1. INTRODUCTION
Since 2008, rights of Nature have progressed rapidly from an engaging but largely theoretical legal concept into actual legal outcomes. In 2008 and 2010, respectively, Ecuador and Bolivia recognized all of Nature as having legal rights and, in 2011, the first legal case to test these rights in Ecuador confirmed that the rights of the Río Vilcabamba (Vilcabamba River) had been infringed by the construction of a new road.Footnote 1 Over the same period, the non-government organization (NGO) Community Environmental Legal Defense Fund (CELDF) has been assisting local communities throughout the United States (US) to develop local ordinances to recognize the rights of Nature.
These trailblazing examples initially had only limited on-the-ground outcomes for environmental protection. In Ecuador, enforcement of the original ruling in favour of the rights of the river was minimal, in part because of the costs of returning to court to seek an enforcement ruling.Footnote 2 In the US, the new local laws were deemed incompatible with state and federal laws responsible for approving development applications, and have been consistently struck down by the courts.Footnote 3
In March 2017, the situation changed rather dramatically as Aotearoa New Zealand, followed by India and Colombia, recognized rivers as legal persons with a range of legal rights.Footnote 4 By focusing on specific natural entities (typically, and significantly, rivers and their catchments), these new instances of rights of Nature were also accompanied by new institutional arrangements, such as the appointment of guardians to act on behalf of the rivers (including, in some cases, additional funding for these new bodies).Footnote 5 These examples have stimulated renewed global interest in the implementation of rights of NatureFootnote 6 and, in a number of cases, in the creation of rights for specific natural entities rather than generic rights for Nature as a whole.Footnote 7 This shift away from Nature as a single entity, and as separate from human culture, constitutes an important reframing, which helps to move away from the western construct of nature and creates space for a more pluralist legal paradigm that re-centres Indigenous worldviews.Footnote 8 As an example of the way in which this shift connects with Indigenous cosmologies, we draw on the work of Stephen Muecke, who writes that ‘many, perhaps most, [I]ndigenous societies did not, and do not, operate with a nature-culture opposition. There is typically no word for nature as a whole’.Footnote 9
Rights of Nature are increasingly migrating into mainstream environmental law, especially over the past three years. Furthermore, each new natural entity to receive legal personhood attracts newspaper headlines around the globe, as well as increasing collective awareness, recognition, and, ultimately, acceptance of rights of Nature by the global community. Yet, scholarly publications and news articles often bury the lede: the most transformative cases of rights of Nature have been consistently influenced, and often actually led, by Indigenous peoples. Although Indigeneity remains a contested concept, in this article we draw on Kathleen Birrell's articulation of Indigenous peoples as:
a multifarious yet globally cohesive marker of unity, defined in accordance with a cultural distinctiveness resistant to colonial imposition, spiritual and ancestral connections to land and waters, marginalisation and dispossession, and political agitation against neocolonial expansion.Footnote 10
Although the lack of recognized sovereign power on the part of many Indigenous communities often means that they may not be responsible for the formal enactment of these new rights, we argue that rights of Nature either simply would not have happened, or would have been much less effective in delivering tangible environmental outcomes, without the leadership of certain Indigenous peoples. In making this argument, we first explore in Section 2 the relationship between rights of Nature and the theory of earth jurisprudence, as well as the intersection of rights of Nature claims with Indigenous law. We highlight the risks that rights of Nature advocates may obscure the role of some Indigenous people in driving legal reform, as well as romanticize Indigenous interests in and responsibility for environmental management.
In Section 3 we examine specifically the creation and implementation of rights of Nature by identifying how Indigenous peoples in multiple countries have actively co-opted the concept of rights of Nature not only to further environmental protection, but also to progress a separate set of political rights and interests. We then make the case for the emergence of an ecological jurisprudence generally, and a rights of Nature doctrine specifically, which is more explicitly grounded in profound legal pluralism, based on an inter-normative dialogue between settler states and the law and values of Indigenous peoples. If ecological jurisprudence aims to be both effective and pluralist, it should seek recognition and validity within Indigenous law, as well as expanding dominant settler legal frameworks (the laws and legal systems of the settler colonial state) to include Indigenous law.
