Should rivers have legal rights?
While a growing number of jurisdictions around the world are granting rivers legal personhood, the jury is still out on the benefits it delivers.
With scientists sounding one alarm bell after another about the planet’s future, finding new ways to protect our natural environment feels more urgent than ever.
“We have seen an almost complete failure of our existing laws and institutions to protect our environment,” says Dr Elizabeth Macpherson (PhD ’16), an expert in water law at the University of Canterbury. “It’s incumbent upon us to investigate and try new approaches.”
Dr Elizabeth Macpherson (PhD'16)
‘Environmental personhood’ is one such approach, and it’s fast becoming an international movement. Famously proposed in the 1970s by American academic Christopher D. Stone, environmental personhood grants natural entities a similar legal status to that of corporations, with three primary rights: to sue and be sued (legal standing), to enter contracts and to take legal action to protect themselves.
While it has taken some time to gain traction – even in the early 2000s, it was still seen as a fringe concept by some, and openly mocked by others – environmental personhood is now taking off worldwide, driven primarily by environmentalists and Indigenous peoples.
In particular, a number of rivers have been granted legal personhood. The Whanganui River on New Zealand’s North Island was the first to be recognised in 2017, followed soon after by the Ganges and Yamuna rivers in India (in a ruling currently on appeal before the Indian Supreme Court) and the Atrato River in Colombia. In 2019, all rivers in Bangladesh became legal persons. Here in Victoria, the Yarra River became the first in Australia to be legally recognised as a living entity, also in 2017, although it does not have legal personhood.
Victoria's Yarra River is the first Australian river to be recognised as a legal entity
“Environmental personhood has been used by different groups for different reasons,” says Macpherson.
For some environmentalists, it’s considered to be a new and more radical way of protecting natural resources. For Indigenous peoples, it can be a pragmatic alternative if governments are not prepared to recognise their ownership of natural resources.
"They can often still have more influence over how resources are managed through guardianship models.”
Nature vs. people
But while these rights may strengthen a river’s legal standing, they can also pit humans against it. “There’s reason to be very cautious about granting legal rights to rivers,” says Dr Erin O’Donnell (PhD ’17), a water law and policy specialist at Melbourne Law School.
Dr Erin O’Donnell (PhD ’17)
“Once you start reframing rivers as being equal to humans, the damage they cause us enters the narrative, too.” Last year the City of Toledo in the United States gave legal rights to Lake Erie, following a 2014 incident where green algae blooms led to a three-day loss of water supply. That incident had united the city in support of the lake’s health. “But as soon as legal rights were granted, it was interpreted as a warning signal that certain parties wanted to go to court. So the previously united community was immediately fractured,” says O’Donnell. Such was the fear of the river’s legal status, a group of farmers whose nutrient run-off contributed to the algae growth (although was not the primary cause) decided to take pre-emptive action. They are currently suing the City to challenge the constitutionality of the new laws.
That’s the risk with legal personhood,” says O’Donnell. “Instead of building a collective understanding and desire for a better environment, you split communities and end up with an adversarial outcome.
Similarly, the appeal of the Ganges and Yamuna rivers’ personhood in India has been brought by the state government bureaucrats appointed to act as their guardians, in part because they are concerned about being sued when the rivers flood.
Learning from Indigenous perspectives
In contrast, O’Donnell and Macpherson have both observed that more positive outcomes arise from legal personhood campaigns led by Indigenous peoples. The Whanganui River was granted legal personhood in direct response to ongoing claims from the local Whanganui iwi (tribe), who had been fighting for their river to be recognised as an ancestor since the Treaty of Waitangi was signed in 1840.
Speaking to The Guardian at the time, the iwi’s lead negotiator Gerrard Albert said that “treating the river as a living entity is the correct way to approach it . . . rather than being masters of the natural world, we are part of it.” The river is now represented by Te Pou Tupua, an entity comprised of one representative nominated by the Crown and one by the Whanganui iwi.
The Yarra River in Victoria is similarly represented, although without the accompanying legal personhood rights. The Birrarung Council was appointed in 2018 as its ‘voice’ with at least two places on the Council reserved for Traditional Owners.
“The Wurundjeri Woiwurrung people relate to the river as a living entity that needs a voice,” says O’Donnell, who is a member of the Birrarung Council. “Their leadership is helping the rest of us understand how we can reshape the relationship we have with the river. There have been lots of attempts over the last 30 years to come up with a new management arrangement for the Yarra, and so far this shows the most promise.”
The Whanganui River, Whanganui, New Zealand
While recognising the river as a living entity is legally weaker than granting it full personhood, O’Donnell says it avoids the trap of setting up an adversarial relationship with other stakeholders and can instead encourage co-operation. Talks are underway to set up similar management arrangements for other Australian rivers, including the rivers of western Melbourne and the Martuwarra Fitzroy River in Western Australia.
Does it work?
Despite the flurry of international activity around environmental personhood, it can be difficult to translate into meaningful actions.
For example, although Bangladesh is the first country to grant legal personhood to all its rivers, the courts have limited power to act against polluters.“Until the government is serious about protecting natural resources, legal personhood may not change things significantly,” says Mohammad Islam, who is completing a PhD on the country’s groundwater laws at Melbourne Law School.
The committee responsible for river protection are unable to take much action until some legislative loopholes are closed.
In Ecuador, where the rights of nature have been protected by the Constitution since 2008, an NGO successfully sued a construction company who wanted to build a road over the Vilcabamba River, but the company has not complied with the court ruling. The NGO reportedly didn’t have enough money to return to court to challenge them again. “From a practical perspective, without serious funding, organisation and adequate powers to enforce environmental personhood rights, they’re not worth the paper they’re written on,” says O’Donnell.
However, it is too soon to tell what impact the movement is having, says Macpherson.
“Certainly the most successful models require governance frameworks with appointed guardians or committees,” she says. “But we don’t have a lot of data on their impact yet.
Ultimately success will need to be measured not just in terms of environmental outcomes, but also the health of impacted communities.”
But she is optimistic about the promise of legal personhood rights. “Shifting the law away from viewing natural resources in terms of the benefits they provide humans to something with their own interests and needs is a powerful principle. It forces us to think differently about how we relate to nature.”
O’Donnell agrees: “Rethinking our relationship with rivers can shift us away from seeing them as resources.
“Instead of focusing on what we want from the river, we can begin to ask: what do we want for the river, and how do we get there with the river?”
By Catriona May