The following essay by Erin O’Donnell provides an overview of her new book: Legal Rights for Rivers: Competition, Collaboration, and Water Governance. The book is now available for purchase here.
In 2017 four rivers in Aotearoa New Zealand, India, and Colombia were given the status of legal persons, and there was a recent attempt to extend these rights to the Colorado River in the USA. Understanding the implications of creating legal rights for rivers is an urgent challenge for both water resource management and environmental law. Giving rivers legal rights means the law can see rivers as legal persons, thus creating new legal rights which can then be enforced. When rivers are legally people, does that encourage collaboration and partnership between humans and rivers, or establish rivers as another competitor for scarce resources?
But legal rights for rivers are very new. To really understand what it means to give rivers legal rights and legal personality, we need evidence of what happens over a longer period. This book uses the example of the environmental water managers (EWMs) in Australia and the USA as a way to understand the implications of giving legal rights to rivers.
As individual organisations, EWMs have legal personality, and have been active in water resource management for over two decades. EWMs operate by acquiring water rights from irrigators in rivers where there is insufficient water to maintain ecological health. EWMs can compete with farmers for access to water, but they can also strengthen collaboration between traditionally divergent users of the aquatic environment, such as environmentalists, recreational fishers, hunters, farmers, and hydropower.
Figure 1: the paradox of legal rights: as legal protection goes up, this can lead to increasing complacency and an abdication of our responsibilities to look after the environment
This book explores how EWMs use the opportunities created by giving nature legal rights, such as the ability to participate in markets, enter into contracts, hold property, and enforce those rights in court. However, examination of the EWMs unearths a crucial and unexpected paradox: giving legal rights to nature may increase its legal power, but in doing so it can weaken community support for protecting the environment in the first place (Figure 1).
Understanding this paradox requires going back to basics, and considering how the environment has been constructed in law over time. The book develops a new conceptual framework to identify the multiple constructions of the environment in law, and how these constructions can interact to generate these unexpected outcomes. Although there are myriad and widely different definitions of the environment in law, there are three main constructions of the environment in law: (1) a socio-ecological concept, (2) a legal object, and, most recently, (3) a legal subject (Figure 2).
Figure 2: understanding the paradox of legal rights for nature requires an understanding of how the environment is constructed in law
By focusing on the way the environment is constructed in law, we can also start to identify the underlying cultural narratives, and the way those narratives can shape our legal response and drive legal reform. The legal object has no rights of its own, and links the concepts of legal weakness with the idea of being worthy of protection. The legal subject, on the other hand, does have legal rights, which generates an alternative narrative, where the environment can, and thus should, look after itself. These tensions have specific consequences for the environment, because of the initial construction as a highly flexible socio-ecological concept: the environment can be whatever it is defined to be in specific legislation, but it is also only ever what law articulates it to be. As a result, the overarching concept of what the environment is, and why it matters, is highly vulnerable to shifting social values (Figure 3).
Figure 3: tensions between the different constructions of the environment in law can lead to significant shifts in the broader socio-ecological concept
By examining the form and function of the EWMs in the USA and Australia, this book shows that changing cultural narratives about what the environment is, and why it does (or does not) deserve protection, can lead to large shifts in water law and governance.
This paradox is not, of course, a foregone conclusion of granting legal rights to rivers. The book draws on lessons from the EWMs, as well as early lessons from the new ‘river persons’, to show how to use the law to improve river protection and how to begin to mitigate the problems of the paradox.
The book is now available for purchase here. To request a review copy, please complete the form here. Lecturers and instructors can request an e-book inspection copy here.