By Paul Davies and Michael Green
New Zealand’s Parliament has just passed a bill to enable the Whanganui River to be recognised as a legal person. It will now be represented by two nominees: one appointed by the Maori community (or Iwi), and another appointed by the government. Part of the settlement includes a fund of $28 million to protect the river and $75 million in financial redress to the Iwi. Chris Finlayson, New Zealand’s attorney general and minister for treaty negotiations described the move as “unprecedented” but also emphasised that it was equivalent to assigning legal personality to companies.
As a result of this development, the river will have its own legal standing with all corresponding rights, duties and liabilities of a legal person. This is the first instance anywhere of extending legal personality to a natural entity. In so doing, it represents a significant shift in giving specific natural objects a legal personality and could potentially lead to a material change in how such objects are protected under environmental laws.
The “Rights of Nature” Argument
As early as 1972, Christopher Stone argued in his landmark text Should Trees Have Standing, that rivers, trees and other natural entities have legal rights. He suggested that these rights should be protected by granting legal standing to guardians of these entities, who do not have a voice to advocate for themselves. This is on par with how the rights of children are protected by legal guardians. It is this concept of guardianship that has been employed in the bill concerning the Whanganui River.
Stone’s arguments were used by Supreme Court Justice William O’Douglas in his dissent in Sierra Club v Morton, in which he argued for the conferral of standing upon natural entities so that legitimate legal claims could be brought for their preservation. This shift towards a “rights of nature” movement is also reflected in other jurisdictions. Ecuador enacted a new constitution in 2008 and was the first national constitution to incorporate rights of nature. It granted nature with a right to restitution, incorporating many elements of environmental conservation and also accorded every man the guardianship of nature. The Bolivian Constitution has similar provisions on the rights of nature.
It remains to be seen if the granting of legal personality to the Whanganui River, will encourage the deployment of this legal construct to other natural objects. However, the granting of legal personhood to a river emphasises how changing values, influenced by traditional worldviews, can act to effect a transition from a natural object being considered a property, predominantly for human use, to a legal person. This change provides a mechanism for the natural object to be proactively protected, rather than reactively addressed through seeking to clean up any degradation in the condition of such natural object.
Given the impact of climate change on the wider environment, we can expect increased pressure for legal systems (globally) to adopt equally innovative steps in order to confer legal personality to significant natural objects.
This post was prepared with the assistance of Ei Nge Htut in the London office of Latham & Watkins.
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