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
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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guide to the subject matter. Specialist advice should be sought
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