In Section 4 we examine five recent examples that focused on legal personhood, paying particular attention to how, and to what extent, these interpretations of rights of Nature have been influenced by Indigenous participation in their creation and implementation. We then map, in Section 5, this wider experience onto the specific example of the Mardoowarra/Fitzroy River in Western Australia, to show that a more meaningful form of pluralism can be achieved through a pluralist legal dialogue articulated around a shared and negotiated understanding of rights of Nature.Footnote 11
Throughout the article, in referring to the rights of Nature movement, we have adopted the capitalized version of the term ‘Nature’ to indicate an ontological entity upon which subjectivity has been vested, in accordance with the reasoning of the Ecuadorian Constitution of 2008, the Universal Declaration of the Rights of Mother Earth,Footnote 12 the United Nations (UN) ‘Harmony with Nature’ programme,Footnote 13 and the Global Alliance for the Rights of Nature. In all of these emblematic instances the capitalization of the term ‘Nature’ is used explicitly to convey a meaning of subjectivity separate and distinct from the idea of nature as a mere collection of objects, resources, or even ecosystem services. Similarly, throughout the article we adopt the capitalized version of the term ‘Indigenous’, in accordance with the UN Declaration on the Rights of Indigenous Peoples.Footnote 14
2. RIGHTS OF NATURE, WILD LAW AND ECOLOGICAL JURISPRUDENCE
2.1. Rights of Nature Rising
The universe is a communion of subjects, not a collection of objects.Footnote 15
Earth jurisprudence is a relatively recent legal movement, at least within contemporary western legal tradition.Footnote 16 The paradigm is also referred to as ‘wild law’ (from the homonymous text by Cormac Cullinan)Footnote 17 or, more recently, ‘earth law(s)’; it places humans within an interconnected web of other species and landscapes, decentring human interests,Footnote 18 and, consequently, seeking to adapt law to planetary boundaries and ecosystem functions, including multi-species justice.Footnote 19
There are multiple ontological origins for this emerging legal paradigm. Following the transcendental tradition initiated by John Muir and Henry David Thoreau,Footnote 20 the writings first of Aldo Leopold and then of Thomas Berry focused on philosophical shifts required to alter the understanding of the place of humanity within the world. These writings sought explicitly to weaken traditional narratives of human dominance.Footnote 21 Other authors, such as Christopher Stone, strove to alter the law more directly, by conceiving of Nature as a legal subject capable of bearing rights, and thus directly able to challenge human actions that infringed those rights.Footnote 22 Cormac Cullinan captured this emerging paradigm by describing it as:
a philosophy of law and human governance … based on the idea that humans are only one part of a wider community of beings and that the welfare of each member of that community is dependent on the welfare of the Earth as a whole. From this perspective, human societies will only be viable and flourish if they regulate themselves as part of this wider Earth community and do so in a way that is consistent with the fundamental laws or principles that govern how the Universe functions[.]Footnote 23
The pursuit of rights of Nature is just one element of this emerging legal paradigm, as it is arguably the most straightforward way in which to use the law to begin to give immediate effect to the broader concepts of an earth jurisprudence. However, straightforward is not the same as easy or quick: Stone was decades ahead of his time, and it took 30 years before his ideas were taken up seriously in the western legal world.Footnote 24 In 2002, the work of Cormac Cullinan more firmly established rights of Nature as a much-needed legal reform to better acknowledge human dependence on the health of the Earth as a whole.Footnote 25 Since then, there has been movement on many fronts to incorporate rights of Nature from municipal ordinances to legislation and constitutional reform.Footnote 26 As these legal changes have spread and accelerated, there has been a growing acceptance, including within case law, of Stone's once ‘unthinkable’ proposal: to acknowledge natural beings and features as living entities with legal rights.Footnote 27
The experiences of multiple jurisdictions in recognizing and implementing rights of Nature have also helped to mature and diversify the concept. Rights of Nature can now be considered in two rather distinct forms. Firstly, there has been the creation (or recognition) of broad ‘existence rights’ for Nature, such as the right for species to exist, or the right for ecosystems to function.Footnote 28 While these ‘rights’ most directly reflect the broader project of an earth jurisprudence, their implementation has been challenging, as it is not always clear when (or if) they give rise to a cause of action in law, or what kind of remedies they afford. In the case of the Río Vilcabamba in Ecuador, the rights of the river ultimately were balanced against the rights of humans to economic development, and the remedy ordered by the court was for the human road developers to fund restoration of the river, but not to halt the construction of the road.Footnote 29
Secondly, rights have crystallized around recognition of natural entities as legal persons.Footnote 30 Legal personality is articulated as the capacity to bear rights and duties in law.Footnote 31 Legal personhood typically confers three specific rights:
• the right to enter into and enforce contracts;
• the right to own and deal with property; and
• the right to sue and be sued in court (known as legal standing).Footnote 32
Although it can be challenging to relate legal personality to the western concept of nature as a whole, it can be more easily applied to specific and clearly defined natural entities, such as rivers.Footnote 33 Furthermore, while the conferral of legal personhood is indeed a profound statement about who matters to the law, it does not necessarily confer any moral worth.Footnote 34
The two forms of legal rights of Nature – ‘existence rights’ and the conferral of legal personality – are still inherently anthropocentric: Nature has no need of these particular rights unless it is participating within human legal systems. Legal personhood constitutes a powerful transformation of Nature from object to subject in the eyes of the law, but in this process the very personification of Nature can also help to frame it as a competitor with humans.Footnote 35 Equally, Nature's rights can be seen to come at the expense of the rights of humans. Far from enabling a new, more ‘fraternal’ relationship between humans and Nature,Footnote 36 legal personhood can end up entrenching pre-existing narratives of human dominance.Footnote 37
At a deeper ontological level, however, a corollary to the growing acceptance of the need for rights of Nature has been an increasing acceptance of the fact that humans are fundamentally dependent on the overall health and wellbeing of the planet. This has led to a deeper understanding of interdependence between humans and Nature, which has previously been ignored within most of the recent western philosophical tradition.Footnote 38 Such a conceptual shift can be seen in the recent ‘greening’ of international human rights law, particularly in the increasing recognition of the human right to a healthy environmentFootnote 39 and, most recently, the recognition of the rights of the environment itself.Footnote 40
