Rivers and their Legal Rights

Introduction

• Almost all the Rivers of the world are in a state of peril. Once considered the veins and arteries of the planet are now been clogged, impounded, and polluted, much of their roles defined by and for human interests.
• According to a recent estimate of the connectivity status of 12 million kilometers of rivers in all the continents except Antarctica, only 37 percent of rivers longer than 1,000 kilometers remain free-flowing.
• Ecosystem functions and services of the rest of the rivers have been impacted through the creation of dams, embankments, etc. which hinders the exchange of water, energy, material, and biota between the stretches of a river, and the exchanges with the landscape.
• Despite a suite of environmental laws that have been in existence globally, the harm to riverine ecosystems has continued unfettered.

State of River pollution

• The Central Water Commission monitored 222 sites for water quality between 2012-13 and 2016-17, out of which water quality at 67 locations was beyond the permissible limits.
  • 14 sites (Out of the 67) fell in category I (severely polluted) and 12 sites fell under category II.
• This monitoring excludes Ganga and Brahmaputra which are the two most important and polluted river basin systems.
  

The trend of granting legal rights to nature

• Recognizing the legal rights of nature is emerging worldwide. It is particularly evident concerning rivers through rivers comprise only a small amount of total freshwater worldwide it fulfills the water need of a much larger percentage of people.
• This trend of granting rights to nature, taking place across the world, signals the beginnings of a radical shift from an extractive mindset to one where conservation safeguards are being extended to nature.
• The growing awareness around granting a legal ‘personhood’ to rivers is part of a global movement that has drawn its inspiration from indigenous views of nature — of acknowledging the interdependence on nature and considering it sacred.

Granting Rights to a River:  Enhancing a Right-Based Approach

• The idea of ??providing legal protection to non-human entities is not the new concept but in the field of nature, it has recently come into use, especially with regard to rivers.
• Till now, many Rivers have been given legal rights worldwide namely Vilcabamba River in Ecuador, Whanganui River in New Zealand, Atrato River in Colombia, and the Ganga and Yamuna in India.
• If we look at a river as an ecosystem instead of cubic meters of water, then the ambit of rights gets broadened.
• It includes aquatic flora and fauna, the biodiversity in its catchment areas, forests, its tributaries, groundwater, the rocks and soil in its bed and banks, and the human communities immediately dependent on it.
• River rights in that sense may mean that the causes and environmental conditions that make up a natural habitat must be protected in order to maintain the identity and integrity of the rivers’.

Possible implications of giving legal rights to Rivers

• The new vision promises to empower rivers (through its official guardians) in a way that they can actively participate in litigations for protecting themselves.
• This may also signal a change in the way natural laws and regulations have been translated to date - basically from a human point of view.
• This approach may involve interpreting river rights when people are on the edge and the regulatory mechanisms are designed by keeping the river’s interest at the core.
• This can lead to deeper and broader outcomes such as redefining the flow of natural resources in rivers as mandated by law, altering the acceptable limits of biochemical oxygen demand (BOD) in the rivers, reassessing the ‘beautification’ of riverfronts and their development etc.
• Granting legal rights to rivers does not eliminate fishing or other local human resources, which are based on river-related livelihoods, but rather push for healthy relationships that respect the river as a living environment.
• This approach will create a constructive and healthy relationship with the rivers and help maintain its flow, flora and fauna, aquaculture and other aspects of the river system in a way that suits the broader human interests.
• In the same way, the destructive activities could not only be challenged but stopped altogether that damage the river including dams, pollution, diversions, industrial fishing and trawling, sand mining.

Why the need for rights based approach emerged?

• A possible reason for the weakening of existing legal protections is that legal systems treat the environment as an intangible asset, thus creating a false public perception of the environment and undermining the shared communication between the two.
• Normally the ‘environmental limit’ is prioritized for the implementation of laws thus allowing for some degree of environmental damage and discounting the net destruction of the natural world.
• In addition, regulatory mechanisms that ensure compliance with established agreements in developing countries such as India remain fragile.
• In such a situation, the emerging environmental law of providing legal ‘personality’ in rivers differs from the old way of managing rivers as idle things that need to be protected.

Challenges

Legislative Challenges

• Assigning legal personhood to rivers is meaningless unless the river system is treated as a whole. The limitations of the rules in terms of their area of ??jurisdiction mean that river systems have traditionally been reduced to manageable units.
• By granting legal rights, this appears to be a serious obstacle in the case of major rivers crossing provincial and international borders.
• Reducing the river to manageable stretches that conform with territorial jurisdictions of law, as has been the unintentional but inevitable consequence of different verdicts, is reductionist and directly conflicts with the foundational principles of the ecocentric approach to law-making.
• At the same time, the rules for the level of pits in major rivers are very strict where coastal countries do not even have the means to cooperate with integrated management institutions at the basin level. Perhaps, international conventions can be a catalyst for a change in the world.

