Amicus Curiae: When a River Becomes a Legal Person

 

BY CHRIS RYAN

In March the Te Awa Tupua (Whanganui River Claims Settlement) Act became law and the Whanganui River became the first river in the world to gain legal personhood.

The Act creates Te Awa Tupua, a legal entity which comprises of the entire Whanganui River and incorporates all its physical and metaphysical elements. Te Awa Tupua is a legal person and has all the rights, powers, duties, and liabilities of a legal person. Te Pou Tupu, which is made up of one representative of the Crown and one representative of the Whanganui Iwi, is the human face of Te Awa Tupua and acts on its behalf.

However, this was not the first time a natural entity in New Zealand has been given legal personhood. The 2014 Te Urewera Act gave the former Te Urewera National Park all the rights, powers, duties, and liabilities of a legal person as part of the Crown’s settlement with Tūhoe. As well as New Zealand’s granting of personhood to these two natural entities, India’s Uttarakhand High Court recently granted the legal personhood to the river Ganges.

The law is increasingly recognising and engaging with alternative approaches to property, and Governments should perhaps consider continuing this trend by applying this alternative approach and giving rights to the environment more broadly. In post-colonial states, European conceptions of property have tended to dominate, that is, that the environment can be broken into properties that can be owned by individuals who have almost absolute rights over that property. This approach to property resulted in the environment being conceptualised as a resource that exists to be exploited in order to support societies needs.

“Giving the environment the rights of personhood is an approach to property that challenges European approaches to property.”

Giving the environment the rights of personhood is an approach to property that challenges European approaches to property. Māori, as tangata whenua, regard the environment as an ancestor. Exemplifying this worldview, where the environment is a living entity, is the local saying ‘Ko au te awa, ko te awa ko au’ – which translates into English as, ‘I am the river and the river is me’. Ngāti Hau, the Whanganui iwi, sought to have the Whanganui River given personhood as part of their settlement negotiations because treating the river as a living entity is more reconcilable with a Māori understanding of the environment than a European conception of the environment. This shows that assigning the rights of personhood to the environment is a way to recognize that other cultures conceive of property differently to European societies.

Opponents have described giving the Whanganui River personhood as ridiculous, incomprehensible and pretty strange; even Deputy Prime Minister Paula Bennett couldn’t explain what the river being a person meant. Most opposition and confusion arises from the fact that a river clearly isn’t a natural person. However, it is important to note that the law also imbues companies, trusts, charities and incorporated societies, which are also clearly not natural persons, with legal personhood. In practice the operation of a company is similar to the operation of Te Awa Tupua. Just as a Board of Directors exercises a company’s legal rights, Te Pou Tupu will exercise Te Awa Tupua’s legal rights. If anything, approaching the issue from a Māori perspective would suggest that a river, which they regard as a person equivalent to them, is more deserving of personhood than a company might be.

By recognising that there are a diversity of approaches to property beyond those currently represented in the legal system, the Whanganui River and Te Urewera settlements provide an opportunity to address one of the most persuasive harms of colonisation: the imposition of hegemonic English legal norms which have themselves had a significant influence about the organisation of society. The Whanganui River settlement is a way of reconciling Māori values regarding the environment with the existing legal system. The Whanganui River and Te Urewera settlements therefore also provide an example of how the legal system can better represent a broader range of values. Further attempts to do this, in both resource management and other areas of the law such as criminal justice, will make the legal system more inclusive. When more people feel as if the law better represents their value system they may also be more likely to engage with the law, which is beneficial as it increases the perceived legitimacy of the legal system.

Unfortunately the Te Awa Tupua (Whanganui River Claims Settlement) Act provides no legislative environmental protections beyond those that already exist within the Resource Management Act, nor does the Act limit any already existing property rights over the Whanganui River.

Recognising that the environment has the same rights as a natural person challenges European conceptions of the environment as a resource, which itself is likely a useful tool of environmental protection. Merely as a symbol it suggests that the environment has some inherent rights, just as a company has inherent rights as a result of it being a legal person. That the environment has rights suggests that we have an obligation to not harm the environment, just as we have an obligation not to infringe on the rights of any other legal person, be it a company or a natural person. Importantly, this obligation is non-instrumental and is derived from the intrinsic value of something’s existence, irrespective of what benefit humans may derive from that. In the long term, this challenges the conception of the environment as a resource which exists solely to support the needs of humans. Assigning the rights of personhood to the environment may help society to re-conceptualise our relationship with the environment as one where we are kaitiaki. Kaitiakitanga, where humans are Kaitiaki, or guardians, of the environment, is a framework of relations with the environment which is more conducive to environmental protection than those in the status quo. This is because kaitiaki have a duty to manage the environment in a way that prevents harm, which would necessarily involve preventing environmental degradation that is unsustainable.

While the Act may not appear to offer traditional environmental protections, personhood rights for the environment may change society’s relationship with the environment, and in that way it may be a particularly nuanced form of environmental protection.

Even if giving personhood to the environment fails to prevent ongoing damage to it, it is an important symbol to Māori that the Crown are willing to take steps to make the legal system more inclusive of a Māori worldview as part of the Treaty Settlements process.

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