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Interview: Linda Sheehan on the Rights of Waterways

Posted on June 14, 2013
Written by Clark Kingsbury

For its fifth and final Creating a Blue Dialogue webinar of the 2012-2013 season, the POLIS Water Sustainability Project focuses on the legal rights of the natural world. Drawing on case studies from around the world—including the Whanganui River in New Zealand—guest speakers will discuss the importance of rights of waterways, progress that has been made, and challenges that lie ahead.

Water Canada spoke with Linda Sheehan, executive director of the California-based Earth Law Center and one of the webinar’s guest speakers, to learn more about her thoughts on the rights of waterways.

Linda Sheehan

Water Canada: What does it mean to extend rights to the natural world, and waterways in particular?

Linda Sheehan: Our environmental protection laws are grounded in the assumption that the elements of the natural world are resources to be used to fuel unending economic growth. So, while these laws may slow the rate of environmental degradation, they cannot ultimately reverse it as long as we cling to the fallacy of unending, Earth-fueled economic growth on a finite planet. Further, these assumptions ignore the science and ethics of our integration with the natural world. We assume that we are separate from and masters of the natural world, but in reality we are interconnected partners on a small, shared planet.

Acceptance of these facts leads us to examine the foundations of human rights, and consider the recognition of the rights of our partners on Earth. Just as we recognize the need to protect inherent human rights from the excesses of the state, so too should we protect our partners on Earth from the excesses of humans and our human governance systems. Like our own human value, the value of nature does not arise from our decisions on its worth, but rather from its existence on this planet.

How do we go about changing the view that water is little more than a resource to be exploited?

To start, we should recall that many First Nation groups in Canada, and indigenous groups around the world, do not see water as simply a resource to be exploited. Educating people about that viewpoint, which exists now, is one way to bring us back to an understanding of our true, interconnected relationship with water. Viewing water as a resource only may be current in our economic system, but certainly not one that we as humans have espoused universally and forever.

Second, we can start to draw analogies with the human right to water movement. In July 2010, the United Nations approved a resolution in support of a human right to water for basic needs. But just as people hold this right, so too do waterways and their inhabitants have a right to the water they need to exist, thrive and evolve.

Finally, there is a broad legal doctrine called the “Rule of Law” that loosely means “no one is above the law.” But beyond our human rule of law is “Nature’s Rule of Law,” which means that we and our governance systems must respect and follow the overarching laws of nature.

Is there a balance to be struck between allowing humans to flourish, and protecting the rights of nature? Is there room for reconciliation between these two opposing points of view?

There is a common misconception of our relationship with the environment as “either-or”–either we can protect our human well-being, or we can protect the environment’s. That’s a false dichotomy. We are inextricably linked up with our environment. With respect to waterways, for example, we will see that if we max out water diversions in service to our current definition of “flourish,” we will quickly drain most of what’s there now and pollute what’s left.

The balance to be struck involves recognizing that we cannot flourish unless the natural world also flourishes. We need to take care of the environment which takes care of us, and to do that we need to give it a seat at the table through rights to flow. By recognizing the inherent rights of the natural world, we will create the necessary legal and economic structures needed to evolve our own behavior to ensure the collective well-being of all Earth’s inhabitants.

Can you briefly discuss some examples of governments affording rights to waterways, whether in North America or elsewhere?

Ecuador amended its Constitution in 2008 to recognize the rights of nature–including waterways–to exist, thrive and evolve. The new Constitution also grants “any person” standing to “demand the observance of the[se] rights,” and adds that in such actions, “Nature has the right to be completely restored.”

In New Zealand, an August 2012 court agreement between the Crown Government and the Maori iwi declared the Whanganui River and its tributaries to be a separate legal entity with rights to exist and flourish as an “integrated, living whole.” and set up a co-guardianship arrangement to protect those rights.

Municipalities around the United States have begun passing similar local laws recognizing the rights of waterways. For example, in response to threats associated with proposed hydrofracking, the City of Pittsburgh, Pennsylvania passed in late 2010 an ordinance stating that “natural communities and ecosystems, including, but not limited to, wetlands, streams, rivers, aquifers, and other water systems, possess inalienable and fundamental rights to exist and flourish within the City of Pittsburgh.” More recently, in April 2013, the City of Santa Monica, California passed an ordinance that recognized the rights of natural systems in the City to “fundamental and inalienable rights to exist and flourish within the City of Santa Monica.”

What steps must Canada take towards effectively protecting their waterways and allowing them to flourish?

One thing that Canadians can do now is to start to recognize the rights of waterways in law locally, as cities and towns in the United States are doing. Canada’s Constitution Act 92(8) states that the provinces make laws on municipalities, but provincial laws may allow for municipal authority to recognize the rights of waterways. For example, B.C. Community Charter (SBC 2003) Ch. 26 states that municipalities may pass bylaws on nuisance, environment, and public health under “concurrent authority.” B.C. Reg. 144/2004 (Community Charter, Spheres of Concurrent Jurisdiction — Environment And Wildlife Regulation) explains that municipalities can pass bylaws to “regulate, prohibit and impose requirements in relation to polluting or obstructing, or impeding the flow of, a stream, creek, waterway, watercourse, waterworks, ditch, drain or sewer, whether or not it is located on private property”–without provincial approval. Similarly, B.C. Reg. 42/2004 (Community Charter Public Health Bylaws Regulation) states that municipalities may pass bylaws without provincial approval for the “protection, promotion or preservation of the health of individuals” and the “maintenance of sanitary conditions.” One or both of these regulations can be used as the basis for local bylaws that recognize the rights of waterways to flow, and flow with clean water. They can also be used to support targets to improve waterway health, such as through Vancouver’s Greenest City Action Plan.

Register for the June 24 webinar.

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