How extending personhood to Canada’s rivers could help reconciliation
April 18, 201718 April 2017
In March, governments in India and New Zealand independently extended personhood rights to rivers, making them the first jurisdictions in the world to do so. Is it possible that Canada could follow suit? Likely not in the foreseeable future. Not that it’s impossible. The Canada Business Corporations Act grants corporations the rights and privileges of a natural person. But we have yet to have a serious debate in this country as to whether these rights should be extended to components of the environment, such as rivers and forests, as there is little political will among federal and provincial leaders.
In both New Zealand and India, the expectation is that by extending person-hood rights to rivers, they will be deemed to be legal entities and, via their human interlocutors, be able to advocate for their own needs. In doing so, the governments are attempting to use a legal tool to reconcile the spiritual beliefs of its people with the necessity of using natural resources for economic development.
The two countries came about it differently, however there are similarities. In India, a state (Uttarakhand) higher court proclaimed both the Yamuna and Ganga as having personhood rights in order to compel state officials to ensure their proper management. The state higher court based its decision on jurisprudence relating to the rights afforded to Hindu religious idols, writing, “It is not a particular image which is a juridical person but it is a particular bent of mind which consecrate the image.” They further reasoned that the extension of personhood rights to waterbodies is needed in order for societal progress:
With the development of the society where the interaction of individuals fell short to upsurge the social development, the concept of juristic person was devised and created by human laws for the purposes of the society. A juristic person, like any other natural person is in law also conferred with rights and obligations and is dealt with in accordance with law. In other words, the entity acts like a natural person but only through a designated person, as their Lordships have held in the judgments cited herein above, that for a bigger thrust of socio-political-scientific development, evolution of a fictional personality to be a juristic person becomes inevitable. This may be any entity, living inanimate, objects or things. It may be a religious institution or any such useful unit which may impel the Courts to recognise it. This recognition is for subserving the needs and faith of the society…
New Zealand’s government also draws upon the spiritual beliefs of a Maori tribe (or, iwi) and the need for proper management of shared resources for societal development. The Whanguni tribe gives special significance to the Whanganui river, viewing it as a “living whole” and as inseparable to the existence of the tribe. In designating the river as a person, the government of New Zealand is attempting to reconcile a treaty breach committed by the federal government as well as a 200-year old legal dispute. The Economist writes how the Act appoints representatives and allocates resources for the management of the river:
… two guardians will act for the river, one appointed by the government and one by the iwi. Mr Finlayson, the minister in charge of negotiations tied to the Treaty of Waitangi, hopes the change will help bring those who do environmental damage to the river to book. Under the settlement the government will also pay the iwi NZ$80m ($56m) as compensation for past abuses and set up a fund of NZ$30m to enhance the “health and well-being” of the river. It is one of 82 deals that aim to remedy breaches of the treat…
While no mainstream political party in Canada is advocating for extending such rights to environmental bodies, environmental organizations have been pushing the idea. The David Suzuki Foundation, citing the Supreme Court of Canada, recently argued that integrating Indigenous legal concepts into Canadian law is vital for reconciliation efforts. Jennifer Archer, a former contracts negotiator and specialist in freshwater governance draws parallels to the situation in British Columbia:
The Whanganui Agreement is relevant to the conflict in BC in that it suggests that adaptation of our legal system to encompass the rights of nature may allow Indigenous peoples, in similar circumstances, to preserve their traditional values and laws within the existing Crown legal system while also creating a new cooperative working relationship with the government as co-guardians. Clearly this would not offer a panacea to conflict or litigation or resolve all of the issues between the parties but it could transform the nature of the relationship and the conversation to include the natural environment as an equal participant and stakeholder in ongoing dialogue and dispute resolution thereby diffusing some of the conflict between First Nations and the Crown.
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