Viktoria Kahui: I have seen a paper recently that showed that in Ecuador, which was the first country to enshrine rights of nature in its constitution, what they’ve seen is that very slowly, as lawyers and judges are becoming more familiar with the concept, they’re better to interpret it when there is a legal case being brought, and they’re able, better able to side on the side of nature.

Now, that’s a very slow process and I’m not saying it’s the panacea, but it’s certainly much, much more positive than what we’ve seen in the past.

Mike DiGirolamo (narration): Welcome to the Mongabay Newscast. I’m your cohost Mike DiGirolamo bringing you weekly conversations with experts, authors, scientists, and activists. Working on the front lines of conservation, shining a light on some of the most pressing issues facing our planet. And holding people in power to account. This podcast is edited on Gadigal land.

Today’s guest on the Newscast is Victoria. I’m a researcher in environmental and ecological economics at the university of Otago in Dunedin in Aotearoa New Zealand. Kahui speaks with co-host Rachel Donald about the concepts and the applications of rights of nature laws and legal personhood for ecosystems. Related, but somewhat different concepts that are being trialed or applied in nations across the globe for a variety of reasons, including, but not limited to Indigenous reconciliation and trying to protect nature. Some of these laws, Coq, we argues don’t stem it, biodiversity loss. don’t stem, biodiversity loss. And in this episode, she outlines why. While there is some agreement that this is the case. There is some global debate as to the flaws inherent in some of these laws. Whether they contribute to meaningful change or distract from it. There is some criticism that imposing an anthropocentric legal framework created by Western colonizing nations. On something as complex as nature, commodifies it in a sense, or can be overly vague, leaving open the possibility of harming the very people that these laws are intended to empower. Some critics suggest. A new paradigm in which laws are considered within the context of nature. Recognizing that humans are co-participants of nature needs to occur. Coffee comments on this debate and argues why she thinks these legal frameworks still deserve some consideration.

Rachel: Viktoria. Thank you so much for joining us on Mongabay’s podcast. It’s a real pleasure to have you on the show.

Viktoria: Thank you.

Rachel: So, we’re going to discuss legal personhood with regards to protecting nature and the rights of nature. And I thought that given that these are two phrases that are being thrown around quite a lot and a lot of policies, certainly activists are suggesting policies based on these things, but they are different. So, let’s begin here. What is the difference between legal personhood and the rights of nature?

Viktoria: So, rights of nature is a generic term that describes legal rights being accorded to natural units. In Ecuador, it’s all of nature In other cases it’s forests or designated rivers. So legal personhood is a very specific type of rights of nature, in the sense that legal persons can be both human and non-human. So typically, we think about non-human legal persons, such as organizations or charitable trusts. So, they’re just really a subset of rights of nature, so to speak.

Rachel: And why have people been suggesting this as a tool that can be used to combat our damaging and extractive relationship to nature?

Viktoria: Well, I think there’s many reasons and there seems to be a bit of a wave going through the world advocating rights of nature. It started very slowly and there’s only, I mean, in recent research, we looked at 14 well documented studies, but I think I just looked recently and there’s about over four or five hundred rights of nature case studies now, mainly in South America, so it’s definitely taking off. It’s a very important topic. I, there’s not much research showing whether it is actually effective in stemming biodiversity loss. I think it’s simply a cry out from, driven by the fact that our standard tools that we have, our current governance systems, simply don’t work. Well, they work, but they’re not good enough to stem the biodiversity loss. And I think Rights of Nature just comes in as one solution, one potential solution to tackle the biodiversity crisis.

Rachel: And how could it be that in some of these cases, it doesn’t look like it’s stemming biodiversity loss? Because surely if you grant legal personhood to a river, for example, I know that the and you’ll be able to connect, correct my pronunciation on this, but the Whanganui River in New Zealand was granted legal personhood. How could it be that protecting it under the same system under which people and companies are protected actually wouldn’t have a positive knock-on effect?

