The granting of legal personhood to non-human entities is not an alien concept. It is commonly known that corporations are regarded as legal persons, having the right to initiate actions in court, to sue and/or be sued. What about other non-human entities such as a river or a mountain? Would it be appropriate to grant such legal personhood to nature? In Malaysia, growing concerns have arisen especially in respect of water pollution resulting from fast-paced economic development. An inventory conducted by the Department of Environment in 2017 revealed that river pollutions in Malaysia are attributed to five main industries namely, the manufacturing industries, agricultural industries, sewage treatment plant, piggery and wet market.
In 2020, over 1 million residents of Klang Valley were affected with multiple water disruptions over the course of a few months mainly due to pollution and in 2019, we were alarmed with the news of the Kim Kim River toxic pollution which affected more than 6,000 residents in Pasir Gudang, Johor. Would the introduction of “environmental personhood” to rivers be of aid to curb river pollution in the country? In this article, we will provide you with an insight on the concept of “environmental personhood” and discuss on whether such concept is suitable to be adopted in Malaysia. For the purpose of this article, we will be focusing on the conferment of the concept of “personhood” to rivers.
What is Environmental Personhood?
Environmental personhood is a legal concept which designates certain environmental entity such as river with the status of a legal person. A legal person is a legal abstraction which refers to any subject matter other than a human being to which the law attributes personality. Legal persons, being the arbitrary creations of the law, may be of as many kinds as the law pleases.
The concept of environmental personhood was and is still being advocated by environmentalists to protect and preserve the environment.
The idea of ascribing legal personality and recognising environmental interests was first advanced by Professor Christopher D. Stone in his book entitled “Should Trees Have Standing? Toward Legal Rights for Natural Objects” which was published in 1974. Professor Stone had in his writing suggested that natural resources be given legal personality to possess legal standing in court. The embracing of the rights of nature through the concept of environmental personhood has been adopted in certain countries. For instance, countries such as Ecuador, Bangladesh, New Zealand, Australia and have subscribed to the idea by granting personhood to their rivers.
Ecuador was the first country to proclaim the rights of nature (“Pacha Mama”) in its Constitution in 2008. Article 71 of the Constitution states that nature “has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes”. In practice, that means that all persons, communities, people and nations can demand that Ecuadorian authorities enforce the rights of nature. One the right to be restored whereby the State is required to establish the most effective mechanisms to achieve the restoration and shall adopt adequate measures to eliminate or mitigate harmful environmental consequences.
In Ecuador, the people and government can “step into the shoes” of nature and bring an action on its behalf when they witness failure in upholding the nature’s rights. The first successful case was brought in 2011 by the Vilcabamba River. Its representatives in court were an American couple with riverfront property, who sued the provincial government of Loja, arguing that a planned road project would deposit large quantities of rock and excavation material into the river. The provincial court of Loja ruled that the rights of the river had been violated by government road construction and ordered the restoration of the affected river corridor.
Bangladesh is well known as the “land of rivers”. In July 2019, the Supreme Court of Bangladesh has granted all the rivers in Bangladesh with the rights and status of “living entities”. This means that all the rivers in Bangladesh now possess legal rights. The ruling was made to protect the world’s largest delta from further degradation from pollution, illegal dredging and human intrusion.
Following the verdict, the government appointed National River Conservation Commission may on behalf of the rivers initiate legal action in court against anyone who causes any harm to the rivers.
New Zealand had in 2017 gazetted the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 which grants the Whanganui River with legal recognition as a legal person having all the rights, powers, duties, and liabilities of a legal person. This legislation was drafted following the disputes between the Crown and the indigenous Maori tribes on the status of the Whanganui River which resulted in a settlement which granted the river its own legal identity. The legislation provides that the Whanganui River is to be represented by a guardian, Te Pou Tupua, who is required to act and speak to the benefit of the river’s health and well-being.
Te Pou Tupua will consist of two persons, one appointed by the Crown, and the other by Whanganui Iwi, and are required to act as one. Statutory independence for the guardians is granted by the legislation, and financial support is assured through a series of payments to the river by the Crown, including a NZ$30million contestable fund, which can be used “to support the health and well-being of Te Awa Tupua” and support will be offered to Te Pou Tupua through Te Karewao, an advisory group established by the Act.
