Friday, 1 December 2017

Valuing water for sustainable development - new article in Science

I am delighted to share the news that I have published an article in Science, under lead author Dustin Garrick of Oxford University, and as part of a team of authors whose sheer brilliance overwhelms me. 

The article explores the way in which water is valued, and the need to rethink our current approaches to valuing and managing water in response to:
(1) the need to invest approximately $114 billion over the next 12 years to meet the UN SDG 6 (universal access to safe water for sanitation and drinking, with healthy water ecosystems)
(2) improvement in technology for measuring and managing water
(3) institutional and governance failures, especially in the context of the rapidly rising economic value of water trading (as anyone who watched Lateline in Australia last week will have been reminded!), and
(4) the changing legal status of rivers, as the law begins to reflect the enormous cultural and environmental value of river systems to human communities.

The article proposes a new way to value water for sustainable development:

More detail on the work that led to this publication, including quotes from Dustin, Richard Damania at the World Bank, and me, can be found in this press release.

Thursday, 30 November 2017

Legal rights for rivers? A workshop at University of Melbourne

This August, I ran a half day workshop, jointly hosted by the Australian Earth Laws Alliance (AELA) and the Centre for Resources, Energy and Environment Law (CREEL) at the Melbourne Law School. This workshop was open to the public, and was so popular that we had to institute a wait list! We perhaps should have picked a bigger room... 

A group of 55 academics, practitioners, policy makers, students and environmental advocates gathered together to hear more from leading scholars on the emerging jurisprudence of legal rights for nature, and how this concept is being applied to rivers around the world, and here in Australia. 

This week, I published an article in Global Water Forum summarising the outcomes of the workshop. There is widespread interest in the implications of extending legal rights to rivers, especially because although these developments have vested legal personality in the river itself, the basis for this often rests in non-Western values. In New Zealand, the Whanganui River was given legal personality to reflect the Maori world view, and as an acknowledgment that the Crown was not the 'owner' of the river. There is a real danger that in attempting to use a distinctly Western legal framework (the legal person, most often associated with corporations) to give force and effect to non-Western perspectives, the origins of the legal rights may be obscured.

The detailed workshop report, as well as copies of presentations (and recordings of some of the speakers), can all be found on the CREEL website

Monday, 9 October 2017

Spreading the news

It's been a busy month!

A few weeks ago, I sat down with the talented Myriam Amiet-Knottenbelt to discuss the emerging jurisprudence of legal rights for rivers, and what it means for environmental law. This interview is now up on Right Now, a wide-ranging blog about human rights stories in Australia.

In September, I attended the 20th annual international Riversymposium. I haven't been back since 2007, and it was wonderful to go back for the 10th anniversary of the Brisbane Declaration, which has been of enormous value in providing a common language for environmental flows scholarship, research and implementation around the world.

I also got to present the results of my PhD research to a packed out session, and you can download a copy of the presentation here.

And lastly, my article on the recent decisions of the Indian High Court of Uttarakhand to grant legal rights to the Ganges and Yamuna Rivers is now available in the Journal of Environment Law. We're still waiting to see what the Supreme Court decides on appeal, but the reasoning of the state High Court remains of great interest.

Thursday, 28 September 2017

Legal personality for the environment: be careful what you wish for

Good news!

My PhD has been passed, and I am now officially Dr O'Donnell!

The full thesis is available for download, and the short version is: 
In 2010, the Victorian government created the Victorian Environmental Water Holder (VEWH) to be ‘the single voice’ for environmental water rights in Victoria. The VEWH is one of many ‘environmental water managers’ (EWMs) operating around the world. EWMs use a variety of legal forms to establish legal personhood to participate in water markets to acquire and manage water for the aquatic environment. The creation and operation of EWMs raises the question: what happens when the environment is constructed in law as a legal person? I use the example of the EWMs in Australia and the USA to develop a new conceptual framework to understand how the environment is constructed in law, and how the multiple constructions can interact in unintended ways. In particular, I find that there is an apparent paradox in the creation and operation of the EWMs: they are a regulatory tool intended to increase the legibility of the environment to law, and increase the rights and powers of the environment in law, but in doing so, they reframe the environment as a mere participant in a market, which can weaken the cultural narratives that support environmental protection.

The even shorter version: be careful what you wish for. Granting legal personality to the environment is a powerful legal tool, but it fundamentally reshapes the relationship between humanity and nature. Whilst giving nature the power to stick up for itself, and to fight back against pollution and degradation, can be important and useful, it can also leave people feeling that now they don't have to look after the environment. Even worse, because the environment is now a competitor for access to resources, people start to wonder whether they have recourse against the environment when things go wrong.

One of the most common responses to my articles documenting the legal rights for rivers that have emerged in 2017 has been: great, so can we sue the river when it floods our land?

