Rights of Nature for the Public: How the Public Trust Doctrine and Rights of Nature Movement Can Intersect for More Eco-centric Environmental Protections in International Environmental Law

by Rebecca Waxman, winner of the 2023 NEERLS Law Student Essay Contest - Gowling WLG - David Estrin Prize.

I. Introduction

International environmental law – and environmental law more generally – is often framed as being about how we can save the planet for the use of humans. Even arguably very positive developments, such as the right to a healthy environment, are anthropocentric.¹ Environmental protections have improved over the past few decades, however, with our human-centred approach, we are still not seeing enough change to avert the climate crisis. For example, the latest Intergovernmental Panel on Climate Change Report from March 2023, shows that the Earth is not on track to limit warming to 1.5 degrees Celsius unless there is “immediate action, which implies deep, rapid and sustained global GHG emission reductions this decade” (stated with “high confidence”).² Our human-centred approach to environmental protections and climate change mitigation is not working. Could the Earth achieve better environmental protections if we took a different approach? That is the argument this paper will address.

The paper examines two distinct approaches – the public trust doctrine and the rights of nature movement – to argue that using them together could create more eco-centric environmental protections in international environmental law.³ Although aspects of these two approaches are at times in tension with one another, ultimately combining them could make for a successful strategy in litigation and international legal developments, including treaties and new customary law. Using the public trust doctrine and rights of nature together could create environmental protections that put the Earth first. For example, including the public trust doctrine and rights of nature in treaties could ensure that states implement eco-centric environmental protections since the signatories would be bound by the treaties, and so, the national laws of signatory states would have to follow these commitments.⁴ This could potentially lead to the public trust doctrine and right of nature becoming customary law since they would be, as per Article 38(1)(b) of the “International Court of Justice Statute”, “international custom, as evidence of a general practice of law”.⁵ Therefore, the rights of nature and public trust doctrine working together and being adopted in several countries, could make them more clearly recognized as customary international law.⁶ Ultimately, when the Earth is put first, humans are also in a better position to survive and thrive. There are already examples of the public trust doctrine and rights of nature movement working together. If this momentum could continue, and adjustments to the way we view these legal theories are addressed, then there is real potential for better environmental protections.

This paper will begin by discussing principles of international environmental law such as intergenerational equity, the prevention principle, the precautionary principle, and sustainable development. Then, the public trust doctrine will be discussed in a broad sweep. A brief history of the doctrine, notable case law, and relevant national and international law where it is used will be highlighted. Following the discussion of the public trust doctrine, the rights of nature movement will be discussed. A history and background to the rights of nature movement, its successes, examples of it in national and international laws, and the ways it may move forward will then be addressed. This will be followed by the ways in which the public trust doctrine and rights of nature have and can continue to work together to create more eco-centric international environmental protections. Recommendations of the ways international environmental protections can continue to develop using these eco-centric approaches will be discussed. Tensions between the rights of nature and the public trust doctrine will also be addressed. Finally, the paper will conclude with suggestions for future research directions and questions that may arise with the convergence of the two theories.

General principles of international environmental law situate and help guide this analysis. In his Separate Opinion on the “Pulp Mills” case, Judge Cançado Trinidade of the International Court of Justice describes general principles of law as emanating “from human conscience, from the universal juridical conscience, which I regard as the ultimate material ‘source’ of all law.”⁷ Especially in international environmental law, when there is so much at stake for humanity and nature, looking at the laws with a perspective of human conscience and what we value as living beings can resonate. Using a natural law approach to address environmental concerns demonstrates the ways in which “‘objective justice’ may be drawn from common human values and reason.”⁸ In a context like international environmental law, it makes sense to use a method like this, which relates to the fundamental aspects of what it means to be human and what our relationship with the Earth is.

Four principles of international environmental law will be interwoven into the discussion on the public trust doctrine and the rights of nature. The first principle is intergenerational equity, which is about ensuring that each generation uses enough to sustain itself, while leaving enough for future generations to also sustain themselves.⁹ It accounts for the uncertainty of values and needs of future generations, acknowledging that they may be different from that of our current values and needs.¹⁰ As stated by the International Court of Justice, “[t]he Court also recognizes that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn.”¹¹ Remembering that our actions and decisions regarding the environment are not just relevant to the present, but also for future generations is crucial to how humanity approaches this area of law. Intergenerational equity calls for a balancing between present and future needs.¹²

The second principle is the prevention principle, which is related “to damage […] in [the] face of scientific certainty as to its occurrence”;¹³ as in preventing what we know will cause damage. It emerged as a contrast to reparation and repair of environmental harms that have already occurred – and instead, addresses them before they begin.¹⁴

The third principle is the precautionary principle, which is based upon the risk of scientific uncertainties.¹⁵ This principle is used when there may likely be a risk, but there is not proof of one (as there is in the prevention principle). It is included as Principle 15 of the “Rio Declaration”, which states that “[w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”¹⁶ Essentially, the precautionary principle requires that the proponents of a potential project or action have the burden to ensure and show that it is safe before proceeding.¹⁷

Finally, the fourth principle is sustainable development. Sustainable development is about the convergence of environmental, economic, and social development.¹⁸ The Bruntland Commission defines it as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.¹⁹ Generally, sustainable development has an emphasis on economic/social development for humans, more than an eco-centric approach.²⁰ Nevertheless, the principle aligns well with the idea of intergenerational equity – to the extent that the Bruntland Commission’s definition is extremely similar to a definition of intergenerational equity – and the importance of mitigating environmental impacts and increasing environmental protections, as society continues to develop. The principles of international environmental law should reflect this reality of the environment as a place – not just as abstract legal ideas. What happens to it deeply affects what happens to all beings on the Earth – whether human, animals, plants, or microorganisms.

