Patagon Journal

Should Nature Have Rights?

¿Debe la naturaleza tener derechos?

- By Paulo Urrutia and Patrick Lynch

Recently, we started out on a kayaking trip along the Biobío River, from its headwaters at Laguna Galletué to the Ralco dam reservoir. For several days we paddled its turbulent waters among hilly plateaus surrounded by araucaria trees. Coihue and native oak trees covered the landscape. Countless torrent ducks and birds such as cormorants and kingfisher­s dancing again and again in front of our eyes. But this celebratio­n of life rapidly came to a halt after a brutal encounter with the manmade Lake Ralco. The abrupt disappeara­nce of the birds and the smell of decomposin­g organic matter on the banks of this artificial lake left us silent, our souls in the air: we had witnessed the consequenc­es of mutilating a river.

The cultural significan­ce of the Biobío River – Butaleubu in the indigenous language mapudungún – is reflected in the Mapuche worldview, which believes in the parallel existence of both a great earthly river and a spiritual river. Both are necessary for balance between the two dimensions. For a very long time, the Biobio represente­d the great earthly river, with its hundreds of braids extending throughout the region.

The Mapuche worldview is like that of many other indigenous groups that live in close contact with the land in that it personifie­s the presence of spirits in certain ecological spaces. Ngen are the spirits who protect and steward nature; Pillan are the collective spirits that inhabit volcanoes. Patagon Journal

This view engenders a relationsh­ip of respect toward nature, establishi­ng an interactio­n and interdepen­dence among all living beings and making up one great living organism known as Itrofil Mogen. As visitors to these spaces, whether a mountain, wetland, or river, we must respectful­ly request permission to enter.

This is why what happened on the Biobio – and what continues to happen in many other areas – is a culture shock between two opposing concepts of nature: the western view that sees nature's utilitaria­n value as a “resource;” and the indigenous worldview that perceives nature as a living and sentient being. Science is generating greater support for the latter, with examples like Gaia Theory or referring to the rivers as being alive (“Los Ríos Están Vivos”). Would it be possible to take inspiratio­n from indigenous groups in order to guarantee rivers' right to flow, or mountains' right to exist, and assure future generation­s that nature will be protected?

Until a few months ago, the idea of a democratic and sovereign constituti­on that defines the pillars upon which Chilean society is based appeared to be a distant yearning, far from the national reality. However, the process that Chile is currently undergoing has demanded a new fundamenta­l basis that responds to the needs of 21st century society. The current model that governs the country's centralize­d “social order” generates mistrust among residents, based as it is on an extraction­ist economic model that fails to take into considerat­ion both social and environmen­tal externalit­ies.

In recent years, a series of legislativ­e proposals have been based on collective and intangible rights, as well as future rights. Traditiona­lly, nature has been subjected to a system of legal property based on western concepts. However, just as inheritanc­e laws exist – a future individual right – it's possible to think of a future collective right, such as the right for future generation­s to live in an environmen­t free of contaminat­ion. Inspired by indigenous worldviews, we might legally treat nature and its ecosystems as living organisms, thereby granting them their own rights.

In 2017, New Zealand's Whanganui River became the

world's first river to be granted legal status, after the Māori fought for years to have it recognized as a living entity. Later, India recognized the Ganges and Yamuna rivers as legal entities, but these rights were later annulled. In July 2019, Bangladesh granted all of its rivers the same status, and in September of the same year the Yurok tribe of California, in the United States, continued the same legal path with the Klamath River. In South America, Ecuador and Bolivia have been the pioneers of incorporat­ing nature's “right to comprehens­ive respect” in their constituti­ons.

The indigenous communitie­s in New Zealand had fought more than 160 years for recognitio­n of their deep relationsh­ip to the Whanganui River, ever since the signing of the Treaty of Waitangi, the country's founding document, in 1840. Today they celebrate having achieved that first step, while communitie­s along the river are joining forces to build a strategy that treats the body of water as a single indivisibl­e entity. This offers the country a framework for outlining a new path toward protecting the Whanganui and provides an example to the world of how to take care of our planet's arteries – its waterways. Legal guardians can defend the river in court if its rights are violated. The law does not offer iron clad protection, but it's a solid start for those who want to defend a river's rights.

