Ecuador was the first country to recognize the rights of nature in its constitution. Soon afterwards, in the case of Wheeler c Director de la Procuraduria General Del Estado de Loja ¹, the courts recognized the constitutional rights of the Vilcabamba River ². The Vilcabamba River flows through the Vilcabamba region of Southern Ecuador, a valley known for its climate, biological diversity and the reportedly long-life spans of its inhabitants that earned it the nickname “Valley of Longevity” ³.

In Wheeler, landowners sued the provincial government for damage caused to the Vilcabamba River due to construction activities. Local authorities were building a road next to the river and dumped rocks, sand, gravel and other construction debris in and along the river banks, which in turn, caused floods along the river and polluted the waters ⁴. Affected landowners sued to invoke the new constitutional rights of nature and the river’s right to stand in court was admitted. The Court determined that the river’s rights had been violated and ruled that the contractor should follow environmental guidelines and recommendations issued by the Ministry of the Environment ⁵.

In its decision, the Court considered how to balance the rights of nature with other competing rights. The provincial government had argued that to respect the rights of nature would result in a violation of the community’s human rights to development. The Court reportedly responded that both rights are recognized by the constitution and should be considered using constitutional principles ⁶. The Court found that, in the event of a conflict between the environment and other constitutional rights, the rights of nature should take precedence because a “healthy” environment is paramount and affects more people ⁷. However, in this particular case, the Court concluded that these rights were not actually in conflict as the road could still be constructed while respecting nature’s rights ⁸.

Unfortunately, while the case was a decisive legal victory for the rights of nature in Ecuador, its enforcement has reportedly been underwhelming and the plaintiffs have had to hire lawyers to pursue compliance with the court orders ⁹.

The courts again had occasion to consider the rights of nature and rivers in República del Ecuador Asamblea Nacional, Comisión de la Biodiversida y Recursos Naturales ¹⁰. In this particular case, the rights of nature were in tension with individual property rights.

At issue in República was illegal gold mining operations that were allegedly polluting the Santiago, Bogotá, Ónzole and Cayapas rivers and violating the rights of nature ¹¹. The government of Ecuador sought, and was granted, an injunction against the illegal mining activities. The Court ordered the mining activities to cease as well as the destruction of all tools, utensils, machines, etc. that “constitute a grave danger to nature and that are found in the site where there is serious harm to the environment” ¹². Two days later military troops arrived and destroyed between 70 and 120 backhoes and other machinery belonging to the miners (prior attempts to confiscate the equipment had reportedly failed) ¹³.

The decision in República appeared to represent the complete domination of the rights of nature over the miners’ property rights ¹⁴. While some questioned whether the judge was justified in ordering such a drastic remedy, the national government and representatives from the region all supported the military operation due to the “dramatic and unhealthy situation” caused by mining contamination ¹⁵. Unsurprisingly, enforcement in this case was not an issue, likely because it enjoyed strong government support ¹⁶.

The decisions in both Wheeler and República suggest that, when rights conflict in Ecuador, the rights of nature are likely to be prioritized.

In New Zealand, the Te Awa Tupua Act in 2017 granted legal personhood to the Whanganui River. As part of the Act, they established the office of Te Pou Tupua to legally represent the river. Te Pou Tupua is intended to be the “human face” of the river and is made up two guardians, one representative of the Crown and one representative of the Māori people of the river, the Whanganui Iwi ¹⁷.

To date, it does not appear that the Te Awa Tupua Act has had occasion to be tested in court. Nevertheless, one issue with respect to the Whanganui River that is likely to arise is how the rights of nature can strike a balance with the river’s economic role in the region, in particular for the indigenous community ¹⁸. In addition to its important environmental, cultural and spiritual role for the Whanganui Iwi, the Whanganui river also serves a vital economic role in the region: it acts as a transportation “highway” and is a means of travel and trade for the Whanganui Iwi, it is also a source for gravel extraction, electricity generation, recreation and tourism ¹⁹.

Of these, the hydroelectric dams in particular seem likely to cause friction. Genesis Energy currently operates the Tongariro Power Scheme on the Whanganui River and holds rights to divert water for hydroelectric power until 2039 ²⁰. The power company siphons off a portion of the headwaters and pushes it through tunnels, canals, lakes and power stations until it flows into a different river system ²¹. It is estimated that, on average, only 20% of the Whanganui’s headwaters make it past the intake structure to sea ²². This extraction “causes environmental, culture and spiritual damage” ²³. In addition, part of these headwaters are diverted into Lake Otamangaka, a shallow hydro-lake stocked with fish, to keep the fish cool in warmer months, and the mixed water is later discharged back into the river system. This practice may be leading to increased turbidity in the river along with warmer water for the fish and habitat downstream ²⁴.

The Act gives the river newfound rights but does not reverse pre-existing laws. For now, at least the hydroelectric dams will remain. There are also threats to the river due to farming and forestry. At the same time, the Māori have a desire for sustainable economic activities and have been tasked with protecting the “economic health” of the river as well ²⁵. How then, to strike a balance between the environmental AND economic health of the river? When the hydropower rights come up for renewal in 2039 will changes be required to reconcile these rights?

Magpie River (QC)

Similar to the Whanganui River, the Magpie River in Québec has been granted legal personhood through the adoption of two parallel resolutions by the Innu Council of Ekuanitshit and the Minganie Regional County Municipality. The Magpie river is mostly used for transportation and recreation, and is widely known for its world class rapids ²⁶. Currently, the river has one small hydroelectric dam at the mouth of the river, and Hydro-Québec has refused to rule out the possibility of additional dams in the future ²⁷.

The Innu Council of Ekuanitshit and environmental groups have been vocal that they wish to protect the river from any further hydroelectric developments. It is likely that finding a balance between the rights of nature and other rights will look different for the Magpie River than the Whanganui. For one, the Magpie River does not appear to play as big an economic role in the area as the Whanganui River. Two, the economic role it does play is mainly tourism and recreation which tends to benefit from less, rather than more, development. However, should the demand for energy in Québec change drastically the balance may need to be fine-tuned.

Compensation

One type of balancing that currently does take place in Canada is the act of compensating or reimbursing individuals for the loss of some right. We acknowledge that one right takes priority over another, but still seek to compensate or reimburse in some way for the loss of said right. This type of prioritizing often comes up in cases involving competing property rights, such as where an individual’s property rights are subordinate to those of a city or province (e.g. expropriation). It can also come up when property rights conflict with environmental rights.

For example, Alberta’s Forest Reserves Act permits the Minister to expropriate, purchase or exchange land in or adjoining a forest reserve, including for the purpose of creating or administering a forest reserve ²⁸. While the Act appears to prioritize the goal of conserving forests and other vegetation at the expense of individual property rights, it also appears to recognize that compensation for losses is just.

Similarly, the Species at Risk Act contains a provision that states “the Minister may provide fair and reasonable compensation to any person for losses suffered as a result of any extraordinary impact of the application of ²⁹ or an emergency order in respect of habitat” ³⁰. Again, the Act appears to recognize that while the protection of critical habitat takes precedence in the circumstances, individual rights still merit recognition and compensation.