Natural Justice: An Argument for the Procedural Rights of Natural Entities Drawn from Indigenous and Administrative Legal Principles
Joshua Schwartz, University of Toronto Faculty of Law, Volume 82 Associate Publications Editor
1. The Limits of Natural “Resources”
The term “natural resource” appears neutral, but it is fundamentally skewed with anthropocentric bias. A resource is a repository of raw material made valuable by its exploitation and development. This description characterizes aspects of our environment that we depend on and benefit from in terms of human demand. A “renewable resource” is defined as a resource that can be replaced naturally or through human activity.[1] In contrast, a “non-renewable resource” cannot be replaced within a reasonable (human) time frame.[2] Even though, eventually, the resource restores itself, its lack of interim benefit to human activities renders it “non-renewable”. A natural entity, qua resource, is defined relative to its utility to humans.
Centering human needs in our definition of natural resources determines how we relate to the environment. In “developing” natural resources, our goal is to cultivate the stock for maximal human benefit rather than furthering the resource in its own flourishing. When managing a renewable resource, the aim is to attain its Maximum Sustainable Yield(“MSY”), that is, ensure its “optimum economic exploitation without depleting or destroying its reproductive capacity.”[3] While this objective is grounded in scientific inquiry into how much harvest a stock can sustain without collapse, it inescapably places the natural entities that comprise the “resource” at risk. Definitionally, MSY could only be achieved if the stock is taken to the limit of its sustainable productive capacity, which is based on uncertain projections.[4]Transforming a stock into a reliable source of profit unavoidably disturbs the balance of the biome, which in return unavoidably disrupts that very stock. Treating a natural resource like a specialized component in a Fordist factory appears rational. However, prioritizing the extraction of maximal commercial value from “stocks” disregards the fact that ecosystems are complex and emergent, and each of their elements are interrelated and interdependent.[5]
Over-extraction and resource exhaustion have led to a recognized need for the development of a regime that limits exploitation and ensures sustainability. Overarching economic objectives have meant that the solutions posed accord with those terms. Resources are under threat because of a lack of property rights. If no one owns a resource, no one controls it or can exercise property law’s right of exclusion to limit extraction.[6] Some scholars have insisted on a private property regime for natural resources, but even attempts to rehabilitate the “commons” and posit a regime of collective or communal ownership are still grounded in a concept of property.[7] That is, constraining extraction remains in the hands of the parties doing the extracting. While a common pool resource may widen the range of interests and thus instill more constraints on use, ultimate control over the resource would remain with the parties benefiting from its exploitation. Use and utility remain central.
2. Is Love All We Need? What of the Law?
The economic disposition to the natural world described above, in which relating to natural entities as sources of human benefit leads to placing those entities at threat, demands a de-centring of control. There is a structural danger when the party that benefits from another is also the sole power possessing control over it. In a provocative parable drawn from Anishinaabe archetypal folklore, Potawatomi naturalist Robin Wall Kimmerer analogizes the contemporary capitalist extractivist to Windigo, the transfiguration of a person into a cannibalistic giant.[8] To Kimmerer, the Windigo “is the name for that which cares more for itself than for anything else.”[9] In a commons-based society governed by a collective property regime, acting out of greed places the community in danger. Meanwhile, in a profit-driven society, the pathology of self-interest has become normalized, even lionized.
To Kimmerer and others, self-interest must be countered by the “other-interest” of morality and virtue. She writes, “[l]and is not capital to which we have property rights; rather it is the place for which we have moral responsibility in reciprocity for its gift of life.”[10] Reciprocity is central to Kimmerer’s account of human participation in the natural world. As a biologist, she is not troubled by the benefit humans receive from the environment. The problem with the use-based account is that humans see the benefit as the product of unilateral extraction rather than cooperative participation in an ecosystem. Kimmerer writes, “‘[g]oods and services’ [are] not purchased but received as gifts from the [E]arth.”[11]Realizing that the benefit we receive from natural resources is not owed to ourselves but to the generative power of the Earth induces an ethic of gratitude and reciprocity.[12] Realizing this ethic helps humans recognize that they are not a “conqueror of the land-community” but rather a “plain member and citizen of it.”[13]
An ethic of reciprocity leads to a disposition toward the natural world grounded in stewardship rather than profiteering. This maps to the communitarianism and collectivism of many Indigenous societies, in which “sharing [is] a survival value” that sustains life.[14] John Borrows has argued that this ethic of interdependence and reciprocity undergirds an animating legal principle of love, which governs and constrains environmental relations.[15] Looking to the structural constraint of Aboriginal title, in which uses inconsistent with succeeding generations’ ability to benefit from the land are prohibited, Borrows writes that placing ourselves within the ecosystem and constraining our use of it such that others can flourish “shows our respect and love for the earth.”[16]
While an ethos grounded in reciprocity and love for nature would surely yield a better legal and policy system, it persists in locating constraint in the party seeking benefit. Love constrains extraction so long as the extractor feels compelled by it. While a collectivist regime attenuates that risk, since control is shared across the community, it is still only the beneficiaries that determine what proper use entails. A private property regime would also have a heightened version of the same problem. What protection does the environment have against exploitation?
