2.1. The Colonial History of Wilderness Manufacture

Environmental movements emerged in the United States (US) in the 19^th century with the central concern of protecting immaculate nature (‘wilderness’).Footnote ¹⁶ Witnessing the extremely rapid industrialization of the continent, novelists, philosophers, and adventurers demanded the preservation of chosen natural areas from irreversible degradation caused by economic expansion. Wilderness stood as ‘an island in the polluted sea of urban-industrial modernity’ and had to be preserved as ‘the last remaining place where civilization, that all too human disease, has not fully infected the earth’.Footnote ¹⁷

The organization that embodied this approach was the Sierra Club, founded in 1892 and first presided over by John Muir. Muir travelled the continent, revealing its extraordinary beauty and detailing the sublime experience of wilderness.Footnote ¹⁸ He called for the preservation of these ‘natural cathedrals’, for they enabled unique human experiences, especially connection to the divine. In other words, this environmental movement ‘arises from the love of beautiful landscape and from deeply held values, not from material interests’.Footnote ¹⁹

Jedediah Purdy labels this perspective as the paradigm of ‘romantic epiphany’ which, along with competing narratives, represents one of the historic guiding principles of US environmental law.Footnote ²⁰ Driven by powerful aesthetic considerations, these environmentalists advocated natural parks where human activities would be strictly limited.Footnote ²¹ The Yosemite was declared in 1864 a federally preserved land – and was later, in 1890, established as a national park thanks to the advocacy of John Muir in Congress – while Yellowstone became the first true national park in 1872, paving the way for the entire National Park Service. As of today, more than 100 million acres of federal land are protected as statutory wilderness and ‘form the largest legacy of romantic epiphany in the law’.Footnote ²²

The very idea of wilderness requires the absence of human traces. Indeed, according to the US Wilderness Act of 1964, wilderness is a place ‘where man himself is a visitor who does not remain’.Footnote ²³ Yet, pristine nature, free from past or present human interference, was a myth. Indigenous peoples already inhabited the vast American territories and had interacted with their natural environments for centuries before the arrival of settlers. Consequently, ‘nature’ had to be manufactured through its dehumanization. Following this line of reasoning, ‘green museums’ were created through the expropriation and displacement of Indigenous tribes who were inhabiting the chosen territories.Footnote ²⁴ The same colonial logic was applied in Canada where the ‘wild, uninhabited Canadian forests’ were manufactured through the ‘clearing of landscape’Footnote ²⁵ from the presence of First Nations. In both countries, this conceptual and physical erasure of Indigenous tribes was justified by the fact the Indigenous populations were ‘devoid of agricultural practices, written laws and organized governments’ and therefore ‘out of civilization’.Footnote ²⁶ Ultimately, wilderness was the result of human design,Footnote ²⁷ which relied on ‘sequestering large tracts of wilderness in a state of imagined innocence’Footnote ²⁸ by deploying colonial violence. Soon, the national parks became touristic attractions as the wealthiest citizens longed for the wilderness experience. For those elites, ‘wild land was not a site for productive labor and not a permanent home; rather, it was a place of recreation’ where they could ‘safely enjoy the illusion that they were seeing their nation in its pristine, original state, in the new morning of God's own creation’.Footnote ²⁹

This is the paradox of wilderness: while claiming authenticity, it is a historical production reflecting the cultural projections of its founders.Footnote ³⁰ As William Cronon puts it, wilderness is a cultural invention that ‘expresses and reproduces the very values its devotees seek to reject’.Footnote ³¹ Despite claiming to embody the closest relationship one can have with nature, this ideology rests on a dualistic vision where human and nature are separate and distinct.Footnote ³²

The myth of wilderness has persisted over the years. In his recent book, Guillaume Blanc exposes the continuation of land expropriation for the sake of ecological conservation, which he labels ‘green colonialism’, focusing on the African continent.Footnote ³³ He explains the origins of the ‘myth of the Wild Africa’Footnote ³⁴ developed by the colonial administration, who argued – quite contradictorily – that the nature of the continent was both majestic and blossoming, which would logically imply that its inhabitants have managed the ecosystems in a sustainable fashion, and also in great danger because of the reckless behaviour of African tribes. Indeed, ‘[i]nstead of pointing to the colonial extractive industries to explain the loss of biodiversity, colonial administrators soon blamed the local communities’ practices’.Footnote ³⁵ As a result, the colonial mission was to ‘save Africa from Africans’Footnote ³⁶ and their supposedly destructive and archaic practices. Preserving the wildlife required the coercive ‘dehumanization’ and ‘desocialization’ of natural areas (prohibition of agriculture, removal of communities, and so on). As the West achieved unprecedented levels of economic growth, often at the expense of its wildlife, the African continent came to be seen as the natural jewel that had to be protected at all costs, even at the expense of the development of local communities, to offset the destruction of natural areas in industrialized countries.

