Recognising the rights of rivers

The Mekong River. Image: Quang Nguyen vinh

By |2021-03-22T12:17:25+00:00March 19th, 2021|Freshwater, Indigenous Peoples, Rivers|Comments Off on Recognising the rights of rivers

Rivers are the planet’s arteries of life and are intrinsically linked to human well-being, history, culture, spirituality and politics. Yet, our legal system has largely proven to be ill-equipped to protect the world’s rivers and their inhabitants. A growing global movement sets out to change this by legally recognising and implementing the inherent rights of rivers, such as rights to exist, flourish and regenerate.

What is the ‘rights of rivers’ movement? Félix Feider explains what Earth jurisprudence means for the recovery of the world’s freshwater ecosystems.

Whanganui River

The Whanganui River in New Zealand has been home to Māori tribes for many centuries. These tribes have cared for the river, and the river has cared for them, for over 700 years.

However, this changed when European colonisers arrived in the 19th century. Māori tribes were officially stripped of their traditional sovereignty and authority as caretakers and guardians of the Whanganui River, putting an end to centuries of peaceful coexistence between human and non-human communities.

The river and its inhabitants were exploited, and its headwaters were diverted to support a hydroelectric power scheme. Indigenous Peoples had to stand by and watch Te Awa Tupua, their sacred river, being degraded and disgraced, causing environmental, social, cultural and spiritual suffering.

Whanganui River. Image: Jason Pratt CC-BY 2.0

In 2017, something momentous happened. After years of negotiations with representatives of the Whanganui iwi (tribe), the Aotearoa/New Zealand Parliament enacted the Te Awa Tupua Act (2017). This legally recognised Te Awa Tupua, the Whanganui River and all its physical and metaphysical elements, as an indivisible and living whole. The Act acknowledges the river as a source of physical and spiritual sustenance, and that communities living along the river have an “inalienable connection with, and responsibility to, Te Awa Tupua and its health and well-being”. The Te Awa Tupua Act also awarded all the rights, powers, duties and liabilities of a legal person to the river and established formal guardians to act on its behalf.

The legal recognition of the Te Awa Tupua is a unique manifestation of the Whanganui iwi’s relationship with the river rather than falling within any particular legal classification. It is important to remember that western law itself contributed to the stripping of Māori sovereignty. The compromise offered by providing the river with agency as a legal person is still a product of western law but was negotiated as a way to ensure a unifying legal foundation built around the Māori’s relationship with the River.

That being said, the story of this river provides a strong example of how to transform the law so that it harmonises with the natural world.

Hope for rivers and humanity

Earth jurisprudence is a philosophy and practice of law and human governance  acknowledging that Nature, the complex web of life of which we are part, has intrinsic rights such as rights to exist, thrive and evolve. As this framework considers Nature to be a subject of the law rather than an object of the law, Nature is frequently capitalised to reinstate it as a proper noun.

The rights of Nature do not only encompass rivers; forests, mountains, and other living systems have been recognised as having rights, as well, along general laws applying to all of Nature. However, the legal precedent for rights of rivers have been a focal point of the implementation of Earth jurisprudence.

This concept is not a new invention; Indigenous Peoples and others around the world have defended and respected the integrity of Earth’s living systems through customary laws and traditions for centuries, understanding that we are a part of Nature and that humans have a responsibility to protect life. Now, if humankind is to solve the global ecological crises, we must listen to and work with Indigenous Peoples.

By contrast, current western legal systems and societies typically put humans above all other life on this planet; rivers, like other non-human living systems, are seen as resources to be exploited by humans often for profit-driven and short-sighted developments that benefit few and cause harm to many. The use of these so called ‘resources’ is often at a destructive rate that causes systemic and many times irreversible damage to these ecosystems, also referred to as ecocide.

River pollution in Bangladesh. Image: Maruf Rahman

The first step to correct this imbalance is for rivers and other elements of Nature to be recognised in law as legal entities with intrinsic rights. This enables designated guardians to defend the rights of rivers on their behalf, similar to how corporations are represented in court. Until environmentally and socially destructive activities cease to exist, these rights present a resilient and holistic approach to protecting rivers, freshwater ecosystems and species, and all people who share interdependent relationships with them.

Rivers recognised as living entities

The ‘rights of rivers’ movement has taken hold in recent years. In 2009, the Bangladeshi Supreme Court ordered the creation of a Bangladeshi National River Protection Commission to address core harms occurring to rivers. Ten years after this, the High Court of Bangladesh recognised all rivers as ‘living entities’ and appointed the Bangladeshi National River Protection Commission as their legal guardian.

This development signals an important paradigm shift, from a system of property-based ownership that enables and justifies environmental degradation to a system where rivers have legally recognised rights that can be enforced by a court of law.

Meghna River, Bangladesh. Image: Mohammad Mahabubur Rahman CC-BY 2.0

Although quite recent, the consequences of the Bangladeshi case have been prodigious. Since 2019, communities throughout the nation were able to plead for the protection and restoration of their rivers, leading to the demolition of 4,000 illegal structures, the recovery of 190 acres of land, and the closing of 231 unauthorised factories on the Buriganga River. All in less than two years!

Around the world, countries and legal systems are starting to recognise the need for – and potential of – this fundamental legal and cultural paradigm shift.

Shortly after the Whanganui River’s rights were legally recognised in 2017, Colombia’s Constitutional Court recognised the inherent rights of the Atrato River, followed by the State’s Surpreme Court recognising the rights of the entire Colombian Amazon.
The rights of rivers have also been recognised locally or regionally in India, the