O’Donnell, E. 2020. Legal rights for rivers. Competition, collaboration and water governance. Routledge. ISBN 9780367584160. 212 pages. US$50.
Marco Immovilli
PhD candidate, Department of Sociology and Development and Change, Wageningen University & Research, The Netherlands; marco.immovilli@wur.nl
To cite this Review: Immovilli, M. 2021. Review of "Legal Rights for Rivers. Competition, Collaboration and Water Governance", Routledge, 2020, by Erin O'Donnell, http://www.water-alternatives.org/index.php/boh/item/242-legal
In this book, Erin O’Donnell reflects on some of the possible implications of legal personhood for rivers for water governance and river basin management. As the author acknowledges, this importantly helps to shift the attention from the question of whether rivers can (and should) have legal rights to that of what are the outcomes when they actually are given these rights. The author does so by drawing lessons from Environmental Water Managements (EWMs) in Australia and the US. EWMs are a typical example of market environmentalism to address ecological issues: they are identifiable organizations who have the capacity to purchase and manage water rights with the objective to improve the health of the aquatic environment and maintain the improvements over time. While EWMs do not formally establish legal personhood for rivers, they enable (part of) the aquatic environment to become visible to the law and, importantly, to take on features of legal subjects: via EWMs, the aquatic environment becomes an entity with power to enter contracts, hold water rights, sue and be sued. For these reasons, O’Donnell sees EWMs as valuable experiences to critically reflect on the implications of legal rights for rivers.
O’Donnell analyses Australian (Chapter 4) and US (Chapter 5) EWMs using a conceptual framework (Chapter 2) that tracks the different ways the environment is constructed in law (as a socio-ecological concept, as a legal object, as a legal subject) and the cultural narratives that underpin them (the environment is weak and therefore deserves protection, the environment is able to protect itself).
In the Australian case, the aquatic environment is framed through the EWMs in a competitive manner as “just another user” of water. While this can facilitate water rights management, it also strips the environment of its “special status and needs” as the underlying ecosystems supporting all of the other users’ needs and interests. The aquatic environment is therefore seen as a “strong” actor represented by EWMs and, therefore, does not need further protection than that obtained through water rights management. In the US, instead, EWMs strive for collaboration between users and they frame the environment as a “weak” actor who cannot protect itself and, therefore, needs special attention and protection via water rights. Here, the river is not simply “another user”, like in the Australian context, but rather, it retains its “special status and needs”.
In the US context, when EWMs manage water rights, they pay attention to creating stronger community bonds around environmental protection, therefore they try to avoid direct confrontations against other users of the river. While this supports the narrative that the environment deserves special attention, it comes with lengthy negotiations and EWMs might be reluctant to litigate when conflicts emerge. In other words, US EWMs risk to be constrained by the very same framing of the environment as “weak”.
From both cases, O’Donnell identifies a paradox: constructing the aquatic environment as a legal subject evidently increases the legal powers for its protection but, at the same time, it might lower environmental protection by weakening the cultural narratives that support environmental protection. Since this paradox is a consequence of the legal personhood, O’Donnell says, “this is a significant problem for legal rights for rivers” (p.151).
In Chapter 7, O’Donnell reflects on recent cases of rights of rivers (New, Zealand, Colombia and India) through the same conceptual framework and similarly identifies narratives of competition (India) and collaboration (New Zealand and Colombia) in the construction of legal rights for rivers. In the last chapter, the reader is faced with the fundamental question of whether legal rights for rivers are “cause for celebration or concern?”. The answer, obviously, cannot be simple nor definitive and O’Donnell stresses again the paradox described above: more legal power to rivers in the form of legal personhood might weaken cultural narratives of environmental protection. The author points at the need to look at legal rights for rivers as they are drawn into the complicated socio-economic, cultural and political context and highlights the crucial relation between this context, legal personhood and power imbalances between actors and narratives. The question of water governance becomes central: “Without appropriate measures to connect people and place, and strengthen cultural values, new legal rights for rivers can easily backfire, leading to legal reform that weakens river protections once again” (p.195).
This book’s aim is to reflect on the consequences of the legal personhood for rivers for water law and governance. The author offers insights into possible implications for water governance but it remains unclear how these lessons could be applied in real cases. Notwithstanding this, the main contribution of the book seems to be at a theoretical level with a conceptual framework that brings into dialogue legal constructions and the broader socio-economic, cultural and political context they are drawn into. This very relation, as it emerges from this book, is the critical place that can tell about the future implications of legal rights for rivers. Importantly, O’Donnell reflects on issues of power imbalances between authors and narratives as being elements for legal personhood’s success or failure. Overall, O’Donnell offers a critical reflection on the recent practice of establishing legal personhood for rivers and this forward-looking investigation, intelligently built from EWMs, is very much welcome, considering the momentum legal personhood is gaining in water and environmental law and governance.
