Archive for April, 2018

Legal rights for rivers: more power, less protection?

Monday, April 23rd, 2018

The following essay is the third in a series exploring the recent phenomenon in which a number of courts and legislatures have conferred legal personality on specific rivers (see first essay / second essay). The purpose of this series is to engage in a dialogue assessing the merits and value of such recognition, as well as possible implications. This essay is written by Dr. Erin O’Donnell, a water law and policy specialist currently a Senior Fellow with The University of Melbourne and a consultant for The World Bank. She can be reached at erin.odonnell [at]

In 2017, four rivers received legal rights and became legal persons: the Whanganui in New Zealand, Rio Atrato in Colombia, and the Ganga and Yamuna rivers in India. Legal rights for rivers certainly sounds like a good idea: it means giving rivers the legal tools to protect themselves, and expands legal systems to include consideration of the needs and rights of nature, as well as humans.

But this very framing highlights two significant problems. Firstly, just what is ‘nature’? Western legal frameworks have dealt very poorly with this concept, and tend to embed a dichotomy between the ‘natural’ and the ‘human’, which breaks the powerful bonds between people and country that are so central for First Nations peoples.

Secondly, why should nature need to protect itself in law? Modern environmental law is essentially public law created to protect collective values and interests in a clean and healthy environment. It is part of a broader set of public interest laws intended to ensure that the law acts on behalf of those too vulnerable to speak up for themselves in an adversarial context.

Giving rivers legal rights replaces this emphasis on the collective good with individual rights, most particularly the right to sue and be sued (legal standing), so that rivers can go to court and advocate for their own interests. In 1972, Christopher Stone made a compelling argument as to why legal standing is so important: without it, harm to the river can only be recognised if it is also harm to human beings. But standing law has evolved significantly since 1972, and many environmental organisations can now speak on behalf of the environment. Ultimately, rivers only need a voice if we expect them to compete for their own outcomes. Giving rivers a voice means we can effectively abdicate our responsibilities for looking after them, because they will do it instead.

What kind of evidence is there for these sorts of unexpected effects? Rivers have only received legal rights directly in the past year, and it is too soon to tell exactly what impacts these new legal entities will have. But we can examine some less direct examples, such as the legal entities responsible for recovering and managing environmental water, to see what might happen next.


Murray River

Emerging narratives: competition and collaboration

Environmental water managers are found throughout the world, but are particularly active in acquiring and managing water using water markets in Australia and the USA. What makes them useful examples is that they use their legal personality to make decisions on where, when and how to use water to achieve ecological outcomes, and in doing so, they begin to speak and act on behalf of the aquatic environment.

In Australia, environmental water managers are now some of the largest holders of water rights in the Murray Darling Basin. This water has been recovered via investment in the water market, as well as investing in infrastructure efficiency to generate water savings. In 2004, policy makers argued that the environment has a legitimate need for water. By 2008, the rhetoric had shifted dramatically: the environment was labelled ‘just another user’ of water in the media, and rather than seeing the environment as an essential element for water resource security, irrigators began viewing the environment as a competitor. In 2010, policy submissions to the Productivity Commission supported using markets to buy back water for the environment from willing sellers. By 2015, in response to pressure from the irrigators, the Australian government passed legal reform to limit the volume of water that the Commonwealth Environmental Water Holder could buy from other users. The environmental water holders had successfully transformed the aquatic environment from a legal object, to a legal subject, with rights of its own. But in doing so, they had managed to weaken support for legal protections that were perceived as special treatment for the environment.

Weakened legal protections and the shifting cultural narratives have undermined the billions that have been invested in water recovery for the environment by leaving environmental water vulnerable to theft, and the environmental water holders with little recourse.

The situation in the western USA has evolved rather differently. Environmental water managers have been unable to rely on highly active water markets, so they have been forced to adopt a much more consensus-based approach to water recovery across the western USA. Each transaction to recover water for the environment is long and expensive, but each transaction produces a local champion, willing to extol the benefits of water recovery to their local communities.

