Legal rights for nature: understanding the paradox

I had the pleasure of delivering a keynote presentation at the Australian Earth Laws Alliance international symposium on the legal status of nature in Brisbane last week.

It was an honour to share the stage with leading international researchers and activists who have been advocating for more effective legal protection of the environment for decades, including Cormac Cullinan, Klaus Bosselmann, Michelle Maloney, Professor Mary Graham, Justice Brian Preston, and Jacinta Ruru.

The AELA conferences are always a joy to attend, particularly since they have been hosted at the Griffith University Eco-centre on the beautiful Nathan campus. There is a great mix of academics (both Australian and international), as well as community groups, and, increasingly, First Nations and Indigenous peoples.

Understanding and improving the legal status of nature requires a deeper understanding of First Nations law and ethics, which emphasise an ongoing relationship with land and water. It was a particular privilege to hear Professor Graham's discourse on the changing ethic of our collective relationship to country, as we move from a survivalist ethos (which often places us into conflict and competition with each other, and nature) into a relational ethos that emphasises our relationship with nature, and our obligations to nature.

I presented my research findings on the unexpected challenge that can arise when nature's rights are recognised in a Western legal framework (with its emphasis on individuality), and the paradox which can result: increasing nature's legal rights can weaken the willingness of communities to protect nature.

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

Understanding this paradox requires going back to basics, and considering how the environment has been constructed in law over time. My new book explores this in detail, concluding that 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.

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 even 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. Alternatively, the legal subject does have legal rights, and transforms this narrative into one 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 - it can be whatever it is defined to be, but it is only ever what we articulate 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. Changing cultural narratives can lead to large shifts in law.

Tensions between the different constructions of the environment in law can lead to significant shifts in the broader socio-ecological concept

This paradox is not, of course, a foregone conclusion of granting legal rights to nature. The rivers that have received legal rights over the past couple of years have taught us some important lessons.

We can mitigate this paradox by:
(1) centering First Nations values and perspectives, as happened for the Whanganui River;
(2) connecting people and place, as happened for the Rio Atrato in Colombia; and
(3) explicitly engaging in (and continuing) the difficult questions of why the environment needs protection, as well as how it can best be achieved, as happened in the Yarra River, Australia.

We can also mitigate the paradox by ensuring that when rivers are expected to compete for their own outcomes, and look after themselves, that they have adequate institutional support to give those legal rights force and effect, including funding, organisational identity, and governance arrangements.

New article published in The Conversation today

Giving environmental water to drought-stricken farmers sounds straightforward, but it's a bad idea

Erin O'Donnell, University of Melbourne and Avril Horne, University of Melbourne

Deputy Prime Minister Michael McCormack last week suggested the government would look at changing the law to allow water to be taken from the environment and given to farmers struggling with the drought.

This is a bad idea for several reasons. First, the environment needs water in dry years as well as wet ones. Second, unilaterally intervening in the way water is distributed between users undermines the water market, which is now worth billions of dollars. And, third, in dry years the environment gets a smaller allocation too, so there simply isn’t enough water to make this worthwhile.

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Read more:
To help drought-affected farmers, we need to support them in good times as well as bad

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In fact, the growing political pressure being put on environmental water holders to sell their water to farmers is exactly the kind of interference that bodies such as the Commonwealth Environmental Water Holder were established to avoid.

The environment always needs water

The ongoing sustainable use of rivers is based on key ecosystem functions being maintained, and this means that environmental water is needed in both wet and dry years. The objectives of environmental watering change from providing larger wetland inundation events in wet years, to maintaining critical refuges and basic ecosystem functions in dry years.

Prolonged dry periods cause severe stress to ecosystems, such as during the Millennium Drought when many Murray River red gums were sickened by salinity and lack of water. Environmental water is essential for ecosystem survival during these periods.

Under existing rules, environmental water holders can sell and buy water so as to deliver maximum benefits at the places and times it is most needed.

But during dry years the environmental water holders receive the same water allocations as other users. So it’s very unlikely there will be any “spare” water during drought. During a dry period, the environment is in urgent need of water to protect endangered species and maintain basic ecosystem functions.

We should be cautious when environmental water is sold during drought, as this compromises the ability of environmental water holders to meet their objectives of safeguarding river health. When the funds from the sale are not used to mitigate the loss of the available water to the environment, this is even more risky.

Secure water rights support all water users

In response to McCormack’s suggestion, the National Irrigators’ Council argued that compulsorily acquiring water from the environment can actually hurt farmers who depend on the water market as a source of income or water during drought.

Water markets are underpinned by clear legal rights to water. In other words, the entitlements the environment holds are the same as those held by irrigators. If the government starts treating environmental water rights as barely worth the paper they’re printed on, farmers would have every reason to fear that their own water rights might similarly be stripped away in the future.

