ABSTRACT
Following the creation of legal rights for rivers in New Zealand, Colombia, Bangladesh, and India, the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 (Vic.) (Yarra River Act) adopts a similar but juristically different approach in treating the Yarra River and surrounds as a living and integrated natural entity. However, like the Australian Federal Water Act 2007 (Cth) that preceded it, the Yarra River Act creates a suite of principles to “manage” the river whilst acknowledging the economic and social (human) dependents upon water and the river landscape. This chapter interrogates the notion of “rights” of nature, focusing on water. It will consider this in terms of legal theory, assessing in particular whether the idea of elements or parts of nature as juristic persons capable of holding or asserting rights is coherent. It then considers the environmental outcomes sought to be achieved by the assignment of “rights” and considers whether current techniques in Australian legislation are capable of achieving the same or better outcomes for rivers. The “management” approach to delivering water to the environment, in particular, allows a range of diverse management strategies accounting for environmental values aside from river flow, whereas the “market” allocation of water to various consumptive and non-consumptive uses can have unplanned outcomes. Finally and most problematically, it will consider whether the conceptual provision of “rights” can, counterintuitively, deliver adverse attitudes to the environment by de-emphasizing the connectedness between environmental “components” (including humans) and by “responsibilizing” the “environment” for the protection of its own rights.