Another notable example is that of Ecuador. Chapter 7, article 71 of Ecuador's constituti­on declares that “nature, or pachamama, where l i fe is produced and carried out, has a right to comprehens­ive respect for its existence and for the maintenanc­e and regenerati­on of its vital cycles, functions, and evolutiona­ry processes.” In practice, this means that all people, communitie­s, indigenous groups and nations can hold Ecuadorian authoritie­s accountabl­e for guaranteei­ng nature's rights. The interestin­g thing about this clause, which was later emulated by Bolivia, is the granting of positive rights: the right to be restored, regenerate­d, or respected (article 72). It also resolves the matter of legitimacy, guaranteei­ng the law's applicatio­n to everything evenly, which is to say that in Ecuador any person – regardless of his or her relationsh­ip to a determined portion of land – can go to court to protect it.

In another example, in Colombia in 2017, the residents of the Cajamarca municipali­ty voted against gold exploitati­on in their area, opposing the mining project La Colosa with the slogan “water is worth more than gold” and, importantl­y, appealing to the fact that nature has rights. The fight to achieve this paradigm shift also occurred on the shores of Lake Erie in the United States when Toledo approved an ordinance that permits its citizens to sue in the name of the lake in response to high contaminat­ion rates.

The Great Chilean doubt

Through regulation­s like the Anti-terrorist Law and the State Interior Security Law, Chile has incurred systematic persecutio­n of Mapuche people who have spoken out against the destructio­n of forests, rivers, and mountains. This, despite the fact that Internatio­nal Labour Organizati­on (ILO) Convention 169, an internatio­nal treaty related to indigenous peoples and signed by Chile, establishe­s “the State's obligation to respect the special importance of cultural and spiritual values that cloaks indigenous people's relationsh­ip to the land or territory.”

Today there are political prisoners who have been detained for defending their territory; for accessing culturally and ecological­ly significan­t places, like the Tralcal cousins for the Lucksinger Mackay case; or Millaray Huichalaf, the machi (a religious figure in Mapuche culture), and other defenders of the Pilmaiquén River. Francisca Linconao, another machi, is known for being one of the accused in the Lucksinger Mackay case from which she was later absolved, but few know about her active role in protecting the forests and waters of her region. In 2008, she filed a civil suit against Palermo Society Ltd, denouncing the illegal deforestat­ion of native forests that infringed on Article 5 of Chile's Forest Law, in addition to affecting a culturally significan­t site called menokos made up of wetlands inhabited by the Ngen spirits. The Appeals Court of Temuco ruled in her favor, making her the first person to use the ILO Convention 169 in Chile.

It would seem that we are in the midst of a transition toward recognizin­g the Earth's value as a whole – with legal and juridical bases. Prioritizi­ng the well-being of ecosystems for humanity – present and future – and for other living organisms, within a new legal framework, is our next big challenge. Considerin­g how nature functions requires us as a society to adjust our institutio­ns so they can respond to these dynamics. The conditions are there: indigenous people's profound understand­ing of nature already exists, ready to be applied in a new constituti­on. Civil society and empowered communitie­s will determine in what ways these issues emerge. It depends on us to define the new country we want as we build our new magna carta.

 ?? CARLOS LASTRA ??
CARLOS LASTRA
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 ?? BASTIAN GYGLI ?? Death of a forest near the Biobio River in Chile. La muerte de un bosque cerca del río Biobio en Chile.
BASTIAN GYGLI Death of a forest near the Biobio River in Chile. La muerte de un bosque cerca del río Biobio en Chile.
 ?? DENNIS KUHN ?? A group of Maori participat­ing in an indigenous ceremony on the Whanganui River in New Zealand.
Un grupo de maoríes que participan en una ceremonia indígena en el río Whanganui en Nueva Zelanda.
DENNIS KUHN A group of Maori participat­ing in an indigenous ceremony on the Whanganui River in New Zealand. Un grupo de maoríes que participan en una ceremonia indígena en el río Whanganui en Nueva Zelanda.
 ?? CARLOS LASTRA ?? Kayakers arriving at the San Pedro River hydroelect­ric dam.
Kayakers llegando al Central Hidroeléct­rica San Pedro.
CARLOS LASTRA Kayakers arriving at the San Pedro River hydroelect­ric dam. Kayakers llegando al Central Hidroeléct­rica San Pedro.
 ?? ERICK VIGOUROUX ??
ERICK VIGOUROUX

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