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Could Rights of Nature Laws Help Save Endangered Orcas?

In the face of the climate crisis imperiling endangered species, some activists and governments are turning to a radical, rights-based approach to protect nature
orca whale

In the U.S., more than two dozen communities have passed resolutions and ordinances recognizing nature's rights. (Photo: Barcroft Media/Getty Images)

The Pacific Northwest's most iconic species—the orcas that live in the Salish Sea year-round—are on the brink of extinction with just 73 whales remaining as of July 1. The Southern Resident orcas have made headlines repeatedly over the past year, including the recent loss of three adult whales and last summer's widely reported story of a female who carried her dead calf for more than two weeks and over 1,000 miles.

And orcas aren't the only species under threat. A United Nations report released in May found that human activities have placed 1 million species in danger of extinction, many within decades.

As the Southern Resident orcas and other species struggle to survive in a rapidly warming, industrialized world, some activists and governments are turning to a radical, rights-based approach to protecting nature. Over the past decade, initiatives worldwide have begun to transform Western law to respect the inherent rights of the natural world to exist and flourish.

More than 20 countries now recognize the rights of nature through laws or judicial decisions. In the U.S., more than two dozen communities have passed resolutions and ordinances recognizing nature's rights. Most recently, voters in Toledo, Ohio, approved a ballot measure enacting a Bill of Rights for Lake Erie, essentially saying that the lake has legal rights like a person does. Industry and the Ohio state government have since pushed back against the local law—a common response to this community-level rights work spearheaded by the Community Environmental Legal Defense Fund.

Tamaqua, a Pennsylvania borough, became the first place in the world to pass a law recognizing the rights of nature in 2006. The practice has since spread to western states like Colorado and California. And internationally, Ecuador and New Zealand have formally recognized the rights of nature in a 2008 constitutional amendment and in legislation passed in 2014 and 2017, respectively.

Though the legal movement is just over a decade old, the rights of nature framework isn't. It reflects an understanding that Indigenous peoples have embraced since time immemorial. "We have a reciprocal relationship or spirit to our lands and waters," said Reuben George of the Tsleil Waututh First Nation, speaking at a May news conference on the Coast Salish Nations' opposition to the proposed expansion of a Canadian shipping terminal. "Our culture and our spirituality is essentially our law," he said. "We abide by those things that we have a spiritual connection to, and that's our law."

By contrast, in Western legal systems, nature is considered property. "Our legal systems are designed to legitimize and facilitate exploitation," South African environmental attorney Cormac Cullinan explained during a symposium on rights of nature held this past October at Vermont Law School.

The rights of nature framework is about shifting this legal paradigm. Essentially the idea is that nature and other beings that have survived the evolutionary process have an inalienable right to exist and flourish.

The effort is now extending to the Pacific Northwest.

Protecting Orcas: Rights for the Salish Sea

Pollution, noise and vessel traffic, and lack of sufficient food threaten the Southern Resident killer whales. Industrial pollution, increased shipping traffic, dammed rivers, and warming ocean and river temperatures threaten the Chinook salmon the whales feed on. The population of Southern Resident killer whales is at a 35-year low and has been listed under the Endangered Species Act since 2005.

Washington Gov. Jay Inslee has established a task force and set aside $1.1 billion for orca recovery. His initiatives include establishing a stakeholder process to study economic impacts of breaching four Lower Snake River dams, increasing distance required distance between vessels and orcas to 400 yards, and putting a three-year ban on whale watching in place, among other investments.

Some advocates say these efforts don't go far enough.

A sign reading "Protect Our Salish Sea" at an anti-climate change rally held at Peace Arch Historical State Park on Sept. 22, 2014. (Photo: Robert Ashworth/Wikimedia)

"A rights-based approach would require that we get to the root cause of this problem, which we feel is still largely being ignored," said Michelle Bender, ocean rights manager at the Earth Law Center, a non-profit that advocates for establishing legal rights for ecosystems. Just as humans and corporations have legally recognized rights, so too should nature, Bender said.

"Our whole system, including what [Gov.] Inslee has to work from, really predicates itself on controlling nature. Even with attempts to do good, it's still about control of the natural world," said Kai Huschke, Northwest community organizer with Community Environmental Legal Defense Fund. "Our systems have to shift."

In January, a coalition including Indigenous peoples, community groups, scientists, and lawyers unveiled the Declaration on the Rights of the Southern Resident orcas. The declaration recognizes that "nature and all living beings have inherent rights to exist, flourish, evolve, and regenerate." It lists specific rights inherent to the Southern Resident orcas, such as rights to life and an adequate food supply.

"We're looking at creating an initiative that will go on the ballot in 2020 that recognizes the rights of the Salish Sea to exist."

The decline of the resident orca population "shows us how our current laws are not remedying the severe decline of entire ecosystems" attorney Elizabeth M. Dunne said in a news release. "We must adopt a framework recognizing that ecosystems have the rights—such as to exist, flourish, evolve, to sustain life, and to be restored to a healthy state—if we truly want to save the Orca, and ultimately ourselves, from extinction."

