On 20 March a community rally on the Margaret river south of Perth called for the river to be recognised as a legal entity with the local council as its custodian. Under the banner “Is it time to give our river rights?”, more than 100 people discussed ways of protecting the river, prompted by plans for a mountain-bike and walking track along the foreshore. A river advocate, Ray Swarts, says a rights-of-nature approach has majority support in the council.
The emerging international rights-of-nature movement aims to address the way western legal systems treat nature as property, making the living world invisible to the law. It uses western legal constructs, such as personhood and rights-based approaches, to shift the status of nature from property to a subject in law in an effort to protect the natural world.
This new approach to environmental law was introduced in the US by the Community Environmental Legal Defense Fund, whose first success came in 2006 when it helped to defend a Pennsylvania community’s right to reject sludge being dumped in their borough.
In just over a decade the rights-of-nature movement has grown from one law adopted in a small community in the US to a movement which has seen countries enact laws, even constitutional protections, recognising the rights of nature, says the fund’s co-founder, Margi Margil.
In 2008 Ecuador became the first country to enshrine the rights of nature in its constitution. Margil helped draft the legislation and says that during the process: “Indigenous members of Ecuador’s constitutional assembly told us that codifying the rights of nature would expand their collective rights as Indigenous peoples.”
New Zealand granted legal personhood to the Te Uruwera forest in 2014, and to the Whanganui river and Mount Taranaki in 2017. An Indian court granted legal personhood to the Ganges and Yamuna rivers in 2017, citing the Whanganui Act, and soon after Colombia awarded rights to the Atrato river.
‘We love our river.’ The community rally on the Margaret river on 20 March. Photograph: Ben Parker
In a significant shift, in an August 2017 report on Australia’s national environmental governance system, the Australian panel of experts on environmental law recommended exploring legal frameworks that shift the focus of law from human subjects to a “rights of nature” approach.
Traditional owners along the Kimberley’s Fitzroy river are also looking at ways to create legal personhood for their river. Their 2016 Fitzroy river declaration recognises the river as a living ancestral being with a right to life, and includes traditional owners’ obligation to protect the river for current and future generations. A traditional custodian and scientist, Dr Anne Poelina, says it’s “the first time in Australia that both first law and the inherent rights of nature have been explicitly recognised in a negotiated instrument”. This month community members urged the new Labor state government to uphold their pre-election commitment to the declaration.
Rights for nature were first proposed by Christopher Stone in his 1972 article “Should trees have standing?” and were famously endorsed by Justice William O Douglas’s dissenting judgment in Sierra Club v Morton, in which he argued that trees should be granted personhood and have the ability to sue for their own protection, effectively blocking the development of Walt Disney ski resort inside the Sequoia national park. Stone argued that leaving behind the enlightenment view of nature as a collection of “useful senseless objects” would not only help to solve the planet’s material problems but would encourage a heightened awareness of nature.
“Any system that puts no value on the life around us is wrong, it’s as simple as that,” says Dr Michelle Maloney, who co-founded the Australian Earth Laws Alliance in 2012 to promote rights-of-nature law in Australia. She says rights of nature is inspired and led by Indigenous traditions of Earth-centred law and culture, but it’s also “whitefellas talking back to the white system”.
“It’s looking back to the western legal governance system and going, ‘What kind of culture develops the systems we have now that created such devastation? Can rights of nature be a bridge into a different, Earth-centred way of being?’”
It was Maloney who introduced rights-of-nature thinking to the Margaret river. She says the alliance’s recommendation that rights of nature be explored in Australia is “huge for the legal community here”. She’s now working with communities along the Great Barrier Reef and this month addressed a gathering in Katoomba about rights of nature for the Blue Mountains.
Maloney says it’s powerful “because it can capture your imagination and encourage you to think differently. To all non-lawyers, it seems logical.” Ray Swarts concurs: “I think rights-of-nature law helps us personalise and reframe our relationship with nature. It puts it in a different context and starts to tell a story.”
Stories were vital in developing Australia’s first legislation with a rights-of-nature component, the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017. The act affirms the river’s intrinsic and human values, and recognises the river and lands as a living and integrated system.
In doing so it acknowledges the wisdom of its traditional owners, the Wurundjeri people, who introduced the bill into the Victorian parliamentwith the planning minister, Richard Wynne, last June. Wynne said the legislation was part of a broader movement in government to recognise Aboriginal rights to land.
More than 100 people at the river rally discussed ways to protect it. Photograph: Ben Parker
In her address to the parliament, the Wurundjeri elder Alice Kolasa said: “The state now recognises something that we, as the First People have always known, that the Birrarung is one integrated living entity.” She said the journey to this structural inclusion began from the moment of first contact.
The act recognises “the intrinsic connection of the traditional owners to the Yarra river and its country” and their role “as the custodians of the land and waterway which they call Birrarung”. It includes their Woi-wurrung language, making it the first legislation in Victoria to use the language of traditional owners. Its title contains the Woi-wurrung for “Keep the Birrarung alive” and its preamble includes a statement in Woi-wurrung about the Birrarung’s significance.
Conceiving the Yarra river and its lands as a single system is critical for its ecological health. In 2004 the Yarra Riverkeeper Association was formed to tell the river’s story and monitor its health. Before the 2014 state election it proposed a policy to protect the Yarra with consistent planning laws along the river. The then opposition Labor party committed to the plan and won the election.
A Yarra riverkeeper, Andrew Kelly, worked with a lawyer, Bruce Lindsay, from Environmental Justice Australia, to keep Labor to its promise and help develop the Yarra river protection act, with extensive community consultation. Lindsay saw it as a good opportunity for law reform, especially concerning water.
Kelly says the plan surfed a wave of enthusiasm: “It was a really fortunate conjunction of the stars that allowed this to happen.” The long-term Yarra strategic plan was critical for Kelly and Lindsay: “We didn’t want to plan for five years. We wanted to plan for 50 years. That’s what you’ve got to start thinking about when you’re dealing with ecological units, landscapes.”
Some people think the act is about the water, Kelly says. “But it’s really more about the banks. It’s as much about the birds as it is about the fish. It’s about connecting the length of the waterway and the riverine corridor.”
Lindsay hopes the act’s powerful bicultural element will lead to a bicultural understanding of the river. A water lawyer, Erin O’Donnell, also stresses its importance as a piece of bilingual legislation. She emphasises the symbolic value of creating an inclusive Birrarung council that has the power to genuinely provide a voice for the Yarra river. “If through the Birrarung council First Nations and all Yarra river stakeholders can come together, this could be a powerful model for the rest of Australia … It can be used as a genuine move towards reconciliation. It’s a pathway to legitimacy for holistic views of the river and acknowledgment of First Nations.”
From the Fitzroy river, Poelina says she’s inspired by the Yarra river protection act and fully endorses “the Yarra river’s right to life as a legal precedent for new laws to protect our Australian rivers which are the arteries of our nation. As my elders constantly remind me: no river, no people, no life!”