Few days after the historical decision that assigned a legal voice, similar to human beings, to Whanganui River (in New Zealand), another court in the northern Indian state of Uttarakhand ordered on Monday that the Ganges and its main tributary, the Yamuna, be accorded the status of living human entities.
The decision, which was welcomed by environmentalists, means that polluting or damaging the rivers will be legally equivalent to harming a person. This is of special importance for a river that already receieves 1.5bn litres of untreated sewage, and 500m litres of industrial waste on a daily basis.
Judges Rajeev Sharma and Alok Singh said the Ganges and Yamuna rivers and their tributaries would be “legal and living entities having the status of a legal person with all corresponding rights, duties and liabilities”.
The relevant decision regarding the Whanganui River declares the river to be:
“[A]n indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements”and that “Te Awa Tupua is a legal person and has all the rights, powers, duties, and liabilities of a legal person.” According to New Zealand’s Attorney-General and Treaty Settlements Minister, Christopher Finlayson “The Crown will not own the river bed. The river will own itself. That’s a world-leading innovation for a river system.”
As the days go by and the decisions are more discussed in their details, it becomes obvious that they drive an important innovation in environmental law and justice. However, the most common confusion about this law is that the river is being made a person, the same as a human, with human rights.
So what is the difference? A Natural Person is a human. A Legal Person is one of the many entities that can be created at law. Legal Persons include companies, trusts and incorporated societies. They are all entities that are capable of having legal rights, duties and obligations such as suing and being sued, and entering into contracts. Only a Natural Person can have human rights to the fullest extent but Legal Persons can have a right to, for instance, freedom of expression or natural justice. Any right that it makes sense for a Legal Person to have will also be accorded to the river.
For the readers that are interested to understand in depth the concept of extending legal personality to non-human nature, I suggest the emblematic article, published forty five years ago, Christopher D. Stone’s, “Should Trees Have Standing? – Toward Legal Rights For Natural Objects” (Southern California Law Review 45 (1972) 450-501).
Stone conceived of the idea as a way to overcome the limitations imposed by viewing nature as property. He highlighted the absurdities of the granting of legal ‘personality’ to corporations and even to ships but not to animals, trees, rivers and ecosystems. The legal difficulty was (and in most of the world remains) that only parties who could demonstrate to the Courts that their property or civil rights had been unjustifiably prejudiced could bring an action under law – if not, they lacked the standing to bring an action under law. Courts have traditionally construed this bar to be a high one and so this problem of standing has been the major obstacle to legally defending non-human organisms and ecosystems as a whole unless a competing property right can be shown. Stone’s innovation was to propose that the interests of the voiceless in nature should be represented by a guardian or trustee.