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Rights of Nature, Legal Personality, and Indigenous Philosophies

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Abstract

This article investigates the relationship between legal personality for nature and indigenous philosophies by comparing two cases: the Ecuadorian Constitution of 2008 and the 2014 Te Urewera Act of Aotearoa, New Zealand. Through these case studies, the article considers the nature of indigenous relations with the concept of rights of nature, arguing that this relation is primarily strategic, not genealogical. The article engages with the concept of legal personality and shows that it is not a direct translation of indigenous conceptions, but rather a potential straitjacket for indigenous emancipatory politics. The radical character of indigenous ontologies is not fully reflected in the concept of legal personality. Furthermore, the way in which rights are granted to the natural environment is an important part of the effect such rights might have on indigenous communities. Despite some affinities between rights of the environment and indigenous philosophies, overstating the connection might constrain the radical political and legal implications of indigenous thought.

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... Take the practice of Ecuador as an example. It is the world's first country to include RoN in its constitution, but the wide variation in outcomes between its extant RoN cases reveals "the problems inherent in a formulation of nature's rights based on a universal subject" [89], and also indicates that for RoN to produce real environmental impact, certain obstacles such as politicization must be overcome first [90] (p. 138). ...
... Third, even if the RoN approach is effective to a certain degree, it cannot persuasively demonstrate that tort law alone is sufficient for environmental remediation, for the majority of existing RoN cases are not based on tort law, but on constitutional law or administrative law. What is more important is that the legislation on RoN, such as that of Ecuador and New Zealand, is founded in a specific political context, and is considered as "a historically contingent experiment in the ongoing pursuit of greater indigenous political authority" with no environmental results embedded in it [89] (pp. 446, 452). ...
... Even French law is seeking to overcome the challenges that these issues present [135] (pp. [88][89][90][91][92][93][94][95][96]. Such a situation leaves much space for the role of the environmental law system. ...
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The recognition of the intrinsic value of the environment and natural resources contributed to the establishment of liability for damage to the environment per se, which, coupled with the traditional environmental tort liability, constitute the double facets of environmental civil liability. Although the two facets share some common characteristics, their distinct focuses indicate that they cannot be fully covered by tort law or environmental law systems alone. As a result, an international trend toward the regulatory approach to environmental civil liability, which is referred to in this article as the “separate-regulatory paradigm”, is emerging. In such a pattern, as followed by the United States (US) and the European Union (EU), environmental tort liability and liability for environmental damage are mainly regulated by tort law and environmental statutes, respectively. However, China, relying substantially on its civil law system to address liability for environmental harm, seems to deviate from this paradigm. This article analyzes the significance of the separate-regulatory paradigm and argues that it has profound implications for China. This article suggests a separate statutory liability scheme that moves beyond the existing Chinese civil law framework to achieve the full recovery of environmental damage.
... Firstly, rights-of-nature is a normative and urgent call for changing how contemporary societies relate to nature (Knauß, 2018). Secondly, rightsof-nature supports "traditional" cosmovisions and indigenous people's governance over their territories (Kinkaid, 2019;Tȃnȃsescu, 2020). These aims tie together ecological and social justice concerns (Acosta, 2010), even if the former is treated as primary, as social justice concerns are partially embedded into ecological justice. ...
... Rights-of-nature conceptualisation, meanwhile, foregrounds nature's intrinsic value and ecological justiceor justice for nature(s) (Acosta, 2010;Chapron et al., 2019). The approach is also tightly connected to social justice, as it supports indigenous peoples' territorial claims and "traditional" cosmovisions (Kinkaid, 2019;Tȃnȃsescu, 2020). ...
... For instance, the inviolable use rights associated by the respondents with rights-to-nature could be re-interpreted to guarantee not only access to a forest, but its existence. The rights-of-nature conceptualisation, meanwhile, could challenge the existing land ownership structures particularly in Upper Lapland, supporting indigenous peoples' territorial claims similarly as elsewhere that the transnational discourse has been mobilised (see Sarjas, 2020;Tȃnȃsescu, 2020). However, for the rights conceptualisations to acquire more radical content and broader local support, political mobilisation would likely be required to shift the common sense. ...
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Forests, and the politics around them, are posited both as a cause of and solution to the contemporary ecological crisis. This paper explores how rights to forest and rights of forest conceptualisations can re-articulate, and potentially challenge, the problematic dominance of capitalist forest politics in Northern Finland and beyond. Conceptually, the paper combines the debates on rights-to-nature and rights-of-nature. Rights-to-nature is concerned with how people can access and use nature to support their lives. Rights-of-nature, meanwhile, highlights the nature’s intrinsic value and the rights of indigenous peoples. Combining the two perspectives might allow imagining politics of nature that is both ecologically and socially just. Empirically, the paper studies forest politics in Tornio River valley in Northern Finland through an ethnographic case study. The rights-to-nature conceptualisation associates locally with the existing use rights and ownership rights. Rights-to-nature may guarantee access to a forest, but it does not guarantee its existence. Rights-of-nature, meanwhile, associates with strong conservation, nature’s power, and indigenous land rights. However, also the rights-of-nature conceptualisation is unlikely to challenge the gradual degradation of most Northern forests, as these “boring” forests lack both recognised human stewardship and intrinsic value. Thus, in the study area the rights conceptualisations do not decisively challenge the existing forest politics, even if the framings can acquire a more radical content. Overall, this paper shows that transnational rights discourses and conceptualisations entangle with local common senses. Factoring in the local understandings is essential for re-articulating politics of nature that could receive broad local support.