In fact, one of the reasons that the State Government of Uttarakhand appealed the High Court ruling that granted legal rights to the Ganges and Yamuna Rivers in India is that they were concerned that they, as guardians for the river, would be held liable for the actions of the river. They were worried that people would sue them when the rivers flood in future.

Legal rights for nature advocates have long thought that placing nature on a level footing with people in the eyes of the law would transform our understanding of nature, changing it from a resource to be exploited, into a partner and equal. Turns out, this may have been a bit optimistic. 

But all is not lost. I think the solution to this challenge is to keep talking about why environmental protection matters, and why it matters to all of us. We don't have to let legal rights undermine our willingness to protect nature, but as environmental advocates, or policy-makers, or new organisations who speak for the environment, we do need to actively keep building trust and support throughout the community.

Legal rights for the Colorado River?

Legal rights for rivers seems to be an idea whose time has come.

This week, Deep Green Resistance filed suit on behalf of the Colorado River, to establish it as a legal person with the ability to sue in court to protect its own interests.

In July, the Siletz River Ecosystem in Oregon, USA, also filed an action to prevent the aerial spraying of pesticides within the river catchment.

Both cases are arguing that granting legal standing to the river will enable it to protect its interests holistically, and proactively. In Colorado, the law suit is an action against the state of Colorado for violating the river's "right to exist, flourish, regenerate, be restored, and naturally evolve".

In Oregon, the lawsuit stems from a local ordinance, which gives the right for local ecosystems and communities to be free from aerially sprayed pesticides.This ordinance means that the river in this case is one of the defendants, as the plaintiffs attempt to assert their right to apply pesticides. The court documents state that the right to be "free from toxic tresspass" is "essential for nature - the physical world including human beings - to survive and thrive".

So far, US courts have been consistently unwilling to embrace legal rights for nature. However, in 2017, there is an emerging transnational jurisprudence supporting the creation of legal rights for rivers, as evidenced by legislation in New Zealand and the Constitutional Court ruling in Colombia (which specifically referenced the New Zealand examples). In India, the ruling of the High Court which granted legal personality to the Ganges and Yamuna Rivers has been stayed by the Supreme Court, pending the outcome of an appeal.

At the recent 20th International Riversymposium in Brisbane, Australia, a plenary session was devoted to the discussion of legal rights for rivers, with speakers from the Whanganui River in New Zealand, and Western Australia, where the concept is being developed by the Madjulla people for the Mardoowarra River.

Later this year, in October, the first US rights for nature symposium will be convened in New Orleans.

Will this growing momentum be enough to tip the balance in the US courts?

Friday, 16 June 2017

Legal rights for rivers: what happens next?

In 2017, we have seen four rivers around the world receive the status of legal persons.

In March, the New Zealand government passed legislation that declared the Whanganui River to be a legal person, as part of settling a long-running dispute under the Treaty of Waitangi.

Also in March, the Ganges and Yamuna Rivers in India were given the status of legal persons. The High Court of Uttarakhand (an Indian state) declared that these rivers were to be considered as 'minors' and appointed several key people in the state government to act as guardians.

Then, in May, the Constitutional Court in Colombia ruled that the Rio Atrato also had legal rights of its own, as part of recognising a suite of biocultural rights of the local and indigenous communities who live on and near the river.

After seeing very little in the way of movement in this space since 2010, it is extraordinary and exciting to see these ground-breaking legal decisions creating legal rights for rivers.

But will these new rights help to protect the rivers?

And how does giving legal rights to nature re-shape our own relationship to nature?

My research points to a fundamental shift that happens when nature has legal rights of its own: we start to expect nature to look after itself, and correspondingly, we begin to be less willing to take action to protect it.

This means that these innovative legal experiments in the expansion of legal rights for nature can come with real costs, and using legal rights in this way is unlikely to be a panacea for environmental protection.

It is now time to invest in research and analysis that considers not if nature should have rights, but how those rights can be created and enforced so that environmental outcomes are actually improved.

This week, I have recorded a podcast through the University of Melbourne program Up Close, with Julia Talbot-Jones from ANU, to explore these emerging issues, and start to understand exactly what happens when you create legal rights for nature.

You can listen to the podcast here.

Let me know what you think in the comments, or by tweeting @ezzyod.

Friday, 21 April 2017

Legal rights for rivers and mountains - new article in Pursuit

Will giving the Himalayas the same rights as people protect their future?


Himalayan glaciers, rivers, streams, lakes, air, meadows and forests now have the same legal rights as people after the Uttarakhand High Court in India granted these natural treasures this new status as a way to protect them from pollution and environmental destruction.

The ruling, made on 30 March 2017, aims to ‘preserve and conserve’ the ‘Glaciers including Gangotri and Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests wetlands, grasslands, springs and waterfalls’ of the Himalayas.