Below, I will argue that Indigenous legal ontology suggests a more radical revision of how we relate to nature. Love is essential to what our legal culture ought to produce and induce in us: a disposition of responsibility and care for that from which we derive benefit. However, to ensure those natural entities are adequately protected, they must have relief in the law. To ensure the world can survive and thrive amidst our use, its entities must not only be the objects of our loving concern but also recognized as bearers of rights.
3. Natural Justice: An Argument for the Legal Standing of Natural Entities
A. Reconciling to a New Legal Ontology
The legal ontology that undergirds settler resource exploitation reiterates a colonialist perspective. The resource in question is treated as inert and yielding, governed by the interests and policy of those who extract its value. Even plant and animal life is domesticated in a regime of resource “management.” By contrast, a central element in Indigenous ontologies posits that “[a]ll things are animate, imbued with spirit… interrelationships between all entities are of paramount importance.”[17] In this account, natural entities are not defined by the use to which they are put. Instead, they possess their own purpose, which must be attended to. This premise was implied in the gift economy described above. If benefit from the natural world is not taken but received from a donor, it implies intention on behalf of the donor environment. In this perspective, the gifts of the earth “belong to themselves.”[18] Presuming the legal maxim “first in time is better in right” holds, it serves as an immanent constraint on the implementation of any form of property regime. A property system that recognizes the self-ownership of the Earth must be more complex and participatory, rather than command-and-control.[19] Insofar as we can claim the Earth belongs to us, the Earth must be able to reciprocally claim that we belong to it. The natural world can make its claims on us.
Integrating this ontology must accompany Canada’s reconciliation efforts toward Indigenous peoples. Resource management bodies have sought to incorporate Indigenous Traditional Environmental Knowledge (“TEK”) into their information-gathering and decision-making processes, either through co-management or more informal arrangements. However, TEK cannot be extracted from Indigenous culture, refined, and processed, like the resources some seek to extract.[20] It must be accompanied by the perspectives and norms that inform this knowledge. As the Supreme Court of Canada (“SCC”) recognized in Van der Peet, reconciliation is an “intersocietal” endeavour and an attempt to bring into dialogue two “vastly dissimilar legal cultures.” The only “morally and politically defensible” position “incorporate[s] both legal perspectives.”[21] As Borrows argues, if the purpose of recognizing Aboriginal rights is reconciliation, these efforts must include Indigenous peoples’ relationship to the natural world. [22] As Borrows writes, “[R]econciliation with one another is premised on reconciliation with the [E]arth.”[23] The principle of akinoomaagewin recognizes the norms that inhere within the natural world; natural entities guide us in how to relate to and benefit from them.[24] In legislation and policy, Canada has consistently incorporated language affirming Aboriginal rights and the advancement of reconciliation in legislation and policy dealing with natural resource development.[25] Reconciliation compels Canada to recognize the perspective that animates the rights it affirms, which means recognizing the animate nature of the natural world and the self-determination that entails.
B. Legal Standing and Its Limits
In the past half-decade, the main pathway for seeking recognition of the environment’s self-ownership has been attempts to secure legal standing for natural entities. In Christopher Stone’s (in)famous article, he asked, “Should Trees Have Standing?” and answered in the affirmative.[26] In Sierra Club v Morton, the case that inspired Stone’s intervention, the Supreme Court of the United States (“SCOTUS”) refused to recognize the standing of Mineral King Valley, insisting the Sierra Club would only have standing if it suffered an “injury in fact” due to the aesthetic and recreational loss it would suffer as a result of the planned highway and resort. SCOTUS reiterated the colonialist logic of extraction and refused to recognize the environment’s own purposiveness. As Stone writes, “Until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of ‘us.’”[27] Besides the material benefit gained by development, natural entities only have relief in the courts if a member of the extracting class is the one suffering the loss. Legally, it is still our use that is determinative.
