In this blog post I discuss three case studies, all from the past decade, in which the courts of three states accepted that ecosystems did have rights and then applied those rights, each taking slightly different routes to get there: 

(a) Relying on express constitutional protections afforded to nature;

(b) Constitutional interpretation so as to confer legal personhood on the river;

(c) Court implied rights of nature in the absence of any constitutional/legislative protection in reliance upon the inherent parens patriae jurisdiction of the Court. 

1. Express Constitutional Protection for the Rights of Nature: The Los Cedros Case in Ecuador (2021)

A necessary element of the background to the Los Cedros case is the Ecuadorian Constitution. Since 2008, the Constitution has expressly recognised the rights of nature. The preamble to the Constitution celebrates nature – or “Pachamama”[1] – as being vital for humanity’s existence. Chapter 7 of the Constitution recognises that nature has the right to integral respect for its existence, and for the maintenance and regeneration of its life cycles, structure, functions, and evolutionary processes.

The Los Cedros forest is a lower montane rainforest, also known as a cloud forest, of around 6,400 hectares in north-western Ecuador. In 2017, the Ministries of Mining and the Environment granted the necessary consents for a mining project for up to around 5000 contiguous hectares of mineral extraction within the forest.

The petitioners in the Los Cedros case challenged those permits, arguing that they violated the constitutional rights of the Los Cedros forest by risking serious and irreversible damage to both the species present in the forest and the forest ecosystem as a whole. The petitioners argued that the Court should apply the precautionary principle when interpreting and applying the rights of the forest, so as to afford full respect for its existence as required by Articles 71 and 73 of the Constitution.

The Constitutional Court agreed with the petitioners. The Court commented that the conception of nature set out in the constitution was founded on both indigenous knowledge and Western science, and recognises human beings as an inseparable part of nature. The Court further noted the value that nature has in itself, expressed through the recognition of its own rights, regardless of the utility that nature may have for human beings. The Court recognised that in this case, the Los Cedros forest was a holder of such rights.

In formulating the standard to be applied in determining whether nature’s rights had been violated, the Court applied the precautionary principle, holding that –

(a) There was a risk that the mining consents that had been issued would cause serious and irreversible damage to the structure and evolutionary processes of Los Cedros;

(b) The extent of that damage was uncertain, and the respondents had not submitted any clear evidence on the point to the Court; and

(c) In those circumstances, the authorities should have examined the biological value of the forest and its species prior to issuing the environmental registration, and required the applications for consents to submit information as to the impact of any mining activities on the forest. 

The Court therefore required reparation measures to be taken, and ordered that companies be prevented from carrying out further mining. The Ministry of Environment was required to take quite specific steps – including the creation a management plan for the forest with certain minimum requirements, including reforestation of areas affected by infrastructure.

Applying the constitutional protections afforded to nature the Court therefore went quite far in requiring the Ecuadorian authorities to take specific steps to remedy environmental damage and prevent its recurrence.

2. Constitutional Interpretation and the application of International Environmental Principles: The Atrato River Case in Colombia (2016)

The Atrato River case concerned intensive mining and illegal logging around the Atrato River Basin. The case was brought by groups of Afro-Colombian and indigenous plaintiffs who lived in the region, and who claimed that their rights had been violated by the failure of the Colombian authorities to take any action to prevent the mining and logging.

Unlike the Ecuadorian Constitution, the Colombian Constitution does not expressly recognise nature as having rights, albeit it does recognise the right to a healthy environment. However, one of the guiding principles of the constitution, set out in its first Article, is that Colombia is a social state under the rule of law. The Constitutional Court has in its case law interpreted the ‘social rule of law’ principle as going further than traditional conceptions of the rule of law, and requiring the state to play an active role in social justice intervening to attend to citizens’ social needs and seek solutions for inequalities arising in society. The Constitution also recognises the rights of citizens to enjoy a healthy environment.

In determining the Atrato River case the Constitutional Court concluded that not only did those living around the river enjoy the right to a healthy environment, but that the river itself has a right to protection, conservation, maintenance, and restoration. The Court based this decision on central guiding principles of the Colombian Constitution.

The Court concluded that the principle of the social rule of law mandated the effective protection and safeguarding of not only cultures and ways of life, but also nature and biodiversity. Moreover, the Court held that numerous clauses of the Colombian Constitution related to environmental protection, such that it has been referred to as a “Green” or “Ecological Constitution”.

The Court further recognised that the Colombian Constitution is founded on social and ethnic pluralism, as well as the knowledge and ancestral customs bequeathed by indigenous and tribal persons. This includes the understanding as humans as an integral part of the global ecosystem, rather than beings with dominion over nature. Furthermore, the Court relied upon what it referred to as “biocultural rights”, so the rights of ethnic communities to administer and exercise sovereign autonomous authority over their territories.

Applying these principles, the Court inferred rights for the Atrato River itself. The Colombian authorities were therefore ordered to exercise legal guardianship over the river by way of a commission of guardians and board of advisers.

