Iona Mcentee, PhD Candidate, School of Law, University of Strathclyde.

Cite: Iona Mcentee, Rights of Nature, Inter-judicial Exchanges, and the Cosmopolitan Transition of Law, Global South Network Blogs, 20 December 2023. https://globalsouthnetwork.com/rights-of-nature-inter-judicial-exchanges-and-the-cosmopolitan-transition-of-law/

Rights of Nature (RoN) have become a worldwide legal phenomenon in which Nature and ecosystems are recognised as legal entities which have rights, duties, and liabilities. This eco-centric legal discourse attempts to shift away from anthropocentric conceptualisations of Nature as ‘property’ or a ‘commodity’ to be exploited for economic gain. RoN have characteristically been ideated outside Western legal cultures, where Nature is largely considered an object, rather than a subject. Subjectivising Nature, in accordance with non-Western knowledges (epistemologies) and worldviews (cosmovisions), seeks to reframe human-Nature relations in harmony with one another. RoN have been emblematised by innovative legal precedents such as the 2008 constitutionalisation of Pachamama in Ecuador, 2010/2012 recognition of rights to Mother Earth in Bolivia, and the legal personality of rivers in countries such as Aotearoa New Zealand (ANZ), India, Bangladesh, to name a few paradigmatic examples. Courts have played a paramount role in promoting and bolstering such processes of legal innovation. Hence, RoN provide a fruitful testing ground for investigating the extent to which inter-judicial exchanges between domestic courts in jurisdictions formally submitted to colonial domination are promoting the diffusion of non-Western legal epistemologies (jurisprudences). In the context of my doctoral research, I test this hypothesis in two intertwined ways. Firstly, by understanding to what extent the diffusion of RoN epistemologies is contributing to the development of genuinely cosmopolitan jurisprudences[i] in borrowing jurisdictions. Secondly, by investigating whether the application of RoN in these jurisdictions are overcoming tensions between legal traditions by hampering or accommodating legal ecumenism.

Given my focus on the recognition and diffusion of non-Western legal epistemologies, the concept of legal ecumenism is central to my research. It is drawn from Boaventura de Sousa Santos’ 3^rd edition of ‘Towards a New Legal Common Sense’. Santos does not define this concept. However, careful engagement with his work suggests it describes the aspiration of jurisdictions in which hegemonic legal systems are challenged by counter-hegemonic projects of emancipation and normative standards, to overcome the dogmatic boundaries of legal positivism and accommodate co-existence of emancipatory visions based on ideals of mutual recognition and pluralism. A further hypothesis of my research is that legal ecumenism is instrumental for the development of cosmopolitan jurisprudences. Accommodating (rather than hampering) legal ecumenism(s) is perceived as promoting the cosmopolitan transition in law, by creating spaces for emancipatory projects through the inclusion of non-Western or othered epistemologies. Accordingly, I assess the ability of RoN to promote the gradual and piece-meal cosmopolitan transition of law through the promotion of legal ecumenism(s). In this way global legal pluralism can contribute towards ideals of global justice.

To assess the instrumentality of inter-judicial exchanges for the diffusion of RoN jurisprudences and the gradual, piecemeal development of law in a cosmopolitan manner, I trace the dissemination of RoN epistemologies first developed by domestic courts in ANZ, in two further jurisdictions: Colombia and India. When assessing the extent to which Indian and Colombian courts borrowed legal innovations originating from ANZ, my research comparatively examines respective constructions of legal personality and the composition of guardianship bodies that represent Nature. In turn, I assess the capacity of RoN to promote legal ecumenism by analysing the actual extent to which the application of RoN accommodates non-Western epistemologies in the concrete solutions enacted in each jurisdiction.

A full account of my research would outgrow the scope of this contribution. For the purpose of this blogpost, I will therefore omit the diffusion of legal epistemologies through inter-judicial exchanges, and limit my discussion to anticipating a few critical considerations drawn from the analysis of the recognition of rights to the Whanganui River in ANZ, and the degree to which this solution genuinely embraces ‘legal ecumenism’.

For context, the Whanganui River Report 1999 crystalised out of the century-long conflict between the Māori and the Crown Government over the dispossession of ancestral lands. More specifically, the legal dispute concerning ownership over the Whanganui River was driven by conflicting perceptions of ‘ownership’ between Māori customary law (Tikanga law) and English common law (Pākehā law), hence reflecting tensions between different legal traditions. Under Tikanga law, ‘ownership’ shapes the relationship between the Māori and the River as a reciprocal one, which is based on ‘kaitiaki’ (trustee) obligations. Accordingly, the River provides physical and cultural sustenance to the Māori, while the Māori ensure the protection, conservation, and enhancement of the River. English common law merely conceives the river as a natural resource, the use and exploitation of which is associated to certain legally protected rights.