Viktoria: I’m just saying simply we don’t know yet, because in very, in Yeah, we don’t know. I’m not, I’m, I’m, I actually think it’s a fantastic tool and it has a lot of potential but we don’t know yet in the sense that there’s no hard science because a lot of these legal personhoods don’t have any defined ecological outcomes and there hasn’t been any measurements in place. So, we don’t have ecological measurements saying how what was the state of a river or forest beforehand and what is it afterwards after the implementation of legal of right. So, we can’t really say whether it has been effective. But in saying that clearly, I mean, common sense dictates once you start protecting a certain future there must be improvements. Now, there hasn’t been really–so just to correct you–it’s the Whanganui River in New Zealand. So, and what we’ve seen now in New Zealand is that it’s. I don’t think it’s really seen as a conservation tool per se. It’s more a reconciliation tool. So, it’s really a lot of the Māori, Indigenous iwi trying to reclaim some of the injustices that have been done during colonization. So, it’s not seen as a conservation tool, it’s really a reconciliation tool, a settlement, so to speak. And we’ve had Te Urewera, which is a forest, that was in 2014 being declared its own legal person, followed by the Whanganui River in 2017 and most recently Monga Taranaki or Mount Taranaki, that’s, that’s the most recent case.

Rachel: When you say an Indigenous reconciliation tool, do you mean between the state and the Indigenous groups or between the Indigenous groups and the land or both?

Viktoria: Primarily between the Crown and the Indigenous people. So, for example, Whanganui River case, it was the case that, you know, a lot of the, the land and the adjacent to the, had been alienated from the Indigenous peoples. The, and there’s been grievances throughout decades. A lot of the gravel abstraction and steamer services had led to the deterioration of the river. And the Māori of Whanganui, iwi, had long advocated for declaring the river its own legal person, which eventually came to into act in 2017.

Rachel: Now, you’ve written a really, really interesting in the, in the article, which was in the conversation, which was why we reached out to speak to you about this. One of the things that you wrote was that just granting legal personhood may or may not be enough because it doesn’t cover the questions of liability. So, who is liable for what? Who can sue or take action on behalf of these now considered legal persons. Do you have cases of how that’s playing out in New Zealand? Like how granting legal personhood to these rivers and mountains is enabling the Indigenous community to then protect or act for these, these rivers and mountains?

Viktoria: Unfortunately, there’s no precedent in New Zealand yet. But when we started on this research, and I started with the question that everyone has, can rights of nature lead to natural protection in the stem of biodiversity loss? But as I pointed out, it was very difficult to, to find any sort of data or scientific information on that. And we can’t just say it does, but what we could do is just simply start and compare these case studies around the world and say, well, what is it they have in common? And what makes them different from each other. Maybe that gives us some cue as to what is important about them when you start thinking about implementing or granting rights of nature to any natural unit. And that’s when we came across this very interesting these two very interesting case studies, both in the U. S. and in India, which were overturned due to liability issues. So, for example, in the U.S., the Lake Erie Bill what, what happened is Lake Erie was granted legal personhood. It had its right to exist and flourish. So yeah, maybe not legal person, maybe it was just rights for nature, but I’ll explain a little bit later what that exactly, what the difference is. But anyway, as soon as the bill was implemented adjacent farmers straight away went to court and said, look what does it mean to, for the lake to have the right to flourish and exist and, and evolve? What are we liable for? What happens if we can’t reduce our fertilizer runoff to zero? There will always be some fertilizer runoff. And what exactly does that mean in court? So this, this was overturned due to vague laws.

Mike (narration): This was known as the lake Erie Bill of Rights. And it was voted on in February 26th, 2019. And almost exactly one year later, it was struck down by a federal judge on February 27th, 2020, ruling it as unconstitutional. It was also, I believe the very first instance of an ecosystem being granted legal personhood in the United States.

