International Water Law Project Blog

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

The following essay is the third in a series exploring the recent phenomenon in which a number of courts and legislatures have conferred legal personality on specific rivers (see first essay / second essay). The purpose of this series is to engage in a dialogue assessing the merits and value of such recognition, as well as possible implications. This essay is written by Dr. Erin O’Donnell, a water law and policy specialist currently a Senior Fellow with The University of Melbourne and a consultant for The World Bank. She can be reached at erin.odonnell [at] unimelb.edu.au.

In 2017, four rivers received legal rights and became legal persons: the Whanganui in New Zealand, Rio Atrato in Colombia, and the Ganga and Yamuna rivers in India. Legal rights for rivers certainly sounds like a good idea: it means giving rivers the legal tools to protect themselves, and expands legal systems to include consideration of the needs and rights of nature, as well as humans.

But this very framing highlights two significant problems. Firstly, just what is ‘nature’? Western legal frameworks have dealt very poorly with this concept, and tend to embed a dichotomy between the ‘natural’ and the ‘human’, which breaks the powerful bonds between people and country that are so central for First Nations peoples.

Secondly, why should nature need to protect itself in law? Modern environmental law is essentially public law created to protect collective values and interests in a clean and healthy environment. It is part of a broader set of public interest laws intended to ensure that the law acts on behalf of those too vulnerable to speak up for themselves in an adversarial context.

Giving rivers legal rights replaces this emphasis on the collective good with individual rights, most particularly the right to sue and be sued (legal standing), so that rivers can go to court and advocate for their own interests. In 1972, Christopher Stone made a compelling argument as to why legal standing is so important: without it, harm to the river can only be recognised if it is also harm to human beings. But standing law has evolved significantly since 1972, and many environmental organisations can now speak on behalf of the environment. Ultimately, rivers only need a voice if we expect them to compete for their own outcomes. Giving rivers a voice means we can effectively abdicate our responsibilities for looking after them, because they will do it instead.

What kind of evidence is there for these sorts of unexpected effects? Rivers have only received legal rights directly in the past year, and it is too soon to tell exactly what impacts these new legal entities will have. But we can examine some less direct examples, such as the legal entities responsible for recovering and managing environmental water, to see what might happen next.

Murray River

Emerging narratives: competition and collaboration

Environmental water managers are found throughout the world, but are particularly active in acquiring and managing water using water markets in Australia and the USA. What makes them useful examples is that they use their legal personality to make decisions on where, when and how to use water to achieve ecological outcomes, and in doing so, they begin to speak and act on behalf of the aquatic environment.

In Australia, environmental water managers are now some of the largest holders of water rights in the Murray Darling Basin. This water has been recovered via investment in the water market, as well as investing in infrastructure efficiency to generate water savings. In 2004, policy makers argued that the environment has a legitimate need for water. By 2008, the rhetoric had shifted dramatically: the environment was labelled ‘just another user’ of water in the media, and rather than seeing the environment as an essential element for water resource security, irrigators began viewing the environment as a competitor. In 2010, policy submissions to the Productivity Commission supported using markets to buy back water for the environment from willing sellers. By 2015, in response to pressure from the irrigators, the Australian government passed legal reform to limit the volume of water that the Commonwealth Environmental Water Holder could buy from other users. The environmental water holders had successfully transformed the aquatic environment from a legal object, to a legal subject, with rights of its own. But in doing so, they had managed to weaken support for legal protections that were perceived as special treatment for the environment.

Weakened legal protections and the shifting cultural narratives have undermined the billions that have been invested in water recovery for the environment by leaving environmental water vulnerable to theft, and the environmental water holders with little recourse.

The situation in the western USA has evolved rather differently. Environmental water managers have been unable to rely on highly active water markets, so they have been forced to adopt a much more consensus-based approach to water recovery across the western USA. Each transaction to recover water for the environment is long and expensive, but each transaction produces a local champion, willing to extol the benefits of water recovery to their local communities.

However, legal rights are only valuable to the extent that they can be enforced. Environmental water managers can find it difficult to use the legal powers they currently have, if it means going up against members of their communities. Legally, they may retain the same set of rights and duties as other users of water (although many states still impose specific limits on water for environmental purposes), but they cannot make effective use of them without losing community support.

The paradox of legal rights for rivers

Rivers with legal rights can take action to protect themselves, but when they do, people are less likely to want to protect them, and less willing to support legislation that does. This apparent paradox creates real problems for the emerging jurisprudence of rivers as legal persons, and it may well create more problems than it solves.

We can already see some early warning signs. In India, the High Court of Uttarakhand awarded the Ganga and Yamuna rivers the status of a legal person, and nominated individuals within the state government of Uttarakhand to act as guardians. The government immediately appealed this decision to the Supreme Court of India, in part, because they were afraid that they could be sued for damages caused by the rivers during flooding events. The Supreme Court has stayed implementation of the original ruling, leaving the legal status of the rivers in limbo until they reach a decision.

Hope for the future?

