2.1 Representation as relationship

Tănăsescu develops the concept of representation as relationship, ‘a process whereby political subjects are summoned (intra-subjective) and enter a relation of the generic form ‘us’ doing this on behalf of/speaking for/warning against/fighting against, ‘them’ (inter-subjective)’ [6]. He defines representation a ‘relational activity of claim-making’ [6], in which it is not the beings themselves who are represented, but rather the relations, both ‘internal to the subject, as well as inter-subjective’ [6].

Representation thus reflects the ‘irreducible multiplicity’ of subjects and emphasises the central importance of relationships both within and between subjects [6]. This is an active, dynamic relationship which is constantly being renegotiated between represented and representative, and between the representative and the rest of the world.

In doing so, this approach to representation challenges the role of the representer as speaking in the interests of the more-than-human entity. Unlike the standard model, which is ‘widely interpreted as relying on previously coalesced interests and identities that representation could ‘access” [6], understanding representation as inherently relational enables us to accept that ‘we can never gather enough knowledge about a non-human being that would tell us how this being is to be represented’ [6]. Rather, it enables representatives to make ‘representative claims … about preferred relations to the non-human world (‘this is what nature wants/needs/is telling us, and this is what we should do’)’ [6].

In both representing these claims (as a ‘voice’ for Nature), and in responding to them, this process of representation enables a ‘constant re-evaluation of who ‘we’, the group with political power and voice, want to be’ [6]. What sort of relationship do we want to create with Nature? In posing this question, we also acknowledge that ‘everyone is already situated within relations with what we call Nature, and that often meaningful relations of respect already exist’ [6]. In fact, as Graham has argued, such relationships are inherently human: ‘[t]he land, and how we treat it, is what determines our human-ness’ [25]. Humans have always been ‘human-nature hybrids’, and correspondingly, ‘nature is always a humanized hybrid’ [6]. The recognition of Nature as the holder of legal rights enables its representation in particularly human spheres (such as courts, policy-making and even markets), but in understanding representation as relational, we do not need to treat Nature as an ‘other’ to whom we are granting (human) representation. It can be seen, rather, as a way of elucidating and re-negotiating these pre-existing, intertwined relationships of mutual interdependency.

Tănăsescu’s relational model of representation also aligns with recent developments in the concept of personhood. Rather than reinscribing the idea of personhood as an atomised individual, modelled on the White, wealthy, able-bodied man, personhood is beginning to be seen as relational, both in the wider, moral sense [26] and within the strictly legal framework [13]. While accepting of the individual right to personhood, O’Donnell & Arstein-Kerslake [27] highlight the need of legal systems to evolve in a direction that recognizes that individual personhood is inherently relational. In other words, it is the person (or living entity) seeking agency in relation to the individual or group supporting them that is crucial to realize such representation [13].

3.1 Speaking ‘about’ waterways

For water, the dominant paradigm is one of resource management, especially in settler colonial jurisdictions [29]. Water is an object over which humans have dominion, and there is an emphasis on ensuring that human use of this resource is efficient (extracting maximum value from each unit of water), equitable (at least for humans), and to a lesser extent, environmentally sustainable [30, 31]. Notably, this is not the case for Indigenous Peoples, who consider water to be kin, and whose laws embody relational responsibilities to water and waterways [32–35], but whose laws are largely ignored in settler colonial contexts [36].

In the mode of legal object, water is spoken ‘about’ in many ways. Rivers and aquifers are described as water resources for cities, industry and agriculture. The health status of waterways is defined in terms of water quality, hydrology, biodiversity and other ecological values. Waterways are described as ecosystem service providers, delivering recreation, amenity, and other services to humans. Decisions are made about water and waterways without considering their needs beyond those of the ecosystem elements that have been documented, because in this model, the waterway has no holistic needs or agency.

Recognising waterways as legal entities is a way to overcome this classification of water as mere legal object. In doing so, we transform the legal relationship between people and waterscapes from a transactional relationship of exploitation and dominance into an enduring, reciprocal relationship of interdependence.

3.2 Speaking ‘for’ waterways

As waterways are recognised as legal entities in themselves, it has become possible for their representatives to speak ‘for’ them, and ensure that their interests are represented in the decision-making process. Speaking ‘for’ waterways aligns with the standard account of political representation, in which the representative can be understood as a trustee, speaking on behalf of the waterway. In fact, the mere exercise of granting rights to a natural entity when done through the courts, takes place with a plaintiff that is speaking for Nature. Trustees as defined by Burke [20] perform their representative functions by doing what they think is best for those represented. This approach to representation is embedded in two assumptions: first, that there is such a thing as the “common good” that the representative can identify and aim for; and second, that this representative has the capability to speak for others without having to necessarily communicate with them. Mansbridge [37] refers to the latter premise as ‘gyroscopic’ representation, by which a representative ‘looks within’ to derive from their own experience conceptions of interest or ‘common sense’ to serve as a basis for the action. This conception is parallel to Pitkin’s [18] definition of ‘symbolic representation’ by which a representative speaks for, but also ‘stands for’, the represented. This is presumably the premise under which Stone first imagined the rights of natural entities to stand in court, as ‘environmental objects’ [7] to be represented through a guardian that can speak for its interests.

