Dialogue on Rights of Rivers (Report and annexures)
The dialog was held on 6-7 March 2020 at Sanskriti Kendra, Delhi.
This report (click here to download report) is compiled by Shrishtee Bajpai with inputs from Ashish Kothari, Abhayraj Naik, K.J. Joy, S.P. Ravi, Soumya Dutta and Ayesha D’Souza. This dialogue was financially supported by the Global Green-Grants Fund (GGF).The dialog was held on 6-7 March 2020 at Sanskriti Kendra, Delhi
A series of events across the world have signalled the beginnings of a radical shift from an extractive mindset to one where conservation safeguards are being extended to nature. There are many reflections of this, from indigenous peoples’ assertions to govern and conserve their territories to international treaties such as the United Nations Convention on Biological Diversity, which is legally binding on all signatory nations. In many of these, there are varied expressions of the recognition of the Rights of Nature in formal or non-formal ways.
In India, the Uttarakhand High Court in December 2016 and March 2017 ruled that the Indian rivers Ganga and Yamuna, the Gangotri and Yamunotri glaciers, as well as other related parts of nature were ‘juristic/legal person/living entity’ having ‘the status of a legal person, with all corresponding rights, duties and liabilities of a living person’.[i] The Supreme Court of India subsequently has stayed the implementation of these orders. The same judge responsible for the rights of rivers judgments from the Uttarakhand High Court has also been responsible for more recent judgments recognising the rights of animals as legal persons and for recognition of a lake as a legal entity with rights.[ii]
Bangladesh, Nepal and Bhutan have also been witnessing developments for the Rights of Nature. For example, in January 2019, the Dhaka High Court in Bangladesh recognised the river Turag as a living entity with legal rights and held that the same would apply to all rivers in Bangladesh.[iii] Similarly, there has been an ongoing effort in Nepal to include rights of nature through a constitutional amendment.[iv]
Several of the above are related to granting rivers rights in various forms. However, there is a dire need to get clarity on what granting rights for rivers would mean. The court judgments in the Indian context have been abrupt, backed with no civil society or peoples’ mobilisation, do not explain the full implications of recognising rights of rivers, and are oblivious to complex governing mechanisms, implementation difficulties, and social repercussions. The granting of rights to the Turag River in Bangladesh is also marred with many implementation issues. However, some other situations like the New Zealand law on Whanganui River are much clearer on some of these aspects, based as it is on a century of Maori indigenous peoples’ struggle. Hence, the need emerged to have a dialogue on the rights of rivers in the South Asian context. The idea was to have an open discussion on the concept, brainstorm on difficult procedural/implementation issues, and to imagine what could be the future discourse to realise effective rights of rivers in South Asia.
The rights of rivers dialogue (RoR) was held from 6-7th March 2020 at the beautiful Sanskriti Kendra in Delhi and was co-organised by Kalpavriksh, International Rivers and LIFE. The dialogue aimed to gain a common understanding on what river’s rights could mean, what kinds of institutional mechanisms are needed for implementation, what pitfalls there may be in recognising such rights, and how they can be avoided. It involved sharing experiences from India, Nepal, and Bangladesh and from other parts of the world, and ideas for future advocacy, grassroots campaigning, and legal action if any. It brought together activists, academics, lawyers, and researchers to unpack the concept and decide a future course of action to develop a set of guidelines for recognising and enforcing the rights of rivers in so far as these are of use in conserving and judiciously using rivers. Our participants from Bangladesh, United States, Australia, and Ecuador had to cancel their trips because of the Corona pandemic but some of them joined us online to share their experiences.
Water Ceremony and introductions
The dialogue began with a water ceremony. The participants were requested to reminisce on their relationship with rivers and share that in a collective bowl of memories, relationships, and thoughts that each one of us holds dear for rivers. Friends from Nepal got waters from five rivers, while some others collected rain-water, leaves, flowers and other things around the Sanskriti campus to symbolize their connections with rivers and the rest of nature. It was a beautiful start to the dialogue as everyone cherished their connection with rivers, what it symbolizes in their lives and their work.
Session 1: Socio-economic, political, and cultural context of Right of Rivers (RoR)
K.J. Joy and Ashish Kothari set the socio-political context of the crises.
