13 May 2019


'Can You Hear the Rivers Sing? Legal Personhood, Ontology, and the NittyGritty of Governance' by Cristy Clark, Nia Emmanouil, John Page and Alessandro Pelizzon in (2019) 45 Ecology Law Quarterly 787 comments 
In 2017, multiple claims and declarations from around the legal world appeared to signal a tipping point in the global acceptance of a new and evolving legal status for nature. Whether it was litigation in the United States, India, and Colombia, or legislation emanating from New Zealand and Australia, the law seems to be grappling with a new normative order in relation to the legal status of nature. However, this shift has been a long time coming, being at least fortyfive years since Christopher Stone famously asked whether trees should have legal standing. This Article explores what this emerging Ecological Jurisprudence means for the legal personhood of rivers. Nature, the environment, and even single complex ecosystems, are seldom easily quantifiable as bounded entities with geographically clear borders. Within the complex spectrum of establishing where a legal subject ends and another begins, however, rivers are more easily identifiable. A river’s very being is premised on historicized boundaries that measure its watery ambit from riverbed to riverbank. Still, rivers elude a final, clearly defined, and uncontroversial description. As a result, they inhabit a liminal space, one that is at the same time geographically bounded, yet metaphorically transcendent, physically shifting, and culturally porous. Drawing on comparative case studies from Ecuador, Colombia, India, New Zealand, the United States, and Australia, this Article explores the deep and often murky bond of the river and us. This relational, ancient, and ultimately environmentally urgent bond forms the prism through which the rich story of legal personhood, ontological change, and the consequential nitty-gritty of river governance is told. Indeed, this complex story is best heard through the metaphor of song, since “[i]f we are to take metaphor seriously, we must explore its poetic dimension, the persuasive power of its rhetoric, coupled with its aesthetic appeal.”2 In seeking to discern a river’s legal personality, we ask, can we hear the rivers sing?
The authors argue
 In 2017, multiple claims and declarations under legislation and case law from around the world appeared to signal a tipping point in the global acceptance of a new and evolving legal status for nature. In March 2017, the High Court of Uttarakhand, India, handed down two judgments granting legal personhood to the Ganges and Yamuna Rivers and their tributaries,  and to their glaciers, lakes, air, meadows, dales, jungles, forests, wetlands, grasslands, springs, and waterfalls.  These cases were followed in May by the coming into effect of the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (N.Z.), which formally granted legal personhood to the Whanganui River in Aotearoa New Zealand.  In September 2017, the NGO Deep Green Resistance commenced litigation in the name of the Colorado River Ecosystem in the U.S. District Court in Denver, Colorado, seeking to have the Ecosystem declared a juridical person capable of possessing rights.  In December 2017, a memorandum between the local Māori community and the Crown proposed to extend legal personality to the sacred Mount Taranaki on the west coast of New Zealand’s North Island.  Finally, also in December, the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 (Vic.) came into effect in the Australian state of Victoria, and declared the Yarra River (or Birrarung in the Woi-wurrung language) “one living and integrated natural entity.” 
Although this explosion of claims and declarations in 2017 seems to herald a new normative order in relation to the legal status of nature, in reality this shift has been a long time coming. Forty-five years ago, when Christopher Stone famously asked whether trees should have standing, his suggestion was met with near deafening silence. Even though his question challenged long-held ontological assumptions about the position of humans within the cosmos and raised important juridical questions about the legal categorization of nature as merely an inert object of other legal persons’ rights, the proposal was not immediately followed by any legal initiative or judicial response. 
However, Stone’s biocentric argument was to be further advanced, well over twenty years later, by the emergence of ecocentric legal arguments, first  in the writings of eco-theologian Thomas Berry, and later by South African anti-apartheid activist and environmental lawyer Cormac Cullinan. After authoring Wild Law in  Cullinan described this emerging “Earth Jurisprudence” as
 a philosophy of law and human governance . . . based on the idea that humans are only one part of a wider community of beings and that the welfare of each member of that community is dependent on the welfare of the Earth as a whole. From this perspective, human societies will only be viable and flourish if they regulate themselves as part of this wider Earth community and do so in a way that is consistent with the fundamental laws or principles that govern how the Universe functions[.]
