1. INTRODUCTION
The first constitutional rights of nature in history appeared in Ecuador in 2008,Footnote 1 and thus far is the most prominent case of constitutional recognition of rights for the natural environment.Footnote 2 Other states have implemented the general model of rights for nature at different levels. In the United States (US), several dozen municipal ordinances declare the rights of the municipal environment, inspired by the first such case in Tamaqua Borough (Pennsylvania) in 2006.Footnote 3 In 2010, Bolivia adopted the Law of the Rights of Mother Earth,Footnote 4 followed in 2012 by the Framework Law of Mother Earth and Integral Development for Living Well.Footnote 5 New Zealand has so far recognized rights of the natural environment in two cases: for Te Urewera (a former national park in the North Island),Footnote 6 and for the Whanganui River.Footnote 7 Rights for Mount TaranakiFootnote 8 are poised to soon become the third such case. The latest additions to this already impressive collection are Colombia, where the Atrato River acquired rights in 2017,Footnote 9 and India, which has recognized the rights of the Ganges and Yamuna Rivers.Footnote 10 As is already apparent from this list, rights of nature so far have been most commonly bestowed on water bodies.
All cases have in common the appeal to rights in order to protect the natural environment.Footnote 11 Ecuador is often seen as the pioneer that led the way, with other countries following suit in a classic example of a transnational movement. Although Ecuador is the only state to date with a constitution which grants rights to nature, other efforts can be interpreted as having similar constitutional significance.Footnote 12 More often than not, Indigenous nations have been involved, in one way or another, in establishing rights for nature. Scholars, commentators and Indigenous leaders themselves have often argued that the rights of nature borrow heavily from Indigenous ecocentric legal frameworks. Particularly in the cases of Ecuador, Bolivia, and New Zealand, the name of the rights-bearing entity itself suggests the recognition of ontologies and legal frameworks that are distinct from purely western versions.Footnote 13 Importantly, developments in the rights of nature have so far played out mostly in relation to water bodies, which themselves have important genealogical connections with many Indigenous peoples.
This article is concerned with a critical examination of the relationship between the rights of nature and Indigenous philosophies. Two cases – Ecuador and New Zealand – suggest that western and Indigenous conceptions of law are indeed being mixed in the discourse of rights of nature, but not always for the benefit of Indigenous communities. The article will examine the relationship between the concept of legal personality for nature and the cosmologies of various Indigenous nations in order to reflect on the possibilities that a rights-based approach might offer to Indigenous emancipatory projects. In developing this argument, the article will demonstrate that cases to date of granting rights to nature are attributable to parallel histories – these cases are rooted in local political contexts but have also been inflected by Indigenous participation in specific ways. This means that, to date, the recognition of legal personality for nature cannot be described as a single international movement for rights of nature, or as representing a single, linear and unproblematic influence of ‘indigenous cosmovisions’Footnote 14 on the western conception of rights.
Much scholarship on the rights of nature – whether in the form of rights for rivers, landscapes, or nature as such – works on the underlying assumption that to give rights to the natural environment responds to a form of ecocentrism found in Indigenous philosophies. In this sense rights of nature are considered to be, if not exactly of Indigenous origin,Footnote 15 at least in accord with certain fundamental tenets of Indigenous worldviews. This article will first examine this assumed relationship between rights for natural environments and Indigenous visions. The next two sections will then consider the particularities of this relationship in the cases of Ecuador and New Zealand. The article will argue that the rights of nature are neither ecocentric nor of Indigenous origin. However, rights of nature developments could allow for further ontological hybridization, under particular conditions. To discover what these might be, it is useful to compare the two quite different cases of Ecuador and New Zealand.
Although other candidate cases are available, Ecuador and New Zealand offer unique opportunities for parsing the relationship between rights of nature and Indigenous philosophies. This is so because of the undeniably important role that Indigenous communities have played in the development of rights of nature in both countries, and the strikingly different results of these developments.Footnote 16 The very different ways in which rights of nature have been granted in these two cases provide a useful opportunity to showcase inherent differences in the concept of such rights. It also reveals important differences between various Indigenous experiences, thereby avoiding common generalizations of ‘the Indigenous’. Although Ecuador and New Zealand together offer a great opportunity for analysis, the argument will develop one particular case, Te Urewera, in more detail. This case has been severely understudied so far, despite the fact that it represents a strikingly innovative use of rights of nature, as this article will demonstrate. In contrast, the article will provide only the necessary context for the Ecuador case and will then direct the reader to the significant body of scholarship that already exists on the case. In summary, these two cases provide particularly good opportunities for thinking through how the rights paradigm might affect the governance of Indigenous territories, whether these include rivers, lakes or land.
In two articles that critique the rights of nature in Ecuador and Bolivia,Footnote 17 Kotzé and Villavicencio Calzadilla provide an implicit summary of the often assumed relationship between rights of nature and Indigenous ways of thinking. The key to understanding this assumed relationship is the idea of ecocentrism, meaning that nature and natural entities (which includes not only landscape features but also supernatural beings)Footnote 18 have value in and of themselves, and not only instrumentally, in relation to people.Footnote 19 The classic conception of rights, of undeniable western origin, is understood as anthropocentric – that is to say, concerned only with the rights of people in relation to land, animals, and natural objects, and not in any meaningful way with nature itself.Footnote 20 The rights of nature are presented as a formulation that – perhaps paradoxically – borrows the idea of rights from the west to protect entities that have only ever been recognized ecocentrically in Indigenous philosophies. Kotzé and Villavicencio Calzadilla go as far as referring to rights of nature and ecocentrism synonymously,Footnote 21 a clear sign of the perceived affinity between Indigenous thought and rights of nature, as recognized to date.