Throughout this dispute, previous courts vested ownership with the Crown based on English law statues (s.14 Coal-mines Act Amendment Act 1903) and common law doctrines (ad medium aquae). Eventually, the Waitangi Tribunal (Wai 167) changed this narrative, and instead considered whether the Māori freely or knowingly relinquished their ownership of the River with the signing of the Treaty of Waitangi (1840). By recognising the Māori had not relinquished ownership, the Tribunal found the Crown had violated s.2 of the Treaty and asserted that ownership of the River was vested with the Māori. Consequently, an award of $80 million in compensation was issued to redress the damage ensued by the Crown’s acts and omissions.

Most importantly, the Whanganui River Report acknowledges and embraces key elements of Tikanga law in its findings and recommendations. On this basis, the Te Awa Tupua (Whanganui River Claims Settlement) Act (2017) recognised the legal personality of the River and, hence, its ownership over its riverbed, declaring that the ‘Te Awa Tupua is an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements’ (s.12).The Whanganui River Act shapes the River’s legal personality based on the unique relationship held by the Whanganui iwi, integrating the recognition of the River as their ancestor (“tupuna”) and kin (“whanau”), imbued with spiritual and physical powers (“mana”) and a spiritual life essence (“mauri”). Furthermore, a guardianship body (Te Pou Tupua) was established to act as the human face for the River, to exercise the rights, powers, duties, and liabilities on its behalf. This body takes a co-management approach to guardianship, by including a representative from both the Whanganui iwi and Crown.

A similar compromise was reached between the Tūhoe and Crown over the ownership of the Te Urewera, which granted legal personality and the creation of a guardianship body based on co-management (Te Urewera Act 2014), instead of the initial request to regain full ownership over the dispossessed land.

RoN in ANZ thus acknowledge and accommodate traditional legal epistemologies of the Māori within the official legal system, which define the spiritual relationship between the Whanganui iwi and the River, and the kaitiaki obligations that their relationship encompasses. The legislation recognising legal personality of the Whanganui River and its riverbed weaves hitherto largely othered Māori customary law into a co-management of the river between the Whanganui iwi and the Crown, articulating forms of co-existence and co-ordination of legal systems and traditions, based on pluralism. By articulating such a compromise solution, one may conclude that RoN do further legal ecumenism between Tikanga and Pākehā law.

At the same time, however, a comprehensive appraisal requires acknowledging that such ‘legal ecumenism’ does not go entirely uncontested. In fact, RoN are rejected by some Māori groups who remain deeply sceptical about the capacity of such compromise solutions to fully realise their emancipatory claims. Among those groups rejecting RoN, concerns have been centred precisely around the co-management approach, which is based on the equal representation of Māori communities and the Crown in guardianship bodies.  Their aversion to this legal discourse relies on the suspicion of it providing a tool for re-appropriating their spiritual and cultural cosmovisions, to be re-fashioned into hegemonic tools of Crown control through mechanisms such as co-management.

Concludingly, whilst RoN have indeed advanced legal ecumenism between Tikanga and Pākehā law and promoted pluralism through the inclusion of non-Western epistemologies, they represent a compromised solution which is not univocally shared amongst Māori.  Imperfect as they are, insofar as not harnessing the full endorsement by all Māori communities, RoN nevertheless provide in my view a fruitful testing ground for making ‘legal ecumenism’ work toward the benefit of the Māori and the future of their culture and identity, in close spiritual connection with their land. Despite their inevitable shortcomings, they bear the potential for a gradual, piecemeal transition towards a genuinely cosmopolitan jurisprudence and the restitution of past colonial wrongs. Furthermore, courts in ANZ have inspired jurisdictions in other countries with a colonial past. Courts therefore appear as influential agents of change capable of promoting gradual, piece-meal cosmopolitan (and potentially decolonising) transitions of law in borrowing jurisdictions. Notably however, as experiences in Colombia and India suggest, borrowed legal phenomena would have to be tailored to the internal social dynamics and value preferences of borrowing jurisdictions, to reflect bespoke RoN solutions.

Iona McEntee is a PhD Candidate at the University of Strathclyde. After completing the LLM in Global Environmental Law and Governance in 2020 and becoming a member of the Strathclyde Centre for Environmental Law and Governance in 2021, Iona has been developing her research within global environmental studies. Iona’s research is grounded within the Rights of Nature discourse, with a focus on analysing the extent to which inter-judicial exchanges can accommodate the diffusion of subaltern epistemologies, and act as a gradual and piece-meal approach to decolonising global law.

[i] Jurisprudence is a term originated in Latin, and denotes ‘legal knowledges’. “Cosmopolitan” jurisprudence(s) hence represent legal discourses which are pluralistic and inclusive, hence acknowledging non-Western epistemologies, alongside with Western epistemologies on an equal footing.