... RoN might themselves be a way to settle property disputes (Sanders 2018), while environmental results are not always the motivation behind actual legislation (Tănăsescu 2020). In other words, we are witnessing a veritable fanning out of RoN practice and, consequently, scholarship. ...
... The rights of nature are often presented as ecocentric, as are indigenous philosophies. As I have argued in Tănăsescu (2015Tănăsescu ( , 2016Tănăsescu ( , 2020, this is an assimilation of indigenous thinking into western philosophical centrism and is not, in fact, reflective of either the multiplicity or the radical difference of indigenous worlds. Instead, indigenous philosophies could be understood as relational, and many do not possess a figure of "nature" as the external pole of "humanity," either to be protected for its own sake (ecocentrism) or for instrumental reasons As this chapter has already begun to argue, the assumptions behind the ideal of harmony with nature are neither universally applicable to all RoN cases, nor the most logical ones given the legal history of the concept of rights. ...
Chapter
This chapter argues that any examination of the legal status of natural entities must be conducted and understood in the particular context of a particular political struggle. In light of the political context, it may or may not make sense to appeal to rights for nature. The chapter argues that the purpose of granting rights to the environment cannot be thought abstractly or deduced from pre-existing norms, and illustrates this with an analysis of the case of Te Urewera, Aotearoa New Zealand.
... Even if fragmented, at times limited, and dependent on specific contexts, there are increasingly evident impacts of environmental constitutional provisions, through judicial, executive European, male property-owner, which reaches its 'apotheosis' in the corporation as juridical person', as part of a 'juridical reconstruction and reanimation of the non-human within a modernist rights frame' given the limitations of rights discourse as applied to humans. 75 Tănăsescu (2020), pp 431-434; Coombes (2020). 76 Marshall (2019) Daly and May (2018), p 1 and Geller (2015). ...
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Laws that recognise rivers and their ecosystems as legal persons or subjects with their own rights, duties and obligations have been associated with theories of environmental constitutionalism. However, the extent to, and manner in which, constitutional law (with its elevated status) has been instrumental in the conferral of these ‘riverine rights’ is still not well-understood. In this article, we consider the constitutional relevance of the recognition of rivers as legal persons or subjects in Aotearoa New Zealand, Colombia and India. We argue that in these three countries riverine rights are constitutional experiments: as small-scale, ad hoc and ultimately incomplete attempts to transcend seemingly ineffective regulatory frameworks for rivers. However, they are also incremental, and influential, steps in a broader project of more fundamental social and environmental reform.
... A biosociety is defined as an organized set of individuals who base their lives on learning, managing, and experimenting with the biotic resources of a territory. Nature is perceived as a "somebody", so the relationships that are established are ones of respect [52]. As part of the social structure, rules, and behaviours, a biosociety does not differ from a society based on an anthropocentric approach, but it does have the particularity that needs are satisfied based on the knowledge obtained from its interaction with the biodiversity existing in the territory. ...
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The objective of this study is to explore the strengths of indigenous food systems in Latin America within the framework of effective food policies. The analysis is based on the adaptive capacity of human beings, and, in this logic, it considers the food systems of Latin America to be relevant since in the face of challenges, such as climate change and the COVID-19 pandemic, indigenous peoples have been able to establish response strategies. However, beyond these responses, we find a region that has assumed a biopolitical stance with a tendency to design control policies in response to the pandemic. This situation has not improved the inequalities and vulnerabilities of a sector of the indigenous population in Latin America. The aforementioned challenges give a clear picture of the strengths of the region's indigenous people, and knowledge of this interactive dynamic can provide elements for the design of food policies. In this sense, an exhaustive literature review was carried out in order to approach the state of the art of the issue. The analysis was derived from three analytical categories that in synergy and from an open innovation perspective, make a proposal for the design and implementation of effective food policies that allow a region to learn from local indigenous experiences in a context of food insecurity.
... 101 Natures' rights, however, particularly in Ecuador, have been criticized as endorsing a singular, universalized Nature that merely reifies Western understandings of the world beyond the human. 102 If indeed this was lawmakers' original intent, there is now, instead, considerable evidence of many distinct naturecultures asserted when natures' rights are ecocentrically invoked to affirm territorially grounded life projects. Subaltern struggles have used rights-based legal claims to protest and combat the harms caused by extractivist development and industrial capitalist agriculture to the multi-species communities in which they live. ...
