Course:CONS200/2023WT2/Rights of the River

Preface

Granting legal rights to environmental entities is a relatively new concept that seeks to recognize the intrinsic value and importance of natural structures by treating them as legal entities, just as if they were human beings. This Wiki page delves into the origin behind the legal rights to nature, as well as the factors that influenced them. Three rivers in particular showcase the challenges, benefits, and community effort required to establish these rights for natural “beings”; the Whanganui (Aotearoa/New Zealand), the Magpie (Turtle Island/Canada), and the Atrato (Chocó/Colombia) mark important milestones in the legal movement of environmental personhood. Each river comes with its own set of struggles and successes, and each continues to push this new wave of conservation forwards.

"Legal Personhood"

For a river to be considered a legal person, and have the same rights as such, is based on the principle that the river is an integral part of the ecosystem and is a spiritual ancestor of the community. By that definition and legal classification, the river is granted the rights akin to a human, most notably, it is given the right to exist. It is important to consider the distinction between mere protection and the granting of legal rights to nature emphasizing the necessity of treating these ecosystems with respect and applying the golden rule to them. Rivers bring inherent worth beyond their utility to humans. The shift towards a more holistic and sustainable approach is needed now more than ever to branch off from the pattern of greed. By granting rivers legal personhood, they gain the ability to not only exist and prosper, but to be represented in a legal setting to ensure their best interests are being met regarding their health and safety. By acknowledging their interests at the same level as a person, we can secure the preservation of these rivers for future generations, while establishing the underlying framework for the interconnectedness of all forms of life and ecosystems. Consequently, granting rights to rivers presents an opportunity for a more comprehensive and proactive approach to environmental conservation, prompting creative solutions, and fostering harmonious relationships between humans and nature.

History

Thomas Berry (1914-2009), an American cultural historian who argued that the laws formed by society should be based on mother nature's best interest.

The first wave of environmental policies that began to recognize the value of nature arose in the 1960's, however, the intentions still aimed at preserving the resources of nature rather than protecting it for its intrinsic value encompassing a dichotomous worldview, separating humans from nature. Many Scholars continued to push for the rights of nature in a new direction, emphasizing the opportunity to create a relationship with nature, without exploiting its resources. Cultural historians such as Thomas Berry, theorized a world where humans are heavily integrated in nature, and consider it a member of the community. His theory of Earth Jurisprudence stated that the Earth should be considered first, and human interests after. He argued that humans need to appreciate the rules designed to protect the earth and give it the profound gratitude to which it is owed. Traction began to build as many scholars supported Thomas' philosophies, and in 1982, the World Charter for Nature became one of the first charters to encompass a biocentric perspective and enhance nature beyond a human context. As the masses become more aware of the negative interaction between humans and nature, the awareness of what needs to be changed has increased in popularity. Thomas’ position, along with the many others who contributed to this mindset was further justified when in 2017, the Whanganui River became the first river to be recognized as a legal person. This act has inspired other countries to use this case as a precedent and take similar legal action.

Whanganui River (Aotearoa/New Zealand)

The Whanganui River in the north east of New Zealand

The Whanganui is the first New Zealand to be recognized for personhood. The river before colonial times was an essential system to the Māori people. It serves as a cultural, spiritual and historical figure for them. Practices changed when colonists arrived on the island. In an attempt to have rights for the river and their people, The Whanganui Treaty of 1840 was signed between the British and Māori people. The treaty stated that tikanga would be the first law of Aotearoa. Tikanga refers to a customary system of values and practices that has developed over time and is deeply embedded in the social context. It also granted kāwanatanga, delegated authority, to the Crown, which was put though Māori tino rangatiratanga,self-determination, sovereignty. However, there were different versions of the treaty which did not favor the Māori people resulting in them not being granted the rights. The British viewed the treaty as a sign of submission to British rule.

With a hierarchal approach to the island, settlers viewed the physical environment and people as lower than them, this legitimized their oppression and exploitation of the island. The Pākehā government, a term used by the Māori people to describe colonizers, prioritized tourism and efficient water transport. This priority led to the destruction of Māori weirs that were used for traditional fishing practices. This conflicted with the people's values, resulting in an attempt to protest against the colonizers. From the time of settlement in 1840, the Māori people would relentlessly promote sovereignty of the river. However, the Crown enactment in 1903 of the Coal mines Amendment Act claimed ownership of the riverbed and all associated minerals in the Area. In the Act, they used the term "deterritorialization," which separated specific groups of people to form specific bodies of water. After this statement made by the Crown, the tribe continued to argue that their connections to the River predates their colonizers. The doctrine ad medium filum aquae, a law that states the owners of waterfront land own the water to its center line was a topic that was focused on because it did not align with Māori beliefs of the river. The Māori claimed the doctrine did not apply to the way they used the river. The claim was accepted as a breach of the treaty and was recognized in 1927 by the Privy Council. After this claim and numerous claims through the 20th century, there was little progress until 2002 when the Crown and Whanganui River Māori Trust Board, a commission representing the Whanganui River Iwi (elders), entered negotiations. No agreements were met, but negotiations were resumed in 2009 during the height of talk about river personhood. After a couple years the Record of Understanding was signed in 2011. The record recognized the river as Te Awa Tupua, a name for the river, as a indivisible and living whole.

