“Great Lakes and State Waters Bill of Rights” in New York State Assembly
Ontology and Jurisprudence intersect in "Rights of Nature" ...
I am indebted to and the CELDF (Community Environmental Legal Defense Fund) for alerting me to the New York bill.
The Seed of “Rights of Nature”
In 1972, law professor Christopher Stone published a law review article (which became a book) titled, “Should Trees Have Standing?: Toward Legal Rights for Natural Objects.”
Aware that the title might seem whimsical, Stone said:
I am quite seriously proposing that we give legal rights to forests, oceans, rivers and other so-called "natural objects" in the environment—indeed, to the natural environment as a whole.
The seed planted by Stone’s legal theory of the “rights of Nature” has sprouted worldwide debates about ‘property’, ‘rights’, ‘environment’, and indeed about ‘life’—not only in legal theory, but in ontological explorations of the “nature of Being”.
The seamless web of ontology and legality
Stone’s article was not for a superficial reader. He pondered “the problems of all language”, of “hypostatizations” (reifications of concepts), and “jural entities” (legal entities with capacity to sue and be sued). He was clear that heavy lifting was required:
There are large problems involved in defining the boundaries of the "natural object." …One's ontological choices will have a strong influence on the shape of the legal system, and the choices involved are not easy.
I find this kind of thinking exhilarating. Others may bounce off it or say it obscures the issues. I see it as necessary thinking:
In decisions about “rights”, ontology—the branch of metaphysics dealing with the nature of being—is interwoven with jurisprudence—the philosophy of law.
As Justice Oliver Wendell Holmes, Jr., said in 1918:
For legal purposes a right is only the hypostasis of a prophecy—the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it.
Two widely-debated court cases illustrate the web of ontology and law:
Corporate Person — In 1886, the Supreme Court, in Santa Clara County v. Southern Pacific Railroad, declared that the railroad corporation was a “person” under the Fourteenth Amendment, with rights to life, liberty, property, due process and equal protection. 1
The court curtly dispensed with ontological arguments that had been thrashed about in the lower courts. It instructed the clerk to tell the attorneys:
The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to … corporations. We are all of opinion that it does.
Legal philosophers erupted with questions about “real” and “artificial” persons. By mid-20th century, the jurisprudential trauma had been set aside under the press of increasing corporatization, resulting in a general agreement that it is not necessary to ask difficult questions about the "meaning" of “person”.
Stone echoes this earlier debate, saying:
The legal system does the best it can to maintain the illusion of the reality of the individual human being.
Stone says “corporate person” is not "mere legal fiction"; nor would “rights of Nature” be fiction.
Abortion — In 1973, the Supreme Court, in Roe v. Wade, declared that statutes prohibiting abortions at any stage of pregnancy except to save the life of the mother were unconstitutional.
The court labored to develop an ontology to support its tripartite rule: “approximately the end of the first trimester”; “subsequent to approximately the end of the first trimester”; “subsequent to viability”. It harked back to the common law:
At common law, abortion performed before ‘quickening'—the first recognizable movement of the fetus in utero…—was not an indictable offense. …[This] appears to have developed from a confluence of … philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became ‘formed’ or recognizably human, or in terms of when a ‘person’ came into being, that is, infused with a ‘soul’ or ‘animated.’
In 2022, the court overruled Roe, in Dobbs v. Jackson Women's Health Organization, saying that the federal constitution does not provide a right to abortion, and that authority to regulate abortion is a state law issue. Though this reversed a jurisprudential question of jurisdiction, it did not resolve ontological issues about women and fetuses that continue to be debated.
Stone mentions abortion laws as an example of the notion that the "jural opposite" of someone's right is someone else's "no-right."
The trend toward liberalized abortion can be seen either as a legislative tendency back in the direction of rightlessness for the foetus—or toward increasing rights of women.
Stone poses the following problem about water to show how ontological definitions of “natural entity” intersect with jurisprudential issues of jurisdiction:
A guardian [might] be appointed by a county court with respect to a stream ...[in] a suit against alleged polluters.…
A federal court [might] appoint a guardian …[for] the larger river system of which the stream [is] a part…
A still subsequent suit…[might be brought] on behalf of the entire hydrologic cycle, by a guardian appointed by an international court….
These are large problems and the choices involved are not simple.
Stone offers this overview:
Until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of "us"—those who are holding rights at the time. …
There is something of a seamless web involved: there will be resistance to giving the thing "rights" until it can be seen and valued for itself; yet, it is hard to see it and value it for itself until we can bring ourselves to give it "rights"—which is almost inevitably going to sound inconceivable to a large group of people.
In a nutshell: The legal “Rights of Nature” rest on our ability to imagine the ontological “Being of Nature”.
The New York Bill
“An act to amend the environmental conservation law… To secure the right for the Great Lakes ecosystems, as well as the watersheds and ecosystems throughout [New York State], to possess the fundamental rights to exist and flourish.”
1) The Bill’s “Declaration of Rights” tackles two ontological / jurisprudential issues: On one hand, it insists on the “Being” of “ecosystems”; on the other, it deprecates the “right” of “property”:
The Great Lakes, and the watersheds that drain into the Great Lakes and their connecting channels, as well as the watersheds and ecosystems throughout the state of New York, shall possess the unalienable and fundamental rights to exist, persist, flourish, naturally evolve, regenerate and be restored by culpable parties, free from human violations of these rights and unencumbered by legal privileges vested in property, including corporate property.