This supposed affinity is expressed even more strongly by other authors. Knauß, for example, refers to rights of nature as having the potential to ‘transcend European Modernity’,Footnote 22 while Demos considers these rights as having ‘deep roots in Indigenous cultural and religious traditions’.Footnote 23 Similarly, Acosta and GudynasFootnote 24 present nature's rights as reflecting the Indigenous notion of buen vivir [good living], also enshrined in Ecuador's Constitution.Footnote 25 They appear to agree with the characterization of nature's rights, and of Indigenous philosophies, as ecocentric. More generally, commentators on rights of nature routinely use the adjective ‘anthropocentric’ to describe western legal ontology, which implies that the rights of nature are aptly described as ecocentric.Footnote 26
Claims of a strong connection between rights of nature (understood as ecocentric) and Indigenous philosophies in this stream of scholarship can be taken as a call to modify the western anthropocentric conception of rights by means of an ecocentric, Indigenous-inspired broadening of the concept of legal subject. Several different assumptions are embedded in this account. Firstly, there is a perceived tension between anthropocentric and ecocentric legal thinking, evident through the matter-of-fact use of these terms to describe western legal ontology versus the rights of nature. Secondly, nature as a subject of rights is understood as a totality; as nature or Earth, a universal principle underlying all life. This is particularly so in the extant cases that do not focus on a particular territory, and instead grant rights to an underspecified nature.Footnote 27 Thirdly, the claimed ecocentrism of rights of nature implies that such rights are (at least potentially) ecologically beneficial.Footnote 28 Fourthly, Indigenous peoples are considered to be empowered by rights of nature, as these rights are thought to emanate partly from their philosophies.Footnote 29 This standard account of the relationship between rights of nature and Indigenous philosophies is neatly summarized by Kauffman and Martin as the codification ‘for Western legal purposes [of] the Indigenous cosmovision that Nature is sacred, possesses its own rights, and is part of a living community in which humans exist’.Footnote 30 This suggests that nature is conceptualized in Indigenous philosophies as already having rights.
With this background, the next section of the article reviews the context and legal provisions in the cases of Ecuador and New Zealand, before critically discussing these cases to assess whether they support the above assumptions.
2. THE RIGHTS OF NATURE IN ECUADOR
The provisions that grant rights to nature in the Ecuadorian Constitution of 2008 have been the subject of extensive scholarship.Footnote 31 This article therefore provides only an overview of the relevant context for the purposes of the present discussion.
In the case of Ecuador, the rights of nature were recognized in the context of a reorganization of the state around the citizens’ revolution, an idea championed by Alianza PaísFootnote 32 as well as its Indigenous allies, particularly the Confederation of Indigenous Nationalities of Ecuador (CONAIE).Footnote 33 In order to bring about this revolution, then-President Rafael Correa called forth, as one of his first acts in office, a Constitutional Assembly, which would draft a new constitution for the state.Footnote 34 Rights of nature were part of a wholesale reorganization of the state, a situation that was used as a window of opportunityFootnote 35 by a transnational policy network and an Ecuadorian political elite, which was inclusive of Indigenous leadersFootnote 36 but by no means led by them. The opportunity created by Correa's call for a Constitutional Assembly was seized by a network of activists dedicated to the idea of rights for nature, and to Indigenous politics more broadly.
Like other countries struggling with a heritage of colonialism, the Indigenous nationalities of Ecuador had lived through centuries of battles with successive colonizers. For them, the drafting of the Constitution in Montecristi presented a renewed opportunity to push for recognition of Indigenous authority in Indigenous territories. In earlier work I have argued that the organized Indigenous political forces exerted considerable influence on the inclusion of rights of nature in the Constitution. The support that CONAIE lent within the Constitutional Assembly went much further than rights of nature and was centred on a package of rights that would strengthen Indigenous authority more broadly.Footnote 37
The Ecuadorian Constitution can be interpreted as an exercise in the proliferation of rights. It affirms many conflicting rights, not least environmental provisions that clash with development-oriented provisions.Footnote 38 The rights of nature should be understood as one set among an impressive array of rights, and therefore nature should be understood as one entity among a range of entities to be considered. In this sense the Ecuadorian Constitution is not ecocentric as such, as it contains both ecocentric and anthropocentric provisions. Instead, the document serves as an example of the hegemony of rights in constitutionalism more generally.Footnote 39
The intellectual genealogy of granting nature rights in the Ecuadorian case can be traced back to the work of Stone,Footnote 40 and particularly to its reinterpretation in the works of BerryFootnote 41 and Cullinan,Footnote 42 as well as the practical legal advocacy of the Community Environmental Legal Defence Fund (CELDF).Footnote 43 The particular policy network that was arguably instrumental in the inclusion of rights for nature in the Ecuadorian ConstitutionFootnote 44 shared a view of these rights as reflecting a logical historical progression from human-centredness to the inclusion of more and more potential subjects. This is partly why the specific provisions dealing with nature's rights in the Constitution are drafted in very general terms. It also partly explains why ‘nature’ is constructed as a legal person, resembling the human person at the heart of human rights. It is worth quoting Articles 71 and 72 in full:
Art. 71. Nature, or Pachamama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.
All persons, communities, peoples and nations can demand public authorities enforce the rights of nature. To enforce and interpret these rights, the principles set forth in the Constitution shall be observed, as appropriate.
The State shall give incentives to natural persons and legal entities and to communities to protect nature and to promote respect for all the elements comprising an ecosystem.
Art. 72. Nature has the right to be restored. This restoration shall be apart from the obligation of the State and natural persons or legal entities to compensate individuals and communities that depend on affected natural systems.
In those cases of severe or permanent environmental impact, including those caused by the exploitation of non-renewable natural resources, the State shall establish the most effective mechanisms to achieve the restoration and shall adopt adequate measures to eliminate or mitigate harmful environmental consequences.
