#396      36 min 57 sec
Rivers as persons: What it means to give legal rights to nature

Environmental law researcher Erin O'Donnell and economist Julia Talbot-Jones explain what's behind recent moves to give legal personhood to rivers in India, New Zealand and elsewhere. With philosophical roots going back decades, new legal and legislative developments granting personhood to nature seek both to recognise indigenous or religious claims as well as provide new avenues for environmental protection. But what does this mean, and how will giving rights to nature be enforced? Can rivers now bring lawsuits, and can we, in turn, sue them? Presented by Lynne Haultain.

"Legal standing makes it easier to run cases that are more about the direct environmental impacts that nature experiences." -- Erin O'Donnell




Erin O'Donnell
Erin O'Donnell

Erin O'Donnell is an environmental water law and policy specialist. She has worked in environmental planning and management and water governance since 2002, in both the private and public sectors. Erin has recently submitted her PhD thesis, and her research examines what happens when the environment is constructed in law as a legal person. Erin’s research focus is the challenge of providing sufficient water for the environment within the context of transferable water rights and water markets, and is informed by comparative analysis across Australia, New Zealand, the USA and Chile. Erin’s work explores how environmental water organizations construct the aquatic environment as a legal subject, with responsibility to hold and manage water rights on behalf of the environment. Her research findings show how extending legal rights to nature can re-define humanity’s relationship to the environment. Erin is a Senior Fellow at the Centre for Resources, Energy and Environment Law at the Melbourne Law School.

More on Erin’s work can be found at her blog, Lines On The Water.

Julia Talbot-Jones
Julia Talbot-Jones

Julia Talbot-Jones has just completed a PhD in economics at the Crawford School of Public Policy, the Australian National University. She has an interest in how social arrangements or structures, what economists call institutions, solve environmental and natural resource problems. Her PhD research examined how granting legal rights to public goods and common pool resources may affect the use of resources, particularly water systems. A former NZ-US Fulbright scholar, her work bridges economics, ecology, and resource management. Julia is the Managing Editor of UNESCO Global Water Forum.

Credits

Host: Lynne Haultain
Producer: Eric van Bemmel
Audio Engineer: Gavin Nebauer
Voiceover: Louise Bennet
Series Creators: Kelvin Param and Eric van Bemmel

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VOICEOVER
This is Up Close, the research talk show from the University of Melbourne, Australia.

LYNNE HAULTAIN
Hi, I’m Lynne Haultain. Welcome to Up Close. In a time when the environmental impact of human activity becomes clearer there have been some fascinating legal developments recently which give natural phenomena legal rights. So how do you give legal status to things rather than people?  How are those rights enforced and what does it mean? There’s a trajectory here which dates back to the environmental law theory of the 1970s, regarded at the time as more philosophical than practical, but which would seem now to be coming in from the fringes into mainstream thinking. Giving legal rights to a river, for example, is not without controversy, but in the space of a month this happened twice in very different circumstances in different parts of the world.

The Whanganui River in New Zealand was given legal status in March 2017, as were the Ganges and Yamuna River systems in India. Extraordinary developments which happened in quite distinct ways, but intending similar outcomes, to give the health and the interests of the rivers a legitimate voice in debate about use, exploitation, and future development. These examples have been brought together by two academics, Erin O’Donnell, Senior Fellow at the Melbourne University Law School where she’s an environmental water law and policy specialist, and Julia Talbot-Jones, working at the Australian National University’s Crawford School of Public Policy on a PhD in resources, environment, and development.

Welcome to you both.

JULIA TALBOT-JONES
It’s good to be here.

ERIN O’DONNELL
Thanks.

LYNNE HAULTAIN
Well, tell us briefly what happened in March 2017 in New Zealand and in India. Julia?

JULIA TALBOT-JONES
So in March 2017 working on eight years of negotiation an act was passed that granted the Whanganui River in New Zealand’s North Island legal standing. So this means that now, in law, it is to be recognised as a person.

LYNNE HAULTAIN
As a person.

JULIA TALBOT-JONES   
As a person. It’s a really exciting development, both in New Zealand and internationally, and set a precedent for what would take place in India just a few days later.

LYNNE HAULTAIN
So flipping to Erin now for the Indian update, what happened in India?