The emergence of rights of Nature and legal personhood for Nature within the western legal tradition over the past few decades can thus also be seen as part of a deeper transformative trend within western jurisprudence towards what some authors have termed an ‘ecological jurisprudence’, as distinct from earth jurisprudence, and which more explicitly acknowledges Indigenous laws.Footnote 41 This important relationship is discussed in more detail in the following section. Examples of this movement, which aims to transcend anthropocentric boundaries, include the emergence of ecological constitutionalism and advocacy for the inclusion of a crime of ecocide.Footnote 42 While a deeper analysis of an ecological jurisprudence is beyond the scope of this article, this trend offers an intriguing ontological window into the normative worlds of many non-western legal traditions, particularly those that Edward Goldsmith defines as ‘chthonic’, as living in close harmony with the ecosystems within which they exist.Footnote 43
2.2. Ecological Jurisprudence and Indigenous Laws
This story is not simply about introducing an alternative view of the environment into a legal framework. The case [of Ecuador] represents an instance in which indigenous politics influenced nonindigenous systems of state authority.Footnote 44
Over the past decade, many rights of Nature initiatives have explicitly introduced Indigenous and non-western principles into both international law and the broader discourse of ecological jurisprudence. Within the context of international law, the introduction of rights of Nature has often been facilitated by the right of Indigenous peoples to self-determination, which incorporates a right to sovereignty over natural resources.Footnote 45 In turn, this has enabled some Indigenous peoples to influence the development of environmental law to encompass First Law (also known as Traditional Law, Customary Law, or Aboriginal Law). Deborah Bird Rose's construction of totemism as an ‘ecological management system’ for distributing rights and responsibilities links humans with non-humans in specific ways.Footnote 46 This is a profound ontological shift for western environmental law, enhancing its capacity to recognize and respect the relationship between Indigenous (and, eventually, non-Indigenous) people and Nature.Footnote 47
However, environmental legal scholars and advocates frequently frame the shifts towards ecological jurisprudence and the accompanying changes to environmental law as specific adaptations to the current crisis. David Takacs, for example, asserts that ‘[w]e have no choice but to manage the planet intensively in the Anthropocene, which means careful planning for the needs of interrelated human and nonhuman communities’.Footnote 48 The underlying assumption that this intensive management represents a radically new way of engaging with the environment obscures the contributions made through the specific laws of Indigenous people, who have managed ‘Country’Footnote 49 in this way for millennia.Footnote 50 In so doing, environmental movements continue to exclude the contributions of non-western peoples, particularly Indigenous peoples.Footnote 51 As Elizabeth Macpherson has argued, ‘the rights of nature movement has grown out of, and is still driven principally by, a non-Indigenous perspective as a “western legal construct”’.Footnote 52
Furthermore, a number of authors alert us to the risk that the discourse of ‘climate crisis’, and specifically the declaration of a ‘climate emergency’, open the door for a state of environmental exception, with the ensuing suspension of democratic protocols and hostility towards the active and participatory role of all humans in finding a collective way out of this crisis.Footnote 53 This risk is particularly acute when it comes to Indigenous peoples, and is already apparent when proponents of rights of Nature seek to manage humans out of Nature in order to protect its wilderness values,Footnote 54 thus running the risk of environmental colonialism.Footnote 55 Environmental colonialism is here characterized as the imposition of a culturally specific construction of ‘nature’, as well as a set of related normative and ethical assumptions, by those in a position of dominance upon those who are in a subordinate power relationship. In Foucauldian terms, Michael Cepek defines such an operation of disciplinary power as ‘environmentality’.Footnote 56
Finally, the uneven distribution of sovereign power between internationally recognized nation states and Indigenous peoples whose ancestral territories are located within the boundaries of those colonial nation states exerts subtle, yet constant, pressure towards a reductive appraisal of the ontological plurality of non-colonial traditional worldviews.Footnote 57 The result is a plethora of often unquestioned ontological and epistemological assumptions about the very concept of ‘nature’ on the part of all interlocutors (sometimes including Indigenous peoples who lack the necessary sovereign power to counter such assumptions), with the ontologically violent result of reducing Indigenous ideas about nature and human interactions with the non-human world to a globally familiar, yet extremely reductive, dominant paradigm.Footnote 58 As Nopera Dennis-McCarthy argues, ‘[t]here is an inherent tension between western and Indigenous legal traditions. This tension arises from the divergent worldviews propounded by either normative system, which are often difficult to reconcile’.Footnote 59
It is also important to note that the concept of Indigeneity is complex and not necessarily the appropriate lens through which to identify peoples and law and custom in all cases. For example, in former colonial countries such as India and Bangladesh, Indigeneity may be a less relevant criterion for ecological jurisprudence than the interests of local people who continue to embed a responsibility requirement into land and water management. The critical issue is one of interdependence, and an ethic of land management centred on responsibility and stewardship or guardianship.Footnote 60
Therefore, we argue that the emergence of an ecological jurisprudence currently faces four challenges: firstly, acknowledging the role of Indigenous peoples as leaders in the movement to create rights of Nature (while also acknowledging that not all Indigenous peoples support or accept rights of Nature); secondly, acknowledging the role of Indigenous laws in shaping a truly universal – and thus inherently intercultural – ecological jurisprudence, and explicitly reflecting this role within rights of Nature; thirdly, moving beyond traditional concepts of weak legal pluralismFootnote 61 by seeking recognition of rights of Nature reforms in Indigenous law by Indigenous peoples as a measure of validity for ecological jurisprudence; and, fourthly, relatedly and potentially the most challenging, reconceptualizing law's nature in order to overturn a ‘key feature of western thought since the Enlightenment, the disjunction between nature and culture’.Footnote 62 In Section 3 we examine how rights of Nature laws have been addressing these four challenges to date.