The legal world, this time, responded to Cullinan’s ideas with gusto. The invitation to include Nature  within the realm of legal subjects was soon picked up by a number of jurisdictions. The Community Environmental Legal Defense Fund in the United States began to include local ecosystems as legal subjects within municipal ordinances as early as  In 2008, Ecuador granted Nature intrinsic rights guaranteed by four constitutional provisions. Bolivia followed, first tentatively in its 2009 Constitution, and then more vigorously with two laws of Mother Earth enacted in 2010 and 2011. More recently, New Zealand recognized legal personhood for two distinct geographical features, the Te  Urewera forest in 2014 and the Whanganui River in 2017, and is currently negotiating the same recognition for a third, Mount Taranaki. 
In addition to these constitutional and legislative initiatives, a series of cases have now been successfully litigated in numerous civil and common law jurisdictions around the world, making it apparent that the emergence of an Ecological Jurisprudence  is not an isolated event. The ontological challenge to an anthropocentric view that identified human beings as the measure and end of all existence, which Roderick Nash had already masterfully begun to map in 1989, and which Thomas Berry and Cormac Cullinan had fully embraced with their ecocentric arguments at the turn of the century, is now fully realized. A nuanced analysis of this emerging jurisprudence is necessary to avoid the risk of “occupy[ing an] indeterminate terrain, . . . one already inscribed by humanist precepts of what ‘rights’ and ‘nature’ might consist of.”  More importantly for the present Article, it is also readily apparent that, in the words of Christopher Stone, Nature makes for a “shifty client,” or, paraphrasing Kate Soper, a “promiscuous subject.”  Nature, the environment, or even single complex ecosystems are seldom easily quantifiable as bounded entities with geographically clear borders. Within the complex spectrum of establishing where a legal subject ends and another begins, however, rivers are somewhat more easily identifiable, their very being premised on historicized boundaries that measure their watery ambit from riverbed to riverbank. And yet, rivers still elude a final, clearly defined, and uncontroversial description. As a result, rivers inhabit a liminal space, one that is at the same time somewhat geographically bounded and yet metaphorically transcendent, physically shifting, and culturally porous. 
It is thus deeply emblematic that rivers constitute a particularly promising medium for the ontological shift mentioned above. Rivers and life share a profound bond, one that Justice Douglas already articulated in 1972: 
The river, . . . is the living symbol of all the life it sustains or nourishes— fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water—whether it be a fisherman, a canoeist, a zoologist, or a logger—must be able to speak for the values which the river represents and which are threatened with destruction. 
Fast-forward again forty-five years, and the sentiment remains identical, albeit the scale of destruction has intensified. “Rivers are the arteries of the earth, and lifelines for humanity and millions of other animals and plants. It’s no wonder they have been venerated, considered as ancestors or mothers, and held up as sacred symbols.”29 Paradoxically, and tragically, “we have also desecrated them in every conceivable way.” 
This Article thus focuses on rivers—in South and North America, India, and the Antipodean South—to tell a story of rights of Nature, of the emergence (or not) of legal personhood, and of the paradigmatic change that re-orients the law away from anthropocentrism to something else. Our river case stories are told in a relatively diachronic order. We start in Part I with the Vilcabamba River in Ecuador, a relatively short, although internationally well-known judgment that interprets the extent of the early constitutional guarantees afforded Nature, centering on an environmentally degraded river system. In Part II, the focus shifts to the intimately contextual and cultural narrative of the Whanganui River in New Zealand, a river song heard with astonishing clarity by that country’s Parliament—with its passage of a statute that sings the soaring rhetoric of ontological change yet prescribes the necessary nitty-gritty detail of governance. Part III returns to South America, and the more voluminous, ontologically sophisticated judgment of the Atrato River. In this case, the Colombian Constitution was successfully interpreted by the Colombian Constitutional Court to vindicate the Atrato’s standing as a subject of legal rights. Part IV explores the yet-to-be-enforced decisions of the High Court of the Indian State of Uttarakhand, which sought to protect two of India’s most iconic and sacred rivers—the Ganges and the Yamuna—from the ongoing onslaught of pollution and degradation. These two judgments underline that judicial ambition needs to be matched by a commensurate political willingness to enact paradigmatic change. In Part V, the unsuccessful attempt to protect the Colorado River through   a “first-in-the-nation”  rights of Nature lawsuit sings the sad song of an iconic yet diminished U.S. river—now more an “industrial project”  than a natural waterway, a river long stripped of its wildness and freedom. Part VI ends our river case studies with the Yarra River/Birrarung in the Australian state of Victoria. In an Australian first, the Victorian state government legislated an Act that gives voice to the river as “one living and integrated natural entity,” yet curiously denies it its legal standing. Part VII concludes with a discursive review of these many river cases—and their legal, social, and cultural implications. 