This form of representation runs up against the key difficulty identified by Tănăsescu: how do we know what is in the interests of Nature? In Ecuador, the Constitutional Court has articulated the water-related ecosystem rights of the Aquepi River, enabling citizens to speak for the rights of the river [16]. Yet in doing so, the Court also constrained the rights of the river to the ‘[physical, chemical and hydrological] structure, functions [as service provision to humans and other ecosystem elements], and evolutionary processes’. Although a significant step in articulating the rights of the river (and demonstrating how those rights could be upheld or contravened), this understanding of the river remains anthropocentric, colonial in its apparent preference for Western science [see 32], and ultimately limited in its ability to see the river holistically.

3.3 Speaking ‘with’ waterways

In a relational model of legal personhood, representation is a mechanism for giving expression to a person’s will and preference (rather than paternalistically acting in their best interests), which is contingent on a relationship of sufficient closeness that enables the will and preference to be expressed and understood [38]. Relational personhood (and the necessary relational closeness) thus also reflects Tănăsescu’s position that representation is less about interests, and more about identities and values, enabling the ‘political person’ to be seen and heard [6].

In speaking with waterways, the representatives remain open to a growing understanding of the agency of the waterway. Although waterways may not act in a voluntary manner, they can nonetheless demonstrate a will and preference for particular modes of being, such as being free-flowing, with space to expand in flood and contract again in drier times. In increasing connection with the waterway, representation is thus a ‘process whereby subjectivities are created in the act of proposing preferred relations’, in which ‘human self-perception and self-understanding are at the centre’ [6].

In an extension of speaking with, it is possible for the representative to operate to enable dialogue between the waterway and many participants, who may then form their own relationship with it. The representative seeks not only to help the waterway communicate its will and preference to others, but also to draw others into conversation, and relationship, with the waterway. In a human context, this both strengthens and dilutes the role of the representative. On the one hand, the representative’s relationship with the waterway is enhanced through its role as enabler of dialogue, but on the other, as more people develop their own relationships with the waterway, they too begin to take on the role of representative, reflecting the ‘irreducible multiplicity’ of the river and its representatives (as multiple versions of the waterway, and its representatives, will always exist), and thus a multiplicity of relationships between people and the waterway [6]. Through Watson et al’s [38] model of relational closeness, this mode of representation may also help to shift ‘human self-perception’ from the centre [6], and instead bring each of us into relationship with the waterway.

In operating on this spectrum, the ‘representative position adopted by the representative signals to the audience a preferred relation to the subject of representation’ [6]. In the next sections of the paper, we explore how this spectrum is reflected in four case studies of waterways recognised in law as legal subjects and/or living entities.

4.1 Ethics statement

The research for this study was subjected to the Massachusetts Institute of Technology institutional review board, COUHES (Committee on the Use of Humans as Experimental Subjects). Due to the subject and content of the study IRB approval was waived by Protocol ID: E-5034 and Protocol ID: E-4632. Consent for the interviews was obtained verbally following the prompt recommended by the MIT COUHES Investigator Responsibilities for Exempt Research protocol. A Spanish translation of this prompt was used with Spanish speakers. The data and findings from the interviews are kept anonymous unless the interviewee explicitly requested to be quoted.

Additional information regarding the ethical, cultural, and scientific considerations specific to inclusivity in global research is included in the Supporting Information.

4.2 Methods

Comparative analysis of four case studies is employed as means for theory exploration and development [39]. The use of case studies is guided by the premise that theory development requires ‘a selection of diverse contexts to explore ideas rather than cases to test ideas’ [39].

Case studies were selected through a mix of purposive sampling, in which the cases were selectedbased on a set of predetermined characteristics, and convenience sampling, meaning that out of the universe of cases that complied with such characteristics, case studies were selected based on how accessible they were for researchers, based on language, prior knowledge of the case, and geographical proximity. To be included case studies had to abide by the following criteria:

1. The recognition of a water-based ecosystem as a natural entity with the status of a living being or as a legal person;
2. The recognition of the new status of the natural entity in legal instruments (legislation or case law); and
3. A requirement to establish a representative body that speaks on behalf of the natural entity (possibly alongside and complementary to the recognition of any citizen’s ability to represent the natural entity in court).

These criteria were chosen to ensure that comparative analysis would be possible across a limited number of case studies. We recognise that the nature and geography of the natural entity may affect the way it is represented, so we have focused on waterways, limiting our case studies to three rivers and a lagoon. Recognition of rights in law is also crucial, to ensure that representation is focused on legal mechanisms rather than the rights of the entity as a moral subject.

Data were collected across the four countries during 2022–2023 using interviews with key informants, observation, and non-structured discussions with stakeholders during workshops. Furthermore, a literature review of case specific documents was performed to encompass laws, regulations, policies, and strategies derived from each case study, as well as contextual documentation that was necessary to understand how those policies and regulations relate to a broader cosmology of policies and plans. Key informant semi-structured interviews were conducted in the context of a broader research project that aims at understanding the implications that the recognition of Nature as a living entity has for land-use planning and policy making. Interviews (semi-structured and unstructured) and focus groups were conducted with a total of 66 stakeholders across the four case studies: Birrarung River (17), Te Awa Tupua River (10), Mar Menor (4), and Río Atrato (35). The stakeholders interviewed include policymakers and experts (31), council members (15), river guardians and representatives (10), and environmental activists (10). Insights were also gained through informal conversations with stakeholders as part of participation in workshops and site visits. Finally, a minority of stakeholders provided their insights through written communication. One of us is also a situated knower, in that they are a member of the Birrarung Council, which acts as a voice for the Birrarung/Yarra River.

