The site your mother warned you about
22 November 2017 16:52 (South Africa)
Opinionista Ivo Vegter

When a river becomes a legal person

  • Ivo Vegter
    IvoVegterBW
    Ivo Vegter

    Ivo Vegter is a columnist and the author of Extreme Environment, a book on environmental exaggeration and how it harms emerging economies. He writes on this and many other matters, from the perspective of individual liberty and free markets. He is seldom wrong.

Environmental protection and the ability to take legal action against those who harm nature are important to many people. It might seem that granting “legal person” status to features of the natural environment would be useful. In reality, it only enriches lawyers and NGOs.

New Zealand’s third-largest river, the Whanganui, formally received the legal status of a person last month, with “all the rights, duties and liabilities that come with personhood”. Not to be outdone, an Indian court a week later conferred legal personhood upon the rivers Ganges and Yamuna, using similar language about “legal and living entities having the status of a legal person with all corresponding rights, duties and liabilities”. Another week later, glaciers, waterfalls, meadows and forests in a large swathe of the Himalayan mountains received the same status.

The story was reported on April Fool’s day, but it was no joke.

The concept of granting the rights of a person to natural entities might sound like great news for environmental protection. In reality, however, it is a victory for vested interests.

For a start, it is absurd to create the fiction that a non-human entity, living or otherwise, can exercise the “rights, duties and liabilities” of a person. According to Cornell University’s Law School: “Legal person refers to a non-human entity that is treated as a person for limited legal purposes – corporations, for example. Legal persons can sue and be sued, own property, and enter into contracts. In most countries, legal persons cannot vote, marry, or hold public office. Most countries also excluse (sic) legal persons from holding natural or constitutional rights, such as the freedom of speech.”

Therefore, a legal person is not quite a natural person, in law. But unlike a corporation, a river cannot be taxed. It cannot be held liable for floods it inflicts on human victims. It cannot enter into contracts. It cannot own property. It is not even in a limited sense a “person”.

The responsible minister in New Zealand, Chris Finlayson, told the New Zealand Herald: “I know the initial inclination of some people will (be to) say it’s pretty strange to give a natural resource a legal personality. But it’s no stranger than family trusts or companies or incorporated societies.”

In fact, it is a great deal stranger. The entities to which he refers are all comprised of people acting in concert as a single group. One might dispute what the rights of such a group of people ought to be, but they flow fairly logically from the individual rights of its members. A company can sue and be sued, can own property, and enter into contracts. A company can be subjected to laws and regulations. It can be prosecuted for offences, as can its officers and staff.

A river can do none of these things. To use the term “living entity” for bodies of water, as the New Zealand law and Indian courts did, is a stretch, even by analogy. Forests and meadows, being comprised of actual living things, might be construed as a “living entity” for legal purposes, but even then they are certainly not “persons” in any comprehensible sense of the term.

The purpose of conferring legal personhood upon a natural entity is to enable lawyers to sue on its behalf. Presumably, it is expected that this will only happen in cases where the natural entity has been harmed, for example by pollution or development. But there is no reason why lawyers shouldn’t be able to argue that the Ganges is fouled by people washing themselves or disposing of the ashes of their dead in its supposedly holy waters. This would enable them to claim damages from the offending people.

The idea of harm to a natural entity is vague, and can be applied to virtually all human development and industry. Any development or encroachment on a river, from washing clothes or irrigating farms to building bridges and dams, by definition constitute a degree of harm to that river. Any use of forests or meadows, whether sustainable or otherwise, will be actionable. The inclusion of glaciers on India’s list suggests that industries that emit greenhouse gases could be held liable as a class for whatever part they might play in weather that melts glaciers. Treating natural entities as if they are human beings who are harmed is an open invitation for frivolous lawsuits.

Human beings have an absolute right not to be harmed by other human beings, except in defence of life, limb or property. If natural entities were given those same rights, we could kiss goodbye to farming, even with plants. We would not be entitled to manage forests or game, go fishing, swat mosquitos, or even draw drinking water from rivers. The idea is reduced to the absurd very easily.

Giving natural entities the ability to sue on their own behalf (see how stupid that sounds?) will divert funds away from the people who actually are harmed by agricultural or industrial polluters. Under ordinary circumstances, the people affected by a polluted river would be able to sue the polluter. If a court creates the legal fiction that the river itself can sue, the proceeds of such a lawsuit will go to the river. And just as it cannot sue except through government-appointed human guardians, it cannot receive funds except through human beneficiaries selected by the court. The lucky few people who benefit will undoubtedly be environmental NGOs with armies of wealthy lawyers, and not the people actually suffering harm from pollution, reduced river flow, or other environmental degradation.

There is a well-established legal and regulatory framework for protecting natural resources, which serves to limit or prohibit harm while enabling the sustainable use of those resources. Civil law that permits people to sue for provable, measurable harm caused by others is also well established. Together, these form a sensible legal basis for environmental protection. The strength of this framework is that it finds the balance between utilising and harming natural resources, which defines “sustainable utilisation”. It can adapt to different situations with nuance and respect for the interests of both people and the environment.

Creating an absurd fiction that enables people to act on behalf of natural entities as if they were human beings will not meaningfully extend this protection. Nor will it improve the capacity of governments to implement the environmental protections already enshrined in law. But it will create a cash bonanza for lawyers and environmental rights groups, at the expense of the ordinary people who rely on the natural resources in question for their living or who are affected by any harm that befalls them.

A policy that is logically absurd on the face of it, will have little benefit to nature, risks significant harm to people, is wide open to abuse by lawyers, and will enrich only vested green interests, is a bad policy. Let’s not allow this awful idea to spread.

Now I think I will go punch a tree. Here’s hoping it doesn’t hit back, or worse, press charges. DM

  • Ivo Vegter
    IvoVegterBW
    Ivo Vegter

    Ivo Vegter is a columnist and the author of Extreme Environment, a book on environmental exaggeration and how it harms emerging economies. He writes on this and many other matters, from the perspective of individual liberty and free markets. He is seldom wrong.

Get overnight news and latest Daily Maverick articles






Do Not Miss