Rights
The Chronicle Herald (Halifax, Nova Scotia) [Printer-friendly version]
January 8, 2007
WHEN DOES A TREE HAVE RIGHTS?
[Rachel's introduction: Tamaqua Borough in Pennsylvania is asserting
the rights of nature in a unique law intended to curb corporate
power.]
By Silver Donald Cameron
Hardly anyone noticed it, but one of the most important events of 2006
may prove to have been the passage of the Tamaqua Borough Sewage
Sludge Ordinance, a law enacted by the 7,000 brave souls who inhabit
the community of Tamaqua, Penn.
Tamaqua's revolutionary ordinance does two things. It denies the right
of corporations to spread sewage sludge as fertilizer on farmland,
even when the farmer is willing, and it recognizes natural communities
and ecosystems as legal persons with legal rights. It is among the
first "wild laws" to be passed anywhere in the world.
To understand the importance of wild law, consider this. The law
recognizes as "jural persons" various bodies that are abstractions --
corporations particularly, but also governments, foundations,
universities, churches and other groups. These entities exist in our
collective minds -- you can't touch them, smell them or see them --
but they all have legal rights, particularly property rights.
Yet other entities that are absolutely real in every sense rivers and
trees and animals have no legal rights at all. If Foulwater Mining
Corp. dumps tailings in the river, the downstream town of Feckless
Flats can sue for damage to its water supply. Both the corporation and
the town are fictions, but they have standing in the courts. The river
does not and neither do the plants, fish and animals in the stream.
What if they did? A decade ago, researching The Living Beach, I ran
across a brilliant 1971 essay by Christopher Stone, a law professor at
the University of Southern California, called Should Trees Have
Standing? Towards Legal Rights for Natural Objects.
Stone's essay began at the dividing line between property, with which
we have no ethical relationship, and things-with-rights, with which we
do. There is no "natural" boundary between the two, though we usually
think there is. But, wrote Stone, the history of Western law shows a
steady migration of items of property into the category of things-
with-rights.
In Roman law, a man had absolute power over his children. He could
even put them to death. In 1858, a U.S. court could say explicitly
that "a slave is not a person, but a thing." Natives, Jews, Chinese,
women (especially married women), animals all of these have at various
times been considered property, and have been denied the most basic of
rights. But today, all of them have a substantial basket of rights.
Stone argued that natural objects should have at least three basic
rights: the right to institute legal action at their own behest; the
right to have injuries to them taken into account in determining legal
relief; and the right to benefit from that relief. Since trees and
birds and beaches cannot exercise those rights themselves, individuals
or groups should be able to apply to the court for legal guardianship,
and for the right to litigate on behalf of the natural object.
Stone was arguing for an ethical relationship with nature, and
pleading that we start to think in less "homocentric" terms. We are
not protecting natural objects for future human generations; we are
protecting them for themselves. The environment does not exist for
man; it may be that man exists for the environment.
In 2003, a South African lawyer named Cormac Cullinan expanded these
ideas in a book entitled Wild Law: A Manifesto for Earth Justice.
Humans are members of an earth community, Cullinan noted, and we
cannot ignore the rights of that community, which makes our own
existence possible. We need a new body of law whose first priority is
to protect the ecological community in which we live.
This is not a cozy idea. Under such a regime, Nova Scotia Power could
be sued on behalf of polar bears, whose habitat is being destroyed by
the degradation of the air. Since NSP's coal-burning plants are among
Canada's worst polluters, the bears might win the case and you and I
would have to find other ways to generate electricity. That would be
"wild law" with a vengeance.
Wild law could give ocean-bottom plants the right to challenge
Clearwater's bottom-trawling, or a bog the right to an injunction to
block a drainage project. It might allow trees to demand that this
newspaper be published only electronically.
Wild law will not soon gain that kind of traction or will it? Without
rapid and radical change, the days of our own species may be numbered,
and the fundamental justice and sanity of wild law is indisputable.
Once begun, the process of legal change can move surprisingly quickly.
Twenty years ago, who would have thought that an almost universal ban
on smoking in public lay within the realm of possibility?
Peer deeply into the sewage sludge of Tamaqua. It may contain the
future of the law.
Visit Silver Donald Cameron's website at www.silverdonaldcameron.ca
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