ERIN O’DONNELL
So this was again another really exciting development. So there were two rulings. The High Court of Uttarakhand in India, which is a state-based high court, ruled twice to confer legal personhood status on both the Ganges and Yamuna Rivers as well as a number of glaciers, parts of the Himalayas, and many of the natural objects in the State of Uttarakhand.

LYNNE HAULTAIN
Does that expand beyond the territory of Uttarakhand?

ERIN O’DONNELL
In the short answer, no, because the ability of the state-based high court to make law that extends beyond India certainly will be limited. However, when you create these kinds of legal rights then you can empower the organisations that have been tasked with representing these rivers and other natural objects with the power to go beyond the borders of the country. So it does have the capacity to extend into some of the diplomatic and international relationships.

LYNNE HAULTAIN
We’ll get to that later, but let’s talk a bit about the context here, the legal context, because this goes back, as I mentioned, to the '70s. Christopher Stone is the name that many are familiar with. He was a Californian academic and he wrote a very provocative article in 1972 called Should Trees Have Standing? which put the case that nature should be able to seek some kind of legal redress on its own behalf and therefore have legal standing. But why does nature need legal standing, Erin?

ERIN O’DONNELL
This is a really difficult question, I think, and it’s one of the reasons why development in this area has been such a slow-moving idea. To give nature standing, I think we need to understand what legal rights we’re actually talking about. There are three distinct legal rights that are involved in legal person status. So the first of these is legal standing, which is the ability to go to court. What that means for nature is that it has the capacity now to say, these are the effects that the natural object has experienced. Whereas before we would have had to rely on those effects actually impacting human beings. So where this becomes really powerful are things around species extinction, for example.

So if you’re trying to mount an argument that the loss of a particular species, particularly if it’s not a very charismatic one, can only be defended based on its impact on human beings then it very quickly leads to a very convoluted legal argument. Whereas if you can run that argument from the perspective of the species itself, it’s very clear that the species has an interest in its continued right to exist. So legal standing makes it easier to run cases that are more about the direct environmental impacts that nature experiences. The other two legal rights are more procedural and so they’re really about the right to enter and enforce contracts and the ability to own property. So one of the things that is really important to remember in this discussion is that, although we’re talking about these natural objects being given legal rights and being considered in law the same as a person, this is not the same as human rights. One of the challenges is just being very clear about what we mean when we give nature legal rights, but it’s not necessarily saying that nature is now the same as a human person.

LYNNE HAULTAIN
There’s some interesting dynamics to that and one of them, I think, emerges from the other examples where nature has been given rights. I’m thinking particularly in South America, Bolivia and Ecuador and some of those instances where it sounds as if they’re talking about Mother Nature. There is a humanity to the way in which these rights are described, which is perhaps why we get confused between the legal rights and the human rights.

ERIN O’DONNELL
I think you’re right in the sense that it is difficult for people to get their heads around what this actually means and so there’s often that conflation of we value nature because we resonate with something in it that we sort of see reflected in the humanity that we value in ourselves.

LYNNE HAULTAIN
So the anthropomorphic approach of humanising something.

ERIN O’DONNELL
Yes. Yes, and that can be a really powerful tool and it’s one that the two cases in India really blur the line between the legal person and the human person and the moral person. Even esteemed judges blur that line between legal rights and human rights. But I think one of the strengths of this particular movement, the legal rights for nature movement, is that it has been trying to articulate the different kinds of rights that it would make sense for natural objects to have, and they are different to human rights. We’re not envisaging a scenario where a tree could sue an insect for eating its leaves, whereas obviously humans have those kinds of inter-human rights. We’re more about saying, how can we empower this natural object to protect itself within the law?

LYNNE HAULTAIN
So would it be - to use the tree example - an opportunity for a tree or a forest to have a voice in a legal framework against its deforestation, against being cut down, for example?

ERIN O’DONNELL
Yes, that’s very much what the legal right for nature is intended to achieve.

LYNNE HAULTAIN
So it’s really nature against humans.

ERIN O’DONNELL
That can be a frame and I think that is one of the really challenging outcomes that creating legal rights in this way can do and it’s one of the reasons why creating legal rights for nature is very controversial, because there is this sense that rights only matter in adversarial contexts. So they only matter when somebody’s trying to take them away, or doing something that you can push back on. When nature comes up against humans in that way then that can create very fraught circumstances.

