Analysis of legal systems recognizing rivers as legal persons
Western legal systems grant a series of fundamental and inalienable rights to every human being (Human Rights, Serwis Rzeczypospolitej Polskiej, 2022). It was not always like that. For a long time in the development of Western civilization, women, children, or racial and ethnic minorities were not recognized as possessing any rights (Stone, 1972). But what about the legal personality of natural elements such as a river?
Despite the anthropocentric approach to nature, legal personality of rivers and other parts of the natural environment is becoming increasingly popular and more frequently explored by various legal systems. Whanganui in New Zealand became the first river in the world to be recognized as a legal person. The same legal solution was used in Canada, India, Ecuador, and Colombia. In Europe, the Spanish precedent is paving the legislative path, setting an example for countries where economic, agricultural, and tourist development has caused environmental degradation and the mass extinction of living organisms.
*Legal personality is the ability of a person to be a subject of rights and obligations and to perform legal actions in their own name.
Spain. The Mar Menor, a salty lagoon in the region of Murcia
The Mar Menor, a salty lagoon in the region of Murcia, received legal personality on September 21, 2022, after the Spanish Senate supported the Citizen Legislative Initiative (Iniciativa Legislativa Popular, ILP) by a significant majority. Ecologists and residents of Murcia have been warning the public for years about an ecological disaster and the extinction of aquatic organisms due to the runoff of fertilizers from nearby farms and sewage from resorts.
More than 640,000 Spaniards signed the application for the lagoon to be granted legal personality (the law requires 500,000 signatures). In April, the lower house of parliament passed the relevant resolution, and in September, the Senate approved the law guaranteeing the lagoon legal personhood.
Mar Menor has been recognized as a subject of rights towards the administration and justice system, making history as the first such ecosystem in Europe and a pioneering legislative precedent in the region, surpassing similar efforts in Loire, France, and the North Sea in the Netherlands.
Recognition of the legal personality of Mar Menor constitutes its right to:
- continuity of the existence of the ecosystem and its natural evolution, ensuring the balance and regulatory capacity of the ecosystem in the face of the lack of such balance caused by “anthropogenic pressure/expansion”,
- protection, understood as limiting and/or stopping actions that create risks or harm to the ecosystem,
- conservation and maintenance of species, terrestrial and marine habitats, and adjacent natural areas,
- restoration of the damaged ecosystem, restoring its natural dynamics and adaptability.
The main idea of the new law is the assumption that every citizen is entitled to defend the Mar Menor ecosystem and enforce the rights and prohibitions resulting from this law. Every Spaniard who notices actions harmful to the lagoon can file a lawsuit, which will oblige the legal institutions to take action.
Three institutions have been authorized to represent the interests and manage the lagoon basin:
- Committee of Representatives consisting of representatives of public administration and citizens of coastal municipalities,
- Monitoring Commission (so-called guardians of the Mar Menor lagoon),
- Scientific Committee, with a commission of independent scientists and experts from universities and research centers.
New Zealand. Whanganui, in Maori language: Te Awa Tupua
In 1840, the New Zealand government signed the Treaty of Waitangi with representatives of the Whanganui tribe. The Maori version of the agreement guaranteed full control of the Whanganui River and all its resources to the Maori people. However, the English version granted full rights to the river to the government of New Zealand (Bieluk, 2020), resulting in years of violations on the river (the English version of the agreement was considered the leading one). From 1870 to 2017, the Whanganui tribe fought for the right to their land, the right to protect the Whanganui River, and compensation for the damage suffered.
In 2017, the Te Awa Tupua Agreement (Whanganui River Claims Settlement) was signed, granting legal personality to the river. On March 20, 2017, the agreement came into force (after being passed by Parliament and receiving Royal assent) and the Whanganui River became a legal person.
The basis for recognizing the river as a legal person lies in the beliefs and worldview of the Maori people. In the Maori cosmological view, nature is seen as the ancestor of man, and there is also a deep connection between man and nature – a relationship not based on the subordination of the latter, but on coexistence on equal terms (Bieluk, 2020).
The Office Te Pou Tupua is appointed to represent the river, consisting of two people – one nominated by the Whanganui tribe and the other by the government of New Zealand. They are obligated to act on behalf of and for the good of the entity they represent. Its broad statutory functions include “acting and speaking on behalf of the river Te Awa Tupua,” protecting its status, and “promoting and protecting its health and well-being.” In addition to using and exercising the “rights, privileges and duties of Te Awa Tupua,” the Office is also responsible for fulfilling obligations on its behalf. The Te Pou Tupua Office receives advice and support from Te Karewau, a bi-cultural advisory council, and Te Kōpuka nā Te Awa Tupua, a bi-cultural strategic group.