4.3 Rights and representation of waterways: Case studies

4.3.1 Mar Menor, Spain.

The Mar Menor is the largest saltwater lagoon in Europe. Freshwater mixes with water from the sea, creating special conditions to host a unique ecosystem. The lagoon, together with its surrounding wetlands, were declared as a specially protected area of importance for the Mediterranean under the Convention for the Protection of the Barcelona Marine Environment and the Coastal Region of the Mediterranean 1976. These areas contain ecosystems typical of the Mediterranean area or habitat of endangered species that have a special scientific, aesthetic or cultural interest [40]. In 2020, a report by the Spanish Oceanographic Institute described the situation of this lagoon and ecosystem as an ‘ecological crisis’ [41]. Pollution by heavy metals and organic chemicals derived from industrial and agricultural runoff, as well as the construction of tourism infrastructure and housing developments by the shore, were identified as the main culprits. The pollutants cause eutrophication which has resulted in episodes of anoxia (dangerously low levels of oxygen in the water). In severe episodes in 2019 and 2021, anoxia killed millions of fish and other species in a matter of hours [42, 43].

The case of the Mar Menor lagoon is the first case in Europe where a Natural entity has been granted rights. It is also the first case in the world in which Nature was granted rights through Popular Legislative Initiative. This way of legislating allows for citizens to present a legislative proposal to Congress. If the proposal has enough signatures supporting it, the Congress will take it into consideration. The law then passes or fails following the conventional democratic process. The initiative advanced and succeeded in the midst of the pandemic and without institutional support [44].

The rights of the Mar Menor were recognized through Law 19/2022 on September 30, 2022. The law establishes the ‘legal personality of the Mar Menor lagoon and its basin (…) which is recognized as a subject of rights’ (Art.1), combining elements of the legal entities of Te Awa Tupua and the Río Atrato. The recognized rights include: the right to exist and naturally evolve, which means ensuring the balance and regulation capacity of the ecosystem in the face of the imbalance caused by anthropogenic pressures coming mostly from the catchment basin; the right to protection, understood as the limiting, stopping and not authorizing those activities that pose a risk or damage to the ecosystem; the rights to conservation, which requires actions to preserve terrestrial and marine species and habitats and the management of associated protected natural spaces; and the right to restoration, which requires, if damage has already occurred the need to repair and restore (Art.2). Further details on the management, including specific governance and representation mechanisms, are being crafted as part of an upcoming regulation.

A series of institutional arrangements have been established that aim at both recognising and representing its interests (Table 1). The Tutoria del Mar Menor, as its main representative, is formed by spokespersons from three committees. These committees represent three perspectives: the scientific, the political, and the citizens. These committees are responsible for developing monitoring indicators, information dissemination, and the proposal of new actions to protect the lagoon, amongst others (Table 1). The Tutoria del Mar Menor includes elements of speaking about, for and with Mar Menor, with the Scientific Committee speaking about the lagoon, the Governmental Committee speaking for, and the Monitoring Committee speaking both for, and, perhaps implicitly, with Mar Menor. Civil society actions such as the ’hug to the Mar Menor’, where citizens hold hands around the lagoon to "hug it", have been geared to enabling further dialogue of citizens with the lagoon.

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Table 1. Representation for Mar Menor.

https://doi.org/10.1371/journal.pwat.0000236.t001

Individual citizens are also entitled by law to bring to court any potential breach of the legislation that may be endangering the lagoon, a provision that echoes the rights of Ecuador’s citizens to enforces the constitutional rights of Nature. Legal experts that worked closely with the initiative have pointed out that the law is already being used as a basis to defend the integrity and health of the lagoon in the courts with pending court cases. Institutionally and socially the law is bringing a new perspective into the relationship of the lagoon with the communities that inhabit its basin.

4.4 Río Atrato/Atrato River, Colombia

The Río Atrato is one of Colombia’s longest rivers, spanning almost 800km, and of which over 500km are navigable. The Atrato rises to the west of the Andes mountain range, specifically in the Cerro Plateado at 3,900 meters above sea level and empties into the Gulf of Urabá, in the Caribbean Sea. The river reaches over 500 metres in width and is up to 40 metres deep, with over 300 tributaries. The Atrato is located in the Chocó region (Chocó biogeográfico), one of the most biodiverse regions on the planet, with 90% of the territory deemed as a special conservation area, including several national parks. The Atrato basin of 40,000 square kilometres represents just over 60% of the region’s area and has one of the highest water yields in the world [45].

The Atrato was afforded rights by Colombia’s Constitutional Court in 2016 (Sentencia T-622 de 2016 de la Corte Constitucional de la República de Colombia, del 10 de Noviembre de 2016, hereafter T-622/16). This ruling was the result of years of environmental and social impacts and ecosystem depletion derived from illegal and legal mining activity in the region. The Colombian Constitutional Court ruled in favour of the claimant communities, recognizing the government’s failure to address these environmental and social concerns and to enforce the law. In particular, the ruling stated that the Río Atrato, its basin and tributaries will be recognized as an entidad sujeto de derechos (an entity the subject of rights), comprising the rights to protection, conservation, maintenance and restoration by the State and ethnic communities (T-622/16, order 1, p.156). The court ruling also ordered the creation iand implementation of a plan to decontaminate the water sources of Chocó, starting with the Río Atrato River and its tributaries, recover their ecosystems and avoid additional damage to the environment in the region (T-622/16, order 2, p.157); and the creation of action plans to recover traditional forms of subsistence and nourishment (T-622/16, order 5, p.157).

