Voice, power and legitimacy: the role of the legal person in river management in New Zealand, Chile and Australia

ABSTRACT

In 2017, rivers in New Zealand, India and Colombia received legal rights and were granted the status of legal persons. The increased legal powers, often a result of groundbreaking agreements or settlements with Indigenous peoples, may improve environmental protection and river management, but they can also challenge the legitimacy of laws and regulations that protect the rivers. In this paper, we compare the new legal rights with two long-standing uses of legal personality in river management, to explore the effects of legal personality in terms of environmental resource management. We argue that governments must ensure that they get the right balance between giving rivers a voice (and the power to be heard), and creating collaborative governance arrangements that strengthen and maintain community support overtime.

KEYWORDS:

• Legal personality
• river
• legitimacy
• water resource management

Acknowledgments

Parts of this article have been published in Spanish, as:

Elizabeth Macpherson and Erin O’Donnell, ‘¿Necesitan Derechos Los Ríos? Comparando Estructuras Legales Para Regulación de Ríos En Nueva Zelanda, Australia Y Chile [Do Rivers Need Rights? Comparing Legal Structures for River Regulation in New Zealand, Australia and Chile]’ (2018) 25 Revista de Derecho Administrativo Economico (forthcoming).

Notes

1. In this paper, for simplicity, we refer to the iwi as ‘Whanganui River Iwi’, although we acknowledge that a number of other iwi (tribes) and hapū (subtribes) have interests in the Whanganui River.

Additional information

Funding

This paper draws on findings from the authors’ PhD research, which was funded by the Australian government (Australian Postgraduate Award) and the Melbourne Law School Human Rights Scholarship. Elizabeth Macpherson’s research is currently funded by the New Zealand Law Foundation.

Notes on contributors

Erin O’Donnell

Dr Erin O’Donnell is a water law and policy specialist, bringing together skills and experience in aquatic ecology, environmental planning and water governance. She has worked in water resource management since 2002, in both the private and public sectors. Erin’s research focus is the legal rights for rivers, which saw four rivers receiving the status of legal persons in 2017. Erin is recognised internationally for her research into this groundbreaking new field, and the challenges and opportunities it creates for protecting the multiple social, cultural and natural values of rivers, and her book, Legal Rights for Rivers: Competition, Collaboration, and Water Governance is available now. Her work is informed by comparative analysis across Australia, New Zealand, the USA, India, Colombia, and Chile. Erin’s PhD examined the role of environmental water managers in Australia and the USA in delivering efficient, effective and legitimate environmental water outcomes in the context of transferable water rights and water markets. Erin is a Senior Fellow at the University of Melbourne Law School, and a member of the inaugural Birrarung Council, the voice of the Yarra River.

Elizabeth Macpherson

Dr Elizabeth Macpherson is a lecturer at the University of Canterbury Law School where she teaches natural resources law, human rights, indigenous rights, comparative law and legal ethics. Her research interests are in comparative natural resources law and indigenous rights in Australasia and Latin America. She is currently working on a book on indigenous water rights in comparative law and is part of the United Nations Knowledge Network on Harmony with Nature. Elizabeth completed her PhD thesis at the University of Melbourne Centre for Resources, Energy and Environmental Law, under the Human Rights Scholarship, where she also worked as a teaching and research fellow. During 2013, Elizabeth was a visiting researcher at the Pontificia Universidad Catolica de Chile with support from the International Bar Association’s Scholarship for Energy and Natural Resources Law Studies. Elizabeth has practised for more than 12 years as an indigenous rights and environmental lawyer in private practice, government and universities in New Zealand, Australia and Chile, including as a Solicitor at Kensington Swan specialising in Treaty of Waitangi claims and settlement, and as Principal Legal Adviser in public law and Aboriginal affairs at the Victorian Government Department of Premier and Cabinet.