2.2. Social Exclusion in the Name of Nature Protection

While colonial powers were the first to create nature reserves, these practices were maintained in the post-colonial context through the work of international conservationist organizations (World Wildlife Fund; UN Educational, Scientific and Cultural Organization) jointly with the national governments.Footnote ³⁷ Under the banner of nature conservation, Western environmentalists perpetuated the neocolonial subjugation of local populations.Footnote ³⁸ This colonial scheme was further reinforced by a neo-Malthusian belief, which linked the degradation of the environment to the overpopulation of the continent:Footnote ³⁹ the (in)famous ‘population bomb’.Footnote ⁴⁰

Just as the American settlers disregarded the human interaction of Indigenous communities with their environment, portraying it as a pre-civilizational state of nature, Western colonial powers ignored the fact that ‘virtually every part of the globe, from the boreal forests to the humid tropics, has been inhabited, modified, or managed throughout our human past’.Footnote ⁴¹ As a result, so-called wild areas are actually artifacts resulting from human intervention which, far from leading to excessive exploitation of resources and the collapse of ecosystems, have managed to maintain ecological equilibria. Indeed, farmers and Indigenous communities worldwide have not only preserved but also actively contributed to the cultivation and preservation of the biodiversity.Footnote ⁴² Those populations are now threatened by coercive land grabbing, sometimes in the name of ecological considerations.Footnote ⁴³ This reveals the persistence of the wilderness ideology that reinforces the historically constructed dualism between humankind and nature by drawing a clear line between civilized zones and wild areas.Footnote ⁴⁴ Instead of shaping mutually fruitful interaction between human societies and their environment, the goal is to compensate the destruction caused by capitalist expansion by manufacturing pristine ecosystems.Footnote ⁴⁵

Following this ideological framework, RoN could further exacerbate the marginalization of disenfranchised communities, placing nature's rights above human rights in selected areas. For example, the recognition of the legal personhood of Bangladeshi rivers by the country's Supreme Court put poor communities at risk of eviction as they ‘encroach’ on the riverbanks.Footnote ⁴⁶ Unlike cases in Colombia or New Zealand, where rights of rivers were a tool to protect the interests of local residents who depend on the ecosystem to survive, this ruling opened the door to the penalization of fishermen and farmers who have traditionally lived by rivers.Footnote ⁴⁷ This example aligns with what Erin O'Donnell characterizes as the ‘competition scenario’ wherein RoN engender a contentious rivalry between humans and nature, pitting their respective sets of rights against each other. This opposition may, in turn, justify the dehumanization of natural ecosystems. In contrast, the ‘collaboration scenario’ envisions that RoN facilitate the articulation of both social and environmental needs, considering the interdependence between local communities and their ecosystems.Footnote ⁴⁸

However, arguably, the Bangladeshi example is an unfortunate isolated event that does not fairly reflect the priorities of the broader RoN movement. Indeed, dominant discourses produced by prominent RoN advocacy groups tend to stress the importance of local communities in conservation endeavours. The influential US organization, the Community Environmental Legal Defense Fund (CELDF), argues that its mission is to ‘build a decolonial movement for Community Rights and the Rights of Nature to advance democratic, economic, social, and environmental rights’.Footnote ⁴⁹ In the same vein, the Anima Mundi Law Initiative stresses that ‘all living entities are inextricably interconnected’ and that humans ‘can be active agents towards the flourishing of all planetary life’.Footnote ⁵⁰

This does not entirely negate the risk that RoN would, on certain occasions, perpetuate ‘green colonialism’ – that is, ‘the imposition of a culturally specific construction of ‘nature’ … by those in a position of dominance upon those who are in a subordinate power relationship’.Footnote ⁵¹ While the aforementioned statements emphasize the undeniable interdependence of human well-being and healthy ecosystems, primarily from a global and abstract perspective, they offer limited guidance on how to navigate the inevitable conflicts that will arise between human rights and nature's rights in concrete cases.Footnote ⁵² This substantial gap leaves the door open to a range of possible interpretations and ensuing scenarios, including that where ecological integrity would prevail over the human prosperity of certain communities.