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In a decolonial determination to resist the modern ontological separation of nature from culture, political ontologies and posthuman legalities in Andean Community countries increasingly recognize natural and cultural forces to be inextricably interrelated under the principle of the pluriverse. After years of Indigenous struggles, new social movement mobilizations and citizen activism, twenty-first century constitutional changes in the region have affirmed the plurinational and intercultural natures of the region's polities. Drawing upon extensive interdisciplinary ethnographic research in Ecuador and Colombia, the article illustrates how Indigenous, Afro-descendant and campesino communities express multi-species relations of care and conviviality in opposition to modern extractivist development through the concept of buen vivir. These grassroots collective life projects and life plans articulate rights 'from below' to support new practices of territorialization that further materialize natures' rights and community ideals. Although human rights have modern origins, the implementation of third generation collective biocultural rights to fulfill natures' rights may help to materially realize community norms, autonomies and responsibilities that exceed modern ontologies. The ecocentric territorial rights struggles and posthuman legalities we explore are examples of a larger emergent project of decolonizing human rights in a politics appropriate to the Anthropocene.
Article
A study of the rights regime for environmental protection in India indicates that such protections overlap with constitutional rights guaranteed primarily to citizens or persons under the law. Contemporary jurisprudence has aggressively developed this intersectionality, declaring natural entities to be living persons with fundamental rights analogous to those of human beings. This article explores the role played by two judgments delivered by the Uttarakhand High Court – Mohammed Salim v. State of Uttarakhand and Lalit Miglani v. State of Uttarakhand – in the establishment of an effective framework for environmental protection. This is effectuated in both cases by assigning legal personality to rivers and articulating a conceptual shift from the human-centric approach. Accounting for the socio-cultural and spiritual relationships that have received legal protection, this article critically analyzes the judgments, their rationale and contributions to environmental protection. As the judgments articulate a paradigm shift in environmental protection, their effectiveness is best assessed through analyzing the frameworks created for their implementation. While the pronouncement of the Indian courts on the legal personality of rivers is an encouraging paradigm shift in environmental commitment, establishing the rights of nature was undertaken without due attention to the complexities that characterize the Indian socio-politico-religious context and to the legal consequences of bestowing vaguely contoured rights upon natural entities.
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The multi-species turn is generating significant new opportunities for rethinking theories of justice. However, these efforts to think beyond anthropocentric approaches to justice often sit uneasily alongside the concerns of more human-centered social justice movements. Closely engaging a recent paper that outlines a research agenda for this emerging field, I argue that to take seriously the question of how to build counter-hegemonic coalitions that might ultimately be capable of translating these approaches into durable institutional forms, it is important to more fully engage Indigenous and critical race scholarship while at the same time more carefully attending to the tensions and frictions between them. Both raise questions about the ontological and political priorities of multi-species activists that deserve significantly further engagement. I advance this argument by means of short illustrative snapshots of recent debates within movements for the rights of nature in Australia and the United States.
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Since the momentous release of the Montecristi Constitution of Ecuador in 2008, which recognised Nature, or Pacha Mama, as a subject of rights, the rights of Nature movement across the world has gained exponential momentum, with numerous jurisdictions worldwide now recognising some form of legal subjectivity vested upon Nature. In particular, since 2017, river personhood has dominated news headlines around the world as one of the most recognisable forms of Nature’s novel subjectivity. The emergence of legal personhood for nature, however, has been far from uncontroversial, and numerous critiques have been advanced against the use of such a legal category – traditionally applied to humans and their abstract creations (such as States and corporations) – to the natural world, resulting in numerous calls for an alternative category of legal personhood (one that some rights of Nature advocates have termed an ‘environmental person’). Against the backdrop of this emerging debate, this paper acknowledges the work undertaken by the Martuwarra Fitzroy River Council (Martuwarra Council), which was established in 2018 in the Kimberley region of Western Australia by six independent Indigenous nations to preserve, promote and protect their ancestral River from ongoing destructive ‘development’. The Council believes it is time to recognise the pre-existing and continuing legal authority of Indigenous law, or ‘First Law’, in relation to the River, in order to preserve its integrity through a process of legal decolonisation. First Law differs markedly from its colonial counterpart, as its principles are not articulated in terms of rules, policies and procedures, but rather through stories. This paper, therefore, begins with a dialogical translation of one First Law story relating to Yoongoorrookoo,¹ the ancestral serpent being,² to create a semantic bridge between two apparently distant legal worldviews. A dialogical comparative analysis is then followed to posit and explore the concept of an ‘ancestral person’ as a novel comparative tool that may be able not only to capture the idea of Nature as a legal subject, but also complex Indigenous worldviews that see Nature – in this case instantiated in the Martuwarra – as an ancestral being enmeshed in a relationship of interdependence and guardianship between the human and the nonhuman world. To instantiate and embody such relationships, the paper directly, and somewhat provocatively, acknowledges the River itself, the Martuwarra RiverOfLife, as the primary participant in such dialogue, an embodied non-human co-author who began a conversation then left to human writers to continue.
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Extract At the end of the 2015 Academy Award-winning film The Big Short, which explores the origins of the 2008 Global Financial Crisis, a caption notes that the Wall Street investor protagonist of the film who predicted the collapse of the United States (US) housing market would now be ‘focused on one commodity: water’. Water is sometimes described in popular culture as ‘the new oil’ or ‘more valuable than gold’. It is predicted to be the subject of increasing uncertainty, competition, conflict, and even war, as increasing demand from a growing human population and development meets reduced supply as a result of poor management, overuse, and climate change.
