Macfarlane starts by describing the spring near his house in Cambridge. This flows on to become one of England’s unique chalk streams. He then travels to northern Ecuador to the cloud-forest that surrounds the headwaters of the Rio Los Cedros, the River of the Cedars; to India, to the intricate river system on which Chennai almost overwhelms and certainly pollutes; to Quebec and an exciting journey by canoe through the rapids and falls of the Mutehekau Shipu, the Magpie River. He writes beautifully and lyrically of his journeys and of the people he meets who, in their different ways, value these extraordinary places. But the book is focused on the rivers themselves. Always moving, sometimes placid, sometimes turbulent, they appear to be alive. Macfarlane goes further and suggests that they are alive, with a spirit and personality and soul.

Nature writing will often become poetic and, if poetic, mystical.  There will be some hard-headed people for whom this will not appeal and who will in short order dismiss it as nonsense. But those who respond sympathetically will perhaps find themselves carried away – as on a river. Putting the book down, they will agree that, at least in some sense, rivers are alive.

A positive answer to the title’s question does not necessarily have any consequences. If a river is alive, then on almost any view it is entitled to respect. But, more than that, if it is alive it may be treated as a person and, if a person, then surely it is entitled to rights. In the course of his book, Macfarlane discusses this. The implication is that rivers should have rights. He suggests that this is an idea whose time has come.

Giving rivers rights is not a new suggestion and is an aspect of wider argument that the earth or nature should have rights: that law, although necessarily made by humans, should confer rights on (non-human) earth or nature; or on an element of nature like a river.

The legislature has given or recognised nature rights in Ecuador and in New Zealand. In Spain, it has given to or recognised rights in respect of the inland lagoon called Mar Menor. In England, as described in a previous post, the River Ouse in Sussex enjoys a Charter supported by local stakeholders which articulates the following rights:

• to exist in its natural state
• to flow
• to perform essential natural functions within the river catchment
• to feed and be fed from sustainable aquifers
• to be free from pollution
• to native biodiversity
• to regeneration and restoration
• to an active and influential voice.

If the recognition of a right is to be meaningful, the right must in some way have as its subject a duty. Thus the River Ouse does not in reality enjoy any of the articulated rights because none of them give rise to a duty on the part of anyone else. Lewes District Council will take the charter into account when making planning decisions, but that is not quite the same thing.

As regards Mar Menor, by an Act of the Spanish Parliament in 2022 the lagoon was given a

a) Right to exist and evolve naturally: The Mar Menor is governed by a natural order or ecological law that allows it to exist as a lagoon ecosystem and as a terrestrial ecosystem within its basin. The right to exist means respecting this ecological law to ensure the ecosystem's balance and capacity for self-regulation in the face of imbalances caused by human pressures, primarily originating from the watershed.

The Act also established a Monitoring Committee called Guardians (Comite de la Representantes de la Tutoria del Mel Mar) with the power to take legal proceedings to enforce this right; and such proceedings have now occurred.

In a real sense the lagoon has been given rights.

In a Scottish case in the Supreme Court, Walton v Scottish Ministers¹, Lord Hope famously considered the enforceability of the protection afforded to an osprey by existing law². He said:

An individual may be personally affected in his private interests by the environmental issues to which an application for planning permission may give rise. Noise and disturbance to the visual amenity of his property are some obvious examples. But some environmental issues that can properly be raised by an individual are not of that character. Take, for example, the risk that a route used by an osprey as it moves to and from a favourite fishing loch will be impeded by the proposed erection across it of a cluster of wind turbines. Does the fact that this proposal cannot reasonably be said to affect any individual's property rights or interests mean that it is not open to an individual to challenge the proposed development on this ground? That would seem to be contrary to the purpose of environmental law, which proceeds on the basis that the quality of the natural environment is of legitimate concern to everyone. The osprey has no means of taking that step on its own behalf, any more than any other wild creature. If its interests are to be protected someone has to be allowed to speak up on its behalf³.

What Lord Hope is saying that the legal protection afforded by legislation to ospreys is generally enforceable by a member of the public who shares their environment; but he analyses it in terms of an osprey having a right to protection.

Walton was not in fact about ospreys but the construction of a relief road. It specifically concerned a claimant who resided in the vicinity of one leg of the road and had made representations at a local inquiry about it.  He had demonstrated his concern and the fact that he resided some distance from the particular part of the road at issue did not prevent him from being a person aggrieved.⁴ It is not so clear that just because the claimant lived in Scotland, he would be able to complain about the effect of a wind turbine in, say, Orkney.⁵

In a traditional analysis, what the law protecting Mar Menor and ospreys is doing is providing a mechanism whereby a person who is properly interested (and not a busybody) can take action. The law is about standing.⁶ It may be helpful to talk about the protection afforded to the lagoon or to ospreys as conferring rights or upon it or them but at root what is being considered is the way in which protection is enforced. It makes no difference in the way the law operates whether the lagoon or the ospreys are considered as having rights which are enforced by humans or humans are considered as having rights to enforce laws which protect the lagoon or ospreys.