In any event, assuming that the threat of a violent process of wilderness manufacture was mitigated, exclusionary dynamics could take other forms. RoN could perpetuate existing social inequalities if deployed by privileged communities seeking to protect their local environment and secure access to its amenities while displacing environmental damage to disenfranchised social groups. The US provides a valuable context for examining the distributive implications of RoN.Footnote ⁵³ In a recent study that examined more than 60 US communities where RoN ordinances were implemented, Ellen Kohl and Jayme Walenta reveal that such rights are often used to enhance the self-governance and individual empowerment of overwhelmingly white communities. Hence, according to the authors, RoN are ‘not a paradigm shift that alters Western human understandings and relations with nature’ but rather operate as a governance framework, ‘reinforcing and naturalizing the White privilege embedded in the liberal rights system, perpetuating a White right to a clean environment’.Footnote ⁵⁴ This empirical finding, however, is insufficient to conclude that RoN necessarily reinforce the power of privileged social groups in the US context. Abstractly equating white communities with privileged and homogeneous groups oversimplifies the complex dynamics at play. In reality, the emergence of RoN in the US was, in part, a response to fracking and its widespread toxicity, which disproportionately affects marginalized communities. Furthermore, another study concludes that ‘despite these exclusionary legacies, RoN activists are experimenting with municipal law-making in ways that are bringing them into closer conversation with contemporary racial justice struggles’.Footnote ⁵⁵ It is therefore crucial to conduct further studies on the sociological composition of those initiatives and their concrete social consequences.

In a similar vein, RoN can secure the power of dominant communities – favoured to act as custodians of nature – to access the resources of an ecosystem at the expense of marginalized groups. In 2013, the Supreme Court of India granted decision-making power over the Niyamgiri hills to the Dongria Kondh tribal community, based on its sacred bond with the ecosystem, excluding other groups such as the local Dalits (untouchable community in the Indian caste system) who also inhabited the hills.Footnote ⁵⁶ A few years later, in 2017, the Uttarakhand High Court in India recognized that both the Ganga river and its principal tributary, the Yamuna river, were ‘legal and living entities having the status of a legal person with all corresponding rights, duties and liabilities’.Footnote ⁵⁷ The Court relied heavily on Hindu belief systems to justify its decision, navigating ‘between the sacred and the legal’.Footnote ⁵⁸ The judges stated that the ‘Rivers Ganga and Yamuna are worshipped by Hindus’ for whom ‘a dip in River Ganga can wash away all the sins’.Footnote ⁵⁹ This reasoning excludes the claims over the rivers’ resources of other communities, such as the Muslim minority or the lower-caste Dalits. Although the judgment was subsequently overruled by the Supreme Court, the ruling remains exemplative of a decision that could reinforce pre-existing marginalization dynamics. In the context of the rising tide of Hindu nationalism, RoN can potentially be weaponized to secure access to natural resources for the dominant community at the expense of other competing social groups.

Two factors make these exclusionary and regressive outcomes more likely. Firstly, despite a great variety of actors, Ariel Rawson and Becky Mansfield note that the transnational lobbying network of RoN is dominated by a ‘select group of actors, primarily from the global North, who utilize western holism and jurisprudence to promote nature's rights as an Indigenous and organic alternative to western development’.Footnote ⁶⁰ This sociological component could facilitate the reproduction of colonial patterns deeply rooted in certain strands of environmentalism. In addition, it is also possible to envisage that RoN would encounter an ‘elite capture’ in the sense of its appropriation by public or private entities that would empty the notion of its radical potential.Footnote ⁶¹ This is made more likely by the fact that, as ecological threats intensify, there is an increasing temptation for authorities to impose a state of ‘environmental exception’, with the ensuing suspension of democratic protocols and hostility towards the active and participatory role of all humans in finding a collective way out of this crisis.Footnote ⁶²

3.1. Origins and Central Tenets of the Environmental Justice Movement

In the US, the first movements calling for environmental justice were driven by local communities fighting against polluting projects that negatively affected their quality of life. The precursory examples of the residents of Love-Canal and of Warren County protesting against the implementation of waste landfill facilities are frequently mentioned as the starting moment of this movement.Footnote ⁶⁴ These struggles appeared within poor and predominantly African American communities.Footnote ⁶⁵ In line with the civil rights movement, these minorities were resisting environmental racism – namely, the exclusion of ethnic minorities from decision-making processes and their unequal exposure to environmental degradation and pollution.Footnote ⁶⁶ The object of protection was not the remote and purely recreational nature of the privileged classes but the homes of working people and marginalized communities.