The ruling was underpinned in the country’s 1991 constitution that boosted the concept of Ecological Constitution (Constitución Ecológica), which sees the protection of the cultural and natural wealth of the nation, the primacy of the general interest, the social and ecological function of property, and the right to a healthy environment (T-622/16, p.85) as intertwined. By declaring the river as a subject of rights the court took a leap forward in the interpretation of these rights to protect what the court coined as ‘biocultural rights’, which center on the ‘relationship of profound unity and interdependence between nature and the human species, and which results in a new socio-legal understanding in which nature and its environment must be taken seriously and with full rights. That is, as subjects of rights’ (T-622/16, p.140).

As formulated in the court ruling, the representation was to be carried out by two guardians (Table 2): a state representative appointed by the President and that could be the Ministry of Environment, and one representative from the community. Additionally, the court requested that a commission of guardians of the Atrato River be formed. This commission would be comprised of the two aforementioned representatives and an advisory team that would include the Humboldt Institute and WWF Colombia (T-622/16, order 1 p.157, see also Decree 1148 of 2017). The community reinterpreted the court ruling to divide the responsibility of this representative into 14 guardians that together would represent the river on behalf of the community. Community representatives noted in interviews that ‘a sole guardian would have not known the entirety of the river’, as the river and its landscapes change from its place of birth towards the river mouth by the sea. After a process of consultation the river guardians were appointed together with the other representatives as described in Table 2.

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Table 2. Representation for the Río Atrato.

https://doi.org/10.1371/journal.pwat.0000236.t002

As with Mar Menor, the representation of the Río Atrato includes elements of speaking with, for and about the river. The Commission of the Guardians appears to speak about and for the river, with the Collegiate of Guardians also speaking with the river through the deep personal relationships between the community representatives and the river. The Advisory Committee appears to largely speak about the river.

4.5 Birrarung/Yarra River, Australia

Located in the south-eastern state of Victoria, the Birrarung/Yarra River is the first and so far only river in Australia to be recognised in settler colonial law as a living entity [46]. The river flows for 242km, beginning in forested catchment of the mountains, flowing through agricultural land and eventually through the heart of Melbourne, the capital city of Victoria [47]. The river supplies approximately 70% of Melbourne’s drinking water, and is a major source of biodiversity, recreation, and amenity in the city. as The Wurundjeri Woi Wurrung, the Traditional Owners of the majority of the river catchment, have always recognised that ‘the river and its environs are a living, breathing entity that follows Wurundjeri songlines and forms a central part of the Dreaming of the Wurundjeri’ [48].

In 2017, the settler state of Victoria passed the Yarra River Protection (Wilip-gin Birrarung murron) Act (the Birrarung Act), which recognised the Birrarung and its lands as a ‘one living and integrated natural entity’ (section 1(a)). Unlike Mar Menor, the Río Atrato and Te Awa Tupua, the Birrarung is not a legal subject and does not have rights and powers of its own in settler state law. This legislation was also the first statute in Victoria to include the language of the Indigenous Wurundjeri Woi Wurrung in the title and the preamble of the legislation. The Birrarung Act established new institutional arrangements for the care and management of the river, including:

• the Yarra River Protection Principles,
• the fifty year community vision [49],
• the Yarra Strategic Plan (known as Burndap Birrarung Burndap Umarkoo, which translates as ‘what is good for the Yarra is good for us all’) to give effect to the vision [47], and
• the Birrarung Council, an independent voice of the river to advise the Minister on the adequacy of implementation and advocate for the interests of the river [17].

Each year, the Birrarung Council prepares an annual report on the implementation, operation and effectiveness of Burndap Birrarung Burndap Umarkoo, which is tabled in Parliament (unedited) by the Minister for Water within seven parliamentary sitting days (section 57 Birrarung Act). In doing so, the Birrarung Council speaks about and for the river.

The Birrarung Act formally acknowledges the role of Wurundjeri Woi Wurrung, as the Traditional Owners, in the care and management of the river [50], and in 2023, following a formalisation of land claims, the Bunurong were also acknowledged as Traditional Owners of the mouth of the river (Table 3). Australia has no treaty with Indigenous Peoples, and the Traditional Owners of the Birrarung have not ceded their sovereignty over the river [47]. The Birrarung Act is the first settler state legislation that begins to acknowledge the legally pluralist nature of water law in the Birrarung [36, 50].

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Table 3. Representation for the Birrarung.

https://doi.org/10.1371/journal.pwat.0000236.t003

In response to the Birrarung Act, the Wurundjeri Woi Wurrung Cultural Heritage Aboriginal Corporation developed Nhanbu narrun bha nargunin twarn Birrarung (Ancient Spirit & Lore of the Yarra), which was launched alongside the fifty-year community vision in 2018 [48]. In this document, the Wurundjeri Woi Wurrung set out several representative claims to the Birrarung, showing how they speak for and with the river. They establish their connection to the river ‘through spirit, culture and nature’, and their long history with the river, as they have ‘lived with and known the Birrarung since the beginning’ [48]. The Wurundjeri Woi Wurrung hold the creation stories for the Birrarung, which mirror the Western geological findings [51]. They articulate their ‘deep cultural obligation and a birthright to look after the river’, drawing on their own laws as well as their status as Indigenous People [48].

