The Separation of Church and Stream

The Separation of Church and Stream

By Zenia Memon, Georgetown University Law Center

Almost a decade ago, Ecuador enacted a new Constitution which granted inalienable rights to nature—a first for any Constitution.[1] In March 2017, the New Zealand parliament passed the Te Awa Tupua Act, awarding personhood to the Whanganui River and guaranteeing it “all the rights, powers, duties, and liabilities of a legal person.”[2] Not long afterward, India followed suit, seeking to accord the Ganges and Yamuna rivers the status of living human entities.[3] On September 25, 2017,[4] a Denver lawyer filed a federal lawsuit, asking a judge to the recognize the Colorado River as a person.[5]

In a first-of-its-kind suit in the United States, the plaintiff—the Colorado River ecosystem—is seeking to hold Governor John Hickenlooper and the state of Colorado liable for violating the river’s “right to exist, flourish, regenerate, be restored, and naturally evolve.”[6] If successful, the Colorado River could bring a suit in its own name for damages due to environmental abuse. Eventually, it may open the door for the Appalachian Mountains or the Salt Flats of Utah to sue individuals, corporations, or the government for damages from pollution or resource depletion. It might also provide a new mechanism by which to block pipeline and infrastructure expansion.[7] Jason Flores-Williams, the attorney bringing the river’s case makes the argument that “[i]f a corporation has rights…so too, should an ancient waterway that has sustained human life for as long as it has existed in the Western United States.”[8]

The claim cites several nations—such as New Zealand and India—that have recognized at least some rights for natural entities. However, the Colorado River suit is missing a crucial ingredient that is present in those two other instances.

The designation of the Whanganui River as a person was born of agreements between New Zealand’s Government and Māori groups. The Whanganui iwi tribe considers the river an ancestor. Chris Finlayson, the Treaty of Waitangi Negotiations Minister, said that the granting of a legal personality to the river was a response to “the view of the iwi [people] of the Whanganui river which has long recognized the Te Awa Tupua [the river] through its traditions, customs and practices.”[9]

In India, the high court of the state of Uttarakhand declared the Ganges, as well as its tributary Yamuna, to be a “juristic person…[whereby it is] not a human being, yet it has certain rights.”[10] For the millions of Hindus in the world, the river is the earthly manifestation of the goddess Ganga.[11] Indian law accepts that a stone carving embodying a deity is a juristic person[12] and so the court drew an analogy: “If a stone which is a deity can be conferred with rights, then water, which has all the attributes of a deity can also be conferred with rights.”[13]

Although environmental concerns underlie the decisions to afford the Whanganui, Ganges and Yamuna rivers personhood, those cases relied, at least in part, on the cultural and spiritual significance of the rivers. The Māori consider the Whanganui River to be their ancestor; the Hindus regard the Ganges as the Goddess Ganga. In both instances, there was an innate “human-ness” to the rivers, and so a justification for granting them personhood. What claims can the Colorado River make to “human-ness”? After all, there is not yet a party to the suit with a cultural or spiritual interest.[14]

Flores-Williams contends that giving rivers the right to sue would force humans to take care of the natural environment we rely on to survive: “It’s pragmatic,” he said.[15] Though this conservation claim may indeed be pragmatic, it does not imbue the Colorado River with human quality. The arguments Flores-Williams has made thus far have been ones of conservation for resources sake. Even assertions that the river should be preserved for its intrinsic value still beg the question—why should we consider it a person?

The debate over human use of the environment has intensified in recent weeks, as hurricanes and wildfires have left swathes of the United States devastated. Colorado River et. al v. State of Colorado is an attempt to “level the playing field as rivers and forest battle human exploitation.”[16] But a river with no spiritual ties does not clearly a human make.

[1] Clare Kendall, A New Law of Nature, The Guardian (Sept. 23, 2008), https://www.theguardian.com/environment/2008/sep/24/equador.conservation.

[2] Te Awa Tupua (Whanganui River Claims Settlement) Act of 2017 sub 2 s 14 (N.Z.) available at http://extwprlegs1.fao.org/docs/pdf/nze165021.pdf.

[3] Michael Safi, Ganges and Yamuna Rivers Granted Same Legal Rights as Human Beings, The Guardian (Sept. 26, 2017), https://www.theguardian.com/world/2017/mar/21/ganges-and-yamuna-rivers-granted-same-legal-rights-as-human-beings.

[4] Filing, Colo. River Ecosystem, et al. v. State of Colorado, No. 1:17CV02316 (D. Colo Sept. 25, 2017).

[5] Julie Turkewitz, Corporations Have Rights. Why Shouldn’t Rivers?, N.Y. Times (Sept. 26, 2017), https://www.nytimes.com/2017/09/26/us/does-the-colorado-river-have-rights-a-lawsuit-seeks-to-declare-it-a-person.html?_r=0.

[6] Id.

[7] Id.

[8] Id.

[9] Eleanor A. Roy, New Zealand River Granted Same Legal Rights as a Human Being, The Guardian (Mar. 16, 2017), https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being.

[10] Julie McCarthy, Will Giving The Ganges Human Rights Protect The Polluted River?, Nat’l Pub. Radio (Jul. 2, 2017), http://www.npr.org/sections/parallels/2017/07/02/535017334/will-giving-the-ganges-human-rights-protect-the-polluted-river.

[11] Id.

[12] Id.

[13] Id; but see India’s Ganges and Yamuna Rivers Are ‘Not Living Entities’, British Broadcasting Co. , (Jul. 7, 2017), http://www.bbc.com/news/world-asia-india-40537701 (noting that India’s Supreme Court ultimately overturned the finding that the Ganges and Yamuna Rivers were living entities).

[14] Supra note 4; that is not to say that it would be impossible for Native Americans to claim cultural or spiritual interests in the Colorado River– see, e.g., From Barren to Bountiful: 10 Before and After Photos of Colorado River Restoration, (Aug. 3, 2017), https://indiancountrymedianetwork.com/news/environment/barren-bountiful-10-photos-colorado-river-restoration/, (describing the Quechan Tribe’s efforts to restore wetlands along the lower Colorado River).

[15] Turkewitz, supra note 5.

[16] Id.

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