Defending River in Court

The theory of giving rights to nature was proposed in the 1970s by the American legal scholar Christopher D. Stone as a strategic environmental defence strategy. The 1972 book that started it all – Boulder Rights of Nature. In environmental litigation, many cases are unsuccessful because the people who bring the suit lack the legal standing to do so. It is hard for a plaintiff such as the US environmental protection organisation the Sierra Club to demonstrate why it – and not, for example, a property owner – has the power to sue over environmental damage.

In other words, it’s difficult for nature’s de facto representatives to defend its interests in court.As a workaround, Stone suggested giving rights to the environment itself, because, as a rights holder, the environment would have the standing to bring a suit on its own behalf. Rights of nature, then, are not rights to anything in particular but simply a way to enable nature to have a legal hearing. It took decades for lawyers to turn theory into reality. But in 2006, Tamaqua Borough in Pennsylvania became the first US community to recognise the rights of nature within municipal territory. Since then dozens of communities have adopted similar local ordinances.

In figuring out how countries can reverse this environmental degradation and reduce conflicts, a lot can be learned from the indigenous view of rivers. Legal innovations that successfully incorporate this outlook could better protect rivers, essentially by giving them the same basic rights as people.
Because indigenous communities are on the front lines of environmental defence from China to El Salvador, it is often assumed that they are and will continue to be the obvious guardians of nature. But there are problems with this assumption. The indigenous of the world are not a homogenous group that inherently cares for nature.

Additionally, unless the law designates a specific community the legal representative of nature, as in New Zealand, there is no guarantee that the intended community will be the one that ends up speaking for nature.In Ecuador and Bolivia, the relevant legal texts use morally loaded language and rich references to indigenous communities that make clear the intended guardians of the nations’ natural treasures.

But standing is in fact granted broadly, and neither of the two legal cases settled in favour of nature to date in Ecuador was brought by an indigenous group. One suit was won by Americans (in the name of the Vilcabamba River) and the other, lodged on behalf of nature in San Lorenzo and Eloy Alfaro districts in 2011, was brought by the state, which sued to stop illegal small-scale mining operations in the area. The spirit of the law might have been violated in these cases, but the letter surely was not.

Ambiguous language could also permit abuse. In theory, given a sufficiently wide definition of standing and of nature, oil companies themselves could use the rights of nature to protect Ecuador’s hydrocarbon reserves.New Zealand’s narrower approach may prove more effective in the long run. By granting natural entities personhood one by one and assigning them specific guardians, over time New Zealand could drastically change an ossified legal system that still sees oceans, mountains and forests primarily as property, guaranteeing nature its day in court.

Filmmaker Mindaugas Survila believes that we, humans, know so little even now. Could you argue with that?

With the number of dams in rivers increasing, indigenous people, citizens, and environmental activists say the time has come to look at granting legal rights — a form of legal personhood — to the nation’s rivers. This campaign is not occurring in isolation, however, and is taking inspiration from other countries where a small but growing number of courts and legislatures have begun bestowing legal rights upon rivers. Three countries — New Zealand, Colombia, and India — have all taken such steps over the past two years, though the practical ramifications of these declarations remain unclear.

Those declarations are an important first step, but given the high levels of contamination in Indian waterways, it remains unclear how far these legal actions will go in remediating the problems. The Ganges is a profoundly contaminated river, with high levels of heavy metals and other toxins caused by human activities. When and if India’s government or its courts bestow legal status on the Ganges and other waterways, officials must not only curtail ongoing pollution but also launch restoration programs to return these sick rivers to health.

Despite the promise held by establishing legal rights for rivers, difficult questions remain. What does it mean for a river to have the rights of a person? Does a river have the right to flow freely, and does this mean its waters can’t be dammed or diverted? Is compensation to affected communities permissible in lieu of court orders requiring removal of large obstructions like dams? What can we do to move beyond merely acknowledging humanity’s connection to rivers to actually saving them? And, finally, and perhaps most important, how should a legal regime determine who will advocate on behalf of a river, which lacks a voice of its own? In the future, these are questions policymakers will have to address.