In addition to the representative role of the Traditional Owners, the Birrarung Council operates as an independent voice of the river established in the settler state law (Table 3). The Birrarung Council explains that it speaks ‘for the river… so that the river can be heard by all’, but also identifies a ‘more profound obligation [to] enable and support others to communicate with the river’ [52]. In this way, the Birrarung Council also speaks for and with the river.

The Birrarung Council identifies the interests of the river as those ‘reflected in the Yarra River 50-year Community Vision and Nhanbu narrun bha nargunin twarn Birrarung’ [53]. The interests of the river are hence understood through the lens of the river’s relationships with people. In doing so, the Birrarung Council also enables a dialogue of knowledges around the river, as the settler colonial ways of being and knowing are brought into conversation with Indigenous ways of being with and knowing the river.

The Birrarung Act has limited (if any) impact on water management [28], so other forms of representation remain in place. The legal rights to hold and manage water for the environment in the Birrarung continue to be held by the Victorian Environmental Water Holder (Table 3), which has decision-making powers on where, when and how the water will be used to improve the health of the Birrarung water ecosystem [28, 54]. The Victorian Environmental Water Holder speaks about and for the Birrarung within its water remit.

4.6 Te Awa Tupua/Whanganui River, Aotearoa New Zealand

Te Awa Tupua (the Whanganui River) flows through the north island of Aotearoa New Zealand, from Mount Tongariro through forested hills and denuded plains before meeting the ocean at the town of Whanganui. The river is ‘of utmost importance to Whanganui iwi [tribes] and hapū [sub-tribes] who depend on it for their physical and spiritual sustenance and see it as an indivisible and living whole and revered ancestor’ [55].

In 2017, the settler state of Aotearoa New Zealand passed the Te Awa Tupua (Whanganui River Claims Settlement) Act (Te Awa Tupua Act), which attempts to settle historical claims that Whanganui iwi have made based on their rights to the river under Te Tiriti o Waitangi/Treaty of Waitangi [see, for example, 56]. The legislation established the river as an ‘indivisible and living whole… from the mountains to the sea, incorporating all its physical and metaphysical elements’ (section 12) and a legal person (section 14). Te Awa Tupua is a living entity, like the Birrarung, as well as a legal person, like Mar Menor. The rights of the river do not include any rights to water, and up to 80% of the river flows can be diverted for hydropower production [28, 57].

Te Pā Auroa, a new governance framework, comprises the legal status of Te Awa Tupua, Kia Matara Rawa (vesting of Crown land, including the river bed, in Te Awa Tupua), Tupua te Kawa (the intrinsic values of the river), Te Pou Tupua (the human voice of the river), Te Karewao (advisory body to Te Pou Tupua), Te Kōpuka (strategy body), and Te Heke Ngahuru (the Te Awa Tupua Strategy). This ‘complex collaborative governance regime for the river’ is supported by a ‘NZD 30 million fund (called Te Korotete) in furtherance of the river’s health and well-being’ [46].

Whanganui iwi and iwi with interests in the Whanganui (sections 7 and 8, Te Awa Tupua Act) have consistently rejected and disputed the rights of the settler state government to own and control the river [56]. Under their own laws (tikanga), they continue to have obligations to care for the river and act in its interests (Table 4). The framework for the negotiated settlement with the settler state government was underpinned by two principles:

• ‘Te Mana o Te Awa—recognising, promoting and protecting the health and wellbeing of the River and its status as Te Awa Tupua; and
• Te Mana o Te Iwi—recognising and providing for the mana of the Whanganui Iwi and its relationship with the River’ [58].

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Table 4. Representation for Te Awa Tupua.

https://doi.org/10.1371/journal.pwat.0000236.t004

Te Kōpuka has further stated that ‘the primary voice of the Awa [river] comes from the iwi and hapū’ and that Te Pou Tupua must respect this and uphold this relationship of responsibility [9].

Te Pou Tupua provides a human face and voice for the river, and must act in the interests of the river, consistently with Tupua te Kawa (Table 4). Te Pou Tupua is currently comprised of Turama Hawira and Keria Pongo, both of whom have strong connections to Whanganui iwi, which Macpherson argues indicates that their ‘authority, expertise as [I]ndigenous knowledge holders, and contextual familiarity are important markers of their perceived legitimacy’ as representatives of the river [55]. Te Pou Tupua does not have a veto power for any resource consents made under the Resource Management Act 1991, although decision-makers may consider the status of the river and the values of Te Kawa in determining whether a consent will be given.

Both Te Karewao and Te Kōpuka have an attenuated representative status for the river, secondary to Te Pou Tupua, but in fulfilling their functions, they must act in the interests of the river (Te Karewao) and to advance river health and wellbeing (Te Kōpuka) (Table 4).