Environmental justice then extended its field of action far beyond the US to become a reference within social movements around the world. While North American environmental justice originally stressed the link between ethnic origin and environmental pollution, this analysis eventually extended to all precarious populations.Footnote ⁶⁷ In Europe, environmental justice focuses mainly on socio-economic rather than ethno-racial inequalities, although the two often overlap. As Susan Cutter puts it, ‘environmental justice moves beyond racism to include others who are deprived of their environmental rights, such as women, children and the poor’.Footnote ⁶⁸ Environmental justice became ‘the first sector of the environmental movement to examine the human-human and human-nature relations through the lens of race, class, and gender’,Footnote ⁶⁹ considered all to be intrinsically linked. The environment becomes another site of domination, adding to the ‘simultaneity of oppressions’Footnote ⁷⁰ experienced by some social groups. In the global south, Joan Martinez-Allier uses the term ‘environmentalism of the poor’ to refer to the struggles of local populations in resisting the environmental costs of Western development that threaten their livelihoods (Indigenous communities against the mining industry, poor fishermen facing the industrial fishing industry, rural communities’ struggles against land grabbing, and so on).Footnote ⁷¹ In general terms, ‘these movements represent a form of resistance to an industrial and neoliberal exploitation regime that destroys their means of survival’.Footnote ⁷²

According to the environmental justice framework, empowering local communities would lead to better ecological outcomes. The reasoning behind this lies in the likelihood that those communities would resist corporate attempts to exploit their lands as their well-being depends on the preservation of the natural ecosystems. Indeed, for these populations, environmental consciousness arises in resistance against the capitalist plunder of natural resources that is a direct assault to their homes.Footnote ⁷³ According to Martinez-Alier, the poor and largely rural populations of the global south have a deeper understanding of the consequences associated with environmental degradation as their livelihoods are reliant on healthy ecosystems.Footnote ⁷⁴ As a result, in ‘many resource extraction and waste disposal conflicts in history and today, the poor are often on the side of the preservation of nature against business firms and the State’.Footnote ⁷⁵ This claim is supported by the recent report from the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) on the sustainable use of wild species: 70% of the world's poor depend directly on wild fauna and flora, and the massive extinction of species is a direct threat to their survival.Footnote ⁷⁶

3.2. Empowering Local Communities through the Institutional Design of the Rights of Nature

Following this framework, RoN endeavours should aim primarily at protecting the existing collective practices that have proved to enable fruitful relations between human societies and natural ecosystems.Footnote ⁷⁷ Extractive capitalism rests on the legally permitted transfer of costs – social and environmental – onto more vulnerable individuals and communities. The objective of the RoN should be to combat power asymmetries, and to favour those whose well-being is closely intertwined with ecological integrity in contrast with profit-driven agents, who may simply enjoy the economic benefits without having to suffer the costs through the externalization process at the heart of global capitalism.Footnote ⁷⁸

This view seems to be shared by several actors in the RoN movement. When criticized for the possible regressive consequences of pitting human and ecosystems rights against each other, the promoters of the Lake Erie Bill of Rights argue that ‘[o]ur work is to elevate human and ecosystem rights above corporate greed, so we can avert a future of profit-driven water apartheid that favours the rich and wealthy at the expense of the poor and the nature world’.Footnote ⁷⁹ In the same way, CELDF states that its mission is ‘to build sustainable communities by assisting people to assert their right to local self-government and the rights of nature’.Footnote ⁸⁰ More generally, nature's rights and human rights are often depicted as ‘indivisible’. According to Cormac Cullinan, ‘the human right to life cannot be protected without protecting the rights of the Earth Community to exist and function’.Footnote ⁸¹

The desire to empower local communities through RoN has far exceeded the mere rhetorical posture. After reviewing several cases where rivers were recognized as legal persons, David Takacs concludes:

In more concrete terms, empowering vulnerable communities through the representation of nature can take two forms: (i) litigation, (ii) political participation. In the first scenario the designated human community can act on behalf of the natural ecosystem under its stewardship in judicial proceedings. In the second scenario local communities are enabled to participate in decision-making processes for any matter that may have an impact on the local ecosystem. These two options are not mutually exclusive. The political participation approach can complement the litigation option: local communities would not only be able to react judicially when projects may harm their environment but would be granted the power to decide on the future of the territory and therefore to reject extractive endeavours in the first place. The complementarity of judicial and political representations is evident in the enactments of rights of nature in New Zealand. The Te Urewera ParkFootnote ⁸³ and the Whanganui riverFootnote ⁸⁴ are represented by boards, composed of members of both the Māori communities and of the New Zealand government, endowed with substantial political decision-making power and the ability to initiate legal proceedings on behalf of the ecosystem. In a similar fashion, enhancing the political participation of local communities has become a common remedy of judicial decisions in enacting nature's rights, as the Atrato River case detailed below exemplifies.