However, legal rights are only valuable to the extent that they can be enforced. Environmental water managers can find it difficult to use the legal powers they currently have, if it means going up against members of their communities. Legally, they may retain the same set of rights and duties as other users of water (although many states still impose specific limits on water for environmental purposes), but they cannot make effective use of them without losing community support.

The paradox of legal rights for rivers

Rivers with legal rights can take action to protect themselves, but when they do, people are less likely to want to protect them, and less willing to support legislation that does. This apparent paradox creates real problems for the emerging jurisprudence of rivers as legal persons, and it may well create more problems than it solves.

We can already see some early warning signs. In India, the High Court of Uttarakhand awarded the Ganga and Yamuna rivers the status of a legal person, and nominated individuals within the state government of Uttarakhand to act as guardians. The government immediately appealed this decision to the Supreme Court of India, in part, because they were afraid that they could be sued for damages caused by the rivers during flooding events. The Supreme Court has stayed implementation of the original ruling, leaving the legal status of the rivers in limbo until they reach a decision.

Hope for the future?

It may be possible to mitigate this paradox by building stronger connections between people and rivers. The two most successful cases of legal rights for rivers, in New Zealand and Colombia, show the power of using legal rights for rivers to protect not only the ecology of the river, but also the relationship between people and the river. In New Zealand, the legislation is explicit: the new legal rights rest on the Maori belief of Ko au te Awa, ko te Awa ko au: I am the River and the River is me.

The Yarra River at Pound Bend

In Australia, the Victorian state government passed new legislation in 2017 to recognise the Yarra River as a living entity, on the basis that such recognition reflects the views of the Traditional Owners (the Wurundjeri and Bunorong Nations). The Victorian Environmental Water Holder, the second largest environmental water manager in Australia, is actively seeking new ways to build stronger relationships with all the people who use and value rivers and wetlands in Victoria, including an annual forum where recreational fishers, farmers, duck hunters, camping enthusiasts, regional communities and environmental advocates come together to discuss why water for the environment matters.


Giving legal rights to rivers merely for the sake of enabling rivers to go to court may end up being counterproductive. But it may be possible to achieve the larger goal of transforming our relationship with nature to one of mutual respect, rather than exploitation, by centering those new legal rights on the relationship between people and the river.


Further reading:

O’Donnell E and J Talbot-Jones (2018) ‘Creating legal rights for rivers: lessons from Australia, New Zealand, and India’ Ecology and Society 23(1):7

O’Donnell E (2018) ‘At the intersection of the sacred and the legal: rights for nature in Uttarakhand, India’ Journal of Environment Law 30(1):135-144

O’Donnell E (2017) ‘Competition or Collaboration? ‘Using Legal Persons to Manage Water for the Environment in Australia and the United States’ Environmental and Planning Law Journal 34(6): 503-521. (email me for a copy)

O’Donnell E (26 November 2017) ‘New Legal Rights for Rivers’ Global Water Forum


Shared Water Resources in West Africa – Relevance and Application of the UN Watercourses and the UNECE Water Conventions

Monday, April 16th, 2018

The following essay by Nwamaka Chigozie Odili is a summary of her recently published monograph (under the same title), which appears in Vol. 3(1) 2018, pp. 1-98, of Brill Research Perspectives in International Water Law. Mrs Nwamaka Odili is a Legal Officer with Federal Ministry of Justice, Abuja, Nigeria. She can be reached at amaka142 [at]


West Africa has twenty-five shared watercourses but only six of them are governed by legal instruments. Yet, the region, like the rest of the world, is exposed to water-related stress due to the impacts of climate change, urbanization, and overpopulation. This position results in abundance of fresh water in some countries of the region and limited or scarce availability of the resource in others. The need for a regulatory framework for managing all the region’s transboundary watercourses, therefore, cannot be overemphasized. Although the principles of customary international law apply in all cases whether there are regulatory instruments or not, treaties create obligation that are needed to strengthen the international water law system. Global framework treaties like the UN Watercourses Convention and the UNECE Water Convention provide the needed support through universal norms ‘to shape the content of instruments adopted at the regional and basin level’ (Laurence Boisson de Chazournes, ‘Freshwater and International Law: the Interplay between Universal, Regional and Basin Perspectives’ (Paris, UNESCO, 2009) at 5).