LYNNE HAULTAIN
You’re listening to Up Close and today we’re talking about legal rights for rivers. How do you do that and where does it take us? My guests are Erin O’Donnell from the University of Melbourne and Julia Talbot-Jones from the Australian National University, joint authors of a new paper looking at recent decisions. Julia, Te Awa Tupua - I think I’ve got that right - the Whanganui River Claims Settlement Act of 2017 - you mentioned it a little bit earlier - but is it intended to in some way address that confusion between human rights and legal rights? Does it address that in a clean way in the New Zealand context?

JULIA TALBOT-JONES   
So in the New Zealand context the motivation for this development has been trying to approximate the local Maori, the local indigenous group’s world view in Western law. It’s a way of acknowledging the life force, or what is called the Maori of the river, and to acknowledge that to the local indigenous people. This river is an ancestor. It’s something with a force, with a spirit. The existing legislative frameworks weren’t able to acknowledge this. The motivation in this case is less about trying to articulate a difference between human rights and legal rights and it’s more about just recognising the spirituality or the importance of this river from a different world view.

LYNNE HAULTAIN
It really does stretch legal thinking in a very traditional way, but one which is not so familiar to the Western constructs, doesn’t it?

JULIA TALBOT-JONES   
So that’s what’s really interesting, I think, about this legislative development in New Zealand is they take a common legal tool, this idea of legal rights for non-human entities, and they apply it to a river. They massage it into a form that allows a different way of thinking to be captured within a pragmatic framework.

LYNNE HAULTAIN
But still it is the human engagement with that river that is driving the need for rights, isn’t it? It’s about the fact that the Maori people of that region regard it as an ancestor and it is that relationship that then is reflected in the law, rather than it having its own distinct status. Is that fair?

JULIA TALBOT-JONES   
I think in some ways you’ve hit the nail on the head. In other ways it’s slightly different. One of the central concepts of this legislation is acknowledging the relationship. So the relationship the local Maori have with this river, recognising its importance, but then at the same time it’s also about recognising the individuality of this river. The fact that it is powerful in itself, that’s something that in the existing legislative tools that we’ve used traditionally in New Zealand we haven’t been able to capture very well.

LYNNE HAULTAIN
Let’s look more closely at the Ganges/Yamuna case, Erin, because this one is different. The High Court in India described the Rivers Ganga and Yamuna, all their tributaries, streams, every natural water flowing with flow continuously or intermittently - it’s quite glorious language - giving it corresponding rights, duties, and liabilities of a living person. Their reasoning was that the rivers were sacred and revered and central to the existence of half the Indian population. So once again there’s an indigenous or a cultural driver here it seems.

ERIN O’DONNELL
Yes, the court relied very strongly on the idea that the rivers are sacred entities and they used a particular line of legal reasoning that had suggested you could imbue a sacred entity with a legal person status to support their extension of legal personhood to the rivers. I think it’s problematic on a couple of levels. I think (1) yes, Hindus may well be half of the population of India, but half of the population is non-Hindu and there has been a push back against these cases that has said, well, how does that fit with the rest of the Indian population’s belief? Are you sidelining their beliefs? Are you sidelining their relationship to the river merely because it doesn’t play the same sacred role as it does for Hindus? That is a particular problem that is playing out in India right now.

LYNNE HAULTAIN
But on the other hand, in New Zealand the fact that non-Maori may not have the same relationship with the Whanganui River has not resulted in any push back about whether or not its status as an ancestor is contested?

JULIA TALBOT-JONES
No, and I think that’s one of the really interesting things that have come out of this Whanganui River case and also a national park in New Zealand, Te Urewera National Park, which is the largest park in the North Island, was also granted legal standing or personhood in 2014. That went through with barely a ripple. There were certainly questions asked around, what does this mean? How do you give a natural object legal standing? Many of the questions we’ve been talking about today. But in terms of the public announcing a strong position against this development, there’s very little. I think part of that is that there’s a growing recognition in New Zealand around the importance of biculturalism and changing world views, and the fact that people don’t always look at the world through the same lens that you or I might do.

