Whanganui River. Photo: freewallpaper.co.nz

A tribunal in New Zealand has recognised – perhaps for the first time in legal history – that a river has personality sufficient to allow it to be heard in a court of law.

As Kate Shuttleworth reported in the New Zealand Herald recently:

The Whanganui River will become an legal entity and have a legal voice under a preliminary agreement signed between Whanganui River iwi and the Crown tonight. This is the first time a river has been given a legal identity. A spokesman for the Minister of Treaty Negotiations said Whanganui River will be recognised as a person when it comes to the law – “in the same way a company is, which will give it rights and interests” … Under the agreement the river is given legal status under the name Te Awa Tupua – two guardians, one from the Crown and one from a Whanganui River iwi, will be given the role of protecting the river.

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The New Zealand Minister for Treaty for Waitangi Negotiations Christopher Finlayson recognised the historic nature of the agreement:

 “Whanganui River iwi have sought to protect the river and have their interests acknowledged by the Crown through the legal system since 1873. They pursued this objective in one of New Zealand’s longest running court cases. “Today’s agreement which recognises the status of the river as Te Awa Tupua (an integrated, living whole) and the inextricable relationship of iwi with the river is a major step towards the resolution of the historical grievances of Whanganui iwi and is important nationally.”

Forty years ago the American legal academic Christopher D. Stone first published a modest essay entitled “Should Trees Have Standing? – Towards Legal Rights For Natural Objects” that presented “an eminently sensible, legally sound, and compelling argument that the environment should be granted legal rights.

At the time U.S. Supreme Court Justice William O. Douglas was writing the preface to a volume of the Southern California Law Review in which Stone’s essay was first published. Later that year in the case of Sierra Club v. Morton, 405 U.S. 727 (1972) Justice Douglas wrote one of those dissenting judgements that ring down the years long after the causes and the result of the original case are forgotten.

Justice Douglas asserted that natural resources ought to have standing to sue for their own protection – a very brave proposal at that time.

The critical question of “standing” would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded … Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole – a creature of ecclesiastical law – is an acceptable adversary and large fortunes ride on its cases. The ordinary corporation is a “person” for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.

So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes – fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water – whether it be a fisherman, a canoeist, a zoologist, or a logger – must be able to speak for the values which the river represents and which are threatened with destruction…..

Four years ago I discussed these issues in a post prompted by the passage by the Ecuadorean government of a new Chapter in their Constitution entitled “Rights For Nature.

I said of that brave move then:

… there are a lot of ‘what-ifs’, including that there have been many constitutions written where the practice of the law doesn’t follow its letters, the difficult practical issues of applying a law with such sweeping effect in a country where 46% of the population lives in poverty and that it may be subject to the whim of the next contrary parliament or dominant politician. But there also seem to be a lot of positives – apparently these measures where sought, in part at least, to provide some measure of sanction against the international corporations that have wreaked social and environmental havoc in many regions of Ecuador in recent decades.

In early 2011 Bolivia passed its own la Ley de Derechos de la Madre Tierra – The Law of Mother Earth – which is the first piece of legislation to grant the planet absolute protection against those who would seek to exploit or destroy its resources or ecosystems. The new law establishes 11 new rights for nature.

I questioned if these apparently radical concepts could be applied to an Australian context, noting the inherent conservatism of Australian non-Aboriginal legal frameworks:

… when I refer to ‘Law’, I’m referring to, in the Australian context at least, that law created by Parliament and the common law recognised and justicable by our Courts. Australian Aboriginal people, and many other indigenous peoples around the world, have no problem sharing their religious and secular law with animals, states of mind, places and other non-human entities. I was almost tempted to say non-sentient where I put non-human, but stopped because, for the Aboriginal peoples that I know, just about all things around them have sentience – either in and of itself or vested through the thing’s function and role/s as a reincarnation, temporary or otherwise, of a known and named human or ancestral being.

There is more at that post on the legal recognition of non-human animals at law – particularly the issues raised by Christopher Stone in “Should Trees have Standing …” (you can get an updated version of that book here) and his fellow American lawyer Steven M. Wise, who in his 2001 book “Rattling the Cage” argued that chimpanzees and bonobos should be granted the status of legal personhood to guarantee their basic rights and protections and freedom from harm.

The recognition of the personhood of the Whanganui River represents a landmark moment in legal history, perhaps no less than the dissent of Justice Douglas in Sierra Club v Morton and the arguments put forward by Christopher Stone, Steven Wise and other legal scholars. But we don’t have these discussions here.

Perhaps it is time we did.

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Peter Fray
Peter Fray
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