Nevertheless, this proposition is founded on the belief that if local communities were granted more authority in environmental decision-making processes, they would prioritize development options that uphold the ecological integrity of ecosystems. This assertion gains traction from the fact that numerous activities undertaken by extractive industries have profound detrimental effects on both ecosystems and the well-being of populations residing nearby. For instance, a comprehensive meta-analysis has estimated the existence of approximately 70,000 oil fields across 100 countries,Footnote ⁸⁵ while another study estimates that 638 million persons in low- and middle-income countries live in rural areas close to oil reservoirs.Footnote ⁸⁶ According to those studies, oil extraction causes soil, water, and air contamination, which lead to subsequent consequences for the health of local residents (such as cancer, liver damage, immunodeficiency, and neurological symptoms). Furthermore, the economic benefits accrued by local communities from these activities are meagre, as the profits flow predominantly to external actors, such as shareholders and directors of transnational corporations. Consequently, these communities bear the brunt of the costs associated with extractive projects while reaping minimal benefits. Such struggles are well documented in the Environmental Justice Atlas,Footnote ⁸⁷ and draw significant scholarly attention.Footnote ⁸⁸

However, despite its apparent potential, this approach has a significant blind spot, which requires attention when seeking to articulate RoN and environmental justice. The key issue is that it remains very uncertain whether marginalized communities would opt for sustainable development projects. Some authors, drawing on participatory research with local communities residing near oil extraction sites in Ecuador, have documented what initially appears to be a paradox: although individuals are aware of the detrimental impacts of the oil industry on their well-being and local development, they express a desire for increased oil extraction in their communities.Footnote ⁸⁹ Even if oil extraction has failed to deliver the ‘economic miracle’ promised, many communities reluctantly support the intensification of extractive industries in the region because of the lack of viable economic alternatives. Indeed, these extractive companies often serve as the primary source of employment for families. As the authors claim: ‘the limited and partial benefits of oil-led development are in fact the only consolation individuals and communities that live around extractive industries have in the face of steady and extensive deterioration of their natural and social environments’.Footnote ⁹⁰ In fact, extractive endeavours create a path dependency that crowds out other development options as a result of the destruction of the living environment.Footnote ⁹¹

It is essential to refrain from romanticizing the local residents, particularly when discussing Indigenous peoples, as I will further address in the following section. The subsistence and economic necessities of vulnerable and marginalized social groups, in specific circumstances, may take precedence over their ecological sensitivity, given their profoundly dire living conditions.

The case of the Atrato river exemplifies this daunting dilemma facing local communities. In 2016, the Constitutional Court of Colombia declared the legal personhood of the Atrato river, recognizing its rights to ‘protection, conservation, maintenance, and restoration’.Footnote ⁹² The Constitutional Court deployed a reasoning that relied on a ‘biocultural rights paradigm’,Footnote ⁹³ referring to an approach to biodiversity conservation that recognizes the ‘profound unity between nature and the human species’,Footnote ⁹⁴ and requires the extension of ‘the participation of human communities in the definition of public policies and regulatory frameworks and guaranteeing the conditions for the generation, conservation and renewal of their knowledge systems’.Footnote ⁹⁵ To implement the decision, the Court required the state to design a collaborative governance scheme that would exercise the legal guardianship and representation of the Atrato river. The Commission of Guardians was subsequently created, composed of 14 ‘river guardians’, respecting the principle of gender parity, drawn from seven local communities (the so-called Collegial Body) and the Ministry of the Environment.

Following a thorough socio-legal assessment of the decision's implications, Philipp Wesche notes that the most significant tangible effect of the ruling is the collective and participatory construction of public policies to restore the river's ecosystems. He stresses that ‘the communities residing in the Atrato region gained a much stronger voice in policymaking in their role as community guardians’.Footnote ⁹⁶ However, despite this increased participation, the socio-ecological impacts have thus far been limited. Although various action plans have been adopted – addressing issues such as environmental restoration, the eradication of illegal mining, and the revival of traditional subsistence practices – their actual implementation remains minimal. Numerous obstacles hinder progress, including the ongoing insecurity faced by environmental activists as a result of armed groups benefiting from illegal mining and the lack of financial resources available to support community guardians. Moreover, as Wesche contends, ‘[i]llegal mining does not only involve organised armed groups, corrupt public officials and foreign businessmen, but also the very same communities who suffer from its impacts, but lack other income opportunities’.Footnote ⁹⁷ He further argues that ‘these communities do not all live in unity with nature, as rights of nature advocates sometimes romantically seem to assume, but are characterised by inner divisions, forming part of the problem, due to the lack of infrastructure and income opportunities’.Footnote ⁹⁸ The dire economic situation of the Choco department exacerbates these challenges, with nearly half of the population living in extreme poverty and approximately 80% unable to satisfy their basic needs. In the absence of adequate public services and limited investment, the local economy relies heavily on illegal mining. As a guardian of the river testified in a recent interview, ‘[w]ater is essential. We don't feed ourselves on oil or copper. Yet, the mine is the only employer in the region’.Footnote ⁹⁹

