Monday, 23 April 2018

Legal rights for river: more power, less protection?

The excellent International Water Law Project blog is currently running a series of essays from international authors on the emerging - and still groundbreaking- field of legal rights for rivers. The first essay kicked off with an overview of this exciting topic, followed by a specific look at what it means for Indigenous people, particularly in the Australian context, but broadly within a settler/colonialist legal framework.

Today, my essay on the unforeseen consequences of granting legal rights and legal personality to rivers is available here.

Legal rights and legal personality create a lot of extra legal power for rivers and other natural objects. They can use these powers to better protect themselves (in court), as well as using their powers to give themselves a voice in policy debates.

But there's a downside. Increased legal power can make people less willing to protect rivers and the environment at all, because they can see that the rivers now have the power to protect themselves. If rivers can protect themselves, then people often end up feeling like they probably should just get on with it, and stop asking for special treatment.

This is both a massive transformation of our relationship to our environment, as well as being a real problem for the legal rights for nature movement. Refusing to protect the environment just because we think it should be able to look after itself can lead to sticky situations where the environment's guardian doesn't have the necessary legal powers, or information, to its job. It can also lead to the guardian refusing to take up the task of acting on behalf of the river, because it is afraid it may be sued when the river floods.

However, I think there is hope for the future, and I think it comes back to what Virginia Marshall argued in her essay, in that legal rights for rivers work best when they are not a barrier between people and place, but instead, are firmly embedded in the social and cultural values we place in rivers. Strengthening the connection between people and rivers creates an opportunity for legal rights for rivers to be truly transformative, rather than just reducing the environment itself into merely another participant in an adversarial rights-based legal system.

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