What does it mean to grant a natural feature the rights of legal personhood?

Whanganui River, New Zealand. Photo by Felix Engelhardt on Flickr
1 October 2018

BONN, Germany (Landscape News) — When you are there, it does not seem too much of a stretch to say that the Whanganui River catchment on New Zealand’s North Island has a personality all of its own. The wide, steep-cliffed watershed, with a palette of muted grays and greens, is most often shrouded in mist. Tiny settlements with rather optimistic-sounding names — “New London” and “New Jerusalem” are two of them — are scattered along the slender road tracing the river’s course. Human presence is dwarfed by the steady surge of ink-green water on its way from Mount Tongariro to the West Coast.

Rivers have always provided humans with solace and sustenance, but they have often been compartmentalized, degraded or flat-out ignored in decision-making realms. In March last year, though, this particular watershed made history by gaining the rights of legal personhood. The move formed part of a settlement between indigenous Māori iwi (tribes) and the government to make reparations for some of the historic cultural and environmental desecration that has occurred under British colonization.

The decision was followed only days later by a similar move in India, where the Ganges River and its main tributary the Yamuna, which are sacred in Hinduism — and severely polluted — were deigned to be “living entities” by the high court of the state of Uttarakhand.

Soon after, in May 2017, the constitutional court in Colombia released a decision to give legal personhood to the embattled Atrato River, which has been degraded and contaminated by illegal mining activity, and which a number of indigenous and Afro-descendant communities depend upon for their livelihoods.

Rivers are not the only parts of nature that have been given legal rights. In Ecuador in 2008, a constitutional amendment was passed, recognizing the rights of Mother Earth; similar moves ensued in Bolivia the following year. In New Zealand, a forested national park (Te Urewera) also acquired legal personhood recently, and other cases are popping up all over the world. More recently, on April 5, 2018, the Colombian Amazon was ascribed legal personhood by the supreme court, along the same lines as the rights given to the Atrato River the year before. Last week all Latin American and Caribbean countries were invited to ratify the historic Escazú Agreement, which is the first binding treaty in the world that grants environmental rights the same legal status as human rights.

It is a movement with momentum, and while five years ago this might have been considered pretty radical philosophical or legal thought, it’s becoming increasingly mainstream, said Elizabeth Macpherson, a law lecturer at New Zealand’s University of Canterbury.

To some, the idea seems odd. To others, there’s a kind of symbolic resonance: a recognition of a less ethnocentric reality. But how will the moves actually play out when decisions are made involving these new legal personalities? How will the rivers and mountains speak in courts of law? And when they do, will we listen?

NATURE STANDING UP FOR ITSELF

Certainly, there are metaphysical components to each of the cases for treating nature differently. Whanganui iwi, for example, regard the river as an ancestor, and acknowledge their interconnectedness through their idiom “Ko au te awa; ko te awa ko au” (I am the river; the river is me.) The Waitangi tribunal, which processed the claim, recognizes this special relationship, acknowledging in the settlement that Whanganui iwi “speak and listen to [the river], for the water is so much their blood as to produce a state of communication.”

However, in most cases, the motives for ascribing legal personhood are primarily practical. Each of the natural features whose rights have been sought is under threat from degradation and over-exploitation. In the past, when people have tried to take individuals, institutions or corporations to court for actions that threaten the intrinsic value of a part of nature, their claims have often been rejected on the grounds that the threat doesn’t affect them enough personally.

So, the theory is that if a river can be represented in court as a rights-holder in and of itself, those values may be easier to defend.

Contrary to popular misconceptions, legal rights are not the same as human rights, as corporations have enjoyed the rights of legal personhood for quite some time.

“I always find it interesting that people don’t seem to be challenged by the idea that a fictional thing like a corporation can have personhood, but that a natural resource, which is actually much more tangible, can’t,” Macpherson said.

“I think that people are just used to what they’re used to, and over time as this becomes more common, and more people are pushing for it, the idea will start to seem less shocking.” 

INTO THE FLOW

Now that these cases have set a precedent, a lot of attention is focused on what happens next. In the Whanganui River case, a representative nominated by local iwi, and another by the government, have been nominated as legal guardians to speak for the river and act in its best interests. They’ve received funding and are now in the process of setting up their governance processes, though it’s still too early to see how and whether those processes are working effectively, Macpherson said. She’s now doing research trying to follow these new institutions, and to see whether they’ll actually end up managing the river differently to how it would usually be managed under the Resource Management Act.

Similarly, in Colombia, 15 guardians have been appointed by river communities to act on the Atrato River’s behalf, and they’re now setting up collaborative governance entities, taking clear inspiration from the Whanganui river case.

“I think it’s promising that they are being set up because the [Colombian] government could have chosen to ignore the constitutional courts’ direction, but in fact they appear to be embracing it,” Macpherson said.

However, criticisms have already emerged that the government is not doing enough to involve the river guardians in river management — or providing them with adequate protection from the armed groups who control illegal mining within the catchment.

In India, the process has been less successful from the outset. In July 2017, the supreme court ruled against the Uttarkhand high court order to consider the Ganges and Yamuuna rivers living entities in July 2017, due to uncertainties about how far responsibilities for the river extend — especially as the Ganges flows into neighboring Bangladesh — and concerns about river guardians being held liable for flood damage. The case is being appealed, and the rivers’ status is currently in limbo. 

Clearly, there are plenty of issues to resolve as people around the world seek legal personhood status for the natural features. But it is still considered an option worth pursuing to tackle some of the perennial knotty issues of water resource management, says Macpherson.

“I think that the existing legal and policy mechanisms that we are trying to use to manage our rivers are clearly not working in New Zealand and in many places around the world. So although we don’t know how these legal personhood models are going to play out, whether they’re going to make a huge amount of difference or not, it’s promising that we’re giving a different approach a go.”

“We need to think outside the box, if we’re going to try to change and reverse some of the damage that’s happening,” she adds. “So I think this [trend] is cause for optimism. And I don’t think it’s going away.”

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