Canada’s “antiquated” legal system is standing in the way of giving the Fraser River "legal personhood" — a strategy that has become increasingly popular around the world in recent years as a way to prevent the destruction of entire ecosystems.
That’s according to a recent study carried out by Avery Pasternak, a law student at the University of British Columbia’s Allard School of Law, and Kristen Walters, director of Raincoast’s Lower Fraser salmon conservation program.
The study, published Wednesday, looked at a number of other jurisdictions that have found success in changing the legal status of natural objects — from rivers in Colombia and Quebec to forests in New Zealand — ultimately finding Canada’s laws largely fell short to apply legal personhood to nature.
“The bottom line is just that our legal system is antiquated,” said Walters.
“If we are going to get serious about recovering ecosystems and addressing climate change, we need to think about other ways of viewing the natural world.”
A nexus of nature and trade
Since the 1850s, the Lower Fraser River has grown to become British Columbia's most populated urban area. But over that same time, more than 85 per cent of the river's floodplain habitat has been lost to human settlement, according to one study.
The Lower Fraser remains the largest salmon-bearing river in Canada; its estuary operates as one of the most important stopover sites for migratory birds in Western North America. But in recent years, the number of returning salmon populations dwindled, with the average sockeye salmon return falling by 35 per cent over the past decade, compared to prior years, according to the Pacific Salmon Foundation.
The river’s mouth is also home to the Vancouver Fraser Port Authority, and as part of the Canada Pacific Gateway area, it is the country's most important trade corridor and a shipping nexus where more than $275 billion in goods transit every year.
“It's this kind of juxtaposition between like an ecological gem and also Western Canada's industrial and transportation hub,” said Walters.
Species-at-risk laws not good enough, claim authors
Under current laws, both Pasternak and Walters say Canada’s Species At Risk Act is not adequate to protect a number of endangered and threatened species — from salmonoids and birds, all the way up to the whales the estuary ecosystem feeds.
“Environmental law as it currently stands in Canada doesn't protect the environment per se. It just allows for and permits certain levels of pollution and exploitation, and that fragments the natural environment into siloed resources,” said Pasternak.
“And that's not how nature works. It functions as a greater system.”
Federal approval of the Roberts Bank Terminal 2 this spring made that especially clear, Walters said.
Raincoast is currently one of a handful of conservation groups that filed a request for judicial review over the project in May. They argued the port expansion and its operations will jeopardize the survival and recovery of the already endangered southern resident killer whale population, which relies on salmon as its main food source.
But the Raincoast's latest report looking at the feasibility of giving the lower reaches of the river legal personhood takes that argument beyond current realities.
The idea of legal personhood is well-established for corporations, trusts and even municipalities, which can enter into contracts, and have their own identity, power and obligations separate from the people working there. But beyond humans, that legal status stops short of the natural world — at least under Canadian federal and provincial laws.
A push to recognize rivers and forests as legal people
By giving nature inherent rights, countries such as Colombia, India and New Zealand have tried to put in place guardian systems that uphold the rights of rivers like a caretaker might ensure the rights of a person in their care.
In Colombia, the country’s Supreme Court declared the Atrato River, which runs south of the Panamanian border, as a legal person in 2016 after it was damaged by mercury and cyanide pollution. A joint guardians program — involving one government representative and one Indigenous member from each community — is in place to oversee the river’s health. Since then, Colombia’s Supreme Court granted the Amazon River, the world’s largest, legal rights. Other rivers followed.
Countries like Panama and Uganda, meanwhile, have recently codified federal laws that uphold the rights of nature. And in the United States, similar legal protection has been passed at the local level, where at least three dozen municipalities have passed ordinances granting rights to nature.
But in Canada, the only legally recognized ecosystem is the Magpie River in Quebec, which was given legal personhood in February 2021 through a blending of Indigenous and municipal law.
Pasternak and Walters say the scale of the Fraser River means the best example to emulate lies in New Zealand, where the rights of nature have played a foundational role in renegotiating settler-Indigenous relations.
Instead of one party controlling or owning a designated national park, the Crown and Tūhoe people agreed to a compromise — treat the land as its own entity. In 2017, a similar agreement was reached with the Whanganui River, a legal entity with “all the rights, powers, duties, and liabilities of a legal person,” notes the report.
Only path for Fraser River lies with local governments
Whether it’s a river, a forest or a mountain, New Zealand has only managed to accord nature with personhood after the governments there took it upon themselves to work through years of Crown-Indigenous negotiations. For Pasternak, it’s not clear whether that could be replicated on the Fraser River without more senior levels of government getting involved.
Today, the only two ways to give the Fraser River legal personhood, concluded the report, would require passing a joint law involving a number of municipalities and First Nations, or coming to some sort of agreement between local governments.
Until a more concerted effort is made at the federal and provincial level, Walters says Canada will remain behind.
“We can't accord ecosystems legal personhood, even though we're dependent on them, and yet corporations, universities, other large, arbitrary entities that we've created are given personhood and legal standing in legislation and in the court system,” she said.
“There's this clear imbalance.”