The rights established in these articles are very similar to those proposed by Cullinan and Berry.Footnote 45 The question of standing, arguably one of the most crucial issues when it comes to the practical implementation of rights, is explicitly resolved by being granted to everyone, over and beyond the universal applicability of constitutional law itself. Other constitutional provisions are directed explicitly at strengthening Indigenous territorial rights, and previous analyses have shown these to have been conceived of together with the rights of nature.Footnote 46 However, the constitutional rights of nature can work to strengthen other Indigenous territorial rights only if the Indigenous peoples themselves are inherently predisposed towards upholding such rights. In other words, the wide doctrine of standing, considered together with other rights granted by the Constitution, nonetheless implies an assumed connection between Indigenous people and nature's rights, as Indigenous peoples were expected to be the ‘natural’ protectors of nature.Footnote 47 This assumption, as the article argues in Section 5, is neither obvious nor particularly helpful in practice.
When speaking of ‘the Indigenous’ in an Ecuadorian context, one tends to forget the diversity of Indigenous groups. Yet, there are six Indigenous nationalities in Ecuador's Oriente region alone,Footnote 48 the most numerous of which are the Kichwa.Footnote 49 The demographic dominance of the Kichwa is reflected in the term sumak kawsay,Footnote 50 a concept which, according to Acosta and Gudynas, has been instrumental in the development of rights of nature in Ecuador. The importance of the concept for the Ecuadorian Constitution in general is undeniable, as it appears throughout the document, from the preamble onwards. Its appearance in the preamble suggests the foundational nature of this concept: it is supposed to frame everything that follows.
Others have shown the direct conflict between Articles 73 and 74 and other articles in the Constitution, particularly those related to development and resource extraction.Footnote 51 Moreover, Article 74 sits uneasily with the previous articles, as it gives rights to nature, while relating these to the idea of good living. As Kotzé and Villavicencio Calzadilla show, the Ecuadorian Constitution does not manage to fit entirely within the frame of sumak kawsay. I have argued before that Indigenous leaders supported the rights of nature as part of a package of increased recognition of Indigenous authority in Indigenous lands. What seemed most important for Indigenous leaders was the securing of rights to govern their own territories, although the final constitutional text does not vest Indigenous territories fully in Indigenous descent groups.Footnote 52
The apparently contradictory relationship between sumak kawsay and rights of and to nature reveals the limitations of a theoretical interpretive framework which understands Indigenous philosophies (and the rights of nature) as ecocentric, and western ontologies (and any rights to nature) as anthropocentric. Instead, this article argues (in Section 5) that Indigenous philosophies are relational, being able to encompass both intrinsic values and instrumental uses, through the wide deployment of anthropomorphism.Footnote 53
The fact that everyone in Ecuador has standing to represent nature's rights creates several problems. Theoretically, the issue of standing represents acknowledgement by the law of particular relations that justify a person speaking on behalf of rights holders who, for one reason or another, cannot speak for themselves. The constitutional framing in the case of Ecuador, and the explicit vesting of standing in anyone (regardless even of nationality), suggest that these were modelled on the concept of universal human rights,Footnote 54 that is to say, on rights that are thought to be intrinsic and therefore can be invoked by anyone. In the case of human rights, their supposedly intrinsic nature derives from the idea of the human person as having an intrinsic moral standing that the law of human rights recognizes.Footnote 55 Similarly, the Ecuadorian rendition of the rights of nature seems to construct a concept of nature as intrinsically morally significant,Footnote 56 and therefore its rights can be upheld by anyone.
As Grear demonstrates,Footnote 57 the way in which we think of the entities that populate the law matters a great deal. The Ecuadorian Constitution encourages conceiving of nature as a legal person, a conception that risks mixing moral and legal notions in ways that are ultimately unhelpful because the idea of the person is always already modelled on a particular kind of beingFootnote 58 (usually the human person, with set characteristics) and therefore potentially stifles the politically radical act of extending the circle of entities recognized by the law. If, following Grear's analysis, we interpret the rights of nature as inaugurating a new legal entity, then this new subject of the law has to be identified through its relations with other subjects (because ‘entity’ has no substantive or moral meaning as such). One way to identify this entity is through the doctrine of standing, which controls who can speak on its behalf and, therefore, the kinds of political use to which these rights can be put.
The Ecuadorian rights of nature, on this interpretation, encourage the inauguration of nature as a legal person who, by virtue of its intrinsic characteristics, can have a representative relationship with anyone. This apparently apolitical move opens up the possibility for very partisan political mobilization of the rights of nature, as already exemplified in judicial practice. For example, Daly shows how the government of Correa, itself very sceptical of nature's rights,Footnote 59 has successfully used such rights against small-scale artisanal miners.Footnote 60 In a different caseFootnote 61 the claims of the Vilcabamba River were upheld against the provincial government, but the government was noticeably slow in implementing the judgment, although it did eventually do so.Footnote 62 Of the 13 cases that Kauffman and Martin document in Ecuador, none of those brought by the government were lost. The wide variation in outcome between the various extant court casesFootnote 63 reveals the problems inherent in a formulation of nature's rights based on a universal subject (nature as person) and wide standing. It further reveals the seldom acknowledged discrepancy between the notions of legal person and legal entity, and begins to question whether Indigenous anthropomorphism can be aptly accommodated within the liberal concept of legal person. Lastly, the Ecuadorian experience contrasts in important respects with that of New Zealand, giving us grounds for a comparative analysis that reveals the very different genealogies of rights for nature in different places, and the different ways in which Indigenous communities relate to the rights of nature.
3. LEGAL PERSONALITY IN NEW ZEALAND
3.1. Te Urewera
The first case of legal recognition of a natural entity in New Zealand concerned granting rights to Te Urewera, the ancestral home of the Tūhoe people of Aotearoa New Zealand.Footnote 64 This section focuses on this case and does so for two reasons. Firstly, the Te Urewera case is significantly understudied, compared with the case of the Whanganui River. Secondly, it contains all the elements that distinguish rights of nature in New Zealand from other jurisdictions, and therefore highlights the different ways in which the relationship between legal personality and indigeneity manifests.
The most important contextual background for understanding the legal personality of Te Urewera are the treaty negotiations between Māori groups and the New Zealand government. As Sanders explains, ‘the grant of legal personality to Te Urewera and the Whanganui river took place as part of the Treaty of Waitangi settlement process, through which the Crown acknowledges breaches of its obligations to Māori under the 1840 agreement’.Footnote 65 To understand the importance of the treaty settlement process, it is necessary to reflect briefly on the history of New Zealand's colonization.