Viktoria: And India a very similar case, but there are differences. Liability here came more from actually the guardians themselves. So, the state of Uttarakhand declared the Ganges River as its own living person. What that means is it’s not just a legal person, but a living person. So, any injury to the river is a bit like injury to a human person. And they assigned guardianship to the state of Uttarakhand and the state immediately went to court, to Supreme Court after it was implemented saying, well, hold on, you know, what happens if someone drowns in the river? Do we have to pay liability to the victims of the family of the victims? What happens to when, you know, the rivers polluted downstream or upstream? So, there’s transboundary issues. And very quickly the case was overturned. So, in both cases, it was due to liability. That’s one thing that we noticed. Now we compare that to actually what went well, you know, what kind of case study, what rights of nature stands out in a positive way, and that’s when we actually realized that the Whanganui River in New Zealand is really a benchmark for many of the rights of nature case studies around the world. And it’s because they are paid such precise attention to detail, in the sense that who exactly is …are the guardians, what legal status do the guardians have? So, the guardians themselves are like a charitable trust. What are they allowed to do and what aren’t they? And you know, who exactly is gonna make the decisions? So, all these questions were very detailed, a lot of attention was paid to detail when that was answered. So, the Whanganui river really stands as a bit of a benchmark worldwide. While really the Ganges and the Lake Erie showed us that, you know, there can be overturned if you don’t pay attention to, to let’s say liability.

Rachel: That’s interesting. There’s almost like a translation of the spiritual, natural, historic relationship between the Earth and man. It’s like it’s having to be translated into this more atomized legalese essentially for these decisions to stand tall in, in a world in which the legal order essentially is the, the new natural order. So, I can understand this as such. I guess what I’m trying to say is I can understand why allowing a lake to flourish, that kind of language. It’s very, very difficult to translate legally into what exactly what that means and who would be responsible for what. And I think another interesting point in that story, and I read about this, was that, you know, it is another vulnerable group, then, that could possibly be impacted by this lake’s right to flourish. You know, our farmers, certainly all around the world, are seeing a huge backlash at the moment to the very necessary production of our food. Whether or not it’s done in the best way is obviously open to debate, and I stand on the camp that thinks we could be farming definitely in a better way. But nonetheless, it’s the people on the ground that are still being impacted. This tension between man and Earth and production and overproduction is coming into play, whereas I suppose really what the embedding the rights of nature or granting legal personhood to a natural entity would certainly be about sort of stopping the most extractive layers of society, the bigger companies, or even the states from just being able to do as they want without sort of paying the compensatory price for the extraction.

Viktoria: I think you, that’s exactly right. And I’m an economist. So, when I teach my students in at university about environmental problems, typically how we phrase it as something a negative externality, right? So, there’s some industrial activity or agriculture that has an impact on a third party, some sort of environmental effect. Now, the key there is that when we teach this in economics, we always look at the impact or the negative impact of another person, right? So, you can only take legal action on behalf of other people who are affected by some sort of environmental degradation. Now, this rights of nature is really interesting because it flips that around. It actually allows you to take legal action on behalf of nature itself. So, it’s so you could think about it, right? Even if no one is affected or no one is bothered by some pollution, it doesn’t matter, right? It’s, it’s saying, well. You know, the case is that natural unit itself, the river is polluted and therefore we can take legal action on behalf of the river and that’s unique. That’s different, right? And that’s not something we’ve seen. And when you think about it in terms of property, it’s, usually, when we think about property, we think about either no one owns anything, which is the worst case of scenarios. That’s usually it’s sort of tragedy of the commons, right? And unowned natural resources usually very quickly degraded. Or maybe the state owns something. This is when we think about regulation or taxes, or maybe private property, right? When we own, for example, tradable rights, you know, or like fishing quota, but nature owning itself, it’s the self-property is unique. That’s not something that has made it really into the economics domain. And that’s why I was so drawn to this because I’ve been thinking about this for you know, many, many years I’ve been thinking, well, what is the solution? I’ve always had this gut feeling that it has to do something with property, right? We have to define who owns what and the worst cases when no one owns anything. And that’s, I think what we see currently with our ecosystem services, right? I mean, who owns the ability of a wetland to filtrate water and provide clean water, right? You might own the land, but no one owns the ability of the wetland to do so. So, what we see is, of course, even private landowners who have a piece of land may, you know, drain the wetland and put a hotel in it because it generates income. But of course, what we’ve lost is the wetland and not to speak of all the other values that are attached to it, such as habitat and, and bird life and so on. But these sort of ecosystem services are simply unowned i.e. I mean, we do have regulations of course, and, but as I mentioned before, regulations don’t seem to stem the tide of biodiversity loss by themselves. So we need something else, right? And we need something that works. It’s in the current system. So especially here in New Zealand declaring the river its own person was a very face saving activity because it means neither the crown loses out nor the Indigenous people lose out, right? No one owns the river, it owns itself. And that’s why it was politically feasible, right? It didn’t cause any much, too much upset or too many problems. And I think that was a very elegant solution to some of the problems that have been plaguing Iwi Indigenous Maori here in New Zealand for a long time.

