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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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

The fight to make water a human right

[Excerpt from article over at Eureka Street.]

In 2010, the United Nations General Assembly and Human Rights Council recognised the existence of a human right to water, guaranteeing access for everyone to ‘sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses’.

Eight years on, it is past time that Australia incorporated this right into domestic law. Nonetheless, any push to do so will face an uphill battle, due to the awkward position occupied by human rights within our culture.

Surveys of the Australian population have found a significant gap between those who believe our human rights are sufficiently well protected, and those more disadvantaged groups who experience a very different reality. Our political class also has a history of ambivalence, or even hostility, to providing more comprehensive protection for human rights, and has been especially reluctant to legally recognise socioeconomic rights.

–Read more over at Eureka Street.–

The forgotten people of the Flint water crisis

Last Wednesday, five Michigan officials were charged with involuntary manslaughter for their role in the unfolding health crisis in Flint, Michigan — a crisis that has included at least 12 deaths from Legionnaires’ disease, in addition to the possible lead poisoning of a whole population.

These charges are significant, but there are lingering questions as to who else is culpable and why the crisis remains unsolved.

Despite the narrative you often hear, the water crisis in Flint was not discovered by investigative reporters, Virginia Tech researchers, or doctors. The people of Flint were aware that something was wrong from the moment their water was switched over to the Flint river in April 2014. They just couldn’t get anyone to listen.

I have a new article in Eureka Street on the Flint Water crisis. You can read the rest of it here.

Detroit

I’m in Detroit, Michigan for a few days, doing a bit of research into the water shut offs here and the contaminated water crisis in Flint. I’ll write more about this later, but here are a few photos for now.

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