Archive for March, 2018

Can the River Spirit be a Person in the Eye of the Law?

Monday, March 26th, 2018

The following essay is the first in a series exploring the recent phenomenon in which a number of courts and legislatures have conferred legal personality on specific rivers. The purpose of this series is to engage in a dialogue assessing the merits and value or such recognition, as well as possible implications. This first essay is written by Ariella D’Andrea, an international legal consultant and Executive Committee Member of the International Association for Water Law. She can be reached at ariella.dandrea [at] gmail.com.

Triumph of Galatea by Raphael (circa 1514) – In Greek mythology, Galatea turns the blood of her dying lover Acis into a river, granting him immortality by making him a river spirit.

In the last decade, the environment and a number of water bodies have been granted rights and legal personality either through legislation or through court decisions. The personification of nature is not new. Humans have long considered their environment or some of its main components—the sun, the moon, the earth, the ocean, the rain, the river, the lake—as living entities or even gods. These beings, however, were outside or above the law. Now that our environment is degrading despite all laws and treaties adopted to protect it, we feel that we ought to defend its existence, not just for our sake but also for its own survival. Just like oppressed minorities throughout history have become right-holders to defend their identity, nature is now being granted rights of its own. It is becoming a legal person like corporations, public agencies or civil associations.

Formalizing the rights of nature through legislation

In the United States, municipal ordinances recognizing the right of nature to exist, thrive and evolve have been adopted since 2006 in several States through grassroots initiatives spearheaded by the Community Environmental Legal Defense Fund. Rights are conferred to “natural communities and ecosystems”, including the right to water, and residents are established as legal representatives to enforce nature’s rights (e.g. sections 618.3(a) and (b), Pittsburgh Anti-Fracking Ordinance 2010, as amended).

Latin America was next to adopt legislation on the rights of nature. In 2008, Ecuador recognized the constitutional right of Mother Earth to exist and evolve (section 71, Constitution 2008), which was successfully tested in court in 2011 for the protection of the Vilcabamba River. In 2010, Bolivia adopted Law No. 071 on the Rights of Mother Earth, which gives legal standing to nature by recognizing it as legal person of public interest (“sujeto colectivo de interés público”, art. 5) and establishes an Ombudsman for the protection of its rights (“Defensoría de la Madre Tierra”, art. 10). The guiding principles of environmental governance are further specified in Framework Law No. 300 of Mother Earth and Integral Development for Living Well 2012. Both countries recognize the right of nature to the protection of its waters (article 7(I)(3), Bolivian Law No. 071 of 2010; article 64, Ecuadorian Organic Law on Water Resources and Water Uses 2014).

More recently, New Zealand adopted national-level legislation granting legal personality to specific areas of cultural and environmental significance: Te Urewera (comprising Lake Waikaremoana and surrounding land and forests, as can be inferred from the Te Urewera Act 2014) and Te Awa Tupua (“comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements” section 12, Te Awa Tupua (Whanganui River Claims Settlement) Act 2017). The new legal entities are respectively represented by the Te Urewera Board and by by two guardians known as Te Pou Tupua. Both acts implement the deeds of settlement of historical claims by the Māori people.

Formalizing the rights of nature through judicial process

A number of courts around the world have also taken steps to recognize the rights of nature in the absence of enabling legislation. In 2016, the Constitutional Court of Colombia recognized the Atrato River as a legal person (“entidad sujeto de derechos” Resolution 4, Court Decision T-622/16) to be legally represented by a commission of guardians. In 2017, the High Court of Uttarakhand, India, declared the Ganga and Yamuna Rivers and all their tributaries as legal persons and appointed two legal representatives “in loco parentis” (Uttarakhand High Court Order, 20 March 2017). A few days later, the same court declared “the Glaciers including Gangotri & Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests, wetlands, grasslands, springs and waterfalls” in the State of Uttarakhand as legal persons and appointed four legal representatives “in loco parentis” (Uttarakhand High Court Order, 30 March 2017). In July 2017, the Supreme Court of India stayed the operation of the first order based on a petition by the State of Uttarakhand reporting a number of legal and administrative issues (e.g. a single State cannot be responsible for a river that flows beyond its borders).

