Literature Review

This article outlines the Yarra River Protection Act and the establishment of a statutory independent voice for the Yarra River, the Birrarung Council, in light of the historical legislative neglect of indigenous water management rights in the Australian state of Victoria. It then seeks to clarify the distinction between the Yarra River’s independent voice and the granting of legal personhood to the Whanganui River in Aotearoa New Zealand’s Te Awa Tupua Act. It concludes that the grant of legal personhood to a river, represented by a river guardian, will not necessarily meet the river management aspirations of Victoria’s Indigenous people.

This chapter describes a novel legal development in Aotearoa New Zealand, co-written by a Māori-Pākehāand Pākehā (NZ European) author team. We recognise at the outset that this story primarily belongs to the peoples of Ngai Tū hoe and Whanganui Iwi. This is our attempt to contribute in a purely legal sense the significance in law of what these Iwi (Mā ori tribal federations) have achieved for the nation.

In 2014, New Zealand’s Te Urewera Act was adopted, recognizing the forest Te Urewera as a legal person with rights. This law emerged from treaty settlement negotiations resolving historical Treaty of Waitangi claims of the Tūhoe Iwi (tribe) in relation to Te Urewera, their homeland. The Te Urewera Act gained international recognition for its provision that recognizes the forest as a legal person with “all the rights, powers, duties, and liabilities of a legal person” [s 11(1)]. It also recognizes the Tūhoe view of Te Urewera as a living, spiritual being with its own mana (spiritual authority) and mauri (life force) [s 3(2)]. The Act also requires guardians to be appointed and obliges them to represent the forest in both legal and policy arenas. These guardians are embedded in a new governance system charged with managing the ecosystem in a way that ensures the forest’s health and well-being. This gives the ecosystem a voice in decision-making processes regarding governance in the ecosystem, allowing rights of nature to be protected proactively, reducing the need to turn to the courts.

Present trend of Indian judiciary has been to ultra widening the scope of the Constitutional rights as well as Article 21 not for citizen or person only but also for animals and birds. According to the Supreme Court of India, every species has a right to life and security, subject to the law of the land, which includes depriving its life, out of human necessity. Article 21 of the Constitution, while safeguarding the rights of humans, protects life and the word “life” has been given an expanded definition and an disturbance from the basic environment which includes all forms of life, including animal life, which are necessary for human life, fall within the meaning of Article 21 of the Constitution. The ratio was afterwards followed by many other High Courts in India.

In March 2017, the High Court of Uttarakhand in India ruled in the Ganges and Yamuna and the Glaciers cases that the Ganges and Yamuna rivers, the Gangotri and Yamunotri glaciers, as well as other natural objects in the state of Uttarakhand enjoy legal rights. In both cases, the High Court established the natural objects as legal minors and conferred guardianship responsibilities on several individuals within the state government of Uttarakhand. These judgments create novel legal rights for nature and, as such, present powerful examples of the increasing relevance of rights-centred environmental protection. The impact of this case law, however, is uncertain. As a start, the legal rights entrusted to nature are underpinned by such broad definitions of ‘harm’ that it is difficult to envision successful implementation. Further, the Ganges and Yamuna case is currently stayed pending appeal to the Supreme Court, which may decide to overturn the High Court’s findings. Still, these cases are important to analyse, especially in light of how constructing nature as a legal subject/legal person shifts environmental law away from public law and into the sphere of private law. Also, the Ganges and Yamuna case draws explicitly on Hinduism to support the sacred status of the Ganges and Yamuna rivers, which, in the current context of the Hindu Nationalist Movement, may prove controversial.

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.