According to Sections 12, 13, and 14 of the Act:
12 (1) Te Awa Tupua is an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, including all its physical and metaphysical elements.
13 Te Awa Tupua includes inherent values that are essential to Te Awa Tupua, namely:
- Te Awa Tupua is a spiritual and physical entity that supports and sustains both life and natural resources within the Whanganui River and the health and well-being of the iwi, hapū and other communities living on the river.
- Te Awa Tupua is an indivisible and living whole from the mountains to the sea, including the Whanganui River and all its physical and metaphysical elements.
- Iwi and hapū of the Whanganui River have an inalienable connection and responsibility to Te Awa Tupua, its health and well-being.
- Te Awa Tupua is a single entity made up of many elements and communities working together for a common purpose, which is the health and well-being of Te Awa Tupua.
14 (1) Te Awa Tupua is a legal person and has all the rights, powers, duties and liabilities of a legal person.
(2) The rights, powers and duties of Te Awa Tupua must be executed or performed, and the responsibility for obligations must be undertaken by Te Pou Tupua on behalf and for the benefit of Te Awa Tupua, in a manner provided for in this section and in Ruruku Whakatupua-Te Mana o Te Awa Tupua (Whanganui River Claims Settlement, 2017).
Three years before the river was recognized as a legal person, a similar fate befell Te Urewera, the largest national park located on the North Island. On July 27, 2014, in the Te Urewera Act, in section one, parliament declared that Te Urewera is an “ancient and enduring fortress of nature, a living entity that has spiritual and physical form, and its scenery is filled with secrets, adventure, and isolated beauty.” In section three, it can be read that “Te Urewera has its own identity, inspiring people to engage in its protection.” All rights, duties, and powers of Te Urewera are exercised on its behalf by an entity (Te Urewera Board) comprised of people. According to Article 12, the area of Te Urewera (exactly like the Whanganui River) ceases to be the property of the state – but belongs to itself.
Maori people say Ko au te awa, ko te awa ko au. It means “I am the river, and the river is me.”
Canada. Muteshekau Shipu - Magpie
On January 18, 2021, the Innu Ekuanitshit Council and the Minganie Regional Municipality passed a joint resolution recognizing the Muteshekau-shipu river as a legal entity. The resolution granted the river, as well as the entire watershed, a set of basic rights in accordance with Innu beliefs, customs, and customary law, in nine categories:
- The right to life, existence, and flow.
- The right to respect its natural cycles.
- The right to natural development, to be secured and protected.
- The right to preserve its biodiversity.
- The right to perform essential functions within its ecosystem.
- The right to maintain its integrity.
- The right to be protected from pollution.
- The right to regeneration and restoration.
- The right to pursue its rights and obligations before the courts.
As a legal person, Muteshekau-shipu has the ability to defend these rights in court if they are violated. The river’s Guardians (Les Gardiens), appointed by the Innu Ekuanitshit First Nations and the Minganie Regional Municipality, are authorized to represent the river and are obligated to act in the name of its rights and interests, as well as to ensure the protection of its basic rights.
The Guardians (Les Gardiens), appointed by both parties, are authorized to take legal action on behalf of Muteshekau Shipu/Magpie River, to seek compensation for any harm caused to the river, and to receive compensation on behalf of the river.
The best interests of the river, as determined by the Guardians (Les Gardiens), must be taken into account by governments and private entities in all actions or decisions affecting it.
The Guardians (Les Gardiens) of the Innu Ekuanitshit territory perform their duties in collaboration with the Department of Management and Sustainable Development of the Minganie Regional Municipality and the Innu Ekuanitshit Council. The youth and elders of Ekuanitshit are also guaranteed to participate in their actions.
The duties and functions of the Guardians (Les Gardiens) aim to protect the rights of the river and include in particular:
- scientific research,
- inventory, geodetic measurements, and monitoring,
- application of Innu traditional knowledge,
- river protection planning,
- awareness and education,
- species protection, management, and restoration,
- work to reduce threats to species and their habitats,
- habitat improvement,
- habitat management for the protection and improvement of ecosystem services,
- monitoring, supervision, and involvement in development projects that may affect the river,
- reception and organization of visitors to traditional territories,
- participation in all consultations related to the approval of projects that may affect the river’s rights, in order to pursue the river’s best interests and rights,
- management of funds from government (or other) sources, as well as compensation funds received for harm to the river, in a fiduciary capacity.
The provisions of this Resolution do not limit the exercise of the rights of Indigenous peoples (literally “ancestral rights”) and those arising from treaties, or Innu Aitun* practices by members of the Innu Ekuanitshit First Nations.