K. J. Joy centered his talk on three key issues:
1) The state of India’s rivers in terms of the multiple stressors on the rivers,
2) The socio-political-cultural context, and
3) People’s initiatives and social/resistance movements around rivers.
Some key concerns
- Closed basins (for example many rivers do not reach the sea as the entire flow is allocated to different human uses) and over-exploitation
- Damming/diversions and the impact on riverine eco-system (impact on water flow, sediment dispersal and biota), impact on downstream communities, and sinking deltas as sediment do not reach the delta.
- Pollution (industrial effluents, urban sewage and agro-chemicals). The situation of “urban rivers” is the worst in terms of pollution.
- Sand mining: there has been indiscriminate sand mining in most of our rivers.
- Privatisation of stretches of rivers for commercial and non-commercial purposes.
- Emerging large scale interventions in the rivers like Interlinking of Rivers (ILR), National Inland Waterways, River Front Development (RFD) etc.
- Different types of riverine conflicts – transboundary (both transnational and inter-state), inter-sectoral, pollution related, dams and HEPs, etc
All these are related to several connected factors:
- The model of development (extractive, anthropocentric, higher and higher growth, etc.),
- Centralised and bureaucratic governance with little participation of long-time users/residents of riverine areas,
- Lack of legally mandated and democratic institutional spaces for different interests groups to come together to share data/information, experience, knowledge and reach negotiated agreements,
- And, lack of ecological understanding amongst those who take decisions, neglect of cultural/spiritual traditions related to rivers, etc.
In this respect, there are underlying inequalities — one, spatial or location disadvantages, and two, historically disadvantaged sections on the basis of class, caste, patriarchy, ethnicity, minorities of different types — that we need to think of when we talk about rivers.
K.J. Joy brought out that the discourses around the rivers, by employing Hindu upper caste, Brahminical, symbols and images, especially related to pollution as in the case of Ganga, cause alienation amongst certain communities (like Muslims, Dalits, etc) from their own rivers. Their worldviews don’t find the space in conservationist discourses. The second was to bring out the intrinsic connection of women and rivers, without necessarily essentialising this relationship.
Ashish Kothari further added to this context, by asserting the need to articulate worldviews emanating from the struggles of many communities that are resisting destructive development around water/river issues for over many decades. This is particularly important to bring out that many communities narrate a different notion of wellbeing which is closely tied with the wellbeing of the rest of nature.
The discussion around the issue of rivers in South Asia is closely connected with the political boundaries that are drawn not keeping in mind the ecological flows. And the conversation on river rights would invariably mean the conversation around rethinking political boundaries from ecological and cultural perspectives.
Several other points were added to the above presentations including the below:
- Transboundary rivers, political boundaries, geo-politics and conflicts
- Climate change and the demand for low carbon pathways leading to more hydro power projects – compromising the heart to protect the lungs
- Encroachments of the flood plains and dumping, siltation
- Ground-water extraction
- Issue of mindsets (mindset of looking at rivers – any drop of water flowing into the sea is a waste
Session 2: Sharing on Rights of Rivers experiences in South Asia and rest of the world.
Bangladesh: Sharif Jamil of Water Keepers Alliance and Bangladesh Poribesh Andolan
Sharif Jamil joined us via Skype to share updates around Turag River.
- On 3rd Feb, 2019, the Turag River which flows through Dhaka was accorded the ‘legal person’ status by the High Court. The verdict was later made applicable to all the rivers. Directives on how to protect rivers were given to government. For example, directives on how to deal with encroachments, no bank loans or other support to polluters, and those polluters should be arrested etc to name a few.
- In B’desh, there are 11 ministries and 17 departments related to rivers! Verdict asked for River Conservation Commission to be a custodian for rivers and that it coordinate with all the departments. Commission has taken steps to implement order. But in Feb 2020, Supreme Court verdict said that the Feb 2019 verdict is not implementable, on petition by some vested interests. Civil society is trying to challenge this.
- The commission is a statutory body, River Conservation Commission Act is limited in powers given to it, mainly recommendatory, and cannot overrule government departments. There is a proposal in the cabinet for revising the Act to give Commission more powers.