The declaration specifically calls for the creation of a stewardship board, which would provide guardian representation for the orcas. According to Bender, these representatives could include scientists studying the orca population and Indigenous peoples like the Lummi Nation who refer to the orca as their "relations under water."

The 2,800 signatories of the online petition are demanding that all levels of government—from local to national—"follow the Tribal and First Nations in recognizing the inherent rights of the Southern Resident orcas and the ecosystems upon which they depend."

In the San Juan Islands, a group called Community Rights San Juan Islands, supported by the defense fund, is working on advancing a countywide Bill of Rights for the Salish Sea. The group is aiming to get the initiative on the ballot in 2020.

"We're looking at creating an initiative that will go on the ballot in 2020 that recognizes the rights of the Salish Sea to exist, thrive, and regenerate its natural cycles," said Kai Sanburn, a resident of Lopez Island who helped form the group almost two years ago.

The group is small, maybe a dozen or so people who meet regularly on Lopez Island, but they are reaching out to others on the other islands.

"The orcas almost have a mystical hold on people here."

Huschke has held several workshops on the islands introducing the idea of legal rights for the Salish Sea, and said "there's an acceptance" by the island communities to the concept of rights for nature. Still, crafting a law that all residents can get behind, regardless of political affiliations, will be challenging, he said.

Sanburn agreed that the task would not be easy or quick. "We recognize we need to do some deeper work around how we can create a law that unites people," she said, "because clearly nothing will happen to protect the Salish Sea if it doesn't become a regional response."

"What unifies people who may have very different political views is a deep appreciation for this place," she added. "The orcas almost have a mystical hold on people here."

Elisabeth Robson, who is working closely with Sanburn on the ballot initiative, said they expect pushback from vested interests such as commercial fishing and oil exportation.

Commercial farmers in Ohio immediately sued when the Lake Erie Bill of Rights passed, and the state government recently moved to ban rights of nature enforcement through a provision in the state budget bill. The state of Washington has also quashed local efforts to fight pollution—in 2016, state courts blocked a citizen ballot initiative in Tacoma opposing a fossil fuel methanol plant.

Members of Community Rights San Juan Islands hold up signs to show support for the Lake Erie Bill of Rights, which passed, in February 2019. (Photo: Ani Sandburn-Bill)

Robson said she is aware of this kind of retaliation and noted that the Salish Sea initiative may face similar challenges. But that is not deterring the group from its effort to change the law—or at the very least, change the conversation. "This is something we need to do to help change hearts and minds," Robson said. "Just getting the conversation started is huge."

Recognizing Nature's Rights Around the World

Efforts from around the world, including Ecuador and New Zealand, represent different approaches to applying the rights of nature framework to a country's legal scaffolding.

Since 2008, Ecuador's constitution has recognized nature's right to exist, regenerate, and be restored. This constitutional law has been tested in the courts. According to Ecuadorian attorney Hugo Echeverria, Ecuador has had 25 such cases in Ecuador, 17 of which have resulted in decisions in favor of nature's rights.

One case found that illegal captures of sharks—including some endemic species—in the Galapagos Marine Reserve violate nature's rights. The marine reserve is home to more than 34 species of sharks, many found nowhere else in the world. They are largely protected in the marine reserve but are not immune to commercial activities and illegal capture. Earth Law Center advocates for taking it a step further to recognize the marine reserve as a legal entity, which would require the government to prioritize conservation over human-centered objectives and ensure that activities within the reserve respect the rights of nature.

Advocates hope the rights of nature approach will stave off extinction for the Southern resident killer whales.

New Zealand has taken a different approach by recognizing the personhood of specific natural entities, rather than the general rights of nature. In 2017, for example, the country passed a law granting legal "personhood" rights to the Whanganui River. And in December 2017, Mount Taranaki received legal personhood recognition and corresponding rights.

These New Zealand laws focus on the responsibilities of people as stewards and on cultural redresses. Specifically, they recognize the beliefs and rights of the Indigenous Maori to act as stewards.

There are multiple avenues to apply legal rights to natural ecosystems and the communities they support, but the philosophical underpinnings are the same. However it's applied, either to nature in general or to a specific nonhuman entity, in a constitution or a set of laws—the framework is about transforming the legal system and rethinking humans' relationship with nature.

Indigenous people's beliefs—that humans must have a reciprocal relationship with the land and waters—best exemplifies this thinking. "What we do to the web of life, we do to ourselves. If any strand of the web is broken, the whole web is affected," said the Lummi Nation, an Indigenous tribe in the Salish Sea region, in an emailed statement.

Advocates hope the rights of nature approach will stave off extinction for the Southern Resident killer whales. "If we were to get rights of the Southern Residents or rights of the Salish Sea recognized, that would do a lot more towards recovery efforts and actually require us to take these necessary actions to ensure their survival," Bender said.

"Our belief is that not only the salmon and qwe 'lhol mechen [orca], but all the air, the land, the water, the creatures, they all have inherent rights," the Lummi explained in an emailed statement. "The orca and the salmon never needed saving before contact."

Dana Drugmand

Dana Drugmand

Dana Drugmand is a freelance journalist and environmental advocate. She completed her Master’s degree in Environmental Law and Policy at Vermont Law School.

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