The participation of the First Nations (Premiere Nation) Innu Ekuanitshit and the inclusion of traditional Innu knowledge are guaranteed when making any decision that may affect the basic rights of the river.
The Council calls on all governments to ensure prompt and adequate funding for the implementation and application of the basic rights of Mutehekau Shipu/Magpie River.
The Council is exploring the possibility of entering into a joint management agreement that recognizes the inherent rights of the river and guarantees shared responsibility for the ecosystem.
The aforementioned intergovernmental agreement on joint management aims to establish a “protected indigenous area” surrounding the river, reflecting Innu rights and traditions and ensuring the maintenance of Innu relations with their ancestral lands.
*Innu Aitun – the practice of customary, traditional, cultural, social, economic, and survival activities closely related to the land, such as hunting, fishing, trapping, and gathering.
India. Ganga and Yamuna
On the same day that Whanganui was recognized as a legal person, the Supreme Court of Uttarakhand recognized the legal personality of the rivers Ganga and Yamuna. Ten days later, the same court extended legal personality to the glaciers that feed these two rivers, as well as the “rivers, streams, brooks, lakes, air, meadows, dales, jungles, swamps, grasslands, springs, and waterfalls” associated with them. The rivers were given the status of a legal minor, and the Court appointed the Chief Secretary of Uttarakhand and the Advocate General of Uttarakhand as the guardians of the rivers, in loco parentis.
Unfortunately, the Supreme Court rejected the decision of the High Court due to implementation problems.
Colombia. Atrato and Amazon River Basin
In November 2016, the Colombian Constitutional Court recognized the right of the Atrato river basin to “protection, conservation, preservation, and restoration”. Earlier, in 2015, the Constitutional Court of Colombia recognized the rights of Nature. In the case concerning the degradation of the environment in Tayrona National Park, the Court adopted an ecocentric perspective, noting that “rivers, mountains, forests, and atmosphere must be protected not because of their usefulness for humans, but because of their own rights to exist.” In addition, the Court clearly recognized the social “obligation to respect and guarantee the rights of nature” (Coldwell, Wilson, 2017).
In 2018, the Colombian Supreme Court recognized the Amazon ecosystem, including its river and forest territories, as a legal entity and compelled the Colombian government to take actions aimed at controlling deforestation and, therefore, the associated changes in climate and water cycles in the Amazon region (Bieluk, 2020).
In October 2008, Ecuador became the first country to recognize Nature as a legal subject, within the rights guaranteed by the Constitution. According to Article 71 of the Ecuadorian Constitution of 2008, “Nature, or Pachamama, where life is reproduced and exists, has the right to integral respect for its existence, maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.” The Constitution empowers any “person, community, people or nationality” to enforce this right through constitutional processes.
Shortly after the adoption of the new constitution by Ecuador, the government of the Loja province dumped “thousands of tons of debris” from the construction of a highway into the Vilcabamba River, severely constraining its channel and causing significant flooding downstream. The case went to the Court of the Loja Province, which in 2011 recognized the constitutional rights of the Vilcabamba River, becoming the first court to do so for any river.
- Bieluk, J., Rzeka jako osoba prawna, [in:] “Studia Iuridica Lublinensia”, 2 vol.29, 2020.
- Coldwell, R., Carr-Wilson, S., Legal Personality of Natural Features: Recent International Developments and Applicability in Canada, 2017. (https://www.elc.uvic.ca/wordpress/wp-content/uploads/2018/05/2017-02-03-LegalPersonalityNatural-Features_web-version.pdf)
- Agencia Estatal Boletin Oficial del Estado: Documento BOE-A-2022-16019, Boletin Oficial del Estado, núm. 237, 3.10.2022, https://www.boe.es/eli/es/l/2022/09/30/19 .
- El Mar Menor ya tiene personalidad jurídica: “Es excepcional dotar de derechos a un ente natural”, “El Mundo” 22.09.2022, https://www.elmundo.es/ciencia-y-salud/medio-ambiente/2022/09/21/632b371f21efa00d458b45ca.html .
- Los derechos del mar Menor, “El Pais” 23.09.2022, https://elpais.com/opinion/2022-09-23/los-derechos-del-mar-menor.html .
- Prawa Człowieka, Government of the Republic of Poland website, https://www.gov.pl/web/rodzina/prawa-czlowieka , access: 09.2022.
- Stone, C.D., Should Trees Have Standing?: Toward Legal Rights for Natural Objects, [in:] “Southern California Law Review”, 45, 1972, https://iseethics.files.wordpress.com/2013/02/stone-christopher-d-should-trees-have-standing.pdf .
- Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, https://www.legislation.govt.nz/act/public/2017/0007/latest/whole.html#DLM68314580 .