Archive for the ‘Rights of Nature’ 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

 

Independent Legal Personhood of Rivers or Relational Stewardship?: A Perspective from 20 Percent of the Worlds Freshwater (Canada) and the Indigenous-Colonial Legal Tensions that Govern it

Wednesday, May 23rd, 2018

The following essay is the fifth 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). 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 Deborah Curran, Associate Professor, Faculty of Law and School of Environmental Studies and Acting Executive Director, Environmental Law Centre, at the University of Victoria in British Columbia, Canada. She can be reached at dlc [at] uvic.ca.

In Canada, the country with 20% of the world’s freshwater, our colonial legal history and the current expression of both colonial and Indigenous laws make for a unique context that does not necessary lend itself to the application of independent legal status or personhood for natural features such as rivers and mountains. While amendments to colonial law could grant legal status to rivers, many Indigenous legal orders place Indigenous peoples in a stewardship or caretaking relationship with water that they view as fundamental to their laws and culture. Devolving authority to an independent representative or tribunal and separating Indigenous people from direct responsibility for their environment is viewed as harmful to both people and ecosystem. Indigenous communities are responsible for maintaining relationships as part of their legal and cultural duties. Creating a third-party structure, even with representation, may not adequately adhere to Indigenous law. In addition, once communities agree to devolve decision-making authority to a third-party representative of a river, there is always the danger that the Crown – federal and provincial governments – may take the position that Indigenous communities then have less say in proposed development and impacts on the river. How independent structures representing a river could limit or change evolving Aboriginal rights and title is a significant risk for Indigenous communities.

There is considerable energy going into revitalizing and expressing Indigenous laws in Canada, including entering into government-to-government agreements that amend colonial law. These acts of Indigenous law could result in protections for the natural environment and specific features such as rivers that are similar to those promised by granting independent legal status to rivers and the natural environment. At least in the medium-term, the focus in Canada is on revitalizing Indigenous laws to be an effective articulation of Indigenous authority and counterpoint to colonial environmental governance.

Environmental Protection and Aboriginal Rights and Title in Context

There is no right to a healthy environment in Canada under current state or colonial law. The environment, except for fish, is largely the responsibility of provincial and territorial governments who have created a patchwork of different laws regulating the extraction of natural resources, parks, and pollution. All water law in Canada focuses on permitting the extraction of water rather than planning for watershed health, and none acknowledge Aboriginal rights to water as part of the water balance in a region.

Since 1982, the federal Constitution Act affirms and acknowledges Aboriginal and treaty rights. Colonial courts have interpreted the scope of these rights to include the right to harvest for food, social and ceremonial purposes and carry out cultural practices in one’s historic territory. Beyond this bare right to harvest for a moderate livelihood and undertake activities that are “distinctive to the culture” of an Indigenous community, most court cases exploring Aboriginal rights focus on the Crown’s requirement to consult and accommodate First Nations when the provincial or federal governments make decisions about applications to use resources in the traditional territory of an Indigenous community. This duty is a procedural right and does not a guarantee a substantive outcome of a healthy environment, intact ecological relationships, or the ability to exercise one’s Indigenous laws.

Recently, however, First Nations and colonial courts have turned to Indigenous laws and Aboriginal rights, as well as their expression in government-to-government agreements, as legitimate limitations on the decision-making authority of the federal and provincial governments, and as a way to challenge the natural resource regimes, including for water, under colonial law.

Indigenous Law

As a multi-juridical society, there is a resurgence in the expression of Indigenous law in Canada, the foundation of which are the relationships and responsibilities between land, plants, animals, fish, marine ecosystems, and humans. Colonial law stands in contrast to Indigenous law, which encompasses the existing and evolving laws of each Indigenous society. Indigenous groups and communities in Canada continue to define and use their own laws. The land- and water-based origin of many Indigenous laws establish relationships and rules for protection, harvesting, cultivation, and trade of ecosystem elements. The origins of Indigenous laws flowing from ecosystem-based relationships also create the overarching governance processes through which entitlements to use, harvesting practices and sharing with adjacent communities are mediated.

The Tsleil-Waututh Nation conducted their own environmental assessment of the Trans Mountain pipeline expansion proposal using their Stewardship Policy derived from their Indigenous laws as the assessment framework. Tsleil-Waututh and Coast Salish Legal principles include the “sacred obligation to protect, defend, and steward the water, land, air, and resources of our territory…the responsibility to maintain and restore conditions in our territory that provide the environmental, cultural, spiritual, and economic foundation our nation requires to thrive”. The Stewardship Policy requires the Nation to evaluate the potential negative effects of proposed development, and if those effects do not exceed “Tsleil-Waututh legal limits”, to assess the benefits of the project for the community. As part of the assessment process, the Tsleil-Waututh First Nation revealed their stewardship obligations in their territory, based on their Indigenous laws and operationalized through their Burrard Inlet Action Plan, which includes regulatory action and habitat restoration by the Tsleil-Waututh.

