Archive for the ‘Oceana’ Category

The Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 (Vic), the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ), Indigenous Rights and River Rights

Monday, June 4th, 2018

The following essay is the sixth 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 / third essay / fourth essay / fifth 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. Katie O’Bryan, a Lecturer at Monash University in Melbourne, Australia. She can be reached at Katie.OBryan [at] monash.edu.

Introduction

Historically, Victoria’s water laws have not recognised Aboriginal people as having a role in managing and protecting Victoria’s waterways. That has now changed with the enactment of the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 (Vic). This Act is significant because not only does it recognise a role for Aboriginal people in the management and protection of the Yarra, it is also said to give an independent voice to the river.

The Independent Voice of the River and International Developments

This idea of nature being given an independent voice has come to prominence recently, the most well-known example being the granting of legal personhood to the Whanganui River, Te Awa Tupua, with an entity called Te Pou Tupua to be the human face of the river and to represent its interests.

The Yarra River. Photo courtesy of Katie O’Bryan.

Giving legal personhood to a natural object with a guardian to protect its interests is an idea that has existed in theory since 1972 when Christopher Stone wrote his famous article ‘Should Trees Have Standing? ‒ Toward Legal Rights for Natural Objects’. Stone’s idea has been gaining momentum over the last few years, including several recent court rulings which have recognised the rights of rivers, namely the Atrato River in Columbia, and the Ganges and Yamuna Rivers in India. However, with the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ), Aotearoa New Zealand was the first country to enact legislation giving legal personhood and an independent voice to a river.

But how similar are the Victorian and New Zealand Acts, and what do they mean for the role of Indigenous people in river management?

Key features of the Yarra River Protection (Wilip-gin Birrarung murron) Act

Before outlining the Act’s key features, it is important to note that the Wurundjeri people, the traditional owners of much of the country through which the Yarra River flows, were involved in the development of the proposal for the Act. And, in a first for Victoria, Wurundjeri elders were present and spoke in support of the bill when it was introduced into Parliament.

Against that backdrop, the features of relevance for Aboriginal Victorians in the Yarra River Protection (Wilip-gin Birrarung murron) Act are outlined as follows.

The first is that the Act treats the Yarra River as one living and integrated natural entity. This holistic approach to the protection of the Yarra reflects Aboriginal conceptions of the Yarra; the Act’s preamble noting that it (the Yarra) is alive, has a heart and a spirit, and is part of their Dreaming. This is also evident from the Aboriginal language used in the title, ‘Wilip-gin Birrarung murron’, which means ‘keep the Birrarung [Yarra] alive’ in Woi-wurrung, the language of the Wurundjeri.

Secondly, to reflect the Yarra as a single entity, the Act provides for the development and implementation of an overarching strategic plan to guide the future use and development of the Yarra. The strategic plan will be developed by a lead agency appointed by the Minister (Melbourne Water) and will be informed by a long-term (50 year) community vision. Both the strategic plan and community vision require active public participation in their development.

The strategic plan will also be informed by the Yarra protection principles. These principles include general, environmental, social, cultural, recreational and management principles. Statutory decision-makers along the Yarra must have regard to these principles when performing their functions or exercising their powers in relation to the Yarra. Importantly, the cultural principles highlight Aboriginal cultural values, heritage and knowledge, and the importance of involving traditional owners in policy planning and decision-making.

The Act also establishes the Birrarung Council, the ‘independent voice for the river’. The Council comprises 12 community and skill-based members, two of whom must be chosen by Wurundjeri people. This is the first time in Victoria that Aboriginal people have been given a legislatively mandated voice in river management. Significantly, the Council is precluded from having any government representatives as members.

The Council has two main roles. The first is to provide advice to the Minister generally on the administration of the Act, and more particularly on the protection of the Yarra and on the strategic plan.

Its second role is to advocate for the protection and preservation of the Yarra. This role, along with the prohibition on government representatives on the Council, forms the basis for it being described as the independent voice of the river.

The Whanganui River. Photo Courtesy of Katie O’Bryan.

The Yarra River Protection Act 2017 and the Te Awa Tupua Act 2017 compared.

So how does the New Zealand legislation differ from the Victorian legislation given that both are said to give an independent voice to the river, and both emphasise Indigenous relationships with the river?

A major difference lies in the status of the river itself. Although the Yarra River Protection Act provides for the declaration of the Yarra for the purpose of protecting it as one living and integrated natural entity, it does not give the Yarra independent legal status with all of the rights and liabilities that come with that status. Accordingly, the Birrarung Council, although able to advocate on behalf of the Yarra, is not its legal guardian. It is not given any legislative power to exercise the rights, or take responsibility for any liabilities, of the Yarra River. It is essentially an advisory body only. The Te Awa Tupua Act, on the other hand, specifically provides for the Whanganui River to have ‘all the rights, powers, duties, and liabilities of a legal person,’ which are exercised on behalf of the river by Te Pou Tupua, the human face of the Whanganui River. This means that unlike the Birrarung Council, Te Pou Tupua, can initiate legal proceedings to protect the Whanganui River if the River is damaged or if any of its values are compromised.