II. The Public Trust Doctrine: What is it and How Has it Been used?

a. Overview of the Public Trust Doctrine

The public trust doctrine is an ancient legal doctrine.²¹ It was revived in Medieval England and once again in the 20^th century (particularly in the United States). Michael C Blumm and Mary Christina Wood describe the public trust doctrine as “[f]unctioning as a public property doctrine, […it] imposes limits on governmental action and provides public access rights to trust resources.”²² The beneficiaries of the public trust doctrine are citizens, both those are presently living and those who will be in the future.²³ The government acts a steward and ensures that nature and resources are “stewarded in perpetuity by the state.”²⁴ It is very much in line with the international environmental law principle of intergenerational equity. The current generation should not deplete the planet of its resources, but instead, should use what it requires to sustain itself while also ensuring that future generations have enough to sustain themselves.²⁵ In general, the lands and water subject to the public trust doctrine – especially in the American context – are “those lands below navigable waters with the upper boundary being the ordinary high water mark” (including shorelands, navigable lakes/rivers, tidelands, and land beneath oceans, lakes, and rivers).²⁶ However, as several of the examples discussed in this essay show, there have been successful cases where a broader application of the doctrine has prevailed and been applied to forests, uplands, wildlife, and the atmosphere.²⁷ Although intergenerational equity is generally applied to humans as the beneficiaries, this paper will also make some arguments for intergenerational equity in the context of nature and highlight instances where that has occurred.

The public trust doctrine is flexible, has developed over time, and continues to evolve today.²⁸ The public trust doctrine has been included in legislation in various countries and in international law, but being an ancient doctrine, its source predates this and has roots in the common law and other legal systems.²⁹ Its flexibility allows it to maintain relevance and adapt its main applications, as society’s needs and values have developed. For instance, up until the 1970s, it was primarily used as a doctrine which allowed for land access. However, since the 1970s, its role in environmental law has continued to grow.³⁰ Joseph L Sax’s 1970 article, “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention”, highlighted the ways in which the public (“citizens”) could use the doctrine in environmental litigation.³¹ He discusses that the public trust doctrine must meet three criteria in order to be an adequate and effective legal tool:

It must contain some concept of a legal right in the general public; it must be enforceable against the government; and it must be capable of an interpretation consistent with contemporary concerns for environmental quality.³²

These three criteria are equally as important and relevant now as they were in the 1970s. In particular, Sax’s third criteria is crucial in terms of how quickly our scientific understanding of environmental concerns can change. The doctrine needs to be able to adapt to the new realities and concerns that become pressing in the environmental law context. Its uses may be implicit or explicit (i.e., in some instances, the specific language of “public trust doctrine” will be used, while in other instances, the concept will be used or applied without the doctrine being named).³³

The public trust doctrine is useful in international environmental law for several reasons. Since it is a flexible doctrine, it can adapt to new norms in environmental protection.³⁴ In a field such as international environmental law, where there is constantly new science emerging, it is extremely important that the doctrine is able to reflect these changing scientific findings as well as – hopefully – changing societal desires to address environmental problems. The public trust doctrine is used fairly commonly in litigation.³⁵ Therefore, when it is brought forward to courts, it is not necessarily a novel argument. Instead, advocates may be able to rely on established precedents and case law around the doctrine to move their legal arguments forward. Joseph Orangias also argues that the public trust doctrine “can be applied to resources that transcend national territories.”³⁶ Of course, nature does not know the bounds of state lines. Thus, to be useful for the greatest number of conservation projects, it is imperative that states are able and willing to work together on conserving transboundary nature. Having the public trust doctrine as a tool to help achieve this goal is helpful, particularly when the resources or nature in question is crucial to conserve for sustainability purposes. Furthermore, states working together for a common conservation goal have the potential to help state-to-state relationships. For example, cooperation between states about water (even when scarce) is more common than instances of violent conflict.³⁷

The global nature of this has also been demonstrated in some of the public trust doctrine litigation. In The State of the Netherlands v Urgenda Foundation, the Court stated that it

[A]knowledges that this is a global problem and that the state cannot solve this problem on its own. However, this does not release the State from its obligation to take measures in its territory, within its capacities, which in concert with the efforts of other states provide protection from the hazards of dangerous climate change.³⁸

The court emphasized that climate change will have impacts around the world. If this type of consideration is adopted internationally, it could also encompass nature (e.g., in this case, the atmosphere) as part of the beneficiary for the public trust. The atmosphere would be protected for the benefit of clean air in the future atmosphere.

b. Examples of Public Trust Doctrine in Litigation

The public trust doctrine has been used extensively in litigation.  Particularly in the American context it is a well-established legal doctrine.³⁹ Since the foundational 1892 case Illinois Central Railroad v Illinois,⁴⁰ the public trust doctrine has been widely used and accepted in the United States.⁴¹ Joseph L Sax describes the result of the case as creating the principle that