This case is an interesting example of a Court inferring constitutional protections for nature, despite those protections not being expressly recognised in the Constitution itself, and going on to establish positive mechanisms for protecting those rights. It is also interesting that, although the Court recognised the freestanding rights of the Atrato River as separate from human rights, much of its reasoning was dependent on Constitutional and other rights enjoyed by the communities living around the river. This highlights the perhaps inevitable difficulty that courts, which are made by humans for humans, in approaching nature from a non-anthropocentric angle.

3. The Inherent Protective Jurisdiction of the Court: The Ganga and Yamuna rivers and Gangotri and Yamunotri Glaciers in India (2017)

The final case study I will describe consists of two court cases that were brought in India relating to the Ganga and Yamuna Rivers, and the Gangotri and Yamunotri Glaciers which feed into those rivers. The two cases were heard by the High Court of Uttarakhand.

The first case (the “rivers case”) was brought by a petitioner who sought to rectify pollution that had occurred in the Ganga and Yamuna rivers. Interestingly, the petitioner in the rivers case did not expressly request that the Court confer legal personhood on the two rivers. The Court nonetheless declared that the two rivers did enjoy legal personhood, appointing officials to act ‘in loco parentis’ as legal custodians to protect the rivers. The Court relied, inter alia, upon case law in which certain Hindu idols representing deities had been found able to sue to protect their interests and their spiritual role in society. The Court drew parallels between those cases and the two rivers, which had similar spiritual value to Hindus.

Following determination of the rivers case, a further petitioner brought the second case (the “glaciers case”) seeking a declaration that the Gangotri and Yamunotri glaciers were juristic persons. The Court did grant such a declaration, stating that the two glaciers had the status of legal persons with all corresponding rights, duties and liabilities. The Court again went further than the petitioner had requested, stating that ‘Mother Earth; as a whole should enjoy constitutional legal rights.

The Court relied upon the obligations imposed on India by international treaties such as the Convention on Biological Diversity. Interestingly, the Court also relied upon its inherent parens patriae or protective jurisdiction to justify conferring legal personhood on the glaciers. The parens patriae jurisdiction – which literally means “father of the people” – has its roots in the English and Welsh legal system. Historically, the jurisdiction flowed from the monarch’s prerogative right both of wardship over the persons and estates of minors and those lacking mental capacity, and of superintending charities. In England and Wales those powers have now been delegated to other institutions, such as the Attorney General and the Family Division of the High Court. The High Court of Uttarakhand, however, cited the development of the protective parens patriae jurisdiction in the US courts to justify intervention in cases of environmental harm – for example, where pollution in one state caused damage to residents of another state. The High Court of Uttarakhand invoked this broader protective jurisdiction to recognise the two glaciers in question as having legal personhood.

Following this, however, both decisions of the High Court were stayed by the Supreme Court of India. The decisions had been appealed on grounds including that they were unworkable in terms of the extensive obligations imposed on officials to safeguard the rivers and glaciers, and that the decisions created uncertainty as to whether officials would be held liable if, for example, the rivers flooded.

Notwithstanding this, a more recent decision of the High Court of Madras relied upon the glaciers case when declaring that Mother Nature is a living being with legal personhood, with rights akin to fundamental rights in order to maintain its substance and resurgence, and protect its health and wellbeing. The state government was directed to “protect the ‘Mother Nature’ and take appropriate steps to protect Mother Nature in all possible ways”.

Conclusions

These three case studies show how, in different ways, courts around the world have begun to grapple with and apply the concept of rights of nature. There are important parallels between the cases, including the importance of the specific cultural and legal heritage of a nation to the courts when it comes to recognising the rights of nature. 

The cases also highlight some of the difficulties inherent in rights of nature litigation. Where express protections are broadly drawn, this gives a wide discretion to the courts to interpret what thresholds should be applied to determine when rights of nature have been violated. This may result in a threshold that is either too high, imposing obligations on states that are too onerous, or too low, thereby failing to enhance environmental protection. Moreover, where no express constitutional or legislative rights are afforded to nature, there is of course the risk that the decisions of individual judges will be overturned – as indeed occurred in India.

In the UK, it is difficult to imagine the courts going quite so far as courts in other nations in (a) inferring any rights of nature absent some kind of statutory protection being afforded, or (b) going as far as courts in other jurisdictions have gone in imposing positive obligations on public authorities to respect the rights of nature. It will, however, be interesting to see what does happen. Various community groups have issued rights of rivers declarations, and in March 2023 Lewes District Council passed a motion promoting a Rights of River Declaration. It may therefore not be too far in the future that the English and Welsh Courts are asked to grapple with these concepts.

Flora Curtis is a barrister at Francis Taylor Building specialising in environmental, public and planning law.

This blog post is based on the content of a talk given on 20 April 2023 at the Environmental Law Blog’s 2nd Anniversary Seminar.

[1] A ‘Mother Earth’ style goddess in Andean indigenous cultures.