That leads to another distinction between the Yarra River Protection Act and the Te Awa Tupua Act. Both statutes recognise the river as single living and integrated natural entity requiring protection. However, the river values to be protected in the Te Awa Tupua Act (called Tupua te Kawa) are intrinsically Māori oriented in their conceptions of the River. On the other hand, the river values to be protected in the Yarra River Protection Act, as reflected in the Yarra protection principles, are more wide-ranging, encompassing not just Aboriginal cultural values, but also post-settlement cultural diversity and heritage, as well as the values embodied in the environmental, social, recreational, management and general protection principles.

Finally, the Birrarung Council was established to ensure that various different community interests are involved in protecting and promoting the Yarra River, hence the need for it to have 12 members. Te Pou Tupua, with only two members (one appointed by the government and one by iwi (referring to the Māori tribes) with interests in the Whanganui River), was established to represent the Whanganui River, not community interests – that role is given to a different entity, Te Kōpuka, which has 17 members including up to six Māori members.

What are the outcomes for Indigenous river management?

The granting of independent legal status to the Whanganui River as part of the Treaty settlement in the Te Awa Tupua Act does not give the Whanganui Iwi a direct say in the management of the Whanganui River, because the members of Te Pou Tupua act on behalf of the River, not on behalf of their respective appointees. In that regard, it is not necessarily of benefit to the Māori. However, this is tempered by the fact that the river values to be upheld by Te Pou Tupua are intrinsically Māori in orientation, and that other aspects of the settlement, such as Te Kōpuka, and the role of the Whanganui Iwi’s post-settlement governance entity, do provide for Māori participation in the river’s management.

The Yarra River Protection Act does not extend as far as the Te Awa Tupua Act in giving independent legal status to the Yarra. Nor does it create legal capacity in the Birrarung Council to seek redress in court for any damage done to the Yarra for failing to comply with the Yarra protection principles. It does, however, give an advisory voice to Aboriginal Victorians in the management of the Yarra. Although the strength of that voice has yet to be tested, it does signal a shift in the future of river management in Victoria towards one which is more inclusive of Aboriginal people.

Further reading:

Katie O’Bryan, ‘Giving a Voice to the River and the Role of Indigenous People: The Whanganui River Settlement and River Management in Victoria’ (2017) 20 Australian Indigenous Law Review (advance)

Katie O’Bryan ‘New law finally gives voice to the Yarra River’s traditional owners’ The Conversation, 25 September 2017

 

Flowing from fiction to fact: The challenges of implementing legal rights for rivers

Monday, May 7th, 2018

The following essay is the fourth 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 / third 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. Julia Talbot-Jones who recently completed her PhD in economics at the Australian National University, and serves as Managing Editor of the UNESCO Global Water Forum. She can be reached at julia.talbot-jones [at] anu.edu.au.

Granting a river legal standing may sound like the stuff of fiction, but in 2017 four rivers were granted legal rights in rapid succession: the Whanganui River in New Zealand, the Ganges and Yamuna rivers in India, and the Rio Atrato in Colombia. Although these recent events washed away the fictional narrative, questions remain about how the approach will work in practice.

This essay engages with the practicalities of effective governance, drawing comparisons between the Whanganui River case and the India examples to understand the circumstances under which the approach may be a useful governance tool.  It will also shine light on some of the social costs of granting rivers legal rights that may be otherwise unanticipated by policy makers.

What determines the effectiveness of legal rights for rivers?

The effectiveness of using the granting of legal rights to rivers as an alternative water governance approach is likely to depend on how the change is enacted and the broader framework in which it is embedded.

In the case of the Whanganui River, eight years were taken to develop an institutional framework that incorporated the Māori worldview into legislation in a way that could work with existing laws and social norms.  Granting the Whanganui River and its catchment legal rights through legislation was a pragmatic way of achieving this.

Motivation for the change came from needing to resolve ownership issues, which had been long-standing and costly for Whanganui Iwi (the local Māori tribe) and the Crown (New Zealand government), as well as other river users. As a result, in designing the new framework the actors involved (Iwi and the Crown) were economically and socially invested in reaching a successful resolution.  Further, those involved in designing the institutional arrangement were those most likely to be affected by the changes.  This gave the actors a feeling of ownership over the end result and allowed for local knowledge to be incorporated into the decision-making process and legislation.