When a state holds a resource which is available for the free use of the general public, a court will look with considerable skepticism upon any governmental conduct which is calculated either to reallocate that resource to more restricted uses or to subject public uses to the self-interest of private parties.⁴²

In environmental contexts, the public trust doctrine has also been used around the world. Although the scope of it may change from case-to-case, its relatively common use suggests that it may be part of customary international law. For example, in Advocates Coalition for Development and Environment v AG, the High Court of Uganda explicitly recognized that the public trust doctrine in Uganda applies to uplands (i.e., water that is far from shorelines).⁴³ In Palazzolo v Rhode Island, the public trust was recognized as the part of land that is below the mean high water (i.e., would not apply to uplands).⁴⁴ That being said, the varied usage could also point to the doctrine not being part of customary international law. As more cases use the public trust doctrine, it will likely become clearer whether it can be definitively considered part of customary international law and, if so, what its scope as customary law will be.

In Judge Weeramantry’s Dissenting Opinion in Legality of the Threat or Use of Nuclear Weapons at the International Court of Justice, he discusses the potential damage that nuclear weapons may bring to future generations.⁴⁵ He states that, “it would be safe to pronounce that no one generation is entitled, for whatever purpose, to inflict such damage on succeeding generations.”⁴⁶ He goes on to detail how “there is a growing awareness of the ways in which a multiplicity of traditional legal systems across the globe protect the environment for future generations.”⁴⁷ While not explicitly calling this the public trust doctrine as such, his stance aligns with and is an example of a judge at the International Court of Justice endorsing the doctrine for environmental protection.

In The State of the Netherlands v Urgenda Foundation, The Hague Court of Appeal agreed with the Urgenda Foundation, an environmental non-profit, that the Netherlands had failed “to fulfill trust duties with regard to climate change.”⁴⁸ The Court emphasized the importance of taking “precautionary measures to prevent infringement [of the right to a home and a private life] as far as possible.”⁴⁹ In this case, since the emission reduction targets that the government had set had not been met, the court held that the government was not taking proactive enough measures to address the future global effects of climate change.⁵⁰ Although the court did not use the specific language of the public trust doctrine, they nevertheless implicitly used the principle in their decision that the government had an obligation to limit greenhouse gas emissions to address the future impacts of climate change.⁵¹

The 1983 National Audubon Society v Superior Court of Alpine County (“Mono Lake”) dealt largely with how the public trust doctrine could be taken into account alongside laws of appropriative water rights.⁵² Although the court reserved judgement on whether one doctrine superseded another, they did note that even though the two doctrines may conflict, both have to be taken into account.⁵³ Most relevant in this discussion is the broadened scope of the purpose of public trust doctrine in the case. Justice Broussard discusses the doctrine’s flexibility and how the scope of the doctrine has expanded over time to include more than the traditional uses of navigation, commerce, and fishing.⁵⁴ He states that

The principal values plaintiffs seek to protect, however are recreational and ecological – the scenic views of the lake and its shore, the purity of the air, and the use of the lake for nesting and feeding by birds. […] it is clear that protection of these values is among the purposes of the public trust.⁵⁵ [emphasis added]

The focus then of the public trust doctrine, is not only on how humans can use and benefit from the lake, but also how the lake can be a benefit to the ecosystem it supports. The migratory birds’ uses of the lake are put on the same level as those of humans. It is a very progressive development that shows an example of the public trust doctrine being used in a non-human context.

In the decision’s conclusion, Justice Broussard states “[t]he human and environmental uses of Mono Lake – uses protected by the public trust doctrine – deserve to be taken into account.”⁵⁶ While not going as far as giving the lake or its ecosystems rights, the decision takes into account what impact the outcome could have on the environment (and the environmental impacts that had already occurred at the time of the decision), including evidence from the plaintiffs on the vast reduction of the lake’s shrimp population and how that affects the migratory birds who feed on them.⁵⁷ A judicial decision, such as this, takes into account the environmental impacts on the species that use the lakes and helps move the public trust doctrine towards reflecting our moral obligations to the world around us. With the state as guardians/stewards for the resources in the public trust, they have a duty to protect it.⁵⁸ Here, this duty is not only for the benefit of future generations of humans, but also for future generations of migratory birds.

c. Examples of the Public Trust Doctrine in Legislation

The public trust doctrine can be seen in many different examples of legislation, both in national laws and in international law. In South Africa’s Constitution, for instance, the public trust doctrine is included in section 24(b) where the government provides everyone has a right to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that

1. prevent pollution and ecological degradation;
2. promote conservation; and
3. secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.⁵⁹

In his article, David Takacs discusses the right to water in South Africa and how the public trust doctrine has been used specifically to address the need for water conservation and clear water for both present and future generations, both human and non-human.⁶⁰ In the South African context, the public trust doctrine has also been used in a way that promotes intragenerational equity as well as intergenerational equity.⁶¹ Meaning that it is not only about sustaining resources for future generations, but ensuring they are allocated equitably within the present generation as well.⁶²

In international legal instruments, the public trust doctrine can also be seen. For instance, in the “United Nations Declaration on the Rights of Indigenous Peoples” (UNDRIP). Article 29 of UNDRIP states

Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.⁶³

Although future generations are not explicitly included in this Article, it may be implied through the use of the term “productive capacity” that the land should be usable and beneficial not only today, but in its productive capacity in the long term. Many different Indigenous peoples and cultures have long recognized humans’ obligations to exist cohesively with nature.⁶⁴ While, this paper does not delve deeply into these longstanding traditions and beliefs, there is further discussion of Indigenous worldviews and the rights of nature in Section III of the paper.