The first significant contact between Europeans and Māori dates back to 1769,Footnote 66 when the Endeavour, captained by James Cook, landed on the eastern shores of the North Island. Seventy years and many missionaries and settlers later, the British Crown and many (but not all) Māori chiefs signed the 1840 Treaty of Waitangi, the most important document in New Zealand's history.Footnote 67 After the signing in Waitangi, the Treaty was taken across the island for additional signatures. Tūhoe have never signed,Footnote 68 though this does not mean that they, and their land, were not affected by this monumental event.
Indeed, starting in the 1860s a period of aggressive colonization began, with land purchases and confiscations greatly expanding the settler populations. Demography shifted from Māori majority to Māori minority in little more than 50 years. The Māori population ‘dropped from around [200,000] in 1840 to [40,000] in 1900. Epidemics of influenza, measles, diphtheria, and tuberculosis, as well as ill-health caused by changes in diet and living conditions, all affected the population. Other deaths, of course, occurred in battle with the colonizer’.Footnote 69 Te Urewera remained the last bastion of Māori tikanga,Footnote 70 as it was only in 1865 that the Crown ‘confiscated much of [Tūhoe's] most productive land’.Footnote 71 Between 1865 and 1871 there was a war between the Crown and Tūhoe in Te Urewera which, by the Crown's own admission, devastated Māori groups through starvation, executions, and further appropriation of lands.Footnote 72
The Treaty of Waitangi was signed in two language versions: Māori and English. The history of the difference between these two is extremely important and has been amply debated. One of the most contentious concepts for the purposes of the present discussion is that of tino rangatiratanga: Jones explains that the term varies in meaning from ‘self-government’ to ‘sovereignty’ or ‘full authority’.Footnote 73 The Waitangi Tribunal has argued that ‘no one single English concept effectively captures the full meaning of the term’ in part because, unlike sovereignty in English, it has spiritual connotations as well as implications of dominion over particular territories.Footnote 74 In the Māori version, Article Two of the Treaty of Waitangi guarantees the chiefs tino rangatiratanga.
Recent scholarship on the Treaty, as well as recent judicial decisions, are more or less settled on the opinion that, at the time of signing, the chiefs did not cede their sovereign ability to direct the life of the community or ownership of their lands.Footnote 75 The English text of Article Two reads:
Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession.
The Māori version of this Article reads:
The Queen of England agrees to protect the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures.Footnote 76
What the Māori text refers to as tino rangatiratanga, or the ‘unqualified exercise of chieftainship’, is in the English text ‘the full exclusive and undisturbed possession’.
Similar issues bedevil Article One of the Treaty. In the English version ‘sovereignty’ was ceded to the Crown, while in the Māori version it was ‘kawanatanga’ or ‘governorship’.Footnote 77 English colonists and their successive governments increasingly acted as if the Treaty of Waitangi had transferred sovereignty of Aotearoa New Zealand to the Crown, while Māori chiefs operated under the understanding that they had retained tino rangatiratanga. Tūhoe have been consistent throughout this history in affirming mana motuhake, a term very close in meaning to tino rangatiratanga. As Higgins explains, ‘distinctions between mana motuhake and tino rangatiratanga are contextual rather than categorical, but while they have much in common, mana motuhake more strongly emphasizes independence from state and crown and implies a measure of defiance’.Footnote 78
Throughout the 19th century this defiance was also expressed through the sheltering of other Māori people who were fleeing from persecution elsewhere,Footnote 79 such that ‘Richard Boast describes Te Urewera as the last “major bastion of Māori de-facto autonomy”’.Footnote 80 This autonomy was officially recognized in law when, in 1896:
the Urewera District Native Reserve Act provided for local Tūhoe self-government over a 656,000-acre Reserve, and for decisions about the use of land to be made collectively and according to Tūhoe custom. The Act guaranteed the protection of Tūhoe lands, which could not be sold without Tūhoe consent and then only to the Crown.Footnote 81
The Act was never implemented, though it set a unique precedent in recognizing Tūhoe's authority in Te Urewera. ‘Perhaps the most remarkable aspect of [the Act] was its intention to give effect to tino rangatiratanga or mana motuhake’.Footnote 82 Despite this intention, the early 20th century saw blatant disregard for the Act, with ‘the government simply … buying land interests directly from individuals, in direct contravention of its own laws’.Footnote 83 As if to catch up with the reality on the ground, in 1922 the government repealed the Urewera District Native Reserve Act, putting an end to this early period of experimentation in plural sovereignty. Further shrinkage of Tūhoe land ensued, which led to massive emigration from the area. Te Urewera became a national park in 1954, which seemed to seal its fate as a settler fantasy of nature forever stolen from within an intricate human–nature genealogy.
3.2. The Waitangi Tribunal and Te Urewera
The Treaty of Waitangi Act of 1975 inaugurated the Waitangi Tribunal, ‘a standing commission of inquiry established to inquire into Māori claims that laws, policies, acts or omissions of the Crown are or were inconsistent with the principles of the Treaty of Waitangi’.Footnote 84 The Tribunal has powers only of recommendation, though this has not rendered it powerless. Indeed, ‘the tribunal began to have an influence on public policy, despite its lack of powers to compel the government to take notice of its recommendations’.Footnote 85 As Belgrave continues, ‘it was partly in recognition of this success that in 1985 the fourth Labour Government extended the tribunal's jurisdiction back to 1840, with far-reaching consequences that were only dimly understood at the time’.Footnote 86 This set in motion the contemporary era of negotiations between the government and Māori iwi and hapū for breaches of the Treaty.Footnote 87
The grant of legal personality to diverse landscapes in New Zealand should therefore be understood in the post-1985 context of treaty settlements. It is this historical period which elevates the Treaty of Waitangi to the most significant document in Māori–Crown relations. Before 1985 the Treaty had no particular legal status or force.Footnote 88 As Belgrave notes, ‘until the creation of the Waitangi Tribunal, no court or commission of inquiry had needed to define what was actually agreed to at Waitangi’.Footnote 89 The idea that Māori–Crown relations are defined by the differences in translation briefly summarized above is itself a late 20th century narrative which accords well with the contemporary period of treaty settlements.Footnote 90 It also shows that the Treaty, in the 19th century, ‘could not be pinned down to a single interpretation for its European participants, let alone among the more than 500 rangatira representing diverse Māori communities’.Footnote 91
As other scholars have shown, Tūhoe claims to Te Urewera, like Whanganui iwi claims to the Whanganui River, can be interpreted as complex diachronic negotiations about who owns the land or, more precisely, about who has ultimate authority in governing the lands. Legal personality provides a provisional solution for this question.