Latin America: Monti Aguiree of International Rivers
After many years of campaigning against river projects in L. America, a never-ending fight, Monti Aguiree decided to look at alternatives for long-term protection.
She raised some key issues in relation to granting legal personhood status to rivers:
- How to put verdict into action?
- What do we as a civil society need to do on the ground for implementing rights?
- Rivers as having ‘standing’, ‘personhood’, and custodianship … issues emerging from some judgements (e.g. on Rio Atrato in Colombia, where the court stumbled on understanding on how rivers could have a legal standing).
- How do we define a river? Some documents like the Universal Declaration of Rights of Rivers for defining rights but maybe we need a more comprehensive exercise to define a river.
Work happening in Chile, Brazil, other countries, and a large movement of river defenders as the next step from anti-dam movements. There is also a thought to establish an international coalition of river and defenders. Right now they are still discussing its purpose, structure, etc.
Global: Samir Mehta, Shrishtee Bajpai and Abhayraj Naik
Samir Mehta from International Rivers and Shrishtee Bajpai from Kalpavriksh gave a brief over-view of Rights of Nature discourse around the world. Later, Abhayraj Naik an independent consultant and researcher added some examples missed by the earlier speakers. A brief summary is presented below.
In light of increasing environmental degradation and climate conflict across the world, many legal instruments have been put in use to demand for Rights of Nature and challenge the dominant destructive paradigms.
For instance, in 2006, Tamaqua Borough, in the U.S. banned dumping of toxic sewage sludge as a violation of Rights of Nature.
Soon thereafter, in 2008, Ecuador became the first country in the world to recognise Rights of Nature in their constitution.
In 2009, the United Nations General Assembly adopted a resolution proclaiming April 22 as International Mother Earth Day. Later, in the same year, it adopted a resolution on Harmony with Nature.
In 2010, Bolivia held a World People’s Conference on Climate Change and the Rights of Mother Earth, where the Universal Declaration on the Rights of Mother Earth was issued and has been submitted to the U.N. for consideration.
In 2012, Bolivia also passed a law of Mother Earth and Holistic development for living well.
In 2015, alongside United Nations Climate Change Conference in Paris, a manifesto was adopted highlighting co-violations of nature’s rights and human rights around the world. In the same year, Pope Francis in U.N. in his address asserted that, “the ecological crisis, and the large-scale destruction of biodiversity, can threaten the very existence of the human species” highlighting the greed is destroying the environment.
In 2017, Mexico adopted Rights of Nature into their constitution. Along with this, Mexico is also working towards granting rights to Magdalena, Atoyac and San Pedro Mezquital rivers. In 2017, New Zealand adopted Te Awa Tupua act granting the Whanganui river legal rights. Colombia, U.S., Mexico, Scotland and other countries have also adopted policies and legislations recognising the rights of nature.
In the same year, in India, UHC ruled that the Indian rivers Ganga and Yamuna, their tributaries, and the glaciers and catchment feeding these rivers in Uttarakhand, have rights as a ‘juristic/legal person/living entity’.
Most of these are progressive steps, but sometimes short-lived due to change of governments or reversals by Supreme Court like in the case of India. Other countries with rights of rivers efforts include: Serbia, Nigeria, Chile, France, Canada, Pakistan, and France (as per https://www.ecologicalcitizen.net/pdfs/v02n2-13.pdf). The six Mekong river countries also have seen some talk of this approach, though nothing concrete in terms of law/policy yet.
A list of judgments, laws, and constitutional provisions regarding Rights of Nature is attached as an annexure to this report.
Nepal: Chiranjibi Bhattarai and Megh Ale from Nepal River Conservation Trust
Nepal’s rivers condition is no different from the rest of South Asia. They also have pollution, mining, dams that are threatening the survival of the rivers, its species and many dependent communities. The only river that is still free-flowing in Nepal is the Karnali River.
- In Nepal, conservation of rivers is mandated by constitution, but nothing on rights in that or in law / policy. Aquatic life law mostly for fishing regulation; all other related laws are on use.
- Several petitions filed by citizens on sand mining, pollution, dams, etc but so far not resulted in river rights.