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In this text I investigate the increasing usage of the Rights of Nature to approach the task of Stewardship for the Earth. The Ecuadorian constitution of 2008 introduces the indigenous concept of Pachamama and interpretes nature as a subject of rights. Reflecting the two 2017 cases of the Whanganui River (New Zealand) and the Gangotri and Yamunotri Glaciers (India), my main argument is that, although the language of individual rights relies on modern subjectivity as well as the constitutionalism of the secular nation state, it is obviously seen as a trans-cultural tool to justify Human Stewardship over the Earth in the Age of Anthropocene. I argue that the new Rights of Nature debate “provides” a straightforward justification of the Stewardship for the Earth and it includes two moments aimed to transcend European Modernity. The Rights Approach justifies obligations towards nature beyond human interests and it appeals to indigenous knowledge as an alternative sphere of argumentation. The relation of this endevor to the Anthropocene is twofold: The indigenous worldviews can now be translated into Rights of Nature because of the two core items of the Anthropocene that are gaining more and more acceptance: the idea of the Earth as a system and of history as a non-linear process. The scientific description of the Earth system offered by the Anthropocene supports holistic narratives of the Rights of Nature and facilitates the recognition of non-Western worldviews. At the same time the Rights of Nature help to clarify the normative claims implicit in the Anthropocene because the integrity of natural items and processes is presented as the explicit reason for a responsible human stewardship towards the Earth.
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International environmental law (IEL) has been unable to respond effectively to the Anthropocene’s global socio-ecological crisis, which is critically existential and requires radical interventions and regulatory reform. This article explores the potential of the recent United Nations (UN)-backed initiative to adopt a Global Pact for the Environment as an opportunity to reform IEL. It does so by (i) reflecting on the Anthropocene’s demands for a constitutionalized form of IEL through the lens of global environmental constitutionalism; (ii) investigating the extent to which the Global Pact could contribute to such a vision; and (iii) suggesting ways in which to strengthen the constitutional potential of the Global Pact in this endeavour. To this end, the article revisits the World Charter for Nature of 1982, which seems to have slipped off the radar in academic as well as policy circles. A case is made for renewed support of the Charter – which already enjoys the backing of the majority of UN General Assembly member states, and which has constitutional qualities – to serve as a ‘best-practice’ example during the ensuing negotiation of the Global Pact.
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Governments around the world are adopting laws granting Nature rights. Despite expressing common meta-norms transmitted through transnational networks, rights of Nature (RoN) laws differ in how they answer key normative questions, including how to define rights-bearing Nature, what rights to recognize, and who, if anyone, should be responsible for protecting Nature. To explain this puzzle, we compare RoN laws in three of the first countries to adopt such laws: Ecuador, the US, and New Zealand. We present a framework for analyzing RoN laws along two conceptual axes (scope and strength), highlighting how they answer normative questions differently. The article then shows how these differences resulted from the unique conditions and processes of contestation out of which each law emerged. The article contributes to the literature on norm construction by showing how RoN meta-norms circulating globally are infused with differing content as they are put into practice in different contexts, setting the stage for international norm contestation.
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Juridical protection of the rights of nature is steadily emerging in several legal systems and in public discourse. Building on a recent publication in Transnational Environmental Law in which we interrogated Ecuador’s constitutional experiment with the rights of nature, we critically reflect in this contribution on Bolivia’s legal regime providing for the rights of Mother Earth. We do so, first, by sketching the juridical-political context within which these statutes were drafted and adopted, and then by analyzing the relevant constitutional provisions that provide the basis for the laws of Mother Earth. The third part forms the bulk of the discussion and details the background and the most relevant provisions of Bolivian statutes with a view to enabling a deeper critique in Part 4, in which we critically evaluate both the symbolic and the theoretical significance of the statutes as well as concerns related to their practical implementation. Insofar as the rights of nature paradigm has now become a truly global debate and a consideration in transnational comparative legal borrowing practices, our analysis aims to reveal the Bolivian experience, which could be instructive for civil society groups, academics, politicians and legislatures in a transnational setting.
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As pressures on water resources increase, the demand for innovative institutional arrangements, which address the overuse of water, and underprovision of ecosystem health, is rising. One new and emerging approach is the use of legal personality to protect water systems in law through the granting of legal rights to rivers. This constitutes a significant development in the fields of environmental law and water resources management, yet little analysis is available of how the approach has been used and applied. We critically examine the new legal rights for rivers using three case studies from Australia, New Zealand, and India. We analyze how legal rights have been created in each case, and the complexity of enforcing these legal rights to protect the rivers. We conclude that legal personality could be a useful alternative approach for river management, provided that the new legal rights are given sufficient force and effect.
