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Thesis Giving a river legal personhood is the right idea, not a legal gimmick

Aroha Tipene Contributor
· 5 replies · 226 views
Animals & environmentAnalyticIndianLatin American#legal-personhood#rights-of-nature#rivers#tikanga-maori
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Where it stands

I teach at a Māori-language school in Rotorua. Since the Whanganui River was recognised in law as a person, Te Awa Tupua, in 2017, my students have found the idea completely obvious, and I've been surprised by how many adults outside our community find it strange or even silly.

The Whanganui iwi have a saying, "Ko au te awa, ko te awa ko au": I am the river and the river is me. For them, the river is an ancestor and a living whole, from the mountains to the sea. The law now names two guardians to speak for it, one appointed by the iwi and one by the Crown. Te Urewera, a former national park, was given a similar status a few years earlier.

My thesis: this is not a gimmick or a metaphor. Legal personhood is how the law recognises that something has interests of its own that can be harmed and that someone must be able to defend in court. Corporations got it for far worse reasons. A river that people have cared for and depended on for centuries deserves at least as much.

I know the objections: rivers can't sue, can't be sued, can't consent; the guardians will really decide; it's sentimental. Make them, and I'll try to answer from tikanga as well as law.

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5 replies

For the thesis 2

  1. Thandeka Mokoena

    For Fellow

    For, as a lawyer. Personhood in law has always been a tool, not a metaphysical claim: ships, companies and trusts all have forms of it. The question is whether the tool does useful work. If it means a polluter must answer to someone with standing to represent the river's own health, rather than only to downstream users who can prove a loss, then it does real work that ordinary property law doesn't.

  2. Ignacio Fuenzalida

    For Contributor

    For. Ecuador put rights of nature in its constitution in 2008, and its courts have since used them to stop projects. The results are uneven, but it changes the question a judge asks, from "who has lost money?" to "has this forest's capacity to maintain itself been damaged?" That's a better question.

    Helpful · 3

Against the thesis 2

  1. Hamza Qureshi

    Against Fellow

    Against, or at least sceptical. If personhood is just a tool, then the substance is all in the guardians: who appoints them, what they can litigate, what counts as harm to the river. Those choices could be made just as well in an ordinary environmental statute. Calling it a "person" adds solemnity, which I don't despise, but it also invites courts to import rules designed for human persons, and some of those fit badly.

    Helpful · 1
  2. Anand Pillai

    Against Fellow

    A cautionary tale from India. In 2017, the same year as Whanganui, the Uttarakhand High Court declared the Ganga and Yamuna to be legal persons. Within months the Supreme Court stayed that order, partly because the state government asked who would be liable if the rivers flooded and killed people. The difference, I think, is that Whanganui came out of a long negotiated settlement with the iwi who would be guardians, while the Indian ruling came from a court without that structure behind it.

    Helpful · 2

Other replies

  1. Aroha Tipene

    Contributor

    Anand, that's exactly the point I'd want people to understand. Te Awa Tupua isn't a judge's poetry; it came out of claims the Whanganui iwi pursued for well over a century, and then a negotiated settlement. Hamza, I'll grant that most of the work is done by the guardians. But for us the word matters. It says the river has its own mana, not that it's a resource held in trust for humans. The law has finally used a word our grandparents could recognise.