Legal personhood for the Ganges and glaciers? 'Of Ebbs and Flows: Understanding the Legal Consequences of Granting Personhood to Natural Entities in India' by Stellina Jolly and KS Roshan Menon in (2021) Transnational Environmental Law 1-26 comments
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.
'Interrogating Ellis v The Queen: Tikanga Māori in the common law of Aotearoa New Zealand' by Elliott Harris in (2020) Māori Law Review considers the role of tikanga Māori regarding whether the NZ Supreme Court would allow Peter Ellis’ appeal to continue, despite Ellis’ death in 2019.
Harris comments
In September 2020, the Supreme Court released their decision on the continuance of Peter Ellis’ appeal, reserving their reasons. Notably, the appeal is to continue, following submissions on how a tikanga Māori approach might displace the common law position that a right of appeal ends with the death of the appellant. This decision is the most significant legal development affecting Māori in the past year, given that it may potentially elevate the status of tikanga Māori within the common law. This essay considers that decision. It argues that while it is significant, having tikanga Māori as a relevant consideration for the development of the “fabric of law”, is unlikely to give effect to tino rangatiratanga. The promise contained in Te Tiriti o Waitangi (Te Tiriti) allows for tikanga Māori to exist as law, as of right. However, the submissions and hearing process in Ellis v The Queen [2020] NZSC Trans 19 (Ellis) appear to promulgate the orthodox requirement that tikanga be recognisable by the subordinating methods of the common law. This raises age-old questions as to the feasibility of meaningful self-determination in the absence of constitutional reform, while Te Tiriti itself continues to be perceived as non-justiciable.
The scope of this essay is limited to the degree to which the Supreme Court’s interaction with tikanga Māori is congruent with Te Tiriti. It firstly details a Te Tiriti lens, which is then used to evaluate the tikanga hearing and submissions in Ellis. Secondly, it briefly charts the relationship between tikanga Māori and the state legal system through time. Finally, it directly assesses Ellis, concluding that while tikanga Māori should inform the development of the state legal system, the eye of the needle is likely to fray tikanga Māori as it binds it to a larger corrosive fabric. Status as a “thread” of the common law is a far cry from tino rangatiratanga.
Te Tiriti o Waitangi and tikanga Māori in the state legal system
Te Tiriti Article Two of Te Tiriti promises Māori the continued ability to exercise tino rangatiratanga, despite the granting of kāwanatanga to the Crown. The ongoing exercise of tino rangatiratanga as understood by the rangatira present in 1840 would have been in accordance with tikanga Māori and the independence declared in He Whakaputanga. Sir Mason Durie’s description of self-determination is a helpful parallel to tino rangatiratanga, capturing a “sense of Māori ownership and active control over the future…less dependent on the narrow constructs of colonial assumptions”. The promise of separate and equal spheres of authority between Māori and the Crown is inherent in Te Tiriti, necessitating the recognition of tikanga Māori as a source of a developing state law, and its authority as a legal system itself. The often ignored Article Four likewise anticipates the continuation of tikanga.
As a result, this essay considers that the recognition of tikanga Māori as a separate and co-existing source and system of law in Aotearoa New Zealand is an essential facet of honoring Te Tiriti. This is particularly so in the manifestation of tino rangatiratanga. Te Tiriti derives authority from the values of tikanga Māori, envisioning a partnership between the Crown and Māori.[6] As such, Te Tiriti recognises tikanga Māori as a separate and authoritative legal system. A meaningful implementation of Te Tiriti necessitates the operation of tikanga. Tikanga Māori and the state legal system through time Ani Mikaere argues that the position of tikanga Māori in Aotearoa New Zealand’s state legal system is directly allied to perceptions of Te Tiriti. The recognition of tikanga by the common law of Aotearoa New Zealand has largely mirrored the prevailing tiriti discourse.
Where Te Tiriti was disregarded, tikanga consequently was considered a system of loosely associated cultural norms without legal significance. The effect of considering Te Tiriti a “simple nullity”, was to view tikanga as non-legal. Initially, it was almost completely disregarded within the state legal system. Where it was engaged with, it was misunderstood and distorted by Pākehā.
In conjunction with the increase in perceived importance of Te Tiriti in the state legal system, tikanga concepts and values have found their way into state law. The development of the “Third Law” of Aotearoa New Zealand has been a process by which the inclusion of tikanga in the state legal system has been directed to its perpetuation. In this respect the common law has lagged behind Parliament in the use of tikanga to develop the law, elevating its status in piecemeal fashion. However, the courts have been actively engaged in defining the scope of legislative references to tikanga and the principles of Te Tiriti.
