The Rights of Nature in the Asia Pacific Region

The concept of “rights of nature” or “rights for nature”, is the recognition of nature’s right to have legal rights similar to human rights and rights afforded to legal persons, like corporations. Nature Finance defines Rights of Nature (RoN) as encompassing a range of legal mechanisms giving nature a right to have its interests be argued before the law and found in favour of by courts, as though it were a human litigant.

The rights of nature movement has taken particularly promising steps for the recognition of nature’s rights and for the increased protection of nature, even if not going as far as to grant rights to nature, in the Asia Pacific region. The increased recognition and upholding of indigenous rights in New Zealand, Australia and some of the Pacific Island states has encouraged a more nature focussed approach to legislation relating to or about nature.

Where have the rights of nature been recognised?

New Zealand

New Zealand has not amended its constitution to provide nature rights to its indigenous nature, rather New Zealand has granted legal personhood to three natural features: (1) the Te Urewera National Park; (2) the Whanganui River; and (3) Mt Taranaki. However, the process of obtaining legal personhood for these natural features did not begin as a rights of nature process, rather as a human right and an indigenous rights process, although it obtained the outcome of rights for nature. This is due to the strong indigenous rights movement taking place in New Zealand which aims to redress historical injustices that Maori people faced during the British colonisation of New Zealand, including preventing access to nature for indigenous Maori communities which place significant cultural importance on the link between nature and individuals.

Taking the Whanganui River as an example of where legal personhood has been established for a natural formation, the indigenous community previously used the Whanganui River for social and cultural purposes and the communities considered the health and wellbeing of the Whanganui River to be intrinsically connected to their health and wellbeing, understood through the indigenous principle of Ko au te awa Ko te awa Ko au - I am the river and the river is me.   

However, the Crown then took control of the river and diverted water, extracted gravel, undertook invasive riverbed work and interfered with the traditional indigenous activities and riparian rights of the indigenous communities to the Whanganui River. There have been court cases between the Crown and the indigenous communities along the Whanganui River since 1938. But, in 2012 the Crown and the indigenous communities came to an agreement to respect the traditional view of the Whanganui River and to enshrine the Ko au te awa principle into legislation under the Tutohu Whakatupua Treaty Agreement which then led to the  Te Awa Tupua Act 2017.

The Te Awa Tupua Act 2017 grants legal personhood and all of the rights, powers, duties and liabilities as a legal person, such as a human, a trust or a corporation would have, to the Whanganui Riverbed. The legislation as drafted directly impacts 26 other pieces of legislation which are also now required to take account of the indigenous principle and to uphold the legal personhood of the Whanganui Riverbed. A key part of the legislation was the implementation of a guardianship model (or in Maori a “kaitiakitanga”) appointing a guardian representing the Crown and a guardian on behalf of 8 of the indigenous communities on the Whanganui River, known as an Iwi. The legislation implemented the creation of an advisory group, a support group and a fund of NZD $30 million to assist the guardians with upholding the health and wellbeing of the Whanganui River.

Similarly, in 2013, the Tuhoe people and the government of New Zealand agreed the Te Uewera Act, granting the Te Uewera National Park all of the rights, powers, duties and liabilities of a legal person with a similar guardianship model to protect and uphold the Te Uewera National Park’s rights and obligations. The legislation states that its purpose is to protect the Te Uewera National Park for its “intrinsic worth” and that all decisions relating to the Te Uewera National Park should serve the interests of the Te Uewera National Park and the Tuhoe people and preserve their intrinsic relationship.

In both instances, the framework of the process has been about the restoration of historical indigenous culture and ensuring the protection of indigenous rights and about responsibility rather than rights, not  specifically nature rights for nature’s sake. The legislation recognises the intrinsic worth of the river but otherwise leaves its right undefined. The steps taken in New Zealand are, nonetheless, very good examples of how the tool kit to create responsibility frameworks to ensure cultural rights of indigenous communities can also provide rights for nature. 

Australia

Australia has a growing awareness of the importance of recognising indigenous rights and cultures amongst non-indigenous Australians, which includes a renewed focus on the rights of nature as a means through which to stimulate systemic changes and to align to a less anthropocentric world and legal view due to the critical nexus between human and nature rights which is recognised in indigenous cultures. While Australia has not gone as far as its neighbour, New Zealand, to grant legal personhood or rights to natural formations, some steps have been taken which progress the development of a path towards legal rights for Australian nature.

An example is of the Yarra River in the state of Victoria, or as it is known in the Traditional Owner’s language the Birrarung. Similar to the Whanganui River, the Birrarung holds spiritual, cultural and social importance to the indigenous Traditional Owners but this relationship has been damaged through the ownership of the Birrarung by the Australian state. In order to ensure the recognition of the Traditional Owner’s custodianship and relationship with the Birrarung, the Yarra River Protection (Wilip-gin Birrarung Murron) Act 2017, the first piece of Australian legislation to be co-titled in a Traditional Owner language of the Wurundjeri Wi-wurrung people, was enacted.

