Rights of Nature: Pathways to legal personhood for the Fraser River Estuary

Executive summary

As the largest river in western Canada and one of the most productive salmon-bearing rivers in the world, the Fraser River is a critically important ecosystem and economic driver for the region. The Fraser River Estuary, located at the mouth of the river where it meets Georgia Strait in the Pacific Ocean, is one of the province’s most biodiverse regions, providing vital habitat for many bird, fish, and mammal species. Juvenile salmon rely on this estuary for food and protection during a critical phase of their development as they transition from a freshwater to the marine environment. However, ongoing colonization and industrialization have had devastating impacts on estuarine ecosystem health and Fraser River salmon populations. 

Governance of the estuary is antiquated

The current state of Canada’s environmental laws take an extractive approach to ecosystem management that fails to protect plant and animal species. British Columbia, a province whose identity is tied to its biodiversity, has no standalone protections for wildlife, such as endangered species legislation. 

Regulators are unable, or unwilling, to address many of the existential threats facing species and habitats within the Fraser River Estuary. In many cases, environmental law authorizes this ecosystem’s degradation by fragmenting interconnected habitats into ‘natural resources’ to be industrialized in the pursuit of economic growth. 

The regulatory landscape perpetuates land-use, water management, and species management decisions to be made in silos, failing to account for the cumulative effects ongoing habitat destruction and degradation has on the resilience of the estuarine ecosystem. The estuary, and all the living things it supports, are not viewed as having intrinsic worth. Economic imperatives consistently override the need for ecological protection, and as a result, threaten the very existence of one of the most ecologically important regions in the province.

Rights of Nature

The Rights of Nature is a growing body of law that seeks to reframe how nature is conceptualized under the law, and subsequently how it is governed, by broadening the legal impetus for its protection. Laws granting rights to nature are not a catch-all solution, but rather a supplement to pre-existing conservation, restoration, and species recovery initiatives.

This report explores the permutations of rights of nature laws in jurisdictions worldwide and examines their compatibility within Canada’s regulatory environment. It seeks to determine how granting the Fraser River Estuary legal rights and standing could produce much-needed changes to governance in the region and how those changes could accelerate conservation efforts already taking place.

A global survey of Rights of Nature laws

A global survey of Rights of Nature laws reveals the diversity of their permutations, informed by the legal system, cultural context, and political landscape in which they are enacted. They can be sorted into six distinct legal “pathways”:

Constitutional law: several countries have entrenched the rights of nature in their nation’s central organizing legal document, requiring all subsequent State action and legislation to respect the rights of natureNational or subnational law: national governments have granted rights to all natural ecosystems within the country as a part of broader environmental reforms.

Local law: local governments have sought to oppose industrial activity in their community by granting ecosystems legal rights and civilians the standing to enforce those rights in court.

Indigenous law: Indigenous governments have enacted rights of nature laws in attempts to codify their own laws and belief systems.

Judge-made law: in several jurisdictions, judges have unilaterally extended legal recognition and rights to nature without the government having passed legislation.

Treaty: settler governments have reached landmark agreements with Indigenous communities, some of which have included provisions that recognize specific ecosystems as legal subjects entitled to legal rights.

Each of these pathways differed in its effectiveness at achieving the purported benefits of Rights of Nature laws.

Recommendations

Based on an assessment of each pathway along several different criteria, including 1) the legal content (the law’s scope and strength), 2) the form of law, and 3) the feasibility within the Canadian context – the following solutions emerged as the most compatible for according the Fraser River Estuary Rights of Nature:

• Local laws passed by Indigenous and local governments with jurisdiction over the region that recognize the estuary as a legal entity and rights-holder.
• Intergovernmental agreements among Indigenous governments that recognize the legal status of the estuary. These agreements should then be implemented through local laws that delineate the rights of the river and responsibilities owed to it in a manner aligned with each Nation’s culture, worldview, and historical relationship to the ecosystem.

To be effective, the content of any Rights of Nature law must balance breadth of protections with the specificity required to implement the law and uphold the rights granted. 

Elements of a robust Rights of Nature law include:

• Rights and responsibilities that are clearly identified and defined;
• Indicators to define and measure the rights accorded;
• Enforcement mechanisms to ensure these rights can be upheld;
• Provisions that allow for the ranking and resolving of competing interests.

Legal recognition of any kind must be accompanied by governance reform in the form of guardianship, management body, or co-governance model. Governance reform should be Indigenous-led and adopt a two-eye seeing approach informed by Indigenous knowledge and Western science that weaves knowledge of the lands, waters, and living things of which the estuary is composed.