- National River Summit organization is to demand comprehensive river conservation steps along with customary rights/livelihoods
- Proposal is also to extend community forest model to rivers, with communities owning stretches of river (local governments are positive towards such a proposal). This model is being tried out in Karnali but it needs global attention and support to the campaign to keep Karnali free-flowing (against proposed dam by GMR Corporation)
- There is a proposal to have river dialogues, a Samvad, on various media forums to create awareness and greater support for rivers.
Session 3: Group work on defining a river, rights of rivers, enforcement and implementation of rights.
The participants divided themselves into two groups to reflect on the below questions-
1) What is a river? What do rights of a river mean?
2) How do we enforce such rights? What will be issues of implementation and custodianship? And what would violations mean, who will be compensated and what would the compensation look like?
The summary of key points presented by each group is mentioned below:
What is a river?
The group working on defining rivers focused on these three self-imposed questions
- How to define in a way that does not hinder human needs/aspirations in /around river, in catchment etc, to continue activities that are not detrimental to river?
- Conversely, how to define in a way that forests, etc in catchments are protected, in relation to health of river?
- Cannot separate the river from human communities … especially even since notion of rights is a human notion, and across L. America rights of nature have been in relation to indigenous rights.
It was jointly agreed from the different points that emerged that depending on the objectives, e.g. to deal with encroachments etc in court, we can take limited definition, but for generating public awareness and long term struggle, a larger definition is needed.
- From the place the rain falls or snow melts, to the sea, and the whole basin, ecologically … including all the flows, underground, on surface, etc. all that could make up a river should be protected through rights.
- River is both prakriti (nature) and sanskriti (culture), with symbiotic associations it has; or is that which is independent of humans
- River is flow of water, surface, ground, and in air, with its bounds defined by the basin
- Each river with its own temperament with its flows, flooding, which is rooted in the entire basin
- Tangible and intangible elements, as considered by many traditional and river-dependent communities
- Cosmological approach to river, broad, spiritual, etc vis-à-vis strategic approach in rel. to legal system
Short-term definition (to deal with issues of encroachments, damming, interlinking etc)
Right to its space (including area in 25 to 100 year floods) which has not been defined until today by civil society groups working on river issues. For legal/practical purposes, the 25 and 100 year ‘flood’ would be the space that a river needs (though with climate crises floods much more frequent); and catchment, flora-fauna, geological formations etc can be considered separately but in harmony with health of river.
What are river’s rights?
- Whatever a river can do naturally, without hindrance
- But also since human civilisations have grown with/by rivers, their actions also important to look at. Rivers cannot be separated from the people.
- Right to flow (unhindered), meander, and to flood in its floodplains. Also include the soil and groundwater flow.
- Right of the river should include the rights of all that determine the health of the river. The parameters that determine the health of river need to be clearly defined. Hence, the species in the river, basin, catchment areas, and forests near the river etc.
- The river has a right to behna, khelna and khelana (flow, to play and to feed)
- Accommodating traditional/local/subsistence uses should be within the definitions … with gradation of priority / hierarchy of uses with regulation or prohibition on large-scale/commercial uses.
The Universal Declaration of Rights of Rivers lists 6 rights[v]
“(1)The right to flow;
(2) The right to perform essential functions within its ecosystem;
(3) The right to be free from pollution;
(4) The right to feed and be fed by sustainable aquifers;
(5) The right to native biodiversity; and
(6) The right to restoration,”
Plus the participants felt that we need to add the ‘right to its own spirit’ since rivers and contained in them have a spirits too.
Do rivers also have corresponding duties? Yes, but natural duties corresponding to natural rights … and in fact can be said that since they have natural duties, they need to have rights.
- It was cautioned that instead of talking of river rights, we should talk about our rights and how to contain them. A river is natural entity with its own being.
- Rivers having their own being, our talking of them having rights is limiting but for formal / legal purposes and to counter currently dominant system we need to grant rivers rights. But maybe the need is to be clearly articulated.
- Changing perceptions of rivers amongst local communities for example, Brahmaputra from lifeline to river of sorrow, how to deal with this, and what do rights mean in this context?