The “Earth Charter” is an example of an international soft law document and movement which began at the United Nations Conference on Environment and Global Development in Rio de Janeiro (1992).⁶⁵ It is based around four pillars: Respect and Care for the Community of Life; Ecological Integrity; Social and Economic Justice; and Democracy, Nonviolence, and Peace.⁶⁶ Each pillar is reinforced by key principles, which elaborate on the pillars.⁶⁷ Although the “Rio Declaration” was the eventual result of that conference, the “Earth Charter” was a project that continued to be worked on and was formally launched in 2000.

The “Earth Charter” includes references to the public trust doctrine in both its preamble and provisions. The preamble states that “it is imperative that we, the peoples of Earth, declare our responsibility to one another, to the greater community of life, and to future generations.”⁶⁸ Furthermore, provision 4 of the “Earth Charter” is as follows:

4. Secure Earth’s bounty and beauty for present and future generations.
a. Recognize that the freedom of action of each generation is qualified by the needs of future generations.
b. Transmit to future generations values, traditions, and institutions that support the long-term flourishing of Earth’s human and ecological communities.⁶⁹

The explicit inclusion of the public trust and the importance of protecting future generations show how the public trust doctrine is at play. Additionally, intergenerational equity also is fundamental to this provision. While it is soft law, the “Earth Charter” is an excellent example of the direction humans can go in order to develop more eco-centric protections. While the approach of the document was not ready for consensus in Rio in 1992, one wonders whether now – thirty years later – might be the time to explore implementing the “Earth Charter” – or parts of it – in a treaty or resolution. Furthermore, its acceptance of more moral legal principles based on how we treat the world around us, could be useful in guiding judicial decisions. It heartily accepts the public trust doctrine and the importance of holding in trust the for the “bounty of future generations”, but it does not qualify those generations as “human”. Instead, it potentially leaves the door open to generations of species and ecosystems to be included as the beneficiaries as well. The “Earth Charter” has been described as “a global ethic, it is a social movement, and it is cosmological and ecological in its orientation.”⁷⁰ If it is ever implemented, it will be a major shift towards putting the Earth first.

III. The Rights of Nature: What is it and How has it Been Used?

a. Overview of the Rights of Nature

“The idea that nature is merely a collection of things intended for human use is one of the most universal and unquestioned concepts in contemporary society.”⁷¹ – David R Boyd

Our legal and political systems rely on consumption and the use of nature as “things” to consume. Of course, this has led to development throughout the world, but it has also led to a way of life that is unsustainable on our planet. The rights of nature is a legal movement which, as it sounds, is about giving legal rights to nature.⁷² While at first glance, this may seem unlikely or even unnerving, the fact of the matter is that our legal system has given rights to non-human things for a long time. In his seminal essay, “Should Trees Have Standing?”, Christopher D Stone notes that “[t]he world of the lawyer is peopled with inanimate right holders: trusts, corporations, joint ventures, […] and nation states”.⁷³ No one bats their eyes at the fact that corporations have legal rights – why should these rights be limited to creations of capitalist society and government? Since Stone’s essay in the 1970s, the idea that nature may be able to have rights has gained momentum in Western academia and now in more and more in legal rulings, domestic law, and international law around the world. Proponents of the rights of nature are not arguing that these rights supersede human rights, but rather that they need to be balanced in light of one another.⁷⁴

Indigenous legal traditions have long recognized nature as having rights.⁷⁵ This perspective is crucial to the rights of nature movement, as it shows a worldview that is not anthropocentric. Although this paper will not go in depth on Indigenous legal traditions, they are inextricably linked to this movement. Furthermore, many of the rights of nature successes have only been successful because of the advocacy of Indigenous peoples. The importance of stewardship of the land that exists in many Indigenous cultures is also relevant when discussing guardianship/stewardship arrangements for nature that has been given legal rights. Chief Oren Lyons, traditional Faithkeeper of the Turtle Clan and member of the Haudenosaunee eloquently explains the importance of the rights of nature:

There is a hue and cry for human rights – human rights, they said, for all people. And the indigenous people said: What of the rights of the natural world? Where is the seat for the buffalo or the eagle? Who is representing them here in this forum? Who is speaking for the waters of the earth? Who is speaking for the trees and the forests? Who is speaking for the fish – for the whales, for the beavers, for our children? We said: Given this opportunity to speak in this international forum, then it is our duty to say that we must stand for these people, and the natural world and its rights; and also for the generations to come. We would not fulfill our duty if we did not say that. It becomes important because without the water, without the trees, there is no life.⁷⁶

This powerful quote encompasses the rights of nature as well as the idea of intergenerational equity exemplified by the public trust doctrine. These concepts go back generations in some Indigenous worldviews.

The rights of nature movement could progress if it were used in more treaties, or in more domestic laws (thereby becoming customary international law). As discussed previously, customary international law is generally agreed to be developed when practices are widely accepted by states.⁷⁷ If enough states began giving rights to nature, it could become part of international law recognized by a community of nations, even if not included in treaties. However, one problem with international environmental law is its ambiguity and its variance between states depending on their circumstances and/or capabilities.⁷⁸ Thus, there may be difficulties in implementing the rights of nature, particularly in countries where economic concerns prevail.