Maintaining the integrity of the water market is important for all participants who have chosen to sell water, based on reasonable expectations of how prices will hold up.

Can taking environmental water actually help farmers?

As federal Water Resources Minister David Littleproud noted this week, environmental water is only about 8% of total water allocations in storage throughout the Murray Darling Basin. In the southern basin, it is still only about 14%. This means that between 86% and 92% of water currently sitting in storage is already allocated to human use, including farming.

There are calls for the Commonwealth government to treat the drought as an emergency and to take (or “borrow”) water from environmental water holders. But the Murray-Darling Basin Plan already has specific arrangements in place for emergencies in which critical human water needs are threatened.

The current situation in New South Wales is not an emergency under the plan. Water resources across the northern Murray-Darling Basin are indeed low, but storages in the southern basin are still 50-75% full. Although many licence holders in NSW received zero water in July’s round of allocations, high-security water licences are at 95-100%. In northern Victoria, most high-reliability water shares on the Murray are at 71% allocation.

The situation can therefore be managed using existing tools, such as providing direct financial support to farming communities and buying water on the water market.

Environmental water is an investment, not a luxury

As Australia’s First Nations have known for millennia, a healthy environment is not an optional extra. It underpins the sustainability and security of the water we depend on. When river flows decline, the water becomes too toxic to use.

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Read more:
Spring is coming, and there's little drought relief in sight

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Water has been allocated to the environment throughout the Murray-Darling Basin to prevent the catastrophic blue-green algal blooms and salinity problems we have experienced in the past. If we want safe, secure water supplies for people, livestock and crops, we need to keep these key river ecosystems alive and well during the drought.

In the past decade alone, Australia has spent A$13 billion of taxpayers’ money to bring water use in the Murray-Darling Basin back to sustainable levels. If we let our governments treat the environment like a “water bank” to spend when times get tough, this huge investment will have been wasted.

Erin O'Donnell, Senior Fellow, Centre for Resources, Energy and Environment Law, University of Melbourne and Avril Horne, Research fellow, Department of Infrastructure Engineering, University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Join me in Hobart, June 14!

In addition to being utterly gorgeous, Hobart is also making the most of winter, and the particular delights of cold, dark days. Dark Mofo is bringing together an amazing collection of artists and thought-provoking speakers and events.

This year, EDO Tasmania is hosting an event on new ways to value, and protect, Kunanyi, the beautiful mountain overlooking Hobart.

One of the exciting outcomes of the movement to extend legal rights to rivers has been the opportunities it creates for other natural wonders. In New Zealand, Mount Taranaki will be granted legal personhood, following the successful example of the Whanganui River and the Te Urewera National Park.

But of course, legal rights don't necessarily mean that we value these places more, or that we can better protect them. In fact, sometimes increasing legal powers can erode the willingness of people to consider rivers, mountains and other places as worthy of protection at all.

Join me, and a great line up of other speakers, on 14 June in Hobart, to hear more about the opportunities (and challenges) that the law creates for valuing and protecting natural places like Kunanyi.

Tickets are available here.

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.

Meet the river people: who speaks for the rivers?

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?

Despite this, the new legal status of rivers is cause for optimism: in an increasingly competitive and degraded world, legal personality may offer a new way to protect the environment for itself and for present and future generations. Where existing laws and institutions have failed us, we owe it to nature to give legal personality a try.

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

Legal rights for the River Ethiope?

Image credit: Earth Law Centre blog

The Earth Law Centre announced on 28 February that it is partnering with the River Ethiope Trust Foundation (RETFON) to campaign for legal rights for the River Ethiope in Nigeria. As well as its ecological value, the river is sacred to the Olokun and Igbe religions, and this combination of spiritual and environmental values has been the common factor for other rivers who have received legal rights.

If successful, the River Ethiope would be the first river in Africa to receive legal rights, which could be the beginning of a new approach to river protection and management.

But that's a big IF. Recent attempts to extend legal rights to rivers, and build on the success story of New Zealand (which continues to use the 'legal person' as part of treaty settlement negotiations) and Colombia have struggled. In 2017, environmental advocates tried to use the courts to create legal rights for the Colorado River, but were ultimately forced to withdraw their lawsuit under threat of legal sanctions. 

Even if the campaign is successful, giving the new rights force and effect in law will not be straightforward. The river will need RETFON to act as its 'voice', which requires not only the ability to advocate for the river, but also the funding and organizational capacity to enforce the rights of the river.

Still, this campaign is more evidence of the global interest in extending legal rights to rivers. Although still largely untested in law (the Vilcabamba case in Ecuador remains the most successful application of legal rights to protect a river), each campaign raises awareness of the importance of protecting rivers, both for their own sakes, and for the people who depend on them.

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 Colombia, the 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.