Legal personhood for nature has legal ramifications

Background

Ecuador and Bolivia were among the first to set the platform for the legal recognition of nature. New Zealand has gone one step further and enacted personhood for nature with the introduction of the Te Urewera Act 2014 and Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. India followed suit by giving both the Ganga and Yumana Rivers human minor legal status.

A new path has been forged by New Zealand Government, Māori iwi and Aotearoa as a whole with the enactment of the Te Urewera Act 2014 and Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. New Zealand was the first country in the world to grant a natural resource legal rights, the same as a human being.[1] This comes as a result of long negotiations between Māori Iwi and Government to settle outstanding Treaty of Waitangi claims. The enactment of these two ground breaking acts have been hailed as being the Crown’s recognition of the significance of kaitiakitanga to Māori of their precious tupuna. The focus of legal action can be said to recognise the significance of the respective rivers or land to ensure the guardians and people are restored with kaitiakitanga or kinship of their taonga, and to be considered a national treasure to be preserved for generations to come. [2]

The Beginning

Ecuador and Bolivia

In 2008, after a national referendum, Ecuador changed its constitution to reflect rights for nature “to exists, persist, maintain and regenerate its vital cycles.”[3] Nature was not named a legal person directly, but instead given rights by analogy to persons and people.[4] In 2010, Bolivia legislatively followed suit, somewhat differently in that, rather than directly granting legal personhood to nature, Bolivia’s law reform stripped human persons of their dominance over nature and removed their  possessory rights over nature”.[5] This change was to ensure that nature was not viewed as discrete rivers, lakes, forests but instead as a holistic living system entitled to all the inherent rights recognised in law.[6] Bolivia has been hugely instrumental in drafting the Universal Declaration of Rights of Nature and the same can be said for Ecuador in forming the International Rights of Nature tribunal. Whilst the tribunal has announced damning decisions,[7] their impact practically has yet to be seen.[8]

New Zealand

Te Urewera

Te Uruwera, which borders the Hawkes Bay and Bay of Plenty regions in the North Island, was named a national park under the National Parks Act 1980, however for centuries it has been home to the Tuhoe people or “Children of the Mist” in reference to the tradition that they are the offspring of Hine-puhoku-rangi – the celestial mist maiden. Tūhoe traditions are strong and their links with this land run deep.[9] On 27 July 2014, after many long fought years of outstanding Treaty claims, Te Urewera ceased to be a national park, ceased to be vested in the Crown, managed by the Department of Conservation, it became “a legal entity” with “all the rights, powers, duties and liabilities of a legal person.”[10] According to then Minister Chris Finlayson, the enactment was a positive step on the Crown’s behalf to “settle the historical claims of Tūhoe, who suffered some of the worst breaches by the Crown in the country’s history, involving large scale confiscation, brutal military campaigns targeting Tūhoe settlements, and unjust land purchases.”[11] The first of its kind, not only in New Zealand but also the world; a body of land afforded human rights to recognise its significance to its people, to provide both cultural and financial redress for their suffering  at the hand of the Crown and also, the need environmentally for Te Urewera’s restoration and conservation.[12]

Te Urewera Board

Section 16 of the Te Urewera Act establishes the Te Urewera Board, whose purposes are “to act on behalf of and in the name of Te Urewera.”[13] Te Urewera Board is comprised of nine members, six members appointed by the trustees of Tūhoe Te Uru Taumatua and three members appointed by the Minister.[14] “The Board’s functions, in contrast to many other statutorily appointed boards, is directed to reflect customary values and law.”[15] All revenue received by the Board must be paid into a bank account of the Board and used for achieving the purpose of the Act (s39(1)). For taxation purposes, Te Urewera and the Board are deemed to be the same person.

Te Awa Tupua

Like Te Urewera, Te Awa o Whanganui, the Whanganui River has long been the subject of Treaty claims with Māori Iwi fighting for legal recognition of the standing of their river as tupuna or their ancestor. The significance of its status demonstrates Māori’s deep connection with and their need to act as kaitiaki for the river. Its whakapapa is crucial to Maoridom and Maori world views.[16] Te Awa Tupua (Whanganui River Claims Settlement) Act was bought into force on 2017 as a step by the Crown to recognise the importance of the river to its people. Māori view Te Awa Tupua as an indivisible and living whole, thus the Act contemplates Te Awa Tupua as encompassing the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements.[17]

Te Pou Tupua

Te Pou Tupua was established under the Te Awa Tupua (Whanganui River Claims Settlement) Act to be the human face of Te Awa Tupua and act in the name of Te Awa Tupua.[18] The office of Te Pou Tupua is comprised of two persons, one person nominated by the iwi with interests in the Whanganui River and one person nominated on behalf of the Crown.[19] Sitting behind this office is that of Te Karewao for the purpose of advising and supporting Te Pou Tupua and Te Kopuka for devising a strategy to advance the health and wellbeing of Te Awa Tupua. The Crown contributes to the Te Korotete fund which supports the health and wellbeing of Te Awa Tupua through Te Pou Tupua.  For taxation purposes Te Pou Tupua and Te Awa Tupua are deemed to be the same purposes.

Such leglislative change has been discussed as being the re-evaluation of the place of human interests in relation to nature, but also and seemingly more pressing, the need to redress civil wrongs faced by indigenous peoples in relation to the land that they occupy, and their cultural values attached to the land.