It may be possible to mitigate this paradox by building stronger connections between people and rivers. The two most successful cases of legal rights for rivers, in New Zealand and Colombia, show the power of using legal rights for rivers to protect not only the ecology of the river, but also the relationship between people and the river. In New Zealand, the legislation is explicit: the new legal rights rest on the Maori belief of Ko au te Awa, ko te Awa ko au: I am the River and the River is me.

The Yarra River at Pound Bend

In Australia, the Victorian state government passed new legislation in 2017 to recognise the Yarra River as a living entity, on the basis that such recognition reflects the views of the Traditional Owners (the Wurundjeri and Bunorong Nations). The Victorian Environmental Water Holder, the second largest environmental water manager in Australia, is actively seeking new ways to build stronger relationships with all the people who use and value rivers and wetlands in Victoria, including an annual forum where recreational fishers, farmers, duck hunters, camping enthusiasts, regional communities and environmental advocates come together to discuss why water for the environment matters.

Giving legal rights to rivers merely for the sake of enabling rivers to go to court may end up being counterproductive. But it may be possible to achieve the larger goal of transforming our relationship with nature to one of mutual respect, rather than exploitation, by centering those new legal rights on the relationship between people and the river.

Further reading:

O’Donnell E and J Talbot-Jones (2018) ‘Creating legal rights for rivers: lessons from Australia, New Zealand, and India’ Ecology and Society 23(1):7

O’Donnell E (2018) ‘At the intersection of the sacred and the legal: rights for nature in Uttarakhand, India’ Journal of Environment Law 30(1):135-144

O’Donnell E (2017) ‘Competition or Collaboration? ‘Using Legal Persons to Manage Water for the Environment in Australia and the United States’ Environmental and Planning Law Journal 34(6): 503-521. (email me for a copy)

O’Donnell E (26 November 2017) ‘New Legal Rights for Rivers’ Global Water Forum

The following essay is the first in a series exploring the recent phenomenon in which a number of courts and legislatures have conferred legal personality on specific rivers. The purpose of this series is to engage in a dialogue assessing the merits and value or such recognition, as well as possible implications. This first essay is written by Ariella D’Andrea, an international legal consultant and Executive Committee Member of the International Association for Water Law. She can be reached at ariella.dandrea [at] gmail.com.

Triumph of Galatea by Raphael (circa 1514) – In Greek mythology, Galatea turns the blood of her dying lover Acis into a river, granting him immortality by making him a river spirit.

In the last decade, the environment and a number of water bodies have been granted rights and legal personality either through legislation or through court decisions. The personification of nature is not new. Humans have long considered their environment or some of its main components—the sun, the moon, the earth, the ocean, the rain, the river, the lake—as living entities or even gods. These beings, however, were outside or above the law. Now that our environment is degrading despite all laws and treaties adopted to protect it, we feel that we ought to defend its existence, not just for our sake but also for its own survival. Just like oppressed minorities throughout history have become right-holders to defend their identity, nature is now being granted rights of its own. It is becoming a legal person like corporations, public agencies or civil associations.

Formalizing the rights of nature through legislation

In the United States, municipal ordinances recognizing the right of nature to exist, thrive and evolve have been adopted since 2006 in several States through grassroots initiatives spearheaded by the Community Environmental Legal Defense Fund. Rights are conferred to “natural communities and ecosystems”, including the right to water, and residents are established as legal representatives to enforce nature’s rights (e.g. sections 618.3(a) and (b), Pittsburgh Anti-Fracking Ordinance 2010, as amended).

Latin America was next to adopt legislation on the rights of nature. In 2008, Ecuador recognized the constitutional right of Mother Earth to exist and evolve (section 71, Constitution 2008), which was successfully tested in court in 2011 for the protection of the Vilcabamba River. In 2010, Bolivia adopted Law No. 071 on the Rights of Mother Earth, which gives legal standing to nature by recognizing it as legal person of public interest (“sujeto colectivo de interés público”, art. 5) and establishes an Ombudsman for the protection of its rights (“Defensoría de la Madre Tierra”, art. 10). The guiding principles of environmental governance are further specified in Framework Law No. 300 of Mother Earth and Integral Development for Living Well 2012. Both countries recognize the right of nature to the protection of its waters (article 7(I)(3), Bolivian Law No. 071 of 2010; article 64, Ecuadorian Organic Law on Water Resources and Water Uses 2014).

More recently, New Zealand adopted national-level legislation granting legal personality to specific areas of cultural and environmental significance: Te Urewera (comprising Lake Waikaremoana and surrounding land and forests, as can be inferred from the Te Urewera Act 2014) and Te Awa Tupua (“comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements” section 12, Te Awa Tupua (Whanganui River Claims Settlement) Act 2017). The new legal entities are respectively represented by the Te Urewera Board and by by two guardians known as Te Pou Tupua. Both acts implement the deeds of settlement of historical claims by the Māori people.

