WC133 NovDec 2023 - Magazine - Page 9
Muteshekau-shipu Alliance
but also here at home. Bolstered by the
success of the Magpie River project,
Who speaks for the water may become one of the most
groups in five Provinces are working on
obtaining certain rights of nature (for
important questions for this next generation of projects.
example, one project in relation to the
St. Lawrence River).”13
What does this all mean for future
development in Canada?
Ecuador’s case law provides some
helpful insight into the potential issues
and pitfalls Canada may face if it
follows a similar trajectory. An analysis
of 12 cases heard in Ecuador between
2008 and 2016 wherein the rights of
nature were asserted revealed that cases
where rights of nature were invoked to
challenge government-supported initiatives failed, while cases where rights
of nature were invoked by the government in support of such initiatives
prevailed, leading to criticism that the
rights of nature are an illusory concept, to be wielded as a justification for
governmental decision-making without
appropriate limitations in place for such
power.14 One particular issue identified
is cases wherein multiple parties claim
to represent nature, but are making
competing and contradictory claims.15
Magpie River (or Muteshekau-shipu)
Other issues include the difficulty of
balancing of rights of nature that contradict other constitutional rights, and
navigating circumstances where comconflicts involving differing rights and obligations, be it between
peting rights of nature are asserted on both sides of a conflict.16
These issues identified are but some of the potential
different waterways, waterways and other elements of nature, or
shortcomings of the rights of nature movement that canwaterways and human development.
not be ignored when considering the future of personhood
This all screams out for guidance from a responsible authority as
of waterways in Canada. Arguably most concerning is the
to how to put solutions-minded people into positions representing
determination of what persons or groups have the authority
the waterway. Left in a vacuum, NIMBY forces could use legal
to grant personhood to waterways. Imagine a scenario where
personhood to slow or kill projects without offering solutions for
several different First Nations communities and/or branches
the challenges facing our society and our world. It is irresponsiof government are seeking to grant personhood to, and then
ble to leave this question to the courts. Our federal government
take over the stewardship of, the same waterway. What would
should start the conversation now, with a view of determining
be the appropriate test to determine which stewards have
the appropriate way to utilize legal personhood for waterways as
precedence to advocate for the rights of the river in such coma new-and-improved approach for obtaining input on developpeting circumstances? Would it be the historical significance
ments, rather than allowing it to become just another avenue for
of the waterway to each of the competing parties, or perhaps
project opponents to obstruct progress.
geographical proximity, or something else?
For further reading visit www.watercanada.net/nd23resources/
We must also consider the very real issue of balancing
WAT E R C A N A D A . N E T
WATER C AN ADA • NOV EMBER/ DECEMBER 2023
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