13 March 2019
On 30 January 2019, the High Court of Bangladesh recognized the river Turag as a living entity with legal rights and held that the same would apply to all rivers in Bangladesh. This monumental decision is the latest example of a trend towards according rights to nature, and specifically rivers, in various jurisdictions around the world. These cases are particularly noteworthy for their innovative approach to legal remedies.
The Bangladeshi case had been filed by an NGO (Human Rights and Peace for Bangladesh, HRPB) in 2016, and concerned the destruction of the Turag through pollution and illegal constructions along the river. Based on the common law public trust doctrine, the Court held that the government had to protect the rivers. However, it went further than that: Relying on its parens patriae jurisdiction it accorded the Turag legal rights and ordered the National River Protection Commission (NRPC) to serve as the guardian for it and other rivers. The parens patriae doctrine is an old common law doctrine that gives the court the possibility to make orders in the best interest of a child. On this basis, the Court directed further innovative orders at the government, including the prevention of land grabbers from securing bank loans and organising classes for students at schools and universities and for factory workers to teach them about the importance of rivers.
This case follows a number of developments in other jurisdictions according to rights to rivers.
Ecuador included rights for nature (“Pacha Mama”) in a chapter of its constitution ratified in 2008 and Bolivia adopted a law recognizing rights of nature in 2010. These provisions have also been applied to the courts. For instance, in 2011 the Ecuardorian Provincial Court of Loja granted an injunction based on this constitutional provision on the application of two individuals. The court halted a project to widen a road that led to the deposition of large quantities of rock and other materials in the river. The judges considered it necessary to apply the precautionary principle to give practical effect to the rights of nature. They also reversed the burden of proof requiring the responsible Provincial Government to show that the project would not damage the river.
However, an even bigger surge in river rights can be observed in the last two years. In 2017, negotiations between the government of New Zeeland and an indigenous Māori tribe resulted in an agreement that recognized the rights of the tribe’s spiritual ancestor, the river Whanganui. The case followed a 1999 report by a specially established tribunal that set out the differences in conception between common law and Maori ownership. Based on this report, the government negotiated a settlement agreement with the Maori in 2014, which was enshrined on 20 March 2017 into legislation. The resulting Act sets out a whole range of measures to regulate treatment of the river and also establishes the office of “Te Pou Tupua”, again a guardian model with one representative from the tribe and one from the government.
Also in 2017, a state court in Northern India held that the river Ganges and Yamuna were to be considered as living entities with legal rights. Here the court based its finding inter alia on religious grounds, stating that rivers were considered persons in the Hindu religion, which is followed by over 50% of the Indian population. The Court also specifically referred to the 2017 Act from New Zeeland. The judgement has been suspended pending an appeal by the Supreme Court of India. However, it has already inspired the legislature of Indian state Madhya Pradesh to pass legislation recognizing rights of the Narmada River.
In parallel, in May 2017 Colombia’s Constitutional Court granted legal personhood to the river Atrato. The case had been lodged by NGO Tierra Digna and focused on illegal mining activities along the river. Basing itself on provisions of the Constitution, international human rights law and the international recognition of “biocultural” rights, the Court accorded joint guardianship over the river to a representative of the government and a representative of the affected communities. The Court further ordered that a wider commission of guardians be set up including an advisory team to draw up a plan to restore the river bed, banks and surrounding area. The commission was supposed to include NGO representatives (the Court refers to 2 specific NGOs with relevant expertise) and academic and research institutions. The case has led to the establishment of a 14 member guardian committee but implementation continues to be a challenge, including due to threats directed at the affected community.
Evidently, all the above mentioned cases, laws and agreements differ significantly, because they arise from their national contexts and are based on different legal doctrines. However, an interesting common aspect is that the recognition of the rights of the rivers was in all cases used as a basis to grant innovative remedies. Given that access to effective remedies is an ongoing challenge in environmental matters, this is an aspect that makes the decisions particularly interesting.
In Colombia, New Zeeland, India and now in Bangladesh, the courts appointed guardians to protect the rivers. The Bangladeshi and Indian judgements both granted guardian status to members of the government, while in New Zealand and Colombia equal involvement of the affected communities has been formally recognised. Such a guardian status has the potential to prevent damage on an ongoing basis and to improve the status of the river continuously. It potentially also gives the courts a basis to impose innovative measures in the future.
It will remain to be seen what practical impact these decisions have and whether this trend takes hold elsewhere. But it is clearly an interesting development that recognizes the dire situation the world’s rivers are in, caused not least by failing to factor nature into our economic and legal systems as more than a resource.
Access to Justice is a fundamental means through which citizens and NGOs can support the implementation and enforcement of laws and policies to protect the environment. The goal of this ATOJ-EARL project is to achieve “Access to Justice for a Greener Europe”. It strives to enhance access to justice in environmental matters by providing information, training and support for the judiciary, public authorities and lawyers of eight European member states. ClientEarth and Justice and Environment are implementing this project with the financial support of the European Commission’s LIFE instrument.