This essay is written by Gabriel Eckstein, Professor of Law at Texas A&M University, director of the TAMU Law Program in Natural Resources Systems, and director of the International Water Law Project. He can be reached at gabrieleckstein [at] law.tamu.edu.
Today, at least five rivers around the world – Whanganui in New Zealand, Yarra in Australia, Atrato in Colombia, Narmada in India, and Vilcabamba in Ecuador – enjoy some measure of independent legal recognition under national law. Efforts to afford similar legal respect to the Ganges and Yamuna rivers in India (here and here) and the Colorado River in the United States (here and here) have also been sought. The following is the last in a series of essays exploring this unique phenomenon (see first essay / second essay / third essay / fourth essay / fifth essay / sixth essay). The purpose of the series was to engage in a dialogue and assess the merits and extent of such recognition, and to consider the possible ramifications for people and communities, and of course, the rivers protected under such actions. What emerged is an insightful and diverse conversation that offered critical and constructive analyses, and which furthered the conversation over this novel legal approach to the management of critical freshwater resources.
Ganga – Hindu river goddess of the Ganges River
Questions Abound
As a foundational issue, Erin O’Donnell asked the quite fundamental question of why a river might need to protect itself. In modern societies, people and communities have traditionally sought to protect natural resources through environmental laws and regulation, with varying results. As such, it is unclear whether affording legal personality to rivers is intended to plug gaps that environmental regulations have failed to fill, is an evolutionary step in environmental protection, or possibly, is some more fundamentally progressive approach to relating people with their surroundings. Notwithstanding, O’Donnell noted that affording a river a legal right to protect itself creates a paradox whereby the human obligation and burden to ensure that protection is lessened and possibly expunged.
Further scrutinizing such legal recognition, Ariela D’Andrea asserted in her essay that the diversity of mechanisms and components used to afford such legal recognition leaves much unclear in terms of the practicalities, implementation, efficacy, and enforcement of these actions. Given the novelty of this approach for the management of rivers, D’Andrea raised a host of queries ranging from whether the recognition applies to the river, its basin, or even the aquatic and surrounding biodiversity, to whether a river, recognized as a legal person (possibly like a corporation), can now be liable for taxes, harm from flooding, and ensuring its own water quality and quantity. In her essay, Julia Talbot-Jones further critiqued the phenomenon and questioned the mechanics of how the granting of legal personality for rivers could be operationalized. She also highlighted the reality that the new rights of these water bodies could only be protected through institutional mechanisms acting on their behalf, as well as adequate resources to support such responsibilities. As Talbot-Jones rightly suggested, legal rights without the means to protect them could simply become irrelevant.
Tangaroa – Maori god of rivers, lakes, and the sea and all that live within them
The practicalities of implementation, however, are only some of the challenges facing the realization and appreciation of such action. Both Virginia Marshall and Deborah Curran pointed out that while some of these efforts are couched in terms of values ascribed to indigenous communities, the steps taken may not necessarily comport with those values. Both authors suggested that because of the unique relationship that indigenous communities enjoy with their natural surroundings including rivers and other freshwater resources (Marshall focusing on Australia’s Aboriginal Peoples, and Curran focusing on Canada’s First Nations), indigenous peoples could actually find the notion of a river holding legal personality completely antithetical to their cultural beliefs and norms.
In a similar vein, it may be reasonable to question whether the approach and mechanisms used to install legal personality to a river is actually based on the values of the local indigenous community, or rather on a broader perspective that encompasses the ideals of both indigenous and the broader citizenry’s perspective of sustainability and environmental protection. While the former could manifest in mechanisms that emphasize individual and communal stewardship, prioritizing of indigenous and environmental concerns, and the installation of decisional authority in the collective citizenry or an appointed public body, the latter could result in regulation-based restrictions, priorities for human health, and decision-making authority assigned to a governmental agency. Of course, the resulting mechanisms could also be a combination of both. However, whether a particular approach is appropriate for a distinct locale will likely have to be determined case-by-case since conduct that is justified in one set of natural, cultural, and political circumstances may not be supportable in a different scenario.
