Internationally hot, domestically not’

Legal personality is an established part of the law in New Zealand and similar countries. It is widely accepted, for example, that a company or incorporated society can be considered a legal person.

Over the last half-century, however, the argument has been advanced that the right of legal personality should also be extended to the environment, and to individual natural features.

Over the past decade I was engaged, somewhat intimately, in this issue as Minister of Waitangi Treaty Negotiations, and as Attorney-General.  In 2014, a Treaty settlement between the Crown and Whanganui River iwi agreed to acknowledge legal personhood for the river, and implement this in domestic law.

So, how visionary is this?  And how practical in the real world of politics?  Where does New Zealand stand, within the global context of the rights of nature movement?

We were, I think, among the pioneers around the world in taking the 2014 to ’17 initiative.  Here are my thoughts on the matter.

In the years since Christopher Stone wrote a now-famous 1970 article about whether or not trees can have legal standing, the concept of recognising legal personality or rights in nature has come to the forefront of the environmental movements in many countries.

In the US, a number of examples now exist of cities and municipalities recognising legal personality in nature.

  • One of the first was Tamaqua, Pennsylvania, where the borough banned the dumping of toxic sewage sludge as a violation of the rights of nature.
  • That was followed by further community-led initiatives across the United States, including campaigns in some states for constitutional amendments.
  • In 2019, voters in Toledo, Ohio, approved an amendment to the city’s Charter that established a bill of rights for Lake Erie and recognised that the lake and its watershed “possess the right to exist, flourish, and naturally evolve.”

Several other countries have embraced the concept.

  • Ecuador, whose national constitution was amended in 2008 to recognise the rights of nature.
  • In 2016, the Constitutional Court of Colombia recognised a river as having rights to “protection, conservation, maintenance and restoration”.
  • In 2017, India’s Uttarakhand High Court granted legal personhood to the river Ganges.
  • In 2018, Colombia’s Supreme Court recognised the Colombian Amazon as an entity, subject of rights, and beneficiary of “protection, conservation, maintenance and restoration”.
  • In 2019, the High Court of Bangladesh recognised rivers as living entities, legal persons and juristic persons.

There are numerous other examples, relating to all sorts of environmental features, flora and even fauna – all different, but ultimately recognising at their base mankind’s stewardship responsibility in relation to nature.

The New Zealand Experience

In 2013 and 2014, New Zealand took its own steps forward in the area of legal personality for nature. Since the 1990s, New Zealand has pursued Treaty of Waitangi settlements, a national policy of reconciliation between the indigenous Māori people and the Crown (the New Zealand government).

A Treaty settlement seeks to address long-standing Māori grievances stemming from New Zealand’s colonisation and settlement. In each settlement, the government makes a formal apology, provides financial redress and seeks to restore an iwi’s connection to its land through cultural redress.

  • The 2013 settlement with the central North Island iwi Ngāi Tūhoe vested ownership of Tūhoe’s large ancestral homeland, Te Urewera, in itself and recognised the area as a legal person. A joint Tūhoe/government board (with a Tūhoe majority) now provides Te Urewera’s legal voice.
  • The 2014 settlement with Whanganui River iwi, mentioned above, took a similar approach in recognising the New Zealand’s third longest river as a living entity in its own right, incapable of being owned. The River is now represented by Te Pou Tupua, a body established to be the human face of the River and act in its name.

Like many indigenous people around the world, Māori have recognised something akin to personality in nature for hundreds of years. It is the West that is catching up. New Zealand’s recognition of legal personality in natural features has responded to a world-view expressed, for example, by Ngāi Tūhoe this way:

the use of property rights by the western legal system has hidden from view the concept of nature […] The use of property rights to regulate human disputes arising from human society is no longer permissible in and of Te Urewera. Te Urewera may never again be owned by people.

In the Whanganui River settlement, legal personality helped New Zealand’s Western legal system accommodate the iwi’s view of the river as Te Awa Tupua: a living being, an indivisible whole incorporating its tributaries and all its physical and metaphysical elements from the mountains to the seas, inseparable from the people connected to it. This world-view is conveyed by the Whanganui pepeha (saying):

E rere kau mai te Awa nui                              The Great River flows

Mai I te Kāhui Maunga ki Tangaroa                 From the Mountains to the Seas

Ko au te Awa, ko te Awa ko au                       I am the River and the River is me

New Zealand’s approach to legal personality differs from many international examples in that the executive has negotiated, and the Parliament legislated, the arrangements: they are not the product of local referenda or imposed by court decisions. More fundamentally, perhaps, New Zealand’s arrangements are unique in the state’s recognition of the aspirations of indigenous people. Legal personality has helped the New Zealand government and Māori get past difficult discussions about Western concepts such as ownership and instead served as a bridge between two fundamentally different traditions of thinking about property and the environment.

