Wednesday, 31 January 2018

Can you sue a river? A new podcast

I recorded a short podcast exploring the question: can you sue a river? You can have a listen here.
And here's the transcript, if you're more of a reader than a listener (like me, I have to confess).

Can you sue a River?

In Australia, floods are the most expensive type of natural disaster, costing us, on average, $377 million every year. In 2010-11, widespread flooding in south east Queensland caused over $2.5 billion in property damages, and 35 people lost their lives.
Wouldn’t it be handy if we could sue the rivers for damages?

How could this be possible?
In 2017, three countries recognised some rivers as legal persons: NZ, in India, and in Colombia. The rivers became legal entities. Now, that’s a tricky concept, but it’s a bit similar to corporations. This means – they can enter and enforce contracts, they can hold property, and they can sue, and be sued, in a court of law.

This is a fundamental transformation of rivers in the law - and it completely reshapes our relationship to these rivers.

Let’s have a look at what actually happened in these countries.
In New Zealand, in 2017, the government passed new legislation declaring the Whanganui River to be a legal person. This was part of a negotiated settlement with local Iwi (Maori), to create new management arrangements that centre the Maori worldview. The Maori consider the Whanganui River to be an ancestor, and this legislation was a way of acknowledging the relationship the Maori have to the river.

In Colombiathe Atrato river was granted rights as a way of recognising the biocultural rights of the local communities who live along the river.

In India, a State high court ruled that the Ganges and Yamuna Rivers are living legal persons, because the rivers needed personhood to protect them against environmental degradation. This has been the most controversial example, and raises a couple of big questions.
  1. What does it mean for these rivers to be living persons, as well as legal persons? In 2017, an Indian citizen filed a police report of the murder of the Ganges River, which he considered to be too polluted to be alive.
  2. The court appointed guardians to represent the river, but if the river is a living person, are the guardians responsible for the actions of the river? And any damages it causes?
The situation was so uncertain that the state government appealed to the Supreme Court of India. The court has not ruled yet, but has stayed the effect of the original ruling - which means that the rivers are stuck in limbo, and may or may not be legally people in future.

Three countries around the world have given rivers legal rights, and the ability to sue, and be sued.
It is worth remembering that none of these rivers received legal person status because someone wanted to sue them. All of these examples happened because people wanted to find a better way to protect the rivers, and to respect the many cultural values that they represent.

But, if future floods continue to cause damages and loss to human livelihoods, it is now possible to take the rivers themselves to court. So we could start holding the rivers accountable for the damage they do to us.

However, it is equally possible for the rivers to sue us, if our actions damage them. And all of these rivers are already heavily impacted by human activities, like diverting water for hydropower, and pollution from farms, towns, and mining.

So, the moral of this story is: to be careful what you wish for. If you sue a river, it may well counter-sue, and the damages could be immense.

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