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Today, numerous constitutions provide for a rights-based approach to environmental protection. Based as they are on an instrumentalist rationality that seeks to promote human entitlements to nature, the majority of these rights remain anthropocentric. Although there are growing calls within academic and activist circles to reorient rights alongside an ecocentric ontology, only one country to date has taken the bold step to bestow rights on nature in its constitution. The Ecuadorian Constitution of 2008 announces the transition from a juridical anthropocentric orientation to an ecocentric position by recognizing enforceable rights of nature. This article critically reflects on the legal significance of granting rights to nature, with specific reference to Ecuador’s constitutional experiment. It first provides a contextual description of rights in an attempt to illustrate their anthropogenic genesis, and then explores the notion of environmental rights. The following part traces the discourse that has developed over the years in relation to the rights of nature by revealing aspects of an ecocentric counter-narrative. The final part focuses specifically on the Ecuadorian constitutional regime and provides (i) a historical-contextual discussion of the events that led to the adoption of the rights of nature; (ii) an analysis of the constitutional provisions directly and indirectly related to the rights of nature; and (iii) a critical appraisal of whether those provisions, so far, measure up to the rhetoric of constitutional ecocentric rights of nature in that country.
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Revisión de las principales ideas en discusión sobre el Buen Vivir. No se pretende defender una única definición del Buen Vivir y como se verá en la revisión, no es posible ofrecer una que sea aplicable a todos los casos. El Buen Vivir en este momento está germinando en diversas posturas en distintos países y desde diferentes actores sociales, que es un concepto en construcción, y que necesariamente debe ajustarse a cada circunstancia social y ambiental.
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This essay is an analysis from the Andean vision of the concept of Good Living based on the Ecuadorian Constitution, drafted in Montecristi and approved in 2008. In it, the Good Living is a right recognized along with the rights of the Nature. From the contents of this Constitution emerge multiple proposals to promote fundamental changes, built up over many decades of resistance and social struggles in which were built alternative development proposals and even alternatives to development, as is the Good living for the development of citizens and peoples.
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Resumen Las tensiones generadas cuando el concepto de buen vivir aborda la dimensión ambiental quedan en claro al comparar las nuevas constituciones de Bolivia y Ecuador. Mientras que en Ecuador se reconocen los derechos propios de la Naturaleza, y se apunta a una postura biocéntrica, la postura boliviana insiste en que un Estado debe industrializar los recursos naturales. Esto expresa la persistencia de aspectos propios de la Modernidad, con un antropocentrismo asentado en el dualismo Naturaleza-sociedad. El buen vivir necesariamente debe incorporar una dimensión ambiental, que desde el biocentrismo, le per-mita superar la herencia moderna, y transitar a otros desarrollos, con otra rela-ción con la Naturaleza, seguramente más austeros, pero más equitativos. Palabras clave: biocentrismo, buen vivir, naturaleza, modernidad. Abstract The tensions created when the concept of Living Well tackles the environ-mental dimension become clear when comparing the new constitutions of Bolivia and Ecuador. Meanwhile in Ecuador recognizes the inherent rights of nature, and points to a biocentric stance, the Bolivian posture insists that a state must industrialize natural resources. This expresses the persistence of specific aspects of modernity, with an anthropocentric dualism settled in Nature-society. Living Well must necessarily incorporate an environmental dimension, which from the biocentrism, allow it to overcome the modern heritage and transit to other developments, with another relationship with nature, certainly more austere, but fairer.
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Resumen: A partir de la Constitución ecuatoriana del 2008 aparece el nuevo concepto del Buen Vivir o Sumak Kawsay en las discusiones sobre el desarrollo. El Buen Vivir propone una vida en armonía con la naturaleza y es visto como una alternativa al desarrollo moderni­ zante. Hasta ese momento, el Buen Vivir ocupaba una posición marginal en el discurso de la sociedad y del movimiento indígena con su larga tradición de criticar el desarrollo y reivindicar la protección de la naturaleza. Recién en los años 2007 y 2008, comienza el movimiento indígena a hablar del Sumak Kawsay como un concepto único que integra su crítica al desarrollo capitalista. Este trabajo analiza cómo evolucionaron los conceptos de las organizaciones indígenas hasta la introducción del concepto del Buen Vivir, así como el papel de este concepto en el discurso del movimiento indígena. Abstract: Since the introduction of the Ecuadorian Constitution in 2008, the new concept of Good Living or Sumak Kawsay appears in discussions of development. The concept of Good Life proposes a life in harmony with nature and is seen as an alternative to modernizing development. Until now, Good Life held a marginal position in the discourse of society and the indigenous movement with its long tradition of criticizing development and demanding nature conservation. In 2007/2008, the indigenous movement started talking about Sumak Kawsay as a unique concept that integrates its criticism of capitalist development. Here we will discuss the development of the concepts of the indigenous organizations that led to the introduction of the concept of Good Living and the role that it acquired in the discourse of this movement.