The Tūhoe and Whanganui River settlements have achieved significant attention overseas. In 2018, the Whanganui River featured as a key part of US filmmaker Issac Goeckeritz’s documentary, The Rights of Nature, a Global Movement. Among other coverage, the Atlantic made a video setting out what we did with the Whanganui River. National Geographic ran a full-length article, as did the New York Times and Smithsonian Magazine. The BBC made a video telling the story for British audiences. Academic literature has now started to examine New Zealand’s approach with Te Urewera and the River.

Domestic Context

Nonetheless, this international attention has not translated into domestic interest. New Zealand’s experiment with legal personality has been described to me by one person as ‘internationally hot, domestically not’. This probably reflects the relaxed nature of New Zealanders to even radical reforms. We have all got used to what former UK Foreign Secretary Douglas Hurd once described as our ‘adventures of policy’ that make keeping an eye on New Zealand essential for anyone interested in politics.

International Implications

To legislators looking to address seemingly intractable problems in their own countries, I suggest there are a number of benefits to New Zealand’s approach which make it of export to other jurisdictions. In addition to bridging the gap between different (even incompatible) world-views within an existing legal system, New Zealand’s approach:

  • allows progress to be made on matters where there is agreement, while transcending issues where there will not be agreement (such as who owns something, and what that means);
  • is capable of being implemented in legislation, rather than being left to the courts to develop over time;
  • allows the exact scope of legal personality to be spelled out clearly, alongside how the legal personality will be represented practically, and for what reasons;
  • grants the natural resource full powers to be involved in environmental management policy development and decision-making;
  • can be customised to fit a range of different situations.

Global Implications

It is difficult to predict the extent to which legal personality may be applied in the future. Need the boundaries of legal personality and the rights of nature stop at national borders? Could the concept be expanded to a supranational or international level? Trans-national environmental problems require an increasingly multilateral approach.

As Attorney-General of New Zealand in 2013, I appeared in the International Court of Justice, intervening on Australia’s case against Japan on its whaling program. Australia and New Zealand had a great victory in that case but, seven years on, whales are dying from ingesting plastic before they even get close to a Japanese ‘scientific research vessel’.

Could the Pacific Ocean, its islands and fauna one day be recognised as having legal rights?

Perhaps it’s an amorphous idea at this point, but a rights of nature approach to the Pacific Ocean could guide more international collaboration. It has already been suggested that rights of nature laws could help save endangered species, such as orca whales.

In 2018, two Canadian lawyers even considered applying the New Zealand legal personality model to the moon, other space resources and space habitats. Whether or not the concept has extra-terrestrial applicability, there is certainly scope for further examination of how the model could operate on an international or supranational level.

It is an even more interesting exercise to consider the application of the rights of nature to a number of intractable international problems, including cross-border disputes over natural resources and contested or occupied land.

The increasing and often radical suggestions of possible usages of legal personality reflect the promise and adaptability of the concept for different situations.

It does not have to be the preserve of one side of politics or the other. While the rights of nature are promoted in many countries by the environmental left, it doesn’t really belong to either side; in fact it is capable of enjoying support from all parts of the political spectrum. In investigating attitudes to the rights of nature movement, Ben Price of the Community Environmental Legal Defense Fund found that recognising such rights is also popular in rural, conservative towns.

It is easy to get disheartened by some of the environmental problems confronting us in 2020. But we have two options: get apocalyptic or do something. Looking to expand the rights of nature into new fields could be one solution. It’s an area where the New Zealand experience could help lead the way.

Hon Chris Finlayson was a New Zealand MP from2005 to ’19, serving as Minister of Treaty of Waitangi Negotiations and as Attorney-General from 2008 to ’17.  He also had ministerial portfolios for the arts, culture & heritage, and for intelligence services.

Author: Chris Finlayson

March 3, 2020

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