Do You Need Legs to Stand? Wild Rice Stands in Trial and an Examination of the Use of Legal Personhood to Protect the Rights of Nature in Court

• Publication year: 2022

Do You Need Legs to Stand? Wild Rice Stands in Trial and An Examination of the Use of Legal Personhood to Protect the Rights of Nature in Court

Anna C. Scartz^*

Table of Contents

I. Introduction........................................................................................246

II. Rights of Nature................................................................................247

A. Wliat is Legal Personhood?...............................................247
B. What are the Rights of Nature?.........................................248

III. Around the World...........................................................................249

A. Generally...........................................................................249
B. Case Studies and Examples...............................................250

i. New Zealand........................................................250
ii. Ecuador................................................................251

IV. In the United States.........................................................................252

A. Current Methods Used for the Protection of Nature.........252
B. Rights of Nature Movement Within the United States.......253
C. Clash of Cultural Ideas.....................................................254
D. Wild Rice...........................................................................255

i. Tribal Court.........................................................256

IV. Why Should Nature Be Granted Legal Personhood?..............258

IV. Toward a Rights of Nature Tribunal..........................................259

IV. Conclusion.........................................................................................261

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I. Introduction

In early October 2021, the Line 3 pipeline was scheduled to begin operating.¹ The pipeline was designed to carry 76,000 barrels of tar sands oil per day from Alberta, Canada to Wisconsin, United States via Minnesota.² Line 3 is a project from the company Enbridge to replace aging pipes in Minnesota at risk of corrosion.³ However, the pipeline faced fierce opposition from advocates who argue that this project "violate[s] treaty rights, worsen[s] climate change and risk[s] spills in waters where Native Americans harvest wild rice."⁴ Opponents of the pipeline claim replacing the pipes is too risky and unnecessary due to the projected decreased demand for fossil fuels, and that Line 3 is too dangerous to the environment to continue.⁵ In fact, in September 2021, the Minnesota Department of Natural Resources ordered Enbridge to pay $3.32 million for violating environmental laws during construction when it dug too deeply and pierced an aquifer, causing a 24-million-gallon groundwater leak.⁶

Many individuals, including environmental rights groups and tribal communities, oppose the pipeline.⁷ One party that also protests the pipeline as a violation of rights is Nature itself. Wild rice, through White Earth Nation of Ojibwe members, filed a lawsuit against the Minnesota Department of Natural Resources claiming a violation of manoomin's (the Ojibwe word for wild rice) right to exist, flourish, and multiply.⁸ As the pipeline pushes forward and advocates seek out new avenues to protect the Rights of Nature in court, lawsuits on behalf of Nature itself remain a viable option.

Under the legal personhood of Nature theory, a natural object, feature, or landscape has rights in and of itself and can bring a suit in court for the

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protection of those rights.⁹ The legal personhood of Nature is a not-so-novel legal theory that groups have used with varying degrees of success around the world to further environmental rights.¹⁰ This Note examines the Rights of Nature leading to legal personhood and the movement around the globe, providing context for the current wild rice suit in Minnesota and the potential for a new way of protecting Nature.

II. Rights of Nature

A. What is Legal Personhood?

Legal personhood imputes rights and duties to someone (or something, as it may be) and allows the legal person to bring a legal claim to court to defend those rights.¹¹ Legal personhood is a "legal fiction." Although the word "person" implies human, "'[l]egal personhood' is not necessarily synonymous with being human,"¹² and neither are human-like attributes, as not even "autonomy and self-determination [have] been considered bases for granting rights."¹³ Legal personhood no longer solely applies to individuals. Organizations and corporations both have legal status and can go to court to protect their rights.¹⁴ It is argued that "[t]he determination of legal personhood... is a matter of policy and not a question of biology."¹⁵ That is, a policy that varies place to place and can be changed. Since non-physical corporations are granted legal personhood, similar theories of legal personhood should apply to more concrete natural objects that experience harm.¹⁶ Legal personhood of Nature and the environment is also called Rights of Nature.¹⁷

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B. What are the Rights of Nature?

The movement for legal personhood of Nature began in 1972 with Professor Christopher Stone's seminal article-turned-book, Should Trees Have Standing? Toward Legal Rights for Natural Objects.¹⁸ Professor Stone's central tenant is "that natural objects such as trees, rivers, lakes, and mountains be given certain legal rights."¹⁹ Professor Stone suggested that Nature be appointed a guardian in court who could speak on its behalf.²⁰ His seminal article also influenced Justice Douglas's famous dissent in Sierra Club v. Morton.²¹ In his dissent, Justice Douglas cited to the article, noting, "[c]ontemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation."²² Since then, the movement has continued to grow throughout the U.S. and globally. Organizations such as Earth Law Center emerged with the mission to "transform the law to recognize, honor and protect Nature's inherent rights to exist, thrive and evolve."²³ Other organizations include the Rights of Mother Earth, the Rights of Nature Sweden, the Earth Advocacy Youth, and the Global Alliance for the Rights of Nature.²⁴

The specific rights included in the Rights of Nature may vary as laid out in each situation, but they generally connote a "form of ecological governance that both provides for and prioritizes Nature's right to flourish."²⁵ These rights commonly include the "right to exist, persist, maintain and regenerate."²⁶ The term "Rights of Mother Earth" is also used to describe this paradigm shift.²⁷

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III. Around the World

A. Generally

At the collective international level, Nature's rights are protected in several ways. Though there is no universal designation of legal personhood giving Nature rights, a few international treaties focus on environmental protections. One of the first instances of the recognition of environmental rights on the international scale was the Stockholm Declaration that emerged from the United Nations Conference on the Human Environment held in Stockholm in 1972.²⁸ The Declaration "placed environmental issues at the forefront of international concerns."²⁹ However, the Declaration advocated for environmental rights in an anthropocentric way.³⁰ In fact, the first word in Principle 1 is "man."³¹

Another important and commonly used treaty is the Convention Concerning the Protection of the World Cultural and Natural Heritage.³² This convention takes a step further towards recognizing rights of Nature itself. The Convention prescribes that cultural and natural heritage need to be protected and defines natural heritage as:

natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view;

geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation;

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natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty.³³

While the World Heritage Convention does speak of natural beauty, the beauty is still appreciated by and protected within the context of human use and enjoyment. By the terms of the Convention, a specific natural feature is assigned value if it is considered valuable by a certain group of people, such as an indigenous population, or for the ongoing pursuit of scientific knowledge, rather than for any inherent value of beauty in and of itself.

Indigenous groups also have some opportunity to protect Nature internationally using the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).³⁴ UNDRIP recognizes cultural rights and identities of indigenous peoples which are often tied to the land and Nature.³⁵ Thus, UNDRIP is a vehicle for some protection of Nature, again limited in scope by its relation to a specific group's purposes.³⁶ Although this may be helpful internationally or in other countries around the world, it does not provide much legal support in the United States. The United States "agree[d] to support" the Declaration but does not recognize the Declaration as binding law.³⁷ Rather, the Declaration carries only moral and political force in the United States, meaning it does not provide a legal cause of action.³⁸ The Declaration still does not allow Nature to stand on its own and protect itself.³⁹

B. Case Studies and Examples

i. New Zealand

One of the most famous cases of the Rights of Nature is that of the Whanganui River in New Zealand.⁴⁰ The Whanganui River wound its way through

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the New Zealand court system⁴¹ in the years leading up to 2017 and was ultimately rewarded with legal personhood.⁴² The importance of the case is highlighted...