Bestowing legal personhood on the Magpie River, which spills into the Gulf of St. Lawrence, is being lauded by the groups involved, but one expert describes the move as “strictly UN optics.”
Bill Gallagher, a lawyer and strategist who’s authored two books on the intersection of resource interests and indigenous rights in Canada, says granting personhood status to a river has more to do with aligning with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) than with empowering indigenous people economically.
“What it’s an indication of is First Nations are joining the eco-activist movement more than aligning with industry to try and commercialize their native empowerment. … There’s no commercial clout coming from making a river a person,” said Gallagher, who has worked for both government and industry and tracks indigenous legal victories upholding treaty rights in Canada, which number 310 to date.
“It’s the eco-activists who need the First Nations, not the First Nations who need the eco-activists, and if you wanted to block hydro then that would be an obvious strategy.”
The Magpie River was granted legal personhood status via the adoption of two resolutions by the Innu Council of Ekuanitshit and the Minganie Regional County Municipality (RCM), giving it nine rights as well as potential legal guardians that would ensure those rights are respected.
The resolutions were drafted by the Montreal-based International Observatory on the Rights of Nature (IORN) in collaboration with the Muteshekau-shipu Alliance, an organization founded by four groups in Quebec including the Innu Council, the Minganie RCM, the Association Eaux-Vives Minganie, and the Quebec chapter of the Canadian Parks and Wilderness Society. The Magpie River is called Muteshekau-shipu in the Innu language.
“The recognition of the rights of Nature is a growing global movement, and Canada is joining it today with this first case,” IORN president Yenny Vega Cardenas said in a Feb. 23 joint press statement with the Muteshekau-shipu Alliance.
“The Magpie River represented a perfect test case, thanks to the consensus for its protection from the actors involved and its international reputation.”
The goal is to protect the nearly 300-kilometre river—home to the Magpie Generating Station, a 40.6 MW hydroelectric power generating station inaugurated in 2008— from further development.
“The river’s protection has received regional consensus, but the plan to declare the river a protected area has been thwarted for years by state-owned Hydro-Québec, due to the waterway’s hydroelectric potential,” the statement says.
“The river is recognized worldwide for its rapids and for whitewater expeditions, most notably by the prestigious National Geographic magazine, which ranked it among the top 10 rivers in the world for whitewater rafting.”
Ecuador was the first country to endow its natural world with legal rights, enshrining them in its constitution in 2008, and Bolivia followed suit in 2010 via legislation. Such efforts have become a global trend.
The most analogous example to the Magpie occurred in New Zealand in 2017, when the government concluded long-running treaty negotiations with the local Maori tribe of Whanganui by granting legal personhood to the Whanganui River.
“The approach of granting legal personality to a river is unique,” Chris Finlayson, then-minister for New Zealand’s treaty negotiations, told The Guardian at the time.
“It responds to the view of the [tribe] which has long recognized Te Awa Tupua (Whanganui) through its traditions, customs, and practice.”
While the Whanganui’s personhood status has been acknowledged by the New Zealand government, the Magpie’s has not received similar recognition from the Canadian government.
Queen’s University professor Bruce Pardy, a constitutional and environmental law expert, says personifying a natural entity could be used to launch anti-development legal challenges.
“Since rivers and mountains are not alive and have no consciousness or interests, giving them legal personhood is just a way to give power to environmentalists. For example, if we make a mountain a legal person, then people who oppose putting a ski resort on the mountain can argue that the development would be ‘against the interests of the mountain,’” said Pardy.
“Which is a complete fiction, of course, since the mountain doesn’t care one way or the other. Granting rights to nature has nothing to do with nature itself and everything to do with power struggles between people.”
The Supreme Court of Canada ruled in 2017 that the Ktunaxa First Nation’s belief that their “grizzly bear spirit” occupied B.C.’s Jumbo Valley could not prevent a ski resort there. “The Charter protects the freedom to worship, but does not protect the spiritual focal point of worship,” reads the decision.
In November 2019, British Columbia became the first Canadian province to pass legislation to implement the UNDRIP, with Premier John Horgan pledging to align provincial laws with UNDRIP principles.
Horgan promised to “do the hard work, together with indigenous peoples, to build a true government-to-government relationship based on reconciliation, respect, and the shared goal of a better future for everyone in B.C.”
Gallagher says the UN declaration “was not designed to support natives who have constitutionally protected rights, Charter-protected rights, and a legal winning streak of over 300 wins.”
“The UN declaration is designed to protect native people in Paraguay and Bolivia and Mexico, who have no safety net,” he said.