A strategy group consisting of up to 17 key stakeholder representatives is also established pursuant to the legislation to develop and approve, review, and monitor the implementation of a strategy document, Te Heke Ngahuru, for Whanganui River. The 17 key stakeholder representatives, include iwi with interests in the Whanganui River, local and central government representatives, tourism, conservation, recreation, and wild game interests, and Genesis Energy Limited, the operator of the Tongariro Power Scheme, which currently diverts 82% of the headwaters of the Whanganui River for hydropower.
In Victoria, the Victorian Environmental Water Holder (“VEWH”), a body corporate with the capacity and responsibility to hold and manage water rights for the purpose of maintaining and improving the health of the aquatic environment, was established in 2010. The VEWH was created as a legal person with the capacity to hold water rights, to decide how to use the available water each year, and was granted the power to buy and sell water on the water market. The VEWH has the capacity to sue and be sued, to enter contracts, and the power to acquire, and hold and dispose of real and personal property on behalf of the environment. With three commissioners and a small staff, composed of state public service employees, VEWH acts as a guardian for instream environmental flows, working with other environmental water holders and catchment management authorities to determine where, when, and how to use the water for the environment in the state of Victoria.
Its funding comes from a levy placed on all water users in Victoria, which is designated for sustainable water resource management. Apart from the above, the state of Victoria had in 2017 enacted the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 which recognizes the Yarra River as “one living and integrated natural entity”. Pursuant to the legislation, Birrarung Council was appointed by the Government to be the independent voice of the Yarra River.
The appointed members bring to the Council a broad range of knowledge, industry experience, passion and advocacy for the protection and improvement of the Yarra River and surrounding area. They include the Traditional Owners, environmental and agricultural industry groups, Yarra River land local community groups and other members selected for their specific skills. In February 2017, the Victorian Government released the Yarra River Action Plan which established among others, the development of a 50-year Community Vision and a Yarra Strategic Plan to be made every 10 years. The Yarra River 50 Year Community Vision was launched in May 2018 and defines the community’s values and priorities for the river and its parklands and sets the narrative for its protection and improvement.
In November 2016, the Colombia Constitutional Court declared the Atrato river basin to be a legal person possessing the rights to “protection, conservation, maintenance, and restoration”. The decision was however unique as the judge awarded such rights to the Atrato river basin because of what it provides for human life and not because it should be equated with human life.
In Malaysia, there is no specific provision in the Federal Constitution pertaining to environmental protection. Notwithstanding that, Article 5 of the Federal Constitution provides for the right to life and liberty. Right to life and liberty was described in the case of Tan Teck Seng v Suruhanjaya Perkhidmatan Pendidikan to include the right to live in a reasonably healthy and pollution free environment.
Although none of the provisions in the constitution relates to environmental rights, environmental laws have been passed to prevent and control environmental pollutions. For instance, the Environmental Quality Act 1974 covers a wide range of environmental problems such as air pollution, noise pollution, pollution on land and pollution of inland waters.
In respect of river protection, section 25 of the Environmental Quality Act provides restrictions on pollution of inland waters (which shall include rivers) and prescribes that any person who contravenes such restrictions shall be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a period of up to five (5) years or both. The law also prescribes for a further fine not exceeding one thousand ringgit a day for every day that the offence is continued after a notice by the Director General requiring him to cease the act specified therein has been served to the offender.
In addition, the Waters Act 1920 prohibits the conduct of acts affecting rivers, except in accordance with the terms of a licence issued pursuant to the act to prevent unauthorised actions which would affect rivers such as falling trees into rivers, obstructing and interfering with any river. The Waters Act 1920 also prohibits pollution of rivers by preventing the discharging of substances into any river unless expressly authorised by any express grant made by or on behalf of the state authority. Other important legislations which provide for the protection of environment in general include the Wildlife Conservation Act 2010, the National Forestry Act 1984, the Fisheries Act 1985, the National Parks Act 1980 and the Land Conservation Act 1960. The existence of these laws indicates the awareness on the need for environmental conservation in the country. The current issues with environmental protection in Malaysia deserve a close attention. One of the major problems is the existing conflicts between the state and the federal authorities in respect of water governance. Constitutionally, matters relating to land, forest, and water resources are under the jurisdiction of the State. However, it seems that there is a conflict between the Federal Government and the State Government in terms of the maintenance and governance of such matters falling under the jurisdiction of the State when the same is viewed in the context of environmental protection as the Federal Constitution does not expressly demarcate the boundaries of federal and state powers over environmental issues.