This shows that RoN hardly constitutes a legal silver bullet for environmental justice if the political economy of those regions remains unchanged. Any recognition of RoN adopting an environmental justice lens should be coupled with a set of transformative socio-economic measures to accompany the desired changes. In short, the legal status of the natural resource may matter less than the macro political-economic agenda designed to enable the green transition.

4.1. Rights of Nature: Translation, Hybridization or Subjugation of Indigenous Cosmologies?

For many authors, what is at stake is fundamentally a translation operation: RoN express Indigenous cosmologies. Representing this position, Craig Kauffman and Pamela Martin consider that RoN codify Indigenous worldviews in legal terms.Footnote ¹⁰³ Others claim that the underlying principles of RoN ‘are closely aligned with many Indigenous philosophies and governance systems that emphasize the interconnectedness of humans and nature and treat nature as a partner and relative, rather than as property and a resource’.Footnote ¹⁰⁴ Lidia Cano Pecharroman goes as far as to argue that RoN are not a new emerging paradigm but the recognition of already existing customary laws of Indigenous populations around the world.Footnote ¹⁰⁵ Echoing this sentiment, Grant Wilson from the Earth Law Center considers that ‘indigenous communities have long held through their traditions, religions, customs, and laws that nature (often called ‘Mother Earth’) is a rights-bearing entity, and that rivers in particular are sacred entities possessing their own fundamental rights’. Stefan Knauß notes that ‘Indigenous pressure groups, their land claims and their longing for political representation contributed a lot to the juridical manifestation of the Rights of Nature’.Footnote ¹⁰⁶

Another position considers that RoN operate as a cultural bridge that uses Western legal terminology to express Indigenous cultural references, enabling a fruitful hybridization process. Philippe Descola has observed that many Indigenous communities lack a direct equivalent for the term ‘nature’, at least in the Western sense, which typically denotes a separate entity from human societies.Footnote ¹⁰⁷ For example, Irene Watson – who belongs to the Tanganekald, Meintangk and Boandik Aboriginal First Nations Peoples in Australia – explains that ‘Ruwi’ is a Tanganekald word meaning ‘land’, which is a living entity that includes the natural world, both human and non-human.Footnote ¹⁰⁸ As Mary Graham from the Kombumerri Country and People puts it, ‘the land is a sacred entity, not property or real estate; it is the great mother of all humanity’.Footnote ¹⁰⁹ In the same way, many Indigenous communities would not spontaneously use the category of ‘rights’ to express the idea of connection and interdependence with the natural world.Footnote ¹¹⁰

Hence, Knauβ argues that RoN represents a ‘surprising collage of modernity based rights language and Indigenous beliefs’,Footnote ¹¹¹ operating as a ‘transcultural tool’Footnote ¹¹² and acting as a ‘catalyst for the growing acceptance of systemic Indigenous worldviews’.Footnote ¹¹³ In a similar vein, Andrew Geddis and Jacinta Ruru (herself a Māori law professor of Raukawa, Ngāti Ranginui, Ngāti Maniapoto descent) consider that RoN enactments in New Zealand demonstrate ‘the possibilities of laws acting as a bridge between worlds’, that is, ‘[b]y adapting a concept from one legal tradition to incorporate the understandings of another, granting legal personality to Te Urewera and the Whanganui River has permitted the Crown and Iwi to reconcile over past Crown breaches of the Treaty and move their relationship forward’.Footnote ¹¹⁴ Stressing the pivotal role of Indigenous peoples in RoN recognition over the world, Erin O'Donnell and her co-authors argue that they use these legal categories (‘rights’, ‘nature’), which are foreign to their worldviews, strategically to operate within the ‘settler legal frameworks’ and benefit from greater protection.Footnote ¹¹⁵