The Ganges-Brahmaputra Delta – The river delta lies mostly in Bangladesh and India, but tributaries from Bhutan, Tibet, India, and Nepal feed into it.

Most recently, in September 2017, the Colorado River Ecosystem/Deep Green Resistance v. the State of Colorado case was filed in the Federal District Court for the recognition of personhood of the Colorado River. It was withdrawn by the plaintiff following serious threats of sanctions from the Colorado Attorney General’s Office on the grounds that the case is unlawful and frivolous.

Future opportunities

Other countries are also exploring the possibility of granting rights and legal personality to certain components of their environment. Canada is looking into granting legal personality to Lake Winnipeg and Australia has now recognized the Yarra River (Victoria) as “one living and integrated natural entity” although not (yet?) as a legal person (section 1(a), Yarra River Protection (Wilip-gin Birrarung murron) Act 2017). A Universal Declaration on the Rights of Mother Earth—which includes the right to water—was also proclaimed by a number of countries at the World People’s Conference on Climate Change and The Rights of Mother Earth, held in Cochabamba, Bolivia, in 2010.

Critical questions remain

The debate on whether nature should have legal standing has been ongoing at least since 1972 (e.g. dissenting opinion of US Justice William O. Douglas in Sierra Club v. Morton) but many questions remain open. The diversity of approaches adopted in different countries does not help in bringing clarity to the topic. Is granting rights to rivers a case of codification of customary law or practices? Are we moving from an anthropocentric viewpoint to an eco-centric one, or are nature’s rights only a way to ensure that our biosphere remains inhabitable for future human generations?

Further questions include: who or what is being granted legal personality: the river, the river basin, the freshwater ecosystem, or the environment as a whole? Does the single fish or weed in the water have legal standing, or are we protecting aquatic biodiversity? What about the riverbanks and the surrounding trees and bushes? Humans are also undoubtedly part of the ecosystem as generally recognized. Does it mean that sustainable use is acceptable as long as the functioning of an ecosystem is maintained (relations between its components) or do we need to protect the integrity of the natural object (the river) or process (the ecosystem)?

If nature has a bundle of substantive and procedural rights (right to exist, thrive and evolve, right to water, right to sue and be sued, to enter into contracts, to hold property, to be compensated for damages…), doesn’t it have duties too (pay taxes, be liable for damages such as floods, maintain water quality and quantity)? What is the difference between a national park or protected area managed by a special-purpose body and a natural area declared to be a legal person? Does the ownership of the natural object or of the land where it lies have to be transferred to the new legal person (as in the Whanganui River Act) or does the State retain ownership (as in the South American examples)? What type of law applies to the relations involving the new legal person: public (constitutional, administrative, criminal) or private law? Would it be meaningful to introduce the crime of ecocide?

Most importantly, the new legal person needs to be made operational by clearly setting its defining features. What type of body is it? Is it a public authority, a charity, a body corporate? Or is it treated differently under different laws (e.g. section 17, Whanganui River Act)? What are its exact scope and mandate? Are its boundaries clearly delimitated? What are the powers of its legal representatives or guardians? Who are its members? How do we make sure that decisions are made in the best interest of nature itself or of a given ecosystem? Are there any dissolution procedure? Finally, if a transboundary water body is granted legal personality, the repercussions on the right of States to regulate the flow of international rivers will need to be explored.

Further reading:

Christopher D. Stone, “Should Trees Have Standing?—Towards Legal Rights for Natural Objects.” Southern California Law Review 45 (1972): 450-501

Christopher D. Stone, “Should Trees Have Standing? Law, Morality, and the Environment.” Third Edition, Oxford University Press, 2010

Cormac Cullinan, “Wild Law: A Manifesto for Earth Justice.” Second Edition, Green Books, Totnes, UK, 2011 (originally published by Siber Ink, South Africa, 2002)

Cormac Cullinan, “If Nature Had Rights”, Orion Magazine, 2008

David R. Boyd, “The Rights of Nature: A Legal Revolution That Could Save the World”, ECW Press, 2017