In 2014, the deed of settlement, Ruruku Whakatupua, was signed in 2014. The main undertaking was the establishment of Te Pou Tupua, the human face of Te Awa Tupua. It was made up of two people, one from the Whanganui River Iwi and the other from the Crown. Although the deed of settlement was enacted and allowed the river to be recognized as a person, an Act in 2017 was passed in British parliament that enforced the river as a person. The Act was known as the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. It reinforced the idea of the River as a person and recognized the cultural significance of the Whanganui river to the Māori people as well as the significance of the river to them. Although the Act of 2017 was a step in the right direction, it is important to note the the framework of these agreements is around Western law and does not encompass the whole treatment of the river through the eyes of the Māori people. In order for legal rights of the Māori people to be established more thoroughly, western recognition of tikanga is required.

Atrato River (Colombia) - Context

The geography of the Atrato River, showing the length and importance to the country

Colombia's Chocó (one of 32 regional departments in Colombia) is known for being one of the most biologically diverse regions in the world, and for its Atrato river gaining legal personhood in 2016. Historically, the rivers of Chocó have been the soul of the communities in the region. They play a vital role in securing their livelihoods, traditionally by way of subsistence agriculture, fishing and alluvial gold mining; they provide their water supply and sanitation; and serve as the main form of transportation, which has been primarily fluvial throughout the whole department. Moreover, it's also where they wash, clean their clothes and cooking utensils, and where their children play, making the river the social center of these communities.

The practice of artisanal mining was introduced to Colombia after being colonized by the Spanish at the beginning of the 16th century, however only became an economic leader of the country at the end of the 20th century due to a global boom in demand for minerals. As a result of this, the traditional techniques had been increasingly replaced by the use of heavy machinery and chemicals such as mercury and cyanide. Worse still, the indiscriminate practice of illegal mining operations in the Chocó region has become a strategy of territorial colonization which deteriorates the environment and causes high levels of poverty and social inequity. The situation worsened to the point where although there had been an ongoing issue with illegal drug trade for many years in Colombia, the former commander of the Colombian Police, General Óscar Naranjo, depicted a phenomenon "worse than the drug trade"; illegal gold mining.

Atrato River (Colombia) - Legal Personhood

Against the backdrop of devastating environmental and social consequences caused by illegal mining alongside the failure of the state to address them, the Colombian Constitutional Court ruled in favor of the claimant communities in 2016's "Atrato River Case." This was a landmark decision for Colombia given that it was well aligned with their progressive 1991 Constitution with regards to protecting the claimant's rights to life, health, water, territory, culture, and a healthy environment. Additionally, it pushed the boundaries of constitutional law by the Court's introduction of the concept biocultural rights of indigenous and afro-descendant communities. The Court chose to define biocultural rights as those of ethnic communities to administer and protect their territories as well as the natural resources that constitute their habitat, where their culture, traditions, and way of life are developed interdependently. In doing so, they made a decision to protect the Atrato River and give it legal personhood in congruence with the previously defined rights of the indigenous communities that live in the Atrato region.

Another part of the ruling involved the requirement for the development and initiation of a plan to restore of the Atrato River with particular goals such as: (1) restoring the Atrato River bed, (2) eliminating sand banks formed via mining activities and (3) reforesting areas affected by legal and illegal mining. In order to solidify the benefits of the development and implementation of those plans, the ruling also involved the neutralization of illegal mining via seizing heavy machinery, restricting and prohibiting the transit of inputs (particularly mercury and cyanide), and the judicialization of responsible foreign and domestic organizations and persons engaged in illegal mining. As rulings often go, the allotted time for complete restoration of the river was far less than anticipated, and given how recent the ruling was made, the indigenous communities will have to remain patient with the rate at which change will happen. Even more so, due to the focus on dismantling illegal mining first and foremost, little of the environmental restoration of the Atrato river has gone into effect yet, and therefore the results of the ruling in that regard won't be noticeable for years to come.

The Magpie River in the Côte-Nord region of eastern Québec, Canada

Magpie River (Canada)

Mutehekau Shipu (Magpie River in English) is a river found in eastern Canada in the Côte-Nord (north coast) region of Québec near the border of Newfoundland and Labrador. The river flows south from the Labrador Plateau to the Saint Lawrence River, northeast of the town of Sept-Iles, Québec. The river spans approximately 300 kilometers from its headwaters to its estuary and falls within the traditional territory of the Ekuanitshit people, an Innu community located on the Gulf of St. Lawrence River, as well as Minganie county. The river is of particular cultural significance to the Ekuanitshit who have stewarded the Mutehekau for generations.

