A few months ago, the New Zealand Government took an amazing step – prodded by indigenous peoples – to legally recognize the rights of a river. A new law, the Te Awa Tupua Act, recognizes that the Whanganui River (known to the iwi and hapū people as Te Awa Tupua) is “an indivisible and living whole, …from the mountains to the sea, incorporating all its physical and metaphysical elements.”
The metaphysical reality that the law recognizes is one that remains quite alien to the western mind: “I am the river, and the river is me.” That's how the Iwi express their relationship to the Whanganui; the two are indivisible, an utterly organic whole. The river is not a mere “resource” to be managed.
The idea of conferring of a “legal personality” on a river and explicitly guaranteeing its “health and well-being” is a major departure for Western law, needless to say. We westerners have no legal categories for recognizing the intrinsic nature of nonhuman living systems and how we relate to them ontologically. As if to underscore this fact, the practical legal challenges of defining and enforcing the rights of the Whanganui are far from resolved, notwithstanding the creation of a new legal framework.
Still, the law is an important start. It settles the historical claims on the river made by indigenous peoples, and it makes nineteen remarkable “acknowledgements” of the Crown’s behavior over the past century. The law even recognizes the “inalienable connection” of the iwi and hapū to the river, and tenders an official apology.
This latest episode in granting rights to nature is nicely summarized in a piece in The Guardian by Ashish Kothari and Shristee Bajpai of the Kalpavriksh Environmental Action Group in India, and Mari Margi of the Community Environmental Legal Defense Fund in the US.
The new law does not alter the philosophical foundations of Western law, but it does constitute a notable opening of new metaphysical possibilities. A sacred, natural flow of water now has a legal right to participate in government policymaking and go to court!
And why not? The money-making organizational form known as the corporation is every bit as much a legal fiction. Surely natural systems ought to be entitled to have a legal personality to protect themselves against the state and the legal person known as the corporation.
The Te Awa Puua Act achieves this by establishing an office of Te Pou Tupua to act as a trustee and “human face” for the legal person of the Whanganui River. Kothari et al. note that the trust structure for the Whanganui has “its origins in the Maori concept of kaitiakitanga or “commons” / guardianship.”
The New Zealand law follows in the footsteps of other nations that have recognized the rights of nature. Ecuador was the first when it recognized the rights of Pachamama, Mother Earth, in its constitution in 2008. Bolivia also did so a few years later. In the U.S., many communities have also recognized the rights of nature – although the legal enforceability of those rights, standing in the jurisprudential shadows of US federal and state law, is problematic.
In any case, the trend to recognizing nature's rights seems to be gaining some momentum. A few weeks after the New Zealand law was enacted, according to Kothari et al., “a court in India ruled that the Ganges and Yamuna rivers and their related ecosystems have ‘the status of a legal person, with all corresponding rights, duties and liabilities…in order to preserve and conserve them.’”
These grand declarations of law will require much addition work if they are going to have real impact. As Kothari and his coauthors write:
What does it mean for a river to have the rights of a person? If the most fundamental human right is the right to life, does it mean the river should be able to flow free, unfettered by obstructions such as dams? Does the right extend to all creatures in the river system? How can a river, with no voice of its own, ensure such rights are upheld or ask for compensation if they are violated? Who would receive any compensation? And can such rights undo past wrongs?
….How will [government] officials be responsible “parents” – as designated by the court – if their superiors continue to make decisions that are detrimental to the rivers, such as massive hydro-project construction? Can these officials sue their own government?
The limits of this approach have been seen in Bolivia and Ecuador, where enforcing nature’s rights in court have often encountered formidable opposition.
It seems that we stand at the threshold of a new field of jurisprudence whose terms remain uncertain because they are legally under-developed and still politically contested. But the problem goes deeper. The cold reality is that state law can only achieve so much without accompanying changes in social practice, personal beliefs and culture. These are arguably the bigger challenges ahead.
At least now there is a beachhead of legal precedent into which cultural energies can flow and develop. That’s progress! Onward to the odyssey of changing the culture, and learning from the long struggles of indigenous peoples.