India

Not long after the enactment of Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, India followed New Zealand’s lead. In March 2017, The Uttarakhand High Court granted the Ganga and Yaumna Rivers and their tributaries, two of the most sacred rivers in India, the same legal rights as a human minor. At governance level, three government officials act as parents to the rivers to defend and represent them.[20]

The High Court explained the concept of the “juristic person” as being like any other natural living person conferred with rights and obligations, only for the rivers, the entity acting on behalf of them embodies them.[21]

Legal Ramifications of Nature as a Legal Entity

Legislative change comes at a time where there is significant socio-political and environmental push for the recognition that such rivers, mountains and other such natural resources are considered to be living, breathing and sustaining communities from mountains to sea. They are considered the life force which supports the health and wellbeing of entire communities.

Legislation contemplates how Te Urewera and Te Awa Tupua will function at a governance level, and their respective ability to take legal action on their own behalf. However it is not entirely clear what that will mean in practice.[22] Neither Act expressly addresses the issues of liability or the limit of such liabilities for the River, Te Urewera or the ‘human faces’ themselves[23].

There are still many uncertainties in respect of what legal personhood for Te Awa Tupua and Te Urewera actually means, and the legal ramifications of this.

Some uncertainties include:

  • If it is possible for Te Awa Tupua and Te Urewera to initiate legal proceedings in their own right, What are the limitations of this?
  • Is it possible for the river to face criminal and civil liability?
  • Is the River liable for flooding damage, or it is a case of caveat emptor (buyer beware) for land owners?
  • Does Te Awa Tupua have obligations under the Health and Safety at Work Act 2015?
  • Are Te Awa Tupua and Te Urewera to be considered analogous to a corporate personality that is exempt from certain liabilities?
  • What were Parliament’s intentions when enacting these statutes? Was it a political move to solve long standing Māori claims, or to solve an environmental issue, or to pass a problem to another entity? Or was Parliament’s intention finally to redress the wrongs Māori faced at the hands of the Crown?
  • Who governs the governing entity or entities to provide checks and balances to ensure that the health and wellbeing of Te Awa Tupua and Te Urewera are being restored and the customary values and law is upheld? The Crown has representation on each board, Te Pou Tupua and Te Urewera is there a conflict of interest or self dealing if it is the Crown that is largely funding the restoration and day to day governance, yet sits on each governing board?

One thing is certain and that is, until we have some precedent setting cases brought on behalf of these ‘legal persons’, Te Awa Tupua and Te Urewera, it is unclear how these Acts will play out or the extent of their impact. Providing nature with legal personhood may in fact become  the way of the future, a mechanism we see more commonly used, one to redress historical wrongs, two to give effect to Māori world views and three as a vehicle to combat climate change and enhance conservation.


[1] https://www.thenewsminute.com/article/ganga-and-yamuna-are-now-legal-entities-what-does-mean-and-it-good-move-58999

[2] Ruru, J Tūhoe – Crown settlement – Te Urewera Act 2014 in October 2014 Māori Law Review.

[3] Constitution Politica de la Republica del Ecuador, art 71. (Ecuador)Translated in Rights of Nature Articles in Ecuador’s Constitution, https://therightsofnature.org/wp-content/uploads/pdfs cited in Gwendolyn Gordon: Environmental Personhood, Colombia Journal of Environmental Law, Vol 43:1, 2018.

[4] Constitution Politica de la Republica del Ecuador, art 10.

[5] Gwendolyn Gordon: Environmental Personhood, Colombia Journal of Environmental Law, Vol 43:1, 201 at 55.

[6] Gwendolyn Gordon: Environmental Personhood, Colombia Journal of Environmental Law, Vol 43:1, 201 at 55.

[7] https://www.alternet.org/environment/cop21-international-rights-nature-tribunal-finds-corporations-governments-guilty-crimes

[8] Gwendolyn Gordon: Environmental Personhood, Colombia Journal of Environmental Law, Vol 43:1, 201 at 53.

[9]http://www.doc.govt.nz/parks-and-recreation/places-to-go/east-coast/places/te-urewera/nature-and-conservation/

[10] Section 11 Te Urewera Act 2014.

[11] Minister Chris Finlayson cited by http://www.doc.govt.nz/news/media-releases/2014/tuhoe-claims-settlement-and-te-urewera-bills-passed/

[12] http://www.doc.govt.nz/news/media-releases/2014/tuhoe-claims-settlement-and-te-urewera-bills-passed/

[13] Section 17(a) Te Urewera Act 2014.

[14] Section 21 Te Urewera Act 2014.

[15] Ruru, J Tūhoe – Crown settlement – Te Urewera Act 2014 in October 2014 Māori Law Review

[16] Gwendolyn Gordon, Bones Breath, Body: The life of an Indigenously Owned Corporation (2014) cited in Gwendolyn Gordon: Environmental Personhood, Colombia Journal of Environmental Law, Vol 43:1, 2018.

[17] Section 12 Te Awa Tupua (Whanganui Claims Settlement) Act 2017.

[18] Section 18 Te Awa Tupua (Whanganui Claims Settlement) Act 2017.

[19] Section 20 (1)-(6) Te Awa Tupua (Whanganui Claims Settlement) Act 2017

[20] https://www.thenewsminute.com/article/ganga-and-yamuna-are-now-legal-entities-what-does-mean-and-it-good-move-58999

[21] https://www.thenewsminute.com/article/ganga-and-yamuna-are-now-legal-entities-what-does-mean-and-it-good-move-58999

[22] https://www.lawsociety.org.nz/practice-resources/practice-areas/environmental-law/a-following-sea

[23] Section 21 states that the persons appointed to Te Pou Tupua are not personally libaloe for any action taken or omission makde in their capacity as Te Pou Tupua.


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