Could giving rights to rivers be the next step forward in achieving environmental justice?

Myriam Amiet-Knottenbelt in conversation with Erin O'Donnell
ganges river ganga
Fred Hsu

New Zealand and India have recently given legal rights to the Whanganui, Yamuna and Ganga (also known as the Ganges) rivers. This means these rivers are now legal persons, which gives them access to the same rights as humans and corporations. In Victoria, the state government has recently passed legislation (the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017) that seeks to protect the Yarra River and surrounding land as a single living entity.

However, the extent to which legal personhood will significantly affect the health of rivers and what it means more broadly for environmental protection and conservation is unclear. To learn more about the implications of granting human rights to rivers, Right Now’s Myriam Amiet-Knottenbelt interviewed Dr Erin O’Donnell, Senior Fellow at Melbourne Law School.

Erin O’Donnell is an environmental water law and policy specialist. She has worked in environmental planning and management and water governance since 2002, in both the private and public sectors. Erin has recently completed her PhD, and her research examines what happens when the environment is constructed in law as a legal person.

Right Now: What does giving legal personhood to a river actually mean? What can they do?

Erin O’Donnell: When rights are created for a river, this allows them to do three main things: they can go to court if they are damaged, they can enter into contracts and they can own property. Each example of giving rights to rivers we have seen thus far has its own distinct features. In the example of New Zealand, the rights given to the Whanganui river are focused around the ability to participate in policy making and river management. When the river interacts with various pieces of legislation, it is defined so what it can and cannot do is very clear. This is a way of giving the river legal identity, or standing, and setting some clear boundaries around what the river can and cannot do. Fundamentally, however, the river is now considered its own person and it does not belong to anyone else.

Giving rights to a river sounds really positive, including the capacity for rivers to go to court and enforce their rights, but practically will it make a difference to the health of a river system?

Some of the original ideas in legal scholarship about the environment protecting its rights in the legal system, particularly some work by Christopher Stone in 1972, thought giving rights to the environment would help make the harm to the system as a whole much more visible to the law. Instead of figuring out how it affects humans, we can just ask if the river itself is actually harmed, and therefore it can go to court to address those harms, and seek a remedy.

But the way that the New Zealand and Australian examples have been set up, they place a lot of emphasis on the role of the legislature and government. In those cases it will be more important for the rivers to be engaged in the management and policy-making process rather than going to court. That is what the government in Victoria is intending the Yarra to have, a voice in that policy-making, planning, and environmental management side of things. That is very much what the government in New Zealand have set up the Whanganui example to be. There is a guardian for the river that sits within a co-management framework, and this guardian was created to be a strong voice in that management framework for the river. This allows the river to proactively manage any issues with its health rather than only reacting once damage is done.

What that means going forward is going to be really interesting, as there are two levels of proactiveness. In New Zealand the guardian, Te Pou Tupua, will definitely have a role in driving that planning process and in deciding what future the Whanganui catchment will have. What I think is unclear is how much of this proactive approach can address pre-existing problems. For example, the Tongariro Hydro Power Scheme diverts a large percentage of the flows of the Whanganui for hydropower, which has a significant impact on the health of the river. But the legislation was extremely explicit that it did not affect the ownership of water rights when the Whanganui river was given legal personhood; the river owns itself, but has no ownership over existing water rights. How they navigate that going forward will be challenging. Should the river guardians challenge this legislation? Should they try and buy back water? Can they re-negotiate differences in the way that water is extracted and managed? The answers to these questions will be very important, but at present are very unclear.

What kind of penalties can the rivers access when their rights are being infringed?

I had a look at the New Zealand legislation, which doesn’t set out specific substantive remedies for actions that affect the health of the river. This means that the river may be able to access common law remedies in a court, like suing for negligence, nuisance, breach of contract, or even theft. Its ability to argue the more human crimes like assault or murder would be a quite a reach, because legal personhood is not the same as human personhood.

