Literature Review

A landmark political decision recognising the legal personhood of a river provides insights into how legal pluralism may evolve and how relationships with non-human nature may be recognised into the future. The decision in respect of the Whanganui River in Aotearoa/New Zealand, although not a legal precedent, has resulted in a new and vital Māori/Pākehā legal arrangement, which, in addressing the injustices of the country's colonial history, may also address environmental challenges such as resource exploitation. Since colonisation in 1840, the Māori of the Whanganui River have been fighting to assert their rights in relation to the river. The 1840 Treaty of Waitangi, made between Māori chiefs and British colonisers as the basis of future governance in Aotearoa/New Zealand, was flawed due to differences between the Māori and English versions of the Treaty. Conflicting expectations regarding the constitution and administration of “law” emerged, as did incompatibilities between Māori and English ontologies, particularly involving interactions between humans and (non-human) nature. In 1975, a tribunal was established to resolve Māori grievances regarding application of the principles of the Waitangi Treaty. In 1999, the Tribunal settled Claim 167 (known as Wai 167, after the Tribunal), recognising Māori ownership of the Whanganui River. Subsequent negotiations resulted in declaration of the river's legal personhood; the enacting legislation was passed on 20 March 2017. An association of place-based law and the dominant legal system has been instigated. This paper explores how this less anthropocentric approach, in an era commonly called the “Anthropocene” due to the influence of humans on planet Earth, has a critical role to play in environmental management, particularly in relation to water.

This dissertation looks at how the Te Awa Tupua (TAT) proposal demonstrates the legal recognition of the Rights of Nature (RON) in NZ. The author discusses the historical and political context of the TAT proposal, how it fits within the RON perspective, what the concept of the RON is, and the extent of which the RON are being expressed in the NZ legal system through the TAT proposal.

An age-old conflict around a seemingly simple question has resurfaced: why do we conserve nature? Contention around this issue has come and gone many times, but in the past several years we believe that it has reappeared as an increasingly acrimonious debate between, in essence, those who argue that nature should be protected for its own sake (intrinsic value) and those who argue that we must also save nature to help ourselves (instrumental value).

The granting of rights to the Whanganui River in 2017 emerged as an outcome of Tribunal hearings relating to breaches of the Treaty of Waitangi, signed between Māori chiefs and the British Crown in 1840. As this expression of a river as having legal personhood with rights reflects a distinctively Māori perspective upon river systems, it offers the prospect for a new era of sociocultural approaches to river management in Aotearoa New Zealand. Using the Whanganui River as a case study, this paper explores prospective geomorphic meanings of river rights. The paper asks, “What role can geomorphology play in identifying, articulating and protecting the rights of a river?” Ancestral Māori relations to the river based upon mutual codependence (reciprocity) are juxtaposed against geomorphic understandings of a river's agency as expressed through self‐adjustment, diversity of form, evolution, and catchment‐ scale connectivities. Relations between river science and indigenous concepts of rivers, framed under the auspices of river rights, present opportunities for different approaches to river management.

This paper focuses on the High Court’s rulings and observations pertaining to Ganga. The first section discusses the High Court’s ruling in each case, and the material bases on which the High Court granted legal personality to Ganga.This is followed in the second section by a thorough examination of the reasoning employed in the judgments to argue that no effective personhood has been conferred on Ganga. The final section explores ways in which the shortcomings of the judgments may be rectified to confer meaningful legal personality on Ganga. To that end, this paper proposes to read the High Court judgments in light of the Supreme Court judgments that have recognised ecocentrism as a principle of Indian law, and attempts to locate the judgments within the broader context of a discursive change happening in environmental jurisprudence. Such a reading would allow for some of Ganga’s rights, like the right to life, to be recognised as being enforceable in a court of law. Christopher Stone’s framework is employed in this paper to unpack the implications of Ganga’s legal identity. Stone’s seminal work arguing for legal recognition of natural entities remains relevant to this day and has been used to examine the substance of legal personality of natural entities in other jurisdictions. The Ganga Bill, the text of which is still not publicly available, must take these developments on the rights of Ganga into account and incorporate the ecocentric gains that have been made in the jurisprudence on rights of natural entities. At the time of writing, what little is known of the Ganga Bill from the written reply to Parliament by the Minister for Water Resources does not inspire confidence that the Bill will be a pioneer in recognising rights of natural entities from an ecocentric perspective, despite the rise of the ecocentrism as a legal discourse in India. This paper hopes to draw together jurisprudential developments and thereby provide meaningful guidance to legislative efforts toward effective legal personhood for Ganga.

Natural entities have been conferred with rights in various jurisdictions. In a first, a High Court in India, the High Court of Uttarakhand too recognized natural entities as legal entities with Fundamental Rights under the Constitution of India in two judgements delivered in 2017. This paper analyses the judgements in light of the existing environmental law regime in India and how it contributes to this regime. It is concluded that the Court’s reasoning reflects an approach that may be called ‘legal equality for nature’, an approach to treat the legal claims of the natural environment at par with legal claims of other entities. Such an approach has three defining features. It confers legal standing on natural entities, it views nature as a living entity and an equal holder of rights. The judgements however, do not provide guidance on the legal content and application of the new rights conferred or how they will interact with various statutes and administrative regulations that cover the field of environment law in India today. In the absence of such a framework this article examines the contributions of the judgements and the meaning of ‘legal equality for nature’ that may be developed by the Supreme Court when it hears the case for its final judgement.