Te Awa Tupua has multiple representatives. Te Pou Tupua have an obligation to speak for the river, along with Whanganui iwi and hapu, who also speak with the river: Kauaka e kōrero mo e awa, engari kōrero ki te awa [Don’t merely talk about the river, rather speak to and commune with the river]. Te Karewao and Te Kōpuka both speak about the river (which includes acting in the rivers interests, Table 4).

5.1 Relational representation of waterways

In each case, there is evidence of elements of a more relational way of understanding and performing representation. This relationality can be observed in the emergence of new forms of horizontal dialogue and collaboration amongst communities who have traditionally worked in silos. For example, even within the umbrella of settler colonial states in the case of Río Atrato, Birrarung and Te Awa Tupua, we can observe dialogues between Indigenous and settler knowledges and an emerging emphasis on knowledge co-production. By enabling different actors to relate to and speak with these water bodies, and because rivers and lagoons must be understood holistically as living entities and/or legal subjects, the representation process kindles new relationships between actors that had traditionally not spoken to each other. Land and water managers are brought into relation through their mutual relations with the waterway and its representatives.

For instance, in the Mar Menor, the scientific committee is expected to be in continuous dialogue with the monitoring committee, composed of citizens representing different parts of the lagoon’s basin and different sectors of society. The functions that correspond to the Tutoria del Mar Menor, the overarching decision-making body for the lagoon, are exercised jointly by the delegate representatives of the committee of representatives, the monitoring committee, and the scientific committee (Proyecto de Real Decreto de desarrollo de la Ley 19/2022, which is still awaiting final approval). In the Birrarung, interviewees report that the establishment of the Birrarung Council has eased communication and increased collaboration between Melbourne Water and the local government authorities in the river basin. In the Río Atrato, the action plans were the result of collaboration between several ministries (Ministry of Environment, Ministry of Agriculture and Rural Development, and Ministry of Interior), scientists and specialists from the Insituto de Investigaciones Ambientales del Pacífico, academia, regional autonomous corporations from Chocó and Antioquia (which are the environmental authority at the regional level), civil society, and other actors (Plan de Acción de la Orden Séptima). In each case, we can also begin to observe a dialogue not just between people, but also between knowledge systems.

This relational mode of representation is also supporting inter-institutional cooperation. For instance, in the Río Atrato, interviewees reveal that the need to implement the court ruling has stirred inter-ministerial dialogue and cooperation in areas where before they operated in silos. In the Birrarung, Burndap Birrarung Burndap Umarkoo mandates that RPEs (Responsible Public Entities) ‘will collaborate in delivering the Yarra Strategic Plan [Burndap Birrarung Burndap Umarkoo] actions and priority projects where they relate to their remit and function’ [59].

What is more, representatives are able to connect vertically across governance levels, linking high and lower instances of governance with each other, and with the waterways themselves. These new forms of representation are enabling a wide range of actors and civil society to access levels of government. For instance, in the Río Atrato, the river guardians who represent communities along the river basin hold meetings with the Ministry of Environment every six months; a level of access to national government that was previously unthinkable. Similarly, the Birrarung Council remains in direct contact with the Minister of Water, and the Victorian Parliament, through a yearly reporting system. The Mar Menor regional offices, such as the Oficina Técnica del Mar Menor, are in direct report with the Ministry for the Ecological Transition and Demographic Challenge (MITECO by its Spanish acronym) elevating local voices to the highest instances of governance. This rich, multi-layered, relational representation is enabling multiple forms of dialogue, exchange, and relationship building, with the waterway at the centre.

But the differences in representation with respect to previous ways in which representation was envisioned and actualized go beyond changes in institutional collaboration and access. There is no denying that regardless of efforts to make the process inclusive, representation will always be a limited reproduction of the entity represented, hence it is crucial to pay particular attention to what may be left unrepresented [60]. A relational form of representation rejects sameness and contests the homogenization and universalization of civic life and the understanding of what is the “common good”. Such reckoning enables the inclusion of voices that had been historically neglected in environmental planning processes to have a voice at the decision-making table. In the Mar Menor, in considering which the stakeholders would form the monitoring commission (Comisión de Seguimiento) it was established that members (or guardians, as the legislation calls them) would need to not only represent the lagoon’s basin geographically, but also acknowledge diversity in the citizens’ concerns and viewpoints regarding the lagoon. Hence, the legislation includes the participation of representatives from a great variety of backgrounds (Table 1; Proyecto de real decreto de desarrollo de la ley 19/2022, art 7). In the Atrato, the Action Plan derived from the court’s fifth order (Plan de Acción de la orden 5) also included a great variety of stakeholders, acknowledging the importance of territorial representation as well as the inclusion of other related actors including Afro-Colombian communities, resguardos indigenas [Indigenous reservations], representatives of comunidades campesinas [local communities], mestizos, mulattos, fishermen in the area and other related communities even beyond those pointed at in the court ruling (Plan de Accion Orden Quinta, F-E-SIG-26-V3). In the Birrarung, there is also a clear acknowledgement of the plurality existing within First Nations. The Birrarung Council ‘walking together’ statement includes an acknowledgement of the Wurundjeri Woi-Wurrung as the peoples of the river, and the Bunurong as the people of the river mouth. Although initially only Wurundjeri Woi-wurrung were included in the Birrarung Council, both are now represented, enabling the contribution of knowledges from different Indigenous groups with different cultures, laws, and experiences. In none of the cases is the “guardian” one person, but rather a plurality of perspectives, the result of horizontal and vertical collaboration and dialogue.

