WC133 NovDec 2023 - Magazine - Page 8
LEGAL
Who Speaks for the Trees?
and more importantly, the water!
BY AARON ATCHESON, KATHERINE CAVAN, AND NEHA GULATI
O
VER THE LAST SEVERAL DECADES, Canada has
developed a reputation amongst foreign investors as an
uncertain landscape to invest in given the concern as to
whether projects can actually progress to the finish line.
This includes large water-related projects. Now a new issue
is arising that may come to the forefront of project development in
the coming years: the concept of legal personhood for elements of
nature, and more specifically for rivers and other waterways, which
may pose additional barriers for development.Who speaks for the
water may become one of the most important questions for this
next generation of projects.
Aaron Atcheson
Aaron Atcheson is a partner with
Miller Thomson LLP in its London, Ont.
office, and is the leader of the firm’s
Projects Group. Aaron practices real
estate, environmental, and business
law with an emphasis on energy and
infrastructure projects.
Katherine Cavan
Katherine Cavan is an associate in
Miller Thomson’s real estate
practice group, based in London.
Katherine’s practice is particularly
focused in the areas of energy,
infrastructure and development.
The watershed moment
In February 2021, for the first time in Canadian history, a waterway was granted legal personhood.1 Via joint resolutions passed by
the Innu Council of Ekuanitshit and the Regional Municipality of
Minganie, the Magpie River (or Muteshekau-shipu), was declared
a legal person and the holder of nine specified rights, including
rights to flow, maintain biodiversity, and defend against a breach of
such rights in court.2 Guardians were jointly appointed to bear the
responsibility of defending the river’s legal rights and interests.3 The
legal personhood status of the Magpie River has yet to be challenged, so it is too early to say how or if the Canadian courts will
uphold the purported legal status and rights granted to the river.4
Rivers as rights-holders
While being the first of its kind in Canada, the Magpie River is not
the first waterway to be granted legal personhood globally.5 Other
rivers recognized as legal persons include New Zealand’s Whanganui River, the United States’ Klamath River,6 Colombia’s River
Atrato,7 and the Amazon.8
The recognition of waterways as legal persons must be viewed in
the context of the larger “rights of nature” movement, which aims
to see nature recognized as having inherent rights and obligations.9
This movement has been gaining momentum worldwide. Rights
of nature were formally recognized for the first time in Ecuador
in 2008, then Bolivia in 2010.10 Uganda also recently adopted a
similar model, and France is now considering following suit.11 Local
jurisdictions of Mexico, Argentina, Brazil, and the United States
have also established rights of nature laws.12
Neha Gulati
Neha Gulati is a student in the London
office of Miller Thomson LLP
8
The road ahead
The rights of nature movement is not only gaining traction globally,
WATER C AN ADA • NOV EMBER/ DECEMBER 2023
