Settler Ecology and Natural Rights

Whanganui River. Courtesy of Wikimedia Commons.

 

      This blog entry follows on from my July 31, 2021 blog entry on Environmental Sustainability, Personhood, Legal Rights, and Indigenous Ecological Knowledges. Here I frame the matters under consideration in terms of settler ecology and add some new ideas and information. Elsewhere I’ve written that because natural rights doctrine (the human right to life and liberty) derives from nature, then self-evidently nature possesses these same rights. The counter argument is that human beings are exceptional in having consciousness, agency, language, etc. But this human exceptionalism is under challenge from neurobiologists, behavioral ecologists, and philosophers, not to mention animal rights activists and scientists who study plant intelligence and communication. Take, for instance, the 2012 Cambridge (University) Declaration on Consciousness, in which several prominent scientists declared that “Convergent evidence indicates that non-human animals have the neuroanatomical, neurochemical, and neurophysiological substrates of conscious states along with the capacity to exhibit intentional behaviors. Consequently, the weight of evidence indicates that humans are not unique in possessing the neurological substrates that generate consciousness.”
    If, then, more than human living creatures have consciousness, agency, language (gestural as well as sonic), and so on, it would appear that Western ways of thinking must grant them at least a moral right to life and liberty. Do other living beings—not only human beings—similarly have a legal right? What are the advantages and disadvantages to positioning animals (and possibly plants, and indeed entire ecoystems) within the modern, Euro-American legal framework of rights and obligations (duties) that largely derive from the social contract and justice theories that began during the Enlightenment? What is the relationship between such a rights regime for the environment and settler ecology? What possibly more desirable alternatives are available?
    At least since Christopher Stone’s provocative book Should Trees Have Standing (originally published in 1972)--that is, legal standing--nature’s natural rights have been invoked in the US to protect environmental features such as endangered species, landforms, and ecosystems against encroachment from developers. That is an application of ecojustice, and it is represented by a dissenting strain, neither colonialist nor extractivist, within US settler ecological thought: one that runs through Henry David Thoreau and Aldo Leopold to contemporary conservation biologists and environmental activists. Town governments in Pennsylvania, for example, have passed ordinances granting legal rights to certain landforms in order to prevent fracking. They argued that if US law grants legal rights based on “personhood” to corporations, which corporate “persons” may have some kind of collective agency and intentionality, but lack consciousness, then landforms and ecosystems may also be considered persons and be granted similar rights. The latest example of such a lawsuit is occurring in Florida, where plaintiffs have gone to court on behalf of a threatened ecosystem, Lake Mary Jane, in an effort to stop work on a nearby housing development. Needless to say, the fracking corporations quickly sued the Pennsylvania town governments, and the judges in the state courts ruled in their favor. Whether the same fate awaits Lake Mary Jane remains to be seen.
    Rights regime suits have been effective in some instances outside the US, however. Ecuador and New Zealand are cases in point, where ecosystems such as the Whanganui River, and mountains have been granted the right to be respected and largely left alone. In those cases, the claims have been made not exclusively within a Euro-American legal framework of rights and personhood, but rather also by giving weight to Indigenous people’s beliefs concerning the rights and sentience of non-human natural beings, which requires thinking of them not as objects (as Western science does) but as subjects—that is, as living beings with their own forms of subjectivity, agency, consciousness, etc. In Ecuador, rights of nature are enshrined in its Constitution. That is not settler ecology. 

Environmental Sustainability, Personhood, Legal Rights, and Indigenous Ecological Knowledges

Upper Yarra River, Australia. Courtesy Wikimedia Commons.

      In the Yoder Lecture, which I delivered on October 15, 2017 to the American Folklore Society as "Ecojustice, Folklife and a Sound Ecology," I said that “In extending the idea of ecojustice to the Earth and all its beings, the ecojustice movement would in my view do well to consider these beings—including plants, nonhuman animals, landforms, and so forth—as persons, with the justice and rights that persons deserve. Needless to say, this is not how we in the modern, Euro-American world usually think of justice. We extend only limited rights to beings outside the human world, as for example in our laws against excessive cruelty to the higher animals.” After the lecture, one of the two discussants pointed out that there was, also, a downside in considering these beings persons; namely, that in bringing them into the legal system it would also risk subjecting them to adverse judgments, to obligations that accompany rights, and to other encumbrances of the law, which seemed unwise. I’d spoken about traditional and Indigenous ecological knowledges of nature in that lecture, but did not have the time to speak a rejoinder and say that for many Indigenous peoples, nonhuman beings are like persons, in some ways are kin, and do have standing. In the meantime, I’ve thought more about this issue, but only recently learned that it has been pursued in the courts and legislature in Australia, in response to Aboriginal peoples’ activism. Indeed, it was in 2017 that the Yarra River Protection Act was passed in Parliament, which recognizes the river as a living entity. The Yarra River runs some 150 miles through the Yarra Valley and into Melbourne before flowing into Hobson’s Bay. For the Australian settlers, this recognition fits within the scientific portrait of the river as an integrated ecosystem. But for the aboriginal Wurundjeri the river means something more than that, which also is carried in the concept of personhood: the river with its fish, and its birds, and its land corridor, is a relative, their kin, a sacred, life-giving ancestor. Personhood, in this sense, carries with it a good deal more than mere legal standing and the right to protection.