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December 30, 2018

RIVER AS A LEGAL PERSON: EXTENDING INTERPRETATION FOR PROTECTION

The greatest challenge before a mankind is to save nature. Changing climate, biodiversity misfortune and all other natural emergencies has constrained individuals to re-evaluate the lawful, financial and administration structure supporting current modern social orders. Legal counsellors around the globe are investigating better approaches to utilize the law to all the more likely help the strength of normal world.[1] With the expansion of ecological weights on water resources, the requirement for an institutional technique which manages the reasonable utilization of water and enhancement of biological system wellbeing is rising. One most recent development is conferring nature with lawful rights i.e. perceiving nature or an explicit piece of the nature as a legal person.
In the recent years, the approach has been shifted to legal obligations than a mere moral duty. In March 2017, New Zealand’s Whanganui River was granted legal rights, with the passing of the Te Awa Tupua Bill. The granting of the river’s legal status followed 140 years of negotiation between the local Māori tribe in Whanganui on New Zealand’s North Island. The river now has the right to be represented by its guardians in legal proceedings against any threats to its well being.[2] On 20th of March 2017, the Hon’ble bench of Uttarakahnd High Court conferred legal person on the rivers of Ganga and Yamuna and all its tributaries and streams. The court cited “desperate times, desperate measures” to tackle the situation. The court said that the rivers in India and posed to great risk due to climate change and pollution.[3] Also, being a holy river it is our moral duty to protect it. The judgement has been stayed by the Hon’ble Supreme Court of India.[4]
In 1970s there have been sudden push in ecological laws protecting nature from human activity.[5] The idea was first proposed by an American researcher Christopher Stone in 1972 in an article titled “Should trees have standing? Towards legal rights for natural objects”. He pushed that nature should be met with legal status represented by guardians who could sue for their benefits. Legal rights of the nature grant three fundamental rights i.e. the privilege to sue and to be sued, the privilege to go into understandings or contracts and the privilege to own a property.[6] The process began first with the Tamaqua Borough in United States. Toxic wastes were dumped in the river. Later, Ordinance was issued which prohibited the dumping of such wastes in it.[7] In 2008, Ecuador turn out to be a first nation to confer rights on nature and appropriately cherished in its Constitution.[8] Articles 71-72 of the Ecuador Constitution present basic rights to the nature.[9] This was trailed by Bolivia. Bolivia amended its constitution in 2009 conferring nature with lawful person hood. Nature’s rights incorporates ideal to be shielded from immediate and backhanded human activities, restoration of harms caused to the nature and clean water and air.[10] Lately, Uttarakhand High Court has recognized and conferred legal person hood on ‘Animal species’ including avian and aquatic species bearing rights and liabilities equal to a living person.[11]
The question before us is, how conferring legal status on river will function? Each Legal person holds a few rights and obligations by the law. The subsequent stage is execution of those rights and obligations, yet legal person isn’t skilled to do as such without anyone’s help. Such legal person is unequipped for practicing such rights without anyone else. This is because that they couldn’t raise their voice, as in the case of a company and minor. Both, company and minor function through Directors and guardian respectively. The same applies in the case of a river conferred with legal rights. The guardian/guardians appointed by the Court shall be bound to protect the rights of the river. The aggrieved party can approach court for the harm caused to such party. Though, the framework regarding this vary across the legal system of the world but the overall idea is the same.
However, not every person thinks legitimate representing nature is a smart thought. As a matter of first importance, streams aren’t really people, at least not in a literal sense. This advancement is reminiscent of the so-called “legitimate fiction” involved in corporate personhood, a deliberate hallucination that’s meant to uphold the rights of groups and to smooth business processes. For example, if some rivers are persons, what’s to prevent all rivers from being declared persons? And if all rivers are persons, how do we start to differentiate one inanimate object from another in this regard? It’s a slippery slope to literally anything being granted personhood status, so long as someone believes it has value. At what point do we stop? Instead of referring to rivers as persons, a better idea would be to develop standards that are specific to the resources being protected. Environmentalists and lawmakers should be writing legislation that’s innovative, effective, enforceable, and specific to the object being protected, while instilling an ethos that decries the desecration of the natural world.
But since this idea is new and it is still evolving, at one time the legal system would be capable enough to differentiate one inanimate object from another who are conferred with legal person hood. Despite the very fact that current lawful systems have perceived the legitimate standing of streams, nevertheless simply execution of such rights can fill the requirement. As giving rights on nature is a paradoxical step from people since we would prefer not to move the worldview from human-centric to eco-driven view. As in the case of the Ganga and Yamuna, the plea against the order of the Uttarakhand High Court was filed which stayed the current status of the rivers. River has been conferred with rights but it for us humans to observe such rights.[12] It is our duty to protect and conserve such rivers. Moreover, a clear framework shall be made for the smooth functioning of the work. The rights and duties of the rivers and humans should be clearly demarcated. For example, the Ganga and Yamuna river flow across many states, so whether the people of other states are obliged to recognise their rights? If yes, there should be mechanisms to regulate it, because the mechanism was created for the state of Uttarakhand. If no, the whole purpose of the legal personhood will be frustrated. have been futile. We desperately need a new mechanism to protect, conserve and restore rivers. The concept of legal status gives us a ray of hope as it confers a legal obligation on humans to respect the rights of nature. So far, it is our best shot to save our future if we observe it fairly.