Transboundary Watercourses in West Africa



Transboundary WatercourseRiparian States
Niger River BasinNigeria, Niger, Burkina Faso, Côte d’Ivoire, Benin, Cameroun, Guinea, Mali, Chad
Lake Chad BasinCameroun, Nigeria, Chad, Central African Republic, Niger, Libya
Volta River BasinGhana, Burkina Faso, Benin, Togo, Côte d’Ivoire and Mali
Senegal River BasinSenegal, Guinea, Mali, Mauritania
Gambia River BasinGambia, Guinea, Guinea Bissau, Senegal
Koliba-Korubal River BasinGuinea and Guinea Bissau



Transboundary WatercourseRiparian States
Cross River BasinNigeria and Cameroon
Akpa Yafi River BasinNigeria and Cameroon
Queme River Basin Nigeria and Benin
Tano River BasinGhana and Côte d’Ivoire
Komoe River BasinCôte d’Ivoire, Ghana and Burkina Faso
Atui River BasinMauritania and West Sahara
Mono River Basin Togo and Benin
Bia River BasinGhana and Côte d’Ivoire
Sassandra River BasinGuinea and Côte d’Ivoire
Cavally River BasinCôte d’Ivoire, Guinea and Liberia
Cestos River BasinCôte d’Ivoire, Guinea and Liberia
St John River BasinLiberia and Guinea
St. Paul River BasinLiberia and Guinea
Loffa River BasinLiberia and Guinea
Mana Morro River BasinLiberia and Sierra Leone
Moa River BasinLiberia, Sierra Leone and Guinea
Little Scarcies River BasinSierra Leone and Guinea
Great Scarcies River BasinSierra Leone and Guinea
Geba River BasinGuinea Bissau, Guinea and Senegal

Since adoption of the General Act of Berlin in 1885, which dealt, inter alia, with the Niger River, more agreements have been contracted for the management of some of the shared watercourses in West Africa, particularly in the post-colonial era. Hence, West Africa contributed through these agreements to the development of international water law prior to the adoption of the UN Watercourses Convention and the UNECE Water Conventions in the 1990s. Initial instruments dealt primarily with navigation, while later agreements addressed the need for co-operation and incorporated other principles of customary international water law. The two conventions, no doubt, have influenced this trend such that water regimes in the region improved over time. This raises the question: do riparian states in West Africa need to be parties to either or both water conventions to enhance management, sharing and protection of their shared watercourses?

The influence of the UN Watercourses Convention in the region is established because water regimes implemented after adoption of the UN Watercourses Convention reflect some of its substantive and procedural provisions. Moreover some countries in West Africa are parties to the Convention. On the other hand, influence of the UNECE Water Convention in the region is limited and its potential benefits have yet to be determined. Article 25 and 26 of the UNECE Water Convention were amended to allow non-UNECE states that are members of the United Nations to become parties to the Convention. However, its mandatory provisions regarding basin organization and compliance with its stringent requirements, details, and tasks necessitates significant foreseeable financial and technical resources, which countries in West Africa now lack.

Although most West Africa water instruments are flawed by loopholes and there is need to address the problems generated by unregulated shared watercourses in the region, West Africa nations do not need to be contracting parties to both the UN Watercourses Convention and the UNECE Water Convention. What West Africa needs is a treaty position that accommodates the reality of the management of its transboundary water resources. Adoption of global treaties by the states of West Africa is not sufficient because the universal law in those treaties needs to be complemented by regional or basin agreement for realistic implementation. The important issue is not which global convention the states belong to, but rather how strong and efficient transboundary water resources management in the region has grown over time. To achieve this goal and to further address major gaps and failings in transboundary water resources management in West Africa, states in the region could negotiate a region-based water treaty to reflect the needs and concerns of the region and supplement it with basin-specific treaties.