View from Kalindi Peak of Himalayas located at Uttarkashi district of Uttarakhand, India. Picture: Wikimedia

This ground-breaking ruling came ten days after the same court ruled India’s sacred Ganges and Yamuna rivers were also legal persons. At the same time, the New Zealand Government passed legislation recognising Whanganui River as a legal person. Collectively, the establishment of these new legal persons represents the most significant creation of new legal rights for nature since 2010, when Bolivia passed the Law of Mother Earth.

A duty to protect the sacred and ecological values

The Yumanotri and Gangotri glaciers feed the Yumana and Ganges rivers, both of which the court considered to be ‘sacred and revered… central to the existence of half the Indian population’. The court argued that both the Yumanotri and Gangotri glaciers are receding quickly and there is a ‘moral duty to protect the environment and ecology’ from the severe risks of climate change and pollution.
Both statements significantly broaden the basis on which the court can act to protect the environment. But in granting these rights, what legal powers has the Uttarakhand High Court bestowed on the Himalayan environment? And will these rights really help to protect them?

What are legal rights?

To be a legal person, one does not have to be human. Legal persons are entities, which the law regards as capable of bearing rights and duties. For example, corporations have long been granted legal personality. Legal personality typically confers three primary rights: the right to sue and be sued (legal standing), the right to enter contracts, and the right to hold property. When applied to nature, theoretically a natural object can protect its rights by taking legal action to address claims of injury and seek relief from the courts.

A composite satellite image of the Himalayas appearing as white chains. Picture: Wikipedia

As a consequence, declaring rivers, glaciers and other natural features legal persons typically would confer the three legal rights on these natural objects, but this cannot be assumed. When we look closely at what status the Uttarakhand High Court’s recent decisions really gives to the glaciers, lakes, meadows and other natural features, a number of questions remain.

What legal rights has the Uttarakhand High Court created for nature? 

In the case of the Ganges and Yamuna rivers, the court declared that the rivers are ‘juristic/legal persons/living entities having the status of a legal person with all corresponding rights, duties and liabilities of a living person’. But in the more recent glaciers case, the court explicitly goes further, by also declaring that the ‘rights of these legal entities shall be equivalent to the rights of human beings and the injury/harm caused to these bodies shall be treated as harm/injury caused to the human beings.’

Does this mean that the Himalayan glaciers and other natural objects identified by the courts will have all the same rights as Indian citizens? This would be a significant expansion of legal rights for nature and the existing precedent surrounding the concept of legal personality.

Glacier at Mount Everest base camp. Picture: Flickr/ Hendrik Terbeck

In addition, the Glaciers case also creates a very broad definition of harm and imposes a strict liability test for determining such harm:
‘Any person causing any injury and harm, intentionally or unintentionally to the Himalayas, Glaciers, rivers, streams, rivulets, lakes, air, meadows, dales, jungles and forests is liable to be proceeded against under the common law, penal laws, environmental laws and other statutory enactments governing the field.’ [sic]

Such a ruling has the capacity to create unprecedented liability for any person undertaking any activity in the state of Uttarakhand that causes harm to these natural objects. How this translates into everyday life is not yet known.

Finally, because natural objects cannot speak for themselves, the Uttarakhand High Court has treated them as minors under law. Particular government officials have been appointed to act in loco parentis (guardians) to ‘uphold the status of these bodies and also to promote their health and well-being’ throughout the entire state of Uttarakhand. But it is unclear what level of support (or independence) from government will be received by these officials as they take on their new roles, or how they will work together in the best interests of the natural objects.

What happens next? 

These court rulings have the capacity to significantly shift the legal landscape and broaden the basis for expanding environmental protection in India. However, there are also risks that these rulings could have unintended consequences. Beyond the legal complexities in the judgments, and immediate practical uncertainties, our research identifies three broader issues that could further affect the scope and robustness of this approach.

Pindari glacier from Zero Point, Uttarakhand, India. Picture: Wikimedia

Firstly, the creation of such rights by the courts means that they are currently unsupported by broader institutional frameworks that will give the legal rights force and effect.
Secondly, the apparent transfer of responsibility for natural objects, from the hands of the parliament, to the courts, means that environmental decision-making is inherently more reactionary: the courts can only rule on a case once it comes before them.

Thirdly, if such legal rights are successfully enforced, it could result in the natural objects formally competing with humans for access to resources (such as water, air, forestry, or grazing rights in the meadows). Competition fundamentally shifts the relationship between humans and nature, and can undermine human intentions to look after the natural environment.

As India, New Zealand, Ecuador and Bolivia, take steps to grant nature legal rights as a new way to protect rivers, glaciers, and natural objects, undermining the desire to protect nature is likely to be the last thing they were expecting to do.

As climate change continues to raise the global stakes of getting this right, we need to make sure the legal tools we use to protect nature are not going to become counterproductive in the long term.
Banner image: Max Pixel

This article was first published on Pursuit. Read the original article.