By Darlene Lee
In January 2017, Mexico City changed its constitution to include rights of nature.[i] The amendment states in part that “the right to the preservation and protection of nature will be guaranteed by Mexico City authorities in the scope of their competence, always promoting citizen participation in this subject.”[ii]
The amendment, promoted by a citizen initiative that included nearly 150 civil society organizations, was officially launched at the first Forum on the Rights of Nature in 2016.[iii] Here, stakeholders and environmental thinkers from throughout Mexico declared their support for harmonizing governance with nature. (The amendment was passed shortly before the 100th anniversary of the 1917 Mexican Constitution, which was established by President Venustiano Carranza during the Mexican Revolution.[iv])
Mexico City follows in the progressive footsteps of Ecuador and Bolivia. Ecuador amended its constitution to uphold the inherent rights of nature, while Bolivia also recognizes nature’s rights through two national laws. Mexico City’s deadline for implementing its new constitution is December 31st, 2020, but it’s thought it will be in effect by 2019.[v]
Building from this momentum, work to firmly establish rights of nature in Mexico continues. Earth Law Center (ELC) is partnering with local environmental and social organizations to win legal rights for the Magdalena, Atoyac and San Pedro Mezquital rivers. All three rivers face significant threats, including pollution and altered flows. And a proposed dam project will seriously damage the San Pedro Mezquital if it goes ahead.
In 2017, the Whanganui River in New Zealand was the first river in the world to secure legal rights recognition. And soon thereafter, a constitutional court in Colombia released its decision to establish legal rights for the Atrato River. ELC is honored to work with local advocates to bring the same change to Mexico.
What are Rights of Nature?
A primary purpose of our legal system is to stop humans from violating the rights of other humans. Now laws are beginning to prohibit humans from violation the rights of nature, as well. When the law recognizes ecosystems as right-bearing entities, ecosystems – represented in court by local people – will be able to seek legal recourse against anyone who harms their rights. ELC seeks to establish this new paradigm.
The rights of nature has several advantages over our current legal paradigm:
- Advancing nature’s rights will correct the gaps in our legal structures that allow natural systems to be abused for profit.
- A rights of nature approach promotes the idea that humans must respect the Earth’s systems, which would benefit the natural world and humanity as a whole.
- Legally recognizing that nature has an inherent right to thrive will promote whole ecosystem health, rather than allowing nature to teeter on the brink of extinction.
Finally, in regards to waterways, by recognizing the inherent rights of rivers and streams, we can begin to repair the damage caused by institutionalized water overuse. We can also ensure clean and abundant fresh water for future generations.
What are the Rights of Rivers in Particular?
To define the rights to which all waterways are entitled, ELC analyzed the ecological principles of river health and the legal precedent for recognizing the rights of rivers worldwide. We concluded that a river or waterway possesses, at minimum:
- the right to flow;
- the right to perform essential functions within its ecosystem;
- the right to be free from pollution;
- the right to feed and be fed by sustainable aquifers;
- the right to native biodiversity; and
- the right to restoration.
- These are the rights enshrined in ELC’s Universal Declaration of the Rights of Rivers. It is our hope that this document will serve as a baseline for governments to protect the rights of rivers worldwide.
Why Doesn’t the Current System Protect Rivers?
Market theory dictates how water is allocated, resulting in a system where those with the means to buy more water have a greater share of the rights to that water. This system creates several problems:
- Allocating water, a non-substitutable resource, based on an individual’s wealth necessarily leads to an unfair outcome. Wealthy citizens, corporations and municipalities have the power to demand more water for less essential purposes. Meanwhile, poorer populations, who rely primarily on local infrastructure to provide basic essentials like clean drinking water, do not receive their fair share.
- In a system that forces different parties to compete against each other for rights to water, integral groups are excluded from the water allocation process – namely, the waterways themselves. This is because our legal systems generally classify rivers and other waterways as property. As property they have no recourse when confronting infringement of their fundamental rights.
Because natural waterways are not yet rights-holding entities, they have no legal recourse to claim a stake in the outcome of water rights distribution. The rivers keep the freshwater that maintain healthy ecosystems and essential functions, but they have no say in how humans use their waters. Thus rivers are without the ability to claim a reasonable and sustainable share of the water for themselves.
Mexico City’s Last Free Flowing River: The Magdalena Seeks Legal Rights
Metro Mexico City has an estimated population of 21.2 million – the most populated city in the Western Hemisphere.[i] And only one free-flowing river remains in Mexico City: the fragile Magdalena.[ii]
Mexico City used to be the Aztec city of Tenochtitlan. It was originally built on a network of lakes and floating islands. Centuries of population growth have resulted in a sinking city, extensive flooding and almost 20 percent of residents being unable to get water from their taps each day.[iii]
The Magdalena faces threats from altered flows, chemical and pathogenic contaminants, and hydraulic infrastructure (dams, diversion channels, pipelining of springs). The health of the Magdalena impacts local fragile ecosystems, including the Mexico City aquifer and forests in the Valley of Mexico.
