'Rivers as living beings: rights in law, but no rights to water?' by Erin O’Donnell in (2021) Griffith Law Review comments
Since 2017, some of the most beloved and iconic rivers in the world have been recognised in law as legal persons and/or living entities, with a range of legal rights and protections. These profound legal changes can transform the relationship between people and rivers, and are the result of ongoing leadership from Indigenous peoples and environmental advocates. This paper uses a comparative analysis of the legal and/or living personhood of rivers and lakes in Aotearoa New Zealand, India, Bangladesh, Colombia to identify the legal status of specific rivers, and highlight the disturbing trend of recognising rivers as legal persons and/or living entities whilst also denying rivers the right to flow. Rather than empowering rivers in law to resist existential threats, the new legal status of rivers may thus make it even more difficult to manage rivers to prevent their degradation and loss. This paper highlights an ‘extinction problem’ for rivers that environmental law has exacerbated, by recognising new non-human living beings whilst simultaneously denying them some of the specific legal rights they need to remain in existence. The paper also shows how a pluralist analysis of the status of rivers can help to identify some potential ways to address this problem.
O'Donnell argues
Rivers and wetlands are some of the most threatened ecosystems on the planet. Since 2017, some of the most beloved and iconic rivers and lakes in the world have been recognised in law as legal persons and/or living entities, with a range of legal rights and protections. These profound legal changes allow the law to ‘see’ complex systems as legal subjects, and may enable us to harness the power of environmental law to prevent their future extinction. But does the recognition of rivers in law as legal persons or living beings actually help to save them?
The recognition of complex, landscape scale systems as legal and/or living beings represents one of the biggest structural changes in environmental law in decades. UN Special Rapporteur on human rights and the environment, David Boyd, described legal rights of nature as a ‘legal revolution’ that could help to level the playing field between humans and nature. More profoundly, the recognition of rivers legal and/or living beings is also often grounded in Indigenous peoples’ cosmologies and laws, which can lead to more pluralist environmental laws as well as the opportunity to transform the relationship between people and rivers in colonial settler states. However, the new legal frameworks which give rivers rights also tend to deny the new river beings the right to control their own lifeblood: the water which flows between their banks.
Water extraction for drinking, irrigation, mining, and energy generation is a key driver of poor river health, but the new governance arrangements for the living rivers have all left the existing rights to use water from the river in place. Even worse, recognition of rivers as legal persons can entrench an adversarial narrative, in which our willingness to protect rivers is eroded, and replaced by a zero-sum, transactional relationship in which there are clear winners and losers. Rather than empowering rivers in law to resist their own existential threats, these new legal arrangements may ultimately make it even more difficult to prevent the degradation and loss of rivers.
In this paper, I begin by examining the multitude of ways in which rivers are recognised as legal rights holders or living entities in law. These differences establish the legal rights and powers of the rivers, as well as the foundation for the next phase of the human relationship with rivers. The UN Secretary General noted in 2019 that the emerging ‘Earth-centred paradigm [of environmental law] guided by the oldest jurisprudential traditions of humankind is inherently pluralistic’, and when examining the question of rivers as living beings and legal persons, a pluralist perspective is essential to overcome the shortcomings of Western legal theories of personhood, which still struggle to recognise that natural entities can be legal persons. More profoundly, the recognition of rivers, lakes, mountains, animals, and all of nature as legal subjects is often the result of Western legal frameworks adopting and translating concepts from the laws of Indigenous peoples. However, without deep, respectful engagement, such translations can also involve a re-interpretation (or appropriation) of Indigenous laws that may obscure or undermine the rights of Indigenous peoples.
Secondly, I consider the specific legal and living personhood of rivers based on comparative analysis between leading international examples of riverine personhood (in Aotearoa New Zealand, India, Bangladesh, and Colombia) and two Australian examples that depend on living entity status rather than legal rights. These rivers have been defined in law in multiple ways, but one consistent trend across all the examples of ‘living rivers’ is that their legal rights do not explicitly include rights to water.
I then consider the question of how extinction can apply to rivers, and how the recent construction of rivers as living beings could exacerbate extinction risks. In doing so, I apply a pluralist understanding of environmental protection, reflecting the laws of both Indigenous peoples and settler colonial states. As stated by Poelina et al, recognition of rivers as living beings with a right to life ‘is grounded in ancient First Law (Traditional Law, Customary Law, or Aboriginal Law) which promotes the holistic natural laws for managing the balance of life.’ Based on the evidence from the rivers, I argue that ‘extinction’ can and does apply to rivers, and that the construction of rivers as legal and/or living beings can increase this risk in key ways.
Lastly, I explore potential ways to address the extinction problem that environmental law has exacerbated by recognising rivers as legal and/or living beings, whilst simultaneously denying them the specific legal rights they need. This discussion further demonstrates the power of a pluralist approach to environmental law, and help to frame a future legal and policy agenda riverine protection.
'Ghost twitter in Indigenous Australia: Sentience, agency, and ontological difference' by Francesca Merlan in (2020) 10(1) HAU: Journal of Ethnographic Theory comments
By distinguishing between attributions of sentience and agency we begin to take crucial analytical steps to consider ontological and cosmological differences between groups. Scholars in New Animist and Actor-Network Theory camps sometimes expound broadly generalized notions of agency, thus overlooking the ways in which characterizations of different kinds of beings—and the implications of these characterizations—may apply to aspects of environment and change historically. In Australia there has been debate about the “sentience” of the country as understood by Indigenous Australians. In a broader Australian public culture, there has come about in the last four decades or so an “etherealized” apprehension of Indigenous relations to landscape, which has privileged attention to certain kinds of cosmogenic being (that is, “Dreamings” as world founding agencies). Considering Australian Aboriginal practices and descriptions of spirit, human, other-than-human figures, and sacralized countryside, I take the view that there is incommensurability between Indigenous and non-Indigenous experiences of environment as sentient. Drawing on both my field experience with Indigenous people in North Australia and the broader Australianist ethnographic record, I discuss the many other kinds of being that populate and animate the countryside, showing a wide range of beings and forces. Three themes of continental distribution stand out: continuities between life and death; human-animal ambiguity; and communicative connectivities among life-forms. All these were elaborated in a way of life integral with its surroundings. The article considers change over time to such understandings, reduction in the range of life-forms, and what this may involve.