- Problems with recognizing rights as a personhood status as it is anthropocentric. There is a need of a new legal framework for considering, interpreting, and implementing the rights of rivers and the rest of nature. River as ‘mother’ not to essentialise women, and not in exploitative way.
- Why do we need to articulate rights? What about the fact that all civilisations have modified rivers?
It was suggested to have a democratic system of custodianship that would serve the purpose of safeguarding the interest of the rivers to a much greater extent. The system should consist of consultative processes at various levels and involve multiple set of actors on all decisions pertaining to the management, conservation, and use of the river.
- Custodianship: an authority/commission comprising of local communities related to river, government, and civil society … with a multiscale / nested institutional framework to enable participation across entire stretch of river (principle of subsidiarity) with local participation determined by gram sabhas and area sabhas and representation of various livelihoods relating to the river with good/independent mediators and clear rules of functioning that ensure transparency / accountability.
- Such institutions at the local level need to have overarching power that others have to follow their directions / orders.
- An overall body is needed but it shouldn’t have the main functional powers rather should facilitate the ground level processes.
- Proper analysis of rights-holders and others in each river, who need to be involved in decision-making is needed.
- Any interventions in river need to seek consent of local communities.
In short-run, to save rivers urgently, there is a need of interventions and for that we may need less idealistic strategies.
- Possible conflicts with existing laws, policies, tribunal awards,
treaties or agreements on trans-boundary or inter-state rivers. These
will need to be reworked based on river rights.
- What to do with the existing structures and processes that are in violation?
- There is a dire need of doing groundwork for rights and that needs to be done through education, cultural/religious, media and other such modes.
- Using international law (CBD, Convention on Migratory Species, Ramsar Convention, etc) to argue for legal rights of rivers, which could supersede national law that is in contravention or where there is doubt.
- Relationship of customary/traditional law with any such law on rights of rivers need to studied more.
- What would account for violations?
- Need to differentiate between local/small uses and large uses? Violation of the rights of rivers’ should be defined as ‘any obstruction or impediment that disables the entity from performing its essential ecological functions’. This includes, but is not limited to, any violation of the seven rights listed above.
- Important to distinguish between violations prior to recognition of rights for rivers and following such recognition.
- But the activities that would hinder essential ecological functions need to be detailed out clearly.
- Undoing the violations done in the past by removing the obstruction or impediment, including but not limited to, decommissioning of dams, regenerating the catchment areas to re-establish the ecological flows, and cleaning up pollution.
- Restoring the river’s ecological balance, including but not limited to, remedial biological, biochemical, and other processes, comprising of, among other things, re-introduction or enhancement of species that have been adversely affected.
- Stoppage of ongoing projects and processes that are causing violation, to prevent further harm
- Adequately compensating all affected communities and other relevant parties
- Compensation/restitution: a common fund for this with specific institutional mandate. To enable this we need all across a nested institutional framework.
- Liability for violation can be fixed where a human action has caused it, e.g. constructions that cause further flooding; but for purely ‘natural’ causes it would not be possible (but then what is ‘natural’?)
- Given existing institutions and processes, v. little of even existing provisions are being implemented … what can be done?
- Mapping of existing provisions of law/policy (domestic/international) that could be of use … and then consider how to move beyond
- In Nepal, many local moves to address river issues, but no national vision for rivers
- Issues of climate change and invasive species needs to be integrated into the RoR approach (including in the proposed petition).
The dialogue then moved to a discussion of the potential legal and policy strategies that could be pursued to further the rights of rivers in India and at a broader South Asian level. A number of options and issues including intervening in the Supreme Court appeals relating to the Ganga and Yamuna, pursuing new cases relating to the rights of rivers in the context of distinctive rivers at the High Court level in one or more states, strengthening state capacity, leveraging existing jurisprudence of the National Green Tribunal relating to compensation for violations, restoration, and restitution, addressing the unnecessarily hyped-up issue of who would be liable in case natural disasters relating to rivers (floods, etc.) caused damage, etc. were discussed.
The group finally proceeded to a detailed discussion on the operational strategy and planning process going forward with promoting rights for rivers in South Asia.