3.3. From Park to Legal Subject
The history of treaty negotiations might suggest that Māori descent groups feature as fully equal participants in a process of negotiation. However, negotiations always take place against a backdrop of state power to impose the general framework for discussion. Higgins makes the point that treaty negotiations force Māori to come together in ways that are not based on Māori custom. She argues that ‘the process that is placed upon iwi to create “mandated large natural groupings” by the Office of Treaty Settlements’ is itself an imposed framework.Footnote 92 She continues: ‘[T]he settlement systems are not determined by Māori and often contravene tikanga Māori, or any “customary system of authority”’.Footnote 93 This has the potential to create tensions within Māori communities, as tikanga systems of membership might or might not correspond with official requirements for commencing negotiations. In the case of Te Urewera, it was Te Kotahi a Tūhoe that received the mandate to negotiate with the Crown for treaty settlements.Footnote 94
Negotiations between Tūhoe representatives and the Crown began in 2005. For Tūhoe, the return of Te Urewera under their authority was non-negotiable, although it was far from clear at the beginning what this return might look like. The government, in turn, feared that:
[N]egotiating Te Urewera and mana motuhake would lead to Tūhoe creating a separate nation and closing borders and access to Te Urewera, which was still a National Park at the time. This sensationalism led to the Prime Minister removing Te Urewera from the negotiation table at the eleventh hour before the signing of the Agreement in Principle between the Crown and Tūhoe.Footnote 95
This led to the halting of negotiations in 2010 because, for Tūhoe, ‘Te Urewera and mana motuhake are inextricably linked’.Footnote 96 The refusal to negotiate further on the part of Tāmati Kruger, Tūhoe chief negotiator and senior leader of Te Kotahi a Tūhoe, forced the government back to the table and eventually resulted in the government granting legal personality.
The Te Urewera Act of 2014 establishes Te Urewera as a legal entity, a term used consistently throughout the document. It is tempting to interpret this term as synonymous with ‘legal person’. Following Grear's analysis, however, the only commonality between legal entity and legal person is their initiation through a legal proclamation.Footnote 97 The tendency to treat legal persons and entities as synonymous is exemplified in the definition of ‘legal person’ by Morris and Ruru as ‘an entity – a natural person, company or similar – that has legal rights and may be subject to obligations’.Footnote 98 The text of the Te Urewera Act seems to prefer the term ‘legal entity’ to define the legal status of Te Urewera, yet also sometimes uses the two terms synonymously. For example, section 11.1 declares that ‘Te Urewera is a legal entity, and has all the rights, powers, duties, and liabilities of a legal person’. This reflects the undertheorized nature of the difference between legal entities and persons, a difference that, as I argued earlier in the case of Ecuador, only really emerges when we consider the potential restrictions that these terms impose upon the practice of (politically) representing a nature with rights. Indeed, section 11.2 mandates that the aforementioned rights, powers and duties must be exercised on behalf of Te Urewera by the Te Urewera Board, thereby designating a specific representative for the legal entity. Constructing Te Urewera as an entity can therefore be interpreted as a way of being transparent about the artificiality of the construction itself, thereby allowing the Board ample discretion regarding how to represent Te Urewera and its specific life form.
The construction of Te Urewera as a legal entity in the context of the treaty negotiations is a compromise that avoids vesting land ownership either in Tūhoe or the government. It also avoids vesting full political authority in either party, instead opting for the construction of a Board that would be the de facto and de jure governor of Te Urewera, while the owner is Te Urewera itself. Indeed, section 17 states that the Board was ‘created in order to act on behalf of, and to “provide governance”’ to Te Urewera. Subsequent sections explicitly allow the Board to govern according to Tūhoe principles.Footnote 99 Tūhoe leaders have used the space opened up by the difference between ‘providing governance’ and ‘Tūhoe principles’: instead of opting for a conventional governance regime where people manage nature, Tūhoe ontology subverts the requirement of governance by recognizing natural entities themselves as capable of self-governance. This space of innovation is granted explicit approval by the law's designation of Te Urewera as an entity, and therefore not modelled on pre-existing governance arrangements.
In this context of ontological mixing between the Crown and Tūhoe, the rules for appointing Board members, and the internal rules of decision making, become very important in understanding how legal recognition might work in practice. Also important are the appointment panel, which consists of the trustees of Tūhoe Te Uru Taumatua,Footnote 100 the Minister of Conservation, and the Minister of Treaty Negotiations. In the first three years of functioning, the Board is composed of four representatives for both the Crown and Tūhoe. After the first three years of functioning, this changes to six members appointed by Tūhoe and three by the Ministers.Footnote 101 The appointment panel can remove previously appointed Board members.
Section 31 establishes that ‘Board members must promote unanimous or consensus decision making, as the context requires’. Sections 33 and onwards lay down the various decision rules. If a decision cannot be reached by consensus and must be put to a vote, it must be carried by an 80% majority of those present and at least two members who were appointed by the Ministers. Section 40 declares that ‘financially speaking and for tax purposes, Te Urewera and the Board are the same person’.