In litigations concerning the protection of ecosystems, Indian judicial decisions appear to be shifting from anthropocentrism to eco-centrism. This essay argues that though the Courts seem to have a greater appreciation of eco-centrism, anthropocentrism runs deep into their seemingly ‘eco-centric’ decisions. It challenges the adequacy of the eco-centric understanding reflected in therein, through a critical reading of Courts’ quintessentially eco-centric judgements. It further argues that if a tangible shift to eco-centrism is desired, the Courts must revisit their understanding of Nature. Feminist posthumanism may serve as an effective lens to accomplish this. Drawing upon Astrida Neimanis’ application of feminist posthumanism, the essay rebuilds the understanding of non-human environment as a vivacious, expansive, and an intrinsically valuable entity with an independent will and agency, subsequently problematizing our anthropocentric hierarchies. Accordingly, the essay suggests, that if feminist posthumanism is injected into judicial decision-making, it could overhaul the deep-rooted anthropocentrism, and prompt a tangible shift towards ecocentrism.

In the year 2017, the Indian rivers Ganga and Yamuna were granted rights equivalent to a 'legal person'. This is part of a series of legal or judicial pronouncements; rivers in some parts of the world have been given rights equivalent to those given to humans. But what does it mean for a river to have rights? How would such rights be implemented? What implications do these decisions (with specific focus on India) have for not just the rivers and those living in/on/along them, but for the relationship between humans and the rest of nature? These questions are addressed, indicating some resolutions as also the issues that need to be addressed in order to find the answers.

In 2019, Bangladesh joined the ever-growing list of countries to recognize rivers as living entities with legal rights. The Bangladesh Rivers case is another example of advocacy from the Supreme Court in Bangladesh, and the article explores the relationship between the executive and the judiciary, and the ongoing role the judiciary has played in water law reform. The Court based its decision on a novel reading of the Constitution, linking the legal rights of the rivers to the public trust doctrine and the human right to a healthy environment. This foundation is itself potentially controversial, and the new legal status of the rivers may set their interests against those of the people who live along and rely upon them. By making comparisons between this case and similar decisions in India and Colombia, the Bangladesh Rivers case can be seen as part of the transnational movement to grant legal rights to rivers.

A study of the rights regime for environmental protection in India indicates that such protections overlap with constitutional rights guaranteed primarily to citizens or persons under the law. Contemporary jurisprudence has aggressively developed this intersectionality, declaring natural entities to be living persons with fundamental rights analogous to those of human beings. This article explores the role played by two judgments delivered by the Uttarakhand High Court – Mohammed Salim v. State of Uttarakhand and Lalit Miglani v. State of Uttarakhand – in the establishment of an effective framework for environmental protection. This is effectuated in both cases by assigning legal personality to rivers and articulating a conceptual shift from the human-centric approach. Accounting for the socio-cultural and spiritual relationships that have received legal protection, this article critically analyzes the judgments, their rationale and contributions to environmental protection. As the judgments articulate a paradigm shift in environmental protection, their effectiveness is best assessed through analyzing the frameworks created for their implementation. While the pronouncement of the Indian courts on the legal personality of rivers is an encouraging paradigm shift in environmental commitment, establishing the rights of nature was undertaken without due attention to the complexities that characterize the Indian socio-politico-religious context and to the legal consequences of bestowing vaguely contoured rights upon natural entities.

Recognition of the right to the environment as a human right in several jurisdictions revolutionised the approach towards environmental protection. Nevertheless, the right to the environment has an anthropogenic dimension, and this recognition could not mitigate the environmental crisis faced by the planet. In response to this increasing ecological crisis, the concept of recognising the rights to nature evolved. The Indian judiciary propounded the river Ganges and Yamuna; Glaciers, Gangotri, and Yamunotri as legal personalities and granted them the rights commensurate with that of a human being. This trend gained attention in Bangladesh, which gave all its rivers rights and legal personhood in 2019. Though the decisions followed the more prominent global trend, these decisions differ from the worldwide movement and their decisions in the articulation of rights and implementation. This paper critically evaluates the legal developments in the rights to nature jurisprudence in India and Bangladesh, focusing on the right to rivers. A critical understanding of the judicial developments is essential in analysing the potential of giving the rights of rivers in improving environmental protection strategies. Considering the impact of these judgments in the transboundary context, the paper looks into the impacts and implications of this recognition on transboundary river governance in India and Bangladesh. The article articulates an eco-centric approach as the starting point for evolving a global perspective in recognising the rights of rivers.

Despite the growing prominence and use of Rights of Nature (RoN), doubts remain as to their tangible effect on environmental protection efforts. By analyzing two initiatives in post-colonial societies, we argue that they do influence the creation of institutionalized bridges between differing land-ownership regimes. Applying the methodology of inter-legality, we examine the Ecuadorian Constitution of 2008 and the Ugandan National Environment Act 2019. We identify five normative spheres that influence land-ownership regimes. We find that the established Ecuadorian RoN have an institutionalized effect on the nation's legal system. Their more recently established Ugandan counterpart shows potential to develop in the same direction.