Can Rivers Be Persons? Voiceless in conversation with Dr Erin O’Donnell.

Thursday, 15 November 2018

 

A legal person is an entity capable of holding rights and/or duties. Most people think of human beings and corporations when they think of entities with legal personality. However, increasingly the borders of this concept are being challenged and explored, with some suggesting that it should be extended to include nonhuman entities, such as rivers, mountains and animals.  

Dr O’Donnell is an Australian water law and policy specialist at the University of Melbourne. Her PhD explored the implications of using a legal person to represent the aquatic environment, with the responsibility of holding and managing water rights.  

We spoke to Erin about the concept of granting legal rights to natural entities, and asked her about the idea of extending legal personhood to nonhuman animals.  

Why do you think it is problematic to classify natural entities as human property? 

Fundamentally it says that the only reason for any of these natural objects or animals to exist is for human use. By considering them all as objects we deny their intrinsic value, and value them only as something that a human can do something to. They have no rights and no importance, except for their value to a human. I think that certainly from a Western perspective, we're growing beyond that position and seeing ourselves as much more a part of the world. Having said that, many other cultures have been thinking that way for millennia.  

How have nonhuman entities such as rivers been granted legal personhood in jurisdictions around the world? 

In Western legal scholarship, the idea of giving legal rights to nature probably stems back to Christopher Stone's article in 1972, where he was really trying to tease out what it would actually look like and why it would matter if natural objects started to have legal rights of their own. He argued that legal rights and legal personhood mean that natural objects can start to advocate for themselves, and that impacts on them don't have to be solely considered through the lens of how they have affected humans. It means that we can actually assess any damages in terms of direct impacts to the entities themselves. That was a big theoretical leap at the time. It was laughed at, and existed on the fringes of the law for a very long time.  

However, in 2008 it started to get picked up again in a more mainstream way and Ecuador actually granted rights to nature across the entire country under its Constitution. In creating those rights, they also created the capacity for any citizen in Ecuador to take action if those rights were infringed.  

That was also then picked up in Bolivia, which passed its own legislation. Unfortunately, both of those cases didn't really go anywhere after that. There is a case in Ecuador where they attempted to use these new legal rights for nature to protect the interests of a river, the Río Vilcabamba. Unfortunately in that case, although the judge recognized that rights did exist, we ended up in the same sort of balancing framework that environmental law has been stuck in pretty much ever since we've had environmental law. The rights of the river ended up being balanced against the rights of the humans to develop and seek economic growth and development. So, it didn't really lead to this transformative kind of legal change that we might expect.  

Whanganui River, New Zealand

Photo: Whanganui River, New Zealand.

Most recently, Aotearoa New Zealand started to explore the concept of extending legal rights to nature as part of the Treaty of Waitangi Settlements between the national government and the Māori People of Aotearoa New Zealand. Last year in March, the national government recognised that the Whanganui River is a legal person. This was seen as a fundamental shift in the way that people interact with rivers, and in the way that the law constructs the relationship between people and rivers. The new legislation recognised the river as a natural object with physical and metaphysical attributes, that the Māori People have had a strong relationship with for hundreds of years. To them the river is an ancestor; it has always been a form of person. Using legal personhood in that way was much more pluralistic from a legal perspective, and a way of recognising Māori relationship to the river as well as the intrinsic values of the river itself.   

There is a movement at the moment in the US to change the legal status of animals from things to persons under the common law (the Nonhuman Rights Project). Do you think this is an effective approach?  

The common law can be a useful stepping stone, but it's unlikely to be enough in and of itself. Any win in a legal sense has to be backed up by organisational capacity and funding. Ultimately we can't get away from the need to have money to represent those interests, so that you can give force and effect to those new rights. A second issue is that winning a case to protect the environment or to protect animals is an incredibly adversarial thing to do, and that's not necessarily a bad thing, but it does create winners and losers. The environmental movement, particularly in the US, has been dogged by these legal victories that have then been undone in legislation or in policy later on. And this gets to the heart of the problem for legal rights: my research has found that giving legal personality and extending legal rights to nature really changes the way that people feel about it. People start to think, 'well nature's now got all these legal rights, it should be able to look after itself, so I don't have to look after it anymore'. That starts to change the narratives that we use to understand the world around us, and it's too easy then to step back and say, 'well, it's not my responsibility, nature's got all these legal rights and it's got its own organisation, it can look after itself’. So if you're looking to use the common law to push forward a legal framework, I think it needs to be backed up by a much larger community conversation about why these rights are so important and why the values that these rights are actually protecting are important. We need to build more of a consensus about why we think animals, plants and ecosystems are important.  

Read more in Erin’s book, coming out later this year: Legal Rights for Rivers: Competition, Collaboration, and Water Governance. 


LEARN MORE ABOUT THE CONCEPT OF RIVERS AS PERSONS IN OUR LEGAL PERSONHOOD APE.