Institutional frameworks for the rights of nature

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Whanganui River, New Zealand. Photo: Flickr/Tim Proffitt-WhiteWhanganui River, New Zealand. Photo: Flickr/Tim Proffitt-White

By Pía Weber

As the article "Should Nature Have Rights?" by Paulo Urrutia and Patrick Lynch shows, the movement advocating that nature has rights has established a new way of protecting the environment, especially rivers. This new conception evolves from an anthropocentrist perspective that asks what can we get from a river, to one that recognizes and gives importance to different actors and instead asks: what does the river need? How do we work together with the river? Thus, in certain countries rivers have been declared as subjects of rights, which is directly linked to the worldview of indigenous peoples where these declarations have been carried out. It is interesting to note that, in addition to establishing the river as a living entity and subject to rights, an entire institutionality has been created from this declaration, specifically for the Whanganui River in New Zealand and the Atrato River in Colombia.

In New Zealand, recognition was given at the legislative level with the Te Awa Tupua Act (2017), which recognizes the Whanganui River and its tributaries as a complete and indivisible living entity; as a legal entity that has the same rights, responsibilities and obligations as a legal person; and finally, a complex governance mechanism is created. It includes, within its elements, a riverkeeper (Te Pou Tupua), which is a legal representative, and is composed of a representative of the Crown and another of the Maori communities. An advisory group (Te Karewao) is also set up consisting of representatives of the Maori community and local communities and authorities. Third, a strategic collaborating group (Te Ko puka) is created consisting of representatives of organizations that have interests in the river, including authorities, state departments, commercial and recreational users of the river, and environmental groups. As you can see, a new river management mechanism was implemented, including for the first time all users or those who have a connection to the river.

Notwithstanding the aforementioned, it is important to note that the agreement does not grant the river ownership over its waters and the legislation does not limit existing property rights in the river, so it is still pending to analyze how the different uses will be reconciled in the coming years. Therefore, the success of the model will not only depend on how governance mechanisms are implemented, but also on what the courts will decide in this regard.

In the case of the Atrato River in Colombia, the declaration was the product of a ruling by the Constitutional Court on a lawsuit filed by the non-governmental organization Tierra Digna (judgment T-622, 2016). The ruling is historic and recognized an unprecedented humanitarian, social and environmental crisis in Colombia (as the court pointed out), due to illegal mining that had been happening for many years in the Department of Chocó.

The judgment recognizes the Atrato River, its basin and tributaries as an entity subject to rights to protection, conservation, maintenance and restoration by the State and ethnic communities. It orders the national government to exercise the authorship and legal representation of river rights in conjunction with ethnic communities living in the Atrato River basin in Choco, establishing a Guardian Commission. The government, for its part, elected the environment minister as its representative and indigenous communities (7) each elected a woman and a man as representatives (14), with a total of 15 members of the Guardian Commission of the river. A Panel of Experts was also established to advise on compliance with the judgment. This has generated some criticism due to the "judicial activism" involved in the sentence and the public budget required to carry it out. Nevertheless, it recognizes the need for creating the river guardians and the panel to achieve the objectives set forth in the judgment.

We hope that the creation of these governance mechanisms in both countries will give these new models of protection the necessary strength. It is also important to keep in mind that there are still several unanswered questions, for which proper follow-up becomes relevant, for example: can a river be sued? Should the river pay taxes? What are these rights and obligations?

In Chile, we recognize there are a number of obstacles for implementing such a model. But the context of a new Constitution provides unique possibilities that should be seriously considered. Among the difficulties we highlight the lack of knowledge about this new movement of nature as a subject of rights; our limited understanding of our native peoples and their worldview, which have been key to carrying out these declarations; institutional development needed to implement protection mechanisms such as those discussed; and finally how to achieve harmonization of pre-existing rights and uses. 

The author is an environmental lawyer and executive director of Fundación Ngenko.