Our current methods of protecting important ecosystems are not working. It is time for governments at all levels to adopt a different way of thinking about natural places.
Here in Canada, ecosystems and habitats rely on environmental laws like the Species at Risk Act (SARA) for their protection. On paper, these laws seem to provide a gamut of legal protections for natural places, but in practice these protections often fall short once competing interests, such as industrial development, are brought to the table.
Take the Fraser River estuary on the south coast of BC for example. This ecosystem supports the largest runs of wild Pacific salmon in Canada and provides critical habitat for endangered Southern Resident killer whales. Yet in 2023, the federal government greenlit the Roberts Bank Terminal 2 megaport, which will have significant repercussions for Southern Resident killer whale critical habitat that is legally protected by SARA. Over in the Wood River basin of southeastern BC, the provincial government continues to approve clearcuts in Southern Mountain caribou critical habitat, which is, again, legally protected by SARA.
This raises the question: how can environmental laws, such as SARA, serve their intended purpose if they continue to be routinely overridden in favour of economic interests? A central conundrum of the Canadian legal system is that environmental laws are too commonly subsumed by a worldview that sees natural places as valuable primarily for the resources that can be extracted from them. This way of thinking has laid the foundation for the degradation of ecosystems across Canada.
Although this worldview has proliferated across much of the developed world, there are alternate, unquantifiable ways of valuing nature. Many Indigenous communities have a reciprocity-based relationship with the environment, one that Dr. Enrique Salmón, a Rarámuri professor of American Indian studies, describes as an “awareness that life in any environment is viable only when humans view the life surrounding them as kin.” (pdf).
Many non-Indigenous governments are beginning to explore this perspective, demonstrated by a growing legal movement known as Rights of Nature.
Rights of Nature posits that wildlife, plant communities, and whole ecosystems should receive the same fundamental rights and freedoms as humans. The right to be free from exploitation, the right to be treated equally, and the right to exist, free from persecution.
It might seem a stretch to some legal scholars to consider rivers, salmon or killer whales as people. Yet our legal system is already set up to grant non-human entities like corporations status as “legal persons.” In New Zealand, Quebec, Ecuador, and Bolivia, communities have successfully pushed for some form of Rights of Nature laws to be accorded to ecosystems around them, setting a new precedent for their protection in an effort to counterbalance advancing extractive industries.
Here in Canada, “legal persons” have rights under the law, and enjoy protections granted by the Charter of Rights and Freedoms such as a right to vote, the right to be treated equally, and the right to move freely. Granting rivers, wetlands, and forests legal personhood would place the inherent right of ecosystems to exist above the needs of humans to extract natural capital from them.
A report written by UBC law student Avery Pasternak and Raincoast Conservation Foundation’s Kristen Walters identifies that while Rights of Nature laws have been adopted in other countries, Canada’s legal system doesn’t provide a clear pathway for Rights of Nature laws at the federal or provincial level.
However, there are possibilities at the local level. The report found two mechanisms for advancing legal personhood for the Fraser River estuary; Indigenous governments establishing Nation-to-Nation agreements, and Nations striking agreements with local governments that have jurisdiction over the Fraser River estuary. Importantly, legal recognition must be accompanied by governance reform in the form of guardianship, management bodies, or collaborative governance models. The authors highlight that reform should be Indigenous-led and adopt a “two-eyed seeing” approach that blends Indigenous knowledge and academic science.
The global biodiversity and climate crises have undoubtedly been driven by an anthropocentric mindset which positions humans as having intrinsic supremacy over nature. By shifting towards a more familial, kinship-based relationship with nature, Canada could set a novel legal strategy for addressing the mounting environmental challenges facing our country.
A version of this article was published in The Province.
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