LYNNE HAULTAIN
And that that’s okay.

JULIA TALBOT-JONES
And that’s okay. Like, I think New Zealand still has a long way to go and even now people would say, we haven’t gone far enough, but I think this is a really interesting case. If you look through the Hansard reports of the readings of the bill, it is unanimously positive.

LYNNE HAULTAIN
In India has there been, Erin?

ERIN O’DONNELL
Yeah, there’s been a number of different responses in the Indian press, mainly about, my goodness, look at this exciting development, because it seemed to come out of nowhere. As people start to translate what it means and the particular emphasis that’s been placed on the Hindu belief system, there has been some push back. I think one of the things that differentiates the approaches used in New Zealand and India is the way that they have encompassed that multiculturalism. In New Zealand, for instance, the guardian for the river has an appointee from the New Zealand Government and one from the local Maori. I feel like that has really shaped the way that they have gone forward with this legislation to embed both of those perspectives from the outset. I think this is partly due to the nature of the Indian examples as legal cases and judicial rulings, they had to find a line of legal argument that would enable them to create these rights, and in doing so I think they’ve possibly emphasised the construction of the argument maybe over multiculturalism and the importance of bringing together people to support the actual final outcome.

LYNNE HAULTAIN
Guardianship is an interesting word, because in the Indian cases they’ve given the rivers the status of minors. It’s inviting humans to be the guardians, if you like, of the interests of the river systems. Is that how it was constructed?

ERIN O’DONNELL
Yes. So I think it’s always going to be a challenge when you create legal rights for nature, in that you will always need to nominate someone to literally speak for nature. It will not be able to do that by itself. So the courts in India came up with a solution to that which was to construct the rivers and the glaciers and parts of the Himalayas as legal minors and then to nominate particular individuals within the Indian government, in the State of Uttarakhand Government, to speak on their behalf.

LYNNE HAULTAIN
The other difference that is really clear from the descriptions that both of you have given is that one was a judicial creation, if you like, came out of the courts, and the other was a legislative one. Erin, what difference does that make, do you think? How does that differentiate the rights or the enforceability?

ERIN O’DONNELL
There are some really big differences that immediately come to mind. So one is the speed of the change. So these cases in India - the second case stemmed very much from the first case, but they both happened within 10 days and there wasn’t much of a sense that they were coming. Certainly the academic world and the popular media was like, this seems to have come out of nowhere. In terms of being able to reflect, or even create, understanding and support in the population a judicial case is always going to be much faster, but possibly much less well understood and much less supported. So in contrast to the New Zealand situation, the legislation had been in development for many years, there had been a lot of work around developing the support and what the actual mechanism would look like.

The other thing that I think is really important is that the powers of the court are fairly limited in terms of what they can create on behalf of the river. So they created these legal rights, they nominated particular individuals within government to speak for the river, but they didn’t have the power to provide any funding or to create any new organisations. So really now the enforcement of the legal rights for the Ganges and Yamuna Rivers is going to depend on those individuals being held to account. So there might be later court cases. We don’t really know.

JULIA TALBOT-JONES   
I think Erin’s made two really important distinctions that come to the crux of the challenges that are going to be associated with force and effect in the two cases. In the New Zealand case there is a really broad framework that’s designed to support and uphold these new rights. They’d been working on it for over eight years and there was conflict over ownership of the river that had been ongoing since 1873. So there was a longstanding conversation around ownership and what this river meant. It meant that people were more prepared, I think, for this change. I think when you have it going through a legislative process, rather than a judicial process, those that are making the rules around the broader framework have perhaps a responsibility to society as a whole in their vision. Whereas I think sometimes the jurisdiction of the judiciary can be slightly more restricted or constrained. So I think that will influence the outcomes that arise in the two cases.

LYNNE HAULTAIN
So, Erin, is it possible that this is just an extraordinary novel legal moment which just fizzes out?