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[1] Dr Michelle Maloney, Exploring the legal status of nature, (Nov. 29,2018), https://www.earthlaws.org.au/events/exploring-the-legal-status-of-nature/.

[2] O’Donnell, E. L., and J. Talbot-Jones, Creating legal rights for rivers: lessons from Australia, New Zealand, and India, Ecology and society 23(1):7, (Sept. 29, 2018)

[3] Lalit Miglani v. State of Uttarakhand, 2017 SCC OnLine Utt 392.

[4] State of Uttarakhand & Ors. v. Mohd. Salim & Ors., Special Leave to Appeal (C) No(s). 016879/2017, Judgement delivered on 08 July, 2017.

[5] Gunningham, Environmental law, regulation and governance: shifting architectures, Journal of Environmental Law 21(2):179-212.

[6] Stone, C. D., Should trees have standing? Towards legal rights for natural objects, Southern California Law Review 45:450-501.

[7] Tanasescu, M. Local, National, and International Rights of Nature. In Environment, Political Representation, and the Challenge of Rights 107–128 (Palgrave Macmillan: London, UK, 2016)

[8] 2008 Constitution of the Republic of Ecuador.

[9] Article 71. Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes. All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature. To enforce and interpret these rights, the principles set forth in the Constitution shall be observed, as appropriate. The State shall give incentives to natural persons and legal entities and to communities to protect nature and to promote respect for all the elements comprising an ecosystem.

Article 72. Nature has the right to be restored. This restoration shall be apart from the obligation of the State and natural persons or legal entities to compensate individuals and communities that depend on affected natural systems. In those cases of severe or permanent environmental impact, including those caused by the exploitation of nonrenewable natural resources, the State shall establish the most effective mechanisms to achieve the restoration and shall adopt adequate measures to eliminate or mitigate harmful environmental consequences

[10] Carwil Bjork James, Bolivia’s new Mother Earth Law to sideline indigenous rights, Global Justice Ecology Project (Aug. 29, 2012).

[11] Narayan Dutt Bhatt v. Union of India & others, Writ Petition (PIL) No. 43 of 2014, Judgement delivered on 04 July, 2018.

[12]Supra 2.

Photo Credit: Sustainability Next

ABOUT THE AUTHOR:

 

 

 

Syeda Urooj Manzoor is a 3rd year B.A.LLB(H) student at Jamia Millia Islamia, New Delhi.

 

 

 

 

 

 

Vishwajeet Vishwakarma is a 5th year B.A.LLB(H) student at Jamia Millia Islamia.

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