The Yarra River Protection (Wilip-gin Birrarung Murron) Act 2017 gives effect to the development of a long-term community-based vision and has established a 50-year strategic plan for the Birrarung to ensure its protection and to guide decision making in relation to the Birrarung. The law also established a Birrarung Council, an advisory body to the Victorian Minister for Water on the operation of the legislation to ensure that the Birrarung is given a voice in relation to matters impacting it. The Birrarung Council has two mandatory seats for representatives of the Wurundjeri Wi-wurrung people to ensure that indigenous voices are represented in recognition of their relationship with the Birrarung and the intrinsic understanding that their wellbeing is linked to the Birrarung’s and vice versa.

Pacific island states

The Pacific islands are made up of the 18 Pacific Island countries and territories, some 30,000 islands with 7 million inhabitants, which also make up part of the group known as the Small Island States. The Pacific islands are home to around 37% of all oceanic life, which lives in the coral reefs surrounding these islands. The Pacific Islands are low-emitting islands but are highly vulnerable to climate change and impacts on their natural ecosystems.

In New Caledonia, a French sovereign state, while legislation has not been passed to expressly grant rights to nature, the impact of the indigenous Kanak people’s beliefs in relation to nature has had a positive impact on how the island has legislated to protect nature. The Charter of the Kanak People on the Common Foundation of Fundamental Values and Principles of the Kanak Civilisation (the “Kanak Charter”) was passed in April 2014. The Charter aims to recognise the indigenous rights of the Kanak people and to ensure “co-operative and balanced legal pluralism” to ensure that the values and views of the indigenous Kanak people are upheld, including the importance of the “connection to the land”. The Kanak Charter, although not granting rights to nature, is a step towards protecting nature in the Pacific Island, as the importance of a balanced connection with the land is now enshrined in local legislation.

The steps taken in 2014 have paved the way for further nature-centric legislation to be passed in New Caledonia in 2023 which, as a result of the indigenous beliefs relating to the ocean and the Kanak Charter, legislated at the end of 2023 that all industrial activities, including mining, fishing and oil drilling, will be banned in 10% of its territorial waters. New Caledonia is also close to passing further legislation which would establish a 10 year moratorium on deep see mining in order to protect the ocean ecosystem.  

While Pacific Island states may be legislating to protect nature on an island-by-island basis, such as in New Caledonia, some of the Pacific Islands have joined together to create the Pacific Islands Framework for Nature Conservation and Protected Areas 2021-2025. The Framework is the most recent iteration of the strategy, which has been produced roughly every 5 years since 1985, its purpose being to “provide broad strategic guidance for conservation initiatives undertaken by all stakeholders in the region” in order to protect and conserve Pacific Island environments. One of the strategic objectives of the Framework for 2021-2025 is to “empower [the] people to take action for nature conservation, based on our understanding of nature’s importance for cultures, economies and communities”[1].

Similarly of the Pacific Island states (Palua, Tuvalu, Vanuatu etc.) have joined together with other small island states around the globe to form a commission known as the Commission of Small Island States on Climate Change and International Law which aims to define the actions and obligations of the states to protect the native marine environments under international law.

Importance of indigenous communities and the development of nature rights

While neither New Zealand, Australia or the Pacific Islands have formally amended their constitutions to grant nature constitutional rights, as has been done in other jurisdictions like Ecuador, each has taken steps to enshrine the protection of nature through a connection to indigenous rights and the upholding of indigenous culture, values and beliefs which place a considerable degree of importance on nature. This is not unique to the region, in Ecuador, Bolivia and Colombia, the importance of nature to indigenous communities is what has developed the rights of nature movement in Latin America. The indigenous views of nature as a person with its own rights at the centre of all systems, including the legal system, offers a radical and opposing view to the western legal structures which do not guarantee the rights of nature as the underlying view of nature is so far removed from the legal system.

Shifting to a more pluralistic legal system in the Asia Pacific region has enabled deeply rooted historical wrongs to begin to be righted for indigenous communities and has enabled a shift to a greater respect for traditional indigenous cultures, beliefs and views, but has also enabled the rights of nature movement to positively progress.

How far these legal systems continue to progress the rights of nature for the sake of nature will depend on how successfully indigenous communities are involved in the guardianship of the natural features and systems which have been granted rights or how much decision making influence and power indigenous communities have in ensuring nature is considered when legislation and decisions are taken where nature is at risk.

[1] WP_8.2.2_Att.1.rev_.1-SPREP_2021-2025_Framework_EN_2021-09-02_0.pdf