The language of rights, of course, suggests what is not the case, that the birds have an intrinsic and autonomous right, which the person aggrieved is simply articulating on the birds’ behalf. Given that there is no possibility of the assertion of the right save through human agency the suggestion does not reflect the facts.

The matter is complicated in this way. Ospreys are sentient beings The protection from being killed that they enjoy can be viewed as not for the benefit of human but for the benefit of ospreys. If so, it is in some sense autonomous and can be viewed as a right. But one may think that the wider protection that they enjoy by virtue of their environment being protected is for the benefit of humankind so that it can continue to appreciate ospreys rather than ospreys themselves.

However this may be, it will be seen that whether an osprey does or does not have rights makes no difference to the protective regime that exists in respect of it. And if Lord Hope’s example had been about the threat by the wind turbines to a National Scenic Area⁷ and not to ospreys, a concerned individual would still have been a person aggrieved.

More widely it may be asserted that the regime that is in place for the protection of nature exists not for the benefit of nature but for the benefit of humans. There can of course be argument about that, and Robert Macfarlane is advancing an argument that the law should protect rivers because they are alive like you and me and warrant intrinsic protection.

This works better as regards the Rio Los Cedros in Ecuador than as regards the River Ouse in Sussex. Embanked in the early middle ages, it was canalised in the eighteenth century. As its name might suggest, the port of Newhaven at the egress of the Ouse to the English Channel is an artificial creation dating from the sixteenth century made by cutting a channel through a bar which otherwise obstructed the flow of the river to the English Channel. If the Ouse is alive, it is pretty much regulated by humankind. If it is now to be granted the right to exist in its natural state, that present “natural state” is a creation of humankind⁸.  

It will be a similar story for all the rivers of England. And cases in tort from the thirteenth century attest the importance of the watermill – obstructing the natural flow of a river - both as an element of the mediaeval economy and as a lucrative feudal monopoly⁹.

And the landscape of England is almost entirely human-made. Writing in The Making of the English Landscape (1955) WG Hoskins said:

On unpeopled moorland, beside remote estuaries at dawn, or at sea approaching an historic coast, little or nothing is alien to the natural scene. We see it precisely as the first men saw it. The imagination is liberated over the scene.

But there are not many places where one can feel with such complete assurance that this is exactly as the first inhabitants saw it in ‘the freshness of the early world.’¹⁰

It is hard to formulate a right of the English Landscape to be protected. The National Landscape that that is commonly called Constable Country – the area in and around Dedham on the border of Essex and Suffolk and centred on Flatford Mill – is a human made artefact and is protected by humans for humans.

One may say that it has always been in the nature of humankind to change and refashion the environment in which it functions – for good or for ill. One protects the Amazonian rain forest not because it has a right not to be cut down but because of human concerns about biodiversity and climate change. Rivers may seem to be alive but they have always been adapted and modified by humans for the use of humans.

Nonetheless, whether we like it or not, the underlying idea of nature or a river or a bird being intrinsically valuable or important is not going to go away. Accordingly people will continue to argue that nature or a river or a bird have rights. In this context it is worth considering further whether this might have any implications for substantive law: does having rights affect the way a river is treated?

In doing so, assistance is gained from considering an ecclesiastical case: In re St Mary, Mapledurwell ¹¹, determined in the Consistory Court of the Diocese of Winchester.

The Consistory Court administers church law¹². Its jurisdiction is over the church and churchyards in the diocese. Five yews, a conifer and a holly were cut down in the churchyard of St Mary’s, Mapledurwell without permission and therefore unlawfully. The justification was that they were in the wrong place – either too near to the church or a gravestone and a boundary wall. The Chancellor¹³ was presented however with little evidence in support of that justification and he required replanting – as indeed he might well have done if an application had been made for the felling in advance and he had permitted it^14.

In the course of its judgment, the Chancellor said

... As regards churchyard trees, it should not be assumed that just because any relevant consents have been obtained from the local authority (as they were in this case) that a faculty will automatically be granted. Where trees in a conservation area are concerned, the local authority will simply consider whether the trees provide sufficient amenity value to warrant the making of a tree preservation order.