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After a period of retreat, critical approaches to development are back in Latinamerica. These include some old components, many of them originated in the region (like some elements of dependency theory), with new issues (like those related to the environmental crisis), and incorporating perspectives from indigenous knowledges. Under this process emerges the current ideas of Harmonious Coexistence, a good life that is not a new instrumental development alternative, but an alternative to thewholewestern idea of development. The different approaches to Harmonious Coexistence are described, including its introduction in the new constitutions of Bolivia and Ecuador, and also the key current debates. Some perspectives are rooted in indigenous knowledges, while others are represented in marginal and critical perspectives within Modernity. Harmonious Coexistence is plural and multidimensional concept, still under elaboration. Nevertheless, these different approaches shared a common political platform, based on features like the rejection to classical developmentalism, a distinct ethics (e.g. intrinsic values in Nature), a decolonial attitude, and the prosecution of alterna tives to development. These components are described and analyzed
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Cambridge Core - Social and Cultural Anthropology - Indigenous Water Rights in Law and Regulation - by Elizabeth Jane Macpherson
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In 2014, Te Urewera, land formerly comprising a national park in Aotearoa New Zealand, was declared a legal entity. In 2017, the Whanganui River was declared a legal person. This article analyses the grant of legal personality as part of a process that seeks to acknowledge colonial wrongs to hapū and iwi, indigenous descent groups. It argues that a primary purpose of the grant is to regulate human relationships. Legal personality recognises the competing claims of the Crown and hapū and iwi to political authority and allows for the establishment of new legal frameworks, which address who is entitled to act on behalf of the land and river. The article concludes that the settlements should be regarded as constitutional in nature-the grant of legal personality provides a forum for disagreement and compromise, and the opportunity for relationships between peoples, land and authority to be reframed. © The Author(s) 2018. Published by Oxford University Press. All rights reserved.
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In March 2017, the High Court of Uttarakhand in India ruled in the Ganges and Yamuna and the Glaciers cases that the Ganges and Yamuna rivers, the Gangotri and Yamunotri glaciers, as well as other natural objects in the state of Uttarakhand enjoy legal rights. In both cases, the High Court established the natural objects as legal minors and conferred guardianship responsibilities on several individuals within the state government of Uttarakhand. These judgments create novel legal rights for nature and, as such, present powerful examples of the increasing relevance of rights-centred environmental protection. The impact of this case law, however, is uncertain. As a start, the legal rights entrusted to nature are underpinned by such broad definitions of 'harm' that it is difficult to envision successful implementation. Further, the Ganges and Yamuna case is currently stayed pending appeal to the Supreme Court, which may decide to overturn the High Court's findings. Still, these cases are important to analyse, especially in light of how constructing nature as a legal subject/legal person shifts environmental law away from public law and into the sphere of private law. Also, the Ganges and Yamuna case draws explicitly on Hinduism to support the sacred status of the Ganges and Yamuna rivers, which, in the current context of the Hindu Nationalist Movement, may prove controversial. © The Author(s) 2018. Published by Oxford University Press. All rights reserved.
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Rights of Nature, the idea of extending legal personhood to nature, is today’s most prominent alternative to mainstream environmental governance. Proponents describe Rights of Nature as a grassroots movement of diverse actors opposing commodification of life and anthropocentric dualism of western thought. In Rights of Nature, indigenous cosmologies validate holistic models of life to overcome dualities of nature and humans. We argue this move enacts a paradoxical dichotomy between the West and the rest and, in so doing, treats rights as existing outside western history. In this article, we push against the image of Rights of Nature as a global consensus converging on the inevitability of rights. Applying decolonial, black feminist perspectives on historical mobilizations of rights, we ask how rights for nature becomes rights as natural. We trace individuals, institutions, and ideas associated with Rights of Nature, conceptualized as a Transnational Policy Network. We find tight linkages among a small number of actors, mostly from the global North, who draw on western holism and jurisprudence to present nature’s rights as an indigenous and natural alternative to western development. Rights of Nature is not just connected to the same ideas of nature and law it rejects, but through these connections Rights of Nature universalizes colonial modes of existence as natural.
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In 2017, four rivers have been given the status of legal persons: the Whanganui River in New Zealand, the Ganges and Yamuna Rivers in India, and most recently, the Rio Atrato, in Colombia. This extension of legal rights to rivers is groundbreaking and largely unprecedented, and there is a great deal of uncertainty about what this novel legal development will mean in practice. For instance, the rivers have received their legal rights in different ways (via legislation or judicial decision), for different purposes (environmental protection, religious beliefs, and indigenous values) and by using different legal forms as the basis for legal rights and personhood. How will these different mechanisms translate into new legal frameworks for managing the health of the rivers into the future? This article explores this exciting new development by focusing on two examples in more detail: the Whanganui River in New Zealand and the Ganges and Yamuna Rivers, in India. Each of these examples occurred within a week of each other in March, 2017, and together, they showcase the diversity of legal mechanisms and methods used to create legal rights for rivers.
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The idea of giving rights to nature is gaining ground. Already, there are several jurisdictions where nature has a number of rights. There is even a proposal for a universal declaration granting the entire Earth at least the right to exist. Mihnea Tanasescu offers a much needed examination of the concept of giving rights to nature, as well as a first comprehensive analysis of all of the various cases to date, from municipal ordinances in the United States to the constitutional rights of nature in Ecuador. Avoiding partisanship or scorn, this book provides an honest and thorough engagement with both the theory and the practice of enlarging the concept of rights to previously unthinkable territory: nature itself.