The inclusion of tikanga Māori in the state legal system has been dogged by controversy. Its position in the state legal system has typically been trammeled by assumptions of Crown sovereignty, even in episodes of conflict considered ultimately successful by Māori.For example, in cases relating to Māori customary title, Māori ownership has been recognised in Aotearoa New Zealand by the common law doctrine of aboriginal title, which originates in early European conceptions of international law. Although the common law protects Māori customary title to land, it does so in a way that “reverses time’s linear order”, by predicating the existence of customary title on recognition by the Crown. Borrows questions an analysis that sees the radical title of the Crown as the source of aboriginal land rights. Mikaere echoes these assertions, stating “aboriginal rights are buried beneath the notion of crown sovereignty and as such represent the antithesis of tino rangatiratanga”. Even where the Crown supposedly acts in the best interests of Māori, the legal methods that it uses to do so reinforce a broader assumption of Crown sovereignty that fails to be interrogated.
Similarly, the leading case on the recognition of tikanga Māori within the common law, Takamore v Clarke [2012] NZSC 116 (Takamore), left the law in a confusing state. The majority failed to outline how tikanga would be generally recognised as part of the common law. The Court considered there was already a common law requirement that an executor would take into account “different cultural, religious and spiritual practices”. However, they did not create a schema in which Māori interests could feasibly be determinative.
While ostensibly more open to the possibility of Māori interests gaining preference, Elias CJ’s dissent was comparatively opaque. She stated in respect of tikanga Māori that “[v]alues and cultural precepts important in New Zealand society must be weighed in the common law method…according to their materiality”. This, in conjunction with her view that “Maori custom according to tikanga is therefore part of the values of the New Zealand common law,” suggests that tikanga is potentially a relevant source from which the courts are to develop the common law.
Although modern jurisprudence is attempting to create coherent frameworks from untidy historical circumstances, it continues to make decisions with the secondary consequence that the powers of state institutions are reinforced. There is a pervading assumption of Crown sovereignty that is not adequately interrogated. Tikanga Māori values being “mandatory relevant considerations” has not always created circumstances in which Māori interests can prevail. This essay’s central thesis is that like the failures of statutory incorporation, the use of tikanga Māori as a source of New Zealand’s common law is inconsistent with indigenous self-determination. If tikanga Māori can only have legal effect when recognised by the common law rather than in its own right, then the foundations of our legal system are still characterized by Crown dominance.
'Lake Erie Bill of Rights: Stifled by All Three Branches Yet Still Significant' by Kenneth K Kilbert in (2020) 81 Ohio State Law Journal Online 227 comments
The innovative Lake Erie Bill of Rights (LEBOR), an amendment to the City of Toledo, Ohio charter which declared that Lake Erie has enforceable rights, debuted to much fanfare in 2019. City residents voted overwhelmingly in favor of the new ordinance in a special election. Many hoped it would be a new legal tool in the fight against harmful algal blooms in Lake Erie, which have plagued the region for decades and in 2014 deprived nearly half a million persons in the Toledo area of safe public drinking water for three days. The ordinance also was widely hailed as a groundbreaking “rights of nature” law, and one of its leading proponents was invited to and addressed the United Nations.
Yet just a year later LEBOR was dead, declared to be unlawful. This article examines LEBOR and what gave rise to it, and describes and evaluates how all three branches of government—judicial, executive and legislative—played roles in killing LEBOR. But it also argues that LEBOR, a well-intentioned albeit legally flawed ordinance, remains significant even after its demise.
City of Toledo residents, by a margin of 61% to 39% in a February 2019 special election, voted in favor of adding LEBOR as an amendment to the City of Toledo charter. The proposed amendment made it onto the ballot as a result of a citizen’s’ initiative which included a petition signed by more than 10,000 persons. The petition was organized by Toledoans for Safe Water, a local community group frustrated by years of government inaction in the aftermath of the 2014 Toledo tap water crisis.
LEBOR states that Lake Erie, and the Lake Erie watershed, “possess the right to exist, flourish, and naturally evolve.” This right extends to the “Lake Erie Ecosystem,” which includes all natural water features and communities of organisms that are part of Lake Erie and its watershed. LEBOR also states that the people of the City of Toledo “possess the right to a clean and healthy environment,” which includes the right to a clean and healthy Lake Erie and Lake Erie Ecosystem. LEBOR prohibits any corporation, defined as including any business entity, or any government from violating these rights.
The amendment allows the City of Toledo or any resident of the city to sue in state court, specifically the Lucas County Court of Common Pleas, to enforce LEBOR’s rights and prohibitions. LEBOR further provides that the Lake Erie Ecosystem itself may enforce the rights and prohibitions, as a named party and real party in interest, through a suit brought by the city or any resident of the city. subject to criminal conviction and fines. Additionally, corporations or governments engaged in activities that violate the rights of the Lake Erie Ecosystem, in any jurisdiction, shall be strictly liable for all harms resulting from those activities. In an action by the Lake Erie Ecosystem, damages are measured by the cost of restoring the Lake Erie Ecosystem and are paid to the City of Toledo.
Further, LEBOR provides that no permit or other authorization issued to a corporation by any state or federal entity is valid within the City of Toledo if it would violate prohibitions or rights under LEBOR. Corporations that violate LEBOR cannot assert preemption by state or federal laws as a defense. State laws are valid in Toledo only to the extent they do not conflict with the terms of LEBOR.
