This article is written by Pavan Kumar. R, pursuing PGDHLR from NLSIU Bangalore.
Introduction
Humans are dependent on rivers for several purposes, starting from basic usage to hydropower, irrigation, etc. As days pass, there is an increase in the demand for water. To meet the same, the water resources should be replenished. Along with that, there is also an immediate requisite for innovations in institutional arrangements, which can address the issue. One such approach is the process of giving legal rights to water bodies. These developments have led to the process of creating legal precedents in the field of environmental law and also towards the management of water resources. Alongside, there are also a series of challenges that crop up. For example, a legal right is worth only when that can be enforced. There itself a big question arises, who will enforce the legal rights on behalf of the rivers?
Christopher Stone, in his article, highlights how affording legal rights to women, African American (individuals with skin pigmentation) and slaves was considered as unthinkable. Further, he identifies how even entities like corporations, firms, trusts, joint ventures and municipalities, initially, were also not afforded legal entity status. Accordingly, he identified that a stream is also being considered right less that has its implications, as stream has no standing in court and streams are never regarded as beneficiary in cases of pollution.
Recently, the rivers Wanganui in New Zealand, the Ganges and Yamuna in India and Rio Atrato in Colombia have been given the status of legal persons. This has certainly changed the legal status of the rivers in law. On the other hand, there is also another question that arises whether the same can also be applied in the case of other rivers across the globe generally and also the challenges and opportunities that come along with the same. Even though the concept of legal rights for nature is not a new one, the implementation of the same is not so successful.
Legal rights in simple words mean the ability to sue or to be sued in the court of law. It is to be observed that the legal right does not necessarily mean to be the same as human rights and also, the term legal person does not always mean to be a human being. Hence, when nature is given legal rights, nature can be seen as a legal person and as such, the right can be enforced. Legal rights to rivers are being given in several ways for different purposes. The Whanganui River got its rights through the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, wherein there was a necessity to recognise the relationship that the Whanganui Iwi (tribe) had with the river. On the other hand, in the case of the Rio Atrato in Colombia, it was an ‘accion de tutela’ (action for protection of constitutional rights), as the miners in the region had caused degradation of water affecting the fundamental human rights of the people living near the river which also had further resulted in change of the natural course of the river. Similarly, the Indian rivers Ganga and Yamuna were declared as legal persons in the year 2017.
A legal right consists of the three elements, which are: legal standing, which is the right to sue and be sued; the right to entering or enforcing contracts and as well as the right to acquire property.
Ecuador granted legal rights to nature in the year 2008 (Constitution of the Republic of Ecuador 2008, articles 71–74). Similarly in the year 2011, Australia formed a hybrid form of legal rights for the concept of nature and the same was used for the protection of rivers in the state of Victoria.
In the south east of Australia lies the state of Victoria. Even though it is a federated nation, the responsibility of the management of the water resources are still kept with the state each the states have their own water laws. The allocation framework for water was established under the Victorian Water Act 1989 and was designed around the water market, which gives rights to trade water. The water assigned for the environmental use is held under the Victorian Environmental Water Reserve (EWR; Department of Sustainability and Environment 2004, Foerster 2007) whose main purpose is to provide and maintain necessary river flow to support the wetlands and also to maintain the health of the rivers. Later in 2010, the powers were delegated to the Victorian Environmental Water Holder (VEWH), which was newly established as a public entity under the Victoria’s Public Administration Act 2004, and it was considered as a legal person with the capacity to hold water rights, to decide its usage as per the availability and also the power to trade water in the market (Victorian Environmental Water Holder 2013). It also had the powers to sue and to be sued, enter contracts, acquire and dispose properties just like a real person. The VEWH is funded from the taxes collected from the water users and also has dedicated staff to handle its functions. It is a living example of how an organisation can be established to hold and manage water rights.