3. RIGHTS OF NATURE AND INDIGENOUS PEOPLES
Notwithstanding the political difficulties discussed in the previous section, Indigenous worldviews have enabled, shaped and defined the recent transnational emergence of an ecological jurisprudence in recent years. In this section we focus on legal developments during the period from 2008 to 2019, dating from when Ecuador amended its Constitution to when Bangladesh recognized all rivers as living entities. We look at how some Indigenous peoples have chosen to use ‘rights of Nature’ to achieve discrete political goals. In so doing, we acknowledge the long history of Indigenous laws that recognize Nature as a living being, towards which humanity has obligations and responsibilities.Footnote 63 These examples highlight the ways in which some Indigenous peoples have made strategic use of settler legal frameworks and concepts of the legal person to establish independent rights and interests, and to attempt to fundamentally reframe natural resource management law in settler contexts to include an Indigenous world view. Our discussion also acknowledges that attempts to map Indigenous legal and philosophical concepts into settler legal frameworks are imperfect, and that the concept of rights of Nature is far from universally supported by Indigenous scholars and communities.Footnote 64
The amendment of the Montecristi Constitution of Ecuador in 2008 marked the first example of rights of Nature being enshrined within a national legal document. Indigenous presence was very much at the centre of that process. The amendment of the Constitution of Ecuador, with its primarily theoretical articulation of an ecological jurisprudence within contemporary legal institutions, arguably represents the point of origin for a cascade of constitutional, legislative, and judicial initiatives which has unfolded in a number of jurisdictions over the past 11 years.
In Ecuador, the Movimiento Unidad Plurinacional Pachakutik (MUPP) [Pachakutik Movement for Plurinational Unity], created in 1995, aimed to ‘form a new political movement in which Indigenous peoples and other sectors of Ecuador's popular movements organized together as equals in a joint project to achieve common goals of a new and better world’.Footnote 65 After the 2006 election, the MUPP, together with a great number of Indigenous groups and activists, became central to the drafting of the momentous Chapter Seven of the Constitution.Footnote 66 Its four articles (Articles 71 to 74) are dedicated entirely to the rights of Nature, and begin by stating that ‘Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes’.Footnote 67 While the language adopted by the Constitution is still reflective of a colonial and somewhat materialistic worldview in relation to the articulation of ‘Nature’, the influence of Indigenous voices not only was palpable throughout the drafting process and its momentous outcome, but also can be evinced in the equation of Nature with the more complex Andean concept of Pacha Mama.
The concept of Pacha Mama has been further articulated in Bolivia, in amendments to its Constitution as well as in two legislative documents.Footnote 68 Of particular significance in this case is the focus on the Andean concept of sumaq kawsay [living well]. This concept underscores the ‘socio-communitarian productive education model’ that enshrines, within legal institutions recognizable as colonial in their apparent structure, a worldview that is profoundly steeped in pre-colonial Andean traditions.Footnote 69 These Andean worldviews were equally central to the drafting of the Universal Declaration on the Rights of Mother Earth, which was the outcome of the World Peoples’ Conference on Climate Change and the Rights of Nature convened by Bolivian President Evo Morales, an Aymara man himself, in Cochabamba (Bolivia) in 2010.Footnote 70 In the case of Bolivia, the departure from colonial assumptions – if not necessarily from colonially derived political and legal institutions – is more apparent than in the case of the Ecuadorian Constitution, although implementation of these new laws has remained challenging.
In Aotearoa New Zealand, the legal personification of both Te Urewera (a national park) and the Whanganui River were achieved through an ongoing negotiating process between Māori iwi and the colonial government.Footnote 71 In 2017, in legislation arising from a negotiated agreement to settle a dispute under the Treaty of Waitangi, the Whanganui River was recognized as a person, including all of its physical and metaphysical elements, in explicit acknowledgement of the Māori understanding of the river as a living being.Footnote 72 Linda Te Aho has argued that the ‘personification of the natural world is a fundamental feature of Māori tradition’.Footnote 73 In particular, Māori recognize rivers as having their own ‘mauri (life force) and spiritual integrity’,Footnote 74 and ‘all tribes have these geographical identity markers linked to water’.Footnote 75 In insisting that the settler law incorporate this concept, Māori negotiators not only forced settler laws to acknowledge the river as a legal person, but also ensured that their own values and language would guide the future management of the river,Footnote 76 and future reform of water law.Footnote 77
The Aotearoa example of Te Urewera, as well as the ongoing negotiations on the Whanganui, inspired the recognition of the Río Atrato in Colombia as a legal person,Footnote 78 whose representation is vested in 15 ‘river guardians’ deemed to voice the concerns of Indigenous and Afrodescendent communities. In addition, the experiences of Aotearoa New Zealand inspired a series of state High Court decisions in India, beginning with the decisions of the High Court of Uttarakhand in relation to the Ganga and Yamuna Rivers,Footnote 79 in which the Court explicitly recognized the rivers as legal/living persons based on Hindu beliefs, for which the rivers are the embodiment of the gods.Footnote 80 In all cases there has been a push to embed local and Indigenous values and worldviews into settler legal frameworks by existing legal institutions. This approach seeks to recognize (and thereby confer validity upon) some parts of Indigenous laws, and to transform ‘settler law and legal theory, so that they include and draw on Indigenous values and traditions’.Footnote 81 While such attempts are representative of the increased auctoritas granted to Indigenous legal traditions, the partial incorporation by public authorities of discrete elements of Indigenous law in Aotearoa New Zealand, Colombia, and to a lesser extent India, runs the significant risk of co-opting, appropriating and ultimately reductively simplifying far more complex Indigenous legal structures.
