Putting nature’s legal rights and personhood into practice: reshaping nature’s status under the law

This thesis investigates the construction and implementation of laws recognising the legal rights or personhood of nature. Over the last two decades these laws have proliferated around the world, brought into being by a Constitutional Assembly, national legislatures, local governments and courts. In the context of worsening ecological degradation, and the failure of conventional environmental law to halt or reverse this trend, these laws are held up by their proponents as a radical alternative that can catalyse a paradigm shift in how the law treats nature. Recognising nature’s legal rights or personhood entails, firstly, recognising nature’s intrinsic (rather than merely instrumental) value, acknowledging that nature has interests of its own that are worthy of protection under the law; and secondly, establishing legal capacity by which nature can protect, promote and defend those interests. Fundamentally, these laws seek to transform nature from legal object – mere property, in the eyes of the law – to legal subject. Despite the multiplicity of legal instruments recognising nature’s legal rights or personhood now in force, and a burgeoning academic literature accompanying the expansion of this legal phenomenon, to date there has been very little scholarly examination of the outcomes in practice of enacting these laws. This thesis addresses this gap by exploring four examples of law recognising nature’s legal rights or personhood: the Santa Monica Sustainability Rights Ordinance and the Lake Erie Bill of Rights (LEBOR) in the United States, and the Te Urewera Act 2014 and the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 in Aotearoa New Zealand. These cases capture a range of diverse attributes reflected in the broader legal phenomenon of enactments recognising the legal rights or personhood of nature. Empirical evidence collected by conducting semi-structured interviews with participants involved in the development and/or implementation of the case study laws is triangulated with doctrinal and theoretical analysis to provide insights into what happens in practice when nature’s rights and personhood are enacted in law. The analysis in this thesis demonstrates that the normative framework of rights and personhood (recognition of nature’s intrinsic value) and nature’s legal capacity are constructed in different ways in the case studies, reflecting the context in which they have emerged. This construction informs the outcomes in practice produced by these laws. The findings suggest that recognising nature’s intrinsic value through legal rights or personhood contributes to changing the way people think about nature, particularly in an institutional (government) setting. This has translated into changes in the way nature is governed in the Aotearoa context, but not in the US cases; and there is limited evidence to date of this normative framework generating stronger legal protection for nature. The findings suggest that when nature’s legal capacity takes the form of legal standing or legal agency, it has little impact in the context of the legal system, but may be symbolically highly significant. However, the Aotearoa cases suggest that empowering nature to participate in decision-making processes can potentially be a powerful form of legal capacity for nature in practice. The case studies demonstrate that expressive and constitutional functions of law are performed by laws recognising nature’s rights and personhood. Although there are many opportunities to strengthen these laws and their implementation in practice, there is evidence that they are already reshaping nature’s status in law, and therefore changing the way nature is treated under the law. From a methodological perspective, this thesis highlights the opportunities to build a deeper understanding of laws recognising nature’s rights and personhood through empirical research and theoretical analysis.