Legal Rights for Rivers

• Citation: Vol. 50 No. 3
• Publication year: 2022
• topic: Civil Rights,Administrative Law,Environmental Law,Indigenous Law

Legal Rights for Rivers

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Katie O'Bryan^*

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First, I'd like to thank the Dean Rusk International Law Centre - Melissa Durkee and Sarah Quinn - for inviting me to be a part of this panel. My name is Katie O'Bryan, and I am a lecturer at Monash University in Melbourne, Australia.

I am speaking to you from the land of the Boon Wurrung People of the Kulin Nation, the Indigenous owners of the land on which I currently live and work. I'd like to pay my respects to their Elders, thank them for their custodianship of this lovely part of the country, and acknowledge that this always was and always will be Aboriginal land.

The title of my presentation is Legal Rights for Rivers. In the context of this Symposium on the Stockholm Declaration, which had a human rights focus in terms of protecting the environment, my focus is on the rights of nature, the rights of the environment itself, manifested in the rapidly expanding field of river rights. In my presentation, I will give a brief background of the genesis of this idea and then outline some of the main issues.

What struck me when re-reading the Stockholm Declaration was its anthropocentric focus, epitomised in the sentence: "Of all things in the world, people are the most precious."¹ Legal rights for nature, and by extension, rivers, turns that approach on its head, or at least elevates nature to an equal position in the rights framework—i.e., an ecocentric approach.

I am not sure how familiar you all are with this idea of a river having legal rights, so I will give you a brief background.

This concept of giving legal rights to nature, and by extension, legal rights to rivers, really started in earnest back in 1972, the same year as the Stockholm Declaration, with a seminal paper by Christopher Stone called Should Trees have Standing?—Towards Legal Rights for Natural Objects.²

What did he mean by giving legal rights to natural objects? I am going to refer to rivers because although Stone did not limit the concept to just rivers, rivers have been the main focus of recent developments.

Stone outlined three criteria that would be necessary for a river to be a holder of legal rights. First, the holder of legal rights, that is, the river, must be able to have standing to appear in court. Therefore, the river would need a guardian to institute such proceedings much like we have guardians to represent children, for example.

Second, Stone also noted that any injury must be to the river itself, not to human interests in the river. Finally, he said that any relief granted must

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be for the benefit of the river, not as compensation to humans for the injury or damage done to the river.

Stone's article was, in fact, cited in the dissenting judgment of Justice Douglas in the US Supreme Court in a decision you're probably familiar with, although regarding a mountain not a river, called Sierra Club v. Morton,³ handed down that same year.

Despite this judicial endorsement, albeit by a dissenting Justice, of giving legal rights to nature, the concept was still thought of in legal circles as somewhat fanciful.⁴

But a lot happened in the last 50 years, and we have clearly moved on.

This concept of giving legal rights to rivers really started to take off in 2017 when Aotearoa New Zealand enacted the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ).⁵ It made headlines around the world, and from then we've seen a steady increase in the number of rivers which have been given legal rights in one form or another.

But they are not all the same. There are a number of different manifestations in various different contexts, with the legal rights given to rivers differing from nation to nation, depending on the context. There are currently at least 17 rivers, or river systems, that have been given legal status across the world.⁶

We've seen it in western nations such as New Zealand, the US and Canada, but also in Central and South America, as well as Asia. In one instance, the rivers of an entire country, Bangladesh, have been given legal rights.⁷

Have we seen any examples in my country, Australia, of rivers being given legal rights? Well not exactly, but we do have the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 (Vic)⁸ here in Victoria, which recognises the Yarra River as an indivisible living entity and provides for an independent body to advocate on its behalf. But in contrast with the

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other rivers I've just mentioned, it does not involve any legal rights for the river itself.⁹ However, it is the first of its kind in Australia.

Described as "revolutionary"¹⁰ , and "innovative"¹¹ , various issues have started to emerge with giving legal rights to rivers.

One thing to be borne in mind is how the recognition of rights came about because this will have an impact on the effectiveness of that recognition.

Some of the recognition has come about by way of legislation. And the Aotearoa New Zealand legislation in relation to the Whanganui River is the main example of that.

Other recognition has come about because of litigation. The Atrato River in Colombia,¹² the Ganges and Yamuna Rivers in India,¹³ and the Turag River (and subsequently all rivers) in Bangladesh¹⁴ are...