The initial inclusion of Indigenous worldviews within colonial structures in South America probably occurred as a result of the unique socio-political history of the Andes. While both South America and Aotearoa New Zealand present a set of clearly strategic choices on the part of Indigenous actors in general, in the case of the Whanganui River such a strategic approach is more explicitly articulated than in the case of the Río Atrato (where the impetus for the case rested more strongly on the human right to a healthy environment). More recent initiatives in the US further suggest that Indigenous peoples are strategically using ‘rights of Nature’ laws to enable specific legal actions in respect of land held by Indigenous people. In 2017, the Ponca Nation of Oklahoma agreed to create a statute to enact rights of Nature within their Tribal Lands, enabling a plaintiff to approach a tribal, rather than a state or federal, court to seek redress for alleged violations of rights of Nature.Footnote 82 In 2018, the White Earth band of Ojibwe enacted legislation to recognize formally the rights of manoomin [wild rice],Footnote 83 and the General Council of the Ho-Chunk Tribe voted to amend the Tribal Constitution to enshrine rights of Nature.Footnote 84 Most recently, in May 2019, the Yurok Council voted for a resolution to recognize the Klamath River as a legal person.Footnote 85
The recent emergence of rights of Nature initiatives in the US is significant, as it represents a profound shift within the public discourse on rights of Nature in the US. While the numerous local ordinances on rights of Nature have been struck down consistently by state and federal courts,Footnote 86 it now appears that the unique structure of tribal sovereignty within the US empowers tribal authorities to be simultaneously the custodians and current torchbearers of an ecological jurisprudence, and the promoters of a more pluralistic and ontologically diverse interpretation of ecological jurisprudence.
It appears, thus, that the emergence of an ecological jurisprudence that is beginning to address the four challenges we identified in Section 2 (notwithstanding the ever-present risks of cultural and normative appropriations and exclusion) has indeed created a pluralist space, one that has been shaped, deeply transformed, and profoundly led by pre-colonial worldviews capable of articulating the ecocultural transformation desired by earth jurisprudence advocates within the current global discourse. Within such space, some Indigenous peoples have demonstrated a nuanced strategic approach to using ‘rights of Nature’ as a way to support a collective approach to environmentally sustainable and culturally appropriate development by raising the profile of both natural entities and Indigenous peoples.
4. RIGHTS FOR RIVERS AND LAKES
We now turn to consider five recent cases in which rivers and lakes have received legal rights across multiple jurisdictions. This section uses these five cases to examine whether the new rights of Nature for rivers and lakes are delivering ecological jurisprudence (which addresses the four challenges we identified), and the response that these new rights have received so far. The attribution of legal personhood to rivers and lakes has occurred in the past three years, so we acknowledge that it is still too early for a comprehensive analysis of cause and effect. However, by exploring a range of examples across multiple jurisdictions, colonial histories and legal systems, it is possible to identify some emerging trends (Table 1).Footnote 87
Table 1 Legal Rights for Rivers and Lakes: Five Recent Examples
Notes
a Centro de Estudios para la Justicia Social ‘Tierra Digna’ & Ors v. President of the Republic & Ors, n. 78 above (translations per Macpherson & Clavijo Ospina, n. 4 above).
b Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, n. 26 above; see also E. O'Donnell & E. Macpherson, ‘Voice, Power and Legitimacy: The Role of the Legal Person in River Management in New Zealand, Chile and Australia’ (2019) 23(1) Australasian Journal of Water Resources, pp. 35–44.
c Mohd. Salim v. State of Uttarakhand & Ors, n. 79 above; see also O'Donnell, n. 7 above.
d Human Rights and Peace for Bangladesh v. Government of Bangladesh & Ors, n. 97 below (trans. from Bangla by M.S. Islam).
e Toledo Municipal Code, n. 98 below.
f Toledo Municipal Code, ibid., Ch. XVII, § 254.
g Centro de Estudios para la Justicia Social ‘Tierra Digna’ & Ors v. President of the Republic & Ors, n. 78 above (per Macpherson & Clavijo Ospina, n. 4 above, p. 291.
h J. Talbot-Jones, The Institutional Economics of Granting a River Legal Standing (Dissertation, Crawford School of Public Policy, Australian National University, 2017), p. 178.
i Mohd. Salim v. State of Uttarakhand & Ors, n. 79 above, para. 10.
j Human Rights and Peace for Bangladesh v. Government of Bangladesh & Ors, n. 97 below.
k Toledo Municipal Code, n. 98 below, Ch. XVII, § 253.
l Macpherson & Clavijo Ospina, n. 4 above, p. 290.
m Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, n. 26 above, ss. 18–20.
n Mohd. Salim v. State of Uttarakhand & Ors, n. 79 below, para. 19.
o Toledo Municipal Code, n. 98 below, Ch. XVII, § 256(b).
p Macpherson & Clavijo Ospina, n. 4 above, p. 290.
q Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, n. 26 above, s. 13.
The five recent examples of the creation and implementation of rights of Nature have been selected to include all jurisdictions which have recognized specific natural entities as having legal rights (and, in most cases, personhood), and to reflect a wide range of roles for Indigenous peoples in the creation/recognition of these rights (including the complexity of ‘Indigeneity’ itself).Footnote 88
Since 2017, water management has been the locus for the creation and implementation of leading international examples of rights of Nature.Footnote 89 Water management globally has shifted dramatically since the 1992 Dublin Statement,Footnote 90 which formally embedded a cost-recovery and water-pricing principle, leading to the marketization of water management.Footnote 91 One of the impacts of water markets has been a ‘double dispossession’ of water rights from Indigenous peoples;Footnote 92 this correspondingly has seen the embrace of market mechanisms to recover water for Indigenous peoples,Footnote 93 as well as Indigenous peoples seeking to use rights of Nature to establish and entrench their claim to water rights.Footnote 94 The proliferation of examples in which rivers and lakes have been recognized as legal persons or living entities with legal rights led Elizabeth Macpherson and Felipe Clavijo Ospina to argue that there is an ‘emerging transnational idea that a river can be a person’.Footnote 95 The five examples in Table 1 have been selected in order to engage with this emerging idea, across multiple legal contexts in both the global north and south.