As I explained in Part One of my series, Property, Domination, Married Women, 'Indians', property ownership is not about “things”, but about relations with others. Property is ontology and law.
Sir William Blackstone, in his Commentaries on the Laws of England (1765–69), wrote:
The right of property…[is] that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.
2) The Bill incorporates rights of “the people” to bolster the status of “the natural environment” (presuming no argument that “the people” is a “jural entity”):
The people and the natural environment, including each ecosystem and watershed…shall possess the right to a clean and healthy environment, which shall include the right to a clean and healthy …Great Lakes ecosystem.
3) The Bill differs from Christopher Stone by relying on state and local enforcement of “crimes”, rather than appointment of “guardians”—the method proposed by Stone.
The commissioner [of the Department of Environmental Conservation] shall enforce the rights and prohibitions of … this chapter, excepting for local laws enacted to adopt such rights locally, which shall be enforceable locally.
Municipalities and counties…shall possess legal authority to enact and enforce laws that protect their local ecosystems by asserting for them the same rights and other provisions of …this chapter….
Stone argued in favor his “guardianship” approach by pointing out that “criminal statutes can only be enforced by the government”. He said:
To judge from the environmentalist literature and from the cases environmental action groups have been bringing, the [federal] Department [of Interior] is itself one of the bogeys of the environmental movement.
In this context, a guardian outside the institution becomes especially valuable.
4) The Bill upholds “protected treaty rights and customs of Indigenous peoples”.
All treaty reserved rights to hunt, fish and gather are not subject to enforcement actions by municipalities, counties or the state under this section or any local law adopted thereunder.
Some Indigenous Peoples have enacted “nature rights” laws, relying on understandings of Nature rooted in ontologies far different from western “civilization”:
In 2003, the Navajo Nation included in its Code: “All creation, from Mother Earth and Father Sky to the animals, those who live in water, those who fly, and plant life have their own laws and have rights and freedom to exist.”
In 2019, the Yurok Tribal Council established rights for the Klamath River through an ordinance.
In 2020, the Menominee Tribe granted legal rights to the Menominee River.
Enforcement of these Native ontologies, however, runs into jurisprudence, as the Red Lake Chippewa and White Earth Ojibwe discovered within their own legal system:
In 2021, Red Lake and White Earth filed the case of Manoomin v. Minnesota Department of Natural Resources in White Earth Tribal Court. They asked for “declaratory and injunctive relief to declare Manoomin, or wild rice, within all the Chippewa ceded territories is protected and possesses inherent rights to exist, flourish, regenerate, and evolve, as well as inherent rights to restoration, recovery, and preservation.”
The White Earth Ojibwe Appellate Court dismissed the suit, refusing to go beyond the bounds of federal anti-Indian law: “We believe that federal case law requires dismissal of this case. If we were to allow the case to proceed on its merits in the Tribal Court, and the Court granted a remedy… we believe that a federal court would … enjoin the remedy and the Tribal Court from further proceedings.”
The court reaffirmed its order after a motion for reconsideration, saying:
Congress has not granted authority to White Earth to regulate Appellants' allegedly unlawful activities off-reservation.
So much for the doctrine of “tribal sovereignty”.
Nature: “To follow… not to take care of”.
The Community Environmental Legal Defense Fund writes:
Even though we are taught to believe that our laws and courts have the final say, we at CELDF have learned over the 25-plus years of working on advancing Rights of Nature laws that in the end, Nature will prevail.
My Yakama friend and colleague, JoDe Goudy, tells the story taught to him by his Grandfather:
"Chi Tamunwit Ewa Pa To Key Namiiow T’wunatush – ‘This way of life was set down to follow.’
Chow Na Me’ow Nuck’New’E tush – ‘Not to take care of.’
Mish Na Queet Queet Key Ut’twa’nata Coo E’ Nuck New E’Ita Na Mii Yax’xi’xwit – ‘If we follow it correctly, this way of life will turn around to become the caretaker of us.’
Grandson, we are one of the few, if not the only, peoples on this ground in which instructions were set down clearly. There are big laws that have come forth to be our caretakers: our language, our ceremonies, and our traditional foods collectively form our way of life. The instruction provided to us was to follow them in ceremony, song, and dance. This is the big difference from those who have come to be amongst us in these lands. We did not have to go to the grocery store, we did not have to farm, we did not buy such things. The instructions were clear: follow the ceremonies, sing the songs, and follow the foods, and they will take care of us forever. We cannot do this without the utilization of our language. Our salmon, deer, elk, buffalo, roots, berries, and above all, water provided themselves so long as we adhered to the sacredness of following. Who in this world practices ceremony, speaks, sings, and dances their very way of life into existence? We do. This is the love that our Creator has shown us the Ta’Nun, the Native People of this land.”
See my 3-part series:
Corporate Personality and Human Commodification - Part 1 (of 3)
At the top of the city in a glass-chromed room an attorney assures the board of directors that the corporation is the person against which any or all action may be taken, not against each and every director joint or several. The multiheaded person exhales dry-iced victory as counsel backs out the door descending floor after floor to wait for a cab in th…
I've been involved with the CELDF team that has helped with drafting, advocating for the Great Lakes Bill of Rights, and ushering it through the New York legislative process. I'm very grateful you've written this excellent piece, Peter. Thank you very much.
Such a good article about helping moving, shifting, changing the colonial domination worldview to one of belonging, being part of, the sentient aliveness of living with beloved Mother Earth.
Thank you Peter.