A group of local environmental and social leaders have fought passionately for the restoration of the Magdalena River for decades. While they have made commendable progress, many of them believe that legal rights for the Magdalena River will provide the legal incentive necessary to see this river restored to health.
Upholding Legal Rights for the Atoyac River
This river, also known as the Balsas River, flows through the states of Puebla and Tlaxcala and has been ranked as one of the three most polluted rivers in Mexico. In the state of Puebla, 2.3 million people are directly affected by the contamination of the river. Each day, 146 tonnes of organic waste are dumped into it, along with 62.8 tonnes of suspended solids and 14 kilograms of heavy metals.
Threats to the river include the textile, metalworking and petrochemical industries, as well as over-diversion and dams. The restoration of this river will restore fish populations, wildlife habitat and clean water over a vast area, including within the Sierra Madre del Sur.
Environmental leaders have drawn attention to the impairment of the Atoyac River, and several positive developments have resulted. For example, Conagua (the National Water Commission) has sanctioned 34 companies for uncontrolled effluent dumping into the river. Additionally, the Council of Puebla, headed by Mayor Luis Banck, established the commitment "Vive Atoyac," which aims to recover and clean up the Atoyac River Basin in the stretch of the Municipality of Puebla over the next 15 years.
Despite these gains, the river continues to suffer from poor health. Local advocates believe that establishing rights for the Atoyac will modernize the legal dynamic between human and waterways and provide the permanent protections that this river needs.
Securing Legal Rights Recognition for the San Pedro Mezquital River
The San Pedro Mezquital River is the seventh largest river in Mexico, flowing through the western Sierra Madre into the Marismas Nacionales (the National Wetlands) Biosphere Reserve, on the coast of the state of Nayarit. As a function of its relatively pristine state, the San Pedro Mezquital crosses and nurtures the unique ecosystems of rare species, as well as unique indigenous cultures, including the Huichol People in the high sierras and the Meztitlán swamp fishermen in the mangroves of Marismas. Because of its inaccessible location, the San Pedro Mezquital has received relative protection from the anthropogenic threats experienced by other river ecosystems in Mexico.
However, the proposed Las Cruces Dam threatens to fundamentally impair the San Pedro Mezquital. The dam would adversely affect fish species and agricultural needs depended upon by 12,000 families, and also destroy an indigenous ceremonial center and 14 sacred sites. The dam would also restrict the water and nutrients flow that the river carries to Marismas Nacionales, home of one of the largest mangrove forests in Mexico.
Dams alter a river’s ecosystem from one that’s cold, flowing and connected, to one that’s warm, stagnant and fragmented – with devastating consequences for wildlife. Globally, dams have been the single largest factor in plummeting freshwater fish populations, which have declined by 80 percent since 1970. Dams have also been linked directly to soil erosion, water-logging, salinization and new disease vectors.
Rights-based protections for the San Pedro Mezquital River could mean that the river has a right to flow – which may be incompatible with dam construction. Further, establishing rights for the San Pedro Mezquital River will bolster indigenous and community rights by giving local river guardians a robust ability to demand that their free, prior and informed consent is given.
Mexican Environmentalists Hard at Work
Cuatro al Cubo ("Four to the Cube"), Organi - K, Dale la Cara al Atoyac A.C., Nuiwari, A.C., Rights of Mother Earth Mexico and many others work to advance a variety of social, environmental and urban design solutions to Mexico’s challenges, including ailing waterways. Additional groups have adjacent aims, with a focus on community health, plastic and chemical pollution, recreation, indigenous rights, urban design and many other areas.
ELC is proud to partner with these and other organizations to establish legal rights for rivers. Many of these groups were directly responsible for achieving rights of nature within Mexico City’s new constitution, and they are determined to continue the expansion of protections for Mexican ecosystems and communities. Together, we are confident that we can create an international model of success for humans and nature thriving together in harmony.
About the author: Earth Law Center (ELC) works to transform the law to recognize and protect nature’s inherent rights to exist, thrive and evolve. Earth Law Center does this by partnering with local organizations to catalyze the paradigm shift to one in which nature has a say in decisions which impact ecosystems, species and overall health and well-being.
Strengthening and Enhancing Mexican River Protection
We need your help to secure rights for these rivers in Mexico! Here is how you can help today: