Rivers are persistently undervalued by decision-makers relative to the broad range of benefits they provide. They sustain life, ensure livelihoods, spark wonder, and form the foundations of cultures. Many more of their benefits are silent, invisible, and mobile – felt responses that cannot be explained. Rivers are, then, so much more than arteries of moving water, so it is crucial that their governance systems recognise their many values. Without this recognition, the hidden values of rivers will continue to be unacknowledged and unaccounted for in policy. In this discussion I present two approaches to river governance – which is defined as the political, social, economic and administrative systems that shape a river’s management. These approaches are designed to reveal and protect a river’s different values. Neither is perfect, both are a little messy, but they aim to acknowledge a river’s broader values, and better balance equity and efficiency in river management.
The first approach is non-use rights. This involves the purchase of water for the purpose of withholding it from use. Here in Australia, we are most familiar with non-use rights in water with the introduction of ‘environmental flows’ in the Murray Darling Basin. Water is purchased by the Commonwealth Environmental Water Holder, a legal entity with the capacity to hold water rights, allocate water for environmental benefit, and buy and sell in water markets. Purchasing for non-use marks a critical shift in how water is valued in water markets.
In the past, the value of a river was primarily measured by how it was used. For example, water drawn from a river and used for productive purposes, such as agriculture, would hold value. Here, the value derives from how it is used for the direct benefit of people, known as instrumental value. Conversely, water left in a river would not hold value because it is not used for the direct benefit of people. This reflected the expansionist and productivist mindset of previous eras where government and settler communities aimed to establish themselves in rural landscapes. As communities developed, the extraction of water increased, while the health of rivers declined. With this came a growing awareness that the health of rivers also ensured the health of communities. Water started to be valued for its ‘non-use’, and we needed a way to formally recognise this value.
Non-use rights, such as environmental flows, can ensure a range of river values are recognised and maintained. This includes their intrinsic value, where rivers are valuable in-and-of themselves, and are not just a means to an end. When implemented with care and foresight, non-use rights ensure that rivers continue to function for their own sake. Furtherstill, non-use rights can also secure relational value. This is where the ‘object’ of value is the relationship between a community or person and the river itself. The value is not in the benefits derived from the river (i.e. instrumental) or its intrinsic value, but in the ongoing connections and bonds that communities, landholders, traditional owners, and individuals form with rivers. By maintaining flows, non-use rights provide a policy instrument to maintain these relationships.
Now, non-use rights are not perfect. In water markets few, if any, conservation organisations have the finances to outbid major commercial water uses. Purchasing non-use rights to water could also undermine the aspirations and viability of rural communities who depend on using water for their livelihood. While equating willingness-to-pay with value can also focus attention on tangible ecosystem goods at the expense of intangible services. Nevertheless, it is a change that at least acknowledges water’s value is not just in what it produces – but that bodies of water and rivers are critical for healthy ecosystems and healthy people.
Rivers as people
Another governance approach is through granting rivers legal personhood. It may sound a little strange, but we regularly assign legal personhood to non-human entities. For example, corporations hold elements of personhood, such as the right to enter into contracts, and to sue or be sued. When this approach is applied to rivers, it involves recognising a river as a legal entity, with some of the rights, powers, duties, and liabilities of a legal person.
The Whanganui River in New Zealand’s North Island was granted personhood in 2017 – and was the first river in the world to do so (since followed by the Ganges in India, all rivers in Bangladesh, and the Magpie River in Canada). In legal terms, legal personhood presents as a new way of governing natural resources. The Whanganui River is an attempt to approximate the worldview of the Whanganui Iwi, the local Māori tribe, into law. The legal framework stems from the spiritual values of the Māori belief system. This acknowledges the river as a living whole, from its headwaters at Mount Tongariro, to its mouth in the Tasman Sea. It also acknowledges the physical and spiritual importance of the river for the Whanganui Iwi, best understood through ‘Ko au te awa. Ko te awa ko au’ (‘I am the river. The river is me.’). In the spirit of the Treaty of Waitangi, New Zealand’s founding document that sets out relations between Māori and the Crown, two persons are appointed as guardian of the river, known as Te Pou Tupua. One is appointed by the Crown and the other by the Whanganui Iwi and they are both required to act as one.
While granting the Whanganui legal personhood assigns the whole river new rights, pre-existing laws are not reversed. As such, the river still faces major pressures from the use of hydroelectric power and run-off from agriculture. The changes in law do not provide rigid protections, but it does give the river, voiced by Te Pou Tupua, a means to defend the river’s interests in courts.
Embrace mess to secure value
These two approaches are designed to reflect and account for the range of value that rivers provide, including intrinsic and relational. Each approach is shaped by the political, ecological, economic and cultural realities around them. By deriving value through how much people are willing to pay to not use water, non-use rights enter markets to ensure the most efficient and equitable allocation of water in a river system. This approach fits into existing water markets in the Murray Darling Basin, however, it is not without controversy. As previously mentioned, non-commercial bidders who want to buy water entitlements to retire them (i.e. non-use) are unlikely to outcompete commercial bidders, and this does not mean the market has delivered the best outcome for rivers or community wellbeing. Here, the economic value of water is ensured, but its intrinsic or relational value is not. Even if water markets have space for non-use rights, if they are not underpinned by deliberation and democratic processes in water uses, equitable outcomes will be difficult to obtain.
Granting a river legal personhood frames the river-as-a-whole and acknowledges that its value is not only in how it is used, but that rivers can hold deep and ongoing cultural and spiritual connections to First Nations peoples. Their custodianship of rivers is critical to their wellbeing and must be reflected in how the river is governed. The challenge is how well legal personhood protects the intrinsic and relational value of rivers once they are stress tested in courts.
Both approaches are attempts to bring some of the traditional management and practices of care to rivers into the institutional architecture of modern Western natural resources management. Building bridges between governance styles will be messy and challenging, but if we do not try different methods for managing rivers, we will lose the very essence of these living, breathing, dynamic waterways we care so much about.
Patrick is undertaking a PhD in economics and management at the University of NSW, based in Canberra. His research focuses on how nature is valued in primary production and examines the biophysical and social relationships crucial to balancing landholder and landscape needs. You can get in touch with him directly in relation to this article or his research.
Featured photo: Glen Helen gorge in West MacDonnell National Park. Photo credit: Adobe.