Monday, 19 March 2018

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 generalto 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

No comments:

Post a Comment