Rachel: I agree with you. I think it’s a very interesting proposal. And I’m certainly much more for it than I am for putting a price on ecosystem services. And you have that absurd number that has just been put on the total price of the Earth, which is something like six point something trillion, I’m sure. Mike will be able to correct me in the show notes about this

Mike (narration): Thanks for mentioning that Rachel, it was 5,000 trillion for all ecosystems services based on natural asset companies. However, the U.S. Securities Exchange Commission withdrew that application earlier this year. So, it never came to pass. But listeners, if you want to learn more about that subject, listen to Rachel’s great conversation with Rebecca Adamson published back in June.

Rachel: …as if you could put a price on life as if we extracted all of that value and then nobody could survive. Well, that was the cost of the entire experiment of the only living planet in the solar system. It’s just bizarre. And I think the other thing that’s really excellent about this is given the amount of action that we’re seeing around the world, the activists are taking at the moment for example, breaking windows of banks or companies that are involved in extractive action and essentially having no legal defense because they are saying ‘we are doing this for the future survival of ourselves, future generations, and also for the protection of the Earth.’ And there’s nothing in the law essentially to say, yes, that’s a valid response. And essentially the law has said, no, you’ve damaged public private property and thus you will have to be punished for that accordingly.

Mike (narration): There does exist in actual legal defense that allows people to use climate breakdown as a defense for their actions. But its application is extremely spotty. To Rachel’s point here in the UK, recently five Just Stop Oil activists were given lengthy multiple year prison sentences for planning to block the M5 motorway. Keep in mind, they hadn’t yet done the act of blocking the road. They had a zoom call to recruit volunteers. The judge specifically rejected the legal defenses, which are similar to what Rachel is talking about here. Standing up to prevent ecocide or climate breakdown. Another way this legal argument is referred to is the climate necessity defense, and it is an actual thing. And it was accepted in a case for people who did block a highway in the United States, in the District of Columbia in 2022. The defendants still ultimately received sentences. But in other cases in the U S this climate necessity defense has led to acquittals and more so when the defendant’s actions were targeting fossil fuel infrastructure. If you want to learn more about these issues from an activist’s perspective, listen to my conversation with Clover Hogan published back in April.

Rachel: Whereas if you can begin to grant a self-property to the Earth. If you can begin to identify it as a being or parts of it as a being in and of themselves that can then be identified in a court of law, you give activists a legal defense then for their action, especially if their action are just sabotaging or damaging private property and not, you know, damaging other sort of, persons. And I suppose it would then grant an interesting case of like, well, how does the law begin to parse the hierarchy of what is or is not most important? Like is a bank window more important than a river? And I think for me, it thrusts into attention the unfortunate truth that most of our economic system and our legal system was built to protect a small minority of people and built to grant rights to those people and rights over other people and rights over the living world in order to facilitate extraction. And so, it kind of brings that to a tension point when we’re essentially saying, well, you’ve got two legal persons here. You have a bank or a company and you have a natural ecosystem without which we cannot live. Who does the law back in that case, and it brings forward all of these other problems that we’ve been alluding to throughout this conversation into the light at that point. It makes it very difficult to avoid having that conversation.

