GRANTING LEGAL RIGHTS FOR RIVERS – A GROWING MOVEMENT.

Table of Contents

GRANTING LEGAL RIGHTS FOR RIVERS – A GROWING MOVEMENT.

Author: Nikhil N Bhonsle ,
3rd year BA LLB

 Christ (Deemed to be University).

Introduction
The biggest challenge before humanity is to save our environment. With the existence of rivers, glaciers, lakes, water bodies at stake due to global issues such as global warming, climate change and pollution it is very important to examine the existing legal rights of these water bodies and their existence as a legal entity.
Legal rights should not be misunderstood for human rights, legal rights are not same as human rights and hence ‘legal person’ is not restricted to human beings only.[1] The Oxford Law Dictionary has defined legal entity as not only a human being but also an organisation, company etc that confers in itself legal rights as well as legal obligations.[2]For example a corporation which is not a human being will still be considered as a legal entity in order to provide this corporation with certain legal rights, and also to treat the company as a legal entity separate from its managers and shareholders.
Rivers as legal person:-
Rivers across the world have started to receive rights in different ways i.e. via legislation, judicial decisions for different purposes (protection of nature, religious faith,) and conferring of these rights to the rivers is possible by considering these rivers as legal persons. [3] Granting legal status is very important because it enables the legal guardian of the river to act against any actions which violates or damages the river. It is also beneficial for the communities whose daily life is completely dependent on these rivers and by conferring rivers with legal rights it may ensure greater water security and save water for the years to come. However conferring rivers with legal rights is not as simple as it looks because it comes along with certain challenges like implementation and enforcement which needs to be considered before conferring rivers around the world as a legal entity or as a legal person.
Legal rights for rivers:-Three case studies
The cases that have been opted for case study basically have 3 reasons in particular. First, each case here confers legal rights to a particular natural entity rather than nature as a whole. Secondly, each case either directly or indirectly related to rights of rivers, in the face of environmental degradation caused by over extraction of water (Victoria), on-going ownership contests (New Zealand), and pollution (India). Thirdly not only do these cases provides for legal rights to rivers but also provide for implementation and enforcement of these legal rights.    
Case study 1:-Whanganui River, New Zealand
The whanganui river of New Zealand was granted the status of a legal person and was conferred with legal rights and obligations after a bill named Te Awa Tupua was passed in the parliament. This piece of legislation was passed in order to settle the long-time dispute between the local descendants the Iwi and the government authorities. This new piece of legislation recognises the river as well as its catchment as a legal person (Te Awa Tapau).  Rights till its ownership are conferred in the hands of Te Awa Tapau which will have the options to sue and to sued and will be represented by a legal guardian (Te Pou Tapau). Te Pou Tapau in the spirit of the  Treaty of Waitangi, New Zealand’s founding docume
nt consists of two person governing body one appointed by the crown and the other appointed the Iwi who will act in the interest of the well-being of the river. A proper framework is also provided in this act to help in the implementation of the rights that needs to be given to the river. This act provides for various groups or bodies which will help in the application of the rights of the river. [4]
Case study 2:- The rivers of Victoria, Australia:-
The Australian country though a federal nation vests the rights of water resource management in the hands of its states and each state has its own water laws. Victoria’s water allocation framework was established under the Victorian Water Act 1989 and is designed around a water market that enables rights to take and use water to be traded (National Water Commission 2014). Till the year 2007, all natural water bodies were under the control of the Ministry of environment and were regulated in particular by the Environmental Water Reserve (EWR). However in the year 2010, ownership and the decision making rights were shifted from EWR to Victorian Environmental Water Holder (VEWH). The VEWH is considered as a legal entity or a legal person with all rights related to the usage of water every year keeping in mind the availability of water. The VEWH comprises of three commissioners and a small staff, composed of state public service employees. The VEWH though was  initially created as a statutory corporation; it is not regulated by Australia’s Corporation Act 2001. However it is considered as a public entity under Victoria’s Public Administration Act 2004 and must therefore comply with Victoria’s Financial Management Act 1994.[5]
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Case Study 3:-Ganges and Yamuna rivers, Uttarakhand, India

