Tracing its roots to Christopher Stone’s 1972 essay, “Should Trees Have Standing?” the concept of giving nature stronger legal rights, sometimes referred to as ‘Rights of Nature,’ is gaining traction in communities around the world. By this model, rivers, mountains, or whole territories can be recognized with legal personhood, much like a corporation. This allows a natural entity to have standing in court on its own merits and entails a more robust set of rights. Yet, since nature cannot speak for itself, guardians or stewards are necessary to represent it, akin to speaking for a child in court who can’t advocate for themselves.
The Indigenous Homelands program has been looking deeper into this concept in partnership with First Nations seeking alternative tenure arrangements and a renewed relationship with their lands. It has since evolved into one of the most innovative and asked after modules within our Housing and Governance Toolkit.
The impetus behind developing a framework for natural personhood was to provide a stronger legal basis for environmental law and conservation, which is still a major driver. However, most recent implementations of rights of nature frameworks around the world relate to Indigenous Peoples and their traditional territories. The context of Indigenous lands and governance has the advantage of having a clear set of candidates who could stand as guardians and advocates for the land — the First Nations who have cultivated relations with their traditional territories for thousands of years.
Innovative ways of relating to lands and recognizing the rights of nature are being explored as countries like New Zealand, Australia, Canada, and the US find ways to move forward with the Indigenous Peoples and Nations that continue to thrive within those countries’ borders. Simply transferring fee-simple title to specific areas of traditional territory fails to manifest the full-spirited relationship First Nations have with their land. Additionally, the fee-simple nature of the title carries an implicit recognition of European title-granting authority. This is where a natural personhood framework may be able to provide options to circumvent these hurdles.
A pioneering example of natural personhood can be found in Aotearoa/New Zealand in the Te Urewera region and the Whanganui River. Te Urewera is the historical home of the Tūhoe iwi (tribe), but a predatory purchase campaign by a colonial government saw 70 percent of the Tūhoe reserve relocated throughout what would become the Te Urewera National Park in 1954. This park was disestablished in 2014 as part of a land settlement, which saw the emergence of a co-governance regime for Te Urewera. The area is now stewarded by the Te Urewera Board, composed of both Tūhoe and Crown members, and Te Urewera itself is recognized as having legal personhood.
The Whanganui River, also in Aotearoa/New Zealand, was subsequently recognized with legal personhood in 2017. The Whanganui iwi (tribe) had always considered the river an ancestor and had been fighting for legal recognition of this relationship for generations. Two guardians were appointed to act on behalf of the river, one from the Crown and one from the Whanganui iwi, each of whom is required by legislation to act in their capacity as guardians solely in the interests of the river.
These approaches recognized and reflected the Māori worldview and relationship with the land in a manner intelligible to Crown law. Building from this example, a similar step was taken in Canada in 2021 by the Innu Council of Ekuanitshit and the Minganie Regional Country Municipality, who together agreed to recognize the legal personality of the Mutehekau Shipu, also known as the Magpie River, in Quebec.
At a constitutional level, both Ecuador and Bolivia have incorporated recognition of natural personhood in some form into their laws at the most basic level, recognizing Pachamama or Mother Earth as a fundamental part of society on which all depend and which all have a duty to protect. These examples demonstrate that the concept of nature having rights and being seen as a legal person is becoming more widespread. Around the world, people are exploring novel ways to put these ideas into practice. This will allow future iterations to learn from the experiences of the global community, which is trying to move beyond exploitative human-centred relations to our planet. Right now, Indigenous nations and communities in Canada are well-placed to consider the possibility of recognizing legal personhood in nature. With the Truth and Reconciliation Commission’s report and 94 Calls to Action, along with passing the Declaration on the Rights of Indigenous Peoples Act, Canada’s legal system has never been more ready for change. As many nations pursue long overdue land claims agreements and secure self-governance frameworks, modern treaties, or even Aboriginal title, the question of how these communities will want to frame their own laws and relations to their own lands is becoming increasingly central.
For First Nations that desire a legal system for title and property more in keeping with their traditional laws while being intelligible to common law, natural legal personhood may present one of the most adaptable and effective pathways forward.