Viktoria: Absolutely. I think what you’re just hitting at is by giving nature or natural units legal rights, you’re actually giving them, giving nature agency. A voice around the table and you’re totally right I mean the interesting thing is, you know, you can’t just walk into a shop and break a window. You’ll be liable immediately but currently you can you know, you can pollute or degrade ecosystems or rivers or natural units without often being accountable now when I say that you have to be a little bit careful. Like I said, we have regulations in places at least in new zealand that try and stop this but sometimes it feels like more like a slap on the hand and of course we know it’s not enough by itself. So, it’s really about giving agency its own rights legal rights its own standing in court and you’re right it just gives it a voice. Now how that voice plays out is very interesting, too that’s another thing we looked at in our studies. We said well who are exactly the guardians when you look at the structure of these rights of nature case studies. And first, my first gut instinct was, oh, we were just going to list them chronologically and see, you know, which case comes first or second or third. But what we found is actually, there’s quite a difference in how these rights of nature case studies are designed legally. So, for example, in Ecuador and Bolivia, rights of nature was enshrined into their constitutions. That means every citizen has the right to stand and speak on behalf of nature and take legal action. Well, when you think about New Zealand, or let’s say even Australia, often they are very specific, appointed guardians. So, in the Whanganui River case, it’s one person from the Crown, one person from the Iwi, and they are usually supported by some sort of advisory board. And these advisory boards include stakeholders, like all stakeholders, recreational fishers, councils Meridian energy that all have some input into the decision making. So, it depends really also, you know, that’s probably also a big difference between rights of nature and legal personhood in the sense then who exactly are the guardians and are they financed, you know, because people have their time is valuable. So if you are deciding to represent a river, your time has to be accounted for and there has to be some money being paid. So, there’s all these questions that are addressed in various ways to some extent across these rights of nature case studies.

Rachel: This is totally anecdotal, but along the same vein. One of the most successful community projects in the United Kingdom that hasn’t been about the rights of nature or legal personhood of nature, but about a community that had been held back by a lack of investment. The success of this project that has managed to build the biggest wind turbine on British soil by themselves that has managed to get, you know, a lot more public facilities that need and built a really strong relationship with the council. When they talk about their story, they say the same thing. Like we were in this for the long haul. We had a longterm strategy. We set up a charitable trust. We ensured that enough money was coming in there to be able to finance us working for it for 10 years. And then we went out and we saw other pots of money. And we had to learn the system. We had to learn how the system worked in order to then play the system and they are incredibly successful. This tiny, tiny community on the edge of Bristol that had been totally left behind essentially by public money and by public interest has now, they’ve radically overhauled where they live and their own quality of life. And I think this leads us nicely to essentially, you know, some of the criticisms that this is facing, which is. You know, in the words of Audre Lorde, can you tear down the master’s house with the master’s tools? There are people like Jessica Hutchings, who’s an Indigenous food systems and Māori soil sovereignty expert, who says that using legal rights could perpetuate an old colonial system, that we shouldn’t be trying to use this existing system in order to create a new one or in order to reform it. Because it facilitates this continuing proprietorial relationship to nature. What would you say to that?

