Scene on Peru’s Marañón River, where Kukama women are suing to gain the river legal personhood.
One of Mari Luz Canaquiri’s lasting childhood memories is of the mijano—the migration of huge schools of fish up the Marañón River past the indigenous Kukama village of Shapajilla, where her family lives in Peru’s northeastern Loreto region.
Naming the large species prized as a food source in the Amazon, she recalls: “There was a mijano of paiche [Arapaima gigas], a mijano of gamitana [Colossoma macropomum], a mijano of dorado [Brachyplatystoma rousseauxii], a mijano of gilded catfish [Zungaro zungaro].” There were also mijanos of smaller species, she says, adding that members of her community refrained from catching these fish so the larger species could feed on them.
Today, the massive schools of large Amazon fish are a thing of the past, due to environmental pressures ranging from commercial fishing to deforestation and climate change. That leaves Canaquiri to worry about what her children and grandchildren will eat in the future. She sees other threats, too—pollution from oil spills and a plan, currently suspended, to dredge the river so it is more navigable during droughts. (See "Culture, ecology get short shrift in river plan"—EcoAméricas, January 2015.)
That’s why in September 2021, she and other Kukama women in the organization Huaynakana Kamatahuara Kana—”women who work,” in Kukama—filed a lawsuit asking Peru to recognize the Marañón and its tributaries as possessing the rights of a person.
In initiating the case, currently before a lower court, they joined a growing movement of organizations worldwide and in Latin America, including many indigenous peoples, insisting that nature, or elements of it, be granted legal personhood. The movement’s overarching goal is to obligate governments and courts to protect nature’s rights by ensuring ecosystems can remain healthy and perform their natural functions.
“If we don’t do something, what will happen in the future?” Canaquiri asks. “What will people, the children who are born, eat if we don’t safeguard the place where they’re going to fish, plant their gardens and build their houses?”
The path to personhood for nature has taken different forms in Latin America. Ecuador and Bolivia have enshrined the rights of nature in their constitutions, and Chileans are poised to vote Sept. 4 on a new constitution that, if approved, would recognize nature as having rights requiring protection. (See "Chileans to decide fate of 'ecological constitution'"—this issue.)
In other countries, such as Brazil and Mexico, municipalities have taken the lead. In Colombia, advocates have won court decisions recognizing rivers as having rights. And most recently, in February, Panama passed a law stating that all people have the right to “an environment that is healthy and in harmony with Nature.” The law also recognizes nature itself as having certain rights, including the rights to exist, to maintain its biological diversity, to be free of pollution, and to be restored when damaged by human activity.
Law with a spiritual dimension
A number of laws and court decisions mention not only the importance of a healthy environment for human welfare, but also the spiritual importance of the natural world, particularly rivers, for indigenous and traditional communities.
That emphasis on indigenous world views is “extremely important,” says Grant Wilson, executive director of the U.S.-based Earth Law Center in Durango, Colorado. “You can’t look at [the] rights of nature in a vacuum. It’s interconnected with indigenous rights, with the indigenous cosmovision, and those have been very influential in how rights of nature look in Latin America, as well as in terms of support from indigenous communities.”
The spiritual dimension is a cornerstone of the Peruvian case—the first of its kind in that country, though a local ordinance has recognized the rights of rivers in a province high in the Andes.
“For the Kukama people, the Marañón River is very sacred,” Canaquiri says. “It’s like a father who provides food. The river is also part of the territory, and the territory is our mother.”
In many Amazonian cosmovisions, everything in the natural world has a madre, or spirit.
“For the Kukama people, the madre of the river is the purahua [anaconda], and the soul of the purahua is a person, a man. Every animal has a madre, and that madre is the spirit of each animal. And the animal’s spirit is a person,” Canaquiri says.
“If the soul of the anaconda is a person, why can’t it be a subject?” she asks, borrowing a word from the legal phrase ‘subject of rights,’ which refers to something with legal personhood. “Why can’t the river be a subject, if its soul is a person?”
The women’s legal case refers to the river’s cultural significance as the birthplace of the first Kukama person and as home to a myriad of spirits. Some of those spirits are those of people who vanished into the river’s depths and now inhabit cities whose entrances are the whirlpools that form on the surface in certain places. Others are spirits that shamans call on for help in healing people’s ills. If the suspended river-dredging project goes forward it would make the spirits flee, Canaquiri says. She adds that more development along the banks—privatized port services in the town of Nauta, or the purchase of riverfront property for tourist lodges—makes it harder for shamans to communicate with the spirits.
Indigenous people in Panama also have a close relationship with water and other elements of the natural world, says Felipe Baker, a 27-year-old Ngäbe-Buglé activist from Bocas del Toro on the country’s Caribbean coast. For his people, the turtle represents a maternal spirit, while jaguars are important in the Emberá Wounaan spirit world, he says.
Panama’s new rights of nature law recognizes that cultural significance, stating: “The cosmovision and knowledge of the country’s indigenous peoples must be an integral part of the interpretation and application of the rights of Nature.”
Baker considers the new law a bridge between the indigenous world view, which he shares, and the Western legal and political perspective. He hopes it will act as a brake on plans for hydroelectric dams, mines and other development projects, and will encourage non-indigenous people to “see nature as a living being.”