As implied by the above structure, this Article employs a comparative methodology. Contrary to Henry Lawson’s famous assertion that comparative law is “bound to be superficial,”  this paper will instead follow Pierre Legrand’s recognition that law is profoundly and inextricably inscribed in culture,  aware that “it is never possible to carry out a wholly ‘meaningful’ transplant of law from one culture to another, because law is never limited to rules,” as Gary Watt writes in articulating Legrand’s position. Although we do not share Legrand’s somewhat pessimistic view in relation to the almost titanic complexity of contextualizing different legal formants within distinct cultural milieus, we also, at the same time, wish to resist the uncontrolled urge toward harmonization and transnational convergence of rules through apparent, and inevitably superficial, similarities.
As Watt suggests:
[o]ur understanding of law will remain superficial so long as we fail to appreciate that law is neither a doctrinal science that will produce predictable outcomes as laboratory experiments might, nor merely an empirically quantifiable sociological fact or an economic construct, but that it comprises arts of imaginative reading, persuasive speech, creative writing and practical performance engaged in as living arts by living people.
The effort to navigate the difficult waters of a legal comparison of seemingly similar and yet culturally unique river cases is guided by the use of a specific metaphor, that of the song of each river. We are inspired, in doing so, by Peter Goodrich’s insightful suggestion that “[t]he comparative takes hold in the precise moment of the dissipation of the juridical, in the instance of non-law,” and thus the analysis of both statutory provisions and judicial decisions will be balanced against a host of cultural expressions, narratives, and apparently nonlegal imagery. Of course, to focus on rivers is to highlight what these geographically and culturally distinct watery bodies share in common. However, in doing so, we need also to be mindful of difference, that each and every river sings its own unique song. We should not ignore the grounded facts, the nuanced and not so nuanced contexts—geographic, cultural, social, historical, and legal— that shape each river’s course. What we ultimately explore in this Article are the multiple songs of many rivers—some share converging melodies, others perhaps are discordant. This attention to the cultural context will emphasize the focus on both the ontic and epistemic dimensions of the cases analyzed. This approach is taken in order to properly inscribe their comparative appraisal within the shift toward an Ecological Jurisprudence introduced above. 
Lastly, the very idea of the river highlights an anthropocentric ambivalence, an inconsistency in how humans conceive of and implement the legal personhood of Nature, and legal personhood of non-human entities more generally. In parliamentary debates preceding the passage of the Whanganui bill, New Zealand legislators exhorted “do not talk about the river, but rather to it.” Yet, in countless debates, Members of Parliament spoke at length about the river, their shared histories of learning to swim before walking, of crossing bridges on the way to school, or halcyon childhood memories of summer adventures on rapids. From a Māori worldview, speakers told Parliament how the river “runs through their veins: a river of whakapapa, of sacred significance, a river that brings together the genealogies and legacies of a people who have swum, washed, played, prayed, dived, paddled and travelled Te Awa Tupua as the central artery of their tribal heart.” This deep and often murky bond of the river and us is the prism through which we explore the rich story of legal personhood, ontological change, and the consequential nitty-gritty of governance. After all, we ask, can we hear the rivers sing?