Where this gets interesting and blurred is the situation in India. In March, the High Court of Uttarakhand ruled that the Ganges and Yamuna rivers were legal persons. That ruling blurred the ways that it described legal personhood. The judges listed three different kinds of legal persons: legal persons, living persons, and moral persons. Then they said the Ganges and Yamuna rivers are all of these things. This means they gave the rivers some sort of human rights as well. The State Government of Uttarakhand has appealed these judgments, and in July, the Supreme Court of India has stayed the effect of the High Court ruling pending appeal. So the rivers have lost their legal person, and living person, status again. But before they did, an Indian citizen filed a police report stating that the Ganges had been murdered, on the basis that it is a living person, and it was argued that in some parts of the river, the pollution was so bad that the river was in fact dead. The complication that this approach sets up in terms of what specific rights we are imbuing these natural objects with is complex. What will happen in India is anyone’s guess at this stage. I would hope that the Supreme Court, when they rule on the appeal, will look to the New Zealand example more explicitly and see there is a way to extend legal personhood to these rivers without necessarily creating human rights or treating the rivers like they are humans, because that is probably not appropriate on many levels. However, we can give rivers the power to proactively look after themselves.

Do you think that it is feasible to give one particular environmental ecosystem rights without giving them to the rest of nature? How we treat one environmental system has a flow on effect. To what extent will not giving rights to the rest of nature hamper the goals of giving legal personhood to a river?

This gets to the heart of the issue with the way we think about these things. It feels like there has been a cascading effect in the past year, where owing to granting personhood to certain rivers, like what occurred in New Zealand, people are seeing legal personhood and legal rights as something that can be applied more and more widely.

It is lauded by environmental advocates as a way of making our laws more eco-centric, because it starts to extend legal rights that were just the province of humans to the natural world, so that has real benefits.

What legal personhood means for nature itself is very interesting. The first examples of giving rights to nature came from Ecuador and Bolivia. There they gave legal rights to nature as a whole, which is an attempt to recognise that environmental systems are interconnected and that it is very difficult to pick one bit of nature to set up against the others, or up against humans. But in practical terms it meant that it was still incredibly difficult to speak on behalf of nature as a whole. In Ecuador, nature has legal rights and all citizens are empowered to speak on behalf of it. But it is really hard to know who you are advocating for in those circumstances. Rights have been given to nature, but you don’t know who those rights attach to. It is really up to whoever feels like it to stand up and say this particular example is so egregious that we must sue on behalf of nature. In Ecuador there have been some successful legal cases but the enforcement of those legal cases has been difficult. I think it comes down to that lack of organisational identity: nature as a whole might have rights but you really have no one who is responsible for saying, yes, those rights have been infringed, and then yes, we have had some success in court, so now we must make sure that success is enforced.

I think rivers resonate with people as they see them as discrete systems, a perspective that doesn’t necessarily link to biological realities, but is nonetheless helpful, as it clarifies which part of nature now has legal rights.

I think ultimately this concept of creating legal rights for nature is fitting nature into a human legal system. It is lauded by environmental advocates as a way of making our laws more eco-centric, because it starts to extend legal rights that were just the province of humans to the natural world, so that has real benefits. But it is ultimately an anthropocentric view of the world because it is saying: how can we take what is out there, and what we are a part of, and fit it into what we think our legal framework actually is? The fact that we have been able to do it at all is interesting but I don’t want to call it a success yet. It raises more questions than it answers. What is more likely to be successful, and useful lessons for the movement as a whole, is where there are very clear boundaries around what organisations represent the natural objects with legal rights, and what those organisations are expected to do, and how they should operate.

Do you think human rights-style rights are useful for environment systems?

The short answer is yes, because without using the human rights model, we are creating open-ended legal rights without a framework that states exactly what it means. If we could create a framework, even if it was broad and aspirational, then we could have a basic set of environmental rights that people could sign up to. It could be really helpful, and a way of framing a community discussion in which we understand what we are trying to achieve with these kinds of legal rights. IInternational law organisations are trying to do this right now, but it rapidly gets into really murky waters around what do we even mean by the best interests of the river or of nature. Does it have to be pristine? What does that mean? The concept of ‘pristine’ is a very white colonialist attitude, as indigenous communities have often been living within the natural environment for millennia. I think from a technocratic, Western, perspective there is the idea that nature is ‘other’ – it is wild, and it is out there, and it is not the sort of stuff we interact with on a day to day basis. As a result, Western environmental laws often don’t protect what is around us, just the special and iconic, which continues to frame nature as separate to humans. The other side of the coin is when it comes to protecting nature we need to understand what it is we are protecting. The environment is literally everything around us. It is quite vulnerable to being defined in particular ways that make sense to us. I think that is the core challenge, and I think it is one of the reasons for the focus on rivers, because it is a way to clearly identify a particular natural system.

