Environmental laws enacted for the benefit of humans are widespread. Less common are laws that protect nature for its own sake, independent of human interests.
In February 2021, the Quebec municipality of Minganie [in French] and the Innu Council of Ekuanitshit [in French] adopted resolutions asserting legal personhood for Muteshekau-shipu (or the Magpie River). The specific rights asserted for the Magpie River include the right to maintain its natural biodiversity, to perform essential functions within its ecosystem, and to have legal standing in courts. This assertion is the first of its kind in Canada.
Over the past several years, some ecosystems – especially rivers – have been granted rights and legal personhood in several countries. Although the context varies, the aim of these developments is generally to allow a river to bring cases – through a legal guardian – to a court on its own behalf.
For example, a river with legal personhood could seek a court order to stop actions that cause it harm, such as excessive pollution, regardless of whether a human being’s rights or legal interests are engaged.
This HillNote examines the rights of nature and the assertion of legal personhood for rivers in Canada and abroad.
Granting Legal Rights to Rivers
Advocates for the rights of nature argue that legal personhood and corresponding rights are necessary to ensure that nature is protected in a meaningful way. For example, in an influential 1972 article, legal scholar Christopher Stone argued that trees, rivers and other natural features should be given legal personhood and standing to defend their interests.
He noted that corporations, municipalities and universities are among the many non-human entities that have distinct rights, and whose interests can be determined and represented by guardians or lawyers acting on their behalf.
More recently, advocates argue that granting rights to rivers – which are often considered sacred entities – advances both environmental protection and the rights of Indigenous peoples.
In 2017, New Zealand passed legislation recognizing the rights and legal personhood of the Whanganui River. This recognition was part of a settlement with the Māori people of the river, the Whanganui Iwi, and transformed the management of the river from an existing national park to legal personhood. In the Māori legal tradition, humans coexist with all elements of nature based on principles of kinship and stewardship. According to this worldview, all elements of nature merit respect, and the people of a particular place have responsibilities toward all of its natural features.
Similar legal status has been granted to rivers in India, Bangladesh and Colombia, while Ecuador and Bolivia have sought to enact broader protections for the rights of nature. Ecuador’s Constitution includes a chapter on the rights of nature, which states that nature has a right to “the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.”
Canadian Legal Framework
Canada’s international obligations related to water have a human rights – rather than a rights of nature – focus. For example, Canada is a party to the Convention on the Rights of the Child, and article 24 calls on states parties to take appropriate measures to provide clean drinking water to all children. Though not the focus of this HillNote, Canada has been criticized by United Nations and other experts for failing to implement all of its obligations with respect to water, and in particular for the impact of toxic chemicals on Indigenous peoples.
The Canadian Constitution does not give any level of government the power to legislate regarding water management. Each of the federal or provincial governments can legislate on aspects of these issues that fall under its areas of jurisdiction under the Constitution Act, 1867. As such, a particular aspect of water management can be the responsibility of the federal government, provincial legislatures, or both.
Water resources are a shared jurisdiction between the provinces, territories, Indigenous governments, and the federal government. There are comparatively few waters under the “exclusive” jurisdiction of the federal government. These include national parks, federal lands, federal facilities (e.g., federal offices, penitentiaries, and military bases), First Nation reserves and Nunavut. The federal government also has jurisdiction over fisheries, navigation, matters of an international or interprovincial nature, and the criminal law.
Provincial legislatures generally have broad powers to legislate on issues relating to the environment and to water. Several subject matters under their exclusive jurisdiction pursuant to section 92 of the Constitution Act, 1867 enable them to legislate on these issues, such as management of provincial Crown lands, property and civil rights and municipal institutions.
Rights of Nature and Indigenous Peoples
Many developments related to the rights of nature have been led by Indigenous peoples around the world. Although these groups have culturally distinct legal traditions, a common theme amongst them has often been an emphasis on the interconnectedness of humans and nature.
Indigenous legal traditions across Canada share similar conceptions of nature. For example, the Gitxsan people hold that their relationship to the land is a partnership with reciprocal obligations and privileges. Similarly, Ktunaxa law is grounded in the understanding that humans and nature are interconnected, and that all things must be kept in balance. According to legal scholar John Borrows, most Indigenous legal traditions in Canada include appeals to the Earth, including those of the Cree, Mi’kmaq, Haudenosaunee and Haida Nations.
There are also examples of Indigenous governments in Canada having jurisdiction over waters as part of self-government agreements and co-management regimes, such as the land and water boards in the Northwest Territories.
However, until the Magpie River resolution mentioned above, there has been no example of Indigenous governments acting for a river as a legal person with juridical personality. The most analogous situation is the Edéhzhíe Protected Area in the Northwest Territories, which is the first Indigenous Protected and Conserved Area in Canada, under which a board with federal and Dehcho Dene representatives are charged with acting in the best interests of the area’s ecological and cultural wellbeing.
The legal impact of the Magpie River resolutions remains untested. The resolutions rely on both inherent Indigenous rights, such as those under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and municipal jurisdiction over the waters.
The resolutions establish a system of jointly appointed guardians tasked with acting in the river’s best interests on issues ranging from litigation and oversight, to habitat protection and education. It is unclear how they would be treated by courts or by the provincial and federal governments. Municipal powers are delegated to them by the provinces and are not a constitutionally protected jurisdiction.
In general, proposals to give rivers legal personality or personhood, especially under an Indigenous jurisdiction, would likely involve nation-to-nation negotiations and consultations. This follows the principles of UNDRIP, which Canada has endorsed and committed to fully implement, as well as, the principles set out by the Department of Justice respecting the Government of Canada’s relationship with Indigenous peoples, which states:
The importance of free, prior, and informed consent, as identified in the UN Declaration [on the Rights of Indigenous Peoples], extends beyond title lands. To this end, the Government of Canada will look for opportunities to build processes and approaches aimed at securing consent, as well as creative and innovative mechanisms that will help build deeper collaboration, consensus, and new ways of working together.
What effect the Magpie River resolutions will have in practice, both on the river itself and environmental policy more broadly, remains to be seen, but whether viewed as symbolic or as a new roadmap for conservation and reconciliation, environmental personhood remains an evolving issue, which will continue to draw attention of academics and policy makers in Canada and around the world.
Penny Becklumb, Federal and Provincial Jurisdiction to Regulate Environmental Issues, Publication No. 2013-86-E, Library of Parliament, 24 September 2013, revised 29 October 2019.
David R Boyd, The Rights of Nature: A Legal Revolution That Could Save the World, 2017.
Victor David, « La lente consécration de la nature, sujet de droit. Le monde est-il enfin Stone ? », Revue juridique de l’environnement, 2012/3 (Volume 37), p. 469-485 [in French].
James D. K. Morris and Jacinta Ruru, “Giving Voice to Rivers: Legal Personality as a Vehicle for Recognising Indigenous Peoples’ Relationships to Water,” Australian Indigenous Law Review, 2010.
Cyrus R. Vance Center for International Justice, Earth Law Center and International Rivers. Rights of Rivers: A global survey of rapidly developing Rights of Nature jurisprudence pertaining to rivers, October 2020.
Authors: Robert Mason and Michael Chalupovitsch, Library of Parliament
Categories: Agriculture, environment, fisheries and natural resources, Law, justice and rights