The Rights of Rivers dialogue was an opening to understand the possibilities and challenges that exist in relation to recognizing rights of rivers in South Asia. The dialogue was the initiation of a long term process of conversations, sharing resources, collective strategizing and planning, and collaborative work on realising effective rights of rivers. A number of action points were listed down as a follow up post the dialogue and as a build up to a possible dialogue next year. We missed participation of a few participants from other parts of the world but we are hopeful that the next gathering will have many more of us together.
[i] For background and detailed analysis on these judgments, see Goutham Shivshankar, The Personhood of Nature, 5 April, 2017, available at (last visited on 25th April, 2020): https://lawandotherthings.com/2017/04/the-personhood-of-nature/
[ii] See “Sukhna Lake is a living entity with rights: HC”, 3 March, 2020, available at (last visited on 25th April, 2020): :https://www.hindustantimes.com/chandigarh/sukhna-lake-is-a-living-entity-with-rights-hc/story-Jrt8vKUy8kqIUwWaLpcYtM.html
[iii] See generally, “Landmark Judgment against “River Grabbing” in Bangladesh, 22 July, 2019, available at (last visited on 25th April, 2020): http://lawyersclubbangladesh.com/en/2019/07/22/landmark-judgment-against-river-grabbing-in-bangladesh/
[iv] See CELDF, “Champion the Rights of Nature”, available at (last visited on 25th April, 2020): https://celdf.org/advancing-community-rights/rights-of-nature/
Chronology of Laws, judgments and policies across the world (work in progress)
Sierra Club v. Morton, 405 U.S. 727. Judge William O. Douglas who asserted that natural resources ought to have standing to sue for their own protection.
In Tamaqua, Halifax, Mora County, Newfield, Licking, Baldwin, Broadview Heights.
Rights of Nature recognised in the constitution of Ecuador. Accompanied by various court decisions and declarations in 2011,2012,2013,2014, and 2015
National law/Federal Act
The first Peoples’ World Conference on Climate Change and the Rights of Mother Earth.
National law/Federal Act
Environmental Law for the Protection of the Earth.
Amendment proposed to the Constitution of the State of Colorado to specifically include the right of municipalities to pass laws establishing the Rights of Nature.
National Law / Federal Act
Te Urewera recognised as a legal entity.
National law/Federal Act
Draft Amendment proposed to the Organic Law recognising the intrinsic rights of nature.
National law/Federal Act
Proposal for national regulation on Rights of Nature.
National law/Federal Act
Proposal for national regulation on Rights of Nature.
Recognising the Rights of Atrato River.
Executive decree declaring 22nd April as the National Day of Mother Earth
The Green Party of England and Wales
First International Forum on the Rights of Mother Earth.
Ecological Law and Governance Association statement.
The new constitution adopted Rights of Nature.
the Uttarakhand High Court recognised the Himalayan Gangotri and Yamunotri glaciers were granted status of living entities including waterfalls, meadows, lakes and forests
The state assembly of Madhya Pradesh declared Narmada River as a living entity, announcing ban on mining.
The proposed National River Ganga Act.
National law/Federal Act
The Whanganui river was granted legal status as a person.
in December, Mount Taranaki obtained same legal rights as a person
National law/Federal Act
The Yarra river protection Act of 2017 recognises Yarra as an indivisible entity deserving rights.
National law/Federal Act
Adoption of an indefinite moratorium signed into law to preserve reef builds based on earlier recognition of nature as subject of rights.
A conference on the Rights of Nature at the European parliament.
Municipalities adopted the amendment to the Organic Law.
A draft bill granting rights of nature
Rights to the Colombian Amazon.
A constitutional reform to recognise rights of the living, animal welfare, the global commons, the crime of ecocide and the principles of non-environmental regression.
A workshop titled “New opportunities for legal definition of Lake Balaton in the light of the legal entity of Whanganui River in New Zealand”
The Uttarakhand High Court accorded the status of legal person or entity to animals in the northern state.
The Supreme Court gave a judgment supporting the Dwesa Cwebe indigenous community’s customary law rights to harvest mussels.
The Irish Green Party has amended their Environment Policy Document, which under point 4 recognizes the rights of Nature.
In preparation to reform in the constitution to include rights of nature.
Punjab and Haryana High court on March 3rd declared Lake Sukhna a living entity.
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