Nature as an entity deserves recognition and participation in environmental mediation 
Author: Dhruv Malpani, O P Jindal Global University

Introduction

Through this article, I argue that nature deserves recognition and participation in environmental mediation as a legal entity. 

In October 2025, a city in Peru – Satipo, followed by another city – Nauta in December 2025, recognised the legal rights of stingless bees, making Peru the first and only country in the world to recognise the rights of an insect, further emboldening the case for rights of nature. The Rights of Nature is a concept and movement that started in the 1970s and has grown over the years. The recent discussions advocate for the recognition of natural resources like rivers as legal persons. With the gradual rise of the movement on rights of nature, the questions related to legal representation for nature and its elements have become relevant in environmental conflicts, and the resolution of these conflicts through mediation is being explored as a possibility. 

While there have been cases when environmental disputes have been resolved or attempted to be resolved through the process of mediation, the question of nature and its elements (e.g., trees, insects, animals, rivers) being a stakeholder within the mediation setting has not been explored properly. Usually, within a mediation, two parties who are in a legal conflict come together to negotiate, compromise and settle their differences for the mutual good or benefit. During an environmental conflict, the party suffering from the environmental damage, like a person or a community, would advocate and put forth their position. However, non-human entities, like rivers, cannot voice their concerns in this anthropocentric machinery. 

Some countries in the world recognise the rights of nature in their domestic legal frameworks. For example, Ecuador became the first country to enshrine rights of nature in its Constitution. New Zealand and Colombia are at the forefront of recognising the legal personhood of rivers through their comprehensive legislation and judgment, respectively. In this article, I compare the New Zealand and Colombian model. By comparing the implications of rights of nature during mediation proceedings in other countries, best practices can be drawn and applied to the Indian context. Despite the Indian judiciary staying the recognition and implementation of legal personhood of rivers in India through a landmark river protection judgment, it remains one of the countries working towards enshrining the rights of nature in its laws. 

2.        MEDIATION 

Mediation is a non-adjudicatory form of dispute resolution wherein a neutral third party facilitates a platform for the two parties to discuss and arrive at a mutually beneficial settlement or solution. The core tenets of mediation majorly involve Party Autonomy, Voluntariness in Participation, and Confidentiality. On a surface level, one might not assume any problem with these fundamentals while engaging in the process of mediation, but what happens when one of the parties in the conflict is more than human, and hence does not have the capacity to represent itself? This creates the representation problem in mediation. A river by itself cannot voluntarily consent to mediation, cannot ensure autonomy of any sort through self-determination of its objectives or otherwise, and definitely cannot participate in confidentiality. The argument is not to do away with the anthropocentric system of mediation, but for a system that has mechanisms to include the voices of nature. A reinvigorated system will know how to incorporate nature’s needs and wants effectively by rethinking some of the tenets of mediation itself. 

3.       NEW ZEALAND FRAMEWORK 

In 2017, the New Zealand Parliament recognised the Whanganui River (Te Awa Tupua) as “an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements”, deeming it a legal person through their 2017 act – legislation. While there is no explicit mention in the 2017 Act to use alternative dispute resolutions and mediation, it mentions collaborative frameworks and statutory processes to resolve issues regarding the health and well-being of the Whanganui River. Te Pou Tupua is a body that is established to take care of the well-being of the river, and has “full capacity and all the powers reasonably necessary” to fulfil the functions enshrined, such as promoting and protecting the health of the river, maintaining a register, landowner functions, apportioning the land, if necessary, etc. For broader strategic issues, a strategy group has been formulated. It consists of representatives from iwi, local authorities, government departments, and various interest groups. 