As more natural entities gain recognition as legal/living entities, there is the possibility and opportunity for dialogue between natural entities. The isolated nature of most legal/living entities so far has limited this possibility to date, but there are commitments to recognise all waterways in Victoria as living entities [Targeted outcome 1, 61], and in Bangladesh, all rivers are currently recognised as legal and living persons [62], creating the opportunity to support dialogue between river persons. A recent example of this is the relationship between the Birrarung/Yarra River and the Burramatta/Parramatta River. In 2022, water from the Birrarung was introduced to the Burramatta River, as the opening of a dialogue between rivers at the Sydney Biennale. In 2023, water from the Burramatta River was then introduced to the Birrarung, bringing the rivers into conversation. This was directly facilitated by the Birrarung Council (whose members physically transported the water) and Wurundjeri Woi-Wurrung, but also reflects the ongoing conversation between these rivers through their mutual connection to the ocean. Each provides habitat for migratory eel species, whose populations may mingle in the Coral Sea before returning to the rivers of their birth.

This form of relational representation reflects the role of the representative as a plurality of voices that relate differently to the waterways and that together work out forms of representation in consensus when speaking sometimes for, but increasingly often with, (and potentially between) the waterways.

5.2 Representation as intimate and place-based

Rather than recognising the rights of Nature as a whole, each of these case studies focuses on a specific waterway. The task of representing the waterway entity is thus specific to the named waterway, acknowledging the embodied history of relationships between the waterway and the world around it, including relationships with humans. This place-based identity shapes the way the representatives undertake their task. All four case studies, to varying degrees, evidence an interest in speaking with the waterways, not merely speaking for them. This is made possible by the closeness of the relationship between the representatives and the waterways. Rather than merely emphasising the collation of ‘objective’ facts about the waterways (or even, as Mansbridge advocates, taking a gyroscopic look at the representee) that could enable a paternalistic determination of what is in their ‘best’ interests, the place-based approach centres and strengthens the relationship between the representatives and the waterway. Effective representation is enabled through intimacy with the context, geography, ecology, hydrology, and culture(s) of the waterway and the people who live in and near it. This closeness allows for the representatives to speak with and through an entity that can express itself in many ways but not through human language.

Each case study articulates the representatives’ closeness to the waterway entity, geographically and otherwise. For instance, in the Río Atrato, the initial court ruling requested that two representatives be named as guardians, one on behalf of the government and one of behalf of the communities. However, this single community representative became 14 guardians/representatives as a result of a participatory process (the first inter-institutional and community meeting of Guardians of Atrato, held in Quibdo in 2017) that determined that the geography of the river is so vast and varied, from the mountains to the sea, that one sole local representative could not make justice for the River. These 14 representatives come from seven ethnic authorities and community organizations along the river basin. Together with those 14 representatives, the Ministry of Environment and Sustainable Development was co-designated as the other representative on behalf of the government (Decree 1148 2017, Art 1). Similarly, the Mar Menor body of representatives includes a member from each basin municipality, rather than a single representative for the entire basin. In Te Awa Tupua, Te Kōpuka is comprised of iwi with interests in Te Awa Tupua (via Te Ripo), the mayors of three district councils, government agencies (Fish and Game and Department of Conservation), Genesis Energy, and four people representing tourism, environmental, recreation and primary industry interests. This blend of geographic representation as well as sectoral representation ensures inclusion of many different relationships with the river. The Birrarung Council also requires a combination of Traditional Owners, interest groups (community, environmental, and agricultural), and specific skills (such as aquatic ecology, landscape architecture, and urban planning, see Birrarung Act section 49(2)). None of the cases are contingent on establishing the ‘objective facts’ relating to the waterway and its health in order to enable effective representation. Instead, they prioritise the multiple relationships and ways of knowing the waterway, supporting dialogues between knowledges, between people, and with the waterway.

Understanding representation as intimate and place based has also challenged procedural notions of what representation should look like under the standard model. Across the case studies, elements of place are inserted in the way representation is envisioned and performed. In the Birrarung, decision-making processes are moulded for representation to be more attuned to place. The river must be present, either physically or virtually during meetings of the Birrarung Council. In the Río Atrato, the action plans proposed the opening of specific physical spaces of engagement geared towards women, acknowledging that the design of traditional forums where men and women are simultaneously present is not conducive to women’s free participation.

The institutionalization of representation finds ways for cultural expression and embeddedness in the social, political and legal context that contribute to a reciprocal relationship between the representative and the community and further legitimize the representative’s role. In the Río Atrato, implementation included a campaign called “Todos y todas somos Guardianes del Atrato” (we are all guardians of the Atrato River). Through the use of coplas [couplets], alabaos [traditional songs], and poems the campaign aimed at the community’s appropriation of the role of Guardians, a role that is not exclusive to the Collegiate Body [63]. What is more, the action plans highlight the importance of ancestral knowledge and traditional ways of relating to the river and identify particular places with traditional and spiritual value. Biocultural rights take centre stage in this new approach. In the Birrarung, there is a particular emphasis on learning from and adopting the ways in which Indigenous Peoples have cared for Country for millennia. Dialogues in the Council are organized to allow for the Elders to speak first, and yarning circles, which include smoking ceremonies and are led by Elders, have become part of the representation of the river.