Viktoria: I would say, well, give us a better solution. So what else is there, right? It’s, look, these are not simple questions. They’re very complex questions and overturning the current system, capitalist system is gonna lead to a lot of other problems that, you know, I mean, I don’t think that’s just a viable option, right? I mean, we all depend on it, right? We work, we have an income, we have a legal system, we have a medical system. I mean, this is very much part and parcel of where humanity is going. So, the question is now, how do we how do we do this? How do we grow? And I’m a big advocate of, of economic growth and good living standards. And, you know, I embraced techno[logy]. I think it’s fantastic. I’m glad I live in this time and not two, 300 years ago when there wasn’t any antibiotics around, right? I mean, this is I think us as a human species have done fantastic, but in the process of doing so we’ve left nature behind. And now the question is, is how do we actually bring nature back in there? And yes, of course it’s an anthropocentric viewpoint. I buy it. But I think within the tools that we have, this is to me one of the most promising ways forward. Now, it is a much more in intrinsic worldview rights of nature than anything else we’ve had before, because we’re really saying nature has its own inherent worth. And this comes from the Indigenous philosophies, which I think is a fantastic, you know, opportunity for Indigenous people to lead the way and say, look, we’ve known this for all this time. Now, finally, we can actually bring it into the current the way we as a society function. Now, how that is going to be implemented, that depends on the people, the way the legal system works, and that’s not something we can predict. But it gives us at least a chance, and I have seen a paper recently that showed that in Ecuador, which was the first country to enshrine rights of nature in its constitution, what they’ve seen is that very slowly, as lawyers and judges are becoming more familiar with the concept, they’re better to interpret it when there is a legal case being brought, and they’re able, better able to side on the side of nature. Now, that’s a very slow process and I’m not saying it’s the panacea, but it’s certainly much, much more positive than what we’ve seen in the past. So, to those people who are critics, I’m sure they, I mean, I don’t think, like I said, I don’t think rights of nature by itself will solve all our problems. I think we are, I mean, we could be open for many different approaches. It’s just one of the options that we have. That’s how I see it.

Rachel: So, I’m probably … I am in a different camp to you I… you know would like to see a world in which we didn’t focus on economic growth as a measure of success and I would like to see a world where monetary value wasn’t placed on everything and I would love to see the end of capitalism in my lifetime and yet what I think is something that is quite easy to forget for us homo sapiens who have brains that are not trained in understanding complexity is that everything that we do has a knock on effect, and not just knock on in a linear thing, it’s not just a set of dominoes, but it ripples out across the ecosystem, and changing this with regards to our laws, changing the legal system ripples out so fast essentially amongst the rest of our social networks and allows for decisions or imaginations or other possibilities that wouldn’t have been possible without taking that initial step to then become clear and available to us. And I think that’s, what’s particularly exciting about this is it really does challenge the fabric or, or the foundations of how we define relationships, which I think is what a lot of these critics are saying, that we need to come back into relationship with the Earth, and a mutually beneficial one, and one that does not place a kind of like anthropocentric hierarchy on that, and thus the idea of granting property, continuing the system of property is dangerous, and I understand that. But also, changing our relationship through law will allow for other possibilities of those relationships to emerge, and relationships are never static. They are always in a sort of dynamic movement with one another. And thus, even though this is kind of using a, a master’s tool to maybe remodel the master’s house, I think that doing it legally as opposed to economically could possibly have a bigger impact in a sure amount of time, especially with the poetry of law, just as you said with like judges and lawyers now interpreting these rights differently. I think that’s stunning and I think that that verb interpret really reveals the, the weight and the possibility behind the system.

Viktoria: Yeah, and if you look at, for example, Te Urewera, which is used to be a national forest and the Tūhoe iwi fought for Te Urewera to become its own legal person. And once it was implemented, you know, the trust board, the Tūhoe board, very clearly said, you know, we are going to govern this according to our principles, our beliefs. So even though it’s nestled in the, in the standard legal system, it allows Indigenous peoples to actually apply some of their Tikanga in New Zealand and Māori, this means some of the way they do things, right? Their beliefs, the customs. So, I don’t think it’s all black and white, right? It’s this, this, there’s lots of room. And like I said, the devil lies in the detail. How exactly is this law implemented? How is it designed? You know, does it allow for some freedom of, of action of, of the advocates? And it’s not just Indigenous peoples. It’s also local communities. For example, the more recent, most recent rights of nature was the Mar Menor Lagoon in Spain. And that has been really an, I mean, it’s been heavily criticized on all sides saying, well, it’s not enough. And, you know, it’s, it’s, the legislation is not clear enough, but nevertheless, it’s been really a grassroots sort of movement. And because of the despair that the community has been feeling from all the, you know, pollution and, and tourism and all the detrimental impacts on, on the lagoon. How that is going to play out in the future. I don’t know. No one knows it. But it is a start, right? It’s something. It’s a starting point and we have to start somewhere. So that’s, that’s how I see it.

