Should nature have rights?

By Paulo Urrutia and Patrick Lynch
Editor's note: The following is from Issue 23.

Recently, we started out on a kayaking trip along the Biobío River, from its headwaters at Laguna Galletué to the Ralco dam reservoir. For several days we paddled its turbulent waters among hilly plateaus surrounded by araucaria trees. Coihue and native oak trees covered the landscape. Countless torrent ducks and birds such as cormorants and kingfishers dancing again and again in front of our eyes. But this celebration of life rapidly came to a halt after a brutal encounter with the man-made Lake Ralco. The abrupt disappearance of the birds and the smell of decomposing organic matter on the banks of this artificial lake left us silent, our souls in the air: we had witnessed the consequences of mutilating a river.

The cultural significance of the Biobío River – Butaleubu in the indigenous language mapudungún – is reflected in the Mapuche worldview, which believes in the parallel existence of both a great earthly river and a spiritual river. Both are necessary for balance between the two dimensions.  For a very long time, the Biobio represented the great earthly river, with its hundreds of braids extending throughout the region.
The Mapuche worldview is like that of many other indigenous groups that live in close contact with the land in that it personifies the presence of spirits in certain ecological spaces.  Ngen are the spirits who protect and steward nature; Pillan are the collective spirits that inhabit volcanoes. This view engenders a relationship of respect toward nature, establishing an interaction and interdependence among all living beings and making up one great living organism known as Itrofil Mogen.  As visitors to these spaces, whether a mountain, wetland, or river, we must respectfully request permission to enter. 

This is why what happened on the Biobio – and what continues to happen in many other areas – is a culture shock between two opposing concepts of nature: the western view that sees nature’s utilitarian value as a “resource;” and the indigenous worldview that perceives nature as a living and sentient being.  Science is generating greater support for the latter, with examples like Gaia Theory or referring to the rivers as being alive (“Los Ríos Están Vivos”). Would it be possible to take inspiration from indigenous groups in order to guarantee rivers’ right to flow, or mountains’ right to exist, and assure future generations that nature will be protected?
Until a few months ago, the idea of a democratic and sovereign constitution that defines the pillars upon which Chilean society is based appeared to be a distant yearning, far from the national reality. However, the process that Chile is currently undergoing has demanded a new fundamental basis that responds to the needs of 21st century society. The current model that governs the country’s centralized “social order” generates mistrust among residents, based as it is on an extractionist economic model that fails to take into consideration both social and environmental externalities.
In recent years, a series of legislative proposals have been based on collective and intangible rights, as well as future rights. Traditionally, nature has been subjected to a system of legal property based on western concepts.  However, just as inheritance laws exist – a future individual right – it’s possible to think of a future collective right, such as the right for future generations to live in an environment free of contamination. Inspired by indigenous worldviews, we might legally treat nature and its ecosystems as living organisms, thereby granting them their own rights.
In 2017, New Zealand’s Whanganui River became the world’s first river to be granted legal status, after the Māori fought for years to have it recognized as a living entity.  Later, India recognized the Ganges and Yamuna rivers as legal entities, but these rights were later annulled. In July 2019, Bangladesh granted all of its rivers the same status, and in September of the same year the Yurok tribe of California, in the United States, continued the same legal path with the Klamath River. In South America, Ecuador and Bolivia have been the pioneers of incorporating nature’s “right to comprehensive respect” in their constitutions.
The indigenous communities in New Zealand had fought more than 160 years for recognition of their deep relationship to the Whanganui River, ever since the signing of the Treaty of Waitangi, the country’s founding document, in 1840. Today they celebrate having achieved that first step, while communities along the river are joining forces to build a strategy that treats the body of water as a single indivisible entity. This offers the country a framework for outlining a new path toward protecting the Whanganui and provides an example to the world of how to take care of our planet’s arteries – its waterways.  Legal guardians can defend the river in court if its rights are violated.  The law does not offer iron clad protection, but it’s a solid start for those who want to defend a river’s rights. 
Another notable example is that of Ecuador. Chapter 7, article 71 of Ecuador’s constitution declares that “nature, or pachamama, where life is produced and carried out, has a right to comprehensive respect for its existence and for the maintenance and regeneration of its vital cycles, functions, and evolutionary processes.” In practice, this means that all people, communities, indigenous groups and nations can hold Ecuadorian authorities accountable for guaranteeing nature’s rights. The interesting thing about this clause, which was later emulated by Bolivia, is the granting of positive rights: the right to be restored, regenerated, or respected (article 72). It also resolves the matter of legitimacy, guaranteeing the law’s application to everything evenly, which is to say that in Ecuador any person – regardless of his or her relationship to a determined portion of land – can go to court to protect it.    
In another example, in Colombia in 2017, the residents of the Cajamarca municipality voted against gold exploitation in their area, opposing the mining project La Colosa with the slogan “water is worth more than gold” and, importantly, appealing to the fact that nature has rights. The fight to achieve this paradigm shift also occurred on the shores of Lake Erie in the United States when Toledo approved an ordinance that permits its citizens to sue in the name of the lake in response to high contamination rates.  

The Great Chilean doubt
Through regulations like the Anti-terrorist Law and the State Interior Security Law, Chile has incurred systematic persecution of Mapuche people who have spoken out against the destruction of forests, rivers, and mountains. This, despite the fact that International Labour Organization (ILO) Convention 169, an international treaty related to indigenous peoples and signed by Chile, establishes “the State’s obligation to respect the special importance of cultural and spiritual values that cloaks indigenous people’s relationship to the land or territory.” 
Today there are political prisoners who have been detained for defending their territory; for accessing culturally and ecologically significant places, like the Tralcal cousins for the Lucksinger Mackay case; or Millaray Huichalaf, the machi (a religious figure in Mapuche culture), and other defenders of the Pilmaiquén River.  Francisca Linconao, another machi, is known for being one of the accused in the Lucksinger Mackay case from which she was later absolved, but few know about her active role in protecting the forests and waters of her region. In 2008, she filed a civil suit against Palermo Society Ltd, denouncing the illegal deforestation of native forests that infringed on Article 5 of Chile’s Forest Law, in addition to affecting a culturally significant site called menokos made up of wetlands inhabited by the Ngen spirits. The Appeals Court of Temuco ruled in her favor, making her the first person to use the ILO Convention 169 in Chile.
It would seem that we are in the midst of a transition toward recognizing the Earth’s value as a whole – with legal and juridical bases. Prioritizing the well-being of ecosystems for humanity – present and future – and for other living organisms, within a new legal framework, is our next big challenge. Considering how nature functions requires us as a society to adjust our institutions so they can respond to these dynamics. The conditions are there: indigenous people’s profound understanding of nature already exists, ready to be applied in a new constitution. Civil society and empowered communities will determine in what ways these issues emerge. It depends on us to define the new country we want as we build our new magna carta.  
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