9. This court, on the other hand, will look at matters in a broader perspective which acknowledges that trees are living parts of God’s good creation, which have value for that reason regardless of their utility to human beings. This is particularly so if, as appears to have been the case here, the trees provide a habitat for other species. More specifically, trees may form an important part of the character and appearance of the churchyard. Yew trees in particular have long been associated with churchyards

(although the reasons for this association are somewhat obscure) and the presence of mature yew trees in a churchyard is accordingly of some historical and cultural value in itself. I have already mentioned, above, the link that mature trees provide to past generations who have cared for the site.

The theology is unimpeachable¹⁵ but translated into law it is problematic. If a tree has value in itself, how is that value to be assessed? Very often trees get in the way of development. Very often trees undermine the buildings which they adjoin. Very often they become dangerous. On what basis does one say in these circumstances that the tree is to be felled?

In practical terms and in any particular case it may not be difficult. Once it be accepted, as it sensibly must be accepted, that a tree does not have an absolute right to exist, then it may be easy to say that the tree is of no particular value and the human interest in its felling overwhelming. But hard cases in practice arise all the time in the secular context of authorisation to fell a tree protected by a tree protection order. In a way that ultimately defies rational explanation, from time to time it will be decided that a tree is so valuable that it should not be felled despite the fact that, in human terms, it is in the way.

Of course, what one might hope is that the interest of trees and humankind are aligned; and in any particular case, the interest of the tree does not operate to the detriment of humankind. One can go further and say that in any case where the value of the tree trumps the reasons for felling it, then that result is axiomatically good for humankind. The immediate result may not be good for humankind but, viewed in a wider perspective, it is.

One can understand this but so to argue paradoxically undermines the autonomous value of the tree. What a decision maker does is assemble all the reasons – macro and micro – why the tree is valuable and weighs them as best as he or she can against the justification for felling it. The decision that eventuates – whether to fell or not to fell – is that which is best for the planet and for humankind. But it is harder to say that it is for the good of the tree itself.  A more honest analysis might be to say that the tree has rights but that they are outweighed by other rights. But on what basis? How can we develop a sensible calculus so that the rights of a tree are weighed against the rights of humankind?

Let us come back to Is a River Alive? At the conclusion of the book, Macfarlane voices doubts about translating a positive answer to this question into giving a river rights. What is important, he says, is not Who speaks for the river? but What does the river say? He observes that while it’s relatively trivial to answer the first of them, it’s a philosophically immense task to answer the second. It looks as if he is drawing the distinction, discussed above, between river rights being a matter of standing and the substance of what is being protected. As to the latter, he is recognising that it is a large and difficult issue. The immediate effect of books like Is a River Alive? is surely to make it more difficult, for example, to promote a scheme to obtain hydro-electric power from the Magpie River. We are however still a long way from rivers receiving substantive rights. This post identifies some of the enduring difficulties involved in their obtaining them.

 

Footnotes

[1] [2013] PTSR 51.
[2] Birds are protected in both England and Scotland by the Wildlife and Countryside Act 1981 which implemented the Bird Directive 2009 and incorporates earlier legislation.
[3] See paragraph 152.
[4] It is worth noting that the expression person aggrieved is used in comparable contexts in both English and Scottish legislation and has the same meaning; see per Lord Carnwath at paragraph 102 of Walton.
[5] In practice, persons who bring proceedings do have stronger links to their claim than this; and the description of busybody which is applied to someone who is denied the opportunity to bring a claim may sometimes involve an assessment of the merits of the claim.
[6] What has traditionally been called locus standi. There are lots of cases about this in English law.
[7] The equivalent in Scotland to what in England is a National Landscape (and used to be called an Area of Outstanding Natural Beauty).
[8] Interestingly, it was recently subject to a book To the River (2011) in which Olivia Laing lyrically describes a journey on foot from its source to the sea. In some ways comparable to Is a River Alive? the book does not suggest that the Ouse is alive.
[9] See History and Sources of the Common Law: Tort and Contract (1949) by CHS Fifoot.
[10] See page 9 (1970 paperback reprint). Hoskins is quoting lines of Matthew Arnold (Memorial Verses April 1850).
[11] [2019] ECC Win 1.
[12] Which, because the church is established, forms part of the law of England.
[13] Cain Ormondroyd – a member of FTB.
[14] In cases where the trees in a churchyard are subject to a Tree Preservation Order made by the local planning authority, the consent of that authority is required for felling. In the present case such consent had been obtained.
[15] See eg Man and Nature: A Report (1975). Historically, it would have been questioned: the view would have been taken that trees and animals were created simply to serve humankind.