'Where ordinary laws fall short: ‘riverine rights’ and constitutionalism' by Elizabeth Macpherson, Axel Borchgrevink, Rahul Ranjan and Catalina Vallejo Piedrahíta in (2021) Griffith Law Review comments
Laws that recognise rivers and their ecosystems as legal persons or subjects with their own rights, duties and obligations have been associated with theories of environmental constitutionalism. However, the extent to, and manner in which, constitutional law (with its elevated status) has been instrumental in the conferral of these ‘riverine rights’ is still not well-understood. In this article, we consider the constitutional relevance of the recognition of rivers as legal persons or subjects in Aotearoa New Zealand, Colombia and India. We argue that in these three countries riverine rights are constitutional experiments: as small-scale, ad hoc and ultimately incomplete attempts to transcend seemingly ineffective regulatory frameworks for rivers. However, they are also incremental, and influential, steps in a broader project of more fundamental social and environmental reform.
The authors argue
The recognition or bestowal of legal rights on the Atrato, Ganges and Yamuna, and Whanganui rivers ... has attracted intense interest in transnational scholarship. Like other novel, yet incipient, legal developments, much of this attention focuses on the ‘transformative’ potential of the legal person model – to rebalance the power dynamics between humans and nature and enable real social and ecological change. Laws that recognise rivers and their ecosystems as legal persons or subjects with their own rights, duties and obligations, have been associated with theories of ‘environmental constitutionalism’; the constitutional incorporation of substantive and procedural environmental rights, responsibilities, and remedies to protect the natural environment. These are attempts to ‘transcend “normal” politics and law, reaching deep into the moral fabric of a society that seeks to be good, as expressed through its constitutionalised political and legal order’.
There is a broad range of existing and prospective models that position rivers as having some form of rights or personality around the world. These include a mixture of judicial, administrative and legislative examples; made at various levels of government from local to international; concerning various types of ecosystems from specific rivers to broader manifestations of ‘nature’; and involving a range of legal mechanisms such as rights of nature, legal or juristic persons or subjects, or models that recognise rivers or ecosystems as living entities. For convenience, we use the term ‘riverine rights’ to very loosely group the ‘cases’ from Colombia, India and Aotearoa New Zealand discussed in this article, although we acknowledge and accept the conceptual and practical differences between places, peoples and contexts, and undertake a contextualised and nuanced analysis of each case.
Despite their different circumstances, those driving riverine rights in these seemingly disparate cases have sought to elevate certain fundamental and inviolable interests (both of the river and sometimes of themselves), above the everyday business of river management. Put practically, certain interest groups (e.g. local communities, Indigenous peoples, NGOs, and even judges and politicians) have attempted to leverage riverine rights to ‘win their battles’ (including but not limited to claims for control and access) with respect to rivers; appealing to higher-level norms which have the potential to transcend dominant regulatory approaches and distributions. These claims appeal to constitutional law’s elevated status – with its hierarchy of ‘special powers’, which take priority over ‘ordinary’ laws. Yet, there is often said to be an ‘implementation gap’ in environmental constitutionalism; i.e. constitutions and their enforcers may well produce ambitious normative agendas about transformative environmental change, but these ambitions lead to little impact on the ground.
It is with this potential and ambivalence in mind that we ask in this article: To what extent, and in what ways, has constitutional law (with its elevated status) been instrumental in the conferral of riverine rights? We choose to investigate this question through an exploratory comparative study of the three jurisdictions that are typically used as exemplars in contemporary literature and commentary for applying rights-based approaches to rivers: Colombia, India and Aotearoa New Zealand. All three countries have recognised rivers as legal persons/subjects in varying ways and to varying degrees since 2016. In doing so we consider whether the three riverine rights cases reflect the pragmatism of rights-based claims and strategic socio-ecological litigation and reform. We also consider whether the three riverine rights cases might be the result of activists ‘learning to play the legal game better’ or of judges, lawyers and politicians seeking to ‘make their mark’ through novel legal mechanisms inspired by alternative value-systems.
In our enquiry, we seek to make some broader observations relevant to the project of ‘transnational comparative environmental constitutionalism’. By taking an interdisciplinary approach drawing on law and political and anthropological theory, we consider whether constitutions (broadly framed) are in fact the enablers of change they are often described to be, against the background of the complex political power dynamics of the specific cases. We take a broad approach to assessing ‘change’, ‘adaptation’ and ‘reform’, as socio-ecological phenomena. For example, we cannot measure improvements to the health of the river within the period, but we can make observations about the broader health of riverine communities as socio-ecological networks. We do not therefore seek to ascertain the extent to which riverine rights are practically or effectively implemented in each of the country studies (other than as reported in the academic literature), instead focusing on the design and content of legal and policy frameworks in their specific context.
We explore the constitutional significance of the three riverine rights cases via a detailed interdisciplinary study of the law, policy and scholarship relating to each case in its historical, political and cultural context. Our transdisciplinary and transnational research team includes researchers from all three countries, fluent in the language and ‘legal language’ of each country. We do not presume, however, to speak for Indigenous, Afro descendent or local peoples.
We find that each of the three riverine rights cases, although quite different in its workings and context, has constitutional significance. Each case is an attempt to reset the political power dynamics between governments and communities/interest groups. Each case uses the language of ‘rights’ to secure environmental and social objectives, and attempts to elevate those rights above ordinary regulation, appealing to constitutional norms. This may be done for a range of reasons, including (but not limited to) the furtherance of Indigenous political claims for self-determination over river governance and use; the influence of transnational environmental non-governmental organisations (NGOs) and the global rights of nature project; and the personal ambitions of creative lawyers, politicians and judges who wish to ‘make their mark’.
We find that the riverine rights cases do not completely succeed in their transformative endeavour, and each case has significant shortcomings in terms of the ability to transcend dominant regulatory regimes, and thereby they may have limited potential to enable real legal and practical change. Despite this, we argue, the riverine rights cases from Colombia, India and New Zealand can be characterised as tentative early steps towards more transformative change, and their broader influence throughout the legal and institutional culture of each country, can already be seen.