The entire article is available here.


Overturning aqua nullius – An Aboriginal perspective on personhood

Monday, April 9th, 2018

The following essay is the second in a series exploring the recent phenomenon in which a number of courts and legislatures have conferred legal personality on specific rivers (the first essay can be found here). 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 essay is written by Dr. Virginia Marshall , the Inaugural Indigenous Postdoctoral Fellow with the Australian National University’s School of Regulation and Global Governance and the Fenner School of Environment and Society. She can be reached at virginia.marshall [at]

The proposed push by some individuals and groups to apply legal personhood upon rivers, and potentially extending this to other living things is counterintuitive from an Aboriginal perspective, and essentially counterproductive.

Australia is in western terms a nation state. If we measure Australia’s short history against the thousands of years of Indigenous heritage, bound as it is by birthright in a familial connection and relationship with everything on, above and below the land and waters, since time immemorial, the latter far outweighs any value flowing from propositions of legal personhood.

The Murray River in the vicinity of Lake Victoria NSW (courtesy of Paul Marshall)

Water landscapes hold meaning and purpose under Aboriginal laws. The inherent relationships of Aboriginal peoples with water are evidenced by Aboriginal creation stories, with Aboriginal identity defined through Aboriginal ontologies (Aboriginal normative values and beliefs, laws and knowledge). From an Aboriginal perspective, water is inseparable from the land; in many Aboriginal creation stories (not myths) water came first, then the land. Water is sacred and underpins Aboriginal kinship connection in birth, life and death. These traits are exemplified in Aboriginal obligations to maintain waterholes, ensure fire management (burning) practices, and monitor the health of all things within traditional boundaries and care for country. Aboriginal communities continue to seek to exercise their inherent rights and obligations as sovereign peoples, in spite of continual efforts to undermine Aboriginal property relationships, ownership of resources and ancient knowledge within contemporary Australia.

Why do Aboriginal peoples continue to fight for rights to protect country?

The majority of Australia’s High Court in Mabo v Queensland [No 2] determined that the doctrine of terra nullius (in simple terms, land belonging to no one) was not based on truth; that Aboriginal peoples did have settled laws, were sovereign, and had exercised continuing ancient traditions, customs and practices. In 2004 when Australia’s federal government legally separated water from the land, creating a market-based water regime, Indigenous peoples were not consulted. Aboriginal communities, throughout over two hundred years of colonisation, have been invisible in colonial constitutions and federalism (federation of Australia’s colonial states occurred in 1901). Australia’s Constitution affirms the invisibility of the First Peoples. Social activism (people’s movements) still run cold on restoring Aboriginal peoples’ leadership role on land, water and resource management. The title of my seminal book, launched in February 2017 by the Hon. Michael Kirby, ‘Overturning aqua nullius’ conceptualises the ongoing challenges as the various stakeholders, vested interests and governments in Australia continue to regard Indigenous ‘First Peoples’ in Australia as merely another stakeholder or a ‘special interest group’, a minority group.

The First Peoples of Australia have experienced waves of western policies and laws to remove, alienate and assimilate communities and individuals, and this western legal construct is complicit in decoupling the oldest living and continuing Indigenous culture in the world.

Why is the proposed UN Declaration of the Rights of Mother Earth misguided?

The proposed declaration fails to identify the unique position of Indigenous peoples for example within the gendered environment of land, water and living things which informs and connects Aboriginal identity (freshwater peoples, saltwater peoples etc.) in ‘a web of relationships’ balance. The assumption in the ‘rights of nature’ paradigm is that all ‘beings’ seek to ‘exploit, destroy and abuse’ the earth. The concept of ‘mother earth’ is described as hierarchical in the order of all things (Art 1), above ‘beings’; separating ‘each being’ in ‘relationships’ with the ‘mother earth’.

