Legal Rights for Rivers
Competition, Collaboration and Water Governance
In 2017 four rivers in Aotearoa New Zealand, India, and Colombia were given the status of legal persons, and there was a recent attempt to extend these rights to the Colorado River in the USA. Understanding the implications of creating legal rights for rivers is an urgent challenge for both water resource management and environmental law. Giving rivers legal rights means the law can see rivers as legal persons, thus creating new legal rights which can then be enforced. When rivers are legally people, does that encourage collaboration and partnership between humans and rivers, or establish rivers as another competitor for scarce resources?
To assess what it means to give rivers legal rights and legal personality, this book examines the form and function of environmental water managers (EWMs). These organisations have legal personality, and have been active in water resource management for over two decades. EWMs operate by acquiring water rights from irrigators in rivers where there is insufficient water to maintain ecological health. EWMs can compete with farmers for access to water, but they can also strengthen collaboration between traditionally divergent users of the aquatic environment, such as environmentalists, recreational fishers, hunters, farmers, and hydropower. This book explores how EWMs use the opportunities created by giving nature legal rights, such as the ability to participate in markets, enter contracts, hold property, and enforce those rights in court. However, examination of the EWMs unearths a crucial and unexpected paradox: giving legal rights to nature may increase its legal power, but in doing so it can weaken community support for protecting the environment in the first place. The book develops a new conceptual framework to identify the multiple constructions of the environment in law, and how these constructions can interact to generate these unexpected outcomes. It explores EWMs in the USA and Australia as examples, and assesses the implications of creating legal rights for rivers for water governance. Lessons from the EWMs, as well as early lessons from the new ‘river persons,’ show how to use the law to improve river protection and how to begin to mitigate the problems of the paradox.
Table of Contents
2. Constructing the environment in law: making it count
3. Environmental Water Managers: examples of indirect legal personhood for rivers
4. Just another user: environmental water managers in Australia
5. Partnership as success: the EWMs of the Western USA
6. Competing narratives and the paradox of the EWMs
7. Rivers as legal persons: competition and collaboration
8. Legal rights for rivers: a cause for celebration or concern?
Erin O'Donnell is a Senior Fellow and sessional lecturer at the University of Melbourne Law School, Australia. She is also an independent consultant on water markets to the World Bank and has worked on water governance in the public and private sectors for more than 15 years.
"Rivers, wetlands and floodplains are under dire threat across the globe. And with their decline and loss so go the, often, unique plant and animal species that depend on them. In Australia's largest river basin, the Murray-Darling, those threats are being tackled through a new model of environmental watering that deals with the Basin as a single connected system irrespective of jurisdictional boundaries. Erin O'Donnell's insightful and comprehensive examination of the implications of creating legal rights for rivers is a fundamental contribution to answering the question of 'what next'? For those of us committed to seeing healthy rivers surviving in highly modified landscapes where water is fought over, her analysis and arguments serve as a powerful stepping stone to the development of a truly robust and collaborative management approach that is underpinned by the legal rights of rivers." - David Papps, Commonwealth Environmental Water Holder from 2012-2018, Australia
"O'Donnell's book is a fantastic piece of scholarship that helps frame the evolving legal context that humans have developed for the natural environment. In particular, its treatment of the implications emerging from according legal personality to water bodies offers invaluable insight into how we value freshwater and other natural resources, and how we seek to protect them for ourselves, our children, and the environment. This work is a vital contribution to the literature on water law and the law of nature, and its analysis will likely serve as a foundation for the further development of these legal areas." - Gabriel Eckstein, Professor of Law, Texas A&M University, USA
"Erin O’Donnell’s thought-provoking book explores a new frontier in environmental law, asking whether recognizing the legal rights of rivers will strengthen, or paradoxically weaken, protection for these vital veins of water and life." - David R. Boyd, UN Special Rapporteur on human rights and the environment and Associate Professor of Law, Policy, and Sustainability, University of British Columbia, Canada