Implementation Challenges

• Ambiguity: First, the concept of parenting / custody seems absurd. While the parentage of Ganga and Yamuna have been handed over to a number of NAMAMI Gange project officials, in the case of the Whanganui River, parenting is shared equally by the indigenous people of Iwi.
• Attitude of community: Recognizing Rivers as legal entities may seem ineffective when significant changes in public attitudes toward conservation and diminish their willingness to act on the fundamental belief that the river is self-defense.
• Proper Recognition: The entire exercise should not be reduced to juxtaposing rivers in place of humans in the eyes of the law and arguing for rights of the river akin to human rights. Instead, the emphasis should be on recognizing the river as a legal entity and reshaping the law to focus on the needs of the river.
• River Basin Authority: Due to the lack of an independent and diverse River Basin Authority in India built on Integrated Water Management Systems, there is still an 'international barrier' to implement river rehabilitation and conservation programs.

Case Study of 3 countries

1. Ecuador: Rights of the Vilcabamba River

• Ecuador was the first country to give legal status to its River.
• Background: In 2008, the Loja Provincial Government started building buildings, dams along the Vilcabamba River and dumped all the excavations and stones in the river that led to a change in the river flow that caused major floods in 2009 and 2010.
• Legal status to the River: The court ruled in this case that “environmental rights were violated — in particular the natural right to existence, care and renewal of its vital cycles, structures, and functions”.
  • The Court further noted that “the legal rights of rivers are subject to natural rights and therefore every citizen can defend such rights in court if they are violated.
  • However, it does not elaborate on when the environment should be locus standi per se”.
• Conclusion: In this case, the Court was more concerned with balancing the natural rights and growing human needs but was concerned only with rivers and nothing explicitly stated the rights of other environmental factors that might be affected.

2. Aotearoa New Zealand: The Whanganui River as an Ancestor

• New Zealand became the second nation to give legal status to rivers.
• Background: The dispute over the River began in February 1840, "when 14 Maori chiefs from various Whanganui Iwi signed the Treaty of Waitangi", which gave them the power to rule the crown by taking turns controlling their territories, territories and fishing grounds. But later the crown of the years asserts total control over the Whanganui River and began to exploit its resources.
  • Opposition from Whanganui Iwi was completely overlooked created resentment among the tribes that led to a number of petitions against the Government's action contending that they were still rightful "kaitiaki (guardian) of the river and its Maori (the life force)".
  • They also claimed that Crown's actions violated their rights as the Waitangi Treaty was about governance of people and not the Whanganui River.
• Legal status to the River: New Zealand’s legislature in March 2017 declared the River Whanganui a juristic entity and named it, Te Awa Tupua who is a legal person and has privileges, duties, and obligations that a legal being has.
• Differences between legal recognition of Whanganui River and Vilcabamba River:
  • Te Awa Tupua itself owns the Riverbed, has the power to create legal guardians to support the interest of the river and the recognition of the intrinsic value of the river.
  • The Whanganui River has been given a legal status because the people regarded the river as Tupua (their ancestor) and believed that it could not be separated from the River and not just for conservation purposes as was the case with the Vilcabamba River.
• Conclusion: The legal recognition of the Whangauni River has become a bold legal indicator of how natural rights should be allocated and exercised. Legislation passed by the Legislature, clearly states the rights and functions of the River again in this case, and it was the first time the Court had named those who should be the River's representatives in the Court, unlike other countries.

3. India: Legal Rights to the Ganga River and Yamuna River

• The Ganga River and the Yamuna River were granted Legal rights by Uttarakhand High Court in March 2017.
• The judgment declared that all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these Rivers’ will be “legal and living entities with the status of a legal person with rights, duties and associated liabilities”.

What persuaded the High Court to take such decision?

• The river has physical and religious significance in India. In addition, Ganges is also considered a symbol of all sacred water in Hindu Mythology and is requested whenever water is used in Hindu Mythology.
• Despite the Ganges physical and religious importance, it is, unfortunately, the fifth most contaminated source of water as it follows through 5 major states.
• The enormous water that runs along the river makes it suitable for hydropower systems, dams, and irrigation dams as a result of which there are currently 24 dams completed throughout the river.
• This heavy dependence on the river poses a serious threat to the river's existence.

Whether human society is even ready for such a transition?

• Earth jurisprudence as a philosophy and practice of law and governance seeks to reverse the traditional approach of considering nature as a legal entity in the legal profession.
• This may require the establishment of a reciprocal relationship between the river and people so that people can continue to enjoy the benefits that do not cause irreparable damage to the river flow, the plants and animals that depend on its flow and various elements of the landscape through which it flows.
• This would essentially translate to forgoing current benefits that humans derive from rivers through the construction of dams, embankments, water diversions, etc.

Conclusion

The scope of emerging environmental legislation to grant legal rights to rivers extends beyond the mere need to clean up our rivers. It can bring a whole new dimension and fundamentally change the way we interact with our rivers.

However, one should also be aware of the lack of scholarship in order to keep up with the entry march in this undisclosed area. Most importantly, new institutions will have to be created and a strong regulatory mechanism will have to be put in place if we aspire to protect our rivers from being depleted.