Only one week after the New Zealand’s judgement declaring their third largest river Whanganui as a legal person, the Uttarakhand High court declared the holy river of Ganga and Yamuna as legal persons. River Ganga is one of the most polluted rivers in the world which is polluted by all the raw sewage and industrial pollution that is being let into the river without being treated.  The court held that these rivers personhood could be divided into three types namely, legal persons, living persons and moral persons and thus granted them with certain human rights.  The court recommended bringing in a guardianship model where the rivers will be considered as minors thus ensuring that though they won’t be able to act for themselves they will definitely have a legal status which can be enforced by a guardian on behalf of these rivers. The court identified that the positions of parents for these rivers will be held by specific state government officials to act as the face of these rivers to protect and conserve them from pollution and other problems.[6]

However this Uttarakhand judgement was overturned by the Supreme Court on July 7, 2017. The decision stated that the recommendations of the Uttarakhand High Court were not clear and stated that the legal status of rivers was unsustainable at law. [7]

Challenges in granting rivers legal rights:-

The benefit of providing a legal status to rivers is that its legal guardian can stand up for the rights of these rivers whenever they are violated. Though idea of providing and recognising rivers as legal persons is innovative it brings up certain challenges which needs to looked into before granting legal rights to rivers.

Enforcement

In certain places providing legal rights to rivers means appointment of a legal guardian who will hold rights on behalf the rivers. Once this right is given to rivers both the holder of the right and the duty holders must realise their responsibilities in maintaining the river and the guardian have to be clear which rights to enforce and how to keep check on a whole river which runs for thousands of kilometres. Once a ruling has conferred certain rights to nature it must be respected and should not be violated by others. However enforcement of this ruling is very though since once if there is a violation of these rights there is definitely lack of precedents that can be looked into for guidance and apt mechanism once the rights are conferred to rivers.[8]

Jurisdiction limitation is also a problem, since some the rivers are not restricted to one country and in such cases until unless each and every country respects the personhood of the river enforcement of its rights without international convention will be a very though challenge.[9]

Unintended consequences:-
One major challenge is that once rights are conferred to rivers than it could become a precedent for rights to be awarded to other natural resources in our eco system. And in case if we start giving rights to each and every natural resource then in such cases it restricts the concept of development and might also hinder the economy of a country. One more major concern is that it might start an unhealthy completion between humans and natural resources which could not only disturb the existing relationship between humans and natural resources but also undermine the efforts of humans to protect our environment.[10]
Conclusion:-
The concept of providing personhood to rivers is very innovative and is an effective tool to protect the water resources of a country. Though the concept of providing personhood to rivers is not new, successful implementation is still rare. The effect of granting legal rights to rivers is completely dependent on how we structure our framework in such a way that the implementation is possible. However considering the need for protection of our environment especially our rivers, government and different institutions should try to provide and implement rights to rivers.


[1] Salmond, Jurisprudence, 9th edition,pg331


[2]Gagandeep Kundu, CAN RIVERS BE LEGAL ENTITIES? -A CRITICAL ANALYSIS, The World Journal on Juristic Polity,  pg 1, 2017

[3] Madeleine Lovelle, Future directions International, Entering Unchartered Waters: Awarding Legal Rights to rivers, http://www.futuredirections.org.au/publication/entering-unchartered-waters-awarding-legal-rights-to-rivers/ (last accessed 1-03-2020)


[4]New Zealand Parliament, Innovative bill protects Whanganui River with legal personhood,https:/
/www.parliament.nz/en/get-involved/features/innovative-bill-protects-whanganui-river-with-legal-personhood/, last accessed 24th feb 2019.

[5] O’Donnell, E. L., and J. Talbot-Jones, Creating legal rights for rivers: lessons from Australia, New Zealand, and India, Ecology and society, vol23 no.1, 218

[6] Gagandeep Kundu, CAN RIVERS BE LEGAL ENTITIES? -A CRITICAL ANALYSIS, The World Journal on Juristic Polity,  pg 1, 2017

[7] Lalit Miglani V.Respondent: State of Uttarakhand and Ors, MANU/UC/0067/2017.

   
[8]  Madeleine Lovelle, Future directions International, Entering Unchartered Waters: Awarding Legal Rights to rivers, http://www.futuredirections.org.au/publication/entering-unchartered-waters-awarding-legal-rights-to-rivers/ (last accessed 24-02-2019)

[9] O’Donnell, E. L., and J. Talbot-Jones, Creating legal rights for rivers: lessons from Australia, New Zealand, and India, Ecology and society, vol23 no.1, 218


[10] Lidia Cano Pecharroman, Rights of Nature: Rivers That Can Stand in Court, MDPI, Columbia UNIVERSITY, New york, 14th feb 2018.

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