For decades, the Ganga River Basin has been in serious decline. Depended on by human and natural communities, it is an ecosystem in collapse.
Today civil society is calling for the recognition of the Rights of the Ganga River Basin, recognizing that a fundamentally new form of governance is necessary to protect and restore this precious ecosystem. Establishing a legal system in which ecosystems and natural communities have an inalienable right to exist and flourish places the highest societal value on those natural systems and communities. Establishing Rights of the Ganga River Basin would enable government, civil society, and the people of India to take action on behalf of the river basin to defend it against actions that would interfere with its integrity, existence, and functioning.
Traditional Environmental Laws Regulate the Use of Nature
Today the Ganga River and its tributaries are managed under environmental laws similar to traditional environmental laws found around the world. Under such structures of law, governments try to protect ecosystems through environmental regulation that attempts to limit the degree of harm that can be inflicted upon the natural environment. Environmental regulations thus legalize certain harms to occur, while attempting to regulate the extent of those harms. For instance, mining corporations are issued environmental regulatory permits to extract coal, with those permits establishing legally permissible levels of pollution that can occur through mining.
Under these structures of law, ecosystems and natural communities are treated as property – either as private property whose owner’s use is to be regulated, or as the State’s “common property” whose use is to be controlled to guarantee equal use and access by all aspects of society. Thus, traditional environmental laws are designed to regulate how we use nature, legalizing environmental harms by regulating how much pollution or destruction of nature can occur under law.
As this structure of environmental law has spread across the globe over the past four decades, by almost every criterion, the condition of the natural environment has worsened. We see this in terms of species loss, acidification of the oceans, the decline of coral reefs, destruction of fisheries and deforestation, the scarcity of clean drinking water, as well as global warming.
Pioneering a New System of “Rights-Based” Environmental Protection
With ecosystems worldwide facing collapse, governments and civil society are recognizing the interdependence of humankind and nature, and are moving to establish a new paradigm for nature’s protection based on rights. They are pioneering a new form of environmental jurisprudence which recognizes legally enforceable Rights of Nature.
In 2008, Ecuador became the first country in the world to secure Rights of Nature in its national constitution, becoming the first nation to base its system of environmental protection on a rights, rather than a property, framework. Earlier this year, Bolivia recognized legal Rights of Mother Earth. And in the United States, over the past seven years, thirty local governments have enacted municipal laws establishing Rights of Nature.
While recognizing the rights of ecosystems and natural communities, these laws also grant legal authority to residents and governments to enforce and defend those rights. These laws change the status of ecosystems from being regarded as property under the law to being treated as rights-bearing entities.
In 2011, the first Rights of Nature constitutional cases were decided in Ecuador. This includes in the Provincial Court of Justice of Loja which ruled in favor of the plaintiff, the Vilcabamba River, in a lawsuit attempting to stop a highway construction project that was harming the river ecosystem. The court ruled that the rights of the river were being violated by the project.
Under a rights-based system of law, a river may be recognized as having the right to flow, fish and other species in a river may be recognized as having the right to exist and evolve, and the flora and fauna that depend on a river may be recognized as having the right to thrive. This legal framework seeks to protect the natural ecological balance of that habitat.
Just as the lion hunts the antelope as part of the natural cycle of life, recognizing Rights of Nature does not put an end to fishing or other human activities. Rather, it places them in the context of a healthy relationship where our actions do not threaten the balance of the system upon which we depend. Further, these laws do not stop all development, rather they halt only those activities that interfere with the existence and vitality of the ecosystems dependent upon that land.
Under existing law, people defending ecosystems can only recover damages based on an individual’s loss of use of that ecosystem. By contrast, a legal system of ecosystem rights would guarantee that the ecosystem’s right to exist and flourish could not be impaired. Damages would be measured not by people’s loss of use of the ecosystem, but by the damage inflicted on the ecosystem itself, and the cost of bringing that ecosystem back to its pre-damaged state.
Recognizing Rights of the Ganga River Basin
Today, the Ganga River Basin is right-less. Despite the tremendous harm that the basin faces, the people and governments of India are unable to defend the basin’s right to be healthy and thrive. Moving to a rights-based system means that rather than basing our system of environmental protection on attempting to better regulate the use of the river basin, we are instead establishing and defending the rights of the basin to exist and flourish. The proposed legislation would:
• Establish the basin’s right to exist, thrive, regenerate, and evolve;
• Establish the rights of the people, as well as other ecosystems and natural communities, to a healthy river basin;
• Provide that any activity that interferes with the basin’s rights is prohibited;
• Provide that any damages that may be awarded for violations of the basin’s rights are to be awarded for the purpose of, and in the amount necessary to, restore the ecosystem to its pre-damaged state;
• Establish enforcement mechanisms to protect and defend the basin’s rights, including establishing governmental offices responsible for defending those rights; and
• Empower people, communities, civil society, and governments within India to protect and defend the basin’s rights.