Rachel: I agree. Well, listen, Viktoria with your continuing research, if you do manage to come across an answer soon about whether or not these legal tools can stem biodiversity loss, please reach out and we will do an update. And thank you very much for your time today.

Viktoria: Thank you for having me.

Mike: So, it’s. This is like a really complex situation. And… the gist that I got from the conversation with Viktoria, with you is that it’s really context dependent. So, before we talk about some of the criticisms, what were your initial thoughts, your reaction to this conversation?

Rachel: Oh, my reaction to the conversation was that it was a really helpful introduction to some of the differences of the legal frameworks that are on offer around the world, and also a very accurate analysis of the fact that this is one tool amongst many that can be deployed as part of a network or a system in order to try and shift our relationship towards the planet, i. e. the resources that we use. So, I thought it was really interesting and I think it’s really interesting as well that Viktoria and her co-researchers decided to actually look at whether or not this stems biodiversity loss, because it’s true that things can look really, really good on the surface, or they can be a kind of, shining PR spinner. They can intuitively make sense, but that doesn’t mean that the data always lines up. And so, as I invited her, you know, on at the end, I really, really do hope that once they get some firm data on this, they’ll come back on the show and present it to us. So, we can really see what the impact of these schemes are.

Mike: Right. Yeah the thing I got from this was that there is a lot of complexity in the iterations of these kinds of legal frameworks, and I thought that the examples that were brought up, such as the, from my home state, Ohio, the Lake Erie example, where in literally just one year, that law got struck down by a federal judge, , sort of highlighting the vulnerability of the law, the flaws within that approach, , in that specific instance. There was another criticism to this that was penned by some folks at the community environmental legal defense fund that I just wanted to bring up with you. So, I went through and I read the critique and it sounds like they took an interpretation of what Viktoria was saying, criticized it, and they offered an alternative. They said actually Ecuador has a better answer to this question. But curiously enough, that was one of the examples that Viktoria mentioned in your conversation as being like a really effective way to do this, which was essentially to declare all of nature in Ecuador as an entity for which any person could stand up for versus granting legal personhood to or a specific ecosystem, and so I just, it seemed like to me, we’re getting some debate here, but we’re actually more on the same page than maybe we realize, at least Viktoria and some other critics of this conversation.

Rachel: Yes. I think that the enshrining the rights of nature in a constitution is the exactly as you’re saying, it’s the big iteration and the big possibility. And I also really appreciate about that particular solution. The fact that as you’re saying, it makes every citizen responsible because obviously. One concern with this, with that, it would be people who live in rural areas near a place that would be granted legal personhood that are then forced to also shoulder the entire burden or responsibility for looking after those ecosystem services, which would likely fall on Indigenous groups rather than kind of bringing everybody into that same new relationship of we all have to protect the nature that’s around us all the time. So, I agree with you that I think for a lot of the criticisms, it was just that, oh, this legal personhood isn’t going far enough. Like, it cannot just be the first and last step. But I want to read out, if I may, a comment from law professor Anna Greer, who argued that the law needs to, quote, “develop a new framework in which the human is entangled and thrown in the midst of a lively materiality.” Do you know what that means?

Mike: I can’t describe it, but I, I would like you to, to explain more to me. Yeah.