The membership and the quorum of the group, with representatives from the government, iwi community, and interest groups, are defining characteristics of the system.  It ensures representation from all stakeholders while decentralising the decision-making over the river. However, even this system is not perfect. It is a consensus-based approach which limits party autonomy within the different parties themselves. If the Whanganui River is to be represented in a mediation effectively, one may question the likelihood of a consensus of 75% present and voting amongst the government representatives and community representatives. Only after this consensus can a river appear in a mediation proceeding as a legal person. As the interests between the representatives from the government and the Maori iwi community may differ significantly, the mediation process may become cumbersome and tedious to go through, as it would essentially become a pre-mediation, a time before actual mediation. Another important trait that gets flagged would be confidentiality, and how it is not the best metric in this scenario, because a dispute involving the river would constitute an item of public concern, conceptually coming under the public trust doctrine. An issue about the public at large cannot be simply brushed under the rug in the name of confidentiality. 

4.        COLUMBIA FRAMEWORK 

In 2016, the Colombian Constitutional Court recognised the River Atrato basin as “an entity subject of rights of protection, conservation, maintenance and restoration by the state and ethnic communities”. Invoking the precautionary principle, the court directed the state to prevent any further harm to the river, which had already been ravaged by illegal mining activities. The court also directed the state to exercise guardianship over the Atrato River basin in conjunction with the ethnic communities that reside there, essentially implementing the public trust doctrine.  

To enforce the decision, the Colombian Constitutional Court established a commission of guardians, composed of a delegate from the Colombian government, a delegate from the ethnic communities, and an advisory expert team from a renowned international institution that has previous experience in river protection. Other than minor differences, such as it being less formalised and based on mandatory participatory governance, the Colombian model is not much different from New Zealand’s. In the Colombian mediation process, representatives from the government and the ethnic communities first negotiate internally about the issue before formulating a set agenda for the mediation process. Additionally, the value of a judicial decision is less compared to the Act 2017 of New Zealand, as all its enforcement comes post-judgement. Additionally, the judicial decisions may not always be enforced by the full political will of the ruling government.

Additionally, the following questions can be raised to comprehend the challenges in the Colombian model: how is a consensus reached between the two representatives with different interests and goals in mind; who has the best interest of the river basin at heart; how can an interest that is public in rem be kept confidential; what happens when there is an impasse within the commission of guardians itself; does the government overrule the interest of the community at such instance. The biggest lacuna in the system is the informality in the enforcement mechanism, rendering the enforceability weak and the river helpless.  

5.       INDIA AND ITS POSSIBILITIES 

After the Md. Salim case was stayed by the apex court, the Mediation Act 2023 [‘Act 2023’] is the primary law that determines the procedural and substantive rules of mediation in India. Before delving deeper into the Act 2023, it is important to note that India has participated in mediation in the Indus Water dispute, which resulted in the Indus Waters Treaty between India and Pakistan on sharing the water of the river Indus.  This mediation underscores the Indian practice to consider mediation as a possible environmental conflict resolution mechanism.

The Act of 2023 makes an explicit distinction by exempting all disputes and cases under the purview of the National Green Tribunal (under the NGT Act 2010), essentially foregoing the possibility of any environmental mediation mechanism, as almost all environmental disputes in the country are adjudicated by the NGT. Although there exists a possibility of incorporating mediation into the functioning of NGT,  its effectiveness is still to be determined. 

Through the case studies of New Zealand and Colombia, we can not only redefine the structural and legal frameworks of mediation in India but also help in incorporating nature as an entity stakeholder in the process as a whole. Learning from these two countries, local indigenous knowledge is the primary variable which should lead to a public participation mechanism, akin to the Environmental Impact Assessment. The concept of Citizens’ Juries additionally bolsters the participatory mechanism, taking into account every stakeholder’s perspective regarding a nature-related dispute. Although Citizens’ Juries have been administered locally in some events, their full effect has not been seen yet. India, which has developed a vast environmental jurisprudence, needs support from its executive and legislature; filling the gap by implementing policy frameworks and creating a statutory enforcement bulwark would be the way to go in the future for not only mediation but also for the rights of nature. If the tenets of mediation are rethought and reworked, nature can be represented unequivocally through ADR, mediation specifically, even without its protection as a legal person.