In the case of the Whanganui River in New Zealand which runs about 290 kms and is also used for navigation, the Government owns the riverbed and the local authorities have the management. In the year 2017, to settle the long time disputes of the local Wanganui Māori, the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (the Act), as per which the Whanganui River attained the legal status of a person. The riverbed ownership rights vested in the Te Awa Tupua and could be represented by a guardian i.e. Te Pou Tupua, consisting of two persons, to act and speak with respect to the benefit of the river’s health and well-being. The Te Awa Tupua is funded by the government and also there was a strategy group that was formed with up to 17 representatives for planning the statutory process to manage the Whanganui River catchment.
Just after a few days the Whanganui River was conferred as a legal person, the Hon’ble High Court of Uttarakhand declared that: “the Rivers Ganga and Yamuna, all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these rivers, are declared as juristic/legal persons/living entities having the status of a legal person with all corresponding rights, duties and liabilities of a living person”. Whereas in this case, there was a slight difference in the reasons assigned which was because the said rivers were considered to be as sacred by the people of the country. It was also observed that extraordinary measures were needed to preserve them. The rivers were arranged as minors as they could not speak for themselves. Whereas, the Apex court halted the effect of the original case as the State Government of Uttarakhand argued that their responsibilities as Guardians of the rivers were not clear as they also extended well beyond their borders too.
The case of Victoria and New Zealand are strongly in contrast with the case of the legal rights for rivers created in India. The Indian rivers stretch across several states of the country and also into the neighbouring country Bangladesh as well which makes them trans boundary in nature. As such mere recognition of the status of the river as a legal person just in the state of Uttarakhand will not be enforceable across the borders of the states and countries.
As we see, creating legal personhood and rights to nature involves distinct approaches; the same should be adaptable and flexible using different combinations of legal forms and legal rights with distinctive aims and arrangements to achieve a broader outcome in the aspect of giving legal rights and its enforcement. Legal rights of nature link to rights of specific objects in nature such as the environment, water sources, etc. It is a mechanism to address several complex sets of questions and require an innovative method of approach as there will be a lot of differentiation between two different cases. Even though the legal rights are created, future enforceability should always be kept in mind, which include but not limited to the provision of funding, organisation, independence from the government etc.
Even though the approach of giving legal rights through judicial and legislative process for rivers can be used to address the current problems, it can also be used to complement the framework of the legislature, which would make legal rights a tool with its own set of opportunities and as well as limitations. The achievement though may be slow, but is effective. These cases show the fresh developments in which nature can be given a legal standing.
In the case of the Rio Atrato in Colombia, it was an ‘accion de tutela’ (action for protection of constitutional rights), as the miners in the region had caused degradation of water affecting the fundamental human rights of the people living near the river which also had further resulted in change of the natural course of the river.
In the case, wherein nature has been given legal rights previously such as in the case of Ecuador and Bolivia, there was a distinct limitation which resulted in giving the rights the needed force and effect. Whereas the approaches made in the case of Australia and New Zealand may overcome the challenges previously put up in the earlier cases and benefit the nature and as well as the society. The legal rights conferred to rivers can address several issues that are seen in water resources management as the need for freshwater is increasing day by day. Understanding of the limitations in law put forth by this legal approach will allow the decision makers to make a more calculated and informed choice while addressing the context-specific socio-environmental and economic pressures.
Hence, there is a need for consensus between developed, emerging and developing economies on balancing of corporate interests and ecological interests, which can only be met by framing legal framework to compensate natural objects for damage occurring because of economic activities and consider such damages as social cost in calculation of Gross Domestic Product for national and global economy.
Reference
Should Trees Have Standings? – Toward Legal Rights for Natural Objects
Defending Rivers: Vilcabamba in the South of Ecuador by María Valeria Berros.
Workshop on New developments in the legal status of rivers: 11 August 2017, Melbourne Erin O’Donnell, Michelle Maloney & Christine Parker
Rights of Nature: Rivers That Can Stand in Court: Lidia Cano Pecharroman
LalitMiglani v State of Uttarakhand Writ Petition (PIL) No.140 of 2015 Uttarakhand High Court
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