According to the 2014 Act, the Board is tasked with drafting and following a management plan, Te Kawa o Te Urewera.Footnote 102 One purpose of the management plan is ‘to set objectives and policies for Te Urewera’.Footnote 103 Te Kawa was drafted with strong input from Tāmati Kruger, chief negotiator and senior leader of Te Kotahi a Tūhoe, as well as a Board member and chairman of Tūhoe Te Uru Taumatua, who had been instrumental in negotiating the 2014 Act with the Crown. He turned the conventional framing of the relation between nature and management on its head and stated that ‘Te Kawa is about the management of people for the benefit of the land – it is not about land management’.Footnote 104 The next section of this article will discuss the difference between the Te Urewera Act and Te Kawa, as this will be important in developing the relationship between Tūhoe tikanga and legal recognition for Te Urewera.
The language that characterizes future management plans in the Te Urewera Act falls squarely within a western legal and managerial tradition dominated by outcomes, targets, and so on. As Jones points out, Māori terms are used heavily in the preamble and historical parts of the documents (the symbolic parts), while there is ‘a general paucity of Māori language within the operational provisions of these instruments’. Arguably, however, the Board brilliantly subverts this strategy in the management plan.Footnote 105
Te Urewera as a legal entity governed by a Board, itself governed by the self-drafted Te Kawa, is a wholly new arrangement which represents an innovative compromise in Māori–Crown relations. Strikingly, the issue of nature conservation is vested entirely in the Board, and therefore left open.Footnote 106 In fact, there is nothing particularly ‘environmental’ about the construction of Te Urewera as a legal entity. The provisions of the Te Urewera Act were not motivated primarily by environmental concerns, but rather by power relations between old rivals. This can also be said of the rights of nature provisions in the Ecuadorian Constitution.
4. COMPARING ECUADOR AND NEW ZEALAND
The Ecuadorian Constitutional Assembly and the Aotearoa Treaty settlement process can be characterized as parallel occasions for legal innovation. Though ostensibly involving different legal instruments, they are both rightly interpreted as constitutional. Indeed, the case of Te Urewera concerns a literally constitutional arrangement, as it sets the framework for all subsequent legal and political governance of the territory. In both Aotearoa New Zealand and Ecuador the history of colonial struggles is paramount for understanding the conditions under which the legal provisions under discussion were developed. Indigenous groups in Ecuador, as well as Māori iwi and hapū, have participated in processes of constitutional reform in the context of continuing struggles for recognition of their full authority in their territories. In this sense, legal rights of nature are the latest iteration in a history of conflict and negotiation over political authority.Footnote 107
This overarching similarity notwithstanding, Ecuador and New Zealand present strikingly different versions of rights of nature, both in substantive and genealogical terms. Kauffman and Martin theorize the difference between these and other rights of nature cases along the axes of scope and strength. In terms of scope, Ecuador's rights of nature concern all of nature, while the New Zealand cases always deal with a particular entity (here, Te Urewera). Ecuador gives specific rights, while Te Urewera is simply awarded ‘legal personhood status’.Footnote 108 In terms of strength, Ecuadorian rights of nature seem to derive most of their force from being embedded in a constitutional provision, while Te Urewera draws strength from the fact that it has appointed representatives.Footnote 109 Kauffman and Martin view the latter as guardians, but this is misleading in several ways. In fact, the issue of guardianship is carefully avoided in the texts of the New Zealand laws. Māori philosophy does not place humans as guardians of the environment. For Māori, places are inhabited by kaitiaki (the term usually translates as ‘guardian’), which are specifically not human. The ethic of care is kaitiakitanga, variously translated as ‘trusteeship’ or ‘guardianship’. However, as Kawharu explains, ‘implementing kaitiakitanga is as much about managing resources of the environment as it is about managing people’.Footnote 110 This focus on managing people, as well as the reluctance to format nature according to a human form (for example, a person), are major overlooked differences between Ecuador and Te Urewera. Strikingly, the western notion of guardianship seems to be so deeply rooted that most commentators have read it into the Te Urewera Act, even though there is no textual legal basis for doing so.Footnote 111
The issue of who has standing to act on behalf of nature is important insofar as it gives clues as to the likely politics of rights of nature in its various forms. Standing need not be interpreted narrowly as a legal requirement with applicability in court alone. Instead, it can be conceptualized as the right to speak on behalf of a legal entity, and therefore to represent it, in diverse fora.Footnote 112 Beyond court settings anybody can speak for nature in Ecuador.Footnote 113 In New Zealand, in contrast, only particular groups are morally, politically, and legally justified in acting as representatives of the legal entities under discussion. This difference is more radical than is immediately apparent, not least because of the very different ways in which it allows Indigenous philosophies to articulate specific ways of relating to environments not necessarily understood on the model of a (human) person.
The Te Urewera Act creates Te Urewera as a legal entityFootnote 114 and establishes a relationship of representation between this entity and a particular Māori group.Footnote 115 In Ecuador, legal personality is created through substantive rights (to respect and to restoration), while the relationship between the thus-created legal person and any group is left wide open. Importantly, the rights of nature invoked by the Ecuadorian Constitution are ‘intended to portray Nature's right as being inherent to all of the Earth's ecosystems, including those beyond Ecuador's borders’.Footnote 116 This is strikingly similar to human rights advocacy that portrays rights to be inherent in the human person, wherever she may be. It therefore appears that legal personality for nature in the Ecuadorian Constitution is modelled on the human person. As argued below, this can significantly limit the extent to which Indigenous philosophies manifest in these rights.Footnote 117
In summary, in order to understand the different scope and strength of the Ecuadorian rights of nature and Te Urewera, it is useful to conceive of these provisions as reflecting the difference between a legal entity and a legal person, introduced earlier through the work of Grear. The framing of Te Urewera as a legal entity allows the focus to shift onto its political representation by the Te Urewera Board, and therefore allows space for the development of Te Kawa away from the dominance of the human form in territorial politics. In contrast, understanding the Ecuadorian law as creating a universal legal person with specific rights reproduces the centrality of the human and thus also runs the risk of mischaracterizing Indigenous ontological commitments. In the final section the article considers more closely Te Kawa as well as Amerindian ontologies in order to see how Indigenous groups might benefit from rights of nature while also having to adapt to and occasionally work around them.