ERIN O’DONNELL
Look, it is possible. It’s always difficult to know how these things are actually doing to play out. The things that give me optimism about the longevity of this particular idea is that it feels like it’s been coming for a long time. So the legal rights for nature movement has been building momentum really since the '70s. I think the examples of Ecuador and Bolivia and the legal rights that they created for nature haven’t gone away and there have been some successful legal cases in Ecuador particularly. Again, they’ve struggled with enforcement, but they haven’t undone those legal creations. I think the case of the Whanganui in New Zealand really does give me optimism, because it’s building on an existing tradition with Te Urewera. It’s embedded in the legislation. It’s got a management framework. It’s got funding. I think that is much less contingent on the whims of court cases. I think the Indian situation will be really interesting to see what unfolds, but there has also been another river in Colombia in the last few weeks that has also received legal rights in a constitutional case. They explicitly cited the New Zealand examples and so it feels like this is an idea whose time has come and I don’t think it’s going to go away.

LYNNE HAULTAIN
Today on Up Close we’re in conversation with Julia Talbot-Jones and Erin O’Donnell, talking about the rights of rivers and the development of legal rights for nature over the last 40-odd years or so. Erin, you were involved with the development of the Victorian Environmental Water Holder, which is another interesting sort of legal entity. It was established in 2010 in the state of Victoria in Australia after a 10-year drought, so that’s the backdrop against which this legal construct came into being. As I understand it, it’s a statutory corporation, so it has legal standing in the normal terms of corporation for property and contract and the capacity to sue and be sued. So where does it sit on the spectrum? I mean, if at one end we have the Indian case, which is sacred, revered, and would seem to be a very bold and perhaps a very broad understanding of the rights of rivers, and the New Zealand example, which is perhaps more measured and certainly more integrated with current institutions, where’s the Victorian Environmental Water Holder?

ERIN O’DONNELL
So in many ways I think the Victorian Environmental Water Holder is legal rights for nature by stealth. So - and I was involved in creating it - it was a way of reflecting the right of the environment to receive water. So the Environmental Water Holder was created to hold and manage legal rights to water for the rivers of Victoria and it was done really specifically to increase the efficiency of managing that environmental water. So in Australia we’ve had since 2007 a prolonged period of water recovery for the environment at a commonwealth level. The state programs have been going on for longer in various ways. The commonwealth program has recovered really quite unprecedented volumes of water for the environment.

At that time, in 2008 to 2010, there was a real increasing awareness that we had increasing volumes of environmental water and we needed an independent organisation that could make decisions and manage that water effectively and efficiently. So that was really the stimulus for the Victorian Environmental Water Holder. On the spectrum of legal rights for nature it’s an indirect way of giving the environment legal rights. But the organisation does represent those aquatic ecosystems that depend on the water available under those legal rights. It’s a little attenuated, but still a really powerful way of embedding legal rights for nature within an existing framework.

LYNNE HAULTAIN
So what capacity has it had over the last sort of seven-odd years to influence outcomes in the interests of water?

ERIN O’DONNELL
Fairly significant in terms of the volumes of water that it’s responsible for.

LYNNE HAULTAIN
But can it claim that water, or does it just get what it’s given?

ERIN O’DONNELL
No, it can claim that water. So it has legal rights. It has the same type of rights as an irrigator. So every year it receives water under those rights in the same way that an irrigator does. If somebody was to take that water away from it, then it would pursue its legal rights in court or in other ways to get those back. So it owns those rights in the same way as any other user of water.

LYNNE HAULTAIN
So there are a number of ways in which these rights are being asserted to greater or lesser judicial or legislative measures. I’m finding it intriguing that it’s all about water, Julia. Why water?

JULIA TALBOT-JONES
It hasn’t been all about water. I think that’s important to remember. It started in Ecuador and Bolivia. Christopher Stone’s first article was about trees, Should Trees Have Standing? But I think why water is emerging onto the international stage with such ferocity right now is because I think there’s a growing global awareness about the pressures that our water resources are under. People are interested in trying to identify innovative ways or alternative ways in which we could think about managing these resources more efficiently, more effectively. What we’re seeing is traditional property rights or institutional structures haven’t uniformly delivered outcomes that are perhaps in both the environment and our best interests. So this is why I think now we’re starting to see an emergence of alternative mechanisms through which we can protect our water resources.

LYNNE HAULTAIN
I mean, water is fascinating in many, many respects, but it is also highly contested. So you have people using the water as a transport mechanism. It’s full of food. It is the space where people live. It’s home to perhaps threatened species. It’s also used as a power source through hydro. So there are all sorts of claims on water. In the Indian example, Erin, is there any understanding of how that stuff might get sorted out? Because certainly there are plans to create hydro systems in the Himalayas which may well have a bearing here.