Both “environment” and “pollution” are not defined in the Federal Constitution. This has resulted in numerous clashes between the federal and the state in respect of the implementation and enforcement of acts and by-laws in relation to environmental protection. The Court of Appeal had in the case of Ketua Pengarah Jabatan Alam Sekitar v Kajing Tubek held that environment is a multidimensional subject which could be related to various subjects in the Federal, State and Concurrent Legislative Lists. Any impact upon the “environment” must relate to or be in respect of some activity that is connected with and having an adverse effect upon either land, or water, or the atmosphere or a combination of them. The federal law would govern environmental issues arising out of subjects in the Federal List, while the state law would deal with those aspects of the environment that could be related to land, water and forests, which are state subjects.
It is without a doubt that a successful implementation and enforcement of environmental protection can only be realised through the synergy and collaboration between the Federal and the State Government. In light of the above, it is worth to consider amending the Federal Constitution to assign environmental protection to the Concurrent Legislative List to boost joint efforts and cooperation between the Federal Government and State Government to enhance environmental protection in the country. As it stands, environmental proceedings in this country can only be instituted by the Attorney- General, and the rate of environmental prosecutions is quite low. Individuals and Non-Governmental Organisations (NGOs) have limited standing to commence action against projects affecting the environment. Hence, numerous calls have been made to the government to amend the constitution, such as the recommendation made by the Environmental Law Review Committee in 1992 and a call at CAP-SAM National Conference State of the Environment in Malaysia in 1996 proposing and stressing the importance of the inclusion of right to a clean and safe environment in the constitution.
Issues Relating to the Adoption of Environmental Personhood to Rivers in Malaysia
Before jumping on the bandwagon, following suit of the countries which have adopted the idea, a lot of considerations must be taken into account. The adoption of the concept of Environmental Personhood and the granting of legal rights to rivers in Malaysia may not be as easy as it sounds. Firstly, as provided under the State List and further supported by other legislations such as the National Land Code 1965 and the Waters Act 1920, rivers fall under the jurisdiction of the State. This means that the ownership over rivers is vested to the respective State Government. Granting legal rights to a river would result in the river being an independent legal entity in its own rights. The bestowing of legal rights to rivers can only be achieved if the respective States are willing to give up on the ownership over the rivers. Some other questions that must be answered prior to the awarding of legal rights to rivers are: would all rivers in Malaysia be declared as a legal person? If no, what are the determining criteria that would qualify a river to be vested which such right? Also, who would be appointed as the guardians to represent the rivers in the enforcement of their rights? What would qualify such persons to be the guardians of the rivers? The proposed guardianship approach will be discussed below.
The second issue which must be considered is the jurisdictional issues. Rivers don’t obey borders, they often traverse more than one country. It would serve no purpose if a country grants rights to its river but the neighbouring country does not. In such situation, the waterway will not be fully protected against environmental harm. This situation can be seen in Bangladesh and India where the Bangladeshi environmental activists have difficulties in compelling India to comply with the new law on rivers. In India, the Supreme Court had overturned the decision of the Uttarakhand High Court which granted legal personhood to both the Ganges and the Yamuna rivers in 2017 on the ground of impracticality because the rivers stretched far beyond Uttarakhand.
The India Supreme Court had through its judgment stripped the rivers of their short-lived legal rights. Further, consideration must be given to the impact of such grant on the surrounding community. What would happen to all the people whose livelihoods depend on the rivers? Would the grant of legal rights to mean that all activities such as fishing and utilisation of the waters are prohibited? Should legal rights be granted to rivers, a set of legislations and rules must be put in place to set out the definition of “harm” against the rivers and to provide the extent to which the rivers may or may not be utilised. Another issue that may be considered in granting personhood to rivers in Malaysia is the issue of funding. Not everybody is willing or has enough money to file a lawsuit in the court.
Would the guardians of the rivers be responsible for funding the suit against the offenders of the rivers? Would the guardians have sufficient funds and resources to commence the action and to ensure the enforcement of any judgment? An example of this can be seen in Ecuador, where an Non-Governmental Organisation, Global Alliance for the Rights of Nature (“NGO”) sued a construction company that wishes to build a road over a river. The NGO won in court, however, the company did not obey the ruling. Unfortunately, the NGO did not have enough funds to launch a second court case against the company. As a result, the ruling was not properly enforced. There is no point in bestowing a right without proper enforcement assurance.