5. DISCUSSION
5.1. Te Kawa and Legal Personality
A close study of Te Kawa shows how Tūhoe philosophy both benefits from and has to work around the issue of legal recognition in order to develop itself and to deploy its authority. Te Kawa carefully avoids the issue of rights and instead uses the general notion of legal entity to carve a space for a genuinely relational ontology. Importantly, the availability of this space of intervention, hybridization, and innovation is made possible by the notion of an entity already present in the Te Urewera Act itself. Te Kawa is quite explicit in circumventing the notion of rights per se, as well as shifting the focus away from the human as the model of legal status and towards as yet unexplored possibilities. Section 1.1 states that ‘as her [nature's] children we are born with responsibility, we are not born with power and rights’, an issue that is reflected through Tūhoe ontological hierarchy which disrupts ‘the notion of our false superiority over the natural world. In all decisiveness, we are returning to our place in nature, as her child’.
Whereas the Te Urewera Act 2014 mandated a classic management plan, Te Kawa sets out from the beginning to be a philosophical guidebook in finding one's way in building relationships with the natural world. The assumption, often present in western commentaries, of an inherent connection between Māori and nature is not only absent in Te Kawa, but is actively challenged. The text announces that ‘for Tūhoe, time is needed to replace low capability, with vigour, expertise and confidence in a stronger connectedness with Te Urewera’.Footnote 118 In fact, ‘for all, implementing the new Te Urewera Act and Te Kawa o Te Urewera will involve a process of unlearning, rediscovery and relearning’.Footnote 119
The process of unlearning that the text refers to can be interpreted in light of the previous ontological mixing occasioned by colonialism and settlement. A particular connection with the land is as good as the practices that keep it alive, and does not rest in ethnic categories. The relationship of the Board with Te Urewera is seen as an occasion for relearning a tradition of ontological relationality, in which people are situated within natural phenomena that, through deep anthropomorphism, are brought into complex genealogical relations. The concept of legal personality is neither presented as an end in itself, nor as a particularly faithful rendition of tikanga Māori.
The idea that Indigenous descent groups are to reinvent relationships with the land underlines the dynamic cultural and philosophical evolution of tikanga Māori, alongside settler influences. Te Kawa ends with a quote from T.S. Eliot: ‘We shall not cease from exploration, and the end of all our exploring will be to arrive where we started and know the place for the first time’.Footnote 120 This insistence on self-reflection and evolution is extraordinary, but it does not follow automatically from the granting of rights. In fact, Te Kawa can be seen as an exceptional document precisely in as much as it transcends a narrow legalistic frame in order to engage fully with a reinvention of tikanga itself.
Commenting on legal entity arrangements more broadly, Jones argues that these arrangements:
have assumed a de facto law-making role in many communities; any shift away from tikanga-based governance in the rules and operation on the PSGE [post-settlement entities and assets] is likely to be reflected more generally in a shift away from tikanga-based law-making in the community.Footnote 121
This implies, correctly in my view, that rights for natural entities are not inherently friendly to Māori ways of thinking, and might imply a transformation in Indigenous relations to land away from customary ways. As Te Kawa shows, it takes concerted and ongoing political effort to affirm the authority of tikanga Māori, even after legal recognition of Māori territories.
5.2. Amerindian Multinaturalism
The relational ontologiesFootnote 122 of Māori worlds are, in formal terms, also reflected in Amerindian ontologies. Beyond the idea of good living, Amerindian ontologies, as described by Viveiros de Castro,Footnote 123 are deeply relational. Relational ontologies conceptualize the world as a series of relations: the primary beings of the world are not individuals separated by identity criteria, but rather are the relationships between inherently changeable beings. This allows such philosophies to escape the constraints of materialism, which relegates only ‘material objects’ to the status of reality, everything else being epiphenomenal. Instead, Amerindian ontologies (and, to a large extent, Māori ontologies) are able to live with a great many beings that are, from the outside, supernatural, whereas from the inside are simply beings in a relational world.Footnote 124
In Amerindian philosophies the world is understood to be connected, held together as it were, by the principle of humanity. As Viveiros de Castro explains, ‘humankind is the substance of the primordial plenum or the original form of virtually everything, not just animals’.Footnote 125 This is because subjectivity, understood as subjective experience, is what connects all beings; differentiation is merely material. In other words, ‘the manifest bodily form of each species is an envelope (a “clothing”) that conceals an internal humanoid form’.Footnote 126 This deep form of anthropomorphism – literally, everything has interiority – sustains a relational ontology steeped in what De la Cadena calls ‘earth-practices’, defined as ‘relations for which the dominant ontological distinction between humans and nature does not work’.Footnote 127 The reason is two-fold: firstly, it is relations that are primary; secondly, it is subjectivity that connects all beings.Footnote 128 In many Amerindian philosophies, Andean ones included, there is one humanity and there are many natures, a view that Viveiros de Castro calls multinaturalism.
In the text of the Ecuadorian Constitution, Pachamama is an Indigenous other-than-human figure that erupts in the political space of the state.Footnote 129 However, the equivalence in the constitutional text between this figure and nature – including in the articles that grant rights to nature – is deeply problematic, as it forces the radical potential of an Indigenous cosmopolitics into the moulds of modernist ontology. In particular, the constitutional text falls prey to the western obsession with totality, visible in the rendering of Pachamama as universal nature, Earth as such, if somewhat animated by Amerindian ‘beliefs’. The Constitution manages to construct nature on the model of the human person, whereas Indigenous philosophy, through its multinaturalism, universalizes the interiority of the human experience (everything has a life of its own) and the dynamism and openness of material forms (and everything changes). From this perspective it is the concept of a stable human person (with intrinsic characteristics and values) that can be destabilized by modelling it more closely on the dynamism and fundamental openness of nature. Instead, the rights of nature in the Ecuadorian case reinforce a western view that attaches to nature the universalism which it had previously attached to human rights. The possibility of allowing Indigenous ontology to disrupt the very notion of universalism seems, here, foreclosed.
