By Bronagh Kieran
Lately, the legal personality of rivers has been considered in several jurisdictions. In India, the High Court recognised the legal personality of the Ganges and Yamuna rivers in March 2017 however, this decision was overturned in July 2017.[1] Contrastingly, the Whanganui river was recognised as a living entity in New Zealand in March 2017 by way of legislature.[2]

To the sceptical among us, this may seem like an outrageous development: how can a river be a legal person? Does that mean that you could hypothetically be sued by a river? Can a river represent itself in court? The short answer is yes.

The long answer however, lies further upstream. Over the course of this article I will provide evidence to show as to why this seemingly ridiculous development would in fact lead to advances not only for the welfare of rivers, but also for human rights. Moreover, I will aim to demonstrate that granting legal personality to rivers is compatible with existing jurisprudence.

“When legal personality is granted to rivers, however, certain ‘best-placed’ persons are enabled to represent the interest of the river.”

An outstanding problem faced by environmental litigators is that they often sue on the basis of rights that can only be invoked by persons with standing (locus standi). In other words, cases can only be brought by those who have been personally affected or where the person affected is unable to represent themselves. This restricts many environmental cases from being brought. When legal personality is granted to rivers, however, certain “best-placed”[3] persons are enabled to represent the interest of the river.

Another issue is that remedies provided in cases relating to rivers (for example, river pollution)  tend to be focused on human needs; and the injury or loss to the river itself may not be remedied or compensated for. One aim of granting rivers legal personality is to transcend anthropocentric approaches to environmental law. Daly explains that:

“the key question has become how to best represent the environment in court, and how to frame the legal challenges to deliver ‘judicial protection of nature for the sake of nature itself”.[4]

Why is it important for the interest of the river itself to be promoted? My belief is that it is a part of a wider necessary paradigm shift. As it stands, natural entities (be they rivers, mountains or forests) are often viewed as a series of tools to be used for human advantage. In the process of using these natural tools, we exploit them, and in the long-run this exploitation results in catastrophic disaster for the planet, vulnerable humans, and other animals. Realistically, I’m not sure that it is possible for a judge to be so impartial as to divorce themselves from anthropocentrism, but nonetheless, the legal fiction of personhood may go some way towards allowing for consideration of the interests of natural entities in Court. It marks a move from merely viewing humans as benevolent stewards to viewing natural entities as holders of invokable rights.

The argument for granting natural entities legal standing is often traced back to Stone’s seminal paper from 1972 Should Trees Have Standing? Stone argued that it is perfectly reasonable to grant the natural environment legal standing, writing:

“Now, to say that the natural environment should have rights is not to say anything as silly as that no one should be allowed to cut down a tree. We say human beings have rights, but-at least as of the time of this writing – they can be executed. Corporations have rights, but they cannot plead the fifth amendment; In re Gault gave 15-year-olds certain rights in juvenile proceedings, but it did not give them the right to vote.”[5]

This argument reinforces the view that legal personality is not an all-or-nothing concept. It can be used to the extent that it is useful in reflecting the obligations and rights that apply to an entity. For example, in many jurisdictions legal personhood has been granted to companies, because this lessens the risk of personal liability for those involved in setting up enterprise; yet a company is not able to claim human rights such as the right to marriage. Legal personality has also been granted to other entities such as non-profit organisations, religious groups, and even a deity in India.[6] Despite the proliferation of legal personality, it had not been applied to nature. That is, until recently.

“The river can sue and be sued by appointed guardians on its behalf.”

The Whanganui river is sacred to the indigenous Maori people of New Zealand and is home to large Maori villages before European colonisation. In March 2017, after years of campaigning, the river was granted its own legal identity, allowing it to be considered a legal person through legislation.[7] Under this new status, if the river is harmed, there is no distinction between harm upon the tribe or the river in law. The river can sue and be sued by appointed guardians on its behalf.

Not only does this law validate respect for the indigenous population, and set a precedent for other environmental justice disputes especially those involving indigenous tribes (such as North American reservations), it establishes a whole new perspective on our relationship with the environment and nature.

In India, developments faced more legal hurdles. In March 2017, a Uttarakhand High Court recognised the legal personhood of the Ganges and Yamuna rivers on both environmental and religious grounds.[8] The rivers were given the status of a legal minor and the Court appointed the Uttarakhand Chief Secretary and the Advocate General of the State of Uttarakhand as guardians of the rivers, in loco parentis.

Ultimately, the Supreme Court rejected this High Court decision because of implementation problems.[9] One problem is that the river Ganges flows through West Bengal before it reaches Uttarakhand, so holding the guardians in Uttarakhand responsible for looking after the interests of the river doesn’t make sense, as it could already be polluted upstream.

This area of jurisprudence may be expanding and the sources listed below include further incidences where the legal personhood of natural entities has been considered. Notwithstanding the varied success of these incidences, the New Zealand example shines a light on how clear and specific guidelines can allow for more comprehensive protection of natural entities and indigenous peoples’ rights.

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[1] https://www.bbc.com/news/world-asia-india-40537701

[2] https://www.irishtimes.com/news/world/asia-pacific/new-zealand-river-granted-same-legal-rights-as-human-being-1.3013060

[3] Of course, who is best placed to represent the interests of the river is a whole other discussion.

[4] Daly, E. 2012. The Ecuadorian exemplar: the first ever vindications of constitutional rights of nature. Review of European, Comparative & International Environmental Law 21 (1):63-66. As found in https://www.ecologyandsociety.org/vol23/iss1/art7/ES-2017-9854.pdf

[5] https://iseethics.files.wordpress.com/2013/02/stone-christopher-d-should-trees-have-standing.pdf

[6] https://indiankanoon.org/doc/242776/

[7] http://www.legislation.govt.nz/act/public/2017/0007/latest/whole.html

[8] http://lobis.nic.in/ddir/uhc/RS/judgement/14-12-2016/RS05122016WPPIL1262014.pdf

[9] https://www.livelaw.in/sc-stays-uttarakhand-hcs-order-declaring-ganga-yamuna-rivers-living-legal-entities-read-order/

Bronagh studied Law with Philosophy at University College Dublin where she was active in the university philosophy society. Since graduating in 2017, she has completed a legal internship and a traineeship in the Council of Europe’s liaison office to the EU. In this time, she also performed as a part of Nolla Theater Collective. Bronagh’s interests include the rule of law, jurisprudence, and environmental protection.