Wednesday, 31 January 2018

Can you sue a river? A new podcast

I recorded a short podcast exploring the question: can you sue a river? You can have a listen here.
And here's the transcript, if you're more of a reader than a listener (like me, I have to confess).

Can you sue a River?

In Australia, floods are the most expensive type of natural disaster, costing us, on average, $377 million every year. In 2010-11, widespread flooding in south east Queensland caused over $2.5 billion in property damages, and 35 people lost their lives.
Wouldn’t it be handy if we could sue the rivers for damages?

How could this be possible?
In 2017, three countries recognised some rivers as legal persons: NZ, in India, and in Colombia. The rivers became legal entities. Now, that’s a tricky concept, but it’s a bit similar to corporations. This means – they can enter and enforce contracts, they can hold property, and they can sue, and be sued, in a court of law.

This is a fundamental transformation of rivers in the law - and it completely reshapes our relationship to these rivers.

Let’s have a look at what actually happened in these countries.
In New Zealand, in 2017, the government passed new legislation declaring the Whanganui River to be a legal person. This was part of a negotiated settlement with local Iwi (Maori), to create new management arrangements that centre the Maori worldview. The Maori consider the Whanganui River to be an ancestor, and this legislation was a way of acknowledging the relationship the Maori have to the river.

In Colombiathe Atrato river was granted rights as a way of recognising the biocultural rights of the local communities who live along the river.

In India, a State high court ruled that the Ganges and Yamuna Rivers are living legal persons, because the rivers needed personhood to protect them against environmental degradation. This has been the most controversial example, and raises a couple of big questions.
  1. What does it mean for these rivers to be living persons, as well as legal persons? In 2017, an Indian citizen filed a police report of the murder of the Ganges River, which he considered to be too polluted to be alive.
  2. The court appointed guardians to represent the river, but if the river is a living person, are the guardians responsible for the actions of the river? And any damages it causes?
The situation was so uncertain that the state government appealed to the Supreme Court of India. The court has not ruled yet, but has stayed the effect of the original ruling - which means that the rivers are stuck in limbo, and may or may not be legally people in future.

Three countries around the world have given rivers legal rights, and the ability to sue, and be sued.
It is worth remembering that none of these rivers received legal person status because someone wanted to sue them. All of these examples happened because people wanted to find a better way to protect the rivers, and to respect the many cultural values that they represent.

But, if future floods continue to cause damages and loss to human livelihoods, it is now possible to take the rivers themselves to court. So we could start holding the rivers accountable for the damage they do to us.

However, it is equally possible for the rivers to sue us, if our actions damage them. And all of these rivers are already heavily impacted by human activities, like diverting water for hydropower, and pollution from farms, towns, and mining.

So, the moral of this story is: to be careful what you wish for. If you sue a river, it may well counter-sue, and the damages could be immense.

Tuesday, 23 January 2018

New year, new publication, new event on 15 February!

It looks like 2018 is already off to a great start!

Julia Talbot-Jones and I have a paper in Ecology and Society, which is available here. In it, we look at how legal rights for rivers can be given real force and effect, by examining three case studies: New Zealand (the Whanganui River), India (the Ganges and Yamuna rivers), and Victoria, Australia, where we argue that the combination of the Victorian Environmental Water Holder (a statutory corporation) and legal rights to water have given some of the rivers in Victoria a form of legal personhood.

The legal rights for nature movement continues to generate new real-world examples. In New Zealand, Mount Taranaki will join Te Urewera (a national park) and Te Awa Tupua (the Whanganui River) as a legal person. As with the Whanganui River, the new legal status of the mountain is more about reaching a settlement with Iwi than creating legal rights for nature per se, and it will be interesting to see how the management of these new legal entities gives effect to their legal person status.

Mount Taranaki (source: The Guardian) 

I'm hoping to continue this conversation on legal rights for rivers, and what it means for Australia, at a seminar on 15 February for the River Basin Management Society. I'll be joined by Bruce Lindsay, who will be speaking to the interesting example of the new Yarra River Protection Act, and how it will give a 'voice' to the Yarra.

It should be a really fun evening, as we try to make sense of these groundbreaking legal developments, and what they mean for river protection and management. I'd love to see you there, and you can get your tickets here!

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?