate there successfully; so their investments are actually restoring nature. I think the financial institutions that kind of get ahead of that, looking at the legal landscape and noticing that courts are starting to enforce the rights of nature, they may see that they have to start protecting nature. They need to make it a priority to no longer exploit ecosystems and instead to push investments towards technologies and approaches that are regenerative nature-based solutions. Those banks that have that frame of mind are going to be the ones that are most successful in this changing landscape.

I think people have said enough is enough to the destruction of the natural world. In 20 years we will look back our treatment of nature with sadness and with shock and horror. By then we're going have transitioned to a better way of living in harmony with nature.

Banks who can incorporate those ideas into their investment priorities are going to be successful. At the same time, we can't wait for them to do the right thing and that's why we need legally enforceable standards to hold them culpable legally, where they are not doing the right thing and where they're fuelling the wholesale degradation of nature.

But as with every rights based movement, it's a combination of law and social pressure. Pressure, cultural change and economic change. I think we have to put all those levers of pressure on financial institutions to get them to do the right thing. I think we're going to get there.

Mark Halle: If you think it's going to be 20 years before our kids get indignant, you’ve never met my kids.

Grant Wilson: I am so encouraged about the next five years. In fact, we started our internship program, three years ago and we've had 100 interns come through our organisation and they're all trained in rights of nature and ecocentric law now and I'm hoping they become politicians and judges and leaders in their fields.

Mark Halle: Absolutely. Its a completely different attitude and approach and it is encouraging. I just hope it's in time. Thank you Grant.