ERIN O’DONNELL
Yeah, they definitely will have a bearing. One of the drivers for each of the two cases in Uttarakhand is the recognition of the potential impacts, both now and into the future from pollution and from those increasing water uses and it’s trying to give the river a voice in those policy discussions. It’s trying to say, well, if sustainability depends on respecting all of the interests in the river and in a healthy environment, then the river itself is one of those interests and so we need to include it in those policy debates.

LYNNE HAULTAIN
So once again does it come back round to the strength of the human custodian, the strength of that voice in articulating that interest?

ERIN O’DONNELL
Yes, I think it really does. This is where the comparison with something like the Victorian Environmental Water Holder can be very instructive, because one of the reasons why we created this independent entity was, prior to its creation, the environmental water rights were actually held by the minister. So in times of severe water scarcity it was politically extremely difficult for that minister to both be responsible for using that water for the environmental outcomes when, say, irrigators and rural towns were in fairly dire straits. So there was a push to have a whole of government solution, but there was also the need to respect the fact that that water had been allocated to the environment. So on one level that political decision had already been made. So independence and having the real world power to make your voice heard is crucial to being able to actually give these legal rights force and effect. 

LYNNE HAULTAIN
Can we take it elsewhere? I mean, you mentioned earlier threatened species, for example, in giving non-charismatic animals or creatures an opportunity to have their existence asserted. I mean, we give protection to animals, but, as far as I’m aware, we haven’t given them legal rights in the same sort of way as this. Is that another avenue down which this legal path could take?

ERIN O’DONNELL
Definitely. So there is a whole stream of animal rights advocates that are pushing for legal rights for animals and there have been a number of cases around the world where courts have been willing to countenance the idea that, say for example, the chimpanzee should not be locked up in a way that makes that chimpanzee deeply unhappy. So they have extended some of those legal ideas, but they have shied away from really significant big steps in acknowledging, say, the legal rights of an animal in the same way that we’ve now extended to rivers. So I think the animal rights movement will be looking at these cases very closely and seeing, can they be now a trigger for changing the way that we actually interact with individual animals and species?

LYNNE HAULTAIN
Then we get into all sorts of fascinating international, global, kind of diplomatic challenges, especially when it’s in the ocean.

ERIN O’DONNELL
Yes.

LYNNE HAULTAIN
That’s another whole conversation. Well, Julia, where does this take us, do you think? In terms of your understanding of these cases and this development, where to next?

JULIA TALBOT-JONES
Certainly it creates an interesting international precedent. In South America we saw that Ecuador created rights for nature and then Bolivia very quickly followed, both at the constitutional level. With these river examples we started with the Whanganui River. Very quickly we see the Ganges and Yamuna Rivers following suit and now we’ve seen this recent advance in Colombia as well. I think it’s interesting to see how many global eyes are watching these developments. In saying that, there is reason to have caution around proceeding with this without due process. When you grant power to an individual to make decisions over a river which may have broader effects on greater society the person that’s going to rule on that is a judge and a judge doesn’t necessarily - is not required to have the same level of oversight as a legislative body or some elected officials might have. So I think there is a real danger that in some cases you might see decisions that might benefit a river, but may have broader costs on greater society.

LYNNE HAULTAIN
So in terms of the tension then that this creates, because it perhaps adds another contestant in the mix, where will this take us, do you think, Erin?

ERIN O’DONNELL
Yeah, what does it mean when we create legal rights for nature? I think the idea of contested spaces, the competition that that sets up between different rights holders, so we now have humans and nature having legal rights that can be in opposition to each other, one of the things that happens very quickly is that people become aware of that. They become aware of that sense of competition over resources and, as Julia was talking about, that sort of decision space, and that can very quickly lead to a sense of fear. So you can see around the world as environmental rights increase there’s usually a backlash. So in the US with some of the Spotted Owl litigation from the 1990s they could trace through time the legal steps forward and the legal steps back, because the backlash would be so significant.