Rachel: Well, I mean, I, I can’t explain more, but I could riff more. Cause that was the, the end of her argument. But I think that I mean, number one, it sounds like very Heideggerian, like very, very philosophical, this argument, of like, a human being as a being who is in relationship with the world, like being thrown with the world. And I get it. And it sounds, how do I put this? That sounds great. That sounds exactly like the kind of world that we would want. But also having listened to, having spoken with Viktoria, I can also see the flaws in that it’s not something that’s precise enough. And because it’s not precise enough, because it speaks to more this like romantic vision of how we would like the law to support us and the world and our relationship with the world, that it might not be the kind of legal terms that can actually stem biodiversity loss or protect ecosystems. And so I think that for some of the critics who are saying it’s not going far enough, as I sort of said in the episode, I mean, we all agree, right? And Viktoria agrees. It’s the idea isn’t that the buck stops there, but that these are the first necessary steps that you need to take in order to eventually get to a kind of law that sounds like poetry, which is what that quote from Anna does,

Mike: Right. Yeah. I got that too. I do want to play a quote from Viktoria that she said…

Viktoria (playback): Now, how that is going to be implemented, that depends on the people, the way the legal system works, and that’s not something we can predict. But it gives us at least a chance, and I have seen a paper recently that showed that in Ecuador, which was the first country to enshrine rights of nature in its constitution, what they’ve seen is that very slowly, as lawyers and judges are becoming more familiar with the concept, they’re better to interpret it when there is a legal case being brought, and they’re able, better able to side on the side of nature. Now, that’s a very slow process and I’m not saying it’s the panacea, but it’s certainly much, much more positive than what we’ve seen in the past.

Rachel: That was the most interesting part, I think, for me, that little snippet. I’m so glad you’ve pulled it out again because, you know, sort of alarm bells went off in my head when she said it as if, you know, I wish I could bookmark that part of the episode. Because it’s one of the most fascinating things about law, not just that, legal cultures are built on precedence, but also they are built on interpretation, kind of like poetry. And so, the more that the kind of legal class is getting to spend time marinating in this new constitution, the more that they are able to then understand as well, what would it be to speak on behalf of nature? What would it be to protect nature? What would it be for nature to have rights? And so this idea that, you know, whatever decisions were being taken in 2009 in Ecuador, after that constitution was, rewritten versus now in 2024 the possibilities that will have emerged just from having spent time with that law and decisions and dialogues being made with one another with regards to it will be totally different. So, who knows actually where it could end up. And I think that’s, what’s so exciting about enshrining the rights of nature and institution or using these big legal and heavy weight, versus.

Mike: Yeah, it’s complicated. I left the conversation feeling much the same way as you did about it, and it’s just something that continually looks like it’s going to need to be discussed, debated, things tried, like it’s always going to be a evolving thing. There’s clearly no one silver bullet solution per se…

Rachel: But like, just think about it, you know, for example, say, let’s, let’s pick modern medicine as an example, right? Say that there is an ingredient that’s really, really necessary to, a pharmaceutical branch. I don’t know. I don’t know. What is the medicine that we need most of? And I don’t know how we make any of our medicines, but just say there’s something that we need in a, biodiversity hotspot, for example, and say that this is a world in which we’ve enshrined the rights of nature. What happens to those tensions when it’s like, okay, well, this forest, has its own rights protected. We are not allowed to just go in and take what we want. But by the same token, there’s, you know, 8 billion, maybe 9 billion people in this, you know, imagined future, that need, modern medicine in order to survive and live good lives, like, you know, in those scenarios, that’s, that’s like, when you play out a point of decisions will have to be, and maybe it’s the decisions will have to be made holistically. Maybe it will be more, oh, because we’re taking a little bit from there and we have to, then we’re going to protect people. It’s a little bit more over there, but then that starts to sound a bit like biodiversity credits. And, you know, there are a lot, there are points in your thinking where you’re like, yeah, no, the human impact on the planet. There’s no…there is no exactly what you’re saying. There is no one way or one silver bullet to manage that. It’s going to have to be consciously, constantly managed.

Mike: It’s exactly the kind of conversations we’re going to have to have when, like you just met[ioned], that’s a very, it’s a great question. It’s a great scenario because, frankly, I don’t know. I don’t know what happens. It’s so context dependent. I don’t know what we would I just don’t know. this is a great question though.

Rachel: Yeah. Tune in, tune in next week. Maybe we’ll know then.

Mike: Yeah, I am likewise extremely interested to see how this goes.

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