Eliza Salvatori on the legal personhood of rivers

Eliza Salvatori is a Saltwater Budawang Yuin woman who spent much of her childhood on Bundjalung Country in the Northern Rivers region. Eliza is currently a Senior Consultant in the Indigenous Services Group, a practice within Deloitte that focuses exclusively on working with and for First Nations people to address the complex and often intersected issues communities face. Prior to joining Deloitte, Eliza was the Director of Ngalaya Indigenous Corporation and a paralegal at the NSW Department of Planning and Environment.

Last year, Eliza graduated from a law degree and won the Ashurst Prize in Environmental Law for her research paper on the legal and practical consequences of giving rivers “legal personhood” for First Nations communities in Australia! How cool is that!

Our ears pricked up when we heard about Eliza’s research and she happily agreed to an interview with RTNR. Here’s what Eliza had to say:

Hey Eliza, thanks for chatting with us. First up, what does being a Budawang Yuin woman mean to you?

I feel an immense sense of pride and privilege to be a First Nations woman. I’m connected to a strong line of incredible Saltwater Yuin women, including my great aunty, Aunty Rosalee, who helped set up Yabun and my resilient Aunty Kim, who has been extraordinary in reconnecting our family and joining the many dots. Aunty is the Metro Regional Coordinator in the Aboriginal Services Unit at the NSW Department of Communities and Justice – she’s a change-maker and champion for First Nations justice. My tidda Kaylie Salvatori is the founder and Director of COLA Studio, a landscape architecture firm focused on Country centred regenerative design.

My inspiration comes from the leadership and determination of these resilient women. They have shown me that being a proud Aboriginal woman comes with immense responsibility to care for Country, to actively connect and learn from our people, to fight for change and to give back to community and Country.

Because of this country’s history of colonisation and assimilation, our experiences of Aboriginality are uniquely different. My family and I – who were separated and disconnected from each other and from Country for a very long time – are on our own journeys of reconnection. Part of the journey for me has been challenging to navigate, but it is incredibly rewarding to join all the dots, reconnect with mob and learn more about where I come from and who I am.

The thoughts, comments, recommendations, and experiences expressed here are my own and do not represent the thoughts or voices of any other Indigenous person or Indigenous people as a whole. I acknowledge, appreciate, and pay my respects to my Ancestors, Elders, family and mentors for all their knowledge and guidance.

You wrote your final research paper of university on the implications of legal personhood of rivers for First Nations communities. What led you down this path?

I’ve always had a special and significant connection to water – I’m a Saltwater Yuin woman after all. I grew up on the beach on beautiful Bundjalung Country, the lands of the Arakwal People. I went to school just outside of Lismore on the Wilsons River. Water – oceans and river systems – is part of me and my identity. They are the veins of this Country.

When I started the final year of my law degree, the world was in the middle of a global pandemic and a climate crisis. I was living in the Netherlands – the “water experts of the world” (so they say) – where we were experiencing some of the worst flooding the Netherlands had seen in decades. At the same time, I was reading about the massive coastal erosion at home in Byron and was just totally overwhelmed by the dire situation the world has found itself in.

So, when I had to choose a research topic for Environmental Law, it was a given that I would focus on water management strategies and water rights. That’s how I learnt about the concept of ‘legal personhood’ for rivers – an alternative legal framework that gives natural resources the same rights, duties and liabilities as people and corporations. Proponents argue that granting legal rights to natural objects can halt human exploitation of nature and give effect to First Nations laws and relationship to Country.

As with all my studies, I approached my research and thinking from a First Nations lens, asking questions that were Country-centred and community focused: How does ‘legal personhood’ play out alongside our obligations to care for Country? Does a framework like this support or undermine the effective regenerative practices and resource management strategies used by our People for more than 60,000 years? What do cultural knowledge holders say about the legal concept and how it might be used? What are the implications of this framework for First Nations communities?

These questions led me to research on the Martuwarra (Fitzroy River) in Western Australia. Today, the Traditional Owners of the Martuwarra are fighting to protect the Martuwarra from proposals to irrigate and extract more than 300 billion litres of water from the river each year!! Part of this fight has involved discussions around giving the Martuwarra legal recognition as a living ancestral being with its own rights.

You looked specifically at three rivers – the Martuwarra (Fitzroy River), the Birrarung (Yarra) River in Victoria and the Whanganui River in New Zealand. What did you learn from the processes and approaches to these two case studies?