Do you think it will be a barrier to protecting the rights of rivers that a high level of scientific understanding of damage will need to be articulated and understood in our court systems?

The short answer is yes. Ecuador was able to do this quite successfully in the case of the Vilcabamba River, where the courts were able to recognise that this river had been damaged, it has rights under the Ecuadorian constitution, and this is not what we wanted. They were able to get the courts to intervene to stop mining, and got an order for rehabilitation. Enforcement of the rehabilitation is where things started to fall down. This is a problem for environmental law generally, especially in all Australian states, apart from New South Wales, where they have a specific Land and Environment Court, because judges can lack familiarity with scientific concepts, which can limit their ability to follow the way scientific evidence is presented. The more we expect the environment to use the court system, the more we will need scientifically literate judges. The New South Wales model is very effective, but it is a specialist system. This is the challenge with the legal person tool, as it is a very generic tool. Its effectiveness will depend on how the river presents the evidence of its own damage.

Do you think the idea of protecting the environment is an adequate one to ensure humans do not continue to damage the planet? Do you think that the law needs to be less anthropocentric to achieve this outcome?

I think, in theory, giving the environment or nature or rivers legal rights of its own is fantastic because it immediately raises the legal powers of nature, so it starts putting them on a more level playing field than humans. That, to me, is a step towards an eco-centric framework for law, acknowledging we exist within this ecological community and that we are not at the pinnacle of legal rights. But what we know, every single time that the environment gets increased legal rights, is that there is a backlash. We can see how this occurs in the Endangered Species Act in the US. Once a species gets listed, it is a way of noting that this species is important and we should protect it. Then the species starts to recover. If you have a species that actually competes with humans, say for example, wolves, you run into issues. People shift their construction of what those threatened species are. Instead of something that should be protected, it becomes a threat. You can also see this backlash in the way that people are responding to legal rights for rivers, and the backlash happens quite quickly. When people read my articles on legal rights for rivers, one of the first reactions from those outside the environmental advocacy community, was: can I sue the river?

When you give a natural system legal rights of its own, you shift the narrative to one in which the environment can look after itself, so it should.

My research shows that this happens because of the relationship between how we perceive the environment, and how we protect it in law. Historically, environmental law has constructed the environment as a legal object, with no legal rights of its own. It is legally weak, and a narrative emerges that the environment cannot look after itself, so we should look after it.

Now that mode of operation has certainly not been perfectly successful, but it is predicated on the idea that because the environment cannot look after itself, we must look after it. But when you give a natural system legal rights of its own, you shift the narrative to one in which the environment can look after itself, so it should.

So creating legal rights for the environment can undermine people’s willingness to protect it. From a regulatory theory perspective, we go from public interest theories, which assume that we consider the environment in our policy making, to private interest theories, where everyone competes for policy outcomes, and the environment is now one of those competitors. We don’t have to look after it, because it has rights of its own, and a voice of its own, and it is in there in the mix, looking after itself. The shift in the narrative of how we think about the environment and the shift in the way we create regulation is coming from how we construct the environment in law.

As a result, I think that creating legal rights on its own is not going to be enough. We will continue to need to have conversations, and build support for the idea that the environment needs protecting. Legal rights is a helpful tool, but we will not be able to rely on it to drive a shift to an eco-centric approach without continually building support for the environment per se.

In the book Client Earth, author James Thornton discussed the need for an understanding of human relationship with the environment as a movement from an industrial to ecological civilisation. Do you think that giving rights to rivers is the start of this?

Ultimately, I think it is a good idea. It is interesting that in some ways it is a step forward, into new legal territory, but in some ways it is a return to the connection that indigenous communities have always had with their environment, and still have. Western and increasingly urban societies have often lost this connection. An ecological civilisation will have to find a better way of fitting nature into our legal frameworks, and we have tried constructing nature as an object by placing it in a protection framework. Now we are giving nature rights of its own. In the context of diversifying the legal system, it is a step in the right direction, but what it leads to, we will have to wait and see. I suspect it will be some steps forward and some steps back again.

 

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