The preamble, which refers to ‘recognition and to defend the rights of mother earth’ appears oppositional to the inherent role of Aboriginal peoples to manage and protect their country, including the lands, the waters, totemic relationships with plants and animals. The preamble constructs language that enforces restrictions on Aboriginal laws, limiting and regulating inherent Indigenous rights and obligations (Art 1(7)). Notably Art 3 presupposes that Aboriginal communities’ values, beliefs, customs and laws are not adequate to maintain obligations to care for country. Art 3(e) seeks ‘effective norms and laws’ to defend the earth, effectively dismissing existing Aboriginal norms, laws and practices. It has been stated that ‘a new generation of lawyers are searching for ways to transform the legal systems of industrialised nations to nurture a harmonious relationship between people and the non-human world’, for example through the legal personhood theory. This proposition is antithetical to Aboriginal peoples’ inherent rights and obligations as First Peoples, which have operated effectively for tens of thousands of years in Australia.

Should we be persuaded by Salim v State of Uttarakhand High Court decision?

A reading of the judgement, Sharma J. (and Alok Singh J.) in mandatory directions to the Central Government and State Governments (U.P & Uttarakhand) to co-operate to ‘preserve and conserve the Ganga and Yamuna rivers’ makes certain things clear. This is an unusual role for the courts, in view of Australia’s separation of powers. Sharma J refers to a decision whereby the Supreme Court (Yogendra Nath Naskar v Commission) held that a Hindu idol was a juristic entity (of legal personality) capable of holding property and of being taxed under a trust arrangement, and that this entity must have human guardians. Juristic persons were said to be developed due to human need (Shiromani v Shri Som Nath Dass, SC), as in the construction of corporate entities, with rights and duties, to sue or be sued. The High Court order to give legal status (to be read with articles 48A & 51A(g) ‘protection of the environment’ of the Constitution of India), accords the significance of the Ganga and Yamuna rivers to all Hindus, and the continued supply of water to industry, communities, power generation and navigation.

The concept of a legal entity of itself is not trailblazing territory. In relation to introducing and advocating for the legal personality of a river; advocating for the rights of nature on grounds that all humans over-exploit, abuse and contaminate the environment is misleading. The Indigenous peoples of Australia have a primary, unique, and inherent obligation to exercise the ownership, protection and management of the Australian environment, but Australian domestic laws and policies do not fully support Indigenous Australians in the exercise of such obligations. For example, in Australia’s blueprint for water resource use, the National Water Initiative, Indigenous peoples do not have legal certainty and only three discretionary clauses (clauses 52,53 & 54) to represent thousands of years of actively maintaining pristine waters, lands and respect for all living things. Indigenous peoples in Australia have been, and continue to be, impacted by the untruths of the doctrine of discovery – terra nullius and aqua nullius – and they continue to be invisible to those seeking to exercise proprietary rights over Australia’s rivers. For decades, Aboriginal people have struggled for land rights and native title, for truth and reconciliation and for constitutional recognition. We are not willing to see the door shut in our face when it comes to our rights and obligations to our rivers.

Further Readings

Dr Virginia Marshall, (Foreword Hon. Michael Kirby) ‘Overturning aqua nullius: Securing Aboriginal water rights’ (2017, Aboriginal Studies Press, Canberra)

Dr Virginia Marshall, ‘Overturning aqua nullius: Securing Aboriginal water rights’ (Chapter 19) R Levy et al (eds) in New Directions for law in Australia: Essays in contemporary law reform (ANU Press, Canberra, 2017)

Dr Virginia Marshall, ‘The progress of Aboriginal water rights and interests in the Murray-Darling Basin in NSW: An essential element of culture’ (2015) 30 Australian Environment Review

Virginia Marshall, (PhD Thesis, 2014) ‘A web of Aboriginal water rights: Examining the competing Aboriginal claim for water property rights and interests in Australia’, Macquarie University