Finally, a third strand of scholarship disagrees with the view which presents the recognition of RoN as ‘a single, linear and unproblematic influence of “Indigenous cosmovisions” on the western conception of rights’.Footnote ¹¹⁶ Instead, they reveal the contradictions, tensions, and ambiguities that mark the encounter between Indigenous cosmologies and Western legal categories, sometimes even arguing that this imposes a subjugation process. Building on her legal ethnographic fieldwork with Indigenous peoples in Guatemala, Peru, Ecuador, and Colombia, Lieselotte Viaene doubts that the ‘global circulating idea’ of RoN has Indigenous origins.Footnote ¹¹⁷ She questions the potential of RoN to confront the colonial roots so deeply entrenched in Western legality that historically justified the legal and political subordination of native populations in Latin America. She considers that RoN ‘in fact fits in the Western history of rights and universalizes Eurocentric colonial concepts of rights and legal personhood’.Footnote ¹¹⁸ In particular, she wonders whether litigating RoN would actually confront or redress the historical exclusion and marginalization of Indigenous knowledge, which has been portrayed as inferior superstitious beliefs.

Drawing from her study of inclusion of the rights of Mother Earth in the Bolivian legal system, Agnese Bellina contends that RoN replicates the specific modern Western conceptual categories of individual rights, private property, and state monopoly of power. In that sense, she argues that granting rights to ecosystems is in fact an instance of ‘hyperpoliticisation’, which she defines as the ‘monopolisation of the political by the state’, excluding alternative Indigenous ways of self-government.Footnote ¹¹⁹

In July 2014, the New Zealand Parliament granted legal personhood to the ‘Te Urewera’ ecosystemFootnote ¹²⁰ and, in March 2017, passed a bill that recognized the legal personhood of the Whanganui river.Footnote ¹²¹ In both instances a governing board was established to represent these natural entities, comprising representatives from the Māori communities and the New Zealand government. In this context, scholars have argued that recognizing rights of natural ecosystems was a process of decolonization to redress systematic deprivation,Footnote ¹²² paving the way for a ‘reconciliation journey’.Footnote ¹²³ In contrast, Brad Coombes, drawing on interviews with members of the Tuhoe tribe and associated Māori stakeholders, argues that ‘rights-based models for claims settlement discursively control, hegemonize and silence decades of activism that sought Indigenous autonomy and repatriation of resources’.Footnote ¹²⁴

It is also plausible that RoN favour the interests of certain Indigenous communities over others. For example, Mihnea Tănăsescu notes the dominance of Kichwa – the largest Indigenous group in Ecuador among the six recognized Indigenous nationalities of the country – in the Ecuadorian constitutional process. Other groups were concerned that those rights would enable state intervention in Indigenous spaces that were previously outside any legality,Footnote ¹²⁵ while some pointed to the risk that ‘intercultural translation’ would lead to ‘Western appropriation of Indigenous thinking’.Footnote ¹²⁶

More generally, Roger Merino seeks to deconstruct the idea of a monolithic RoN movement that would result from ‘new Western ecological consciousness inspired by Indigenous thinking’.Footnote ¹²⁷ He instead unveils ‘the tensions and contradictions inherent to the inclusion of the rights of nature within Western legality and argues that it is a space to mediate and negotiate Indigenous and Western critical views on the environment’.Footnote ¹²⁸ For that purpose, he disentangles the various epistemological and political rationalities of four distinctive ‘waves’ of RoN. Regarding the third wave, where ‘environmental activism’ meets ‘Indigenous politics’, Merino warns that the ‘formal incorporation of nature facilitates the entry of Indigenous politics into the state processes of law, but it does so at the price of channelling Pachamama into circuits of administration and governance, where nature is an object of extraction and management’.Footnote ¹²⁹ The major first insight of his study is that Indigenous influence is not homogeneous across the movement, historically and geographically.Footnote ¹³⁰

These studies stress a crucial point: there is no singular, uniform alignment between RoN and Indigenous peoples. Any such absolute assertation would necessarily be unfairly generalizing, considering the heterogeneity of Indigenous groups as well as the diversity of RoN initiatives. In other words, it is quite possible that, depending on institutional design choices, granting rights to natural ecosystems empower Indigenous groups against competing claims or, on the contrary, enhance the power of public authorities over their lands.