The new governance framework for Te Awa Tupua, Te Pā Auroa nā Te Awa Tupua, means ‘the broad eel weir built to withstand the autumn, winter and spring floods’, symbolizing an extensive, well-constructed framework that ‘represents a comprehensive and resilient structure [that] symbolises our collective responsibility and commitment to this endeavour’ [9]. Freshwater eels are of great significance to Māori culturally, as a source of substenance, and as a treasured caretaker of waterways. In the Mar Menor, a collaboration between artists and scientists created the ‘signature’ of the Mar Menor. In their words, the pen strokes of the ‘signature’, which represents the lagoons currents, was ‘a poetic way of claiming that the lagoon is alive and can be protected if we give it the rights to do so’ [Joan Quirós in 64]. A signature also carries great significance in the civil law system of Spain.

5.3 Materializing enabling forms of representing waterways

To fully realize the representation of waterways, many of the challenges and needs are akin to those faced by other forms of representation: the need for resources, economic and otherwise; being granted a real (powerful) voice in the political arena; and proper channels and processes to realize the expected functions of a representative. In addition, the forms of representation for waterways also wrestle with distinctive practicalities.

Waterways are being recognised on human terms as a legal entity. Thus, the performance of representation is already constrained by the anthropocentric system in which it is operating [65]. Within this system, the waterway entity often, and simultaneously, continues to be treated as a powerless resource (a legal object) and the rules and regulations governing it as a resource are often disconnected from the specific powers of the representative. For instance, in none of the case studies do the representatives have the ability to directly affect water resource management, and the waterway entities have no legal rights to the water that defines their identities. This issue is compounded by one of scale: too often, national or state laws and policies define outcomes for a waterway, and there may be little that local or regional representative bodies can do to alter them [see also [28]. This can set representatives and their functions up for failure. For instance, when crafting implementation plans that consider the rights of the River, representatives may advocate for a water pollution monitoring system that safeguards the ecosystem as well as human health. However, water quality regulations are usually established at the national level and may not be modifiable, curtailing the exercise of representation.

Beyond legal constraints, the presence of existing power dynamics can curtail the possibilities of a relational model of representation to set foot and flourish. This is made obvious through what pluralists [66] refer to as the exercise of power by decision making, in this case through actions that explicitly oppose relational ways of representation. For instance, the Río Atrato, the river guardians say that local authorities still allow heavy mining machinery to reach the river bed with total impunity, disregarding their role as guardians and riverine communities’ calls to put a stop on the use of this machinery on the river. Furthermore, it is important to highlight the execution of power by omission of action, or by confining the scope of action [67], and by any stakeholders preventing action from being taken [68]. In the Mar Menor, the approval of the regulation that covers the role of the different committees representing the lagoon has been delayed several times and is still pending approval by the Ministers’ Council. This lack of detail limits the exercise of representation of Mar Menor. To complicate matters, conservative party representatives within regional governments are attempting to modify a pre-existing law that afforded some protections to the Mar Menor (Ley 3/2020 de recuperación y protección del Mar Menor) to free the agricultural sector from any duties with regards to discharges on the Mar Menor, undermining the rights of the lagoon. In the Birrarung, the Birrarung Council is the voice of the river, but has no decision-making power in any policy processes that affect the health of the river.

Representation of waterways reflects a dynamic relationship, and must be responsive to changes in the waterway entity over time, so it requires a flexible governance structure. However, this way of operating can generate frictions in a legal system that only looks at the implementation of a law that took place at a point in time. For instance, the Río Atrato court ruling established a series of requirements that multiple interviewees (from the ministerial level to the local level, including community representatives) consider to be unattainable in the g set time period, given the idiosyncrasies of politics and place.

Giving voice to waterways through a multiplicity of actors or guardians also complicates the issue of accountability to ‘limit(s) the inherent hazards of political subjection’ [69]. Such accountability is key to ensuring that representatives are liable for their actions in the exercise of their powers, and sanctionable for the acts performed [69]. When representatives are both speaking for and with the waterway, but also simultaneously representing other interest groups, to whom are they ultimately accountable? For example, the Birrarung Council must include members who are also representatives of environmental and agricultural groups (Birrarung Act, section 49). Te Kōpuka must include representatives of interests in tourism, environment, recreation and primary industries (Te Awa Tupua Act, section 32). In Mar Menor, representatives of fishing, private sector, and local interests, as well as community leaders are included in the Monitoring Commission. In the Río Atrato, the 14 river guardians come from different geographical areas of the river, and also continue in their roles as local leaders, and workers, as the guardian positions are not remunerated.

Relational representation of waterways complicates this further. How can the actions of the representative be interrogated when they are based on relational closeness but not necessarily ‘objective facts’? Representation of waterways should be accompanied by measures of process and outcome that enable the actions of the representatives to be assessed and held to account for the efficacy of their representation. The adoption of knowledge co-production procedures is increasingly enabling these processes, although not without friction. These representatives, in giving voice to the waterway, and in enabling others to build their own relationships with the waterway, can be immensely powerful in shaping the future health and wellbeing of the waterway, but these processes are slow and ensuring representatives are effective is challenging.

In sum, representing waterways offers new opportunities for relational and place-based representation, but these representatives may also find challenges within the legal and political systems in which they are created.