Stone’s legal intervention is grounded in the same recognition that the more-than-human world is self-purposive, and those purposes merit legal protection.[28] Recognizing that an entity bears rights accords it dignity and worth in its own right, not by dint of the benefit it yields for others. To ensure their purposiveness is protected, natural entities must be able to institute legal actions at their behest and have their injuries accounted for and relieved by the courts, and the relief must run to their own benefit.[29] In recent years, governing bodies have advanced this program by enacting policies recognizing particular natural bodies’ legal standing. In 2021, the Innu Council of Ekuanitshit and the Minganie Regional Country Municipality passed a resolution that recognized the legal personality of the Magpie River. In 2010, Pittsburgh adopted a resolution that recognized the inalienable and fundamental “rights of natural communities… to exist and flourish.” In 2017, to resolve a treaty dispute, New Zealand settled a land claim with the Māori people by passing the Te Awa Tupua (Whanganui River Claims Settlement) Act, which recognized the legal personhood of the Te Awa Tupua, a sacred river for the Māori. In all cases, some human party is authorized to sue on the natural entity’s behalf to ensure it can stand on its rights.
Stone’s intervention focuses on ensuring the environment can be made whole if humans interfere with its right to exist of its own accord.[30] Besides the regulatory penalties of statute, Stone suggests that tort action can be used to procure the resources necessary for healing the environment and protecting it from further interference while it recovers. While juridically assigning the cost of the environmental damage of any development to the “deep pockets” of the proponent would impose a constraint, focusing on the environment’s restoration interest means the law will always be playing catch up, and the liability shielding arrangements of corporations can potentially sew those pockets shut. Instead of opting for private legal standing, I will argue below that the environment’s role as a condition for our own flourishing implies it should be protected using public legal mechanisms. In particular, natural entities should be recognized as bearing administrative legal standing, securing rights to procedural fairness in advance of any potentially interfering act.
C. Hear the Other Side: Recognizing the Environment’s Participatory Rights
We begin, again, with the premise that the natural world has its own purposiveness, which implies legal standing. In Cardinal v Director of Kent Institution, the SCC recognized that a duty of procedural fairness arises when a public decision affects a person’s “rights, privileges or interests.” In Canada, at least, given the Crown’s nigh-exclusive resource ownership (and the radical title it holds), decisions affecting natural entities will almost always implicate the Crown. Accordingly, when the Crown initiates or approves a project, it must ensure that sufficient procedural protections are provided to the affected natural entity prior to the project’s commencement. According to Haida Nation v British Columbia (Minister of Forests), the Crown bears a duty to consult whenever it contemplates action affecting Indigenous rights or interests. Given that this duty flows from the honour of the Crown and is aimed at reconciliation, it may be appropriate to include natural entities in the consultation process when incorporating the affected Indigenous party’s legal ontology.
To ensure the rights and interests of natural entities are considered prior to the commencement of any project, the environment’s participatory rights must be recognized. This recognition ensures those representing the natural entity willbe informed of the planned project and can meaningfully address it, so the decision-maker can consider their perspective fully before the project begins.[31] This would impliedly necessitate an impact assessment of any project that non-trivially affects natural entities’ self-determination, which would require amassing data that is sufficient to ensure the representative can know “the case against it.” Suppose the Crown has a pressing and substantial objective in approving the project. In that case, it must justify its decision to the natural entity, showing a lack of alternatives, that the project minimally interferes with its purposiveness, and that the good outweighs the harm.[32] After the Crown justifies its interference, the natural entity can seek to be made whole moving forward.
4. Conclusion
A legal system in which only those who exercise power bear rights cannot avoid the risk of untrammeled discretion. Even if the circle of concern is widened and power is dissipated through collectivizing property rights over natural entities, decision-making power would remain with the parties who stand to gain. An ethic of reciprocity and love is needed to shape wiser policy, but it is insufficient once nature’s purposiveness is recognized. If nature’s interests depend on our ethos, it cannot be said to be self-determined. To free it from being defined by our benefit, nature must be recognized as having legal personhood. Its protection cannot be limited to restoration after injury; nature is entitled to be part of the decision-making process, to be informed of how it will be affected, and to be allowed to meaningfully make its case. Only rights constrain the Crown to justify its decisions. No more can we blithely take from the Earth that persists in giving, despite it all.
[1] Neha Khanna, “On the Economics of Non-Renewable Resources,” in John M Gowdy, ed, Economics Interactions with Other Disciplines, vol 2 (Oxford: EOLSS Publishers/UNESCO, 2009) 1 at 2.
[2] Ibid.
[3] Stella Spak, “The Position of Indigenous Knowledge in Canadian Co-management Organization” (2005) 47:2 Anthropoligica 233 at 235.
[4] Graham D Taylor, “The Collapse of the Northern Cod Fishery: A Historical Perspective” (1995) 18:1 Dal LJ 13 at 19.
[5] Lenard Milich, “Resource Mismanagement Versus Sustainable Livelihoods: The Collapse of the Newfoundland Cod Fishery” (1999) 12:7 Society & Nat Resources 625 at 629; James Tully, “Life Sustains Life 1: Value, Social and Ecological” in Akeel Bilgrami, ed, Nature and Value(New York: Columbia University Press, 2020) 174 [Tully, “Life 1”]; James Tully, “Reconciliation Here on Earth” in Michael Asch, John Borrows & James Tully, eds, Resurgence and Reconciliation: Indigenous-Settler Relations and Earth Teachings (Toronto: University of Toronto Press, 2018) 105 [Tully, “Reconciliation”].