Within case law, both domestically and internationally, judges have a large role to play in how the rights of nature movement has been developed. The rights of nature is a newer movement in the Western legal system and less well-established than the public trust doctrine. Some judges have linked the movement to more established legal principles, which allows the area to evolve in a way that maintains precedent and legal consistency while adapting to changing ideals.⁷⁹ Judicial decisions can help impact this area of the law – for better or for worse – since it is in the midst of being shaped.⁸⁰ The importance that judges put on international environmental principles also helps shape their interpretation of this movement. Although it is likely not yet in the category of customary international law, the more judicial decisions that accept the rights of nature as a movement and the more it continues to be included in domestic statutes and international legal documents, the more likely it will be to achieve that status. Thus, the more cases that can be successfully litigated on a national and international scale that can have an outcome which adopts the rights of nature and gives legal personhood to nature, the more likely it will be that such arguments will be successful in future litigation.

b. Successful Examples of Nature Being Given Rights

There have been several recent successes where nature has been bestowed legal rights through legislation. In 2014, Te Urewera in New Zealand was the first natural resource in the world to legally be given personhood.⁸¹ This was followed by the Whanganui River in New Zealand in 2017 that received legal personhood after a long running litigation.⁸² Other successful instances include the Yarra River in Australia in 2017,⁸³ all rivers in Bangladesh in 2019,⁸⁴ and the Magpie River in Quebec, Canada in 2021.⁸⁵ Given that these are all within the past decade, they illustrate the changing potential acceptance in the mainstream legal system of giving nature legal personhood. Notably, these examples are all rivers – highlighting the importance of this resource for drinking water, fish, and connecting ecosystems, and the generation of renewable energy.⁸⁶

The Whanganui River is a helpful case study regarding how advocacy can affect change and create government action. In 2017, the New Zealand government legislated the settlement of the Whanganui case into law with the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017.⁸⁷ The legislation gives the river personhood and also sets up a stewardship council for the river:

12 Te Awa Tupua recognition
Te Awa Tupua is an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements

14 Te Awa Tupua declared to be a legal person
(1) Te Awa Tupua is a legal person and has all the rights, powers, duties, and liabilities of a legal person

18 Establishment, purpose, and powers of Te Pou Tupua
(2) The purpose of Te Pou Tupua is to be the human face of Te Awa Tupua and act in the name of Te Awa Tupua⁸⁸

Notably, provision 12 includes the metaphysical elements as well as the physical. This draws on the Māori beliefs and advocacy that were crucial in making the personhood of the Whanganui River a reality.⁸⁹ Having such an element as part of the natural entity’s rights shows New Zealand’s emphasis towards reconciliation. It also illustrates a worldview that is different from many Western views, but that could perhaps help make a stronger case for nature to have rights. Like the idea of Mother Earth, personifying nature and accepting that it has elements to it beyond the physical, may be a view that helps people understand the interconnectedness of humans and the planet.

Section 14(1) is where personhood is granted to the river. The wording in the provision is clear and strong – there is no room for ambiguity. By choosing to legislate with the words “is a legal person” and “has all the rights…”, the New Zealand government is making a firm commitment to the rights of nature. Using words with clear meanings instead of ones with some discretion (e.g., “may have the rights”) illustrates the acceptance of a natural entity having rights.

Section 18 provides for Te Pou Tupua, which will “be the human face” of the river. Since nature cannot make decisions for itself, it is essential that a human stewardship council (or guardian) is established. The functions of the Te Pou Tupua are legislated in detail and include acting and speaking on behalf of Te Awa Tupua and “to promote and protect [its] health and well-being”.⁹⁰ The stewardship council for the Whanganui River includes two representatives, one nominated by the iwi, and one nominated by the Crown. Thus, both an Indigenous perspective and a government perspective are represented in Te Pou Tupua.

The “Te Awa Tupua” has 126 provisions. It is a highly detailed piece of legislation. It is inextricably interwoven with many other pieces of legislation. Giving nature legal rights and legal personhood is not a simple process but rather involves a high level of detail. Such detail is a positive aspect of the legislation, but it also raises the questions about the ability to scale this type of legislation. In the six years since the river has been given legal personhood, decisions about and around it have shifted to an approach that is “sensitive to local knowledge and contexts and provide[s] for the direct participation of local actors”.⁹¹

Will governments be willing to expend the resources on similar legislation when they feel constrained by their budgets? How will they address more natural entities getting rights and the financial resources that must go towards implementing and upholding these rights? These questions will be addressed further in the Scalability section of the paper regarding the challenges of scaling the public trust doctrine and rights of nature movement.⁹²

c. More Examples of the Rights of Nature in Legislation

There are more and more references to nature as “Mother Earth” and to the idea of conserving nature for the sake of nature in domestic laws and international law instruments. Whether in preambles or provisions themselves, having this language present helps to shape the importance of valuing Earth and all the nature/plants/animals it entails. In 2008, Ecuador enacted a new constitution which includes a section on the rights of nature and will be discussed below, as intersecting with the public trust doctrine.⁹³ Bolivia’s The Law of Mother Earth is an excellent example of a country enshrining the rights of nature at a national scale.⁹⁴ The Paris Agreement includes reference to “Mother Earth” in its preamble.⁹⁵ There are also international law documents that focus specifically on the idea of Earth having rights. Although they are not ratified, so they are “soft law”, both the “Earth Charter” and the “Universal Declaration for the Rights of Mother Earth” are strong examples of how rights of nature have been included in international law documents.⁹⁶

The “Universal Declaration for the Rights of Mother Earth” was created at the World People’s Conference on Climate Change and the Rights of Mother Earth in Bolivia in 2010.⁹⁷ It clearly sets out the rights for Mother Earth (which encompasses nature):

Article 1. Mother Earth
(1) Mother Earth is a living being.
(2) Mother Earth is a unique, indivisible, self-regulating community of interrelated beings that sustains, contains and reproduces all beings.

