The River’s Legal Personhood: A Branch Growing on Canada’s Multi-Juridical Living Tree

Abstract

Relationships with rivers in British Columbia are often imbued with social and material toxicity. Learning from three sources of law in British Columbia—Indigenous, Canadian, and international law—this article draws out one potential remedy to the imbalanced relationships between humans and rivers through exploring the viability of declaring the rights of nature in accordance with the socio-cultural and doctrinal frameworks embedded in these three sources of law. By taking seriously storied precedents and governing practices from the ‘Namgis, Heiltsuk, and W̱SÁNEĆ Nations, this article is guided by their water relations, governance, and legal orders. In expanding Canadian conceptions of personhood, challenging anthropocentrism within section 7 of the Charter of Rights and Freedoms, and expanding section 35 constitutional protections, this article also leverages Canadian legal concepts and protections for remedying river relations. Drawing upon the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) further guides the process of affirming the rights of rivers, especially in light of legislation that has codified UNDRIP domestically. Braiding these three sources of law indicates that subsequent rights of nature cases should be rooted in the interpretative and analytical framework of Canada’s multi-juridical living tree.

Attending to the Full Moral Landscape

“…Although there are many promising areas of exploration into what our moral obligations to the other-than-human world might be, including substantial work on the Rights of Nature (Ambers 2022;Hessler & Aguas, 2023) and enshrining legal protections, my focus is the personal, and so I want to suggest personal obligations that are overlapping and complementary. One obligation to the other-than-human world is to learn about it.…”

“…In fact, most of humanity has had deep emotional experiences of connection with the other-than-human world (King, 2015), whether with songbirds in the backyard, the majesty of an old-growth forest, or the simple beauty of a tomato plant creating fruit. Indigenous cultures are often rooted in deeply interconnected knowledge of and relationship with the rest of nature (Ambers, 2022;Kimmerer, 2013;Russel et al, 2013). We are still able to appreciate that human beings are not separate from the rest of the world but are, in fact, members of a land-community that includes water, soil, plants, and animals (Leopold, 1987).…”

“…While researching and writing this article, my methodology was one of broad, open-ended, non-structured engagement with numerous perspectives and approaches to environmental philosophy, including Aldo Leopold's view of environmental ethics (1987), the Deep Ecology movement (Armstrong-Buck, 1991;Drengson & Inoue, 1995), the Gaia hypothesis (Abram, 1985;Midgely, 2000), Indigenous ways of knowing and relating to the land (Kimmerer, 2013;Tully, 2023), and contemporary legal Rights of Nature theory and practice (Ambers, 2022;Hessler & Aguas, 2023). The entire process of engagement was kickstarted in the summer of 2022 by reading Robin Wall Kimmerer's Braiding Sweetgrass (2013), which inspired me to imagine how Kimmerer's weaving of Indigenous and scientific knowledge might relate to moral philosophy and environmental ethics.…”

“…For an exploration of how relationality informs Indigenous ways of knowing and governance, seeAmbers (2022) and Tully (2023). For more information on reciprocity and relationality in general, seeKimmerer (2013).…”

“…That said, asAmbers (2022) pointed out, arguments against the personhood of natural actors on the basis of rationality are often founded on the "ontological assumption that human beings are the dominant rational beings" (p. 14). Discounting the rationality, agency, or personhood of other-than-human beings on the grounds of dissimilarity to human beings is an anthropocentric fallacy, and non-human agency/rationality is an important area to explore.…”