The specific legal status created for the water bodies (rivers and a lake) include a legal person without property or water rights (as in Colombia and Aotearoa New Zealand); a hybrid legal/living person (India and Bangladesh); and an entity with existence and ecosystem rights only, without explicit personhood (the US). This variety correlates with a differentiation in motivation behind the creation of these rights of Nature (see notes to Table 1 for details). As noted above, the examples in Aotearoa New Zealand and Colombia acknowledged the human rights of Indigenous peoples (and other local peoples in Colombia), as well as the belief systems of these peoples, as central to the decision to define the rivers as legal people (Table 1).Footnote 96 In both India and Bangladesh, the clear intent is environmental protection, and the recognition of legal personhood is a last resort, after earlier attempts failed to protect the health of the rivers, but with an emphasis on the role of the state-appointed guardians to deliver this protection (Table 1).Footnote 97 Similarly, in the US, environmental protection was the major driver for creating legal rights for Lake Erie, with the intent to rely on these rights to support future legal action by third parties on water pollution (Table 1).Footnote 98
The five cases highlight a range of legal and policy responses to the problem of creating a guardian to speak for the river or lake. In Colombia and Aotearoa New Zealand, the role of the guardians has been embedded within a new co-management framework, and the guardians themselves have been appointed in an open and responsive manner, demonstrating dialogue between Indigenous (and other local) communities and the national government (although, as Dennis-McCarthy argues, Te Awa Tupua is only a partial progression to reconciliation and sovereignty).Footnote 99 By comparison, the appointment of guardians in India, Bangladesh and the US has been less successful: court-appointed guardians in India did not accept their responsibilities, and appealed against the decision,Footnote 100 whereas the court-appointed guardian in Bangladesh requires further legal reform before it has the legal powers required to effectively undertake its duties on behalf of the rivers.Footnote 101 Lastly, in the US, all citizens and the city of Toledo are empowered to enforce the rights of Lake Erie – but no one is specifically responsible for doing so.Footnote 102
Examining these five cases together demonstrates the varied response to the four key challenges of ecological jurisprudence that rights of Nature laws must meet. As Table 1 illustrates, we can observe a spectrum of Indigenous peoples’ involvement in the recognition of rivers and lakes as legal people. At one end are the Indigenous-led legal reforms of Colombia and Aotearoa New Zealand, where Indigenous worldviews have been explicitly embedded in the law, and where the legal and institutional frameworks have sought some forms of validity in Indigenous laws, as well as including ongoing co-management arrangements. In India and Bangladesh, environmental advocacy and local values have been embraced by the courts as a reason for strengthening legal rights and protection of rivers, particularly in the acknowledgement of the sacred status of the rivers. However, in India, particularly, this was grounded in Hindu religious beliefs, and elevated the relationship of Hindu practitioners with the river above those of non-Hindus, thus excluding all other religious ontologies of the river. Lake Erie in the US appeared to be centred on environmental advocacy only, with no evidence of engagement with Indigenous people.Footnote 103 Recognizing the rights of a river or lake will not necessarily produce an intercultural ecological jurisprudence that centres Indigenous laws and reconnects humans and Nature.
Granting legal personhood and legal rights to rivers and lakes has captured the public imagination. When rivers become ‘people’, this can transform settler-colonial relationships with rivers in ways that can help to centre the interests of the river in water management (such as the Whanganui in Aotearoa New Zealand), but can also frame the river as a potential adversary. One of the most common responses that we have observed to a river gaining rights is to question whether this enables human beings affected by the actions of the river (such as flooding) to sue the river and its guardians for compensation. In Uttarakhand (India), the court-appointed guardians in the state government cited the fear of being sued when the Ganga and Yamuna Rivers flood as one reason for immediately appealing against the decision to appoint them.Footnote 104 Thus, the conferral of legal rights of Nature has the capacity for both great improvement in river protection, as well as the power to undermine the recognition of the interdependence of humans and rivers.Footnote 105 Although it is still too soon for definitive evidence, Table 1 indicates that when Indigenous leadership drives reform in settler legal frameworks to embed Indigenous values (creating an ecological jurisprudence described in Sections 2 and 3), it works to create a less competitive approach to recognizing Nature's rights and a more sustainable legal personhood for rivers (Table 1). This sustainability is reinforced in those cases where Indigenous leadership has led to the creation of institutional arrangements that enable guardians to empower and protect rivers.