The Guardianship Approach
Nature resembles the disabled and corporations in certain ways, and thus, legal personhood should be extended to nature. Notwithstanding its inability to express its desires, the fact remains that nature comprises of both living and non-living entities which deserve protection. It is generally accepted that disabled persons who may have limited capability to express their desire are entitled to and granted with special personhood status in order to protect their rights as human beings.
If we are willing to grant guardianship and representation to a group of people who technically lack the agency to be considered a metaphysical person, then our Mother Nature, specifically our rivers, too, has a basis for being granted similar representation and guardianship.
The next consideration would be who should be appointed as the guardians to represent rivers? A guardian considers the wishes of the individual in question when making legal decisions for them. In addressing this concern, the guardian shall not be made up of solely the State or the Federal authorities as they have existing conflicts in water governance as mentioned above. One of the proper ways to ensure fair guardianship of a river would be for environmental scientists to represent it in legal matters. It is important that rivers be represented by persons who are adequately versed in their processes and needs to ensure proper protection and unbiased aid.
The ideal guardian would be one who focuses their studies on and has direct experience with the particular ecosystem in question as a specialized expert will have a better understanding 7 of the conditions of the specific ecosystem, as well as what would be in its best interest for maintaining an equilibrium for sustaining life. Further, we may foster the models as adopted in countries which have granted legal personhood to rivers by appointing aborigines who depend on river and non-governmental organisations which aims at protecting the nature including the rivers as the guardian of rivers.
The Advantages of Granting Rivers Environmental Personhood
Despite all the outstanding issues as discussed above, there are some advantages worth mentioning to support the adoption of this legal concept. Firstly, it would contribute to the sustainability of a balanced equilibrium for both the flora and fauna as it would protect their natural habitats from harm. The destruction of any one thing in nature will cause detrimental effects on the rest of the ecosystem due to the interrelated nature of reality.
The Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Service reported that humanity is currently experiencing the sixth mass extinction with over 1,000,000 species currently threatened. Living Law highlights that “protecting natural environments is a question of survival, not preference”. Hence, it is in everyone’s interest to enforce the rights of nature in legislation as well as in judicial rulings.
Secondly, the argument for the use of legal personality for protecting nature is one of efficiency and cost effectiveness. If the injuries to the environment are ignored, then a significant proportion of the total injuries are not accounted for. If rivers are granted legal rights, their representative would be able to initiate action against the perpetrator and the compensation granted by the court can be used for the restoration of the rivers. Although we have witnessed perpetrators of river pollution be charged in court, we have not been able to see how the same has deterred river pollution in the country. This is because the number of perpetrators charged for river pollution is low as compared to the actual pollution which had taken place. Granting legal personhood to rivers and appointing representatives to represent rivers as legal entities may contribute to a more efficient protection of the rivers and implementation of environmental laws.
Granting the status of personhood to a river may seem like a bizarre legal fiction, when it is in fact not. We have seen other countries successfully implementing and legalising such concept. It is no doubt that the granting legal rights to rivers may aid in overcoming river pollution. However, it does not mean that we cannot curb the issue of river and/or environmental pollution without the implementation of such concept as we have in place legislations which are aimed at protecting and conserving the environment. Perhaps, what we would need now is the enhancement and uncompromising enforcement of the environmental law.
Alongside with the enhancement of enforcement, the authorities may wish to consider imposing more severe punishments against the offenders. It is not impossible that one day, Malaysia will follow suit in granting legal rights to rivers once all the above mentioned issues and other considerations are contemplated and resolved.
- John W. Salmond, “Jurisprudence or the Theory of the Law” (1902), section 114, page 343.
- Article 72 of the Constitution of the Republic of Ecuador 2008.
- Section 14 of the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017.
- Section 20 of the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017.
- Section 27 & 28 of the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017.
- Section 29-34 of the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017.
- Water Act 1989, Section 33DB.
- Water Act 1989, Section 33DF and 33DM.
- Section 49(1) of the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017.
-  2 CLJ.
- Ibid, page 801.
- Section 25(1) of the Environmental Quality Act 1974.
- Section 25(3) of the Environmental Quality Act 1974.
- Section 5 of the Waters Act 1920.
- Section 7A of the Waters Act 1920.
-  3 MLJ 23.
- Environmental Personhood: The Movement Trying To Protect Nature’s Rights.
Fozi Addina Mohamad Fozi (email@example.com)