Today, the river is popular for its fast-running waters, white water rapids and numerous scenic waterfalls. The Mutehekau has become a popular white water rafting and salmon fishing location with various sport fishing catch-and-release programs in effect since 2015. Due to its rapids, the river was targeted by Hydro-Québec as a potential site for a hydroelectric dam in the early 2000's. An initial dam project under the name  Magpie Generation Station was commissioned in October 2007 and completed in June 2008. Six further hydroelectric dams were proposed in Hydro-Québec’s 2009-2013 short term strategic plan. Ultimately, all six dams were not constructed and Hydro-Québec have since stated that there is no further plans for development on the river in the short or medium term. In 2013, Hydro-Québec sold the Mutehekau Shipu land rights to Innergex Renewable Energy, a private energy production company based out of Québec, who now own the land in partnership with Minganie county. In February 2021, the regional municipality of Minganie and the Innu Council of Ekuanitshit adopted a joint resolution to block further development on the river by granting Mutehekau Shipu legal personhood. This ruling provides the river with the right to legal action that can be acted upon by the Innu council of Ekuanitshit and Minganie county. Each group can appoint representatives to protect the rivers collection of nine rights included in its personhood. This include the rights to live, to exist and to flow, to respect its natural cycles, to evolve naturally, to be preserved and protected, to maintain its natural biodiversity, to maintain its integrity, to preform essential functions within its ecosystem, to be free from pollution, to regeneration and restoration, and as mentioned, to take legal action should any of the aforementioned rights be infringed upon. This landmark decision marked the first time an environmental entity was granted legal personhood in Canada and represented an important milestone in the global environmental movement.

Challenges

The effectiveness and reality of granting these rivers legal personhood remains a controversial topic both conservation circles and in broader societal discussions. From a socio-legal point of view, these new laws impose significant burdens on the legal frameworks of their respective regions. Courts must collectively conduct civil trials, hearing from all parties and stakeholders that will be affected by their verdicts. This creates risks within the judicial system for passing these laws since the full consequences of their long-term implementation is largely unknown. Additionally, the financial and logistic demands of enforcing these legal protections are significant. Lawsuits are lengthy and costly processes that require extensive commitment. If drawn out, this financial strain can divert resources from other critical environmental movements.

There are viable arguments against the concept of environmental personhood that demand thorough reflection too. A natural entity granted legal personhood opens itself to initiate legal action against others but also makes it a potential defendant. This could lead to scenarios where individuals affected by natural disasters might take legal action or seek damages from the legal guardians of the entity or the natural entity itself. The rights of each respective natural entity must be comprehensive and distinct in order to protect the whole most effectively. If provided rights are lacking in depth, this legal framework opens the door to potential legal exploitation of loopholes, which could undermine the objectives of the environmental personhood movement altogether.

Furthermore, although legal personhood presents a valuable opportunity to protect at risk ecosystems and entities, there must be a significant level of commitment from the parties tasked with upholding the rights of nature. For example, Ecuador passed regulation to protect the entirety of its nature as a legal entity in 2008. Despite this, there has only been a total of 3 cases where Ecuador’s nature’s rights were successfully brought to trial. This case study revealed that the government of Ecuador had no intention of enforcing these laws and so although granting rights to natural entities may seem to be a step in the right direction, real progress can’t be realized if the foundation of the law is destabilized and lacking commitment.

Conclusion

Government processes move at a slow pace, prompting communities to come together to raise awareness about the importance of ecosystem protection. They work together to ensure the implementation of policies aimed at preserving rivers through legal status. More countries continue to follow suit to acknowledge the inherent rights of all nature, highlighting humans' obligation to ensure its health for the future. As seen with each case study, Indigenous communities play a pivotal role in applying pressure on governmental authorities as they not only possess a strong connection to the environment but they also have tremendous knowledge of managing natural resources and cultivating the corresponding healthy relationships.

The idea that a body of water can have rights and actively use them is an unheard of concept to most. While this gives way to pushback from natural resource industries as seen with Hydro-Quebec, it is only one of the many obstacles in the time consuming process communities must face. Determination and patience remain invaluable traits that each indigenous community mentioned above shares. The effectiveness and legitimacy through the legislative process is dependent on the government. While community members can lobby and promote rights for nature, the power still lies with government to take large scale action. Where positive intentions, resources, and advocacy are allocated towards these rivers, this granting process can be an optimistic pursuit. Developing this interactive relationship with the environment and lobbying for further community involvement will open the door for increased protection and preserve the biodiversity of our planet.