Can you hear the rivers sing? Legal personhood, ontology, and the nitty gritty of governance

by Cristy Clark, Nia Emmanouil, John Page and Alessandro Pelizzon

In 2017, multiple claims and declarations from around the legal world appeared to signal a tipping point in the global acceptance of a new and evolving legal status for nature. Whether it was litigation in the United States, India, and Colombia, or legislation emanating from New Zealand and Australia, the law seems to be grappling with a new normative order in relation to the legal status of nature. However, this shift has been a long time coming, being at least forty- five years since Christopher Stone famously asked whether trees should have legal standing.

This Article explores what this emerging Ecological Jurisprudence means for the legal personhood of rivers. Nature, the environment, and even single complex ecosystems, are seldom easily quantifiable as bounded entities with geographically clear borders. Within the complex spectrum of establishing where a legal subject ends and another begins, however, rivers are more easily identifiable. A river’s very being is premised on historicized boundaries that measure its watery ambit from riverbed to riverbank. Still, rivers elude a final, clearly defined, and uncontroversial description. As a result, they inhabit a liminal space, one that is at the same time geographically bounded, yet metaphorically transcendent, physically shifting, and culturally porous.

Drawing on comparative case studies from Ecuador, Colombia, India, New Zealand, the United States, and Australia, this Article explores the deep and often murky bond of the river and us. This relational, ancient, and ultimately environmentally urgent bond forms the prism through which the rich story of legal personhood, ontological change, and the consequential nitty-gritty of river governance is told. Indeed, this complex story is best heard through the metaphor of song, since “[i]f we are to take metaphor seriously, we must explore its poetic dimension, the persuasive power of its rhetoric, coupled with its aesthetic appeal.” In seeking to discern a river’s legal personality, we ask, can we hear the rivers sing?

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Of Protest, the Commons, and Customary Public Rights: An Ancient Tale of the Lawful Forest

In this article, John Page and I explore an ancient tale of customary public rights that starts and ends with the landmark decision of Brown v Tasmania. In Brown, Australia’s highest court recognised a public right to protest in forests. Harking back 800 years to the limits of legal memory, and the Forest Charter of 1217, this right is viewed through the metaphor of the lawful forest, a relational notion of property at the margins of legal orthodoxy. Inherent to this tale is the tension that pits private enclosure against the commons, a contest that endures across time and place – from 13th century struggles against the Norman legal forest, through to modern claims of rights to the city.

This article is now available as an Advance copy with the UNSW Law Journal.

Water justice struggles as a process of commoning

The discourse of the human right to water has been critiqued for being overly individualistic, technical, compatible with the commodification of water (Bakker, 2007; Roithmayr, 2010; Bond, 2012), and as running the risk of overly centring the state (Dwinell and Olivera, 2014; Haiven, 2015; Angel and Loftus, 2017). These concerns have also been borne out to varying degrees in the institutional recognition and articulation of the right at both the United Nations and national levels (Clark, 2017). Due to the consensus-driven, ‘post-political’ nature of these forums (Rancière, 2004), Sultana and Loftus (2012: 9) acknowledge that this institutional engagement risks stripping the right to water of its conceptual weight – rendering it ‘a floating signifier devoid of any political content’. But they also signal a note of caution against overemphasizing the significance of these largely theoretical debates at the expense of empirical realities (Sultana and Loftus, 2012, 2015).

I have argued elsewhere that community-level water justice campaigns that elect to employ the discourse of the human right to water often successfully resist the deradicalizing risks of engaging with both the state and rights discourse (Clark, 2017). Building on this thesis, this paper will emphasize the everyday empirical realities water justice campaigns to explore whether the process of articulating and, particularly, of claiming the right to water can itself be described as a practice of commoning.

— Read more over at the Community Development Journal