We now turn to recent developments in Australia. The Wurundjeri people of Naarm (Melbourne) have influenced the development of a new legal framework to govern the Birrarung/Yarra River: the Yarra River Protection (Wilip-gin Birrarung Murron) Act 2017 (Victoria).Footnote 106 Although falling short of granting legal rights to the Birrarung/Yarra River, this legislation has centred the worldview and values of Traditional Owners, created a new framework for sustainable development, and created a voice for the river.Footnote 107 In the north-west of Australia, the Mardoowarra/Martuwarra/Fitzroy RiverFootnote 108 is an example in which Indigenous people are strategically adopting a range of legal and policy tools to showcase their leadership in environmental management, as well as raising the profile of their worldview on the obligations that humanity owes to Country. Significantly, in this case, the concept of personhood is further tested by moving beyond the existing boundaries of artificial – and even environmental – personhood, and rather proposing the category of ‘ancestral’ personhood to refer to the spiritual, ontological, and relational connotations of what is otherwise still cast as a ‘natural’ feature. Although this example is still in the formative stages, the active role of multiple Traditional Owners coming together to develop new governance arrangements, and engage with the opportunities of rights of Nature, makes this a compelling case for detailed analysis.Footnote 109
5. MARDOOWARRA/MARTUWARRA/FITZROY RIVER
Everyone who has an association with the river, whether Indigenous or not, talks about how important it is. It is the River of Life.Footnote 110
The Mardoowarra is a free-flowing river over 733 kilometres long, with a catchment of almost 100,000 square kilometres.Footnote 111 The Kimberley region in north-west Western Australia is recognized for its outstanding natural and cultural heritage values, but debate is now under way about the future of the region, what sustainable development will involve, and how the rights and interests of Indigenous people will be protected.Footnote 112 For Indigenous, First Nations and Australia's original peoples of the Mardoowarra, the river was formed at the beginning of time by the Nyikina ancestor, Woonyoomboo. Woonyoomboo is the human face of the Mardoowarra and in partnership with Yoongoorrookoo, the sacred ancestral spiritual living being, together formed the valley tracts.Footnote 113 Woonyoomboo was a mapmaker and scientist who named the places, animals, birds, fish, plants, and living water systems. These names validate a property right inheritance which continues in the contemporary lives of Aboriginal people, according to Senior Nyikina Elder, Annie Milgin.Footnote 114 Michelle Lim, Anne Poelina and Donna Bagnall state:
The First Laws that govern the river include Warloongarriy law and Wunan law (the Law or Regional Governance). Since Bookarrakarra (the beginning of time) these First Laws have ensured the health of the living system of the Mardoowarra and facilitated relationships between Mardoowarra nations and peoples … regarding the river as a living ancestral living being (Rainbow Serpent) from source to sea, with its own ‘life-force’.Footnote 115
Traditional Owners of the Mardoowarra are actively exploring opportunities created by the global movement to extend legal rights to rivers, and the specific opportunities to protect the lifeways and values of Indigenous and First Nations people.Footnote 116 Traditional title for Traditional Owners in Australia is grounded in the Native Title Act 1993 (Commonwealth), which ‘recognizes’ that prior to colonization Traditional Owners had, and still continue to have, their own laws and customs.Footnote 117 With regard to the Mardoowarra, multiple Traditional Owners have native title for the whole of the river.Footnote 118 Where native title is held on trust, a prescribed body corporate (PBC) will be established to hold the title formally on behalf of each of the Traditional Owners, and manage the traditional lands, waters, and natural resources.Footnote 119
In 2016, Traditional Owners expressed a collective vision for the Mardoowarra in the Fitzroy River Declaration and, in 2018, established the Martuwarra Fitzroy River Council (MFRC) as a ‘collective governance model to maintain the spiritual, cultural and environmental health of the catchment’.Footnote 120 The MFRC members, who include the majority of native title holders in the Mardoowarra catchment, assert that each PBC owes a fiduciary duty to the individual Traditional Owners to protect Country,Footnote 121 and to act as guardian for Country.Footnote 122 As a result, the MFRC considers the river to be communal property that is held beneficially for present and future generations of Traditional Owners. Yet, in First Law the river is also recognized as a living being. The place of the Mardoowarra in the heart, lives and family of the Traditional Owners is akin to both an Elder and a beloved jarriny [totem], and the guardianship responsibilities of both the PBCs and the MFRC extend to the care of the river as a living entity. As guardians of the Mardoowarra, the PBCs and the MFRC cannot break First Law, and must therefore protect the river's right to life.
Traditional Owners of the Mardoowarra believe that First Law stories are the ‘statutes’ or ‘the rules’, as the Elders say, for teaching ethics and values as the codes of conduct for maintaining civil society and the balance of all life, human and non-human.Footnote 123 These ancient First Laws promote holistic natural laws for managing the balance of life. First Law is eternal and intrinsically linked to the land and living waters. The laws of the land are ancient and as old as the continent itself,Footnote 124 and continue to be practised in the Kimberley region of Western Australia.Footnote 125 By drawing on rights of Nature, Traditional Owners are seeking ways to centre these teachings within legal frameworks and further strengthen the legal rights recognized in native title.
By embedding First Laws within settler legal frameworks, Traditional Owners are also working to shape the future of sustainable development for all people who live in the river catchment.Footnote 126 Current development proposals in the Mardoowarra have the capacity to cause severe environmental degradation, as well as to continue to deprive the river and the people who depend on it of sustainable livelihoods.Footnote 127 Traditional Owners are of the view that commercial and economic rights are consistent with the guardianship duties in relation to the living river.Footnote 128 Having the right to live in harmony with the Yoongoorrookoo, the sacred ancestral spiritual living being, in a sustainable manner is critical, and there is also a duty of care above all to protect the life and wellbeing of the river and all the species that depend on it.