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The weaknesses of our environmental laws stem in large part from the fact that legal systems treat the natural world as property that can be exploited and degraded, rather than as an integral ecological partner with its own rights to exist and thrive. This article analyzes the recent rise of a new generation of environmental laws which reject the ‘false dogma’ of ‘humans over nature’ and instead recognize our interconnectedness with the natural world and acknowledge its rights to exist, persist, and maintain its vital cycles. The article focuses on the transition from an anthropocentric approach, denoted by the ‘right to the environment’, to a biocentric approach constructed around ‘rights of nature’. This transition is evident in various new legal instruments – the Ecuadorian Constitution, certain Bolivian laws, and numerous ordinances of the United States – which incorporate and respect rights of nature, and grant legal rights to the natural world and enforcement rights to affected communities. These instruments serve as models for legal systems which can steer us towards more robust and effective environmental laws.
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In 2008, Ecuador became the first country in history to grant constitutional rights to nature. What is termed the indigenous symbol played a significant role in this event. The rights of nature are used as an occasion to interrogate the indigenous symbol in order to reveal what it does, as opposed to what it says. The account of the rights of nature originating in indigenous sensibilities is presented, and subsequently critiqued. The argument makes use of the notion of representative claim to show the strategic construction of indigeneity as ecologically harmonious. An alternative genesis of the rights of nature is presented. It is further showed that the indigenous symbol is employed as a veneer of moral authority hiding the strategic machinations of representative politics.
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This response highlights a confusion of categories in Marshall Sahlins’ comments between three different analytical levels: that of the modes of identification, that of the modes of aggregation, and that of the modes of relation.
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In 2008, Ecuador became the first country in history to guarantee rights to nature, in its new constitution. This article tells the story of this extraordinary moment in constitutional history, presenting a detailed description of how these rights came about, why they appeared when and where they did, and what they mean to those concerned with this innovation.
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The 'Sala de la Corte Provincial' - a provincial court in Ecuador - became the first court ever to vindicate the recently constitutionalized rights of nature. Recognizing the indisputable importance of the rights of nature for present and future generations, the court held the provincial government liable for flooding damages caused by dumping of construction debris. This judicial victory is arguably overshadowed by challenges facing the plaintiffs in seeing the court's order enforced, however. A subsequent case bears witness to the judiciary's vindication of rights of nature in Ecuador with ever increasing legal effect.
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This article locates a theoretical reflection on the form of legal subjectivity against twenty-first century complexities and pressures, including the structural complexities visible in biotechnological developments, new hybridities and numerous contemporary theoretical and practical manifestations of heterogeneity, multiplicity and complexity emerging in a range of disciplines, including cybernetics, techno-theory, post-humanism and ecology. The author defends the theoretical and critical utility of understanding the legal subject as an explicit (and explicitly limited) constructus. Criticising the constructed naturalism (and the historical and contemporary exclusions) of the 'human being' of law, the author suggests that the language and concept of the 'legal entity' (rather than that of the 'legal person') draws attention to the patterned 'gap' between law and life (and to related injustices enacted by the form of the materialisation of legal subjectivity) while simultaneously providing the degree of theoretical plasticity now required by the mutable complexities of the twenty-first century and beyond.
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Common Knowledge 10.3 (2004) 463-484 My subject is the cosmological setting of an indigenous Amazonian model of the self. I will examine two major contexts, shamanism and warfare, in which "self" and "other" develop especially complex relations. Shamanism deals with the relation between humans and nonhumans; and in warfare, a human other, an "enemy," is used to bring a "self" into existence. I will deliberately use a set of traditional dichotomies (I mean, in the tradition of modernity) as both heuristic instruments and foils: nature/culture, subject/object, production/exchange, and so forth. This very crude technique for setting off the distinctive features of Amazonian cosmologies carries the obvious risk of distortion, since it is unlikely that any nonmodern cosmology can be adequately described either by means of such conceptual polarities or as a simple negation of them (as if the only point of a nonmodern cosmology were to stand in opposition to our oppositions). But the technique does have the advantage of showing how unstable and problematic those polarities can be made to appear, once they have been forced to bear "unnatural" interpretations and unexpected rearrangements. If there is one virtually universal Amerindian notion, it is that of an original state of nondifferentiation between humans and animals, as described in mythology. Myths are filled with beings whose form, name, and behavior inextricably mix human and animal attributes in a common context of intercommunicability, identical to that which defines the present-day intrahuman world. Amerindian myths speak of a state of being where self and other interpenetrate, submerged in the same immanent, presubjective and preobjective milieu, the end of which is precisely what the mythology sets out to tell. This end is, of course, the well-known separation of "culture" and "nature"—of human and nonhuman—that Claude Lévi-Strauss has shown to be the central theme of Amerindian mythology and which he deems to be a cultural universal. In some respects, the Amerindian separation between humans and animals may be seen as an analogue of our "nature/culture" distinction; there is, however, at least one crucial difference between the Amerindian and modern, popular Western versions. In the former case, the separation was not brought about by a process of differentiating the human from the animal, as in our own evolutionist "scientific" mythology. For Amazonian peoples, the original common condition of both humans and animals is not animality but, rather, humanity. The great separation reveals not so much culture distinguishing itself from nature as nature distancing itself from culture: the myths tell how animals lost the qualities inherited or retained by humans. Humans are those...
