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"Should trees have standing?"[1] The question raised fifty years ago in this famous article is once again making headlines. The reason is at the very least threefold. Firstly, certain countries have since then enacted laws recognizing nature or certain natural objects –such as rivers, territories, etc.– as legal entities, which consequently have locus standi to defend their rights in court. Secondly, the ever growing universal awareness of the urgent environmental crisis has triggered, as a response, a search for new models. Thirdly, philosophy or ethnology have further enriched this point of law.
1. Recognizing nature as a legal entity makes it a subject of law, that is to say, a distinct person recognized as such, with rights and obligations and with standing to assert such rights and obligations or discuss the content thereof vis-à-vis third parties, including in court.
As regards the rights concerned, the legal entity that is nature will need access to information pertaining thereto or relating to activity projects. Extending legal personality to nature also means granting it the right to take part in environmental decision-making. Moreover, it includes the right to file suit in court in order to defend its rights. Lastly, it entails moving from a system comprised of reparation and damages for the harm caused to a world of prevention and anticipation.
2. More symbolic arguments complete these matters of law.
In the globalizing biodiversity context, such recognition illustrates a change of paradigm where biocentrism replaces anthropocentrism. Furthermore, it is often linked to the defence of indigenous populations. Lastly, if not a definitive solution to the environmental crisis, such recognition under law would serve as a non-negligible contribution to defending its cause.
1. Pioneers in this field, the countries of Latin America have been paving the way. As just one example, in 2010, Bolivia adopted the Mother Earth Law, which, embracing the indigenous people's spiritual world view, defines Pachamama as a source of life, a fertile and sacred being, with legitimate rights (the right to life, the right to diversity, the right to pure water and clean air, the right to balance, and the right to conservation, etc.).
2. Recognition of nature's legal personality can also be limited to certain natural environments. In 2014, New Zealand's Te Urewera Natural Park was declared a legal entity, by way of the Te Urewera Act. The Act established a board to represent Te Urewera and defend its interests. In India, the High Court of the northern state of Uttarakhand gave the Ganges river and its main tributary, the Yamuna, the status of living entities, entitled to defend their rights. In April 2021, Quebec's Magpie river, in the Innu's ancestral territory of Nitassinan, was granted legal personality.
3. Last but not least, another approach has been that of private initiatives. Although deprived of any real legal value, nonetheless such initiatives do exert a strong influence. In 2021, the first Declarations for the rights of natural entities were established in France, namely for the Tavignanu and La Têt rivers.
As pointed out by Christopher D. Stone, no longer being able to cut down a single tree is inconceivable. The more realistic approach will involve making choices among the legal rights conferred to nature, some being more fundamental than others. This gives rise to other questions, such as knowing if natural objects can contractualize their legal rights. Is a legal action filed by a natural object imprescriptible and what of the burden of proof? Lastly, how will the representatives of nature be designated and what will their mission consist in?
In terms of principles, these questions are complex –even more so given that, in the global legal framework, this entails measuring the impact of solutions implemented for the natural environment on other areas of law.
Granted, on a symbolic level, giving nature legal personality is a way to personify it as a reflection of ourselves. It also serves as a means to better raise awareness about the harm inflicted on our natural habitats and promote the fight against future damage. However, will such recognition through law truly strengthen the protection of nature compared to what already exists? Nothing is less certain.
1. As proof of this, needless to say that nature already has numerous advocates. Its interests are often embodied in the general interest and public actions, and benefit, through a sort of windfall effect, from actions, notably litigation, initiated by private persons. More particularly, its defence is vigorously represented by environmental associations.
2. Furthermore, the right to information is open to environmental representatives: administrative authorities must provide a substantial amount of environmental information; such information is available via the right of access to administrative and environmental documentation. This means that participation in environmental decision-making is already assured. In particular, as regards individual decisions, it is ensured upstream of projects by public debate and then downstream by public inquiry. Lastly, as can be seen through a large body of case law, environmental claimants have widely accessible judicial recourse to defend their cause.
3. In conclusion, what is key is obtaining reparation for ecological damage, namely "non-negligible damage to the elements or roles of ecosystems or to the collective benefits drawn by man from the environment"; legal actions for reparation are open to public bodies and approved environmental protection associations, and, as a matter of priority, such reparation must be carried out in kind.
Thus, before going down the legal route, it is certainly necessary to take stock of all available resources under positive law and explore its full potential.
[1] Christopher D. Stone, "Should trees have standing? Towards legal rights for natural objects", Southern California Law Review, vol.45, 1972, p.450.