Article 2. Inherent Rights of Mother Earth
(1) Mother Earth and all beings of which she is composed have the following inherent rights:
(a) the right to life and to exist;
(b) the right to be respected;
(c) the right to regenerate its bio-capacity and to continue its vital cycles and processes free from human disruptions;
(d) the right to maintain its identity and integrity as a distinct, self-regulating and interrelated being;
(e) the right to water as a source of life;
(f) the right to clean air;
(g) the right to integral health;
(h) the right to be free from contamination, pollution and toxic or radioactive waste;
(i) the right to not have its genetic structure modified or disrupted in a manner that threatens its integrity or vital and healthy functioning;
(j) the right to full and prompt restoration for violation of the rights recognized in this Declaration caused by human activities;
(2) Each being has the right to a place and to play its role in Mother Earth for her harmonious functioning.
(3) Every being has the right to wellbeing and to live free from torture or cruel treatment by human beings.⁹⁸

The declaration brings to the forefront what would have been “a previously unconceivable cause.”⁹⁹ Rights for nature are clearly laid out directly and without any question. Mother Earth is granted rights both positively (as in “the right to life and to exist”) and negatively (as in “the right to be free from contamination”). These rights very much align with established international law principles such as the prevention principle. They also illustrate a duty to nature on the part of humans, similar to the duty of the public trust doctrine that ensures the land is kept for the benefit of citizens. Not only does Mother Earth have these rights, but as humans we have a responsibility to ensure that they are respected. Despite a 2011 campaign to the United Nations, the “Universal Declaration for the Rights of Mother Earth” has yet to be implemented (and in fact may never be).¹⁰⁰ That being said, twelve years ago there was already this momentum, so perhaps a new campaign today with the recent rights of nature victories could garner more success.

IV. How the Public Trust Doctrine and the Rights of Nature Movement can Intersect for More Eco-centric Environmental Protection

[I]n reality there are still few ethical barriers in our societies against widespread destruction and degradation of nature, at least as long as the purpose of the degradation is economic development and human well-being in the short term. – Hans Christian Bugge¹⁰¹

Both the public trust doctrine (in an environmental context) and the rights of nature movement have an underlying emphasis on conservation. Hans Christian Bugge describes the idea as the rule of law for nature which “requires an expanded concept of justice and fairness, which includes the non-human world.”¹⁰² How we treat nature is an ethical question – this has been noted over and over again by scholars, environmental lawyers, scientists, and philosophers.¹⁰³ So how can these two concepts work together in order for international law protections to better reflect a human ethos that respects and appreciates the environment?

Although the public trust doctrine has traditionally been regarded as a way to protect land for current and future generations of humans, it also can and has been applied to nature, as can be seen in the “Mono Lake” case. This fits into a model of intergenerational equity that is not wholly focused on humans, but also on nature. Thus, instead of the public trust beneficiaries being the current and future generations of humans, we might think of them as encompassing all beings and nature on Earth. This would include humans, but also provide intergenerational equity to plants, animals, rivers, lakes, and so on. Instead of ensuring that the trust protects the environment for people, it would encompass a much larger scope which would draw more attention to the need for environmental protections. If more aspects of nature are granted legal rights, it may be easier for them to also be in the public trust for their own benefit (and vice versa).

a. Using the Public Trust Doctrine and the Rights of Nature Together in Litigation

The 2018 case, Future Generations v Colombia Ministry of Government and others, is an excellent example of the public trust doctrine and the rights of nature being argued together in an environmental protection context.¹⁰⁴ The case involved twenty-five youths who decided to sue the Colombian government (as well as local municipalities) for the deforestation of the Amazon Rainforest. The youth plaintiffs won by arguing the public trust doctrine for intergenerational equity and the rights of the Amazon Rainforest.¹⁰⁵ The Court made a strong assertion towards the idea of social justice, which is inherently related to environmental justice:

We are obligated to stop exclusively thinking about our self-interest. We must consider the way in which our daily actions and behaviors affect society and nature. […] we must shift from “private ethics,” focused on private goods, to “public ethics,” understood as the implementation of moral values that aim to achieve a particular notion of social justice.¹⁰⁶

The highest court in Colombia stated the importance of considering how nature is affected by our daily actions. The judiciary in this case is embracing legal values that are about more than just humans, but instead about the Earth as a whole. “Future Generations” was not just about the short-term effects, but how these effects would implicate the country in the medium- and long-term.¹⁰⁷ Furthermore, the precautionary and preventative principle may also be at play in this quote, even though the judges do not explicitly state as such, it could be interpreted as meaning humans should not participate in daily activities that negatively affect the environment or those that have a risk of such negative impact.