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What is it to be a legal person? A review of the jurisprudence of persons reveals considerable confusion about this central legal question, as well as deep intellectual divisions. To certain jurists, law's person should and does approximate a metaphysical person. Depending on the metaphysics of the jurist, the legal person is thus variously defined by his uniquely human nature, by his possession of a soul, or by his capacity for reason, and therefore his moral and legal responsibility. To other jurists, law's person is not a metaphysical person but rather a pure legal abstraction; he is no more than a formal, abstract, but nonetheless highly convenient device of law. This paper endeavours to bring some order and clarity to these scholarly debates about the nature of legal personality. It also considers their implications for feminist legal theorists, with their enduring interest in the character of law's subject.
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In Latin America indigenous politics has been branded as “ethnic politics.” Its activism is interpreted as a quest to make cultural rights prevail. Yet, what if “culture” is insufficient, even an inadequate notion, to think the challenge that indigenous politics represents? Drawing inspiration from recent political events in Peru—and to a lesser extent in Ecuador and Bolivia—where the indigenous–popular movement has conjured sentient entities (mountains, water, and soil—what we call “nature”) into the public political arena, the argument in this essay is threefold. First, indigeneity, as a historical formation, exceeds the notion of politics as usual, that is, an arena populated by rational human beings disputing the power to represent others vis-à-vis the state. Second, indigeneity's current political emergence—in oppositional antimining movements in Peru and Ecuador, but also in celebratory events in Bolivia—challenges the separation of nature and culture that underpins the prevalent notion of politics and its according social contract. Third, beyond “ethnic politics” current indigenous movements, propose a different political practice, plural not because of its enactment by bodies marked by gender, race, ethnicity or sexuality (as multiculturalism would have it), but because they conjure nonhumans as actors in the political arena.
Conceptualizing Indigenous Rights in Aotearoa New Zealand
  • Erueti
A. Erueti, 'Conceptualizing indigenous rights in Aotearoa New Zealand' (2017) 27(3) New Zealand Universities Law Review, pp. 715-743, at p. 717.
In Ecuador, it has been the work of CELDF and Alberto Acosta that has been most influential. See A. Acosta and E. Martínez, 'La naturaleza con derechos: de la filosofía a la política
Part of the difference between the Ecuadorian and New Zealand provisions can be accounted for by different intellectual histories. In genealogical terms, in New Zealand, the most influential scholars in developing Stone's early work have been Jacinta Ruru and Alex Frame. See A. Frame and J. McLean, 'Property and the Treaty of Waitangi: A Tragedy of the Commodities?', in J. McLean (ed.), Property and the Constitution (Hart Publishing, 1999), pp. 224-34, and Morris and Ruru, n. 98 above. In Ecuador, it has been the work of CELDF and Alberto Acosta that has been most influential. See A. Acosta and E. Martínez, 'La naturaleza con derechos: de la filosofía a la política' (2011) Polis, Revista de la Universidad Bolivariana 10(29), pp. 479-485. From Stone spring two very different trees.
The Origin, Differentiation and Role of Rights
  • Berry
Giving Voice to Rivers: Legal Personality as a Vehicle for Recognising Indigenous Peoples
  • Ruru
La naturaleza con derechos: de la filosofía a la política
  • Martínez
Te Tiriti o Waitangi: Texts and Translations
  • Ross
Utu, Revenge and Mana
  • Patterson
The Treaty and the Word: The Colonization of Maōri Philosophy
  • M Jackson
M. Jackson, 'The Treaty and the Word: The Colonization of Maōri Philosophy', in O. Graham & W.P. Roy (eds), Justice Ethics, and New Zealand Society (Oxford University Press, 1992), pp. 1-10, at 2.
Address to Tuhoe-Crown Settlement Day in Taneatua', beehive.govt.nz (official website of the New Zealand government)
  • V O'malley
V. O'Malley, 'Tuhoe-Crown Settlement: Historical Background', Maōri Law Review online articles, Oct. 2014, available at: https://maorilawreview.co.nz/2014/10/tuhoe-crown-settlement-historical-background. See also C. Finlayson, 'Address to Tuhoe-Crown Settlement Day in Taneatua', beehive.govt.nz (official website of the New Zealand government), 23 Aug. 2014, available at: https://www.beehive. govt.nz/speech/address-tuhoe-crown-settlement-day-taneatua.
Tuhoe-Crown Settlement
  • C Jones
C. Jones, 'Tuhoe-Crown Settlement: Tuhoe Claims Settlement Act 2014;
This link between legal personality, circumscribed standing and representation, more broadly understood, is also present in Te Kawa, which explicitly states that the 'Te Urewera Board is the voice and servant of Te Urewera
  • N Tanasescu
Tanasescu, n. 11 above. This link between legal personality, circumscribed standing and representation, more broadly understood, is also present in Te Kawa, which explicitly states that the 'Te Urewera Board is the voice and servant of Te Urewera', over and beyond its legal protector.