The Tsleil-Waututh Nation’s assessment of the trans mountain pipeline (image reproduced with permission of Sacred Trust Initiative Tsleil-Waututh Nation)

Likewise, the Stk’emlúpsemc te Secwépemc Nation also undertook a community assessment of the proposed Ajax mine near Kamloops, British Columbia. Concluding that the Nation would not give its free, prior and informed consent for the project, the process included the Nation exercising its own Indigenous environmental governance to strike an assessment panel. The decision document underscores the importance of the ethics of stewardship embedded in socio-ecological relationships and expressed in Secwepemc lands and resource laws.

Other examples of expressions of Indigenous laws that challenge colonial administrative and legal processes abound in Canada, particularly on the west coast in British Columbia. Many of these expressions involve water as the basis of life. The Nadleh Wut’en and Stellat’en First Nations, as well as the Okanagan Nation Alliance, have made declarations of water law and are developing programs and policies flowing from these declarations. A central tenet of these expressions of law is the relationship of these communities to their lands and waters, and their ongoing responsibilities to take care of the ecosystem’s health.

Cautionary Approach to Legal Personhood

Currently in Canada, there is a movement to revitalize Indigenous laws and to enable those laws to express jurisdiction, sovereignty and interact with colonial law as one of the long-term results of reconciliation. Permitting the full expression of Indigenous laws may mean granting legal status to some rivers as part of government-to-government agreements, however, such an approach would follow first the concrete expression of Indigenous legal orders and long-term discussions about the appropriate ways to enliven those orders in conversation with colonial law.

A legitimate concern is that colonial legal processes or governments could weaken the intent of legal status for rivers vis a vis evolving claims for Aboriginal rights and title. While Indigenous communities would sign-on to such an approach as a way to secure better protection for the natural environment, and thus the underlying conditions of their Aboriginal rights such as fishing, hunting, gathering, and ceremonial practices, the Crown may argue that First Nations’ interest in applications for development or extraction of natural resources is diminished because the river had independent representation. Indigenous influence on potential projects could be limited to direct impacts to Indigenous people and not the environmental health of the river as an ancestor, spiritual entity or condition of life.

There may be opportunities in the medium- to long-term where expression of Indigenous laws include government-to-government agreements that point to legal personhood, as was the case in New Zealand. Several productive government-to-government agreements exist in Canada. For example, the Haida Nation entered into the Kunst’aa guu – Kunst’aayaa Reconciliation Protocol with the Province of British Columbia to create the Haida Gwaii Management Council. The Council makes decisions about forestry and heritage sites, and is composed equally of appointees of the provincial government and Haida Nation, with decisions made by consensus.

Another example is the Great Bear Rainforest Agreements between the seven First Nations in the Central Coast of British Columbia and the provincial government, which agreed to return 80 percent of the landscape to old growth forest over a 250-year timeframe and to support a conservation economy. While the legal mechanisms in colonial law for realizing these agreement are complex, the provincial government operationalized the forestry commitments through the Great Bear Rainforest (Forest Management) Act, which establishes the annual allowable cut for the area as agreed to pursuant to ecosystem-based management. Much of the landscape is designated in a new type of park called conservancies that permit the exercise of Aboriginal rights.

Finally, granting independent legal status and a voice to a river might make sense in unique areas where there are many overlapping claims and legal structures affecting a body of water, and where decision-making authority and priorities require clarity. An example is the Peace Athabasca Delta, a UNESCO World Heritage site and part of the larger Peace-Athabasca-MacKenzie River system. Flowing through three provinces, two territories, and dozens of treaty and non-treaty Indigenous traditional territories, it is affected by some of the largest industrial tar sands and hydroelectric projects in Canada. While colonial legal processes have failed to provide effective governance for one of the world’s most important rivers, perhaps an independent governance body for the River itself could force reparations.

Further Reading

Renata Colwell, Savannah Carr-Wilson, Calvin Sandborn. Legal Personality of Natural Features: Recent International Developments and Applicability in Canada

Deborah Curran. ‘Legalizing’ the Great Bear Rainforest: Colonial Adaptations Towards Conservation and Reconciliation (2017) 62:3 McGill Law Journal 813-860

Indigenous Law Research Unit. Indigenous Law Videos

Val Napoleon. What is Indigenous Law?

 

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.

 

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] unimelb.edu.au.

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

 

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

 

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