The Court in “Future Generations” also emphasized that “environmental rights of future generations are based on the (i) ethical duty of the solidarity of the species and (ii) on the intrinsic value of nature”.¹⁰⁸ The ethical duty relates back to the idea of intergenerational equity being a possibility between species (and I would argue nature) and not just humans. By using the public trust doctrine alongside the rights of nature, and recognizing the intrinsic value of nature, the judges are putting humans and the Earth on the same – or at least close to the same – level. It is a judicial philosophy that emphasizes that there should not be such a hierarchy in how we live our lives (i.e., humans are not necessarily at the top of the pyramid).

There are a couple of ways that the rights of nature and the public trust doctrine can be used in litigation. As in the “Future Generations” case, they can be used in tandem. Putting nature in the public trust does not preclude it from also having its own rights or personhood. Another way they could be used together in litigation is an alternative argument. For example, it could be argued that the dual doctrines apply and, in the alternative, the public trust doctrine (as it is currently) applies.

b. Public Trust Doctrine and the Rights of Nature Intersecting in Legislation

In 2008, Ecuador became the first country in the world to grant constitutional rights to nature.¹⁰⁹ Chapter Seven of the country’s constitution details the Rights of Nature. These include the right for nature to exist, the right for nature to be restored, that the state will use preventive/restrictive measures when needed to curb environmental degradation, and the right for persons to benefit from the environment. Neither rights of humans nor rights of nature are subordinate to one another in Ecuador’s Constitution; instead, the two operate in harmony.¹¹⁰ Article 71 and Article 74 illustrate the way in which the rights of nature and public trust doctrine can be used together in legislation:

Article 71. Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.

All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature. To enforce and interpret these rights, the principles set forth in the Constitution shall be observed, as appropriate.

The State shall give incentives to natural persons and legal entities and to communities to protect nature and to promote respect for all the elements comprising an ecosystem.

Article 74. Persons, communities, peoples, and nations shall have the right to benefit from the environment and the natural wealth enabling them to enjoy the good way of living.¹¹¹

Much of the research and writing on the Ecuadorian Constitution has highlighted the rights of nature aspect.¹¹² It is undeniably a momentous step forward in the movement and the acknowledgement of these rights. However, the provisions also highlight how the rights of nature movement can be used alongside the public trust doctrine. Although Article 74 does not explicitly state that it is the public trust doctrine, it is arguably an example of its implicit use. It does not specify for future generations, however with the use of words such as “communities” and “nations”, it can be implied that the benefit is not just for the current population, but those to come as well. While Article 74 is focusing on humans, when read along with Article 71, there is perhaps another interpretation. Article 71 speaks of “Nature, or Pacha Mama”; it personifies nature.  Therefore, when Article 74 mentions “persons”, perhaps Pacha Mama could be included within this category. Although it may not have been the intention of the Ecuadorian government, interpreting the statute in this way could show how the idea of the rights of nature and the public trust doctrine can intersect to create more fulsome eco-centric protections. If Pacha Mama has the right to benefit from the environment, does that not mean that all of nature has the intrinsic right of its own self-benefit? If the courts are willing to interpret the statute in such a way, then there is a serious potential for it to create even stronger eco-centric protections.

c. Challenges of the Public Trust Doctrine and the Rights of Nature Movement Intersecting

Inevitably, there are challenges when using the public trust doctrine and the rights of nature movement together. While these challenges are not irreconcilable, they must nevertheless be addressed. Three primary challenges will be discussed. The first is reconciling the fact that the public trust doctrine comes from property law (and is a property law doctrine) with the concept of the rights of nature, which argues for things in nature to be considered as legal persons, as opposed to property. The second challenge is practical implementation and scalability. The successes in both of these require some sort of stewardship council/guardianship. On a smaller scale, this is reasonable and possible to oversee, however as they become more common and are applied to larger parts of nature, it will almost certainly become more difficult to have effective stewardship councils/guardians unless there are systems in place that allow for them to be so. Finally, there is the challenge of mainstream acceptance. From the judiciary, from governments, and from societies as a whole, there will need to be a change of perspective. We do not need to completely abandon a human-centric model. However, there needs to be more room for perspectives and ideas that challenge this and highlight the importance of the Earth for the sake of the Earth and all beings – including humans – and nature that are a part of it. This may require a fundamental shift in the way we approach environmental problems and consumption, but it will likely go both ways. More use of eco-centric legal theories and movements may make it easier for people to accept these changes. And the more people accept – or even embrace – these changes, the more likely they will be to show up in the legal system.

i. The Property Problem

The rights of nature is about giving rights and legal personhood to what would have traditionally been considered property and the public trust doctrine is about holding property and nature for the benefit of the public. Therefore, there is some obvious tension between the two. On the Earth, almost every morsel of land is owned by humans, either privately or by governmental entities.¹¹³ Property has a price and large importance in our societies; it tends to mean wealth. For generations, land has been equated to financial benefit. Of course, this is not necessarily an inherently negative aspect of society (and it is one that is unlikely to be easily changed). Property can be sold and bought and can bring people the possibility of wealth accumulation. In a capitalist society, property is power. However, the nature that is being conserved is best not thought of as property. As Judge Trinidade points out, “environmental goods are not mere commodities, and risks cannot be assessed by means of cost-benefit techniques only.”¹¹⁴ If we rely on the idea of property for the environment, it is likely that the economic cost to keep land in the public trust or give it rights – especially at the moment that the decision is being made – might not be “worth it”.

