PROFESSOR GABRIEL ECKSTEIN'S CONTRIBUTION TO THOUGHT-PROVOKING PIECE, "SHOULD RIVERS HAVE RIGHTS?"
TAMU Law’s Professor Gabriel Eckstein and co-authors from around the world were recently invited to adapt their essays series, which first appeared on the International Water Law Project blog, for publication in the international journal, Water International. The article titled, “Conferring Legal Personality on the World’s Rivers: A Brief Intellectual Assessment,” is a response to the recent phenomenon where various courts and legislatures around the world have conferred legal personality on particular rivers. Co-authors Ariella D’Andrea, Virginia Marshall, Erin O’Donnell, Julie Talbot-Jones, Deborah Curran, and Katie O’Bryan each contributed their own unique perspective to the compilation. Professor Eckstein wrote the compilation’s introduction and concluding essays.
Ariella D’Andrea, legal adviser with Coastal Fisheries and Aquaculture, Pacific Community-SPC, contributed a piece titled “Can A River Spirit be a Person in the Eyes of the Law?” In her essay, D’Andrea posits that, just as oppressed minorities throughout history have gained rights to defend their identity, courts may grant nature rights of their own. This can be equated with how corporations, public agencies, and civil associations are considered as “legal persons” under the law. D’Andrea explains the two primary methods by which these rights are conferred: through legislation or the judicial process. D’Andrea points to examples in the United States, Ecuador, and New Zealand where local and national lawmakers have recognized the legal rights of nature. She also cites examples in both Columbia and India where courts have recognized rivers as legal persons. D’Andrea concludes that critical questions remain in the debate surrounding whether nature should have legal standing.
Virginia Marshal, from the Australian National University, authored an essay entitled “Overturning Aqua Nullius: An Aboriginal Perspective on Personhood.” She explains that Indigenous peoples in Australia have been, and continue to be, impacted by the untruths of the doctrine of discovery – terra nullius and aqua nullius – and they continue to be invisible to those seeking to exercise proprietary rights over Australia’s rivers. She argues that the proposed Universal Declaration of the Rights of Mother Earth is misguided because it fails to identify the unique position of Indigenous peoples. Marshal writes that the “preamble of the declaration, which refers to ‘recognition and to defend the rights of Mother Earth’ appears oppositional to the inherent role of Aboriginal people to manage and protect their country.” Marshall argues the preamble uses language that imposes restrictions on Aboriginal law, which in turn limits inherent Indigenous rights and obligations.
Erin O’Donnell, from Melbourne School of Law, wrote on “When a River Becomes a Person: Polarizing Environmental Protection.” Professor O’Donnell discusses emerging evidence that suggests that granting legal rights to rivers can result in people being less willing to protect those rivers, which in turn undermines the potential benefits of granting rights to the rivers. O’Donnell mainly attempts to distinguish between legal rights and human rights. Legal rights typically confer three specific rights: (1) the right to enter into and enforce contracts; (2) the right to own and deal with the property; and (3) the right to sue (and be sued) in court. O’Donnell also explains four specific reasons for giving rivers rights. These include: (1) to give effect to First Nations’ laws, values, and relationship to country, (2) to elevate the river to equal status in the law with human beings, (3) to enable the river to participate in water and ecosystem services markets, and (4) to enable the river to advocate for its own interests in policy debates.
Julia Talbot-Jones, from Victoria University of Wellington, contributed a piece on, “Flowing From Fiction to Fact: the Challenge of Implementing Legal Rights for Rivers.” Her essay engages with the “practicalities of effective governance” by drawing comparisons between the management of rivers, focusing on the Whanganui River case and the India examples, to “understand the circumstances under which [granting legal rights to a river] may be a useful governance tool.” The piece also evaluates some of the unanticipated social costs that result from granting river legal rights. Among others, these include challenges in upholding a river’s newly recognized legal personhood rights without imposing “unexpected costs on other sections or scales of society,” or “compromise[ing] moral authority and public confidence in the system.”
The next essay in the series, written by Deborah Curran from the School of Environmental Studies and Environmental Law Centre at the University of Victoria, was titled “Independent legal personhood of rivers or relational stewardship? A perspective from 20% of the world’s freshwater (Canada) and the Indigenous-colonial legal tensions that govern it.” Curran argues that implementing independent structures to represent a river may limit evolving Aboriginal rights, which creates a significant risk for these communities. She discusses the current movement to revitalize Indigenous laws in Canada and frame them within the necessary sovereignty to allow them to interact productively with colonial law. Moreover, Curran points to government-to-government agreements that point to legal personhood of rivers between provincial governments and Aboriginal communities as a potential medium-to-long term solution.
Next, in an essay titled, “The Yarra River Protection (Wilip-gin Birrarun murron) Act, 2017 (vic), Independent Voices, Indigenous Rights, and River Rights,” Katie O’Bryan, from Monash University, evaluates the significance of the Yarra River Protection Act. O’Bryan identifies two key features of the act with respect to Aboriginal Victorians. First, the Act treats the Yarra River as one living and integrated natural entity and provides for the implementation of an overarching plan to guide future development. Second, the Act establishes the “Birrarung Council” as the “independent voice for the river.” She concludes that the independent voice of a river can take different forms depending on the circumstance. However, she notes that the relative recency of the phenomenon whereby rivers are given legal rights makes it difficult to assess the effectiveness of these developments.
In his concluding essay, titled “Of River, Deities and Legal Persons: A New Approach to Managing Freshwater Resources?,” Professor Eckstein summarizes his co-authors’ essays and offers final conclusions. He emphasizes the fact that huge questions remain with the implementation and implications of this unusual approach for protecting rivers, but also highlights the reality that these novel legal procedures were crafted in response to the perceived failures of existing mechanisms. In addition, he identifies commonalities in the various approaches––such as altruistic environmental values and guardianship or trusteeship for the river––and suggests that additional open-minded dialogue and assessment should be pursued. Accordingly, Professor Eckstein welcomes further exploration and examination of conferring legal personality to rivers and looks forward to exploring this topic further.