[6] Garrett Hardin, “The Tragedy of the Commons” (2009) 1:3 J Nat Resources Pol’y Research 243 at 246-47.
[7] Elinor Ostrom et al, “Revising the Commons: Local Lessons, Global Challenges” (1999) 284:5412 Science at 278.
[8] Robin Wall Kimmerer, “The Windigo” in Simmons Buntin et al, eds, Dear America: Letters of Hope, Habitat, Defiance, and Democracy (San Antonio: Trinity University Press, 2020) 36 [Kimmerer, “Windigo”]; Jarvis Papers, Metro Toronto Reference Library, Collection #S-125, Volume B57, cited in John Borrows & Leonard Rotman, eds, Indigenous Legal Issues: Cases, Materials & Commentary, 6th ed (Toronto: Lexis Nexis, 2023) at 972-73.
[9] Kimmerer, “Windigo”, supra note 8 at 37. See also Robin Wall Kimmerer, Braiding Sweetgrass: Indigenous Wisdom, Scientific Knowledge, and the Teachings of Plants (Minneapolis: Milkweed Editions, 2013) at 376 [Kimmerer, “Braiding Sweetgrass”].
[10] Kimmerer, “Windigo”, supra note 8 at 38.
[11] Kimmerer, “Braiding Sweetgrass”, supra note 9 at 24.
[12] Ibid at 25.
[13] Aldo Leopold, A Sand County Almanac and Sketches Here and There (Oxford: Oxford University Press, 1949) at 251.
[14] Kimmerer, “The Windigo”, supra note 8 at 37; James Tully, “Life Sustains Life 2: The Ways of Reengagement with the Living Earth” in Akeel Bilgrami, ed, Nature and Value (New York: Columbia University Press, 2020) 181 at 191-92.
[15] John Borrows, “Love, Law and Land in Canada’s Constitution” in Steven Lecce, Neil McArthur & Arthur Schafer, eds, Fragile Freedoms: The Global Struggle for Human Rights (New York: Oxford University Press, 2017) 123 at 145-52 [Borrows, “Love”].
[16] Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para 74; John Borrows, “Earth-Bound: Indigenous Resurgence and Environmental Reconciliation” in Michael Asch, John Borrows & James Tully, eds, Resurgence and Reconciliation: Indigenous-Settler Relations and Earth Teachings (Toronto: University of Toronto Press, 2018) 62 [Borrows, “Earth-Bound”].
[17] Leroy Little Bear, “Jagged Worldviews Colliding” in Marie Battiste, ed, Reclaiming Indigenous Voice and Vision (Vancouver: UBC Press, 2000) 77, cited in Spak, “Position”, supra note 3 at 234.
[18] Kimmerer, “Braiding Sweetgrass”, supra note 9 at 17, 25.
[19] Tully, “Reconciliation”, supra note 5 at 103.
[20] Spak, “Position”, supra note 3 at 234, 243.
[21] Mark Walters, “British Imperial Constitutional Law and Aboriginal Rights: A Comment on Delgamuukw v British Columbia” (1992) 17 Queen’s LJ 350 at 412-13.
[22] Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40 at para 22.
[23] John Borrows, “Indigenous Law and Climate Change,” draft copy at 21 [Borrows, “Climate Change”].
[24] John Borrows, “Earth-Bound”, supra note 16 at 51; Kimmerer, “Braiding Sweetgrass,” supra note 9 at 158-59.
[25] See e.g., Mining Act, RSO 1990, c M14, s 2; Minister of Natural Resources, “The Canadian Critical Minerals Strategy” (2022) at 6, online (pdf) <https://www.canada.ca/content/dam/nrcan-rncan/site/critical-minerals/Critical-minerals-strategyDec09.pdf>; Impact Assessment Act, SC 2019, c 28, s 1, s 22(c), (g).
[26] Christopher D. Stone, Should Trees Have Standing? Law, Morality, and the Environment, 3rd ed (New York: Oxford University Press, 2010) at 1-31 [Stone, “Should Trees”].
[27] Ibid at 3.
[28] Ibid at 29-30.
[29] Ibid at 4.
[30] Ibid at 13.
[31] O’Connell, as the Registrar of Motor Vehicles for the Province of New Brunswick v Maxwell, 2016 NBCA 37 at para 46; Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 at para 22 (SCC).
[32] I draw on the Oakes test as a paradigm of proportionality and justification, hallmarks of reasonableness. Stone adopts a similar approach in his gesture to procedural protection; Stone, “Should Trees”, supra note 26 at 18-19.