So for me that’s the biggest challenge with creating legal rights for nature is, how do you manage that fear reaction and that backlash, and so how do you mitigate that? I think it’s not a fait accompli. I think that if you acknowledge that this is what you’re doing you can manage it. You can give people comfort and a sense that their interests are still being taken into account, but you need to do that carefully and it does need to be a managed process. In lots of ways the judicial rulings, whilst they can be a significant step forward, very quickly can also give rise to perhaps greater backlash as people try to understand what it means and legislatures then try and claw back those legal rights into something that’s a bit more manageable.

LYNNE HAULTAIN
Everyone just becomes a little bit more defensive about, well, I’ve got another opposition to fend off here…

ERIN O’DONNELL
Yes.

LYNNE HAULTAIN
…and I’m going to circle the wagons.  Julia, did you have a further thought?

JULIA TALBOT-JONES
Yeah. One of the things that Erin and I touched on in an early article is the importance of force and effect. These legal rights for nature are only going to be effective if they can be upheld and for that to happen, not only do courts need to uphold these rights, but people need to recognise the duties and responsibilities that go along with such rights. I think there’s a potential for costs to increase quite significantly. Those people that can potentially only uphold those rights are those that have the monetary power to go to court. But I think the big thing is just associated with transaction costs and costs associated with going to court over these rights and ensuring that they can have force and effect.

LYNNE HAULTAIN
That’s another dimension which is critical here. Who has the deep enough pockets, both to assert these rights on behalf of nature and also to defend against them if that’s the standing you have?

JULIA TALBOT -JONES   
Just one final thing that I think is interesting to raise when it comes to the future of how this new development will be utilised is, given these examples that we’ve discussed today, what these cases show is the flexibility of this concept and how it can be integrated into different institutional structures. So in the Australia case you’re seeing the example of the Victorian Environmental Water Holder operating in a market based system. So you have market allocation with water rights and they’re using this sort of hybrid form of those rights for nature within this broader framework. In the New Zealand case you’ve moved from a kind of state ownership model to this new property rights structure, but you’re still integrating it with a framework around management that is quite distinct from the Australia case.

Then in the India case again you’re seeing another example where the judiciary’s been able to use this legal tool as a way to ideally increase protection for these great rivers. So I think that’s one of the really dynamic and interesting aspects of this development is how flexible it can be in terms of advancing the conversation about our relationship with water, hopefully moving forward our legal developments and our relationships with the environment as a whole.

ERIN O’DONNELL
Just to pick up on that, I think one of the reasons that we’ve seen this kind of significant uptake of the legal rights for nature concept is that we’ve been able to latch on to the difference between legal person and legal rights. So the Ecuador and Bolivian cases are very much about creating very broad legal rights for nature which then people have to figure out. What are we talking about? How do we enforce it? Whereas these more recent examples are very much about using the legal person as a way of encapsulating those specific rights and I think that makes it a lot more flexible, a lot easier, a lot more specific, and hopefully a lot more enforceable.

LYNNE HAULTAIN
It’s been a pleasure. Thank you both very much indeed.

ERIN O’DONNELL
Thank you.

JULIA TALBOT-JONES   
Thanks.

LYNNE HAULTAIN
I’ve been speaking with Erin O’Donnell and Julia Talbot-Jones on legal rights for nature. Erin is a Senior Fellow at Melbourne University Law School where she’s an environmental water law and policy specialist. Julia Talbot-Jones is working at the Crawford School of Public Policy at the Australian National University on a PhD in resources, environment, and development. They’re currently developing a paper on giving legal rights for nature, force and effect, lessons from India, New Zealand and Australia. A transcript of this program and all our others is available on the website.

By the way, if you like Up Close, you might want to check out another of our podcasts, Eavesdrop on Experts. This features stories of inspiration and insight in conversation with researchers and experts. Up Close is a production of the University of Melbourne, Australia, and this episode was recorded on 1 June 2017. It was produced by Eric van Bemmel with audio engineering by Gavin Nebauer. I’m Lynne Haultain. Thanks for listening and I hope you can join us again soon. 

VOICEOVER
You’ve been listening to Up Close. For more information visit upclose.unimelb.edu.au. You can also find us on Twitter and Facebook. Up Close is licensed under Creative Commons, copyright 2017, the University of Melbourne.


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