Enki – Sumerian god of fresh water, as well as wisdom, intelligence, trickery and mischief
Commonalities
Despite the distinct differences in approaches taken in the various case examples explored in these essays, it is worth noting that in all of them, one of the chief motivations behind the decisions taken was the sincere desire to ensure the existence and sustainability of an invaluable freshwater resource. While some may debate the necessity to protect a particular river or watershed, it seems reasonable to acknowledge that such a conservation justification generally is both rational and defensible. Hence, the resulting question that must be considered is whether the mechanisms used to achieve the particular objectives are appropriate and reasonable. Again, this can only be understood and undertaken on an ad hoc basis.
Nevertheless, altruistic environmental priorities are not the only or sole influences that have resulted in the recognitions of rivers as legal persons. In some instances, religious and cultural values may have helped inspire such outcomes. As Julia Talbot-Jones explained, in the case of the Whanganui River, the justification also included the desire to resolve long-standing ownership claims by the Māori indigenous community. In contrast, the decision by the High Court of the Indian state of Uttarakhand to recognize the Ganga and Yamuna Rivers as living entities, as well as resolution adopted by the Madhya Pradesh state legislature recognizing the Narmada River as a living entity, appear to be grounded, at least partially, in the Hindu faith. While such objectives do not negate the sustainability rationale, in the case of the Whanganui River, it injected an additional distinct element that provided a critical impetus for legal recognition of the river, as well as complicated and lengthened the process that resulted in a quite unparalleled institutional and legal framework (the Whanganui River Claims Settlement 2017). In the case of the Ganga and Yamuna rivers, the religious justification may have actually hastened the courts’ ruling, although questions about implementing that judgment ultimately lead India’s Supreme Court to stay that decision.
Achelous – Hellenistic god of the Achelous River
A further common factor that should be considered when examining the various examples is the assignment of guardianship or trusteeship for the river to a body whose responsibility is to represent the interests of the water body. Such action is clearly based on the need to operationalize the legal standing criteria that applies to all persons under law, whether human, corporate, or otherwise. However, as Katie O’Bryan indicated, there is a considerable range among the representative bodies discussed in the examples in terms of their structure, authority, and the resources allotted to support their responsibilities. Nevertheless, similar distinctions and disparities can be identified in terms of representational capacity for corporations, as well as children and the mentally challenged, operating before the law. Accordingly, the institutional mechanism created to protect the interests of rivers that have been afforded individual legal recognition, and especially legal personality, should serve as a basis for further comparison and analyses.
Conclusion
Whether rights of personhood recognized in rivers could lead to cleaner and more bountiful water for people and the nature is still unknown. The judicial and legislative actions discussed in these essays are both novel and recent, and the complete range of outcomes, implications, and repercussions have yet to be fully ascertained. One particular question not raised in this series is how this approach, in the face of a serious water deficiency, might balance the rights of people or a community to secure adequate supply of water against the sustainable needs of nature. Considering the debilitating crisis in Cape Town, South Africa, and ongoing parched conditions in Afghanistan, Australia, Bolivia, Iran, Jordan, Mongolia, Morocco, Uruguay, western Canada, other parts of the world, it may be that recognizing individual rights in rivers may not be appropriate in all corners of the globe.
Nevertheless, the steps taken in Australia, Colombia, India, and New Zealand have not gone unnoticed. Efforts to duplicate these decisions and outcomes have been explored in Chile, Nigeria, the United States, and other countries. Moreover, they have become fodder for multiple legal and policy analyses, which are critically necessary to explore the viability and practicalities of such efforts.
The essays involved in this series on legislative and judicial actions taken to recognize some measure of independent legal personality under national law was undertaken precisely with the objective of furthering the assessment and discussion of this distinct new approach for the management of the world’s critical freshwater resources. With this in mind, we welcome further commentary, analyses, and opinions in response to these essays.
Chalchiuhtlicue – Aztec goddess of water, rivers, seas, streams, and storms