There is an intrinsic relationship between the idea of rights and that of totality, both in terms of the full individual as recipient of rights,Footnote 130 and also of nature as the subject of rights. Latour offers a useful critique of the idea of totality in political ecological thought, centred on the ways in which it renders other-than-human forces and actors as a unified globe, a sphere floating in space, which is the polar opposite of what deeply relational modes of being interact with.Footnote 131 The idea of totality radically delocalizes interactions between undefined human beings and inherently dynamic natural assemblages. In relational ontologies it is this land, here and now, specific to a location and a people, that acts and is therefore given voice through particular partnerships with particular people, who themselves take their character from the land. Ecocentric philosophies, on the other hand, tend to speak for a totalizing, universal nature that stands above any one being. Amerindian ontologies are not ecocentric in this highly modernist sense. Notably, advocates of a totalizing figure of nature seldom seem to reflect on their own positionality. For example, looking at the transnational policy network instrumental in Ecuador's rights of nature,Footnote 132 it is clear that a total universal nature is paired with a ‘global citizen’ who can afford a totalizing view.
What is sidestepped in the operations of totality are precisely the myriad relationships that exist between not nature on one side and individuals on the other, but rather between worlds and peoples. It is in this sense that the Te Urewera Act constitutes, in my view, the most significant innovation in nature's representation so far, precisely because of the minimalist grant of legal entity status and the determined focus on representative arrangements. Te Urewera, in contrast to nature's rights in Ecuador, is a particular place that enters into anthropomorphic relations with particular people, now potentially empowered to reinvent future relationships which can unsettle the definition of what constitutes a human as much as what constitutes ‘nature’. The anthropomorphism of Indigenous philosophy does not simply posit universal nature as fundamentally akin to human people, but rather signifies entry into genealogical ecological relations modelled on a particular natural entity itself, such as Te Urewera. It is the natural entity that sets the tone of the relationship.Footnote 133
The idea of nature as presented in the Ecuadorian Constitution has the potential to undermine the dynamism implied in relational ontologies. To be precise, in as much as relations are primary, the beings that are constituted through them are in flux; they change and adapt to new circumstances and new relations. Therefore, it is a ‘nature out there’ that is worshiped as an unchangeable form. Rather, Amerindian philosophies posit environmental relations in terms of reciprocal exchanges,Footnote 134 as do Māori philosophies. In this context, Article 72 of the Ecuadorian Constitution, which gives nature the right to be restored, might be particularly problematic in terms of the extent to which it affords other-than-human beings their own autonomy in changing.
6. CONCLUSIONS
The discussion in this article would suggest that the rights of nature are not an end state, but rather a historically contingent experiment in the ongoing pursuit of greater Indigenous political authority. They do not come with environmental results embedded but will be subject to future representative efforts on behalf of the new legal entities. Crucially, future environmental results are themselves determined by the way in which rights are granted, which modality in turn depends on why they were granted.
The precise form that legal subjectivity arrangements might take will be influenced by Indigenous participation in various ways. However, to understand Indigenous philosophies as leading towards ecocentric law, in my view, misstates the issue. Many Indigenous philosophies are not about centrism at all, but rather about a deep relationality that is context-specific. Ecocentrism risks sidestepping the notion of reciprocity, arguably a central issue for many Indigenous philosophies, in favour of the issue of recognition, a western onto-normative construct that is steeped in universalist and centrist thinking. Finally, an ecocentric analysis does nothing to change the argumentative form of anthropocentrism, but merely turns it upside down.
I have also argued that understanding the rights of nature as inaugurating a legal entity – and drafting laws accordingly – potentially allows more hybridization of western and Indigenous legal and political conceptions. This is so because an ‘entity’ need not be constructed according to the predetermined and human-centric characteristics that travel together with the concept of ‘person’. As Naffine points out, ‘legal rights are seen as a mere augmentation of what are taken to be innate moral attributions of “natural’ persons”’,Footnote 135 something that conceals important distinctions ‘between legal rights and moral rights, legal personhood and moral personhood’.Footnote 136 Consequently, radically different ontological assumptions about what nature might be, and a radical decentralization of the human person, are restricted in changing the fabric of law.
The most radical discourses of environmental law seem concerned primarily with an ‘extension of rights to living and non-living human and non-human entities in an effort to dissolve interspecies hierarchies’.Footnote 137 However, doing so further legitimizes the construct of rights itself, what Rawson and Mansfield call ‘the naturalization of rights’, and which they rightly point out has troubling colonial histories.Footnote 138 Even when opting for the formulation of nature's rights within the more flexible construct of legal entity, it is not clear that the liberal rights history that models them on particular kinds of person can be entirely sidestepped.Footnote 139 Just as importantly, the ways in which Indigenous philosophies personify nature do not seem to be aptly translated by the western concept of legal person. On the contrary, the legal person conceives of natural entities according to human criteria, whereas personifications of nature in Indigenous thought naturalize the human person, bringing her into genealogical relations with particular lands.
The political implications of Indigenous ways of life are vastly more radical than those of rights of nature. In identifying Indigenous philosophies with rights of nature too closely, we run the risk of diminishing the radical potential of alternative political arrangements. The two cases examined in this article feature rights for nature as part of negotiations over political authority between Indigenous groups and settler states. In Ecuador, this negotiation took the form of a liberal rights expansion. In Te Urewera, the negotiation was in important respects in open conflict with liberal rights, although it remains to be seen how far the concept of legal entity can move away from a liberal rights paradigm. As radical as nature's rights might first appear, they still need to show convincingly that they are able to incorporate Indigenous philosophies on an equal footing. A fully equal (political and legal) engagement with Indigenous worlds remains ahead of us.