That is one reason why indigenous people in other countries have also supported rights of nature legislation and court cases as “a new tool to help protect certain ecosystems and landscapes,” says Wilson.
“To some communities, their cosmovision, or relationship with nature, might have nothing to do with rights or Eurocentric legal principles, but [the concept of rights of nature] can still be an effective tool to defend their native and traditional territory and something that makes sense when you translate some of their beliefs into a Western legal context,” he says.
Other groups find the concept “fits in very nicely with their beliefs,” Wilson adds. “The lesson I’ve learned is that there’s a diversity of beliefs and cosmovisions and understandings, even just in Latin America.”
The modern rights of nature movement dates back about half a century. In 1969, the Sierra Club in the United States sued to stop development in California’s Mineral King Valley, arguing that it had an interest in the issue because its purpose was to protect the environment. The group lost its last appeal to the U.S. Supreme Court; but in a dissenting opinion, Justice William Douglas wrote that the plaintiff in the case was actually the valley, and that the Sierra Club had acted on its behalf.
That position was bolstered in 1972, with the publication in a law review of the article “Should Trees Have Standing?: Towards Legal Rights for Natural Objects,” by the late Christopher Stone, then a law professor at the University of Southern California.
But it was not until 2017 that a river was granted recognition as a legal person. New Zealand’s Whanganui River, known as Te Awa Tupua to the Maori people, who hold it sacred, has a group of legally appointed guardians to look out for its interests.
In Latin America, the movement gained steam in 2008, when Ecuador approved a new constitution that recognized both the rights of Ecuadorians to a healthy and ecologically balanced environment and the rights of the Pachamama, or Earth mother. Nature, the constitution says, has the right to integral respect for “its existence and the maintenance and regeneration of its vital cycles, structure, functions and evolutionary processes.”
The state, in turn, is obligated to “apply measures of precaution and restriction for activities that may lead to the extinction of species, destruction of ecosystems or permanent alteration of natural cycles.”
Ecuador on forefront
Bolivia has a similar provision in its constitution, but Ecuador has advanced further, Wilson says, with court decisions in cases aimed at protecting ecosystems from mining, a tailings dam, the illegal shark fin trade, genetically modified crops and development activities that would affect mangroves.
Most recently, in January of this year, Ecuador’s Constitutional Court ruled that the rights of two plaintiffs and the Monjas River near Quito had been violated, mainly by the discharge of wastewater into the river, and ordered “rehabilitation” of the river and “non-repetition” of the environmental violations.
Hugo Echeverría, an attorney who has been monitoring rights-of-nature implementation in Ecuador for the Center for Democratic and Environmental Rights in Spokane, Washington, says that so far the results are positive.
“In the cases in which the [Constitutional] Court has issued sentences, it has not only issued a sentence recognizing that the river is subject of rights, but has established very specific orders,” he says. “The most important are, for example, reforms to Ecuadorian legislation, to adapt the legislation not only to environmental rights but also to the rights of nature.”
In the case of a river that dried up because government-issued permits allowed too much water to be withdrawn for irrigation, the court canceled the permits and ordered that new permits take into account the river’s right to maintain its natural functions.
In another case, the tribunal threw out mining-related environmental regulations because they allowed an entire river to be diverted for the benefit of a mining company, violating the river’s rights.
Colombia has not enshrined the rights of nature in its constitution, but in a 2016 case involving illegal mining, the country’s Constitutional Court recognized the Atrato River as having rights. The ruling highlighted the spiritual significance of the Atrato for indigenous and Afro-Colombian communities and was followed by decisions recognizing the rights of other rivers, a páramo ecosystem, a lake, several national parks and the Colombian Amazon. In Colombia, a new area of jurisprudence is emerging that focuses on “biocultural rights,” a melding of rights of nature with indigenous world views.
First steps in Peru
In Peru, people involved in the Marañón River lawsuit are not sure what that country’s courts will decide, but they view the lawsuit as a first step and say they will continue to press for recognition of rights of nature, even if the court rules against them.
Patricia Urteaga, a law professor at the Pontifical Catholic University of Peru with expertise in water-related issues, sees several potential legal hurdles. The Marañón River begins high in the Andes and passes through dozens of local jurisdictions on its journey to the Amazonian lowlands, where it joins the Ucayali River to form the Amazon River.
“It’s not just an indigenous river,” Urteaga says. “A lot of communities depend on the river and are not indigenous.” She also questions how a judge in one Amazon district can have the power to make decisions about a river that runs through dozens of jurisdictions. “My position is that it’s interesting to open the debate, but I think there are many things that aren’t resolved and, as a result, many decisions about the rights of rivers are not being applied,” she says.
Wilson of the Earth Law Center agrees that debate is crucial, adding he expects the rights of nature to continue evolving. “I am excited that there is mainstream dialogue about the rights of nature in pretty much every country in Latin America,” he says, acknowledging that some countries still have not adopted the concept. “It’s part of the public and political discourse now in a way that’s really amazing compared to 10 years ago, when it was a legal obscurity.”
- Barbara Fraser
In the index: Leaders of the women’s group, called Huaynakana Kamatahuara Kana—from left, Celia Fasabi, Mari Luz Canaquiri and Emilsen Flores. (Photo by Quisca)