To gain an understanding of the potential consequences of giving the Martuwarra legal personhood, I compared the ways two rivers – the Birrarung and the Whanganui – have received legal status and the legal and practical implications that come with it. Whilst cautious of the homogenising effect of comparing distinct rivers and communities, the comparison indicated the different consequences and outcomes that arise with different forms of legal status.

In 2017, the Whanganui River in New Zealand became the world’s first natural object with ‘legal personality’ after a long battle by the local Whanganui Iwi People for assertion of their rights over the river since the 1870s. Not long after, Victoria introduced the Yarra Act (1) to recognise Traditional Owners’ custodianship of the Birrarung and their unique connection to the lands where the river flows.

The most alarming implication of applying legal personhood to rivers, in my view, is its potential to disenfranchise First Peoples and undermine the unequivocal existence of Indigenous custodianship of rivers. Legal personhood status separates rivers into distinct legal entities – and this often involves separating rivers from Indigenous Peoples. That is antithetical to the very foundation of First Law – the body of laws that governs the interconnected and dynamic relationships between and within humans and non-humans since the beginning of time.

The most obvious distinction between the two legislative frameworks in Victoria and New Zealand is the status of each river. The Whanganui is legally recognised as an “indivisible entity” with its own life force, rights and liabilities. The Birrarung, on the other hand, holds the status of an “living entity” without the status of a ‘legal person’. This allows the Birrarung to avoid some of the challenges involved with legal personhood, including the possibility of being sued. If a river were to find itself subject to a legal action, who is responsible for the financial burden of a judicial process? Without significant financial support, the responsibilities and risks bear heavily on appointed guardians and the community.

Another unintended consequence of granting legal personhood status is that First Peoples are, again, regarded as just another stakeholder as opposed to Traditional Owners with intrinsic ownership rights to rivers and Country. The Whanganui model does not give a decision-making role to Traditional Owners nor does it include any reference to Indigenous rights to water. Victoria’s Traditional Owners, on the other hand, are directly represented in the Birrarung Council which was established as the independent voice of the Birrarung. It is noted, however, that there are only two places reserved for Traditional Owners.

If we want to achieve the goals of ‘legal personhood’ (that is, to give effect to First Nations laws and relationship to Country), shouldn’t the approach be to incorporate First Law and Aboriginal perspectives to water rights and obligations to care for Country within the body and foundation of Australian water law? We could do this by securing a co-stewardship arrangement between Traditional Owners nations along the river and recognising the status of rivers as living entities without resorting to ‘legal personhood’.

The approaches to legal personhood taken in Victoria and New Zealand indicate that we need to distinguish – clearly and openly – between ‘legal personhood’ as a right conferred on rivers and the recognition of ‘traditional ownership rights to lands and waters’ under First Law.

[1] Yarra River Protection (Wilip-gin Birrarung murron) Act (2017) No. 49 of 2017.

The evidence is overwhelming that rivers in our region have not been looked after. What needs to change? In a perfect world what do you think the best approach is when it comes to custodianship of rivers?

My sister has taught me a lot about decolonising our approach to land and water management and to look to oral traditions, songlines and stories about changes in the landscape that have been carried on and passed down for thousands and thousands of years. Some of the oldest stories explain changing climates, how to manage fires and floods and how to respond to rising sea levels and changes in earth’s patterns. The reality is that Australian landscapes, climatic cycles and river systems always been unpredictable. For example, floods might fill the entire Martuwarra river system one year, but in the next year it might not flood, leaving local species to rely on remnant pools until the next periodic flood for survival.  Colonial assumptions about the predictability of our cycles and waterways and expectations that European methods of water and land management will work best here is clearly wrong and inappropriate.

So, what needs to change? A lot – we need to authentically consult with Traditional Owners, knowledge holders and communities, listen to their stories and solutions, and act accordingly. But it needs to go beyond consultation. If we want to achieve real change and safeguard the health and vitality of our rivers, Indigenous People need to be able to exercise custodianship over rivers and Country. This might involve formalising Aboriginal Peoples’ ownership of water as an Aboriginal property right or it might involve incorporating Aboriginal concepts of water and perspectives to water rights within the foundation and body of Australian water law. But again, the solutions lie with community and Traditional Owners. Having managed these lands and waters since the beginning of time, they are best placed to propose solutions and best approaches to take when it comes to custodianship of rivers.

What’s your favourite Northern Rivers species?

It’s hard to choose one! Although not specific to the Northern Rivers, the Wedge-tailed Eagle holds a special place in my heart and reminds of me of home on Bundjalung Country. I have the fondest memories of sitting on the balcony with my Dad in Talofa (the hills between Byron and Bangalow) watching wedge-tailed eagles soar majestically across the landscape. They’re just so big and free.