The resulting institutional framework, Te Pā Auroa nā Te Awa Tupua, also includes rules designed to control for some of the more obvious risks and costs of granting rivers legal rights, such as rent-seeking by the guardians and processes for managing conflict over competing uses.  It defines a boundary around the affected area (the catchment) and specifies who retains what responsibilities over decision-making.  Further, the new framework was designed to be implemented in two stages to smooth the transition and provide the opportunity for adaptation, as needed.

In contrast, the Uttarakhand court in northern India instated legal rights for the Ganges and Yamuna rivers in a surprise ruling two days after the Whanganui River legislation was announced.  The designation of legal rights was designed to trigger a substantive shift in the way that the rivers were managed and protected in law, but there seems to have been little thought to how the change would work in practice.

For instance, the Ganges and Yamuna rivers are transboundary rivers that stretch across several states in India, as well as into Bangladesh.  This means that a state ruling from northern India may struggle to be enforced in other jurisdictions. Further, the absence of an integrated institutional framework means that there is little guidance for the guardians on how they are supposed to behave or where the limits of discretion lie. The conflation of legal person and living person in the court decision complicates this further by failing to properly define (or codify) the rights’ breadth.

Unintended consequences of granting legal rights to rivers

For policy makers or judicial experts interested in granting rights to rivers, the elements of the broader Te Awa Tupua framework are important to note, particularly because, in the absence of an integrated framework, granting a river legal rights could have unintended consequences for society as a whole.

For example, recognising a river as a person will require the political system to find ways and means to deliver and uphold a river’s new legal rights, sometimes at the direction of the courts.  Because judges do not have the discretion to make decisions based on the potential consequences of their decrees this may mean that upholding the rights of the river may impose unexpected costs on other sections or scales of society.

Further, although granting legal rights to rivers has the potential to benefit some industries and professionals who stand to gain by providing court-mandated goods and services, it also carries the risk of forcing the court to become politicised.  This has the potential to compromise moral authority and public confidence in the system.  The series of events following the Uttarakhand decision provides evidence of how this can, and has, occurred.

Granting legal rights to rivers also places the responsibility of looking after, and representing, the environmental good or resource in the appointed guardians, rather than elected officials.  Without broader institutional and financial support, this means that only wealthy or well-endowed representatives will be able to challenge decisions and enter costly litigation, should a river wish to sue or find itself the subject of an individual or class action.

Given the financial burden of engaging in judicial process, perhaps it is not surprising that Ecuador – a country, which granted all of nature legal rights in 2008 – has had only three cases of the rights of nature being successfully brought to court by civil society.  In the first case, two American residents who live part-time in Ecuador brought a case against the Provincial Government of Loja on behalf of the Vilcabamba River.  The plaintiffs owned property downstream of a road that was to be widened and that runs past the river.  The couple argued on behalf of nature that the new construction was adding debris to the river and thus increasing the likelihood of floods that affected the riverside populations that utilise the river’s resources.

Admittedly, in the case of the rivers discussed here, nominated guardians have been appointed to speak on behalf of the rivers and in the case of the Whanganui River, a NZ$30 million contestable fund has been created for the purposes of improving Te Awa Tupua’s health and wellbeing, as well as litigation purposes.  However, in the case of the Ganges and Yamuna rivers, no financial support has been provided, which potentially limits the legitimacy and power of Ganges and Yamuna rivers’ legal rights, and that of the guardians who represent them.

Conclusions

Overall, granting the Whanganui River and its catchment legal rights set new precedent for water governance globally.  It was one of the most significant changes in water management in the past decade and demonstrates that the concept of granting rights to rivers is now more fact than fiction.

However, comparing the case of the Whanganui River with the examples of the Ganges and Yamuna also brings attention to the fact that the reason granting legal rights to rivers may be an effective water governance tool is really due to the broader institutional framework that embeds the new system into existing legislative structures.

For policy makers interested in using legal rights as an approach for the governance of rivers, considerations of institutional design and the potential effects on wider societal outcomes are important to note.  With any luck this will help reduce the risk of additional costs arising when rivers are granted legal standing in the future.

Further Reading

Fish, L., 2013. Homogenizing community, homogenizing nature: An analysis of conflicting rights in the rights of nature debate. Stanford Undergraduate Research Journal, 12, pp.6–11.

Kauffman, C.M. & Martin, P.L., 2017. Can rights of nature make development more sustainable? Why some Ecuadorian lawsuits succeed and others fail. World Development, 92, pp.130–142.

O’Donnell E.L., 2017. At the intersection of the sacred and the legal: Rights for nature in Uttarakhand, India. Journal of Environment Law, 30(1), pp.135-144.

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

Salmond, A., 2014. Tears of Rangi: Water, power, and people in New Zealand. HAU: Journal of Ethnographic Theory, 4(3), pp.285–309.

 

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] anu.edu.au.

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