A law recognizing that a natural resource has enforceable legal rights is highly unusual, if not unique, in the United States. As a result, LEBOR garnered national and international attention. Stories about LEBOR appeared in national publications as diverse as the New York Times and the National Review, and the groundbreaking ordinance was featured on The Daily Show. One of the leaders of Toledoans for Safe Water, Markie Miller, was invited to speak about LEBOR at the United Nations, which she did on Earth Day 2019.
But not everyone was happy about LEBOR, and steps to throttle it began immediately. The effort to stifle LEBOR played out in all three branches of government—judicial, executive and legislative.
The day after the special election a lawsuit was initiated in federal court aimed at killing LEBOR. Plaintiff Drewes Farms Partnership, which owns and operates farms in four counties near Toledo and within the Lake Erie watershed, filed a complaint against the City of Toledo in the U.S. District Court for the Northern District of Ohio seeking a declaration that LEBOR is unlawful and to enjoin its enforcement. The complaint asserted that LEBOR violates multiple provisions of the U.S. Constitution, including due process, and various Ohio state laws. The State of Ohio, represented by the Ohio Attorney General, subsequently successfully intervened as a plaintiff, claiming, inter alia, that LEBOR unlawfully interferes with the state’s interests in Lake Erie, exceeds the city’s municipal authority under Ohio law, and is preempted by federal and state law. The court, however, denied a motion to intervene as a defendant in support of LEBOR filed by Toledoans for Safe Water and by the Lake Erie Ecosystem.
On February 27, 2020, exactly one year after the Drewes Farms complaint was filed, the federal court entered an order invalidating LEBOR. Vague laws, U.S. District Judge Jack Zouhary explained, violate due process because they can trap the innocent and invite arbitrary enforcement. The court held that the rights and prohibitions set forth in LEBOR are unconstitutionally vague— aspirational statements, not rules of law. Further, noting that Lake Erie touches four states and two nations, the court called LEBOR’s attempt to invalidate conflicting Ohio state law in the name of environmental protection a “textbook example of what municipal government cannot do.” Judge Zouhary concluded: “This is not a close call. LEBOR is unconstitutionally vague and exceeds the power of a municipal government in Ohio.” The court did not, however, invalidate LEBOR for providing that Lake Erie has enforceable legal rights.
On the legislative front, in July 2019, just a few months after LEBOR was added to the City of Toledo charter, the Ohio General Assembly enacted a statute directly aimed at invalidating LEBOR and banning any similar “rights of nature” laws. Tucked into the 2,600-page annual state budget bill was a section providing that “nature” or an “ecosystem” does not have standing to participate in or bring an action in state court. It further provided that no person shall bring or intervene in an action in state court on behalf of nature or an ecosystem. ...
Kilbert argues
LEBOR is dead, but its importance lives on. LEBOR is a high-profile landmark in the nascent “rights of nature” law movement in the United States. As such, it may inspire more jurisdictions to pass laws providing that a natural resource has enforceable rights. Admittedly, at this stage it is not clear what legal advantages a “rights of nature” law confers for fighting pollution or protecting a natural resource. Arguably, however, recognizing that a lake or other natural resource has enforceable rights could have procedural, substantive and rhetorical advantages. Procedurally, it could make standing less of a hurdle. Instead of having to show an individual plaintiff has suffered an injury from pollution to the lake, perhaps injury in fact could be established simply by showing the plaintiff lake itself has been injured by pollution. Substantively, whereas environmental regulatory laws like the Clean Water Act literally permit discharges of pollution to the lake, affording the lake “rights” might place more emphasis on protecting the lake from pollution. If a fictional entity like a corporation can benefit from having rights like a person, why not a real entity like a lake? Rhetorically, advocates may find it more powerful to be viewed as arguing on behalf of the lake itself, not just a person or group.
Even more significant, though, is the signal that LEBOR has sent. LEBOR shows that the people of Toledo—to borrow a famous line from a classic movie—are mad as hell and they’re not going to take it anymore.
It has been six years since the Toledo tap water crisis of August 2014, and unfortunately not much has changed: the legislative and executive branches of Ohio have done little to regulate agricultural stormwater runoff and HABs continue to plague Lake Erie every summer or fall. LEBOR is stark proof that the people of Toledo are tired of waiting for their state government to act, so they are trying to take control of their own destiny. More than 10,000 persons signed the petition to get LEBOR on the ballot, and then an overwhelming majority of votes were cast in favor of adding it to the city charter. The message to Ohio’s elected officials, and the agency personnel they appoint, should be unmistakable: Take action to reduce phosphorus loading to Lake Erie by regulating agricultural stormwater runoff, or else the people of Toledo—and the many other voters in Ohio who care about Lake Erie—will take action themselves in the next election by voting against those who failed to do what is necessary to solve the HABs problem in Lake Erie.