Formalizing the rights of nature through judicial process

A number of courts around the world have also taken steps to recognize the rights of nature in the absence of enabling legislation. In 2016, the Constitutional Court of Colombia recognized the Atrato River as a legal person (“entidad sujeto de derechos” Resolution 4, Court Decision T-622/16) to be legally represented by a commission of guardians. In 2017, the High Court of Uttarakhand, India, declared the Ganga and Yamuna Rivers and all their tributaries as legal persons and appointed two legal representatives “in loco parentis” (Uttarakhand High Court Order, 20 March 2017). A few days later, the same court declared “the Glaciers including Gangotri & Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests, wetlands, grasslands, springs and waterfalls” in the State of Uttarakhand as legal persons and appointed four legal representatives “in loco parentis” (Uttarakhand High Court Order, 30 March 2017). In July 2017, the Supreme Court of India stayed the operation of the first order based on a petition by the State of Uttarakhand reporting a number of legal and administrative issues (e.g. a single State cannot be responsible for a river that flows beyond its borders).

The Ganges-Brahmaputra Delta – The river delta lies mostly in Bangladesh and India, but tributaries from Bhutan, Tibet, India, and Nepal feed into it.

Most recently, in September 2017, the Colorado River Ecosystem/Deep Green Resistance v. the State of Colorado case was filed in the Federal District Court for the recognition of personhood of the Colorado River. It was withdrawn by the plaintiff following serious threats of sanctions from the Colorado Attorney General’s Office on the grounds that the case is unlawful and frivolous.

Future opportunities

Other countries are also exploring the possibility of granting rights and legal personality to certain components of their environment. Canada is looking into granting legal personality to Lake Winnipeg and Australia has now recognized the Yarra River (Victoria) as “one living and integrated natural entity” although not (yet?) as a legal person (section 1(a), Yarra River Protection (Wilip-gin Birrarung murron) Act 2017). A Universal Declaration on the Rights of Mother Earth—which includes the right to water—was also proclaimed by a number of countries at the World People’s Conference on Climate Change and The Rights of Mother Earth, held in Cochabamba, Bolivia, in 2010.

Critical questions remain

The debate on whether nature should have legal standing has been ongoing at least since 1972 (e.g. dissenting opinion of US Justice William O. Douglas in Sierra Club v. Morton) but many questions remain open. The diversity of approaches adopted in different countries does not help in bringing clarity to the topic. Is granting rights to rivers a case of codification of customary law or practices? Are we moving from an anthropocentric viewpoint to an eco-centric one, or are nature’s rights only a way to ensure that our biosphere remains inhabitable for future human generations?

Further questions include: who or what is being granted legal personality: the river, the river basin, the freshwater ecosystem, or the environment as a whole? Does the single fish or weed in the water have legal standing, or are we protecting aquatic biodiversity? What about the riverbanks and the surrounding trees and bushes? Humans are also undoubtedly part of the ecosystem as generally recognized. Does it mean that sustainable use is acceptable as long as the functioning of an ecosystem is maintained (relations between its components) or do we need to protect the integrity of the natural object (the river) or process (the ecosystem)?

If nature has a bundle of substantive and procedural rights (right to exist, thrive and evolve, right to water, right to sue and be sued, to enter into contracts, to hold property, to be compensated for damages…), doesn’t it have duties too (pay taxes, be liable for damages such as floods, maintain water quality and quantity)? What is the difference between a national park or protected area managed by a special-purpose body and a natural area declared to be a legal person? Does the ownership of the natural object or of the land where it lies have to be transferred to the new legal person (as in the Whanganui River Act) or does the State retain ownership (as in the South American examples)? What type of law applies to the relations involving the new legal person: public (constitutional, administrative, criminal) or private law? Would it be meaningful to introduce the crime of ecocide?

Most importantly, the new legal person needs to be made operational by clearly setting its defining features. What type of body is it? Is it a public authority, a charity, a body corporate? Or is it treated differently under different laws (e.g. section 17, Whanganui River Act)? What are its exact scope and mandate? Are its boundaries clearly delimitated? What are the powers of its legal representatives or guardians? Who are its members? How do we make sure that decisions are made in the best interest of nature itself or of a given ecosystem? Are there any dissolution procedure? Finally, if a transboundary water body is granted legal personality, the repercussions on the right of States to regulate the flow of international rivers will need to be explored.

Further reading:

Christopher D. Stone, “Should Trees Have Standing?—Towards Legal Rights for Natural Objects.” Southern California Law Review 45 (1972): 450-501

Christopher D. Stone, “Should Trees Have Standing? Law, Morality, and the Environment.” Third Edition, Oxford University Press, 2010

Cormac Cullinan, “Wild Law: A Manifesto for Earth Justice.” Second Edition, Green Books, Totnes, UK, 2011 (originally published by Siber Ink, South Africa, 2002)

Cormac Cullinan, “If Nature Had Rights”, Orion Magazine, 2008

David R. Boyd, “The Rights of Nature: A Legal Revolution That Could Save the World”, ECW Press, 2017