4.2. The Revival of the ‘Ecological Noble Savage’ Narrative

If Indigeneity becomes a source of legal privilege in representing nature, which itself enables a community to enhance its self-determination over its territory, this can lead to a concerning outcome where certain communities feel under pressure to conform to Western stereotypes of ‘primitive’ societies, as historically defined through colonial representations. Indeed, the typical representation of Indigenous communities meshes together poorly defined criteria of ‘firstness’, ‘authenticity’, ‘naturalness’, and ‘primitiveness’.Footnote ¹³¹ In the US, for example, scholars have noted that Native nations must pursue the imperative of ‘cultural authenticity’ – that is, to demonstrably look and act like the ‘Natives’ of US national narratives – to secure their legal rights and standing.Footnote ¹³² The required conformity with colonial expectations stifles the expression of the complexities, contradictions, and changing nature of Indigenous cultural identities. As Manvir Singh points out, ‘centuries of colonialism have entangled Indigeneity with outdated images of simple, timeless peoples unsullied by history’.Footnote ¹³³ Similarly, Mark Rifkin argues that cultural representations of Indigeneity freeze those communities in a ‘simulacrum of pastness’.Footnote ¹³⁴

I fear that that using the RoN as a vehicle for Indigenous empowerment would reinforce the colonial dynamic and its coercive requirement of ‘primitive authenticity’. In particular, communities would need to demonstrate a symbiotic relationship with nature to ‘earn’ the power to represent nature and enforce its rights. The political ecologist Tănăsescu analyzed the Ecuadorian constitutional reform process, which led to the enactment of a new Constitution in 2008 that recognizes RoN.Footnote ¹³⁵ He noted that during this process Indigenous leaders used the RoN framework strategically as ‘a springboard toward an outside world that otherwise would not listen’.Footnote ¹³⁶ Hence, if the legal representation and protection of Indigenous groups is conditioned on their capacity to act as spokespersons of nature, this may compel them to reinforce the myth of the ‘ecological noble savage’.Footnote ¹³⁷ This concept refers to the assignment of certain communities to simpler and more primitive pre-civilized ways of living. According to this romantic view, which is common in environmentalist circles, these populations spontaneously adopt ecological lifestyles because of their innate goodness and frugality, and their lack of possessive desire.Footnote ¹³⁸ This risks forcing such communities to adhere to supposedly monolithic and static ecological practices frozen in a mythical past to obtain the protection of their autonomy and self-determination.Footnote ¹³⁹ As Brad Coombes argues in the New Zealand context, RoN ‘realize only some of Tuhoe's interests because retention of preservationist conservation means that few will ever live or work on their homelands’.Footnote ¹⁴⁰ Rebecca Witter and Terre Satterfield claim the ‘danger here is that protections for Indigenous rights become contingent upon – and are thus eroded or taken away without – adherence to conservation outcomes’.Footnote ¹⁴¹

Despite the focus on Indigenous self-determination in the RoN framework, the underlying danger of ‘wilderness’ still looms. In this scenario Indigenous communities are not forcibly removed from their territories; rather, they are incorporated into guardianship institutions. However, a troubling aspect emerges as they are compelled to adopt specific economic practices aimed at preserving the perceived ‘integrity’ and ‘pristine’ state of the ecosystem. This approach may inadvertently impose a romanticized and static view of nature, reminiscent of the wilderness ideal, which can constrain the autonomy and adaptive capacity of Indigenous communities.

Furthermore, those communities who seek to obtain institutional arrangements that would enhance their legal power over their territory in the name of ‘nature’ may have to engage in ‘strategic essentialization’, a term introduced by Gayatri Spivak.Footnote ¹⁴² This refers to a political tactic whereby diverse ethnic groups with strong internal differences temporarily depict themselves in a simplified and monolithic fashion to present shared political claims. The legal turn of Indigenous communities, especially their integration in international human rights governance, forced them to deny the geographical heterogeneity and temporal fluidity of their realities and beliefs in order to gain international recognition.Footnote ¹⁴³ In the RoN context, Indigenous communities would need to produce a uniform appearance – obscuring internal divisions and conflicting views – of a symbiotic relationship with nature to secure political inclusion and legal protection.

There is a risk that the implementation of RoN could erode the self-determination of Indigenous peoples concerning their own environments. This risk emerges when the responsibility for ecosystem stewardship is placed in the hands of a third party, which may consist of experts, public authorities, or a combination thereof.Footnote ¹⁴⁴ This would then create a conflict between nature's rights and Indigenous rights.Footnote ¹⁴⁵ This concern can easily be addressed by making Indigenous representation a requirement for any entity empowered to speak for nature. However, this last section shows that the issue at hand extends beyond the selection of stakeholders to represent nature. Irrespective of those crucial institutional choices, there remains a concern that Indigenous peoples might be compelled to conform to a particular role within the settler legal framework as a precondition to exercise their stewardship functions.