How then can we reconcile the public trust doctrine in which nature (property) is held for the public benefit by governments and the rights of nature movement, where nature has rights for its own intrinsic value and is legally a person? Perhaps since the public trust “requires management strictly for the public benefit rather than for private exploit or political advantage”,¹¹⁵ the two theories can operate side by side despite this tension. Accepting that they do not converge perfectly on the concept of property does not mean that the public trust doctrine and the rights of nature cannot work together.

ii. Implementation and Scalability

As illustrated in the example of the Whanganui River, there is a need for a stewardship council or guardian when nature is given personhood. In the public trust doctrine, it is the government who is responsible for holding nature in the public trust.¹¹⁶ It is critical that there is potential for scalability in the public trust doctrine and the rights of nature movement to protect more of nature, including nature that crosses state boundaries. However, governments will need to allocate funding to these stewardship initiatives to ensure that there is appropriate governance, and that litigation can occur when required. Furthermore, the stewardship councils that are created will need to be enduring. Likely, specific and detailed legislation, like the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, will need to be enacted. The current examples of legal personhood for nature exist within states and do not cross transboundary lines. However, as more of nature is protected in this way, it is likely that much of it will cross these state lines. Could bilateral or regional treaties be effective for governing nature that transcends state lines? How would the division be in, for instance, the case of a river that flows through multiple states?

Transboundary watershed commissions are one potential guardian (or steward). For example, the International Joint Commission was created by the United States and Canada to address the ways in which each country’s actions in border rivers and lakes may affect others. It is guided by the bilateral Boundary Waters Treaty, which was signed by the two states in 1909 and has continued to evolve and remain useful in the years since even though “the Treaty and the IJC are designed for conditions far removed from present concerns”.¹¹⁷ According to its website, the Commission works by having “[t]he two countries cooperate to manage these waters and to protect them for the benefit of today's citizens and future generations.”¹¹⁸ Thus, within the language it uses, the public trust doctrine and intergenerational equity are already present. If these types of commissions (perhaps beyond transboundary water, and into other areas as well) can progress and accept nature as having rights, then they could be the ideal guardians. They already exist in many cases and already have frameworks in place for transboundary oversight of nature.

iii. Public (and Judicial) Acceptance

There is no doubt that law is often slow to change. Although legal systems can have a big impact, they are rarely the first part of society to make a shift. How do we make the shift to a wider variety of legal minds accepting the concept that nature should be on equal footing to humans? Or, that we should be protecting the Earth for its own sake – not necessarily our own. In many ways, this is a public relations issue. Humans are naturally self-centred. Until we can develop ways to change this anthropocentric point of view, there may be difficultly in gaining general acceptance for these legal theories. Although we can make reasonable assumptions about what future generations may require based off history and societies of today, it is nevertheless a prediction.¹¹⁹ Particularly in the context of protecting nature and giving it rights, even what society believes is important for nature and ecosystems to thrive and be preserved is unknown; science is constantly evolving.

Furthermore, there is also the challenge of development along with these legal theories. Countries that have not had as much of a chance to develop should not necessarily be unable to do so. Sustainable development must still allow for development. Additionally, how could we balance the idea of the rights of nature in developed countries? How far do we go in deciding what should be given rights and what should be conserved for future generations? Does every tree qualify or are there criteria that must be met? How can these criteria be determined on a national and international scale? These are difficult questions that likely do not have a single answer. However, the more discussion and acceptance there is of legal theories that put the Earth first, the more likely that governments and the general public will put the Earth first too. After all, the benefits of this are ultimately for the generations to come, both for humanity and for all beings and natural entities on the planet.

There is potential for change and acceptance of the public trust doctrine and the rights of nature movement through international tribunals and the International Court of Justice. If there is an emphasis on future generations in these areas, then the proposition that “[i]nternational law ought to promote intergenerational justice defined as ensuring the protection of the core human rights of future generations” could become accepted.¹²⁰ Furthermore, it could perhaps be expanded, using a more eco-centric approach, to include not just the rights of future generations of human rights (including the environmental rights that are part of this), but future rights of nature too. However, it will take judges who adopt an activist approach to their reasoning to bring in these principles more fully. As David VanderZwaag notes, the International Court of Justice has not expanded upon international environmental law principles as fully as they need to.¹²¹ Perhaps, cases involving the rights of nature and public trust doctrine together will give them an opportunity to do so.

V. Conclusion

Whether the public trust doctrine and the rights of nature can be successfully and cohesively used relates to the values underlying our legal system (both domestically and internationally). What is the basis of our laws and what are the purposes of our laws? Judicial decisions and legislation may bring us closer to eco-centric protections, however this will likely also require fundamental shifts in the priorities of individuals, states, and international law organizations. Using the public trust doctrine and the rights of nature together may better strengthen environmental protections by focusing on the intrinsic value of nature and why it should be conserved for the sake of the planet. Protecting the Earth’s health ultimately serves humans as citizens of the Earth. The climate movement has the potential to shift political mindsets.¹²² Practical steps and ways to implement these two legal concepts will be important moving forward. For example, how can the rights of nature be better implemented on larger scale nature. If a sea is given rights, who will hold the benefit of it an ensure that it continues for generations to come? The more that these ideas are advocated for, included in legislation, and implemented, the closer we may get to an Earth where humans and nature live in harmony.

Endnotes