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The legal rights of trees …

… and rocks and hills and lakes and things

By Jen Stern

, |

The legal rights of trees …

… and rocks and hills and lakes and things

By Jen Stern

, |

3 min read

We are all aware that we need to do an environmental impact assessment before we embark on any large-scale (or sometimes even small-scale) endeavour like mining, new building, landscaping – even farming. But this is – in the scheme of thing – relatively recent, so it is still seen by many as an inconvenience imposed by tie-dye-clad, lentil-eating tree huggers. But how did we get here? How did trees get legal standing? (And rocks, and bunnies and other natural things.) And why should we comply with the spirit of this legislation rather than trying to circumvent it by manipulating the letter?

Tree huggers

The term tree hugger was coined to describe the Chipko Movement in which villagers clung to trees in the Gopeshwar forest to protect them from being cut down to manufacture tennis racquets. The loggers, realising they would have to go through the people to get to the trees, left. This strategy has spawned a plethora of similar movements since then, but it was inspired by a much earlier, somewhat more traumatic, incident – the Khejarli massacre. In 1730, also in India, 363 people were killed trying to protect trees from being cut down – yes, by hugging them. The trees, which were sacred to the local Bishnois people, were destined for use in the construction of a palace. When the foresters arrived, one woman instinctively hugged the nearest tree, saying they would have to go through her body to cut down the tree. They did. Then her daughters hugged the three closest trees. They, too, were hacked down. A further 360 villagers were hacked down protecting the trees before the rajah for whom the palace was intended relented, apologised and conferred a protected status on the remaining trees.

That’s unthinkable today. Right? There is no way we could get away with hacking down tree huggers. But that’s just it. In 1730 in India (and definitely not only in India) some people had no more rights than trees or stones. Sure, hacking them down was messy, and hard work, but they were – well – ‘different to us’ so they weren’t really people – or at least not people like us with, you know, ‘rights’. Unthinkable!

How did trees get rights?

In his seminal work Should trees have Standing, University of Southern California law professor Christopher Stone wrote: ‘It is this note of the unthinkable that I want to dwell upon for a moment. Throughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable. We are inclined to suppose the rightlessness of rightless “things” to be a decree of Nature, not a legal convention acting in support of some status quo.’ He goes on to describe how in different times and places, women, children, black people and other ‘others’ were seen as inherently rightless. Slaves could be bought and sold, it was impossible for a man to rape his wife because she had no right of refusal, and it was legal to sell one’s children (even in the Bible). In Ancient Rome (from whence much of our legal system derives), men had ius vitae necisque (the right to life and death) over their children, which has been interpreted to mean that a father could not be prosecuted for killing his children as he had ‘created’ them. (I’m on shaky ground here, but I suspect a mother would not have been granted the same immunity.)

So what?

So what does this really mean for us living in the 21st century? We live in a country with some of the best human rights legislation in the world and we have comprehensive environmental protection legislation – at least on paper. But we also know that – despite this – women, children and poor, unemployed and/or homeless people are not effectively protected. They are what George Orwell in his satirical masterpiece, 1984, would have referred to as ‘less equal’. And our comprehensive environmental protection legislation is studied in detail by many people – not so that they can comply with it – but so that they can find loopholes to effectively and with impunity flout any inconvenient regulations. Yup, trees, rocks and streams would definitely have been considered ‘much less equal’ if Orwell had considered them at all. But he was writing in a time when 1984 seemed waaaaay in the future.

In practice

What this really means is that we need to be aware of the fact that things change, values change and norms change. You only have to think of the people who, having been ‘blindsided’ by being publicly shamed in campaigns like #metoo, throw up their hands in horror and disclaim in their defence: ‘It was the 1960s – that was normal.’ So, before you start looking for loopholes in environmental legislation, think and reflect on these people, and think back to the things that were considered ‘normal’ in South Africa in the 1950s, 1960s and 1970s.

Many of us have already been caught on the wrong side of history, and – in retrospect – realise that we should have known better. Just because something is not illegal (yet), does not mean it is right or moral.

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