Four rivers have
been recognised as a ‘legal person’ in 2017. In March, the New Zealand Parliament
passed ground-breaking legislation declaring
that the Whanganui River catchment (Te Awa Tupua) has ‘all the rights, powers,
duties and liabilities of a legal person’, as part of a political settlement
with Māori. Days later, in India, the Uttarakhand High Court ruled that
the Ganges and Yamuna Rivers, sacred in the Hindu religion, have the same legal rights as
a person. These cases received widespread media attention, but less well-known
is the recent landmark
decision of the Constitutional Court of Colombia, which found
that the Atrato River catchment is an ‘entidad sujeto de derechos’ (legal
person), as a consequence of cultural connections and rights of river-dependent
Indigenous and Afro-descendent communities (adopting an ecocentric perspective
and theory of biocultural rights). Interest in this novel approach to river
protection appears to be building momentum, and new river guardians have just
been announced in both New Zealand and Colombia. But what does it mean to give
legal rights to rivers? And how will these new guardians speak for their river?
A watershed moment?
Giving a river legal personality means that rivers
are the subject of legal rights, and can go tocourt, enter into contracts, and hold property in their own name. In the New
Zealand, Indian and Colombian cases, the granting of legal rights to the river is an imaginative legal and political solution to a major
environmental problem, upending the traditional approach to water
resource management, which assumes that water resources should be managed
primarily for human benefit.
Each of the four
rivers are threatened by over-exploitation, pollution and cultural desecration.
The Whanganui River has
been degraded, including being quarried for gravel and diverted for
hydroelectric development, since British colonisation. The Ganges
and Yamuna Rivers have been extensively polluted by industry,
urbanisation and agriculture. The
Atrato River has been devastated by illegal
mining; destroying the natural course of the river, inundating the rainforest,
and contaminating the river with chemicals in what the Constitutional Court
describes as a grave humanitarian and environmental crisis.
Declaring rivers legal persons, with the rights that
entails, gives the rivers the ability to protect themselves, and broadens water
resource management objectives to include protecting rivers as an end in itself.
In each case,
giving the rivers legal rights also recognises the interests of local
communities who live alongside and advocate for the river. These communities
are deeply concerned about the state of their river, and feel a strong
obligation to protect and restore its physical and metaphysical qualities. In contrast
to the Western, utilitarian view of a river as a resource to be exploited by
humans, the communities claim distinct relationships with the river based on
guardianship, symbiosis and respect, in which the rivers have an intrinsic
right to exist. That is the core-concept of biocultural rights.
In New Zealand, the distinct relationship of the
Whanganui Iwi (tribes) and the river emerges from tikanga Māori (Māori law),
which positions humans and nature as intrinsically interconnected and
interdependent, manifest in their tribal idiom, ‘I am
the river, and the river is me’. In Colombia, Indigenous and Afro-descendent
communities in the region of Chocó express a deep interdependency between
people and the Río Atrato, as distinct ‘biocultural’ rights. For
those communities, the river is the place where culture is built and reproduced
and represents their measure of time. In India, the relationship between the communities and
the rivers is also deeply spiritual, as the Ganges and Yamuna are considered sacred in
the Hindu religion.
Who
speaks for the rivers?
Each river will
be represented by nominated legal guardians, who will speak and act in (and if
necessary, fight for) the river’s best interests. The Whanganui River will be
represented by Te Pou Tupua, an entity comprised of one representative nominated
by the Crown and one by the Whanganui Iwi. In Colombia, the Río Atrato will be represented by guardians
appointed from the local communities along the river as well as the national
government. In India, the Ganges and Yamuna Rivers were defined as legal minors, and the Uttarakhand High Court nominated individuals in the state
government of Uttarakhand – the director general of Namami Gange
project, the Uttarakhand chief secretary, and the advocate general – to act in loco parentis (guardians) for, and in
the best interests of, the rivers.
In all three
countries, governments are responsible for the appointment of guardians and the
creation of new institutions and organisations to give effect to the new legal status
of the rivers, but the reaction from governments has varied greatly.
In New Zealand,
the government has committed new funding, and, in September 2017, two representatives,
both
Māori with links to the Whanganui, were appointed
to Te Pou Tupua, to act as the ‘human face’ of the river. In the same week, in
Colombia, the river communities have appointed 14
guardians to act on behalf of the Atrato River, with the Ministry
for Environment nominated as the President’s representative. The
communities chose 7 male and 7 female representatives of the Indigenous and
Afro-descendent communities to ensure gender equality.
However, in India, the court-appointed guardians have
been reluctant to assume their new responsibilities. The state government has appealed the
decision of the High Court to the Supreme Court of India,
arguing that it is unclear how far their responsibilities for the rivers
extend, particularly as the Ganges River eventually flows into Bangladesh. The
state government also argued that acting in
loco parentis could make the guardians responsible for the actions of the rivers, and that the
guardians could be held liable for damages caused by future flood events. The
Supreme Court has stayed the
effect of the original ruling while it reaches a decision on the appeal, leaving
the current status of the Ganges and Yamuna Rivers unclear.
A cultural shift
Many questions
remain about the practical impact of the legal person approach. However, aside
from any direct legal consequences, including the ability of the river to take
to the courts to protect its interests in its own name, the recognition of a
river as a ‘person’ produces a profound
cultural shift in the way we think about, and interact with, rivers.
As a legal person, the river is now viewed as an interconnected, living entity
rather than a collection of separate legal parts (or even rights), and the
condition and health of the river is respected as an end in of itself. However,
giving rivers legal rights also increases the willingness of people to hold the
rivers, or their guardians, legally liable for damage like flooding – and people
are already asking: can we sue the river?
This essay is a guest blog post, drawing on academic research and practical insights into the Colombian legal system. The authors of this essay are:
Elizabeth Macpherson, Lecturer, University of Canterbury, School of Law
Erin O’Donnell, Senior Fellow, Centre for Resources, Energy and Environment Law, University of Melbourne
Felipe Clavijo Ospina, Law Clerk, Constitutional Court of Colombia
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