The Constitutional Potential of the Rights of Nature Beyond Constitutions

Mihnea Tănăsescu

Vrije Universiteit Brussel

The first instance of rights for nature that propelled the idea towards the mainstream was the 2008 Constitution of Ecuador. Its rights of nature provisions were but a small part of the significance of this constitutional moment, which took place in a historical period in which great swathes of the South American continent were undergoing a political shift to the left. 

At that time, Rafael Correa was the President of Ecuador. One of his first acts in government was to call for a Constitutional Assembly to rewrite the founding document of the state, which was deemed necessary to meet the social and ecological ambitions of the new government. Rewriting a constitution can of course be opportunistic; for example, to expand the power of the presidency. But it can also be done in the true spirit of constitutionalism, that is, to rewrite the basic rules of the functioning of the state such that greater legitimacy and popular inclusion can be achieved.

The process that led to the Ecuadorian Constitution of 2008 was indeed remarkably participatory, resulting in a document replete with bold declarations. For example, the Ecuadorian state is now a plurinational one (i.e. it recognizes Indigenous Nationalities as forming an integral part of the state), and its developmental agenda is supposed to be dictated by the Kichwa concept of Sumak Kawsay, translated as Buen Vivir, or Good Living. The idea is to move development beyond narrow economic indicators and towards a post-extractive economy of general well-being. The kind of participatory constitutional ferment happening in Montecristi, the city where the Assembly sat in 2007 and 2008, was fertile ground for the first constitutional declaration of the rights of nature. 

The Ecuadorian Constitution does not have a hierarchy of rights, and this applies to nature too. However, like other rights, their constitutional existence invites and facilitates processes that inevitably weigh rights of nature against other rights. In the last year, the Ecuadorian Constitutional Court has stepped in to better define the content and reach of the rights of nature, a possibility opened up by their very constitutional inclusion (for example, cases 1149-19-JP/21, 1185-20-JP/21, 22-18-IN/21). The question, however, is do the rights of nature have to be explicitly included in constitutions in order to have constitutional effects? In other words, do the rights of nature need to appear in a written constitution to not only create institutions tasked with specific goals, but also to inject within the wider polis new ideas and principles that may therefore become increasingly influential? 

I think the answer to that question is no. The case of New Zealand is a good example. In my recent book, Understanding the Rights of Nature: A Critical Introduction, I take stock of some of these cases, and discuss similarities and differences between the Ecuadorian example and other rights instruments it inspired, and the rights of nature in Aotearoa New Zealand. There, Te Urewera – a formal national park on the North Island – received legal entity status in 2014, and Whanganui River followed in 2017. As legal persons, they are subject to the Bill of Rights, enabling the Whanganui and Te Urewera to exercise constitutional rights. I suggest that the particularities of the New Zealand process make these cases constitutional in another way. 

Te Urewera and Whanganui River are home to Māori descent groups, Tūhoe and Whanganui Iwi respectively. These have always had a very conflictual relationship with the Crown, and the New Zealand government, based on differing interpretations of the Treaty of Waitangi. Like the United Kingdom, New Zealand does not have a codified constitution, but several sources of law, including the Treaty of Waitangi, have constitutional status. This document has been taken by Māori to have given European settlers the right to govern their own matters and their own people, but not to annex territory in perpetuity. European settlers saw it as granting them sovereignty in the European sense, therefore dispossessing Māori of their land. These differing interpretations have given rise to often violent and sustained conflict between the Crown and Māori. Both Tūhoe and Whanganui Iwi have claimed consistently that their territories had been unlawfully annexed and have just as consistently asked for their return. 

The Māori claim that their territories have been unlawfully taken away is ubiquitous in New Zealand, but the constitutional power acquired by the Treaty of Waitangi is a relatively new idea. It started to have a significant political and legal impact in the mid-1980s, with the creation of the Waitangi Tribunal. The tribunal dates to the 1970s, but it was only a decade later that it received the power to investigate Māori claims against the Crown retroactively, all the way back to 1840, when the Treaty was signed by most, though not all, Māori groups. Though it formally only has powers of recommendation, the Tribunal has proven to be extremely powerful in influencing the outcomes of historical grievances, also known as settlement claims.

Both Tūhoe and Whanganui Iwi have had their own settlement claims processes, like hundreds of other Māori groups. In their cases though, the process ended in granting legal personality to their respective territories. Why? There is no easy or established answer, but what I and others have argued is that the government adopted legal personality arrangements to avoid the thorny issue of who has ownership over the concerned lands. The solution that legal personality allows is the elegant step of granting ownership of the land to the land itself. 

This is where the constitutional nature of these arrangements is most clearly seen. Self-owning land of course cannot exercise the rights and duties of a property owner all by itself. The Te Urewera Act 2014 and Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 were supported by the relevant descent groups precisely because the legal and political representation of the new entities occurs primarily through Māori boards and following Māori tikanga (law or custom). This step towards legal pluralism can have far-reaching consequences. It introduces new actors within legal and political life (the lands themselves), and new governance arrangements are spelled out in detail in the two Acts. It is hard to tell how this will play out, but what is certain is that these laws have already modified the structural interactions between the government and parts of the national territory. Though far from perfect, the two laws modify the playing field by introducing new actors with rights and obligations that are still to be decided. This strikes me as being close to what constitutions may achieve. 

The structure of the New Zealand state has not been changed wholesale through the Te Urewera and Whanganui River Acts. Neither has the Ecuadorian state, no matter how radical a break the new Constitution is from the old. In both instances however, new legal and political actors that may disrupt long-prevailing legal and political dogmas have been introduced. 

By choosing the appropriate legal mechanism (and level of law) in different contexts, the recognition of the rights of nature can have constitutional repercussions even when they do not appear in Constitutions. The rights of nature are already very diverse, and not all of them manage to achieve the kind of reshuffling that I’ve discussed. Since advocates are eager to heavily influence political and legal arrangements, nevertheless, current practice suggests that they don’t necessarily need constitutional reform to achieve major goals. 

Mihnea Tănăsescu is a Research Fellow at Vrije Universiteit Brussel, Belgium

Suggested Citation: Mihnea Tănăsescu, ‘The Constitutional Potential of the Rights of Nature Beyond Constitutions’ IACL-AIDC Blog (17 February 2022) https://blog-iacl-aidc.org/nature-animals/2022/2/17/the-constitutional-potential-of-the-rights-of-nature-beyond-constitutions.