However, the concept of legal personhood is also challenging on multiple levels. Firstly, Australia has not formally recognized any natural entity as having legal rights of its own, which means that the concept of rights of Nature may not be powerful enough to move the needle in this jurisdiction.Footnote 129 Secondly, there is ambivalence among Traditional Owners about the usefulness of this concept. There are questions about how Indigenous people can assert their rights when Nature itself is recognized as a rights holder.Footnote 130 There is also a question regarding the role of law: from an ontological perspective, the river does not need to be incorporated as an entity; the river is a tangible, real, whole, integrated, complex, spectacular, special, precious living thing.Footnote 131 It already is an entity, and should not have to depend on the specific actions of settler law to achieve this status. Among Traditional Owners there is also unease in referring to Yoongoorrookoo, their sacred spiritual ancestor, creator of the Mardoowarra, as having ‘personhood’, a distinctly western legal concept. In the end, the question of whether the Mardoowarra will eventually be recognized in settler law as an ancestral legal person will be a question of practicality for the MFRC, as it explores all options from legal personhood through to a deed of agreement between the multiple PBCs to reflect and formalize the existing relationship of shared ownership and guardianship. How this is then reflected in state law will determine whether the case of the Mardoowarra becomes an example of Indigenous-led ecological jurisprudence which addresses the four challenges identified in Section 2.
6. THE WAY FORWARD
[R]egulatory models that protect the rights of rivers have been largely driven, not by environmentalists, but by Indigenous and tribal communities, who claim distinct relationships with water based on their cosmovision of guardianship, symbiosis and respect.Footnote 132
In settler states, there is a clear justice imperative to empower Indigenous peoples on the basis of their right to self-determination and respect for their law. Enshrined in the UN Declaration of the Rights of Indigenous Peoples,Footnote 133 the empowerment and increased self-determination of Indigenous peoples should be a goal in its own right.Footnote 134 In addition to this primary goal, however, multiple outcomes can be achieved concurrently by requiring settler legal frameworks to engage more actively with Indigenous laws, including better environmental protection. Firstly, settler states can begin to decolonize environmental law by engaging with Indigenous law. In doing so, they can begin to address one of the most fundamental challenges facing environmental law: the transcendence of a historically situated divide between ‘nature’ and ‘culture’,Footnote 135 and the consequent reconnection of people and nature, which requires a redefinition of both Nature and humanity's relationship with it. Recent work by Muecke, for example, revives the concept of totemism as an ‘expert Indigenous scientific construction pertaining to the crucial importance of the continuity of “nature” and “culture”’.Footnote 136 This way of thinking includes the river as a part of the political collective formerly reserved for (some) humans. As a result, the river's extant legal rights are conceived of as central to a river's needs and interests, rather than adapting the notion of the river to fit the western concept of personhood. Dennis-McCarthy also underscores the importance of this difference between Indigenous and western framings of Nature, when he states that ‘[t]he Indigenous perspective recognizes nature as a living entity, which gives rise to obligations that are centred around nature, rather than humans’.Footnote 137 Of the five examples of rivers as legal persons explored in Section 4, only Aotearoa New Zealand has so far produced something that most resembles a trajectory towards an ecological jurisprudence, and goes furthest in addressing the challenges set out in Section 2 (although it still has far to go, most specifically in relation to the rights to water in the river, which was not included in the treaty dispute settlement).
The colonial process, which in its wake dispossesses not only Indigenous lands but also entire Indigenous ontologies, is thus both laid bare and radically challenged by the emergence of an ecological jurisprudence. While western ontologies underpinning a dominant articulation of rights of Nature and earth jurisprudence have often obscured both Indigenous rights as well as Indigenous ontologies, the leading role of some Indigenous peoples in engendering transformative environmental protection of rights and personhood for Nature is undeniable. Importantly, in obscuring the leadership role played by Indigenous peoples, the deeply transformative potential of rights of Nature is also diminished, as settler-colonial legal frameworks often lack the nuance with which both to raise the profile of Nature in the law, while at the same time strengthening the interdependence of human relationships with, and within, Nature. It is essential, therefore, to acknowledge the ever-present risk of environmental colonialism, which can occur in two distinct ways. This is, firstly, by erasing people, particularly Indigenous peoples, from the concept of ‘nature.’ This has been a consistent problem with regard to settler-colonial environmental laws.Footnote 138 Secondly, and more insidiously, settler-colonial laws may seek to embed Indigenous values within existing colonial legal frameworks, in the attempt to attain some form of weak legal pluralism in which the Indigenous legal ‘other’ is reinscribed and ultimately assimilated within the colonial project. This could occur in the most well-intentioned cases, such as the attempt to acknowledge an Indigenous conception of a river as an ancestral being by incorporating it as a legal person, without also testing the validity of the framework itself within the laws of the relevant Indigenous people.
Harnessing the power of law to address the extreme perils of climate change, biodiversity loss and water insecurity, therefore, requires an ecological jurisprudence that not only enables humanity to recognize the interdependence of ‘Nature’ and ‘culture’, but also displays a strongly pluralist approach. Without such an approach, the recognition of the agentic property of Nature may lead to the expectation that the environment, once cast as a legal subject, ought to look after its own interests, with the result of further fracturing the human relationship with Nature and paradoxically causing us to fully abdicate our responsibility for environmental protection.Footnote 139 Ultimately, as Takacs notes, we should not be framing environmental protection as a choice ‘between civilization or wild places: we are enhancing or (paradoxically) creating the latter as the only way of providing for the former's survival and health’.Footnote 140 In our view, a truly global ecological jurisprudence that addresses the four challenges we identified in Section 2 can be attained only by recognizing, and empowering, Indigenous leadership as part of an ongoing co-design and co-management approach, one that includes a genuine interaction with Indigenous cultures, languages, and ontologies. Only thus can we begin to observe the emergence of a pluralist, truly transformative ecological jurisprudence.
